Tran and Minister for Home Affairs (Migration)

Tran and Minister for Home Affairs (Migration) [2018] AATA 4214 (9 November 2018)
Division:GENERAL DIVISION
File Number(s):2018/4679
Re:Anh Hue Tran
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member M Griffin QC
Date:9 November 2018
Place:Sydney

The decision of the Respondent dated 17 August 2018, to refuse to revoke the Applicant’s visa cancellation decision made under s 501(3A) of the Migration Act 1958, is affirmed.
....................[sgd].....................
Senior Member M Griffin QC
CATCHWORDS
MIGRATION – Revocation of visa cancellation – Applicant failed to pass the character test – whether there is another reason why the decision-maker should exercise its discretion to revoke the original visa cancellation decision – Ministerial Direction No. 65 applied – primary considerations – protection of Australian community from criminal or other serious conduct – best interests of minor children in Australia – expectations of Australian community – other considerations – strength, nature and duration of ties to Australia – extent of impediments if removed – health considerations of Applicant’s wife – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA – paragraphs 6, 13, 14
REASONS FOR DECISION
Senior Member M Griffin QC
9 November 2018
BACKGROUND

This is an application for review of a decision of the Delegate of the Respondent made on 17 August 2018 (the decision) not to revoke a mandatory cancellation of a Spouse (Residence) (Class BS) (subclass 801) visa (the visa) under s 501(3A) of the Migration Act 1958 (the Act).
The Delegate was not satisfied that the Applicant passed the character test as defined in

s 501(6) of the Act, on the basis that the Applicant has a substantial criminal record, as that term is defined in s 501(7) of the Act.
The Applicant applied for review of the decision on 20 August 2018.
ISSUES FOR DETERMINATION
The issue in this review is whether the original decision to cancel the Applicant’s Visa should be revoked pursuant to section 501 of the Migration Act 1958 (the Act). The Tribunal may revoke the original decision if the Tribunal is satisfied:
(a)That the Applicant passes the character test as defined by section 501 of the Act; or
(b)
There is another reason why the original decision should be revoked:

s 501CA(4)(b).
The Applicant has “a substantial criminal record” as defined by the Act. The only relevant issue is, therefore, whether there is another reason why the original cancellation should be revoked.
RELEVANT LEGISLATION AND POLICY
Ministerial Direction No. 65 - Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (Direction 65), the relevant paragraphs of which are set out below, describes the framework within which the Tribunal‘s discretion is to be exercised in this case.
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).
Subsection 501CA(4) provides that:
4 The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation;
and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
Subsection 501(6)(a) relevantly provides that a person does not pass the "character test" if the person has "a substantial criminal record". Relevantly, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
It is clear according to the Act that because of the Applicant’s past criminal history he does not pass the character test.
Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction 65). Section 1 of Direction No 65 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:
(a)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (cl 6.2(1));
(b)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere (cl 6.3(2));
(c)a non-citizen who has committed a serious crime, including of a violent nature, and particularly against vulnerable members of the community such as minors, should generally expect to forfeit the privilege of staying in Australia (cl 6.3(3));
(d)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 (cl 6.3(4));
(e)while Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period time, 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 (cl 6.3(5)); and
(f)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 (cl 6.3(7)).
Part C of Direction 65 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three "primary considerations" and several specified, but non-exhaustive, "other considerations", which must be taken into account.
Pursuant to Part C of Direction 65, the Tribunal must, to the extent that they are relevant to this case, take into account three primary considerations and other considerations. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh the other primary considerations. These principles are of course dependent upon the facts and circumstances of each case.
The three primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Primary Consideration 1 – Protection of the Australian community from criminal and other serious conduct
Paragraph 13.1 of Direction 65 provides:
1 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.
2 Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The two limbs of paragraph 13.1(2) that the Tribunal must consider when assessing the protection of the Australian community are set out below.
The nature and seriousness of the conduct
Paragraph 13.1.1 of Direction 65 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:
(a)the principle that violent and/or sexual crimes are viewed very seriously (subparagraph 13.1.1(1)(a));
(b)the principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), government representatives or officials due to the position they hold, or in the performance of their duties, are serious (sub-paragraph 13.1.1(1)(b));
(c)the sentence imposed by the courts for a crime or crimes (sub-paragraph 13.1.1.(1)(c));
(d)the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness (sub-paragraph 13.1.1.(1)(d));
(e)the cumulative effect of repeated offending (sub-paragraph 13.1.1.(1)(e));
(f)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 (sub-paragraph 13.1.1.(1)(g)); and
(g)where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention is serious (sub-paragraph 13.1.1.(1)(h)).
The risk to the Australian community
Paragraph 13.1.2 of Direction 65 states that decision-makers should have regard to the following:
(a)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 repeated, is so serious that any risk that it may be repeated is unacceptable;
(b)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(c)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.
Primary Consideration 2 – Best interests of minor children in Australia affected by the decision
The considerations as set out in sub-paragraphs 13.2(4)(a)-(h) of Direction 65 include:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Primary Consideration 3 – Expectations of the Australian community
Paragraph 13.3 of Direction 65 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Decision-makers should have due regard to the Government's views in this respect.
The principles to be applied, as set out in paragraph 6.3 of Direction 65, state that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australia community. It is also the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes: sub-paragraph 6.3(2) of Direction 65.
Other Considerations
International non-refoulement obligations
Considerations include:
(a)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 Convention and Protocol non-refoulement obligations.
(b)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa.
(c)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(d)Where a non-citizen makes claims which may give rise to international nonrefoulement 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.
(e)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.
Strength, nature and duration of ties
Considerations include:
(a)How long the non-citizen has resided in Australia, the period of offending, positive contributions to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, including the effect of non-revocation on the non-citizen’s immediate family.
Impact on Australian business interests
Sub-paragraph 14.3(1) of Direction 65 notes 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.
Impact on victims
Paragraph 14.4 of Direction 65 provides:
'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 visa cancellation has been afforded procedural fairness.'
Extent of impediments if removed
Extent of impediments if removed requires consideration of 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: age and health; whether there are substantial cultural barriers; and the availability of any social, medical and/or economic support.
EVIDENTIARY MATTERS
A number of evidentiary matters have assumed significance in this hearing. There are a number of specific matters.
Inconsistencies in Evidence
The Applicant’s wife’s evidence is substantially different from the nature of the relationship as described in the Applicant’s material. The relationship is, as described by his wife and the evidence, one where the husband comes and goes from home, and occasionally visits to see his son (but pays no maintenance but occasionally gives small gift of money to the child).
The wife, at an early stage of the evidence in the Tribunal, effectively described the relationship as the parties being “separated“.
At the Tribunal Hearing, on the evidence given by the wife, there was described an unstable, minimal relationship with both the wife and children. The evidence was that the Applicant was not visited at all by the wife while recently in custody. Furthermore, whilst in custody recently, he has had no actual contact with any of the children, not even by telephone. In fact, they have not been told by the wife that the Applicant was in custody. These matters affect consideration of the best interests of minor children and also the special consideration which the Tribunal has identified as the wife’s health and the consequent issues relating to the child should the wife become so ill or die, so that the child would have to be taken care of by others.
Proven lies may be told for a range of purposes, many of which will not reflect against the Applicant.
Lies may be told for a variety of reasons, for example, out of embarrassment, as a means of diminishing responsibility for conduct. Lies, however, may also be indicative of a determination to hide the truth or obfuscate.
Veracity of Applicant’s Evidence
A further issue arose concerning the Applicant’s ability to speak English. It is not surprising that a witness, depending upon that witness’s facility with a language familiar to them, would prefer to speak in their “first” language. The evidence is, however, that the Applicant has lived in Australia for approximately 20 years. The G-Documents disclose that he studied languages in Vietnam, at University and in evidence said that the study he undertook was English.
The Applicant came to Australia for the purpose of studying English and was granted a visa for that purpose. After the visa expired, he lived in Australia illegally, that is, without a visa for some 8 years, and in that time, worked as a butcher. It is apparent from the material that he has, in recent time, undertaken further English courses. The Tribunal had the opportunity to assess the Applicant when he gave evidence.
The importance of the issue of the Applicant’s credit on this topic is that in obfuscating about his real ability with the English language (see G13 Basic Personal Data form[1]; evidence of passing the Citizenship Test), the evidence suggests he is trying, by affecting a lack of facility with English language, to hide the real nature of his relationship with his wife and also his son and step-daughter.
[1] As to G13 pp69 – 79, the Applicant gave evidence that although he had some assistance grammatically with the completion of the form, the words in the document were the Applicant’s. The words display a real familiarity with English language and vocabulary.

There are two further aspects of the evidence which the Tribunal considers impact on the Applicant’s credibility.
The Applicant said in evidence that on both occasions when he was involved in drug cultivation, he was paid a small amount of money ($100; $150 - $200) and this was paid in advance of his involvement. Furthermore, he purchased a car for $20,000, but, on being tested in cross-examination, said he paid for it with a loan from a friend. He had said he was effectively penniless. It is common ground that the car “disappeared”. The Applicant said in evidence that repayment had never been sought for the loan.
Taken together, these explanations are inherently incredible. Although all of the statements made may be out of a desire to lessen the embarrassment of his involvement in criminal conduct, nonetheless, all these matters taken together, the Tribunal considers, lessens his credit worthiness and therefore, significantly lessens the force of the Applicant’s assertions that he has rehabilitated.
As to the relationship with the wife and children, the Tribunal concludes that the Applicant has had recently, at least, a minimal relationship with his wife and children.
In this case, the Tribunal is of the opinion that the Applicant has been untruthful about his facility with English language in order to hide the true nature of the relationship with his wife. The Tribunal is satisfied that the Applicant has been untruthful about his level of involvement in the drug offences.
The Tribunal finds on all the facts that the relationship with his wife and family is not as the Applicant has portrayed in the material provided by the Applicant to the Tribunal. The relationship is in fact, tenuous. The Tribunal accepts that the true position is a relationship of virtual separation. The implications of this finding will be discussed below.
DISCUSSION
Protection of the Australian community from criminal or other serious conduct (past conduct and future risk)
The Applicant has committed 2 offences in relation to the cultivation of drugs. In 2016, the Applicant was convicted of cultivating a commercial quantity of a narcotic plant, and in 2011, cultivation of cannabis, commercial quantity. On the facts, the offences were serious, sophisticated cultivations indoors, the 2016 conviction more serious than the first. The sentences were 3 years imprisonment and 1 year 3 months imprisonment.
Commercial drug activity has the real potential to affect others in the community. The offences are objectively serious, the second escalating in seriousness and committed after a warning from the Department about the consequences of re-offending.
The Tribunal regards involvement in commercial drug activity as serious. The Applicant himself acknowledged that fact in evidence.
The Applicant also committed a number of traffic violations (speeding), the significance of which the Tribunal considers is that there is a demonstrated disregard for Australian laws, and lack of concern for other users of the road and pedestrians.
Having regard to what has been said before, the Tribunal has serious reservations as to the Applicant’s creditworthiness. Therefore, the Tribunal does not accept the Applicant’s assertions that he is rehabilitated, reformed and that he will not commit offences in the future. Because of the Applicant’s past conduct, the Tribunal concludes that the Applicant is and will continue to be a risk of offending and the Australian community should be protected from that identifiable harm.
The best interests of minor children in Australia
It is an undoubted principle that all children should have the benefit of knowing and having contact with both parents.
There are 2 children relevant to this consideration. A step-daughter, nearly 18 years of age, and a 9 year old son. The Tribunal has found a tenuous relationship with the Applicant’s wife and children.
The Tribunal considers that the Applicant is unlikely to play a positive parental role in the future, particularly in relation to his 9 year old son given the lack of contact the Applicant has had in the past with his children.
Having regard to the finding as to his relationship with his children, (which is at best, very limited), this consideration nonetheless weighs in the Applicant’s favour, although it carries limited weight.
Expectations of the Australian Community
Prima facie, the language and intent of Direction 65 in relation to this consideration (paragraph 13.3) weighs against the Applicant. In this case, particularly because of the Applicant’s commission of those criminal offences and where the Tribunal believes, as it does in this case, that there is an unacceptable risk the Applicant will commit further offences and therefore breach the trust and expectation that non-citizens obey Australian laws while in Australia, this consideration weighs against the Applicant.
Other considerations
International non-refoulement obligations
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.
There is nothing in the material to demonstrate that the Applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal is satisfied that there are no grounds for concluding that there is a real risk that the Applicant will suffer significant harm if removed from Australia.
Strength, nature and duration of ties
The Applicant has lived in Australia for 20 years. Although he has been sentenced to two custodial sentences, the Tribunal notes that the Applicant has contributed positively through work during his time in Australia. The Tribunal further notes, however, that during the period of 20 years in Australia the Applicant was present for 7 years unlawfully. Cancellation of the visa would adversely affect the Applicant and family members should the Applicant be removed. This consideration, therefore, weighs in the Applicant’s favour.
Impact on Australian business interests
There is no evidence currently available to suggest that the Applicant is involved in the delivery of a major project or of an important service in Australia. Accordingly, this consideration is not relevant to the Applicant's circumstances.
Impact on victims
There is nothing in the material which suggests that this consideration is relevant to the Applicant’s case.
Extent of impediments if removed
The Applicant has lived in Australia for approximately 20 years, however, he speaks Vietnamese.
Furthermore, it is unlikely that his wife and children would relocate to Vietnam and such relocation, if possible, would undoubtedly be difficult.
The Applicant has few living relatives in Vietnam. His father has passed away and his mother is aged in her 70s and in poor health. His older brother has his own family and obligations.
In the circumstances, the Tribunal accepts that there are impediments should the Applicant be removed.
In addition, the issue of the Applicant’s wife’s health is relevant and is discussed as a separate consideration below.
Health Considerations of the Applicant’s wife
The considerations listed under Direction 65 are not exhaustive.
In this matter, the Tribunal acknowledges that evidence relating to the wife’s past illness and potential for it to reassert itself in the future is a relevant consideration. It is common ground supported by objective evidence that the wife has been treated for cancer. It is unsurprising that her diagnosis includes the potential for that cancer to return. This would naturally have an impact on her ability to look after and care for her children, especially the Applicant’s son. It is impossible on the evidence to determine that the wife will not be affected by illness in the future.
This issue impacts upon considerations regarding the best interests of the Applicant’s son and the wife’s broader family, including her children. Furthermore, this consideration impacts upon the consequences of the Applicant’s visa being cancelled. The Tribunal accepts the Applicant’s submission on this issue. Overall, therefore, this consideration weighs in favour of the Applicant’s case.
CONCLUSION
The Applicant is a 39-year-old man who has lived in Australia for approximately half of his life and has significant ties to Australia, with a wife and children living here.
The Tribunal has already referred to a number of considerations which weigh in the Applicant’s favour.
However, in this case, having regard to the Applicant’s criminal history, the fact that the second offence of a similar kind was committed and was drug-related and importantly, because the Tribunal considers the Applicant has a real and substantial risk of committing such offences in the future, on balance, the Tribunal is entirely satisfied that the risk of offences being committed in the future, together with past offending, weighs so heavily against the Applicant that the decision to cancel the Applicant’s visa should be affirmed.
DECISION
The decision under review is affirmed.

I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

...................................[sgd]..................................
Associate
Dated: 9 November 2018

Date of hearing: 17 October 2018

Counsel for the Applicant:

Advocate for the Applicant:

Ms M Yu, Frederick Jordan Chambers

Ms H Nguyen, Selective Lawyers

Solicitors for the Respondent: Ms B Griffin, Australian Government Solicitor

[2018] AATA 4214

9 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice