Tran and Minister for Immigration and Border Protection (Migration)
[2016] AATA 413
•22 June 2016
Tran and Minister for Immigration and Border Protection (Migration) [2016] AATA 413 (22 June 2016)
Division: GENERAL DIVISION
File Number: 2016/1670
Re: THI HONG TRAN
APPLICANT
And:MINISTER FOR IMMIGRATION AND BORDER PROTECTION
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 22 June 2016
Place Melbourne
The Tribunal decides to:
1.set aside the decision made by a delegate of the respondent on 17 March 2016 to refuse to grant a Student (Subclass 573) visa to the applicant; and
2.substitute a decision that the applicant not be refused a Student (Subclass 573) visa under s 501(1) of the Migration Act 1958.
[sgd]
S A Forgie
Deputy President
CATCHWORDS
IMMIGRATION – whether discretion to refuse to grant a visa should be exercised for failure to pass the character test – decision set aside.
LEGISLATION
Migration Act 1958: ss 5(1), 29, 31(1), 32-38, 500(6A)-500(6L), 501, 501(1), 501(6), 501(6)(c), 501(7), 501(12), 501G
Migration Regulations 1994
CASES
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349
OTHER MATERIAL
Direction No. 65: pars 6.1(1), 6.2(1), 6.3(1), 7(1), 8(1), 8(2), 8(3), 8(4), 8(5), 11.1(1), 11.1.1, 11.1.1(1)(d), 11.1.2, 11.3, 12(1), 12.2, 12.3(1), 12.4(1)
REASONS FOR DECISION
On 17 October 2012, Ms Thi Hong Tran was granted a Student (Subclass 573) visa (student visa) to enter and remain in Australia until 15 August 2015. She arrived in Australia soon after in order to undertake a Master’s degree in Accounting and Financial Management degree at La Trobe University (La Trobe). Before commencing that course she was required to undertake prescribed levels of an English Language Intensive Course for Overseas Students (ELICOS). She undertook ELICOS at La Trobe Melbourne. Ms Tran completed Level 3 on 8 February 2013 and Level 4 on 3 May 2013. She was halfway through Level 5 when she agreed to care for a house and water and feed the plants. That decision led to her being convicted of Cultivate Narcotic Plant Commercial Quantity on 26 November 2014. She was sentenced to a term of imprisonment of 18 months but that term was fully suspended on condition that she entered a bond to be of good behaviour for two years.
Except for a short period when she was on remand and following, Ms Tran continued to attend classes first at La Trobe Melbourne, then the Australian Catholic University (ACU) and finally at La Trobe where she transferred from a Master’s degree in Accounting and Financial Management to a Master’s degree in Human Resources Management. On 12 August 2015 and three days before her student visa expired, Ms Tran applied for a further student visa. In a letter dated 16 November 2015, an officer of the Department of Immigration and Border Protection (Department) advised Ms Tran that the Minister may refuse her application on the basis that she did not pass the character test. She was invited to comment or provide further information directed to whether or not the Minister should exercise his discretion in that way. Ms Tran provided further information. On 17 March 2016, a delegate of the Minister of Immigration and Border Protection (Minister) found that he or she was not satisfied that Ms Tran passed the character test under s 501 of the Migration Act 1958 (Migration Act). The delegate went on to decide to refuse Ms Tran’s application for a student visa. I have decided to set aside the Minister’s decision and substitute a decision that, even though Ms Tran has not passed the character test, she not be refused a student visa under s 501(1) of the Migration Act.
LEGISLATIVE FRAMEWORK
Under the Act, the Minister may grant permission (known as a visa) to a non-citizen to travel to and enter Australia, to remain in Australia or to do both.[1] There are classes of visas.[2] Some are specified in the Act itself[3] and some are prescribed in the Migration Regulations 1994 (Regulations).[4] The Regulations may prescribe criteria that must be met for a visa or visas of a specified class.[5]
[1] Migration Act; ss 5(1) and 29
[2] Migration Act; s 31(1)
[3] Migration Act; ss 32-38
[4] Migration Act; s 31(3)
[5] Migration Act; s 31(3)
The Minister is given power to cancel a visa. Among those powers is that given by s 501(1) of the Migration Act to:
“… refuse to grant a visa if the person fails to satisfy the Minister that the person passes the character test.”
The “character test” is set out in s 501(6), which, in so far as it is relevant, provides that:
“For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(aa)…
(ab)…
(b)…
(c)having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii)-(v)…
Otherwise, the person passes the character test.”
A “substantial criminal record” is defined in s 501(7) to mean, in part, that:
“…a person has a substantial criminal record if:
(a)-(b)…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)-(e)…”
The term “imprisonment includes any form of punitive detention in a facility or institution” and “sentence includes any form of determination of the punishment for an offence”.[6] Ms Tran does not pass the character test for the term of imprisonment imposed on her was longer than 12 months. That is so even though the term of imprisonment was wholly suspended.
[6] Migration Act; s 501(12)
Section 501G of the Migration Act sets out the steps that the Minister must take in giving notice of a decision under, among others, s 501. Sections 500(6A) to 500(6L) make particular provision for those situations in which the Minister’s decision relates to a person, such as Mr Smith, who is in the migration zone. In broad terms, the “migration zone” includes mainland Australia.[7] Those provisions make particular provision regarding the time within which documents must be lodged with the Tribunal and the time within which the Tribunal must make its decision. I will return to them below.
[7] Migration Act, s 5(1)
BACKGROUND UP TO CONVICTION
In this section of my reasons, I will set out the facts that I have found on the evidence but that were not in dispute between the parties. Ms Tran was born on 11 July 1989 at Quảng Binh in central Vietnam. She has two younger brothers and two younger sisters. One of her brothers is currently in Australia as a student. Her parents own and operate a small hotel in Quảng Binh. They also own a wood processing and construction company.[8] From the age of 14, Ms Tran went to a secondary school run by Catholic sisters in Huế some 200 kilometres from her home. On completing her secondary studies, she attended the Huế University where she undertook a four year Bachelor’s degree in Tourism Economics majoring in Tourism Economics. Her degree was conferred in July 2012 after a four year course.[9]
[8] Curriculum Vitae of the Socialist Republic of Vietnam: Supplementary Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (ST documents); S1 at 36
[9] ST documents; S1 at 49
Ms Tran applied to La Trobe to study a Master’s degree in Accounting and Financial Management. It was a two year course commencing on 29 July 2013. In a letter dated 17 August 2012, La Trobe advised Ms Tran that her application to study had been successful. La Trobe’s offer was conditional providing a certified copy of her Certificate of Graduation from the Huế University and upon her completing language proficiency tests. The terms of the offer were:
Provider
Program
Duration
Study Periods
Tuition Fees
OFFER 1
LTM
English For Further Studies
CRICOS: 070715G30 Weeks
2 Study
PeriodsOrientation: 8 November 2012
Course Start: 12 November 2012
Course End: 12 July 2013
Your English course has 2 study periods each of 15 weeks length.AUD 11,700
Approximate fee per period $5850
Bundoora
Conditions of this offer/explanatory notes
· You must arrive at LTM on Thursday, 08 November, 2012 for orientation and enrolment.
· Your ELICOS course consists of 20 hours of study per week.
Please note that you will be required to pay the remaining balance for your ELICOS course 13 weeks after your course has commenced.
Fees payable
English Fee (50% of total fee)
AUD
5,850
Overseas Student Health Cover (9mths Single OSHC)
AUD
326
Enrolment Fee
AUD
200
AUD
6,376
See Section 4 for instructions on paying fees[10]
[10] ST documents at 46
The letter also advised her of the fees and the deposit that would be payable for acceptance. They were:
Annual Tuition Fee
$23,600.00
Tuition Fee Deposit
$11,800.00
Visa Length OSHC – Single 26 months
$949.00
TOTAL DEPOSIT FOR ACCEPTANCE
$12,749.00[11]
[11] ST documents at 48
The letter also advised Ms Tran that the then Department of Immigration and Citizenship (Department) suggested that international students allow approximately $18,610 per year for living costs.
Ms Tran completed an application for a student visa on 26 September 2012. Her agent prepared a statement setting out details of her background and family as well as how she her studies and stay in Australia would be funded. The costs were calculated to amount to $109,900 over a period of 32 months comprising $58,900 for tuition fees, living expenses of $48,000 ($1,500 per month for 32 months), return airfares of $2,000 and insurance of $1,000.[12] All the costs would be met by Ms Tran’s parents. Ms Tran’s agent advised the Department that Ms Tran’s parents would meet those costs. They had transferred the sum of $19,125 to La Trobe Melbourne to fund the ELICOS course and had deposited an amount in Vietnamese Dollars equivalent to AU$57,000 in a savings book to fund her studies.[13] Reference was made to five valuable properties that Ms Tran’s family owned in Quảng Binh. Ms Tran’s parents also wrote a letter dated 25 September 2012 confirming that they would support her for all her expenses to study in Australia. They stated that they had enough financial ability, assets and monthly income to do so.[14] In the application, their daughter’s agent had described their business interests in trading and processing wood and wooden products as well as in building, transportation and irrigation projects. At the time, the hotel was under construction but expected to operate in 2013.[15]
[12] ST documents at 25
[13] ST documents at 26
[14] ST documents at 55
[15] ST documents at 25
Ms Tran arrived in Australia to begin her ELICOS course in November 2012. She completed Levels 3 and 4 and had started Level 5 when she accepted an offer to mind a house in Cranbourne. She was offered $2,000 to do that provided she tended and watered the plants being grown there. During the day, she would be able to attend her course but she would sleep at the house and would not be required to pay any rent. At the end of the period of cultivation, she was to be paid a further sum. The amount of that sum was not discussed.
After Ms Tran agreed to mind the house, she was taken to an address in Cranbourne. The plants that she was required to care for were cannabis plants in various stages of growth. In all, there were 213 plants. On 21 May 2013, the police raided the house. She was arrested and ultimately charged with Cultivate Narcotic Plant Commercial Quantity. Ms Tran was held in remand but released on bail on 5 June 2013.
Mr Stephen Manteit, a Student Counsellor at La Trobe Melbourne, contacted Ms Tran when she was absent from classes. She spoke with him and he supported her as she resumed her studies and continues to support her.
Ms Tran pleaded guilty to the charge against her. The maximum period for which she could have been imprisoned was 25 years. On 26 November 2014, she was convicted in the County Court of Victoria and sentenced by Judge Sexton to 18 months’ imprisonment. The whole of the sentence was suspended for a period of two years.
THE SENTENCING REMARKS
The facts found by Judge Sexton were, in summary:
(1)Ms Tran had been receiving some money from her parents to help with her school fees. Early in 2013, her parents’ support was reduced and she was unable to pay her fees. Ms Tran asked her friends to assist her with money but they declined.
(2)Word got back to people who prey on vulnerable international students that she was a person who was likely to do their bidding in order to make quick money. She was approached by a man called “Teo” after being introduced by an associate of a friend. He offered her $2,000 to water cannabis plants.
(3)Ms Tran agreed to become a “crop-sitter”. She lived in one room of the house.
(4)Ms Tran did not play any part in constructing what was a sophisticated hydroponic set up involving industrial lights and a watering system powered by electricity obtained by bypassing the metre.
(5)Ms Tran was given precise instructions as to watering and feeding the plants.
(6)The cannabis plants varied from seedlings to mature plants and weighed 53.83kg. Whether by numbers or weight, they amounted to more than twice the amount regarded as a commercial quantity of cannabis under s 70(1) and Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981.
(7)Ms Tran did not identify the man and woman who left the house on the day of her arrest. They have not since been identified.
While Judge Sexton accepted that Ms Tran was in a vulnerable position when she chose to commit the crime, she did not accept that Ms Tran had no choice. Her financial situation has not improved much since early 2013 and yet she now works two jobs to pay for her continuing education. Nothing in the evidence suggested to Judge Sexton that this option had not been available to Ms Tran in early 2013. Instead, she chose to break the law. In choosing to do that, Ms Tran must have known that she ran the risk of being caught and being brought before a court.
In her sentencing remarks, Judge Sexton set out Ms Tran’s family and early history in Vietnam. Turning to the eighteen month period between Ms Tran’s arrest and her being sentenced, Judge Sexton said:
“Remarkably, you did not falter in your pursuit of higher education after your arrest. You were released into the CISP bail program after 16 days in custody, and after receiving support through that program …, you obtained stable accommodation, and have been continually employed ever since in casual jobs including cleaning, waiting on tables, and more recently babysitting for a single mother …. This stability of residence and income enabled you to firstly, complete your English studies, and then, to enrol in a Masters degree and pay the school fees from legitimately earned income. You changed from your intended course of Economics to Human Resource Management. You have completed your first semester, and you are waiting for the results of second semester due out next month ….
The fact you have managed to get back on track while facing a sentence for a serious offence is, in my view, quite exceptional. It shows a determination to make amends for your crime, and also a strength of purpose.”[16]
[16] Documents given to Ms Tran under s 501G(2) at the time of notification of the Minister’s decision (G documents) at 4-5 (footnotes omitted)
Judge Sexton referred to the support Ms Tran had received from Mr Stephen Manteit, a Student Counsellor at La Trobe Melbourne, the sessions she had with a psychologist as she struggled to deal with the anxiety and shame associated with the court process as well as spiritual support she has received from a priest. Her friends and brother also supported her. Ms Tran, Judge Sexton said, had found it deeply distressing to be in custody and was deeply remorseful. She regretted the shame she had brought on her family and the potential consequences for her goals.
While Ms Tran’s personal circumstances are relevant, the nature of the offence also had to be considered. Of that, she said to Ms Tran:
“… As you are now well aware, it is a serious offence, and the courts have said that general deterrence is at the forefront of sentencing considerations. That means, that by my sentence of you, I must seek to deter others from committing such an offence, which is becoming more and more common, with crop-sitters being placed into houses in suburbs all over Melbourne. The courts have also said that in cases like this, there is ‘less room to give weight to considerations of youth and [good character and background] than would otherwise be the case’, and that ‘an immediate term of imprisonment would ordinarily be regarded as virtually unavoidable’ [Tuan Doan v R [2010] VSCA 250 at [17]].”[17]
[17] G documents at 33
Ms Tran had been assessed as suitable for a Community Correction Order. In imposing a term of imprisonment, Judge Sexton said that she was indicating how serious the offence was. The maximum term of imprisonment she could have imposed was 25 years. Had Ms Tran not pleaded guilty and been found guilty after a trial, Judge Sexton indicated that she would have imposed a term of imprisonment of two years and six months with eighteen months suspended. In suspending the whole of the sentence, she was allowing Ms Tran to demonstrate her commitment to rehabilitation.
BACKGROUND SINCE CONVICTION
Ms Tran continued her studies and, in August 2015, Ms Tran, I find, met Mr Jamikon Wiboonthananan when both were living at the same accommodation arranged through the Homestay program. Mr Wiboonthananan had just arrived in Australia on a student visa from Thailand. He is of Finnish/Thai descent and is a citizen of each country. His formative years were spent in Finland but, since he was about 11 years of age, he has lived in Thailand. After a slow start, they soon found themselves to share similar temperaments and interests and wanted to spend their lives together. Ms Tran had told Mr Wiboonthananan of her having been a crop-sitter and of her conviction in September 2015. They married in January 2016 in front of approximately 30 friends. Their wedding was followed by a party at a restaurant.
Ms Tran has continued with her studies at La Trobe. When she was taken into immigration detention, Ms Tran had successfully completed 12 of the 15 subjects prescribed for a Master’s degree in Human Resources Management. Of the three, Ms Tran has not yet attempted two of them. She had undertaken the third, Strategic Management, but had been unable to make the requisite presentation due to the stress and anxiety she was experiencing after she was released on remand. If she is permitted to remain in Australia, La Trobe will allow her to take the course again without paying a further tuition fee for it.
DIRECTION No. 65
Paragraph 6 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.”[18]
[18] Direction at [6.1(1)]
The objectives are followed by passages described as “General Guidance” and “Principles”. They begin with a general statement 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. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”[19]
[19] Direction at [6.2(1)]
The Principles 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 and pattern and raison d’être. The Principles set out in paragraph 6.3(1) 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.”
In so far as it relates to a decision to refuse to grant a visa, 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)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b)…”
Parts A and B both require decision-makers to take into account the primary and other considerations relevant to the individual case.[20] The considerations differ according to whether the decision under consideration is, among others, to cancel a visa or to refuse to grant a visa. The Direction explains that:
“… 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 applicant will be approved.”[21]
[20] Direction; [8(1)]
[21] Direction; [8(1)]
In applying Part B, paragraph 8 of Direction No. 65 sets out how the considerations are to be applied by a decision-maker. In applying them, whether primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[22] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against … cancellation of the visa …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[23] I will expand upon the primary and other considerations in the course of considering the evidence in light of each of them.
[22] Direction; [8(2)]
[23] Direction; [8(4) and (5)]
CONSIDERATION
Primary considerations
Part B begins with three considerations that are characterised as primary considerations: 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 the remainder of paragraph 11.
A. 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. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. 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.”[24]
[24] Direction No. 65; paragraph [11.1(1)]
A.1 The nature and seriousness of Ms Tran’s conduct to date
Paragraph 11.1.1 goes on to expand on the nature and seriousness of the non-citizen’s 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) …
b)…
c)…
d)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
e)The sentence imposed by the courts for a crime or crimes;
f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g)The cumulative effect of repeated offending;
h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
i)…”
Reference is made in paragraph 11.1.1(1)(d) to s 501(6)(c) and to the character test. I have set out the relevant provisions of s 501(6)(c) at [5] above. That refers, in turn, to s 501(7) which is also referred to at [6] above. Ms Tran does not attempt to deny that her conduct that led to her being convicted and failing the good character test is serious conduct of the sort referred to in the Direction. Its seriousness is also reflected in the sentence imposed by Judge Sexton. While eighteen months imprisonment may seem at the lower end when seen in light of the maximum penalty of 25 years, it was a sentence imposed on a person who had no previous convictions, had never previously come to the notice of law enforcement authorities and had the support of her Social Worker and Student Counsellor and her CISP Case Manager. An eighteen month term in those circumstances reflects the seriousness with which the Australian community views drug-related offences.
On one view, tending the plants is a minor role to play for it does not return any rewards of any size. On another view, it is a pivotal role. Without a person to water and nourish the plants until maturity there are no gains to be had at all. There will be no mature plants, or perhaps any plants at all, for the harvesters to harvest and so plants will not return an estimated $3,000 each. The product will never reach the street. Therefore, a crop-sitter’s role is crucial but, at the same time, it is a role that may well be played by a person who has no power or other role to play in the chain of harvesting, processing and distribution that follows. It is a role that enables those who reap the greatest rewards from the activity to be shielded by the person who very likely receives least. Ms Tran is such a person. As she found out, she takes the risk of the enterprise for a relatively small sum of $2,000, a couple of weeks rent free accommodation and an unfulfilled promise of a further undisclosed amount of money after a harvest that did not happen. The small returns do not diminish the seriousness of the offence. They do not diminish the seriousness of the offence or the consequences if she were to repeat it.
Ms Tran has disclosed her conviction in her application. She gave the police the name she had been given for the man who offered her the house to live in but did not give them the name of the man and woman whom police had seen at the house. Ms Tran said that she did not know their names and I accept that is so. She has not, I find, committed any further offences and has committed none in the past.
A.2Risk to the Australian community should the non-citizen commit further offences or engage in serious conduct
Paragraph 11.1.2 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 addition, decision-makers should have regard to the principle that 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.
(3)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:
i.information and evidence on the risk of the non-citizen reoffending; and
ii.evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii.the duration of the intended stay in Australia.
(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short stay visa.”
In considering the risk to the Australian community should Ms Tran commit further offences, I have begun with a consideration of why she committed the one offence for which she has been convicted. As it is her conviction that led to Ms Tran’s failing the good character test, I cannot make findings of fact about the events that led to Ms Tran’s being convicted of that offence if doing so would be to impugn her conviction.[25] That follows from the fact that, when the Minister relies on a person’s having been convicted of an offence and a certain sentence’s having been imposed, that conviction and that sentence are essential facts in the Minister’s having power under s 501(1) to refuse to grant a visa. Therefore, as the Full Court said in Minister for Immigration and Multicultural Affairs v SRT (SRT) when considering a related situation under ss 200 and 201 of the Migration Act:
“... it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. The starting point for consideration by the Tribunal in relation to sentence, when concerned with the question of an order under section 200 of the Act, must be the findings made by the judge in imposing the sentence that satisfies the statutory description of a sentence of imprisonment for a period of not less than one year.”[26]
[25] Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349; Branson, Lindgren and Emmett JJ
[26] [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349 at [40]; 244; 358
Ms Tran does not seek to walk away from the essential facts that led to her being convicted. She admits all of the facts found by Judge Sexton and summarised in [17(2) to (7)] above. There are a couple of matters that Judge Sexton did not specifically address in her sentencing remarks. One is the time at which Ms Tran became aware that the plants she had agreed to care for were cannabis plants. Another relates to her reasons for agreeing to care for the house and plants. That leaves me free to explore those areas as my doing so does not impugn either the conviction or the basis on which Judge Sexton sentenced Ms Tran.
In her statement, Ms Tran said that:
“I was half way through completing my Level 5 English course, which started on 6 May 2013 and I had to pay the rest of my tuition fee but I noticed that my parents had trouble with their business at that time. Therefore, I did not ask them for my tuition fee because I did not want to make them worry more. However, I could not complete the ELICOS course unless I could pay the rest of the tuition fees. I asked the few friends I had if I could borrow the money for the tuition fees but they had none to lend me. …”[27]
[27] Exhibit A at [5]
In cross-examination, Mr Brown, who appeared on behalf of the Minister, drew Ms Tran’s attention to the financial information she had provided with her first application for a student visa. Included was information as to how her parents would fund her study in Australia. I have set that out at [12] above. Ms Tran said that she did not know whether her parents still owned the land she had listed but said that they do invest a lot. Ms Tran said that she had not wanted to ask her parents for the fees because she had heard from her brother that they were having arguments. She could hear the strain in her mother’s voice when she telephoned. Her mother, Ms Tran said, is not very good at business but worries about her father. They had invested a lot in building the hotel. Ms Tran said that she did not want to put any more pressure on them at the time.
I note that Ms Tran did not appear to have a good understanding of her parents’ business. There may be many reasons for that. She may not have a good understanding of it. It may be that her parents may not have given any details. Either of these explanations is open on the evidence. She was away from home for her secondary schooling and while she attended University in Huế. That meant that she was not part of the daily life of her parents and their business. I think that her lack of knowledge of the business is more likely due to that reason than any attempt at obfuscation on her part.
There is an apparent discrepancy between Ms Tran’s evidence regarding her concern about the state of her parents’ financial affairs and the statement made by them in their letter of 25 September 2012 undertaking to support her. Their letter and statements made by or on behalf of Ms Tran in support of her application for a student visa clearly state that they will meet her costs in Australia. Their ability to meet them is not supported by independent or objective evidence of their assets or income but it is supported by their paying a substantial amount as a deposit on her tuition fees and other expenses. Later on too, it is supported by their paying for a further English course at ACU to meet the requirements after her course at La Trobe Melbourne was interrupted by her being held on remand. That course was undertaken between 23 September and 13 December 2013.[28]
[28] T documents at 132
The fact that they could meet those expenses is one thing but Ms Tran’s impression is another. I accept that Ms Tran gained the impression from speaking with her brother and listening to her mother that she could not ask her parents for money. In saying that, I do not suggest that Ms Tran did not believe that her parents could pay when she first applied for a student visa. Her experience of being sent away from home to complete her secondary education and then an undergraduate degree would, I find, have suggested that they were able.
That does not detract from my also finding that, some months later, she felt that their financial position was not what it had been and that asking them for money to pay the tuition fees was not an option open to her.
Just when the financial situation became a problem to her is not clear on the evidence. Mr Brown drew Ms Tran’s attention to the letter from La Trobe dated 17 August 2012 in which she was advised that the total cost of her ELICOS course would be $11,700 and that only half that amount was payable at that time. She was also advised that the course had two study periods each of 15 weeks length. A note on the Offer included in that letter asked her to note that she would “… be required to pay the remaining balance for your ELICOS course 13 weeks after your course has commenced”.[29] That would have been some time in mid February 2013, Mr Brown suggested to her. Ms Tran did not remember this detail and said that she recalled only that she had to pay before she started Level 6 of the ELICOS course. She did not recall whether she had paid the fee but said that when she was required to pay, she paid. A little later, Ms Tran said that she does not recall when she paid the fee exactly.
[29] See [10] above
There is a discrepancy between Ms Tran’s two statements regarding the dates when the tuition fees were payable. The discrepancy cannot be denied but Ms Tran referred on several occasions to her anxiety and tremendous stress over events associated with the crop-sitting. She said that she was not able to think clearly. Her evidence in that regard is supported by the evidence of Mr Stephen Manteit, the Student Counsellor at La Trobe Melbourne. Mr Manteit contacted Ms Tran shortly after she was released from remand on bail to ask her why she had not been attending classes. He wrote in his letter of 11 February 2016 of the stress and difficulties Ms Tran suffered in the eighteen months between her being arrested and the date of sentencing. He referred to this in his oral evidence at the hearing.
Reference to it is also to be found in the report of Ms Bonny Grant, a Court Integrated Services Program (CISP) Case Manager at the Melbourne Magistrates Court. Ms Grant worked with Ms Tran for a 14 week period in 2013 in relation to her housing, mental health and employment needs. She described Ms Tran as not having a support network in Australia, having limited English skills and having recently experienced her first period of incarceration. “She presented as a very young and vulnerable person”, Ms Grant wrote in her report dated 9 December 2015.[30] She referred also to Ms Tran’s experiencing a high level of stress regarding her visa status and her ability to remain in Australia.
[30] G documents at 51
There is no evidence from the records of La Trobe Melbourne or La Trobe to show when she did pay the fees that were outstanding. Ms Tran’s bank statements were not put in evidence to show relevant transfers of money to either of those institutions. In light of all of this evidence and that of Ms Tran at the hearing, I am satisfied that she has become confused about times and dates as to when the tuition fees were paid and when they were due. She has not attempted to mislead about her primary reason for accepting a position as a crop-sitter. Her primary reason was that she needed money for the purpose of paying her tuition fees. For whatever reason, she did not have access to sufficient money to pay those fees. That finding is supported by Ms Tran’s statements but also by those she made to Mr Manteit and to Ms Gordon. In addition, I have had regard to the statements by Ms Tam Thi Thanh Nguyen, who had known Ms Tran for two years when she wrote a character reference for her in November 2014:
“… When I started being her friend, I knew she got finance trouble and asked me for the help. Unfortunately I just know her not much I did not give her a favor. She asked me 1000$ for paying tuition fees to get enrollment on time because her family trouble. I feel so shameful about my behaviour later when I knew her more and we become close friends. …”[31]
[31] Applicant’s Further Documents at 87
Ms Tran has, I find, addressed her financial difficulties on her own by obtaining, first, one part time housekeeping position at a hotel in Brunswick in July 2013 and then a second job as a waitress in Preston in August 2013. Those positions have enabled her to pay her way.
While I find that Ms Tran’s sole reason for accepting the offer to care for the house and the plants arose from her financial difficulties, I must also consider why she chose to do so rather than, for example, looking for a part-time job as she has since done. I have already referred to Ms Grant’s assessment of her when they first met in 2013.[32] Ms Tran presented as a very young and vulnerable person. Ms Maria Pavlou, who is a Senior Counsellor/Counselling Psychologist at La Trobe had four sessions with Ms Tran between 10 September and 27 November 2013 to assist and support her to deal with, what she described as “significant stress” Ms Tran was experiencing at the time. Her assessment of Ms Tran was that she:
“… presented as quiet and soft spoken with limited English and open to receiving support. She also presented as somewhat naïve and open to being taken advantage of. Hong progressed well in counselling (though she remained anxious about the court case) but actively tried to improve the way she felt.”[33]
[32] See [48] above
[33] Applicant’s Further Documents at 89
Dr Michael King, a Clinical Psychologist, administered various personality/psychopathology and cognitive assessments. His colleague administered a second set of assessments to clarify cognitive anomalies inferred from the first set. Dr King was asked to consider whether there was any anomaly or deficiency in Ms Tran’s capacity to exercise appropriate insight and foresight in decision-making. The conclusions he drew are reflected in the following paragraph:
“a. Ms Tran is a hard working person whose fundamental level of intelligence is a little above ‘average’ – and it is a tribute to her diligence that she has succeeded in the studies thus completed.
b.Noting that the present psychometric assessments all relate to the ‘present time’ it is clear that she has significant difficulty marshalling her ‘somewhat above average’ intellectual capacity to focus upon specific tasks – however her diligent personal style leads her to try and to re-try until success is achieved.
c.She currently suffers from major difficulties in planning and in strategy formation under complex systems (even within the relatively modest level of complexity achieved in psychometric tests), and she is prone to making decisions and taking actions which would place her among the poorest few percent of the population – in simple terms she will likely make decisions when she is pressured and these decisions can only be described as ‘profoundly stupid’ (to use common parlance).
d.The thread of diligence and of ‘learning’ from experience is well illustrated in the psychometric assessment situation: she strives to ‘learn from’ situations in which she has failed: that is, she works to better understand her error strategies and works to respond appropriately.
…
… [T]he potential for erroneous decisions making has been well demonstrated by current assessment, and alongside that potential is even more clearly demonstrated the capacity to learn from errors and to make ‘appropriate’ and ‘rational’ decisions into the future.
These comments are based upon the results of psychometric assessment …”[34]
[34] Exhibit C at 2-3
Dr King’s assessment of Ms Tran’s being likely to make poor decisions when she is pressured is consistent with the findings that I have made about the way in which she came to agree to care for a house and the plants when asked to do so by a man whom she had only just meet. She said that, at the time she met the man, she did not know what kind of plants she would be caring for. At that time, she thought that something was wrong with the man’s offer but she needed the money to pay the tuition fees. She did not realise how seriously wrong it was until she saw the house and the plants. By then, she could not get out of her agreement as she had taken the money and knew the address of the house. She was allowed out of the house to go to school but had to return to the house each night. Ms Tran said that she felt very bad and could not sleep but had no choice other than to look after the plants. By then, she felt that she had no choice.
Accepting that Ms Tran’s actions can be explained in this way, is this not a reason for thinking that she is likely to engage in similarly poor decision-making in the future and be led into agreeing to do, if not crop-sitting, something else that is illegal? I think not. Certainly, she became a crop-sitter but I find that she did not fully comprehend what she had agreed to until she was taken to the house. She was naïve and desperate at the time she agreed to care for a house and plants in return for money and free accommodation. A more worldly person would have known what that entailed and not accepted but I find that she did try to back out of the agreement when she was taken to the house. By then, it was too late.
She has found the consequences of her initial decision at the party to be extremely traumatising and deeply shaming. Apart from her presentation in Strategic Management, she has used her trauma and shame as a catalyst for continuing her studies. She used her 16 days in remand to review her course. As money had led her to where she was, she no longer wanted to undertake a Master’ degree in Accounting and Financial Management and decided to change to a Master’s degree in Human Resources Planning. She finished her English studies and began the Master’s course at the beginning of 2014 when she was on bail and awaiting sentencing. Certainly, she had support from Ms Grant, Mr Manteit and Ms Pavlou and, later, from Mr Wiboonthananan who was to become her husband, but, when all is said and done, she was the one who had to focus on her studies and choose to put her life on another course. She used her studies to distract herself from her anxiety and shame but she did not walk away from the reasons why she felt that anxiety and shame. In continuing her studies as she has in these circumstances, Ms Tran has demonstrated that she is able to take stock of what she has done, why she has done it and who she wants to be. She has learned from what Dr King would describe as a “profoundly stupid” decision and does not want to repeat a decision of that kind.
I am satisfied that there is very little risk of Ms Tran’s committing another offence let alone a serious offence. She had not committed any offences before she came to Australia and has not committed any since. In saying that, I acknowledge that for the great majority of that time, it has not been in Ms Tran’s interests to commit any given that she was on bail pending the charge being dealt with in the County Court or since when she has been on a good behaviour bond. Having heard Ms Tran’s evidence and that of Mr Manteit in particular but also from Mr Wiboonthananan, as well as having read the letters and reports from Ms Grant and Ms Pavlou, I find that Ms Tran’s motivation not to re-offend comes from her deep feelings of shame at having transgressed on this one occasion. Quite apart from the consequences to her, she does not wish to re-offend or harm others.
B.2Best interests of minor children in Australia affected by the decision
There are no minor children in Australia whose interests are relevant in this case.
B.3Expectations of the Australian community
Paragraph 11.3 of the Direction states that:
“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 refuse the visa application of such a person. Visa refusal 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 be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.”
On the evidence I have, I am not satisfied that this is a case in which the Australian community would expect that the Minister refuse to grant a student visa to Ms Tran. At the time that she was taken into immigration detention, she was three of 15 subjects short of completing her degree. It was a degree for which she had paid the course fees for 13 of those subjects. The Australian community understands that students come to this country and far from home. Of course, it expects that they will behave and be model students but it also understands that some will be vulnerable and come from sheltered backgrounds. It is a big step to come from a sheltered background to a new culture and the pressures of study while living independently. Some will fail to meet the challenges and will fall, as Ms Tran did, to the consequences of their wrong-decision-making. Of them, there will be those who never pick themselves up. Ms Tran is not one of them. She has picked herself up and shown that she can do what she came to do i.e. study for a Master’s degree. In doing so, she has taken practical steps to become independent by gaining part-time employment. One of her employers, Ms Joulz Eagles, for whom she has baby sat and stayed overnight on her own to do so, is one who cannot speak highly enough of her.[35] In these circumstances, I have concluded that the Australian community would want to give Ms Tran a chance to finish her Master’s degree.
[35] Applicant’s Further Documents at 83
Other considerations
The four other considerations are summarised in paragraph 12(1):
“a) International non-refoulment obligations;
b)Impact on family members;
c) Impact on victims;
d) Impact on Australian business interests.”
A. International on-refoulment obligations
A non-refoulment 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. There is no suggestion that Ms Tran is at risk of harm of the sort that raises Australia’s non-refoulment obligations under the 1951 Convention on the Status of Refugees as amended by the 1967 Protocol (Refugees Convention). Therefore, I find that this consideration does not arise on the evidence in this case.
B. Impact on family members
Paragraph 12.2 elaborates on the second of the Other Considerations:
“Impact of visa refusal on immediate family members in Australia where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.”
Ms Tran does not have any immediate family members who fall into the category described in this paragraph. Her husband, Mr Wiboonthananan, does not do so as he is permitted to enter and remain in Australia on a student visa. That visa is a temporary visa allowing him to stay for a defined period while he completes his degree in computer science. It does not give him the right to remain in Australia indefinitely. That fact does not, however, mean that the impact of refusing a student visa to Ms Tran does not have an impact upon him. It is an impact that I am not precluded from considering for paragraph 12(1) makes clear that considerations include, but are not limited to, the four it lists.
On the basis of his oral evidence and his statement, I find that Mr Wiboonthananan married Ms Tran knowing about her conviction and the circumstances that led to it. Ms Tran told him within a few weeks of their meeting in August 2015. Certainly, they might be thought to have had a whirlwind courtship by marrying only five months after they met but the length of a courtship does not necessarily mirror the depth of commitment in a relationship. I find that they are very committed to each other. Their plans had been to remain in Australia until Mr Wiboonthananan graduated. Once Ms Tran completed her studies, she would work and he would complete his.
They, and particularly Mr Wiboonthananan, have given thought to their position should Ms Tran’s application for a student visa be refused. He would either continue his course until he graduates or he would cancel his studies. If he were to cancel his studies, he would not go to Vietnam where, apart from Ms Tran, he would know no-one and does not know the language. Although he was not entirely sure, he thought that he could get Ms Tran a partner visa to stay in Finland where he is a citizen. That would mean that he would be required to undertake military or civil service in Finland because he is under 30 years of age.
Impact on victims
At paragraph 12.3(1), Direction No. 65 states:
“Impact of a decision to grant a visa 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 can be disclosed to the non-citizen being considered for visa refusal.”
In this particular case, there are those who would have been victims had the police not raided the house and the cannabis plants seized and ultimately destroyed. As it is the cannabis plants have been destroyed and there are no victims of the crime. At [35] above, I have had regard to the impact of crop-sitting on the Australian community.
D. Impact on Australian business interests
Paragraph 12.4(1) of Direction No. 65 states:
“Impact on Australian business interests if the non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia.”
Ms Tran has applied for a student visa to study. Refusal to grant her a visa has no impact on Australian business interests.
Conclusion
There is no doubt that Ms Tran engaged in a serious contravention of Australian law when she agreed to care for a house and for plants. I find that her naivety and her misplaced understanding that she should not ask her parents for further finances led her to placing herself in that position. It was a position from which she could not extricate herself once she knew the address of the house and the nature of the undertaking. Were she to repeat her behaviour the consequences for the Australian community would be serious. I find, however, that she is very unlikely to do that. Although Dr King’s opinion is that she suffers from major difficulties in planning and in strategy formation under complex systems and she is prone to making decisions and taking actions which would place her among the poorest few percent of the population, I accept his further opinion that she is capable of learning from her mistakes.
She has demonstrated this in her behaviour since she was released on bail. It could be said that her being on bail and, since 28 November 2014, being on a good behaviour bond have been incentives for her to not to repeat her former behaviour. I do not think that would be fair, though. She has worked hard and diligently on getting her life into order and has worked with Ms Grant, Ms Pavlou and Mr Manteit. All write well of her and Mr Manteit speaks highly of the effort she has put in to maintaining her studies despite the extreme anxiety and stress she has experienced. That effort has led to her continuing to undertake and pass subjects in the period up to her sentencing and, following that, until she was taken into immigration detention in March of this year. She has found part-time work to assist herself financially and has won the trust of Ms Eagles. I agree with Judge Sexton’s remark that the fact that she had “… managed to get back on track while facing a sentence for a serious offence is … quite exceptional.”[36]
[36] G documents at 31
Until August 2015, Ms Tran achieved that with the help of, as I have said, Ms Grant, Ms Pavlou and Mr Manteit and her friends but she now has the additional support of her husband, Mr Wiboonthananan. Even without that additional support, Judge Sexton thought that Ms Tran was “extremely unlikely to offend again”.[37] That remains the case, I find, and the risk to the Australian community, should Ms Tran be permitted to remain in Australia, is correspondingly very, very small indeed. She has only three subjects to study and has paid the tuition fees for all but two. The impact upon her of not having completed her Master’s degree will be significant. If it were the case that the risk of her re-offending were moderate or high, the impact upon her would be of little weight. Given that the facts are otherwise, this is a situation in which the risk is so small that the Australian community would expect that Ms Tran be given an opportunity to complete the degree for which she came to Australia. It would not want to see a young person’s life be changed by one bad decision when she was a long way from home and has since done so much to rehabilitate herself and earned the respect of her counsellors as well as of her husband and friends.
[37] G documents at 33
For these reasons, I set aside the decision made by a delegate of the Minister on 17 March 2016 to refuse to grant a Student (Subclass 573) visa. In its place, I substitute a decision that Ms Tran not be refused a Student (Subclass 573) visa under s 501(1) of the Migration Act.
I certify that the seventy three preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ……….......................[sgd].................................
Associate
Dates of Hearing 14 June 2016
Date of Decision 22 June 2016
Counsel for the Applicant Ms Ros Germov
Solicitor for the Applicant Mr Jack Ta
Jack Ta & AssociatesSolicitor for the Respondent Mr David Brown
Australian Government Solicitor
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