Tran and Minister for Immigration and Border Protection (Migration)

[2018] AATA 2093

Tran and Minister for Immigration and Border Protection (Migration) [2018] AATA 2093 (28 June 2018)

Division:GENERAL DIVISION

File Number(s):      2018/1873

Re:Thi Hong Nhung TRAN

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member Antoinette Younes

Date:28 June 2018

Place:Sydney

The Tribunal affirms the decision not to revoke the cancellation of the applicant’s Class BC Subclass 100 Partner (Migrant) Visa.

........................[SGD]................................................

Senior Member Antoinette Younes

CATCHWORDS

MIGRATION - Class BC Subclass 100 Partner (Migrant) Visa - mandatory cancellation - non-revocation - failure to pass the character test - Ministerial Direction 65 - serious criminal convictions - protection of the Australian community - best interests of minor children - expectations of the Australian community - international non-refoulement obligations - strength nature and duration of ties - impact on victims - extent of impediments if removed - decision affirmed

LEGISLATION

Drug Misuse and Trafficking Act 1985 (NSW) ss 3, 25

Migration Act 1958 (Cth) ss 499, 501, 501CA

CASES

Lam v Minister for Immigration and Multicultural Affairs [1999] AATA 56

Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Paeu v Minister for Immigration and Citizenship [2011] AATA 792

R v Leroy (2984) 13 A Crim 469; (1984) 55 ALR 338

SECONDARY MATERIALS

UN General Assembly, 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol, United Nations Treaty Series vol. 606 p 267, entered into force 4 October 1967.

UN General Assembly, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations Treaty Series vol. 1465 p. 85, 10 December 1984.
Department of Foreign Affairs and Trade Country Information Report Vietnam, 21 June 2017
 Direction No. 65, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA

UN General Assembly, International Covenant on Civil or Political Rights and its Second Optional Protocol, entered into force 11 July 1991

REASONS FOR DECISION

Senior Member Antoinette Younes

28 June 2018

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (the Minister) on 6 April 2018 not to revoke the cancellation of the applicant’s Class BC Subclass 100 Partner (Migrant) Visa. The delegate found that the applicant did not meet the requirements of s 501 of the Migration Act 1958 (Cth) (the Act), relating to character.

2. For the following reasons, the Tribunal has concluded that the decision not to revoke the cancellation of the applicant’s Class BC Subclass 100 Partner (Migrant) Visa should be affirmed.

   RELEVANT LEGISLATION

3. Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because, amongst other things, the person has a substantial criminal record which is defined in s 501(7), to include being sentenced to a term of imprisonment of 12 months or more.

4. Section 501CA(4) of the Act provides that the Minister may revoke the original mandatory cancellation decision if the person makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test (as defined by s 501), or that there is another reason why the original decision should be revoked.

   BACKGROUND

5. The applicant is aged 29 years old and she is a national of Vietnam. The applicant was the holder of a Class BC Subclass 100 Partner (Migrant) Visa.  She was sponsored by her husband, Mr Thanh Cong NGUYEN who is an Australian citizen. She first arrived in Australia on 21 October 2012 and resided until 21 July 2015.  She returned to Australia on 15 January 2016. She committed a drug supply offence between 11 March 2016 and 4 May 2016.

6. The applicant’s husband, Mr Nguyen and the applicant were charged with drug supply related offences and both pleaded guilty in the local Court. On 28 April 2017, Her Honour Justice Sweeney sentenced both and the applicant received a two year term of imprisonment commencing 4 May 2016 and concluding on 3 May 2018 with a one-year non-parole period commencing on 4 May 2016 and concluding on 3 May 2017. The applicant has been convicted of the offence of supplying a prohibited drug > indict. Quantity (not cannabis)[1].

   [1] Exhibit J - G Documents, National Police Certificate, at p 24.

   CIRCUMSTANCES OF THE OFFENCE

7. The offence of “supply prohibited drug > indic. Quantity” is found in s 25 of the Drug Misuse and Trafficking Act 1985 (NSW) (Drug Act). Supply is defined in s 3 of the Drug Act and includes, “sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things”.

8. The circumstances of the applicant’s offence are summarised by Her Honour as follows[2]:

   ·Mr Nguyen is a registered owner of a vehicle. He and the applicant lived at a property owned by another person in Marrickville. Police intercepted a telephone number which was used by Mr Nguyen. Between 11 March 2016 and 5 May 2016, the police reviewed in excess of 7000 text messages sent and received on that phone and 6000 telephone calls made and received. Mr Nguyen used the name Mark and in most of the messages and telephone calls, he used the name Rose to refer to the applicant.

   ·On the phone through those messages, Mr Nguyen would arrange up to 55 meetings a day. He arranged to meet customers at various locations in the Marrickville and Sydenham areas. He used codes to refer to the quantities of drugs which he sold including large, medium, and small, for .3 of a gram, .2 of a gram and .1 of a gram.  He gave evidence that the smallest deal he sold was for $70 and the largest quantity for $500, although the facts estimated that to be about $550.

   ·The police searched the rubbish bins outside the home of Mr Nguyen and the applicant. They found the cut-off tops of 251 balloons, the cut-offs tops of two large balloons, over 500 tied pieces of plastic, plastic wrapped in packing tape containing a white powder residue, one green balloon containing .2 of a gram of heroin, one package addressed to the applicant at the post office at Tempe, plastic gloves and several pieces of square foil, each containing a burnt substance – consistent with the evidence that Mr Nguyen smoked heroin. A presumptive test on the plastic wrapped in packing tape returned a positive test for heroin.

   ·The facts indicate that the police had identified a large number of phone calls during which the applicant appears be assisting her husband, by resupplying him with drugs or taking orders on his behalf. The applicant answered a telephone call and the caller addressed her as Rose. The caller said he was on a particular road and she told him to go to a different street, which was one of the streets where Mr Nguyen met his customers. There is a recorded conversation during which Mr Nguyen told the applicant to “bring me four or five small ones”, referring to the small quantities of packaged heroin and she said she would do so in five minutes.

   ·On 4 May 2016, Mr Nguyen and the applicant were arrested sitting in their parked car at Marrickville. When the police approached, Mr Nguyen swallowed something and later told the police that he had swallowed 4 to 5 balloons of heroin. The police searched the home of the applicant and Mr Nguyen and found $494,500 in Australian cash and 74.04 grams of heroin sealed in plastic packaging.

   ·The applicant accepted that between 11 March and 4 May 2016, she knew that Mr Nguyen was supplying heroin not less than the indictable quantity, and that she knowingly took part in the supply of prohibited drugs by assisting him, by answering the phone on his behalf when he was not available and bringing drugs to the car for him when he requested. The Court found that the offence occurred over the almost 2 month period.

   ·In terms of the money found, although the Court noted that Mr Nguyen was conducting a busy commercial street level drug dealing enterprise, it was plausible that he was minding the money for a person to whom Mr Nguyen referred to as “The Boss”. Her Honour proceeded on the basis that the supply of 74 grams of heroin was a “moderately serious offence of its kind, as is the offence of knowingly taking part in the supply of heroin… The dealing with the proceeds of crime, in the circumstances where Mr Nguyen was minding in the money for another person, despite the substantial quantity, I assess as a less serious offence of its kind.[3]”

   [2] Exhibit J - G Documents pp 25 to 36.

   [3] Exhibit J - G Documents p. 32.

9. As the applicant pleaded guilty to knowingly taking part in the supply of heroin between 11 March 2016 and 4 May 2016, Her Honour applied a 25% discount to the sentence. The applicant was sentenced to a period of two years imprisonment with a non-parole period of 12 months.

10. It is not open to this Tribunal to go beyond the findings of the sentencing Court. In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, the Full Federal Court held that a conviction and the sentence imposed as a result of a conviction, are matters for the criminal law and its procedures are not for an administrative tribunal. Their Honours Branson, Lindgren and Emmett held:

    [45] To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.

    [46] While it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point…

11. It is not open to the Tribunal to critically evaluate or question the conclusions and the findings of the Court. It is established law that the Tribunal must accept those findings and conclusions. 

12. On the evidence before it, the Tribunal finds that the applicant has been sentenced to a term of imprisonment. Consequently, the Tribunal finds that the applicant does not meet s 501(3A) because she has a substantial criminal record as defined in s 501(7)(c), namely being sentenced to a term of imprisonment of 12 months or more. The applicant was sentenced to a period of two years imprisonment with a non-parole period of 12 months.

13. Having made those findings, the Tribunal needs to consider the principles in Ministerial Direction No. 65.

    MINISTERIAL DIRECTION NO. 65

14. On 22 December 2014, under s 499 of the Act, the Minister issued Ministerial Direction No. 65, Visa Refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under 501CA (Direction No. 65 / Direction). The Direction is binding on decision-makers performing functions and exercising powers under s 501. The Direction requires the Tribunal to take into account specified primary and other considerations.

15. Part C of the Direction 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.

16. In its Preamble, the Direction articulates some of the objectives the Act which include the regulation, in the national interest, the coming into, and presence in, Australia of non-citizens…a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test.[4]

    [4] Ministerial Direction No. 65, Visa Refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under 501CA, at 6.1(1) and (2)

17. Under the headings General Guidance and Principles, the Direction refers to a number of guiding matters, including:

    ·The Government’s commitment to the protection of the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Australia has a low tolerance of any criminal or other serious conduct by visa applicants reflecting that “there should be no expectation that such people should be allowed to come to, or remain permanently” in Australia.[5]

    ·Being able to come to, and remain in Australia is a privilege.  Australia has a right as a sovereign nation to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.[6]

    ·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.

    ·A non-citizen who commits 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.[7]

    ·Australia has a low tolerance of any criminal or other serious conduct by visa applicants. In cases where the criminal conduct is so serious that any risk of similar conduct in the future is unacceptable.

    ·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 the visa should be cancelled or refused.[8]

    [5] Ministerial Direction No. 65, Visa Refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under 501CA, at 6.3(6).

    [6] Ibid at 6.3(2).

    [7] Ibid at 6.3(3).

    [8] Ibid at 6.3(7).

18. The Direction requires the decision-maker to take into account primary and other considerations relevant to an individual case including a differentiation between refusal of a visa and a cancellation whereby the latter recognises that non-citizens holding substantive visas would generally have an expectation of being allowed to remain in Australia whereas the former should have no expectation that the visa application would be approved in case of a character concern.

19. Of particular relevance to the exercise of discretion is the statement in the Direction that primary considerations should generally be given greater weight than other considerations.

    The primary considerations:

    a)    Protection of the Australian community from criminal or other serious conduct:

20. Paragraph 13.1.2 of Direction 65 states:

    1In 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.

    2In 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 rehabilitative courses to be undertaken).

21. The Tribunal observes that although the type of offence committed by the applicant, being the supply of heroin, is not specifically referred to in paragraphs 6.3.3 and 13.1.1 of Direction 65 as being a serious offence, the Tribunal is satisfied that the examples referred to in that paragraph are not intended to be exhaustive or limiting “the range of offences that may be considered serious”.

22. In relation to the seriousness of the offence, in written submissions to the Tribunal[9], Mr Sadler focused on the delegate’s assessment of seriousness. Mr Sadler argued that the Direction does not refer to studies or other evidence which may guide the decision-maker in relation to public attitudes and values in determining the expectations of the Australian community.

    [9] Exhibit A, Applicants Statement of Facts, Issues and Contentions

23. The applicant contended that the seriousness of the offence is somewhat mitigated by the applicant’s vulnerability, given that she acted at the direction of her husband and she did so partly due to her feeling guilt about her difficulty in falling pregnant.  There is a psychologist report, dated 24 April 2017 by Mr Bradley Jones, forensic psychologist[10] who diagnosed the applicant to be suffering from major depressive disorder, anxiety distress of moderate severity.

    [10] Exhibit J – G Documents pp. 94-102.

24. In the course of the hearing, the Tribunal referred Mr Jones’ report and asked the applicant why Mr Jones is referring to her husband not having any children when in fact he has two children. She stated that this was due to a misunderstanding. A fair reading of Mr Jones’ report indicates that he proceeded on the assumption that the husband did not have any children which strengthened the applicant’s desire to have children, and the fact that she was unable to do so caused her significant emotional upset. Although the Tribunal does not wish to take those comments out of their intended context, the fact that the psychologist proceeded on the basis of an incorrect fact raises doubts about his assessments and to a degree, on the applicant’s credibility. The Tribunal is not persuaded by her explanation that this error is due to a misunderstanding. In any event, it is clear that Mr Jones concluded that the applicant’s offending behaviour is not attributable to any psychological disorder or psychiatric illness.

25. In sentencing remarks, Justice Sweeney assessed the applicant’s offence as at the low-level for offences of its kind.[11] However, it is clear that the applicant’s behaviour was unlawful and the sentence of two years imprisonment reflects an objective view of the seriousness. The remarks by Her Honour that the applicant’s offending is at the low level does not mean that the offence is not serious.

    [11] Exhibit J – G Documents, p. 34.

26. The respondent contended that the supply of narcotics is a very “serious and insidious offence, due to both the widespread harm and devastation it inflicts on the Australian community and the difficulty associated with its detection”. The respondent argued that the seriousness of crimes associated with drug supply as well as the significant harm it inflicts on the Australian community have been previously recognised by the Tribunal, such as, in Paeu v Minister for Immigration and Citizenship [2011] AATA 792 in which the Tribunal considered whether an applicant who had acted as a career for a drug dealing syndicate should have their his visa cancel. In relation to the protection of the Australian community, the Tribunal in that case remarked as follows:

    [40] I conclude that Mr Pau’s drug trafficking offence is of a kind to which the protective objects of the visa cancellation power apply. Moreover it is an offence relevantly and directly related to drug trafficking. Those kinds of offences, having regard to the very extensive penalties that apply to them, are clearly matters that Australian law seeks to deter to punish severely. A drug trafficking in general promotes and facilitates a range of risk taking behaviours which are unacceptable to the Australian community. It exposes the community to the harmful consequences of those risks and to substantial costs in seeking to both prevent and to ameliorate the consequences of their occurrence. Participation in drug trafficking, even if only as a “courier”, is a direct contradiction of the standards and values of the community, at the potential cost to the community in general, and at the potential risk and cost to those who are prepared to purchase, necessarily without any means of legal recourse, these kinds of prohibited substances. Viewed as but one aspect of the Direction [41] consideration, there is a considerable justification for regarding any risk of this kind of future conduct by Mr Paeu, as one that is unacceptable.

1. The applicant has provided certificates of courses she has undertaken such as English language and computer skills, however, the Tribunal is not satisfied that those courses mean that the applicant has been equipped or rehabilitated to reduce the risk of reoffending.

2. The Tribunal is satisfied that the applicant has committed a serious criminal offence for personal gain. The offence has the potential to cause serious harm to individuals as well as the Australian community at large. The Tribunal is of the view that drug trafficking exposes the community to harmful risks such as unlawful activities and health risks.  The Tribunal is of the view that the type of offence committed by the applicant has the potential of exposing the Australian community to an unacceptable risk. In oral submissions, Mr Sadler argued that reasonable members of the Australian community would want to give the applicant a fair go and give her a second chance.  The Tribunal acknowledges that there is a level of subjectivity in assessing community attitudes and expectations.  However, the Tribunal is satisfied that given that the applicant has been in the Australian community for a relatively short period of time, it is reasonable to suggest that the Australian community would have low tolerance in relation to her offending, especially given the seriousness of the offence and the devastation of drug trafficking has on the community.

3. On the evidence before it, the Tribunal is satisfied that the nature and seriousness of the applicant’s offending weighs heavily in favour of the Tribunal not exercising discretion to revoke the original cancellation decision.

4. In terms of risk to the Australian community, it is important to consider the totality of the applicant’s circumstances.

5. The evidence before the Tribunal is that Mr Nguyen came to Australia in 1995. Prior to that he had spent seven years in a refugee camps in Hong Kong. In 1997, he started a metal fixing business which grew quickly in over a year but he had insufficient experience in running a business and insufficient English language skills to successfully run the business at the size to which it grew. The business collapsed because he could not sustain it and subsequently his marriage broke down. He started to smoke heroin. He gave evidence that he started using heroin around 2005 and continued on and off until his imprisonment. The Tribunal asked him and he confirmed that prior to going to prison, he did not participate in a rehabilitation or a detoxification program. He was not aware of and did not participate in any narcotics anonymous programs. He said that on one occasion he went to a methadone clinic in Newtown and they gave him tablets but he did not like the side effects so he did not pursue the program. He stated that in prison he has been involved in the EQUIP Addiction Program.

6. In his written statement to the Tribunal, Mr Nguyen provided a comprehensive background about his relationship with the applicant and how he made her go to jail. He expressed his love and support for the applicant and their intention to build a life together and have children.

7. In oral evidence to the Tribunal, the applicant stated that prior to marrying her husband, she knew that he was dependent on heroin and that he had told her that this was due to the breakdown in his first marriage. She said at that time, her husband did not tell her that he was involved in drug dealing.

8. The applicant gave evidence that she started to help her husband because he told her he was assaulted and that he would feel better and safer if she were with him. She said she did not want to do it but he was pushing her and she was in love with him. She stated that she knew he was involved in selling drugs. She said they needed money for their prospective child. She stated that although she did not consider her actions to be serious, she now recognises that it was a serious mistake on her part to be selling drugs. She stated that her husband was under stress and he got angry easily.

9. The Tribunal is of the view that although the applicant has shown some remorse, she has limited insight into the seriousness of her actions.  The applicant has engaged in conduct which the Tribunal views as serious and relevant to the consideration of the risk to the Australian community should she display the same pattern again.

10. The applicant considers herself to be married to Mr Nguyen.  They both gave evidence of their intentions to remain together and have children. The Tribunal is satisfied that the husband, at least prior to his incarceration, did not make any genuine attempts of rehabilitation or detoxification. He was dependent on heroin and the Tribunal is not reassured that the program that he has undertaken whilst in prison means that he will not engage in drug use or trafficking on his release.  Her Honour Judge Sweeney accepted that the relationship between the applicant and her husband made a contribution to the applicant becoming involved in his offending. In his report, Mr Jones also acknowledged the situational circumstances of the applicant’s offending which included the feeling of guilt as a result of her inability to fall pregnant. The fact that the applicant’s relationship with her husband is ongoing and their intention is to reunite if and when they are both released, means that there is a greater risk of reoffending. On his own evidence, Mr Nguyen has been drug dependent on and off since 2005. He was involved in conducting a busy commercial street level enterprise[12]. Her Honour assessed his offence to be a moderately serious one of its kind.

    [12] Exhibit J - G Documents p 32

11. Three witnesses gave evidence in the course of the hearing, Mr Nguyen’s older son, his wife and the applicant’s friend. All three witnesses expressed their positive opinions of the applicant and the support that they would give her when and if released from detention. However, none of the witnesses knew the exact reasons for her going to prison or for Mr Nguyen being imprisoned. The Tribunal notes that when they were told of the reasons for her imprisonment, they still maintained that they would support her. The Tribunal was particularly impressed with Ms Monique Thuy Giang Nguyen, who told the Tribunal of the unconditional support that the applicant had provided to her personally. The Tribunal does not doubt the sincerity of the witnesses, however the Tribunal is concerned that the applicant had not told the close friend and two family members the reasons for going to prison. This is not a minor issue and it raises concerns for the Tribunal. Despite this concern, the Tribunal acknowledges the support expressed by the three witnesses and the Tribunal has taken this aspect into consideration in favour of the applicant.

12. The applicant contends that she is at a low risk of reoffending.  The central concerns for the Tribunal relate to the potential influence and impact that the applicant’s husband is likely to have on her if they are reunited, as well as her limited insight into her conduct, could lead to reoffending. The Tribunal has noted Mr Nguyen’s evidence that whilst in prison, he has been involved in a program but there is no corroborative independent evidence before the Tribunal that he has rehabilitated or the extent of any such program having had a positive impact on Mr Nguyen. The Tribunal is satisfied that the applicant’s circumstances as outlined and accepted by the Tribunal represent an unacceptable risk that the applicant would reoffend. The nature of harm to individuals in the Australian community should the applicant engage in further similar criminal conduct would include serious physical harm and psychological harm, impacting on individuals who are drug dependent as well as the community at large, such as the health system and the criminal justice system. It is difficult to accept an argument that drug use and supply to not have serious consequences to both individuals and to the community. The Tribunal appreciates that the applicant has not committed any prior criminal offences, however, the Tribunal is of the view that she has shown significant disregard for the law. As noted in Lam v Minister for Immigration and Multicultural Affairs [1999] AATA 56 “Once a person has shown a disregard for the law, it can never be said that there is no risk of reoffending” at [51]. The Tribunal is of the view that although past conduct should not be seen as determinative of future conduct, it is nevertheless a reasonable guide.

13. There is judicial authority that the absence of a prior criminal record carries less weight in relation to drug courier offences than in other areas of criminal law.[13] In R v Leroy (1984), the Court held that:

    This court and other criminal courts have said on many occasions that, in the drug trafficking particular, the circumstances that the accused person has a clear earlier record will have less significance than in other fields of crime. Very frequently, those selected to play some part in the chain of drug trafficking, as the appellant plainly enough was, are selected because of their records, their past and their lifestyles are not such as to attract suspicion. It is this in particular which has led the courts to take in the case of drug trafficking a view which does not involve the same degree of leniency been extended to first offenders.[14]

    [13] New South Wales criminal Court of Appeal in R v Leroy (1984) 13 A Crim R 469.

    [14] R v Leroy (1984) 13 A Crim R 469; 55 ALR 338 at [343] to [344].

14. Looking at the applicant’s circumstances as a whole, and giving regard to authoritative guidance, the Tribunal is not satisfied that the applicant is at a low risk of reoffending. The Tribunal is satisfied that there is a risk and consistent with paragraph 6.3(4) of Direction 65, “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”, the Tribunal is satisfied that the risk is unacceptable.

15. The Tribunal is satisfied and for the stated reasons, that the consideration of the protection of the Australian community weighs heavily against the applicant.

    b)    The best interests of minor children in Australia:

16. The applicant has a stepson who is approximately 17 years of age. The applicant gave evidence that both step-sons have never lived with her and her husband. They lived with their mother, until the older son moved out with his partner. There is no evidence before the Tribunal that the applicant has ever been the primary carer for the stepsons or that she has ever had day-to-day responsibilities for their upbringing. In those circumstances, the Tribunal gives this consideration limited weight. 

    c)     Expectations of the Australian Community:

17. The Direction states at paragraph 13.3(1) that the Australian community expects non-citizens to obey Australian laws while in Australia. Paragraph 13.3(1) of the Direction provides that:

    “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 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 hold a visa. Decision-makers should have due regard to the government’s view in this respect.”

18. In the Statement of Facts, Issues and Contentions, the applicant contends that the “delegate is clearly in error, as I submit community expectation would be that Ms TRAN be given the benefit of the doubt, a fair go and a second chance. After all, the penalty of reoffending would be certain cancellation and expulsion, and far heftier punishment than would otherwise be the case for Australian citizens”. [15] As discussed in the course of the hearing, the purpose of the scheme of visa cancellation is not intended to be punitive but rather aimed at community protection. Moreover to suggest that the penalty for reoffending would be the certainty of cancellation is not correct; in many ways, there is discretion in the visa cancellation scheme to ensure a just and fair decision, taking into consideration individual circumstances.

    [15] Exhibit A, p 8.

19. Direction 65 makes it clear 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. Moreover, the Direction at paragraph 6.3 states that the right of a non-citizen to come to or remain in Australia is a privilege conferred in expectation that the person will be law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

20. There is before the Tribunal a letter of support from the Marist Asylum – Seeker Refugee Service from Father Jim Carty dated 16 May 2018.[16] Father Carty stated the applicant “made a mistake, broken the law, and paid the penalty” and requested a second chance to make amends. The Tribunal has considered that letter and taken it into consideration.

    [16] Exhibit G

21. Neither the applicant’s representative, nor the Tribunal has conducted a survey or research about what the community would expect. The Tribunal appreciates that there is a subjective element in assessing community expectations. The Tribunal is of the view that given the applicant’s conduct, it is reasonable to suggest that the Australian community would not expect that the cancellation of her visa would be revoked. The Tribunal acknowledges that community expectation is difficult to objectively ascertain, however it is reasonable to suggest that the Australian community expects its members to act responsibly towards one another and not to engage in conduct that could lead to serious harm to members of the community. Drug use and trafficking are serious matters and to suggest that the applicant’s conduct was not serious is neither persuasive nor convincing. The Tribunal is persuaded by the respondent’s submissions that having regard to the fact that the applicant has resided in Australia for a relatively short period of time, and that she has been convicted of a serious drug supply offence committed for financial gain, that the Australian community would expect that the applicant would not continue to hold a visa.

22. The Tribunal is satisfied that this consideration weighs heavily against the applicant.

    Other considerations

    a)     International non-refoulement obligations

23. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to 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).

24. Direction 65 states that the “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”.[17]

    [17] Direction No. 65 at paragraph 14.1(2).

25. In submissions provided to the Department in support of revocation of the cancellation decision, the applicant claimed that she does not know if the Vietnamese government would prosecute her for having committed the crime in Australia. She claimed that she fears returning to Vietnam on the ground that if she were prosecuted, the penalty would be severe and would include the death penalty.

26. In the applicant’s Statement of Facts, Issues and Contentions[18], the applicant contended that the delegate had erred in failing to consider non-refoulement obligations. The applicant’s representative contended that had the

    “delegate is in error and should have considered non-refoulement in the balance of factors for and against revocation. Had the delegate done so, Ms Tran would have benefited from acknowledgement that she does in fact face the risk of harm to self or interests in returning to Vietnam with a trafficking conviction. I contend that this goes to the heart of the argument of fairness, and whether Ms Tran was accorded the relevant procedural fairness… Sufficient grounds exist for Ms Tran to be given this consideration as there remains a lack of clarity on double jeopardy laws in Vietnam…In relation to whether the applicant faces the risk of being of adverse interest to the authorities and possibly examined for penal liability for any of the crimes he [sic] committed in Australia in Vietnam…”

    [18] Exhibit A

27. The central argument advanced by the applicant’s representative related to harm the applicant could face as a result of her conviction in Australia.

28. In contrast to the written claims, during the course of the hearing, the applicant’s representative offered his personal opinion namely that the applicant does not have any protection claims. He confirmed that he has instructions to that effect. The Tribunal asked the applicant about any fear she has in returning to Vietnam and she confirmed that she is mostly concerned about leaving her husband in Australia. She indicated her conviction in Australia will go with her to Vietnam. She stated that she feels embarrassed and her family in Vietnam would lose face.

29. The respondent contended that consistent with paragraph 14.1(4) of the Direction, the Tribunal is not required to determine the question of non-refoulement obligations as she has the option of lodging an application for a protection visa. Relying on the decision of Le v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 875, the respondent argued that the availability of a future protection visa application is a permissible reason for declining to consider non-refoulement claims in the exercise of the discretion.

30. For the sake of completion and given the concession made by the applicant in relation to those claims, the Tribunal considers it appropriate to refer to the report of the Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report Vietnam, 21 June 2017 indicating that the

    “principle of double jeopardy applies in Vietnam. Persons convicted overseas of serious crimes who have completed their sentences and returned to Vietnam cannot be subject to further trial in Vietnam for the same crimes… If the offence committed overseas is considered an offence in Vietnam and the person had not served their sentence, they would be examined for penal liability on return to Vietnam”.[19]

    [19] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report Vietnam, 21 June 2017 para 4.7

31. The Tribunal is satisfied that there is not a real chance or a real risk of the applicant facing serious or significant harm if returned to Vietnam, on the basis of the conviction in Australia. Giving regard to DFAT’s report and the fact that the applicant has served her sentence, the Tribunal is satisfied that there is not a real chance or a real risk of harm facing the applicant on that basis. In relation to the claim of shame, although the Tribunal accepts this as plausible, the Tribunal is not satisfied that this would amount to serious or significant harm as contemplated by the Act. Her claims of wishing to remain in Australia to be with her husband and to have a family with him in Australia are related to the consideration of the extent of impediments in case of removal.

32. The Tribunal is satisfied that there are no non-refoulement obligations in the applicant’s circumstances.

    b)    Strength , nature and duration of ties

1. The applicant first arrived in Australia on 21 October 2012 at the age of 24 and resided here until 21 July 2015. She next returned to Australia on 15 January 2016 and committed the drug supply offence shortly after her arrival.

2. The evidence before the Tribunal indicates that the applicant’s ties to Australia include the stepchildren, the spouse of the stepson, and the friend. On the evidence before it, the Tribunal is not satisfied that the applicant has strong ties to Australia and the Tribunal has therefore given this consideration limited weight in the applicant’s favour.

   c)    Impact on Australian business interests

3. There is no evidence to indicate that this consideration is relevant.

   d)    Impact on victims

4. Mr Nguyen claimed that he had been a victim of assault and robbery at the hands of individuals who tried to take his drugs and money.  Although this is plausible, the Tribunal is satisfied that the incident appeared to have occurred as a result of Mr Nguyen’s involvement in drug use and trafficking, supporting the Tribunal’s findings in relation to the risks of being involved in such activities. The Tribunal has given this limited weight.

5. Although it is reasonable to suggest that drug taking and trafficking have financial impacts, dependence on an illicit substances, and potential crime in the community, there is direct evidence of impact on victims.

   e)    Extent of impediments if removed

6. Paragraph 14.5(1) of Direction 65 requires, amongst other things, the Tribunal to give regard to the extent of any impediments that the non-citizen may face if removed from Australia to their home country.

7. The applicant is now 29 years of age who has been diagnosed with depression. She has had difficulties in falling pregnant and has undergone an IVF program.  She has a frozen embryo.  She appears to be in good health. She has two step-sons in Australia, one of whom is in a relationship and they have a child.  The Tribunal has considered those aspects and given them some weight in the applicant’s favour.

8. The applicant contends that she would face shame and embarrassment because of the conviction in Australia, if she returned to Vietnam. The Tribunal accepts that this is plausible and has taken this aspect into consideration. The applicant contends that she wants to remain in Australia to be with her husband on his release from imprisonment. She stated that she intends to have a family with him. She has family in Vietnam and she has maintained close connections with her immediate family, including her brother.

9. The applicant speaks Vietnamese so there is no language barrier. Mr Nguyen gave evidence that it would be difficult for him to return to Vietnam to be with the applicant. He stated that he has been in Australia for many years.  The Tribunal has given this aspect weight in favour of the applicant.

10. The evidence before the Tribunal indicates that the applicant left Vietnam as an adult and she has maintained social and familial support in Vietnam during her short period of residence in Australia. Although the Tribunal has given some weight in favour of the applicant in relation to this consideration, on balance, the Tribunal is not satisfied that this consideration outweighs other considerations.

    Cumulative considerations

11. The Tribunal has carefully considered relevant matters in Direction No. 65. The aspects that weigh heavily against the applicant relate to primary considerations and the Tribunal has given those considerations significant weight. In relation to the Primary Considerations, Protection of the Australian Community and Expectations of the Australian Community, the Tribunal is satisfied and for the stated reasons that those considerations weigh heavily against the applicant.

12. The principles in Direction 65 require the decision-maker, such as the Tribunal to undertake a balancing exercise which involves consideration of all relevant matters and to accord them proportionate weight. The balancing process is not a mathematical formula or a formula that requires the ticking of the relevant boxes. The balancing process requires the consideration of all relevant matters before the Tribunal and the assignment of proportionate weight. The Tribunal is satisfied that it has given regard to all relevant matters, individually and cumulatively, and gives them weight which the Tribunal considers to be appropriate in the circumstances.

13. For the stated reasons, the Tribunal finds that the applicant does not meet the requirements of s 501(7)(c) of the Act because she has a substantial criminal record by virtue of being sentenced to a term of imprisonment of 12 months or more. Therefore, the Tribunal finds that the applicant does not meet the requirements of s 501 of the Act.

14. In consideration of the evidence as a whole and given the Tribunal’s assessments of the Primary and Other Considerations in Direction 65, the Tribunal has decided to affirm the decision not to revoke the cancellation of the applicant’s visa.

15. On the evidence, the Tribunal is satisfied that the correct and preferable decision is not to revoke the cancellation of the applicant’s Class BC Subclass 100 Partner (Migrant) Visa.

I certify that the preceding 72 (seventy two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Antoinette Younes

.................................[SGD].......................................

Associate

Dated: 28 June 2018

Date(s) of hearing:	18 and 19 June 2018
Advocate for the Applicant:	P Sadler - Registered Migration Agent
Solicitors for the Respondent:	L Crick - Clayton Utz