TNHY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

TNHY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1708 (8 June 2021)
Division:GENERAL DIVISION
File Number(s): 2021/1807
Re:TNHY
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:8 June 2021
Place:Sydney

The reviewable decision made 17 March 2021, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the Applicant’s Class BS-801 permanent partner visa, is set aside.
In substitution it is decided that the decision to cancel the Applicant’s Class BS-801 permanent partner visa made on 13 May 2020 is revoked.
..........................[SGD]..............................................
Deputy President J W Constance
CATCHWORDS
MIGRATION – mandatory cancellation – character test – whether there is another reason why the original decision should be revoked – application of Direction 90 – money laundering offences – where offences serious – where low risk of re-offending – where Applicant has two Australian citizen children – best interests of minor children in Australia – extent of impediments if removed – strength, nature and duration of ties to Australia – balancing exercise – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth), ss 499, 500, 501
CASES
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
SECONDARY MATERIALS
Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Deputy President J W Constance
8 June 2021
A: INTRODUCTION
A contentious issue
I urge anyone who wishes to comment on the decision in this application to read these reasons for the decision before doing so.
The cancellation of the visa of a person who is a resident of Australia is a contentious issue and one which arouses public interest and invites public comment. The Tribunal’s decisions in this jurisdiction are regularly subjected to public scrutiny. This is how it should be. However, in fairness to the parties in such proceedings, the public comment should be well-informed.
I have no doubt that some in the Australian community will disagree with the decision I have reached, but it is the task of the Tribunal to apply the law and to exercise any discretion given to it in accordance with the law. It is not the role of the Tribunal to punish an offender – this is the role of the Courts.
Contrary to the views often expressed in the media, it is not the law of this country that every visa holder who commits a serious offence should be deported. Had Parliament intended such a result it would have said so.
Events leading up to this application
The Applicant was born in Vietnam in 1991 and is a citizen of that country.
The Applicant arrived in Australia in October 2008[1] having been granted a TU-573 temporary student visa. She was granted a BS-801 permanent partner visa in 2012.
[1] Exhibit A2 at [8].
In February 2020, the Applicant was sentenced to imprisonment for four years in respect of two offences of dealing with the proceeds of crime, one of the money laundering group of offences.[2]
[2] Exhibit R1 at 33-34.
By reason of her sentence being for 12 months or more, on 13 May 2020 the Applicant’s visa was cancelled in accordance with subsection 501(3A) of the Migration Act 1958 (Cth) (the Act).[3] This decision is referred to in the Act as “the original decision”.
[3] Exhibit R1 at 262.
On 17 March 2021, a delegate of the Minister decided not to revoke the original decision.[4] The decision of 17 March 2021, referred to as the “reviewable decision”, is the subject of this application for review.
[4] Exhibit R1 at 314.
The reviewable decision was made on the basis that the delegate was satisfied that the Applicant did not pass the “character test” set out in the Act, and that there was not another reason why the original decision should be revoked.
For the reasons which follow, the reviewable decision will be set aside and it will be decided that the cancellation of the Applicant’s visa be revoked.
B: BACKGROUND
Unless otherwise stated, the findings of fact in these reasons are based on the evidence of the Applicant. She provided statements dated 29 November 2019,[5] 5 June 2020,[6] 6 November 2020[7] and 30 April 2021[8] and gave evidence at the hearing.
[5] Exhibit A2.
[6] Exhibit R1 at 96.
[7] Exhibit R1 at 98.
[8] Exhibit A1.
The Applicant married for a second time in 2014.[9] There are two children of this marriage, a son born in June 2016[10] and a son born in October 2017.[11] The children have been cared for by their father and their maternal grandmother since the Applicant was imprisoned.
[9] Exhibit R1 at 120.
[10] Exhibit R1 at 121.
[11] Exhibit R1 at 123.
The Applicant’s husband resides in Australia on a temporary resident visa, sponsored by the Applicant. Prior to the marriage he lived in Australia on a student visa.
The Applicant’s criminal record
On 3 February 2020 the Applicant was convicted in the New South Wales District Court of the following offence:
Between about 23 May 2015 and 28 July 2016, at Sydney and elsewhere in the State of New South Wales, dealt with money intending that it would become an instrument of crime and at the time of the dealing the value of the money was $100,000 or more.[12]
[12] Exhibit R1 at 37.
The Court imposed a sentence of imprisonment of four years commencing on 3 February 2020 and expiring on 2 February 2024 with a non-parole period of two years commencing on 3 February 2020 and expiring on 2 February 2022.[13]
[13] Exhibit R1 at 60.
Failure to pass the character test
It is not in dispute that, by reason of her criminal record, the Applicant does not pass the character test set out in the Act.
C: THE RELEVANT LEGISLATION
Subsection 501(3A) of the Act provides:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(7)(c) provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more …
Subsection 501CA(3) provides:
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The power of the Tribunal to review the decision to refuse to revoke the cancellation of the Applicant’s visa is provided by section 500 of the Act.
D: DIRECTION NO. 90
Pursuant to subsection 499(1) of the Act, the Minister has given written directions as to the exercise of the power to revoke a mandatory cancellation, and thus the Tribunal’s power on review. The relevant direction is Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction), which commenced on 15 April 2021. Pursuant to subsection 499(2A) of the Act, the Tribunal is bound to comply with the terms of the Direction.
Subparagraph 5.1(2) of the Direction provides, in part:
Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
Paragraph 5.2 provides general guidance and directs that the “factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2”.
Paragraph 6 of the Direction sets out how the discretion is to be exercised. “Informed by” the principles in paragraph 5.2, I must “take into account” the considerations in section 8 and 9 in order to determine whether the mandatory cancellation of the Applicant’s visa should be revoked. A copy of sections 8 and 9 is “Annexure A” to these reasons.
In paragraph 5.2, the Minister sets out the principles that provide the framework within which the task of exercising the discretion to revoke the cancellation of a visa is to be approached. The principles are:
(1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)   Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)   The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)   Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
The Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case.[14] Primary considerations should generally be given greater weight than the other considerations.[15]
[14] Direction at 6.
[15] Direction at 7(2).
Section 8 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)   protection of the Australian community from criminal or other serious conduct;
(2)   whether the conduct engaged in constituted family violence;
(3)   the best interests of minor children in Australia;
(4)   expectations of the Australian community.
Section 9 sets out other considerations to be taken into account where relevant. It provides:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i. strength, nature and duration of ties to Australia;
ii. impact on Australian business interests
E: THE ISSUE FOR DETERMINATION
I have set out subsection 501CA(4) of the Act earlier in these reasons (see paragraph 21). Before the power to revoke the original decision is enlivened, it is necessary for the decision-maker to be satisfied that the preconditions to the exercise of the power have been met.
It is not in dispute that the Applicant has made representations of the kind referred to in paragraph (a) of subsection 501CA(4). It is also not in dispute that she does not pass the character test in subparagraph (b)(i) of the subsection. Therefore, it is necessary to decide whether “there is another reason [i.e. other than the Applicant’s passing the character test] why the original decision should be revoked”.[16]
[16] Subparagraph 501CA(4)(b)(ii) of the Act.
If I am satisfied of all the relevant requirements of paragraph 501CA(4)(b), then the cancellation must be revoked. To this extent, “may” in the subsection means “must”.[17]
[17] Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 at [31].
F: REASONING
F1: Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
Paragraph 8.1(1) of the Direction provides that I should keep in mind that:
·………. the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
I should also consider:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.[18]
Serious conduct “includes behaviour or conduct of concern that does not constitute any criminal offence.” Examples are provided in the Direction.[19]
F1.1: The nature and seriousness of the Applicant’s conduct to date
[18] Paragraph 8.1(2)
[19] Paragraph 4(2).
Criminal history
The Applicant has no criminal convictions other than that to which I have referred. There is no evidence to suggest that her conduct other than that related to the offence (including her conduct in prison) has been improper.
The offence committed by the Applicant comes under the general description of money laundering which facilitates other criminal activity. The maximum penalty for the offence is 20 years imprisonment and/or 1,200 penalty points.
The Sentencing Remarks of Huggett J in the District Court refer to the Applicant’s organizing of others to make bank deposits of amounts less than $10,000 for transfer overseas. Her Honour described the process as follows:
The methodology used by the offender and others involved in the transactions the subject of the offence is called “cuckoo smurfing” money laundering methodology. “Cuckoo smurfing” involves the use of individuals who are locally based to carry out bank transactions including depositing cash in amounts under the applicable reporting threshold of $10,000 in order to enable others based outside Australia to move cash into Australia without compliance with local regulations and laws. The individuals used to conduct such transactions are referred to as “smurfs”.[20]
[20] Exhibit R1 at 40.
Paragraph 8.1.1 of Direction No.90
Paragraph 8.1.1 provides, in part:
(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:
…
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.       causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.      crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.      any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
…
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen 's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
Discussion
The Applicant’s conduct must be regarded as serious.
The Applicant gave evidence that initially she did not think much about her conduct being illegal and that she thought she was helping people in Vietnam without harming anyone. However, records of telephone conversations between the Applicant and Ms Chuot in Vietnam (referred to in Her Honour’s Sentencing Remarks), show the Applicant was aware that she was acting illegally and that she was well aware of steps she and others should take to avoid detection by Australian authorities. She used telephone applications such as Viber and WeChat to instruct others to make deposits into nominated accounts at various financial institutions. The telephone communications occurred between 23 May 2015 and 22 July 2016.[21]
[21] Exhibit R1 at 41-46.
The Applicant arranged for funds in excess of $786,000 to be transferred overseas. Huggett J found that:
Between 13 July 2016 and 5 August 2016 a total of $786,870 was deposited into various locally based financial institutions. During this same period instructions relating to the deposit of a further $185,857 were provided to the offender which she in turn provided to others however for each of the latter transactions particular evidence was not able to be obtained such that those deposits have been described as being “unconfirmed”.[22]
[22] Exhibit R1 at 40.
The evidence before the District Court showed that the Applicant played “an integral role”[23] in the money laundering:
The available evidence reveals that the offender's role in the offending was not that of a low level syndicate member performing menial tasks closest to the risk of detection. She played an integral role in the offending commencing on 23 May 2015 when she began communicating with J Chuot. That said I accept that the main transactions that are the basis of the offence took place over a period of approximately two weeks, namely 13 July 2016 to 5 August 2016.
During the period of the offending the offender engaged in the following conduct; she communicated regularly with J Chuot regarding the transactions at times providing regular advice and updates, for example, informing J Chuot, "This bank does not have much. So it will be safe for me to do it in 2-3 days" and "transfers with large $ will be done the next day otherwise they will be suspected".
She also communicated with a number of locally based participants in the scheme including Nguyen and assumed responsibility for making arrangements for them to perform essential tasks, namely collecting money intended to be an instrument of crime and providing instructions regarding the way the money was to be structured and deposited, thereafter taking possession of copies of deposit slips as confirmation such deposits had been made.
It is accepted that the offender's role was subordinate to that of J Chuot who performed a more substantial and senior role involving significant decision making and direction.[24]
[23] Exhibit R1 at 48.
[24] Exhibit R1 at 48-49.

Huggett J later observed:
The maximum penalty for the present offence indicates it is a very serious one. In part that is because conduct of the type before this Court is vital to the success of some criminal offences involving the moving of the proceeds of crime to third parties or offshore and/or assisting criminal enterprises by making their detection more difficult.[25]
The Court imposed a term of imprisonment of four years after allowing for a reduction for the Applicant pleading guilty. Bearing in mind that the Applicant had no previous convictions, entered a guilty plea and was caring for her two young children, this was a significant sentence.
F1.2: The risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct.
[25] Exhibit R1 at 50.
Paragraph 8.1.2 of the Direction provides, in part:
(1)    In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)    In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.       information and evidence on the risk of the noncitizen re-offending; and
ii.       evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Under this heading it is the seriousness of potential harm to the Australian community arising from future conduct which is to be considered rather than the seriousness of the conduct itself.
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
The Minister submitted that:
The Applicant has been convicted of dealing with the proceeds of crime. The Respondent contends that, if the Applicant were to re-offend, the harm could directly result in financial loss and psychological harm. Further, noting that the nature of the Applicant's past offending is that it facilitates other offending, the Respondent contends that indirectly if the Applicant were to re-offend this could result in physical harm.[26]
[26] Respondent’s Statement of Facts, Issues and Contentions dated 14 May 2021 at [33].
It is not clear from the evidence (including the Sentencing Remarks) how the laundered money was used. It appears that the proceeds resulted from crimes committed outside Australia and the laundered funds were intended to be used outside Australia also. The extent of any harm to individuals residing outside Australia is unknown.
Nevertheless, further criminal conduct such as any of the money laundering offences and/or other serious conduct would result in financial harm to the Australian community in enforcing Australian laws, in dealing with the Applicant through the Courts and in incurring the cost of her further imprisonment.
The likelihood of the Applicant engaging in further criminal or other serious conduct
The Applicant’s evidence
The Applicant says that she is very remorseful of her offending and that she will not re-offend. She now appreciates the effect her offending has had on her family and understands the impact of life in prison, both of which have strengthened her determination not to re-offend.
The evidence of the Applicant referred to in the following four paragraphs was given in her statement dated 30 April 2021[27] and verified by her at the hearing.
[27] Exhibit A1.
Following her conviction, the Applicant was imprisoned at the Silverwater Correctional Centre for about two weeks and then transferred to the Emu Plains Correctional Centre where she is currently detained. At Emu Plains she has been employed as a cleaner, a gardener, an office assistant and in a process line wrapping head-sets. The Applicant is presently employed by a milk processing company between 7:30am and 1:30/2:00 pm, five days per week.
While in prison the Applicant has completed a course in English, Skills in Vocational Training, Working Safely Training and “Getting Out, Staying Out” and “In Charge of my Money” programs. In October 2020 she was transferred to Dillwynia Correctional Centre for four months where she completed a High Intensity Program specifically designed to prepare inmates for reintegration into the community and to reduce recidivism.[28]
[28] Exhibit A10.
The Applicant has suffered from depression whilst in prison and attends a psychologist every two to four weeks. She takes medication to assist her sleeping.
If she is able to return to live in the Australian community, the Applicant will live with her husband and her mother and care for her children. She will be employed by her sister-in-law in a Nail Salon. She will have the support of her immediate family who all live in Australia.
Evidence of Mr A, the Applicant’s husband
Mr A provided statements dated 6 June 2020[29] and 10 September 2020.[30] He gave evidence at the hearing.
[29] Exhibit R1 at 119.
[30] Exhibit R1 at 281.
Mr A has daily telephone contact with the Applicant and she speaks to him and the children by video link at weekends. She has often said that she is very sorry for what she has done and that she will never do it again. She becomes upset and misses him and the children. Mr A is of the opinion that the Applicant will not re-offend.
Should the Applicant be able to return to live in the Australian community, Mr A plans that they will focus on their family, work hard and aim to set up their own business to provide a secure income for the family.
Sentencing Assessment Report dated 22 July 2019, prepared for the District Court by Mr Maunder, Community Corrections Officer
Mr Maunder assessed the Applicant as having a low risk of re-offending.[31]
[31] Exhibit R1 at 108.
Under the heading Attitudes, Mr Maunder reported:
[The Applicant] attributed her offence to be a matter where a family member had taken advantage of her. [The Applicant] reported that she was of the belief that she was assisting her aunt’s legitimate business. [The Applicant] revealed that she was naïve at the time and that she was unaware of any illegality.[32]
[32] Exhibit R1 at 107.
Report of Dr Cantali, Principal Psychologist
Dr Cantali assessed the Applicant in September 2019 for the purposes of the proceedings in the District Court. She provided a report dated 20 September 2019.[33]
[33] Exhibit A9.
Dr Cantali diagnosed the Applicant as suffering Major Depressive Disorder, Single Episode and Post Traumatic Stress Disorder. She reported, in part:
She was found to acknowledge important problems and the perception of a need for help in dealing with these problems. She endorsed a positive attitude towards the possibility of personal change, the value of treatment and the importance of taking personal responsibility.
………………..
She presented with significant history of trauma during adolescence and early adulthood. [The Applicant] has developed a fear of abandonment, feelings of inadequacy, low self-worth and poor decision-making skills.
………………..
Following the information obtained from [the Applicant] about her background it is evidence that [the Applicant’s] previous trauma and psychological state impacted her ability to make functional and health decisions, which would have contributed to her current situation.
In regard to the current proceedings, I respectfully offer the court my professional opinion. I assess [the Applicant] meeting the diagnostic criteria for Major Depressive Disorder and Posttraumatic Stress Disorder. In my opinion, it is likely that these disorders have been long-standing and were present at the time of the index offences.[34]
[34] Exhibit A9 at [49], [53], [56] and [57].
Sentencing Remarks of Judge Huggett
In her remarks Huggett J referred to the Applicant’s admission that she had deliberately tried to underplay her role in the offending when being assessed by Mr Maunder. Her Honour found that the Applicant knew “at the time of her offending and well before her arrest that her conduct was illegal as reflected by a number of her telephone communications ……….. any regret or remorse she now feels regarding her offending is in the main driven by the effect it has had for herself and her family rather than being motivated by a genuine understanding that her actions were wrong.”[35]
[35] Exhibit R1 at 56-57.
Notwithstanding Her Honour’s reservations about the reason for the Applicant’s remorse and her misleading of Mr Maunder, she found that she had good prospects of rehabilitation, particularly if she adhered to treatment including psychological assistance.[36]
[36] Exhibit R1 at 57.
Psychology Services Progress Notes
These records show that the Applicant has received regular psychological treatment while she has been in prison.[37]
[37] Exhibit A11.
Evidence of Mr B, the Applicant’s father
Mr B provided a statutory declaration made 6 June 2020[38] and gave evidence at the hearing. He has lived in Australia since late 2015.
[38] Exhibit R1 at 127.
Mr B believes the Applicant is remorseful of her actions and that she has “learnt her lesson”.[39] He is of the opinion that she will not commit any further offences. Mr B and his family will support the Applicant to assist her rehabilitation and future contribution to the Australian community.
[39] Exhibit R1 at 128.
Evidence of Mr Watson-Munro, Consultant Psychologist
The Applicant was assessed by Mr Watson-Munro on 14 and 28 April 2021 at the request of her Solicitors. He provided a report dated 18 May 2021[40] and gave evidence at the hearing.
[40] Exhibit A6.
In the opinion of Mr Watson-Munro, the Applicant’s insight in to the possibility of being deported and the effect on her family “has galvanised her resolve to deal with her problems and certainly reinforced her motivation to not reoffend in the future.”[41] The Applicant has been greatly affected by her incarceration. The harsh realities of the criminal justice system has had a salutary effect upon her. She has dissociated from her aunt in Vietnam and “clearly has matured”[42] since the time of her offending.
[41] Exhibit A6 at 3.
[42] Exhibit A6 at 9.
Mr Watson-Munro also interviewed the Applicant’s husband and concluded that he is very supportive of her.
Mr Watson-Munro reported, in part:
There are a number of protective factors in this case which will maintain [the Applicant’s] pro-social attitude and reduce the risk of further offending. Beyond an absence of substance use, there is no prior criminal history. She has expressed appropriate remorse for her behaviour and takes responsibility for her actions. She is well supported by her husband, her children and her family of origin, who are all domiciled in Australia. She is keen for treatment and in addition, motivated to re-join the workforce. All of these issues will contribute to her maintaining a pro-social life. In this regard, I concur with the opinion expressed in the Sentencing Assessment Report dated 22 July 2019 at the hand of Mr Colin Maunder, that the risk of reoffending in this case is low.[43]Discussion
[43] Exhibit A6 at 10.
Having considered the evidence I have referred to above, I have concluded that it is unlikely that the Applicant will engage in further criminal or other serious conduct.
My reasons for reaching this conclusion are:
·the Applicant has been assessed by both Mr Maunder and Mr Watson-Munro as being of low risk of re-offending;
·Huggett J found that the Applicant has good prospects of rehabilitation, particularly if she adheres to treatment including psychological treatment;
·the Applicant has sought and continues to receive psychological treatment;
·by the time the Applicant is released she will have experienced two years of the deterrent effect of incarceration, which has been a salutary experience for her; I accept Mr Watson-Munro’s evidence in this regard;
·the Applicant has sought and obtained employment in prison, demonstrating a desire to better her prospects upon her release;
·the Applicant has undertaken various courses in prison, including the High Intensity Program offered by Corrective Services NSW;
·I am satisfied that, upon release, the Applicant will return to live with her husband and children and will have the support of her immediate family members;
·I am satisfied that, upon release, the Applicant will have good prospects of employment which may later develop to her being engaged with her husband in their own business;
·although there may have been doubt about the motivation for the Applicant’s expression of remorse, I am satisfied that she is now genuinely remorseful and now understands the consequences of her actions and how they have affected herself and her family;
·upon release the Applicant will have the support of two years of probation;
·the Applicant’s crime was not one which could be repeated on impulse but would require considerable planning, giving the Applicant time to consider the consequences.
F2: Whether the conduct engaged in constituted family violence
This is not a relevant consideration in this application.
F3: Best interests of minor children in Australia
The Applicant has two sons, both of whom are Australian citizens residing in Australia. The elder is almost five years old and the younger is three years.
At the time of the hearing the children were living in quarantine with their maternal grandmother, having recently returned from living in Vietnam for the past 14 months. On the basis of the evidence of their father and the Applicant, I am satisfied that, until the Applicant is released, the children will live with their father or will live with the Applicant in Emu Plains Correctional Centre.
The Applicant has obtained approval for the children to live with her in prison. Her husband is not in favour of this as he is concerned that the children may be adversely affected by this experience. His preference is that, until the Applicant is released, the children live with him and that he cares for them with the assistance of the Applicant’s mother. This is a matter for further consideration by the Applicant and her husband.
The children are familiar with their grandmother and have travelled with her to Vietnam on several occasions, both before and after the Applicant’s incarceration. The children were living in Vietnam with their grandmother from mid-March 2020 until mid-May 2021. On the basis of their father’s evidence I am satisfied that the children travelled to Vietnam with their grandmother to visit family members and their return to Australia was delayed by pandemic travel restrictions.
If they continue to reside with their father, the elder child will attend Kindergarten and the younger child will attend day care.
Whatever arrangements are made for the children until the Applicant is released, I am satisfied that should the Applicant continue to live in Australia after her release, the children will live with and be cared for by their parents with assistance from their grandmother.
Based on the evidence of the Applicant, the Prison Case Notes[44] and the Psychology Service Progress Notes,[45] I am satisfied that the Applicant has suffered severe distress as a result of her separation from her children and is genuinely remorseful for the effect her conduct has had on them.
[44] Exhibit A10.
[45] Exhibit A11.
Mr A said that if the Applicant cannot remain living in Australia it is likely that he and the children will return to live in Vietnam with the Applicant. I accept his evidence. Mr A is sponsored by the Applicant and there is the possibility that his visa may be cancelled, leaving him no alternative but to move to Vietnam with the children.
English is the children’s first language, although they can speak some Vietnamese and have been exposed to life in Vietnam. If they were living in Vietnam, Mr A’s preference would be that they attend an International School which teaches in English. However it is unlikely they would be able to afford this.
I am satisfied that it is in the best interests of the children that they remain in Australia and continue their education here. In reaching this conclusion I have taken into account that the Applicant does not become eligible for parole until February 2022. By that time the children will have advanced in their schooling and will have again become familiar with life in Australia.
Should the family be forced to return to Vietnam, the arrangements for the children’s accommodation and education are uncertain. Their parents will need to gain employment whereas if they remain in Australia it is likely that both parents will be in stable employment and better able to provide for them.
Although the children have relatives in Vietnam, the Applicant’s immediate family resides here and importantly, the Applicant’s mother has played a significant role in their care. The children would lose the benefit of this care should they leave Australia.
The children were born in Australia and are Australian citizens. They are entitled to reside in Australia. If they are removed from Australia it is unlikely that they will be able to enjoy this privilege, at least not until they reach adulthood.
F4: Primary Consideration 4: Expectations of the Australian community
Paragraph 8.4 of the Direction provides:
(1)   The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a)    acts of family violence; or
b)    causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)     commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)     worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

As required by sub-paragraph 8.4(4), I proceed on the basis of the views articulated by the Government.
I take into account that the Applicant’s offending does not raise serious character concerns of the kinds referred to in sub-paragraph 8.4(2). The Minister did not submit otherwise.
F5: Other considerations set out in the Direction
At paragraph 30 of these reasons I have set out sub-paragraph 9(1) of the Direction, which mandates that I take into account such further considerations as are relevant.
F5.1 International non-refoulement obligations
Australia does not owe any international refoulement obligations to the Applicant.
F5.2 Extent of impediments to the Applicant if she is removed from Australia
Subparagraph 9.2 provides:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
Although the Applicant is young, her health issues raise some concern.
Prior to her incarceration the Applicant was diagnosed with Mixed Anxiety-Depressive Disorder by Dr Cantali.[46] The Applicant began to experience symptoms of this condition after she was arrested in January 2017, more than three years before she was convicted and sentenced. She continues to receive treatment from a Psychologist for this condition.[47]
[46] Exhibit A9.
[47] Exhibit A11 and the oral evidence of the Applicant.
The Applicant has been diagnosed with Hepatitis B. Dr Cantali reported, in part:
Hepatitis B symptoms include loss of appetite; fatigue; nausea and vomiting; rashes; pain in the right-hand side of the stomach area; fever; sore joints; jaundice (yellow skin and eyes). Being diagnosed with this contagious disease has caused [the Applicant] a significant level of anxiety and stress. She is constantly worried and uncertain about how this condition will impact her life and future and lives in constant fear of contaminating her children with the disease.[48]
[48] Exhibit A9 at [16].
The Applicant does not receive treatment for this disease at present but may do so in future.
Based on the evidence in the DFAT Country Information Report for Vietnam (issued 13 December 2019)[49] I am satisfied that the Applicant will be able to access treatment for her illnesses in Vietnam, although not as readily and not at the same level as she can in Australia.
[49] Exhibit R2.
The Report provides, in part:
Health outcomes have generally improved in recent decades in line with Vietnam’s considerable economic growth. The transition from a centrally controlled to a market economy, however, led to a reduction in state expenditure on healthcare and the introduction of user fees for both public health facilities and private practice. This has resulted in growing disparities in health outcomes between higher and lower socioeconomic groups, urban and rural areas…[50]
………………..
A 2015 government report found that mental health issues were estimated to affect around 10 per cent of the population (approximately 9 million people), of which 200,000 people were classified as severely mentally ill. A draft National Strategy on Mental Health (2018-2025), with a view to 2030, prioritised the provision of healthcare to poor regions, those in difficult situations, and ethnic minorities and other vulnerable groups. A 2018 joint UNICEF, the Ministry of Labour – Invalids and Social Affairs (MOLISA), and ODI study of Mental Health and Psychosocial Wellbeing among Children and Young People in selected provinces and cities in Vietnam reinforced that mental health and psychosocial problems were widespread and increasing in Vietnam, and, despite some progress, the service environment and response remained largely inadequate. The lack of mental health services was particularly acute in remote provinces and services often focused on severe mental health disorders. The report recommended the Government approve and implement the National Strategy, supported by budgetary allocations and collaboration among different sectors. It remains unclear, however, whether the strategy has been approved by the Government of Vietnam.[51]
[50] At [2.20].
[51] At [2.24].
I am satisfied that depending on the employment and accommodation available to the Applicant in Vietnam, the quality of the health care which would be available to her (particularly in mental health services) will be significantly less than that in Australia.
As the Applicant lived in Vietnam until she was 17 years old and speaks the Vietnamese language, I am satisfied that she will not encounter any substantial language or cultural barriers should she return to Vietnam.
Apart from the difficulties the Applicant may face in obtaining employment and accommodation in Vietnam, I am satisfied that she will have social, medical and/or economic support available to her in that country, particularly if her husband returns to Vietnam with her. I take into account that she has relatives living in Vietnam who have been visited by the children and her mother recently.
F5.3 Impact on victims
There is no evidence to enable me to make a finding as to the impact, if any, on victims of the Applicant’s offending.
F5.4 Links to the Australian community
Paragraph 9.4 of the Direction provides:
9.4.1. The strength, nature and duration of ties to Australia
(1)    Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.      less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.      more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

9.4.2.   Impact on Australian business interests
(3) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The strength, nature and duration of the Applicant’s ties to Australia
The Applicant’s husband, children, parents and brother reside in Australia. The children are Australian citizens whose interests I have considered earlier in these reasons.
The Applicant’s father is a permanent resident of Australia.[52] He is willing to assist in the care of his grandchildren if required.[53]
[52] Exhibit R1 at 127.
[53] Transcript, 25 May 2021.
The Applicant’s husband has been granted a Temporary Partner Visa Subclass 820 visa.[54] I do not have sufficient evidence to make a finding as to the resident status of other members of the Applicant’s family in Australia.
[54] Exhibit R1 at 280.
The Applicant has resided in Australia since she arrived as a 17 year old in October 2008, a period of over 12 years. This is not a period which entitles the Applicant to special consideration, particularly as she commenced offending in May 2015, less than seven years after she arrived in this country.
The Applicant has spent some of her time contributing positively to Australia by being employed and paying taxes. However, as this has been for only a relatively short time before her imprisonment, I do not give this factor significant weight.
Impact on Australian business interests
I am satisfied that not allowing the Applicant to remain in Australia will not have any impact on Australian business interests.
PART G: THE BALANCING EXERCISE
The Minister contends that primary consideration 1 (protection of the Australian community) and primary consideration 4 (expectations of the Australian community) weigh “strongly” against the Tribunal being satisfied that there is another reason why the initial decision should be revoked and that these considerations outweigh all others.[55]
[55] Respondent’s Statement of Facts, Issues and Contentions dated 14 May 2021 at [16].
I cannot accept the Minister’s contention.
In balancing the various considerations, the need to protect the Australian community weighs in favour of refusing to revoke the mandatory cancellation of the Applicant’s visa, but not strongly so. My reasons for this conclusion follow.
As I have found, the operation in which the Applicant was involved assisted criminal groups outside Australia. I do not have evidence which would enable me to determine that individuals in Australia were directly affected or that the Australian community was directly harmed by criminal groups operating within Australia.
Both Mr Watson-Munro and Mr Maunder assessed the risk of the Applicant re-offending as low. The Minister did not challenge these assessments. Mr Watson-Munro assessed the Applicant in April 2021 and gave evidence at the hearing.
For the reasons I have stated, it is unlikely that the Applicant will re-offend. Whilst the several factors to which I have referred all play a part in my reaching this conclusion, I have taken particular note that the Applicant has taken the opportunity to maximise her prospects of returning to live in the Australian community as a law-abiding citizen should she have the chance to do so. In this regard the Applicant has undertaken the High Intensity Program provided in special units within Corrective Services NSW and specially designed to reduce recidivism.
NSW Communities and Justice website provides information as to the nature of this program:
The High Intensity Program Units (HIPUs) are located in seven Correctional Centres across NSW, and deliver intensive programs and services to participants serving shorter prison sentences. The primary goal of the HIPUs is to provide short-sentenced inmates with intensive programs, services and enhanced release planning to reduce the risk of return to custody and/or the risk of re-offence. These interventions are based on a comprehensive individualised assessment of each participant and an ‘exit-on-entry’ Case Plan that focused on whole of sentence. The individual program pathway developed in the Case Plan uses the EQUIPS suite of programs to address risk and needs in areas such as aggressive, domestic violence, and addiction.
I am satisfied that the risk to the Australian community is an acceptable one.
I agree with the Minister’s contention that the expectations of the Australian community are that the cancellation of the Applicant’s visa not be revoked.
Having weighed up all the relevant considerations, I have decided that the interests of the Applicant’s two children outweigh all considerations in favour of not revoking the cancellation of her visa and justify not giving the weight to the protection and expectations of the Australian community contended for by the Minister.
Although the children have spent considerable time in Vietnam with their grandmother, I am satisfied that should the Applicant be able to remain in Australia after her release, their primary carers will be their parents. If the parents return to Vietnam, I am satisfied that the children will accompany them. I am satisfied that, should they be taken to Vietnam, it is likely that they will face a less certain future in that country than they will in Australia, particularly in education and health care. They will also have less contact with their family members in Australia, particularly their maternal grandmother who has played an important role in their care since the Applicant’s incarceration.
I accept that the Applicant is genuinely remorseful of her offending and that she realises the harm she has caused to her family, as well as to herself. I am satisfied that she intends not to re-offend and that she will have family support to assist her rehabilitation into the Australian community.
I have taken into consideration also that the Applicant’s ties to Australia and the extent of the impediments if she is removed from Australia, favour revoking the cancellation.
Based on the evidence to which I have referred, I am satisfied that the relevant other considerations also support the revocation of the visa cancellation.
Although I have found that the risk to the Australian community is acceptable, the risk remains. The Applicant must realise that if she is able to enjoy the privilege of continuing to reside in Australia, it is the expectation of the Australian community that she will abide by the laws of this country at all times. She must realise that further offending may lead to her deportation.
PART H: CONCLUSION
The reviewable decision made 17 March 2021, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the Applicant’s Class BS-801 permanent partner visa, will be set aside.
In substitution it will be decided that the decision to cancel the Applicant’s Class BS-801 permanent partner visa made on 13 May 2020, be revoked.

I certify that the preceding 129 (one hundred and twenty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

........................................................................
Associate
Dated: 8 June 2021

Date(s) of hearing: 25 and 26 May 2021

Counsel for the Applicant: J Holt

Solicitors for the Applicant: Vinh Duong & Associates

Solicitors for the Respondent: L Hargrave, Clayton Utz
ANNEXURE A
8. Primary considerations
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.

8.1 Protection of the Australian community
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

8.1.1 The nature and seriousness of the conduct
(1) In considering the nature and seriousness of the non-citizen 's criminal offending or other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i. violent and/or sexual crimes;
ii. crimes of a violent nature against women or children, regardless of the sentence imposed;
iii. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

i. causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii. crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii. any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv. where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;

c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen 's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).

8.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

c) where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen ' s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

8.2 Family violence committed by the non-citizen
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

(3) In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and

d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.

8.3 Best interests of minor children in Australia affected by the decision
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until thc child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

8.4 Expectations of the Australian Community
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a) acts of family violence; or
b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f) worker exploitation.

(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

9. Other considerations
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i. strength, nature and duration of ties to Australia;
ii. impact on Australian business interests

9.1 International non-refoulement obligations
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
(2) In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
(4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6) It may not be possible at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of nonrefoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
(7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the noncitizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
(8) If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them — see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non-refoulement obligations.

9.2 Extent of impediments if removed
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.

9.3 Impact on victims
(1) Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

9.4 Links to the Australian community
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 to 9.4.2 below.

9.4.1. The strength, nature and duration of ties to Australia
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community

b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

9.4.2. Impact on Australian business interests
(3) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

[2021] AATA 1708

8 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	25 and 26 May 2021
Counsel for the Applicant:	J Holt
Solicitors for the Applicant:	Vinh Duong & Associates
Solicitors for the Respondent:	L Hargrave, Clayton Utz