Tran and Minister for Home Affairs (Migration)
[2019] AATA 199
•15 February 2019
Tran and Minister for Home Affairs (Migration) [2019] AATA 199 (15 February 2019)
Division:GENERAL DIVISION
File Number: 2018/7002
Re:Thanh Du Tran
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date:15 February 2019
Place:Melbourne
The Tribunal decides to:
1.set aside the decision made by a delegate of the respondent on 22 November 2018 to decline to revoke the decision dated 7 February 2018 to cancel the applicant’s Class BB Subclass 155 Return (Residence) visa.
2.substitute a decision that the decision dated 7 February 2018 to cancel the applicant’s Class BB Subclass 155 Return (Residence) visa be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958.
[sgd]....................................................................
S A FORGIE
Deputy President
Catchwords
MIGRATION – application for revocation of mandatory cancellation of visa – where applicant fails the character test – where substantial criminal record under Migration Act 1958 – risk of reoffending – best interests of minor children – other reason why cancellation decision should be revoked – decision set aside and substituted for decision revoking mandatory cancellation of visa
Legislation
Acts Interpretation Act 1901
Drugs, Poisons and Controlled Substances Act 1981
Legislation Act 2003
Migration Act 1958
Cases
Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456
Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542
Damjanovic & Sons Pty Ltd v The Commonwealth [1968] HCA 42; (1968) 117 CLR 390
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; (2017) 253 FCR 576
G v Minister for Immigration and Border Protection [2018] FCA 1229
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Griffiths v R (1977) 137 CLR 293
Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20; 182 FCR 115; 114 ALD 26
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299; 60 ALJR 560
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441; 42 ALR 209
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; 62 ALR 673
Minister for Immigration and Multicultural Affairs v Daniele (1981) 61 FLR 354; 39 ALR 649
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; 56 ALD 349
New South Wales v Commonwealth [2006] HCA 52; (2006) 231 ALR 1
Ogden Industries Pty Ltd v Lucas [1970] AC 113; [1969] 1 All ER 121
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 72 ALJR 841; 153 ALR 490
R v Jerome and McMahon [1963] Qd R 595
R v Tonks [1963] VR 121
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re FTYC and Minister for Immigration and Border Protection [2018] AATA 20
Re PRHR and Minister for Immigration and Border Protection [2017] AATA 2782
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Ridley v Secretary, Department of Social Security (1993) 42 FCR 276; 113 ALR 655
Saffron v Commissioner of Taxation (Cth) (No 2) (1991) 30 FCR 578; 102 ALR 19
Saitta Pty Ltd v Commonwealth [2000] FCA 1546; (2000) 106 FCR 554
SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245
Ziems v Prothonotary of Supreme Court (1957) 97 CLR 279
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Material
Chambers 21st Century Dictionary (1999, reprinted 2004)
Ministerial Direction No. 65
REASONS FOR DECISION
Deputy President S A Forgie
On 7 February 2018, Mr Thanh Du Tran’s Class BB Subclass 155 Return (Residence) visa (RR visa) was cancelled under s 501(3A) of the Migration Act 1958 (Migration Act). A delegate of the Minister for Home Affairs (Minister) invited him to make representations as to why the Minister should revoke the cancellation decision under s 501CA(4). Mr Tran made representations but another delegate decided on 22 November 2018 not to revoke the cancellation decision. As a consequence, Mr Tran does not hold a visa authorising him to travel to, enter or remain in Australia.
On behalf of Mr Tran, Mr Aleksov of counsel conceded that he does not pass the character test set out in s 501 of the Migration Act. That means that the issue I must consider turns solely on whether I am satisfied that there is another reason why the cancellation decision should be revoked under s 500CA(4)(b)(ii). That provision does not seek to draw boundaries on what would seem to be a wide discretionary power. In considering whether I should exercise it, however, I am bound to have regard to Direction No. 65 made by the Minister under s 499 of the Migration Act in relation to, among others, decisions regarding the revocation of mandatory cancellation of a visa under s 501CA (Direction No. 65). Mr Aleksov challenged the validity of Direction No. 65. I have set that out in detail below and have decided that three discrete passages in Part C, with which I am concerned, are not consistent with the Migration Act. My disregarding those passages does not, however, lead to a conclusion that I am not bound to follow the remaining provisions of Part C or other relevant passages of Direction No. 65. In view of that decision, I have gone on to review the decision not to revoke the cancellation of Mr Tran’s RR visa and have decided to set aside the decision made on 22 November 2018 to decline to revoke the cancellation of Mr Tran’s Class BB Subclass 155 Return (Residence) visa. In its place, I have substituted a decision that the decision dated 7 February 2018 to cancel the applicant’s Class BB Subclass 155 Return (Residence) visa be revoked under s 501CA(4)(b)(ii) of the Migration Act.
LEGISLATIVE BACKGROUND
In this passage of my reasons, I will set out the provisions of the Migration Act which provide the legislative basis on which Mr Tran’s RR visa has been cancelled by operation of the law set out in the Migration Act. They also provide the basis on which I must consider his request for revocation of the decision.
Cancellation of Visa under s 501(3A)
Section 501(3A) of the Migration Act provides that:
“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)…; 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.”
The word “imprisonment includes any form of punitive detention in a facility or institution.”[1]
[1] Migration Act; s 501(12)
Section 501(6) sets out eleven sets of circumstances in which a person does not pass the character test but only those specified in s 501(6)(a) are relevant in this case for the purposes of s 501(3A). Those circumstances are that the person has a substantial criminal record as defined by s 501(7). Section 501(7) sets out six sets of circumstances in which a person is taken to have a substantial criminal record. Only the first three are relevant for the purposes of s 501(3A) and, in this case, s 501(7)(c) is relevant. It provides that a person has a substantial criminal record if “the person has been sentenced to a term of imprisonment of 12 months or more”.
Mr Tran has been sentenced to a term of imprisonment 12 months and another of 15 months. That means that he does not pass the character test as defined in s 501(6) because he has a “substantial criminal record” as defined by s 501(7)(c). In light of that, the terms of s 501(3A)(a)(i) obliged the Minister to cancel Mr Tran’s visa. As Mr Tran was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of, in this case, the State of Victoria, the Minister was also required to cancel Mr Tran’s visa under s 501(3A)(b).
Section 501CA is relevant if the Minister has made a decision, known as the “original decision”, under s 501(3A) to cancel a visa that has previously been granted to a person.[2] Section 501CA(4) provides that:
[2] Migration Act; s 501CA(1)
“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.”
In the circumstances of this case, Mr Tran cannot rely on the provisions of s 501CA(4)(b)(i) as he cannot pass the character test set out in s 501(7). That follows from the fact that he had been sentenced to a term of imprisonment of 12 months or more. As I have said earlier, the only relevant provision is that in s 501CA(4)(b)(ii), which requires me to consider whether “… there is another reason why the original decision should be revoked.” The way in which I am required to consider this issue was addressed by North ACJ in Gaspar v Minister for Immigration and Border Protection:[3]
[3] [2016] FCA 1166
“The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. …”[4]
[4] [2016] FCA 1166 at [38] and cited with approval in Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [30]-[32] per Collier J with whom Logan and Murphy JJ agreed.
Under s 499 of the Migration Act, the Minister may give written directions to a person or body having functions or powers under that Act provided the directions are about the performance of those functions or the exercise of those powers.[5] Those directions must not be inconsistent with the Act or the Regulations made under it.[6] The person or body to whom the directions are given must comply with them.[7]
[5] Migration Act; s 499(1)
[6] Migration Act; s 499(2)
[7] Migration Act; s 499(2A)
The Minister has made a direction under s 499 for the purposes of decisions made under, among others, s 501CA. It is known as “Direction No. 65” and applies to the decision made in relation to a visa of the sort held by Mr Tran. I will come back to Direction No. 65 and to the particular directions which it sets out and to which I must have regard.
BACKGROUND
In this section of my reasons, I will set out those matters that were not the subject of disagreement between the parties.
Early life
Mr Tran, who was born in Vietnam, was three years of age when his parents divorced. He was left in the care of his mother but, when his mother moved to Australia two years later, Mr Tran was left with his grandparents. He regards his grandmother as caring and compassionate but his grandfather as very strict and inclined to use corporal punishment to maintain discipline. Mr Tran attended school until he was aged 15 years and reached what would be the equivalent of Year 7 in Australia. He then worked as a glass cutter and making aluminium doors while learning English. His earnings assisted his grandparents.
Mr Tran’s mother returned to Vietnam in 1999 or 2000 when his grandfather died. He and his mother found it to be a complex and emotional time for both of them. Five or so years later, in 2005, his mother sponsored him to come to Australia and to live with her and her two daughters. For the first time in his life, Mr Tran felt that he belonged somewhere and that he deserved to be loved. He thought it was “such bliss” to be able to live under the care of his mother and with his two siblings.[8]
[8] Exhibit C at [6]
Mr Tran’s mother, Mrs Thuy Kim Nguyen, had raised her two daughters as a single mother. As he knew that life had not been easy for her, he wanted to find work to lift some of the burden from her shoulders. Initially, he found employment on a farm and was able to work there while continuing to live with his mother and half-sisters. He was able to assist his mother and sisters financially.
Mr Tran moved to Brisbane in 2006 and worked for three months on a strawberry farm. He then moved to Darwin and worked on a mango farm. He met his former wife, Ms Thuy Thi Vo, in Darwin and they had a son in 2007. For the next two years, Mr Tran ran a takeaway business in Darwin. He then leased a farm and grew vegetables for the next five years until 2014. During that time, he employed three or four people to work on the farm. He was able to pay their salaries, his taxes and provide continuing support to his mother and sisters while providing for his own family.
In 2014, Mr Tran’s partner left him and took their son with her. Although they had experienced differences in their relationship, he had never expected it to end so abruptly. Ms Vo and their son were uncontactable. Mr Tran felt abandoned in life yet again. He was heartbroken and became extremely upset and depressed. Mr Tran said in his statement:
“It was a very difficult time in my life. I thought I had lost my partner and my only son at the time and was struggling to move on with my life. I felt like I was drowning into a black hole but I did not know how to get out. I attempted suicide and was admitted to Moreland private hospital. I received anti-depressant medication whilst in treatment and was given some on release from the hospital. During the time following the relationship breakdown, I was out of control with my actions and became involved with negative peer groups. My personal drug use also affected my thinking and decision-making as I relied on it thinking it was the way to deal with all the pain and suffering in life.’[9]
[9] Exhibit …. At [12]
Convictions
In this section, I set out the offences of which Mr Tran has been convicted. Interspersed among the convictions listed are further details that either he gave about those offences when giving evidence or that I have gleaned from the written material. Where available in the material I have,[10] I have included the date on which the offence was committed as that provides some insight into the course of Mr Tran’s conduct.
[10] That information does not include documents from the Darwin Court of Summary Jurisdiction or the Dandenong Magistrates’ Court.
Date of Conviction
Court
Date of Offence(s)
Offence
(counts)Result
13 March 2014
Darwin Court of Summary Jurisdiction
Drive high range blood alcohol content
Convicted
mdl
Disqualified 12 months
alcohol related (.172%)
Fine: $600Drive in a public place without due care
Convicted
Aggregate with drive high range blood alcohol content25 November 2014
Darwin Court of Summary Jurisdiction
Drive high range blood alcohol content
Convicted
Imposed
Suspended after 3 months operative 12 months
mdl.
Disqualified. 5 years backdated 15 April 2014
Restitution: $750
Alcohol related (.253%)
Sentence: 6 monthsDrive a motor vehicle while disqualified
Convicted
aggregate with drive high range blood alcohol contentNot stop after accident
Convicted
aggregate with drive high range blood alcohol content14 July 2015
Darwin Court of Summary Jurisdiction
Fail to comply with restitution order
Warrant of imprisonment
On 9 July 2015, a Katana style sword approximately 30cm in length was located by police between the driver’s seat and the centre console of Mr Tran’s motor vehicle.[11]
20 November 2015
Dandenong Magistrates’ Court
9 July 2015[12]
Possess/use/carry prohibited weapon without exemption/approval
Without conviction
Adjourned to 18 November 2016On 21 January 2016, Mr Tran was located in a motor vehicle asleep in the passenger seat. Drug paraphernalia was observed within the motor vehicle and a small amount of heroin was located in a bag hanging around Mr Tran’s neck.[13]
A drug diversion was issued to Mr Tran on 21 January 2016.
16 February 2016
Dandenong Magistrates’ Court
22 September 2014
Possess controlled weapon without excuse
With conviction
Fined an aggregate of $1,000 with $117 statutory costsUse unregistered motor vehicle - highway
Resist police (2 charges)
Unlicensed drivingWith conviction
Fined an aggregate of $1,000 with $117 statutory costs18 November 2016
Dandenong Magistrates’ Court
Possess/use/carry prohibited weapon without exemption/approval
Dismissed
Compliance with bond/undertakingProof that Mr Tran had failed to comply with the conditions of the drug diversion was received by Victoria Police on 9 February 2017.[14]
26 July 2017
Melbourne Magistrates’ Court
Possess controlled weapon without excuse
With conviction
Fined $500Possess a drug of dependence
(2 charges)
Possess heroinWithout conviction
Adjourned to 25 July 2018 to provide evidence of participation in accredited drug rehabilitation program11 December 2017
Melbourne County Court
(arrested 16 March 2016 and released on bail on 3 July 2017 after entering guilty plea at committal)
Approximately August 2015 to October 2015
Traffick in a drug of dependence
30 months’ imprisonment
Traffick in a drug of dependence
12 months’ imprisonment
10 months of sentence concurrentTraffick in a drug of dependence
10 months’ imprisonment
8 months of sentence concurrent
Total 2 years and 10 monthsNon parole period 1 year, 10 months with 475 days having been served by way of pre-sentence detention.
16 April 2018
Ringwood Magistrates’ Court
Forge identifying number
auth/req by rsaWith conviction
Fined $350 with $122.30 statutory costs25 July 2018
Melbourne Magistrates’ Court
Refer to 26 July 2017 court date above
Possess a drug of dependence
(2 charges)
Possess heroinWith conviction, fined an aggregate of $400
[11] Exhibit 2 at 22
[12] Exhibit 2 at 22
[13] Exhibit 2 at 6
[14] Exhibit 2 at 6
Trafficking drug of dependence: Judge Campton’s sentencing remarks
In sentencing Mr Tran, Judge Campton outlined the circumstances leading to three charges of trafficking in drugs of dependence. She found that Mr Tran had operated a drug trafficking business that both involved and crossed over with a drug trafficking business operated by his mother and with that operated by a third person. Mr Tran usually supplied drugs to customers of gambling venues or at his residence. Those customers were either low level drug traffickers or low level users. The quantities that he supplied in each transaction were usually 3.5 grams or less. Judge Campton said that he engaged in trafficking largely to support his own habit. Mr Tran used six mobile telephone numbers for his business and each number was subscribed in a false name.
In his mother’s drug business, Judge Campton found that Mr Tran acted under his mother’s direction. His activities in her business included collection of drugs from a supplier, allowing credit and collecting drug debts. He also acted as a contact point for customers who were unable to contact his mother and passed information on to her. In one transaction, Mr Tran collected 28 grams of methylamphetamine from a supplier for $7,200. In another with the same supplier, he proposed to obtain further drugs for approximately $14,000. His mother had contributed half that sum and told him to pay the remainder.
In the drug transactions that he could be quantified in the period between 4 August 2015 and 27 October 2015, Judge Campton found:
(1) 19.6 grams of methylamphetamine had been sold in 11 transactions;
(2) 3.5 grams plus $250 worth of heroin had been sold in three transactions;
(3)7.9 grams plus $150 worth of drugs that may have been either methylamphetamine or heroin had been sold in five transactions; and
(4)40 ecstasy tablets had been sold in four transactions.
Judge Campton summarised events in Mr Tran’s life that had led to his offending as well as the steps that he had undertaken to address his drug addiction. I have referred to those matters elsewhere in these reasons. Judge Campton took into account those matters as well as his early guilty plea to the charges and concluded:
“While in the main you trafficked small quantities of drugs and for a relatively short period, the intercepted calls revealed approximately 55 drug customers or potential customers. The telephone intercepts revealed that you were actively concerned in trafficking methylamphetamine, heroin and MDMA. You did not only have your own drug trafficking business but you also assisted in your mother’s drug trafficking business.”[15]
[15] G documents; G2 at 38
Programmes and courses completed
Mr Tran has completed the following courses and programmes:
Date
Provider
Name of Programme or course
7 July 2016
Kangan Institute[16]
Participate in Workplace Safety Arrangements
Competency Achieved7 August 2016
Narcotics Anonymous Port Phillip Prison[17]
20 October 2016
Kangan Institute[18]
Basic Learning Strategies
Competency Achieved28 October 2016
Kangan Institute[19]
Control Traffic with Stop-slow Bat
Competency Achieved20 and 23 January 2017
Uniting Care ReGen
Port Phillip Prison[20]Indo-Chines Substance Use Program
12 hour psycho-educational program offered to prisoners with a history of substance abuse designed to provide information, education, knowledge and understanding in order to improve participants’ informed decision-making. It covered:
· What drugs are
· Drug classifications
· Tolerance, withdrawal and dependence
· Values, beliefs and attitudes towards drug use
· Short and long term effects of drugs
· the 4Ls
· Blood Bourne Viruses
· Harm minimisation
· Goal Setting27 and 30 January 2017
Uniting Care ReGen
Port Phillip Prison[21]Indo-Chines Substance Use Program
12 hour psycho-educational program offered to prisoners with a history of substance abuse designed to provide participants with information and strategies to reduce the risk of drug use whilst in prison and on release. It covered:
· Overview of relapse prevention· Stages of Change
· Motivation
· Coping with triggers and cravings
· Strategies and skills to prevent relapse
· Self-Talk (ABC model)
· Challenging negative self-talk
· Identifying personal strengths
· Communication styles
· Problem Solving, Goal Setting, Support Planning
[16] G documents; G2 at 99
[17] G documents; G2 at 98
[18] G documents; G2 at 101
[19] G documents; G2 at 100
[20] G documents; G2 at 96
[21] G documents; G2 at 97
Current situation
Mr Tran continues to be incarcerated. When Ms Pha Anh Nguyen first met Mr Tran, she was already a friend of his mother. On the basis of the evidence of Ms Pha Anh Nguyen and confirmed by Mr Tran, I find that they regard themselves as girlfriend and boyfriend. This is a relationship that has developed since Mr Tran’s incarceration but they have known each other for a number of years.
CHALLENGE TO VALIDITY OF DIRECTION NO. 65
The submissions
Mr Aleksov’s challenge to the validity of Direction No. 65 focused on paragraph 14.1 with particular reference to paragraphs 14.1(2), (4) and (6). Paragraph 14.1(1) places the paragraph in context when it states:
“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 reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.”
When making a request that the mandatory cancellation of his or her visa be revoked under s 501CA(4), a person may make claims which may give rise to international non-refoulement. Alternatively, a person’s claims might be clear from the facts of the case as might be the case if he or she had applied for a protection visa.[22] Paragraph 14.1(2) states:
[22] Direction No. 65 at [14.1(3)]
“The existence or non-existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.”
If claims of this sort have been made and a non-citizen is able to make a valid application for another visa if the mandatory cancellation is not revoked, paragraph 14.1(4) states that:
“Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.”
Paragraphs 14.1(5) is concerned with the situation in which the visa that was cancelled was a protection visa. For completeness, that paragraph states:
“If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulation refers). The person will also 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 – section 48A and 48B of the Act refer).”
That is not the situation in this case and I will not pursue it further. Finally, paragraph 14.1(6) states:
“In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.”
Mr Aleksov submitted that the second sentence of paragraph 14.1(2) has been found to be incorrect by North ACJ in DMH16 v Minister for Immigration and Border Protection[23] (DMH16). That same error, Mr Aleksov continued, infects the last sentence of paragraph 14.1(6) in that ss 189 and 196 of the Migration Act require the Minister to detain a person who is an unlawful non-citizen in the migration zone and then remove that person from Australia. When there may be grounds for a claim for a protection visa, it is not enough to say that those grounds can be dealt with if an applicant chooses to apply for a protection visa. Those grounds must be considered. Paragraph 14.1(4) has been found to be incorrect in BCR16 v Minister for Immigration and Border Protection[24] (BCR16). It followed that the sentences he had identified in both paragraphs were in inconsistent with the Migration Act and in excess of power.
[23] [2017] FCA 448; (2017) 253 FCR 576
[24] [2017] FCAFC 96; (2017) 248 FCR 456; Bromberg, Davies and Mortimer JJ
Paragraph 14 is an extremely serious consideration in considering whether to cancel or grant a visa. It is formulated on the basis that a cancellation decision may be maintained even if non-refoulement obligations are engaged. That is because there is an assumption that Australia will not, as a consequence of the cancellation of his or her visa, remove a non-citizen to a country in respect of which the non-refoulement obligations exist. Paragraph 14.1 is an integral part of Direction No. 65 when protection obligations are in issue, Mr Aleksov submitted. It is not possible to sever the sentences he had identified from the paragraphs and leave those paragraphs with work to do. Having regard to ss 15A and 15AA of the Acts Interpretation Act 1901 (AI Act), it is not possible to sever them and be left with sub-paragraphs, or even paragraph 14.1 as a whole, in a state in which the paragraph is consistent with the Migration Act. Sections 15A and 15AA require that every Act shall be read and construed so that it does not exceed legislative power. As paragraph 14.1 does not make sense without sub-paragraphs 14.1(2), (4) and (6), paragraph 14.1 as a whole must be disregarded in an interpreting Direction No. 65. As paragraph 14.1 is an integral part of Direction No. 65, that direction cannot stand without it. Therefore, I am not required to have regard to it and, particularly, I am not required to have regard to paragraph 13.3 relating to the expectations of the Australian community.
Mr Cuthbert, representing the Minister, submitted that there was no basis on which the validity of the whole of Direction No. 65 could be brought into question. He referred to my reasons for decision in Re PRHR and Minister for Immigration and Border Protection.[25]
[25] [2017] AATA 2782 at [148]
Consideration
When reviewing a decision refusing to revoke the cancellation of a visa previously held by a person, to whom Australia owes protection obligations, protection obligations are not determinative of the decision. They are, though, among the factors that must be taken into account in considering whether or not to revoke the cancellation.
A person, who is a non-citizen and who is both in the migration zone and not a lawful non-citizen, is an unlawful non-citizen.[26] A “lawful non-citizen” is a non-citizen who is in the migration zone and who holds a visa.[27] Section 198(2B) of the Migration Act provides that:
[26] Definition of “unlawful non-citizen”: Migration Act; ss 5(1) and 14
[27] Definition of “lawful non-citizen”: Migration Act; ss 5(1) and 13
“An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a)a delegate of the Minister has cancelled a visa of the non-citizen under subsection 501(3A); and
(b)since the delegate’s decision, the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and
(c)in a case where the non-citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate’s decision – either:
(i)the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii)the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.
Note:The only visa that the non-citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).”
Section 197C provides that Australia’s non-refoulement obligations are irrelevant to removal of non-citizens under s 198:
“(1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2)An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.”
On their face, ss 197C and 198 contradict the second sentence of paragraph 14.1(2) and the first clause of paragraph 14(6). The statement to the effect that Australia will not remove a non-citizen, as a consequence of the cancellation of his or her visa, to a country in respect of which the non-refoulement obligation exists is plainly inconsistent with the terms of ss 197C and 198 as they apply in this case. This was recognised by North ACJ in DMH16.
In his judgment in DMH16, North ACJ took the same view of the interpretation of ss 197C and 198 as I have put in the preceding three paragraphs. Putting aside any consideration of s 195A of the Migration Act,[28] the consequence of a decision under s 501CA(4) not to revoke a cancellation of a visa under s 501(3A) will be that the person remains as a person whose visa has been cancelled under s 501. That means that the person can only apply for a protection visa (if not prevented by s 48A) or for a visa specified in regulations made for the purposes of s 501E(2).[29]
[28] See [38] below
[29] Migration Act; ss 501E(1) and (2)
The case of BCR16 is a case that concerned the exercise of the discretionary power under s 501CA(4) and non-refoulement obligations and focused on a number of issues. The scope and purpose of s 197C was not focused upon or decided. One of the issues the judgment in BCR16 did focus on, though, was the nature of the task required under s 501CA(4) i.e. whether there is “another reason” to revoke the cancellation decision under s 501CA(4)(b)(ii) of the Migration Act. It did so in the context of a person who had not described the harm he feared by reference to “non-refoulement” but who had described the harm he feared should he be returned to the country of his nationality. Even if the harm was described by reference to a “private quality” rather than by reference to a harm that was necessarily within that protected by Australia’s non-refoulement obligations, consideration had to be given to that harm to decide whether it was “another reason” to revoke the cancellation decision under s 501CA(4)(b)(ii).[30]
[30] [2017] FCAFC 96; (2017) 248 FCR 456 at [72]; 472 per Bromberg and Mortimer JJ
Section 195A applies to a person who is in detention under s 189.[31] Mr Tran is in prison and not in detention under s 189. If his term of imprisonment should be completed before his visa status is resolved, s 195A(2) could come into consideration. It provides that the Minister may grant a person to whom s 195A applies, a visa of a particular class. The power is given to the Minister personally and may not be delegated.[32] The Minister, however, is not under a duty to consider whether to exercise the power conferred by s 195A(2).
[31] Migration Act; s 195A(1)
[32] Migration Act; s 195A(5)
Part C of Direction No. 65 is an expression of the Minister’s policy as to the exercise of the discretion conferred by s 501CA(4) whether to revoke the decision that s 501(3A) required the Minister or a delegate to make. As important as policy is for consistent decision-making,[33] policy cannot supplant the provisions of the Migration Act as that is the repository of the relevant law in this case and not the policy.[34] Ascertaining what the relevant law is requires an analysis of the express terms of the relevant legislation but also a consideration of the context, general purpose and policy underlying those terms and an understanding that they must be construed on the basis that they are intended to give effect to harmonious goals.[35] That same process is no less important in interpreting the boundaries of a discretion conferred by the enactment.[36] It is a process that must be undertaken by the Tribunal and it cannot abdicate its responsibility to do so by relying on a statement of policy made by the executive government without first questioning and ascertaining that it has been drafted within the boundaries drawn by the relevant legislation conferring the discretion. Having done that and being satisfied that the relevant statement of policy is within those boundaries, the Tribunal will be “… informed by considerations of the desirability of consistency of administrative decisions …”.[37] At the same time, it will still have to make its own decision regarding the issues raised by the enactment and having regard to the evidence. In the context of this case, that issue is whether there is “another reason” to revoke the cancellation decision under s 501CA(4)(b)(ii) of the Migration Act.
[33] “There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.”: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640.
[34] The power to make directions under s 499(1) “… does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.”: Migration Act; s 499(2).
[35] See, for example, Project Blue SkyInc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 72 ALJR 841; 153 ALR 490 at at [69]- [70]; 381-382; 855; 509 per McHugh, Gummow, Kirby and Hayne JJ
[36] Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265 at 375; 271-272 per Woodward J and see also Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299; 60 ALJR 560; Gibbs CJ, Mason, Brennan, Deane and Dawson JJ at 39-40; 308-309; 565 per Mason J with whom Gibbs CJ and Dawson J agreed. Section 15AA of the Acts Interpretation Act 1901 requires that: “In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.”
[37] Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20; 182 FCR 115; 114 ALD 26; at [43]; 297; 31
Returning to paragraph 14.1(2) of Direction No. 65, its first sentence to the effect that the existence of a non-refoulement obligation will not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa is unquestionable. The second sentence is, as Mr Aleksov submits, inconsistent with the law as it is plainly stated in s 197C and confirmed by North ACJ in DMH16. If paragraph 14.1 were intended to refer to some other policy that has not been articulated, and there is no suggestion that is the case, it is a policy that could not stand in light of the mandatory provisions of s 198 and the clear statement in s 197C(1) that Australia’s non-refoulement obligations are irrelevant to the fulfilment of that obligation. As Deputy President Rayment said in Re FTYC and Minister for Immigration and Border Protection,[38] s 197C will not be engaged if a person obtains a protection visa or the Minister grants a visa under s 195A.[39] That is not a situation that the second sentence is contemplating or purporting to contemplate for its focus is on non-removal of a non-citizen “as a consequence of the cancellation of their visa”. It is not contemplating a situation in which another visa has been obtained leading to the person’s no longer being a non-citizen.
[38] [2018] AATA 20
[39] [2018] AATA 20 at [39]
In light of the principles set out in BCR16, paragraph 14.1(4) cannot stand. All claims that harm will befall a person should he or she be returned to the country of his or her nationality must be considered regardless of whether they may meet the description that would give rise to Australia’s international non-refoulement obligations or not.
Paragraph 14.1(6) is the final paragraph to consider. Its final sentence begins with a premise that cannot be supported in light of s 198 when read with 197C of the Migration Act and with the analysis in DMH16 i.e. that “… Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations …”.
The second part of that sentence – “the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention” – assumes that the circumstances under consideration are those in which Australia’s non-refoulement obligations have been raised. In those circumstances it also has to be found to be inaccurate as s 198, when read with s 197C, would require the removal of an unlawful non-citizen from the country.[40]
[40] Sections 189 and 196, to which reference is made in paragraph 14.1(6), would have had substantive effect at an earlier stage in detaining the person in the first place when the visa was cancelled under s 501(3A). An officer who knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, must detain that person. In summary, s 196 requires the person’s detention to continue until he or she is removed from Australia under ss 198 or 199, an officer begins to deal with the non-citizen under s 198AD(3), the person is deported under s 200 or the person is granted a visa.
That brings me to whether I can excise the three paragraphs from Direction No. 65. It is a document made under s 499(1) giving written directions to a person or body having powers or functions under the Migration Act about the exercise of those powers and the performance of those functions. It is an “instrument” in the ordinary sense of that word in that it is “a formal or official legal document”.[41] It is not specified by s 499 or elsewhere in the Migration Act to be a legislative instrument. It is not a “legislative instrument” for the purposes of the Legislation Act 2003 (Legislation Act) because it has not been so specified, because it does not determine or alter the content of the law, has not been registered as a legislative instrument and has not, under ss 10 or 57A of the Legislation Act been declared to be a legislative instrument.[42] That means that the Direction No. 65 is not the subject of the Legislation Act but it is an instrument made under the authority of an enactment being s 499 of the Migration Act.
[41] Chambers 21st Century Dictionary (1999, reprinted 2004) (Chambers)
[42] Legislation Act; ss 4 and 8
It follows from s 46(1)(c) of the AI Act that the provisions of that legislation apply to Direction No. 65 as if it were an Act and as if each of its provisions were a section of an Act.[43] Section 46(1)(c) of the AI Act, which provides:
[43] AI Act; s 46
“If a provision confers on a person (the authority) the power to make an instrument other than a legislative instrument, notifiable instrument or a rule of court, then:
(a)this Act applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act; …
(b) …
(c)…”
This mirrors s 15A of the AI Act:
“Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power.”
The principle must be read subject to the equally important principle that a court, let alone this Tribunal,[44] cannot read down or sever passages from an enactment or instrument so that it is no longer recognisable as the enactment made by Parliament or the instrument made under authority conferred by Parliament. The limitations on a court’s power were considered by Kirby J, albeit in dissent but not on this point, when considering its formulation in s 15A of the AI Act in the case of New South Wales v Commonwealth:[45]
[44] For the authority of a Tribunal to consider the validity of Direction No. 65, I refer to the judgment of Weinberg J in Saitta Pty Ltd v Commonwealth [2000] FCA 1546; (2000) 106 FCR 554 at [103]; 575 when he considered Accreditation Grant Principles made under s 96-1 of the Aged Care Act 1997 (AC Act). The Principles were disallowable instruments for the purposes of s 46A of the AI Act as it was then drafted. The Minister could make them for matters required or specified in the AC Act or a Part of section of that legislation or for matters necessary or convenient to be provided in order to carry or give effect to that Part or section. The appellant sought relief both in the Tribunal and in the Federal Court regarding the sanctions decision made against it on the basis that it was reached upon erroneous and unjustified findings, opinions, conclusions and assumptions. In the course of considering the respective roles of the Tribunal and of the Federal Court in the matter, Weinberg J commented on the Tribunal’s powers including its power to consider the validity of instruments made under legislative powers. His Honour said: “The AAT is able to decide questions of law arising in proceedings before it - Administrative Appeals Tribunal Act 1975 (Cth), s 42. Accordingly, if the AAT thinks it necessary to consider, as part of the process of reconsideration of the first and second sanctions decisions, the validity of the 1998 and 1999 Principles, it may do so. Although it cannot exercise judicial power, and may not be entitled to grant the declaratory relief which is specifically sought in the proceeding before this Court, the AAT can arrive at a conclusion as to whether or not the steps preceding the making of the sanctions decisions were lawful, and whether or not various provisions of the Act were contravened - Re Adams and the Tax Agents' Board (1976) 12 ALR 239 at 245 per Brennan J. The AAT is entitled to treat delegated legislation as invalid where it is satisfied, on proper grounds, that this is so - Re Costello and Secretary, Department of Transport (1979) 2 ALD 934; and Re Jonsson and Marine Council [No. 2] [1990] AATA 192; (1990) 12 AAR 323 at 335-341.”
[45] [2006] HCA 52; (2006) 231 ALR 1; Gleeson, Gummow, Hayne, Heydon and Crennan JJ; Kirby and Callinan JJ dissenting
“ So far as s 15A of the Acts Interpretation Act is concerned, there are limits upon the power of the Parliament to direct the courts, in effect, to make a new law or to choose what a remade law should be. … The limit is reached where, faced with a conclusion of apparent constitutional invalidity of particular provisions, a court ‘cannot separate the woof from the warp and manufacture a new web’. … From time to time, this Court has invoked other metaphors to explain when the Court has arrived at that limit. Thus, it has indicated a willingness to undertake amputation and excision, where necessary, but not to perform judicial ‘plastic surgery’ upon the challenged law…. By inference, this is a reference to judicial excisions that would substantially alter the appearance of the law, presenting a law that looks quite different from that which was made by the Parliament.
The reason why this Court will not undertake such a task is ultimately based on the proper function of the Judicature established by the Constitution and on the principle of the separation of the judicial from other governmental powers. Thus, in the guise of construing a challenged federal law, the Court cannot be required to perform a feat that is, in essence, legislative and not judicial. …
As to s 15A of the Acts Interpretation Act, the provision can save the validity of a federal law generally where the law itself indicates a standard or test that may be applied for the purpose of limiting its operation and preserving the validity of the law thus limited, so long as the outcome has not been changed so as to make it something different from the law enacted by the Parliament. … If the Court concludes that the challenged law ‘was intended to operate fully and completely according to its terms, or not at all’, … the Court will not, under the guise of interpretation and severance, uphold what would effectively be a new and different law.
If the invalidated portions are relatively few and specific, surgery involving particular invalidation and reading down will be available and appropriate, as it was in the Industrial Relations Act Case [[1995] HCA 45; (1996) 187 CLR 416 at 561-4]. Where, however, the resulting invalidation is substantial and would strike down key provisions of a comprehensive and integrated legislative measure, the invocation of statutory or constitutional principles of severance will be inappropriate. They will be unavailing to save the parts of the new law that are not specifically struck down as invalid for constitutional reasons.”[46]
[46] [2006] HCA 52; (2006) 231 ALR 1 at [595]-[598]; 160-161
The principles to be applied under s 46(1)(c) of the AI Act are no different. If I were to begin with a simple excision of the three sentences that I consider to be expressed in terms that are inconsistent with the Migration Act, they would read:
14.1(2)“The existence or non-existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. …”
14.1(4) “Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, ….”
14.1(6)“In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. …”
The excision of the inaccurate passage from paragraph 14.1(4) leaves a meaningless statement and that leads to the conclusion that the whole of the paragraph should be excised. Its excision omits the statement that a decision-maker has no obligation to consider non-refoulement obligations without an application for a protection visa but leaves in the passage in paragraph 14.1(6), after excision, a reference to the need to balance non-refoulement obligations against other conduct. The excision omits passages that are inaccurate statements of the law but leaves in place the integrity of the subject matter of the Minister’s directions regarding non-refoulement. They do not address claims of harm that do not give rise to non-refoulement obligations but they did not do so without parts of them being excised in any case.
I do not think that the passages from which the excisions have been made can be said to be saying anything substantially different from that the Minister was saying without the excisions. As they are written, the second sentence appears to be an explanation of the first but it cannot be. The removal of the explanation does not change the nature of the statement: “The existence or non-existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. …”. It follows that I think that Direction No. 65 can be read in its redacted form as I have set out at [48] above.
That means that I do not have to consider Mr Aleksov’s further submission to the effect that the whole of Direction No. 65 must fail because paragraph 14.1 is such an integral part of the issues to be taken into consideration. Despite that, I have considered it briefly and find myself not being able to agree with him. Even if paragraph 14.1 were to fail, the non-refoulement issues that it addresses would still have to be addressed in considering whether there is “another reason” for revoking the cancellation of a visa under s 501(3A). That is clear from the judgment of Bromberg and Mortimer JJ in BCR16 just as the proposition that any risk of harm raised regarding the person’s return to his or her country of nationality must be considered even though that is not the subject of paragraph 14.1 at all. It is also clear from the application of the principles determining the scope of a discretion of the sort given by s 501CA(4) by reference to the subject matter and purpose of that discretion in the enactment of which it is given,[47] that matters of the sort would still be relevant without paragraph 14.1. Matters of the sort raised by the operation of ss 198 and 197C would be relevant as would the consideration of any risks of harm should the person be returned to the country of his or her nationality. The excision of paragraph 14.1 would not affect the integrity of Direction No. 65 and I would not think that it should be disregarded.
[47] See the cases at FN 36 above
I have had some hesitation in describing the passages I regard as inconsistent with the Migration Act as “invalid”. Is that an appropriate conclusion given that it is a direction, or set of directions? That is so even though the effect of s 46(1)(c) of the AI Act requires its content to be interpreted as if it comprised the sections of an Act. A requirement to interpret directions in a certain way does not change it to an instrument whose validity is assessed as such. That is so even though s 499(2) provides that the Minister’s power to make directions does not authorise that Minister to give directions that would be inconsistent with the Act or with regulations. Regardless of its form and even content, it remains an expression of executive policy.[48] This is the point made by Deputy President Rayment in FTYC. Writing in the context of paragraph 12.1(6), which equates with paragraph 14.1(6), he said “… Compliance with s. 197C may produce the result that Australia fails to comply with its policy, but Australia may still have the policy. …”.[49]
[48] In G v Minister for Immigration and Border Protection [2018] FCA 1229 at [139], Mortimer J said of the Citizenship Instructions that their form, which mirrored a legislative instrument, “… cannot alter the legal nature of the Citizenship Instructions: the contents remain an expression of executive policy.”
[49] Re FTYC and Minister for Immigration and Border Protection [2018] AATA 20 at [39]
This does not necessarily leave the Tribunal in an easy position. On the one hand, it cannot apply, or fail to apply, either directions or a policy that do not accord with the law. A provision such as s 499(2) requiring a person or body to comply with a direction under s 499(1) does not alter its obligation in that regard. The Tribunal must always bear in mind what it is that Parliament has enacted and abide by it. In the case of s 197C, it must bear in mind that the law is that s 197C provides that Australia’s non-refoulement obligations are irrelevant to removal of non-citizens under s 198. At the same time, the fact that Direction No. 65 continues to be drafted in the same terms as does its successor, Direction No. 79,[50] suggests that the Government’s policy may not necessarily align with the law as passed by Parliament. That means that the Government’s policy as it has been expressed remains part of the factual matrix against which the Minister’s decision under s 501CA(4)(b)(ii) is reviewed.
[50] Direction No. 79 commences on 28 February 2019.
DIRECTION No. 65
Paragraph 6.1 of the Direction No. 65 begins with a statement of objectives but I will refer only to the first:
“The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[51]
[51] Direction No. 65 at [6.1(1)]
The objectives are followed by passages described as “General Guidance” and “Principles”. The latter set the framework within which the individual considerations set out in Parts A, B and C of Direction No. 65 are set. They give those considerations their form, pattern and underpinning framework. The Principles set out in paragraph 6.3 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)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non‑citizen’s visa should be cancelled, or their visa application refused.”
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
“Informed by the principles in paragraph 6.3 above, a decision-maker:
a)…
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.”
Parts A and B do not apply in this case for they apply, respectively, when a non-citizen’s visa has been cancelled and when his or her application for a visa has been refused. Part C does apply in Mr Tran’s case for it is directed to revocation requests made in relation to cancellation decisions made under s 501(3A).
In applying any of the Parts, including Part C, paragraph 8 of Direction No. 65 sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case.[52] The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
“… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.”
[52] Direction No. 65 at [8(1)]
In applying the considerations, whether primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[53] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against … whether or not to revoke the mandatory cancellation of a visa …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[54]
[53] Direction No. 65 at [8(2)]
[54] Direction No. 65 at [8(4)] and [8(5)]
Part C of Direction No. 65
Part C of the Direction begins with three considerations that are characterised as primary considerations: the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. Each of these considerations is developed in paragraph 13 of the Direction. It then sets out what are described as “other considerations”. These are then developed under the headings of: international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims and extent of impediments if removed.
Protection of the Australian community
The first primary consideration relating to the protection of the Australian community begins with the general statement:
“When considering protection of the Australian community, decision-makers should have regard to the principle 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. 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. Mandatory cancellation without notice of certain non‑citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.”[55]
[55] Direction No. 65 at [13.1(1)]
That statement makes clear that the person’s conduct, past and future, is relevant. That is stated expressly in paragraph 13.1(2) when decision-makers are told that they:
“… 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.”
A. The nature and seriousness of Mr Tran’s conduct
Paragraph 13.1.1 goes on to expand on the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
“a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)The sentence imposed by the courts for a crime or crimes;
d)The frequency of the non-citizen’s offending and 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);
h)Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act; [sic]”.[56]
[56] Section 197A of the Migration Act states that “A detainee must not escape from immigration detention. Penalty: Imprisonment for 5 years.”
A.1 Consideration
By some measures, Mr Tran’s history is relatively short extending as it does from some time before he was convicted in early March 2014 in the Darwin Court of Summary Jurisdiction to July 2017, when he was arrested for possessing a drug of dependence and charged with two counts of that offence and with possessing heroin, and then to August to October 2015 when he was arrested for drug trafficking and for forging a number plate. The first two sets of offences committed in Darwin all related to driving offences. Two were offences of driving with a high range of blood alcohol, one of driving without due care, one of not stopping after an accident and one of driving a motor vehicle while disqualified. Mr Tran was convicted of the last of these offences - driving a motor vehicle while disqualified – in the second group of offences of which he was convicted on 25 November 2014. At the time of that conviction, he had already been disqualified six months earlier, in March 2014, from driving for a period of 12 months. It follows that he must have committed that offence at some time between March and November 2014 and, given that he was again driving while unlicensed in Melbourne in September 2014, presumably before that date. The records show that he has not been charged with an offence of driving without a licence or driving while disqualified since being disqualified from driving for five years in November 2014.
What Mr Tran’s list of convictions shows is that he was charged with offences involving the carrying of prohibited or controlled weapons. From the records that I have, the first of these offences took place in September 2014 with another in July 2015. The first of the charges went before the Magistrates’ Court on 16 February 2016 when he was convicted of it. The earlier charge went before the Magistrates’ Court on 20 November 2015 when no conviction was entered but the matter was adjourned to 18 November 2016 when compliance with a bond or undertaking was in issue. The charge finally resulted in a conviction and fine on 26 July 2017.
The first record of Mr Tran’s involvement with drugs took place on 21 January 2016 when he was found by police asleep in a motor vehicle and in possession of drug paraphernalia and a small amount of heroin. He was placed on a drug diversion programme but failed to comply with its conditions. Victoria Police were notified of his failure on 9 February 2017 and it would seem that his failure to comply with those conditions led to his appearing in the Melbourne Magistrates’ Court on 26 July 2017 for possession of drugs of dependence and possession of heroin. He was not convicted at that time but was required to provide evidence of his participation in an accredited drug rehabilitation program. It was his failure to do that led to his finally being convicted of those offences on 25 July 2018. There are, therefore, only three convictions relating to drug possession and they all arise out of the one set of events leading to his being located in his motor vehicle asleep on 9 July 2015.
There were three convictions for drug trafficking. They arise out of events taking place over the period of time between 4 August 2015 and 27 October 2017. That is quite a confined period of time but the seriousness of the offences is reflected in the sentence imposed for what were Mr Tran’s first offences for drug trafficking. He was sentenced to a term of imprisonment for a total period of 2 years and 10 months with a non-parole period of 1 year and 10 months. Certainly, he had been sentenced to imprisonment on one previous occasion. That was on 25 November 2014 when he was sentenced to six months’ imprisonment, which was suspended after three months and remained operative for a further 12 months. That was not for drug trafficking but was an aggregate sentence for driving with a high range blood alcohol content, driving a motor vehicle while disqualified and not stopping after an accident.
Judge Campton’s sentencing remarks show that she regarded Mr Tran as being actively concerned in trafficking methylamphetamine, heroin and MDMA. He had his own drug trafficking business, Judge Campton found, as well as assisting his mother in the conduct of her trafficking business. At the hearing in the Tribunal, Mr Tran denied that he had been engaged in trafficking. In summary, his view is that he had simply been buying drugs for his friends who gave him money to pay for them.
I note that Mr Tran pleaded guilty to the three charges of trafficking. A plea of guilty by an accused does not, of itself, constitute either a determination of guilt or a conviction for an offence. As the Full Court of the Supreme Court of Victoria said in R v Tonks:[57]
“… A conviction is a determination of guilt, and a determination of guilt must be the act of the court or the arm of the court charged with deciding the guilt of the accused. It may be that even a determination of guilt will not in all cases amount to a ‘conviction’, for the latter term may be used in a particular context as meaning not merely conviction by verdict where no judgment is given, but conviction by judgment. …”[58]
[57] [1963] VR 121
[58] [1963] VR 121 at 127
There is more than one way in which a court may determine guilt.[59] A conviction may not be necessary but, in this instance, Mr Tran has been convicted of trafficking after pleading guilty. Trafficking, or attempting to traffick, a drug of dependence without being authorised or licensed under the Drugs, Poisons and Controlled Substances Act 1981 (DPCS Act) is an indictable offence under that legislation. The word “traffick” is defined in s 70(1) of the DPCS Act to mean:
“traffick in relation to a drug of dependence includes —
(a)prepare a drug of dependence for trafficking;
(b) manufacture a drug of dependence; or
(c) sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence”.
[59] Examples are found in R v Jerome and McMahon [1963] Qd R 595 at 604 expressly adopted in Griffiths v R (1977) 137 CLR 293 at 335 per Aickin J
It follows that, in pleading guilty to, and in being found guilt of, trafficking in a drug of dependence by the County Court, that court determined that Mr Tran had sold, exchanged, agreed to sell, offered to sell or had in his possession to sell, a drug of dependence within the meaning of paragraph (c) of that definition. For the purposes of that conviction, he cannot walk away from the court’s determination that he had engaged in one or other of those activities for any one of them amounted to trafficking.
Whether I can have regard to Mr Tran’s view of events when reviewing an administrative decision regarding the revocation or otherwise of the cancellation of his visa has been the subject of consideration in several cases. These include Minister for Immigration and Multicultural Affairs v SRT,[60] Minister for Immigration and Multicultural Affairs v Daniele,[61] Minister for Immigration and Ethnic Affairs v Gungor,[62] Ridley v Secretary, Department of Social Security[63] and Saffron v Commissioner of Taxation (Cth) (No 2).[64]
[60] (1999) 91 FCR 234; 56 ALD 349 (Branson, Lindgren and Emmett JJ)
[61] (1981) 61 FLR 354; 39 ALR 649 (Fisher, Davies and Lockhart JJ)
[62] (1982) 63 FLR 441; 42 ALR 209 (Fox, Fisher and Sheppard JJ)
[63] (1993) 42 FCR 276; 113 ALR 655 (Spender, Gummow and Lee JJ)
[64] (1991) 30 FCR 578; 102 ALR 19 (Davies, Lockhart and Beaumont JJ)
These cases were reviewed by Branson J in Minister for Immigration and Multicultural Affairs v Ali.[65] Her Honour recognised that some legislative provisions operate by reference to the fact that a person has been convicted of a criminal offence. Section 200 of the Migration Act is such a section for it permits the Minister to deport persons to whom Division 9 of Part 2 of the Act applies. Such a person is a person who, as well as meeting other criteria, has been convicted of a criminal offence and sentenced to a period of imprisonment of not less than one year. In those circumstances, Branson J concluded:
“… the administrative decision-maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based ([General Medical Council v] Spackman [[1943] AC 627]), Daniele, Gungor and SRT).”[66]
[65] (2000) 106 FCR 313; 62 ALR 673
[66] (2000) 106 FCR 313; 62 ALR 673 at 325; 684
By way of contrast, where a legislative provision does not operate by reference to the fact of a conviction and a conviction is merely one aspect of the evidence in the case, proof of the conviction is not regarded as proof of the essential facts upon which that conviction was based. As Davies J said in Saffron v Commissioner of Taxation (Cth) (No 2):
“ A conviction is a decision in rem which establishes, while it stands, that the person convicted has been convicted of certain crime. If the person has been convicted of a felony, it establishes that the person is a felon. Such a matter is one which the convicted person may challenge only by seeking to set aside the conviction. In the taxation appeals, the taxpayer may not challenge the fact that he has been convicted of conspiracy to defraud the Commonwealth. But of course the taxpayer does not seek to do so and the fact of conviction is itself irrelevant. As is stated by G S Bower and A K Turner, The Doctrine of Res Judicata (2nd ed, 1969), p 215, a conviction is conclusive merely of that which it establishes, namely, the fact of conviction for the offence, but not of the facts lying behind that conviction.
… where a conviction is the foundation for the exercise of a power, no challenge can be made to the fact of the conviction or to the essential facts on which it was based. But by making clear the circumstance in which no such challenge may be made, the cases establish that, where the exercise of the power is not founded on a criminal conviction, then even if the conviction be relevant, a challenge may be made to the essential facts on which it was based. In Australia, an example is the decision of the High Court of Australia in Ziems v Prothonotary of Supreme Court (NSW) (1957) 97 CLR 279.”[67]
[67] (1991) 30 FCR 578; 102 ALR 19 at 581-582; 21-22
The case of Ziems v Prothonotary of Supreme Court[68] required the High Court to consider the regard that should be had to a barrister’s conviction for an offence against the criminal law in considering whether his conduct was such as to show that he was unfit to remain a member of his profession. The barrister had been convicted of manslaughter when he drove on the wrong side of the road. There had been evidence of his having been intoxicated before he drove his car but also evidence that he might have been suffering from blows he had received when violently and savagely attacked and heavily punched by a seaman who had used disgusting language to two young women in a hotel. In his judgment, Fullagar J said that it was essential to begin with the issue to be decided i.e. whether Mr Ziems was a fit and proper person to be permitted to practise at the Bar.[69] To answer that question, every fact which could throw light on that question must be examined. The conviction was one such fact and it carried a degree of disgrace in itself. The court was, however, permitted to look behind that conviction to the facts of the case to characterise the conduct and determine whether it threw light on whether Mr Ziems was fit to practise his profession. It was permitted to look at all scenarios that had been available on the evidence leading to the jury’s finding Mr Ziem’s guilty of manslaughter. Whether he was intoxicated or affected by a blow on the head, he was not fit to drive a motor vehicle.
[68] (1957) 97 CLR 279; Fullagar, Kitto and Taylor JJ; Dixon CJ and McTiernan J dissenting
[69] (1957) 97 CLR 279 at 288
That is a very different situation from that in this case. Mr Ziem did not seek to deny the basic elements of the offence of which he had been convicted. He sought to rely on other explanations of the events leading to his conviction when those explanations had been open on the evidence before the court and were relevant in assessing his conduct and whether he was a fit and proper person to be a barrister.
Unlike Mr Ziem, Mr Tran seeks to deny the essential elements of the offence of trafficking. I cannot accept that because to do so would be to ignore the convictions and the sentences imposed for they provide the foundation for his not passing the character test because of the operation of s 501(6)(a) (substantial criminal record) on the basis of s 501(7)(a) of the Migration Act. As he was also serving a term of imprisonment, s 501(3A) meant that the Minister was required to cancel Mr Tran’s visa. The substantial criminal record is, therefore, an essential element in the cancellation. The fact of the cancellation then becomes an essential element in the power given to revoke that cancellation under s 501CA(4). The conviction, cancellation and revocation for “another reason” are inter-related. There is no basis for questioning the essential elements on which the conviction was based.
Judge Campton’s sentence of 30 months for what were first offences for drug trafficking reflects their seriousness. The maximum term she could have imposed was 15 years. Mr Tran’s offending was not cumulative in the sense that he was convicted of drug trafficking and repeated his offences. It was represented instead by a course of conduct that led to his being charged in relation to offences occurring over a period of almost three months and ended only by his arrest.
On its own, perhaps the drug trafficking convictions could be said to be an isolated course of conduct but they need to be seen against his broader offending that started in 2014. Mr Tran attributed his starting to offend by reference to the breakup of his relationship with his former wife but what his convictions showed initially is that he was undeterred in his offending by his convictions for driving with high range blood alcohol and for driving without a licence. He repeated those offences. Even when he was given two chances to avoid convictions for possessing a drug of dependence and heroin, he failed to comply with the conditions first of a diversion order and then of providing evidence that he had participated in an accredited drug rehabilitation program. Short though it may be thought by some, I regard Mr Tran’s course of offending to be of grave concern.
B.The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 13.1.2 of Direction No. 65 states:
“(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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 considering the risk 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).”
In saying this, I am very mindful of Mr Aleksov’s submission that I am bound by judgments of the Federal Court. As a broad statement of the doctrine of precedent in the common law, that cannot be questioned but there are limits on that by which I am bound and that which I should regard as very persuasive. Putting aside the principle that only the ratio decidendi of a judgment delivered by a superior court is binding, the practical application of that doctrine may differ according to whether the law in issue in the judgment is the common law or statute law. This was considered by Gummow J in Brennan v Comcare:[76]
[76] [1994] FCA 1147; (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542; Burchett, Ryan and Gummow JJ
“ If Ogden[[77]] has any significance for this appeal, it is the statement of their Lordships ([1970] AC at 127):
[77] Ogden Industries Pty Ltd v Lucas [1970] AC 113; [1969] 1 All ER 121 at 127; 126 per Lord Upjohn delivering the advice of the Privy Council
It is quite clear that judicial statements as to the construction and intention of an Act must never be allowed to supplant or supersede its proper construction and courts must be beware of falling into the error of treating the law to be that laid down by the judge in construing the Act rather than found in the words of the Act itself.
Those remarks apply a fortiori where what is involved is the translation of remarks construing one statute to the construction of another. They also point to a significant difference in the tasks of the courts in applying the common law and in construing statutes.
The judicial technique involved in construing a statutory text is different from that required in applying previous decisions expounding the common law. In the latter class of case, the task is to interpret the legal concepts which find expression in the various language used in the relevant judgments. The frequently repeated caution is against construing the terms of those judgments as if they were the words of a statute. The concern is not with the ascertainment of the meaning and the application of particular words used by previous judges, so much as with gaining an understanding of the concepts to which expression was sought to be given.
The distinction is usefully expressed in the following passage from Judge Posner's work The Problems of Jurisprudence, 1990, page 248:
Translation may be imperfect and alter the meaning of the original doctrine; nevertheless many common law doctrines have a stable meaning, though expressed in a variety of different ways. We are not afraid that we would lose the meaning of negligence if we put it in different words from those used by Learned Hand, or William Prosser, or some other authoritative expositor of the concept.
Statutory law differs in that the statutory text - the starting point for decision, and in that respect (but only that respect) corresponding to judicial opinions in common law decision making - is in some important sense not to be revised by the judges, not to be put into their own words. They cannot treat the statute as a stab at formulating a concept. They have first to extract the concept from the statute - that is, interpret the statute. (There is a sense in which common law judges ‘interpret’ common law, but it is the sense in which ‘interpretation’ means ‘understanding’.)”[78]
[78] [1994] FCA 1147; (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542 at [61]-[64]; 572-573; 633-634; 559-560
The relevance of the reference to the common law and the difference in the process of reasoning is illustrated by a passage from the judgment of Windeyer J in Damjanovic & Sons Pty Ltd v The Commonwealth[79] (Damjanovic):
“… Analogy – not in the strict mathematical sense, but in the sense of resemblance of facts – has long had a great place in our system of law. It is at the base of the method of precedent in the common law. … [R]easoning by analogy is a rather different process in the development of the common law from its use in the interpretation and application of a statute or of the Constitution. Sir Owen Dixon, in an extra-judicial address he delivered in 1933 (reprinted in Jesting Pilate (1965), p. 13), said of the common law that
‘it has undergone a continuous growth and expansion accomplished by continual deduction and induction. By deduction, a new application is given to an existing principle; many single instances having been thus produced, in course of time a new or developed principle is discerned in them and expounded. By this process of imperfect induction, the secondary principle is established as part of the doctrine of the common law, and plays its part in turn in the production of still more doctrine’.
This, I would respectfully say, is a wholly apt description of the processes of the common law. It points I think the contrast with expositions of the effect of statutes and codes. The process is then one of deduction and subsumption, rather than of imperfect induction. The words of the enactment provide the major premise. The result is not, or ought not to be, the establishment of any secondary principle embodied in new words, but at most the provision of an illustration of the effect in a new setting of the original principle expressed in the original words.”[80]
[79] [1968] HCA 42; (1968) 117 CLR 390; Barwick CJ, McTiernan, Kitto, Taylor, Menzies and Windeyer JJ
[80] [1968] HCA 42; (1968) 117 CLR 390 at 408-409
D.2 Consideration
Paragraph 13.3(1) of the Direction states at the outset that the Australian community expects non-citizens to obey Australia’s laws while in Australia. It then states the circumstances in which it may be appropriate not to revoke a mandatory visa cancellation. Those circumstances arise if a non-citizen has breached Australia’s laws, there is an unacceptable risk that he or she will breach the trust, and so expectation, that he or she will obey Australia’s laws while in Australia or where the non-citizen has been convicted of offences in Australia or elsewhere. The Australian community would expect that visas should not be held by persons who commit certain types of offences.
The discretionary nature of the decision is preserved as is the determination of what amounts to “an unacceptable risk” of breaching the Australian community’s expectation that Australian laws will be observed by non-citizens in Australia. Those discretions must also be guided by the general statements in paragraph 6.2 and the principles in paragraph 6.3 of Direction No. 65. There the Minister has placed emphasis on the protection of the Australian community from harm as the result of criminal conduct or other serious conduct by non-citizens.[81] In summary, the principles in paragraph 6.3 emphasise the privilege that it is to be granted a visa to be in Australia and the expectations that are commensurate with that privilege.
[81] Direction No. 65 at 6.2(1)
This is not a case in which Mr Tran came to Australia as a young child and has been subject to its influences, good or otherwise, in growing up. He came as an eighteen year old. I accept that his schooling extended over a shorter period than it might have in Australia but he came as a young person who had already joined the workforce in Vietnam. He had some maturity and he displayed that maturity when he obtained work in Australia and helped to support his mother and his sisters. When he moved to Darwin, he also showed maturity when he worked and supported his then partner and his son.
Where his maturity fell by wayside was in handling the breakdown of his relationship. No-one can blame a person for being heartbroken over such a matter. Some people lose their way for a time in dealing with their daily lives and responsibilities, be they work-related or personal. That is understood but what is not understood is when a person turns to a drug, be it a legal drug of alcohol or an illegal drug, and endanger the safety of others. That is what Mr Tran did in Darwin when he drove under the influence of alcohol and did not learn from his first offence but repeated it. Trafficking drugs needs to be considered separately. In view of the sentencing remarks of Judge Campton, he was trafficking both alone and, in some instances, assisting his mother in her drug trafficking enterprise but he was doing so for the purpose of supporting his own habit and not for personal enrichment.[82] In view of these matters, I have come to the view that the Australian community would consider that the Mr Tran should not hold a visa permitting him to remain.
[82] In her evidence, Mr Tran’s mother said that she served a period of 30 months in prison and is now on parole. I do not have any evidence of the term for which she was sentenced.
Other considerations
The five other considerations are summarised in paragraph 14(1):
“a) International non-refoulement obligations;
b)Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.”
A. International non-refoulement obligation
A non-refoulement obligation is an obligation not to require a person to return, deport or expel a person to a place where he or she will be at risk of a specific type of harm. Non‑refoulement obligations arise under a variety of international conventions. Paragraph 14.1(1) states:
“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 reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.”
A.1 Consideration
A person may make claims which may give rise to international non-refoulement obligations in various contexts to which I have referred at [25] above. Mr Tran has specified a number of fears about his treatment should he be returned to Vietnam. He referred to a number of fears in his statement dated 8 January 2018. He is fearful for his life should he be required to live in Vietnam. I accept that Mr Tran holds each of the fears or concerns he expressed in his statement but I have also looked at the information that is available to me on each of them.
Beginning with his health, Mr Kleynhans has recommended that Mr Tran should have treatment for his anxiety and depression. Mr Tran has attempted to commit suicide on one previous occasion. Mr Kleynhans referred to the risk of his attempting to do so if he is required to leave Australia. He referred to an attempt by Mr Tran after his former wife left him in 2014. Mr Tran was hospitalised for two weeks and received anti-depressant medication.[83]
[83] Exhibit B at [30]
I do not have express evidence of mental health facilities that are available in Vietnam. The DFAT Country Information Report on Vietnam (DFAT Report) notes that the Vietnamese government provides access to basic health care to all citizens, of whom Mr Tran would be one. Those in rural areas also have access to specialists in urban areas with funding for health care being based on the number of registered citizens in a particular area.[84] Mr Tran would need to ensure that he has Ho Khau, or household, registration as public health facilities may turn away non-life threatening and non-urgent cases when a person is not properly registered.[85]
[84] Exhibit H; Document 15 at [2.11]
[85] Exhibit H; Document 15 at [5.24]
The DFAT Report also addresses arbitrary arrest and detention:
“4.11 Vietnamese law allows the Government to detain people without charge under ‘national security’ provisions. There are credible reports of the Government arresting and detaining individuals indefinitely, with activists across the country also being subject to administrative detention or house arrest. Access to legal representation is granted inconsistently, with people held on national security charges reporting irregular access to legal counsel, or denied altogether.
4.12 Around 35,000 drug users are detained in administrative centres, referred to as ‘Treatment, Education and Social Labour Centres’ (also known as ‘06 Centres’), without charge and with limited judicial involvement. Drug users reportedly spend an average of one to two years in these centres; however, detention is no longer compulsory if an individual registered in a methadone program. Credible reports indicate harsh conditions and mistreatment of detainees at these centres, including forced labour and physical abuse. The centres are often reported to be profitable for those managing them due to the forced labour practices.”[86]
[86] Exhibit H; Document 15
The DFAT Report refers to “drug users” and not to those who have used drugs in the past. As matters stand at the moment, Mr Tran is a person who has used drugs in the past. Provided he remains such a person, there is no reason in the DFAT Report to think that he would come to the attention of authorities and be placed in a Treatment, Education and Social Labour Centre should he return to Vietnam.
As a returnee to Vietnam, DFAT had no information to suggest that people known or believed to have sought asylum in other countries had been mistreated on their return by the Vietnamese Government. They may face a fine but that is only if they left Vietnam illegally and there is no suggestion that Mr Tran did that. Some are interviewed by Vietnamese officials but the purpose of that appears to be confirmation of their identity or information gathering relevant to the investigation of people smuggling operations.[87]
[87] Exhibit H; Document 15 at [5.21]
The DFAT Report also refers to persons who have been convicted of crimes overseas. Where they have completed their sentences and returned to Vietnam, they will not be subject to further trial for the same crimes.[88] That is Mr Tran’s situation. Prison conditions in Vietnam may be considered harsh[89] but it is in Mr Tran’s hands to keep himself outside their walls. The same is true of any fear he may have arising from the fact that Vietnam retains the death sentence for some serious offences.[90]
[88] Exhibit H; Document 15 at [4.7]
[89] Exhibit H; Document 15 at [5.10]
[90] Exhibit H; Document 15 at [4.5]-[4.7]
Mr Tran has expressed concerns arising from the fact that the Vietnamese Government is a communist government and fears that human rights standards are non-existent and religious freedom is not permitted. Again, I do not question the genuineness of his fears but they are very broadly stated and the DFAT Report does not support the breadth with which they are stated.
Taking religious freedom for example, the DFAT Report recognises that Article 24 of the Vietnamese Constitution states that all people have the right to freedom of belief and religion but that the right is conditional. It is conditional on its not undermining peace, national independence and unity. Adherents to the Catholic faith have been able to practise their religion freely at registered churches and Bibles and other religious texts are freely available. Protestants continue to face a moderate level of harassment but those who are Hoa Hao Buddhists and either practise in government-recognised groups or at home or while working in the field are not harassed. Those who engage in criticism of the State recognised Hoa Hao Buddhism are likely to face harassment or the destruction of their property.
Mr Tran said that he attended church when he could but has not stated his religion. Whatever it is, it would seem that any harassment that he would suffer in Vietnam would be more likely to arise from any action that was considered by the Vietnamese Government to undermine peace, national independence and unity rather than from his practising his faith. His actions and any consequences would again seem to be a matter for him and the choices he makes.
It follows that I do not consider that Mr Tran’s fears of the harm that he may face if he were returned to Vietnam are well-founded fears either of harm in a general sense or of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion as set out in s 5J(1)(a) of the Migration Act. There is no real risk of his being persecuted for any one of them beyond the risk faced by people in Vietnam generally.[91] Furthermore, Mr Tran could take reasonable steps to modify his behaviour to avoid either persecution in that sense or detention or imprisonment in a general sense. He has had the advantage of some assistance in Australia to learn strategies to abstain from abusing drugs in the future and he has shown that he can maintain a drug free state in prison and while on bail awaiting sentence. Application of s 5J(3) of the Migration Act leads me to conclude that he does not have a well-founded fear of persecution.
[91] See SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 at [11] per Rares J in relation to s 36 of the Migration Act.
As a person cannot be a refugee within the meaning of s 5H(1)(a) unless he or she is unable or unwilling to avail himself or herself of the protection of his or her country of nationality – in this case, Vietnam - owing to a well-founded fear of persecution, Mr Tran cannot be regarded as a refugee for the purposes of s 36(2)(a). On the evidence, I am not satisfied that there is a real risk that he will suffer significant harm, as defined in s 36(2A), should he return to Vietnam within the meaning of s 36(2)(aa). Therefore, on the evidence that I have, I do not consider that Mr Tran is a person entitled to a protection visa. I do not consider that he is a person to whom non-refoulement obligations are owed by Australia.
B. Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No. 65 states:
“… Reflecting the principles at 6.3, 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, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).”
B.1 Consideration
Putting aside their strength for the moment, Mr Tran has ties both in Vietnam and in Australia. He was raised by his maternal grandparents from the age of five and lived with them until he was eighteen. He is now in his early 30s and some 13 or 14 years have passed since he lived with her but he speaks of his grandmother with fondness as a caring and compassionate person. His grandfather did not, in his eyes, share those qualities but he died some two years before Mr Tran left Vietnam. There was mention made of Mr Tran’s also having an aunt in Vietnam but not of the nature or quality of their relationship.
Mr Tran’s mother and two sisters live in Melbourne. I accept that they regard him as a father figure whom the respect. Mr Tran’s younger sister, Ms Lilly Tran, said in her statement that their:
“… brother became our father figure and we looked up to him as he taught us many more valuable lessons which helped us grow into the people we are today. He taught us about respect, honesty, love, kindness, consequences and became our role model. He took on the position not only as our brother but a father and taught us many important elements which shaped us to become humble people.”[92]
[92] Exhibit H, Document 10 at [8]
When her mother was “away”, by which I understand to mean “imprisoned”, Ms Lilly Tran said that her brother took care of her and her sister. At the time, she was living with her guardian as she was under the age of 18 years and her brother’s care and positive energy kept her going at the time. The time that he spent in prison had led him to reflect on his actions and behaviour and to engage with a better group of people. Mr Tran’s supervisor at the “farm” and two co-workers whom he met while fruit picking have written letters of support for him. They speak of his caring for his mother and sisters and his caring, kind and responsible ways. His two co-workers have also met his family and seen his potential to become a chef.[93]
[93] Exhibit H; Documents 12, 13 and 14
If the decision to cancel Mr Tran’s visa is not revoked, he will not have the opportunity to remain in Melbourne and within the support group of his mother and sisters and his two nephews. He will not be able to spend time with his girlfriend, Ms Pha Anh Nguyen, to explore whether their relationship, which has begun while he has been in prison, will develop and lead to a long-standing partnership. Ms Pha Anh Nguyen has said that she will not move to Vietnam to be with him so their relationship is dependent upon his remaining in Australia.
Mr Kleynhans reported that Ms Thuy Kim Nguyen would not cope well were her son required to return to Vietnam. She feels that she had failed in her marriage and as a mother and, should he be required to return to Vietnam, she would have no purpose or sense of belonging in Melbourne. In her mind, she faces compelling circumstances beyond her control. Ms Thuy Kim Nguyen told Mr Kleynhans that she could not cope on her own with loneliness, symptoms of post-traumatic stress disorder (PTSD), anxiety and depressed mood should her son be deported. The symptoms she experienced as a result of her traumatic experiences with her former husband in Vietnam would revive should he be deported.[94]
[94] Exhibit A at [45]-[49]
In conclusion, the family would profit from Mr Tran’s remaining in Australia were he able to maintain his drug-free status and exhibit the qualities of work and devotion to family that he exhibited before the breakup of his relationship.
C. Impact on Australian business interests
Paragraph 14.3(1) of Direction No. 65 states:
“Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”
C.1 Consideration
The cancellation of Mr Tran’s visa and the non-revocation of that cancellation would not have any particular or quantifiable effect on Australian business interests. If his visa continues to be cancelled, Australia will lose a person who worked consistently for nine years and paid his taxes from the time of his arrival until 2014. Except for the time he spent on bail awaiting sentence, Mr Tran has not been able to use his skills but he will not have lost them. He has attended courses in prison to add to them.
D. Impact on victims
At paragraph 14.4(1), Direction No. 65 states:
“Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”
D.1 Consideration
If the decision to cancel Mr Tran’s visa is not revoked, he will not have the opportunity to remain in Australia. I do not have any evidence of the impact of that decision on the members of the Australian community or on those to whom he sold drugs. That sad reality is that every drug trafficker plays a part in making drugs accessible to members of the community. Consumption of drugs obtained from traffickers may well have health consequences for those who buy them. Health consequences may lead to their not being able to carry on with the normal activities of daily living. That, in turn, can lead to insufficient means to support themselves or their drug habit. The commission of crimes to support a habit can follow. As each step follows, the safety of users is increasingly compromised and so too is the safety of the general public. Trafficking of drugs has the potential to expose the traffickers to others who would want to profit from their activities and who would engage in other forms of illegal activity to do so.
E. Extent of impediments if removed from Australia/not permitted to return
Direction No. 65 also states in paragraph 14.5(1) that:
“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.”
E.1 Consideration
Were Mr Tran to return to Vietnam, he would be fluent in its language and understand its culture. He has had some training as a glass cutter and in working with aluminium to make doors although he may not have completed that training before he came to Australia. At least in the short term, I do not have any reason to think that he would not be able to live with his grandmother while he re-established himself. Mr Tran said that he would not be able to pursue his ambition to grow vegetables for the retail market because, unlike Australia, land would not be available to him. He has also referred to a number of other concerns in his statement dated 8 January 2018.
The matters I have considered under the non-refoulement obligations are equally relevant here and I refer to what I said at [110]-[120].
CONCLUSION
While the predecessor of Direction No. 65, Direction No. 55, clearly put the future harm to the Australian community and the risk of harm’s occurring as the fulcrum around which the other considerations were to be weighed in the balance, the removal of a clear statement to that effect in Direction No. 65 leaves the fulcrum to be drawn by implication. When account is taken of the considerations in Part C together with the Preamble to the Direction set out in paragraph 6, it is clear that the Minister intends that a decision-maker undertake a balancing exercise having regard to all of the considerations that he requires to be addressed and having regard to any other relevant factors.
In this case, Mr Tran began his life in Australia with hard work and getting to know his mother, who had left him with his grandparents when he was five years of age, and his two sisters. He continued his work in Darwin and began his own family. I accept that his life fell apart in 2014 when his partner left him. His first convictions were recorded in Darwin in March 2014 but may have been committed in that year or earlier in 2013. Whichever way, it is not of great consequence. Drinking alcohol and then driving is irresponsible and cannot be excused but, in the context of what he had said were increasingly difficult relations between him and his former partner before their breakup, might possibly be understood. Turning to drugs might even be understood at some level but, again, it cannot be excused.
What is more difficult to understand is how that leads to his trafficking drugs. As I have found at [63] above, Mr Tran has only convictions on two charges of possessing drugs of dependence and one of possessing heroin but all arising out of the same set of circumstances. Mr Tran maintained at the hearing that he only sold to his friends who had given him money to pay for the drugs. That is contradicted by the factual matrix set out by Judge Campton in her sentencing remarks. He ran his own business in which he sold to low level traffickers and users. At the same time, he acted under his mother’s direction in relation to some activities in her drug trafficking business. It must also be said that Judge Campton found him to have sold only small amounts of methylamphetamine with the maximum amount being 3.5 grams. He had collected 28 grams for another on one occasion but, taken overall, Judge Campton found that there was no evidence of his having been enriched from his trafficking and that he largely carried it out to fund his own habit. The amount he trafficked and the frequency of his trafficking was not as serious as many of his co-accused.
Having regard to the facts underpinning Judge Campton’s sentencing remarks and having heard Mr Tran’s evidence, I have concluded that he recognises that he has done the wrong thing by trafficking. At the same time, he maintains that he sold only to his friends. That might suggest that has not really faced up to the part he played in drug trafficking but it is consistent with the finding by Judge Crampton that he did not traffick for his own enrichment and also did it to maintain his own habit. He has also faced up to his need to be drug free. His drug offending followed on a previous pattern of convictions related, in the main, to alcohol, but, overall, his offending has taken place over a very confined period and had their origins in his breakup with his former wife and the physical removal of his son from his life.
If he should be required to leave Australia, the possibility of his seeing and re-establishing a relationship with his son will be more difficult even with modern means of communication by way of video and social media as well as telephone. His very new relationship with Ms Pha Anh Nguyen will remain unexplored as she has said that she will not move to Vietnam. Even if that relationship should be destined to blossom, I do not place a great deal of weight on it at this stage of its development. If he should leave Australia, he will not be able to provide emotional and practical support to his sisters and to his nephews as he has done since he arrived in Australia. I find that they have benefitted from his presence. I place less weight on his mother’s needs for him as that is a complex relationship in which she feels guilt at having abandoned him. Whether Mr Tran remains or leaves Australia, that will remain a complex relationship.
Mr Tran came to Australia as an eighteen year old. He was not a young person who had just left school but was a young person who had already been working for some two years and had a measure of maturity. His maturity showed in the evidence of his family regarding his adopting a caring role for his mother and sisters. Despite his maturity and his previous contribution to the Australian community for the first nine or ten years he was in the country, Mr Tran moved quickly in 2014 and 2015 to a life of offending. Given the confined period of his offending and its cause and the dedication he has shown in rehabilitating himself, I have concluded that the balance lies in favour of his remaining in Australia. Should he resume his abuse of alcohol and drugs and behave in the same irresponsible manner, the public interest in protecting the Australian community might well lead me to a contrary conclusion against an unchanged factual background.
I find that the balance lies in favour of the revocation of the cancellation of Mr Tran’s visa. Within the meaning of s 501CA(4)(b)(ii) of the Migration Act, I have found another reason why the cancellation decision should be revoked.
DECISION
For the reasons I have given, I set aside the decision made by a delegate of the Minister on 22 November 2018 to decline to revoke the decision dated 7 February 2018 to cancel Mr Tran’s RR visa. In its place, I have substituted a decision that the decision to cancel the RR visa be revoked.
| I certify that the preceding one hundred and forty three [143] paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie. |
[sgd]..................................................................
Associate
Dated: 15 February 2019
| Date of hearing: | 6 February 2019 |
| Counsel for the Applicant Solicitor for the Applicant: | Mr Angel Aleksov Ms Diane Xu |
| Solicitor for the Respondent: | Mr Neil Cuthbert Clayton Utz |
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