Tran and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2023] AATA 2199
•25 July 2023
Tran and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 2199 (25 July 2023)
Division:GENERAL DIVISION
File Number: 2023/3327
Re:Tu Anh Tran
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member R West
Date:25 July 2023
Place:Melbourne
The decision under review is set aside and in substitution the Tribunal decides that the statutory discretion under s 501(1) of the Migration Act 1958 (Cth) is not to be exercised to refuse the Applicant a Bridging E (Class WE) (Subclass 050) visa.
................[sgd]........................................................
Member R West
CATCHWORDS
MIGRATION – refusal of a bridging visa – applicant has substantial criminal record and does not pass the character test – whether there is another reason to refuse the visa – primary considerations – protection of the Australian community from criminal or other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – other considerations – legal consequences of the decision – extent of impediments if removed – decision set aside.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration (Arrangements for Bridging visa applications) Instrument (LIN 21/045) 2021 (Cth)
Migration (IMMI 18/103: Arrangements for Partner and Prospective Marriage Visa Applications) Instrument 2018 (Cth)
Migration Regulations 1994 (Cth)Drugs, Poisons and Controlled Substances Act 1981 (Vic)
CASES
CGX20 v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (No 2) [2020] FCA 1842
CKL21 v Minister for Home Affairs [2022] FCAFC 70
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197
NHBK and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 364
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Direction No. 99 – Migration Act 1958 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under
s 501CAJason Payne Recidivism in Australia: findings and future research (Research and Public Policy Series No. 80, Australian Institute of Criminology October 2007) FOR DECISION
Member R West
25 July 2023
This matter concerns an application for the review of the decision of a delegate of the Respondent to refuse to grant the Applicant a Bridging E (Class WE) (Subclass 050) visa (Visa) under s 501(1) of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The Applicant was born in Vietnam in March 1995.
He first arrived in Australia in January 2018 on a Temporary Business Activity (Class GG) (subclass 408) visa[1] which ceased on 2 February 2018.
[1] SG1 at p.1.
On 9 April 2020, the Applicant applied for a protection visa and was granted a bridging visa pending consideration of his application.[2] The application for a protection visa was refused by a delegate of the Respondent on 18 June 2020 and an application for review of this decision was withdrawn by the Applicant on 26 March 2021.[3] The Applicant’s bridging visa ceased on 20 April 2021.
[2] SG1 at p.2.
[3] SG2 at pp.3-4.
The Applicant was arrested on 16 June 2020 and held in custody for 44 days until being released on bail.
On 10 March 2021 the Applicant was convicted in the County Court of Victoria of one count of Cultivate Narcotic Plant – Commercial Quantity under s 72A of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (DPCS Act). He was sentenced to a term of 3 years and 6 months imprisonment.[4]
[4] G4 at pp.22-23.
The Applicant was released from prison on parole on 20 February 2023[5] and taken into immigration detention.
[5] SG4 at p.110.
While in immigration detention, the Applicant made a combined application for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa (Partner Visas) sponsored by his partner Thuy Hong Dang (Ms Dang)[6] which application is taken to also be an application for a Bridging E (Class WE) visa.[7]
[6] G4 at p.100.
[7] See Regulations, sch 1 item 1305(1); Migration (IMMI 18/103: Arrangements for Partner and Prospective Marriage Visa applications) Instrument 2018 (Cth), sch 1; Migration (Arrangements for Bridging visa applications) Instrument (LIN 21/045) 2021 (Cth), sch 1 item 5.
On 23 March 2023 the Applicant was served with a notice of intention to consider refusal of the application for the Bridging E (Class WE) visa[8] to which the Applicant responded on 26 April 2023.[9]
[8] G4 at pp.34-38.
[9] G4 at pp.39-117.
On 9 May 2023 a delegate of the Respondent refused to grant the Applicant a Bridging E (Class WE) visa (Visa)[10] (Reviewable Decision), and by operation of s 501F(2) of the Act the application for Partner Visas was also taken to be refused.
[10] G2 at p.7.
On 16 May 2023 the Applicant applied to the Tribunal for review of the Reviewable Decision (Application).[11]
[11] G1 at pp.1-6.
HEARING
The Tribunal conducted a hearing of the Application on 17 July 2023. The Applicant was represented by Mr Quan Sy Do, a migration agent. The Respondent was represented by Ms Siran Nyabally, a solicitor with the Australian Government Solicitor.
In conducting the review, the Tribunal had regard to:
(a)the documents produced to the Tribunal by the Respondent pursuant to s 501G of the Act, sequentially numbered G1 to G5 and paginated from pages 1 to 150 (G Documents), and further documents including those produced under summons and lodged by the Respondent as supplementary documents numbered SG1 to SG6 and paginated from pages 1 to 495 (SG Documents);
(b)extracts from Department of Immigration ICE records documenting the Applicant’s immigration status marked as Exhibit R1;
(c)the documents lodged by the Applicant and marked as exhibits in Appendix A, and
(d)the oral evidence of:
(i)the Applicant;
(ii)Thuy Hong Dang;
(iii)Thi Tuyet Anh Le; and
(iv)Minh Nguyet Vu.
LEGISLATIVE FRAMEWORK
Under s 501(1) of the Act, the Minister and the Tribunal on review, may refuse to grant a visa to a person if the person does not pass the character test as defined in s 501(6) of the Act. If satisfied that the person does not pass the character test, the Tribunal must consider whether or not to refuse to grant the visa in the exercise of its statutory discretion under s 501(1).
Section 501(6)(a) provides that a person is deemed not to pass the character test if they have a substantial criminal record. Section 501(7)(c) provides that for the purpose of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
On the basis of the Applicant’s conviction and sentencing on 10 March 2021 the Tribunal is satisfied that the Applicant has a substantial criminal record as defined in s 501(7)(d) and by virtue of s 501(6)(a), the Applicant is deemed not to pass the character test. This is not disputed by the Applicant.
Accordingly, the principal issue before the Tribunal is whether it should exercise of its statutory discretion under s501(1) to refuse to grant the Visa.
On 23 January 2023, the Minister issued Direction No. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 99) to commence operation from 3 March 2023. Direction 99 relevantly provides guidance for decision-makers on the exercise of their statutory discretion to refuse to grant a person a visa pursuant to s 501(1) of the Act.
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the Tribunal must comply with the direction.[12]
[12] See Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583, [17].
DIRECTION 99
Clause 6 of Part 2 of Direction 99 provides that decision-makers must take into account the considerations identified in cls 8 and 9, where relevant to the decision.
Clause 8 of Part 2 sets out five primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia
(4) the best interests of minor children in Australia; and
(5) expectations of the Australian community.Clause 9(1) of Part 2 sets out other considerations. These include, but are not limited to:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims;
(d)impact on Australian business interests.
Clause 6 stipulates that the decision maker must be informed by the principles stated in cl 5.2 in assessing these considerations.
EVIDENCE
Applicant’s Criminal Record
A complete statement of the Applicant’s criminal record is set out in a National Criminal History Check produced by the Australian Criminal Intelligence Commission.[13] It records the single offence of Cultivate Narcotic Plant – Commercial Quantity for which the Applicant was sentenced on 10 March 2021 to a term of 3 years and 6 months imprisonment with a minimum 2 year non-parole period.[14].
[13] G4 at pp.22-23.
[14] G4 at p.32 para [41].
Sentencing Remarks
In sentencing the Applicant following his conviction on 10 March 2021 the sentencing judge, His Honour Judge McInerney of the County Court of Victoria, made the following remarks regarding the nature of the crime:[15]
8…while living in St Albans you were apprehended on the 16 June 2020 committing this offence at 26 Railway Road, Rochester. Conducted there was a sophisticated hydroponic setup in six rooms, and three further areas in outside sheds.
9 Data concerning the location of your mobile phone show you to have been in Rochester on 14 occasions, including five occasions where you remained there overnight, for a period of four weeks, between the 18 May and the 16 June 2020.
10 On the day the warrant was executed two cars, registered in your name, were at the property.
11 In one of the cars, a wallet was found which contained handwritten instructions in Vietnamese as to how to cultivate cannabis. Electricity had been bypassed and the botanist evidence is that the plants were between 10-14 weeks of age.
12 The botanist identified 221 cannabis plants with a weight of 197.7 kilograms, the threshold level for commercial quantity of cannabis, pursuant to Schedule 11, part 2, is respectively 100 plants and 25 kilos, hence the amount found was double the amount of plants and just on eight times the weight.
[15] G4 at pp.25-26.
His Honour described the Applicant as only a crop sitter.
His Honour also noted that the Applicant had pleaded guilty to the charge at an early stage.
Applicant’s Evidence
The Applicant affirmed his statement of 26 April 2023[16] and gave oral evidence at the hearing.
[16] G4 at pp.42-47.
In his statement, the Applicant stated:
(a)He came to Australia on 2 January 2018.
(b)He first met Thuy Hong Dang (Ms Dang) in January 2019 and by May 2019 had established a relationship. They started living together in October 2019. Their daughter K was born in April 2020.
(c)He said that the strict measures taken in response to the COVID-19 pandemic had a long-term effect on their savings and he felt a strong urge to make money by any means possible.
(d)He was arrested and remanded in custody on 16 Jun 2020 and was granted bail in July 2020. While on bail he found a job in the retail sector and later employment with a manufacturer of caravans.
(e)He said that Ms Dang became depressed after he was arrested in June 2020 and there was a high risk of her relapsing into depression. He also said that he was concerned for their daughter K who has suffered from slow development and may have an autism spectrum disorder.
(f)He claimed to have a good record in prison and to have made a commitment to improving himself so as to return to society as soon as possible.
(g)He concluded:
…I am very sorry about my offences for Australia and the community. Australia has accepted me to be here. I am so sorry for my partner Thuy and daughter and for destroying their lives. I swear I have changed now. My partner and daughter are the most important part and reason for me to be in this life. I feel very guilty about what I have done. I feel so sorry my daughter has to come and see me in prison and then detention centre.
The Applicant said in his oral evidence that:
(a)Before coming to Australia he had graduated high school in Vietnam and then worked as a kitchen hand and in maintenance on merchant ships for about two years in 2015-17.
(b)He described the circumstances leading to his offending claiming it was at the time of the COVID-19 lockdowns when many people had been laid off and it was difficult to find work. He said he had lost his job as a handyman’s assistant and Ms Dang had taken time off work to deal with the birth of their daughter K. He said that his visa had expired and he was not allowed to work. He said Ms Dang had some savings but they were not enough to live on.
(c)He said he was contacted by criminals via social media in response to a post he had made seeking work and they offered him a job looking after their cannabis crop. He said that he knew he was being asked to do something which was illegal but he was re-assured that if caught he would only face prison for 2 or 3 months or receive a fine. He said he was foolish to accept the job but he was desperate. He said that he did not tell Ms Dang about his criminal activity.
(d)He conceded in his oral evidence that at the time of his offending he owned one motor vehicle and had a half share with a friend in another. He also stated that Ms Dang, an Australian citizen, had not applied for social welfare benefits because she was concerned it would tell against her if she subsequently sought finance to buy a home. He also stated that neither he nor Ms Dang sought financial assistance from their parents who had the means to help because he did not want to rely on anyone and he wanted to prove to Ms Dang that he could look after his family.
(e)He described his role in the cannabis growing operation as just feeding and irrigating the cannabis plants and said that he was not involved in setting up the operation. He claimed he was to be paid $300 for 2 hours work per day and he was paid extra to stay overnight at the premises where the cannabis was grown. He said he worked for around a month prior to his arrest on 16 June 2020 but actually only received around $1,000.
(f)He confirmed that the visa with which he entered Australia in January 2018 expired on 2 February 2018 and that he did not apply for an extension. He said he did not fully understand the rules and acknowledged that he had not contacted anyone for assistance. He acknowledged that he lived in Australia illegally from 2 February 2018 until he was granted a bridging visa on 13 April 2020. He acknowledged that it was a condition of this bridging visa that he not work, but he said he was misled by his accountant who said he could work if he obtained a tax file number. He said he waited for a long time for the accountant to get him a tax file number but he was forced to work in order to support Ms Dang and K.
(g)He stated that he had discussed with Dang the prospect of him remaining in Australia but had not talked to her about what would happen if he was deported to Vietnam. He said he thought Ms Dang would follow him to Vietnam but he did not want her to do so. He said Ms Dang has been in Australia for 10 years and has her own business and he is concerned for K and her developmental needs and that the economic, political, educational and health care situation in Vietnam was inferior to Australia.
(h)He acknowledged that he would not face any significant difficulties himself in returning to live in Vietnam. He said he could find work but on less money. He said the principal difficulty for him would be the separation from Ms Dang and K.
Witnesses
Thuy Hong Dang
Ms Dang provided a statutory declaration declared on 26 June 2023[17] and gave oral evidence at the hearing.
[17] Exhibit A2.
In her statutory declaration Ms Dang stated:
(a)She is the wife of the Applicant, having first met him at the beginning of 2019.
(b)They have a daughter K together who was born on 7 April 2020. The Applicant cares for her and their daughter. She is worried about K who has speech delay and she fears she may suffer from autism.
(c)At the time of K’s birth she could not work and the Applicant lost his job due to the COVID-19 pandemic. She said the Applicant tried to find another job but it was difficult because employers were reducing staff and he turned to growing cannabis which he hid from her. She said that when arrested in June 2020 he was very remorseful and during the eight months he was on bail he worked hard to find a job to support her and their daughter.
(d)She has found it difficult while the Applicant has been in prison and detention and had to rely on prescribed medication to combat depression. Her father has come from Vietnam to help her take care of K but he cannot do so indefinitely. She currently supports herself from her nail shop business. K is currently in childcare 4 days per week.
(e)She and K visited the Applicant in prison often.
(f)She said she was unable to return to Vietnam if the Applicant is deported because K needs specialist support having been referred to a speech pathologist by her GP in October 2023. She is currently seeking NDIS funding and such support would not be available for K in Vietnam.
In her oral evidence Ms Dang stated:
(a)She has sought professional help for her depression and is currently taking prescribed medication.
(b)Since the Applicant has been in prison and detention she has opened a nail salon with the assistance of her parents and works 5 days per week and makes enough money to meet her living expenses and has accumulated some savings.
(c)She has received assistance in caring for K from Ms Vu and her father came out to Australia to look after K while she worked but he had to go home. She now has K in day care 4 days per week and confirmed that she could use day care for each day that she works but said it was very difficult to manage on her own.
(d)She expressed concern that K has exhibited slow speech development and was hyperactive and she suspected she was autistic. She said her GP had referred K for a hearing and speech assessment but this had not yet occurred. She said that there was no professional diagnosis of K’s developmental issues including whether she was on the autism spectrum.
(e)She said that if the Applicant is deported to Vietnam she would want to go with him but Australia was a better environment for K given her developmental needs and there was a risk that K would suffer culture shock and not be able to assimilate into Vietnamese society.
Thi Tuyet Anh LeMs Le provided a statutory declaration declared on 27 June 2023[18] and gave oral evidence at the hearing.
[18] Exhibit A3.
In her statutory declaration and her oral evidence Ms Le stated:
(a)She is a restaurant owner and has known the Applicant and Ms Dang since early 2019, but she was closer to Ms Dang.
(b)She was aware of the Applicant’s conviction for growing cannabis and said he was under financial pressure due to COVID-19 and was stupid to listen to criminals.
(c)She confirmed that the Applicant’s conviction and imprisonment had caused suffering for Ms Dang.
(d)She expressed the view that K was not a fully normal child with problems with speech and ventured the opinion that she was on the autism spectrum.
(e)She said she would offer the Applicant a job in her restaurant if he is released into the community and she was prepared to support the Applicant and Ms Dang financially and in other material ways such as providing household necessities, toys, stationery and meals.
Minh Nguyet Vu
Ms Vu provided a statutory declaration declared on 10 July 2023[19] and gave oral evidence at the hearing.
[19] Exhibit A1.
In her statutory declaration Ms Vu stated:
(a)She is a close friend of Ms Dang and had known her since 2018. She described the Applicant’s relationship with Ms Dang as very caring and loving, and stated that while on bail the Applicant had worked very hard to take care of Ms Dang and their daughter K.
(b)She said that Ms Dang became depressed and had suicidal thoughts when the Applicant was imprisoned and he faced the prospect of deportation. She said that Ms Dang and K need the Applicant’s loving care.
(c)She stated that the Applicant was genuinely remorseful and she was confident he would not re-offend if released into the community.
(d)She promised that she would support Ms Dang and the Applicant financially and mentally if they needed it.
In her oral evidence Ms Vu confirmed that she was prepared to support Ms Dang and the Applicant financially and emotionally and would do so even if they returned to Vietnam.
Other Evidence
The Applicant also tendered:
(a)bundles of family photographs of Ms Dang, the Applicant and K;[20]
(b)Statements of support from the Applicant’s mother[21] and Ms Dang’s father[22] who are in Vietnam and from friends Van Trung Nguyen,[23] Thi Hoan Cao,[24] Rev. Nam Le,[25] and Ha Thi Thu Nguyen;[26] and
(c)certificates for the registration for Ms Dang’s business.[27]
PRIMARY CONSIDERATIONS – CLAUSE 8 OF PART 2
[20] Exhibits A6.
[21] Exhibit A7.
[22] Exhibit A8.
[23] Exhibit A9.
[24] Exhibit A10.
[25] Exhibit A11.
[26] Exhibit A12.
[27] ExhibitA15.
Protection of the Australian Community
In considering the protection of the Australian community, the Tribunal has had regard to the matters set out in cl 8.1(1) and (2) of Part 2 of Direction 99.
Clause 8.1(2) requires decision-makers to 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.
Nature and Seriousness of the Applicant’s Conduct to Date
Clause 8.1.1(1) of Part 2 of Direction 99 provides a description of what is considered very serious and serious conduct. The Applicant’s offending did not involve violence and is not within the scope of the types of crimes described in cl 8.1.1(1)(a)(i)-(iii) as very serious. Similarly, his offending is not of the kind described in cl 8.1.1 (1)(b)(i)-(iv) as serious criminal behaviour. Nevertheless, the descriptions given in cl 8.1.1(1)(a) and (b) are not exhaustive and cl 8.1.1(1)(c)-(h), set out a range of factors decision-makers must considering in assessing the nature and seriousness of the criminal offending or other conduct to date. This includes, for relevant purposes in this case:
(a)the sentence imposed by the court;
(b)the frequency of the Applicant’s offending; and
(c)the cumulative effect of any repeated offending.
The Applicant’s conviction was for a single offence. The sentencing judge noted that the prosecution had accepted that the Applicant was only a crop sitter and had charged him with an offence occurring on one day only notwithstanding evidence of his involvement for a period of approximately one month and in respect of a crop which was aged between ten and fourteen weeks. His Honour described this as a very generous approach by the prosecution,[28] and while critical of the prosecution, His Honour assessed sentence on the basis of the known facts and the charge as framed. The Tribunal accepts that its assessment of the seriousness of the offending is limited to the conviction as charged and it would be inappropriate to consider the broader context commented on by the Court in the absence of any specific findings. Where a person has been convicted of criminal offences and a sentence imposed, 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.[29]
[28] G4 at p.28 para [23].
[29] Minister for Immigration and Multicultural Affairs v SRT (1999) 92 FCR 560, [40].
His Honour noted that a significant quantity of drugs was involved in the offence[30] but he identified a number of factors mitigating against a long sentence including: the Applicant’s early plea, his otherwise clean record and his excuse that he engaged in the conduct owing to having lost employment, his immigration status and having no income (he) was desperate to earn income to support his partner and young child.[31] His Honour also considered the adverse impact of COVID-19 on imprisonment and the risk of deportation for the Applicant if convicted.
[30] Ibid at [20].
[31] Ibid at [25].
Taking these factors into account the Court imposed a significant sentence of 3 years and 6 months imprisonment with a minimum 2 year non-parole period. His Honour described it as:
…a very serious offence, categorised by the Parliament as Category 2 offence under the Sentencing Act, and carrying a maximum penalty of 25 years' imprisonment.
Having regard to the sentence imposed and the maximum penalty prescribed by the relevant legislation the Tribunal is satisfied that the Applicant’s conduct was very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious misconduct
Clause 8.1.2(2) of Part 2 of Direction 99 relevantly states that in assessing the risk that may be posed by a non-citizen to the Australian community, the decision-maker 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 re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(c)…whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and there are strong or compassionate reasons for granting a short stay visa.
Nature of the Harm
The Applicant’s crime involved his willing participation in an illicit scheme to cultivate a substantial amount of cannabis plants, being double the amount of plants and eight times the weight prescribed as a commercial quantity under the DPCS Act. It was a sophisticated operation involving a complex hydroponic system and the bypassing of electricity across six different rooms and three garden sheds at the premises.
The Applicant’s role in the scheme was limited to a ‘crop sitter’, but it was nevertheless a role which enabled the organised criminal activity of those ultimately responsible for the scheme.
The cultivation of drugs in this manner facilitates the sale and distribution of cannabis in Australia through organised crime which not only contributes to the potential for direct harm to individual drug users but it also promotes a criminal culture which undermines Australian drug and criminal laws and threatens the welfare of the entire Australian community. The seriousness of this harm is recognised by the Parliament in the penalties prescribed under the DPCS Act to deter people from cultivating commercial quantities of cannabis.[32]
[32] G4 at pp.27-28 para [21]-[22].
Likelihood of re-offending
The Applicant asserts that the risk of him re-offending has been extinguished.[33]He says:
(a)he is deeply remorseful;
(b)the circumstances that lead to him offending no longer exist and he has cut his contact with everyone other than Ms Dang, family and close friends;
(c)he is committed to the support of Ms Dang and his daughter; and
(d)there is no evidence to support a conclusion that he is a risk of re-offending.
[33] Applicant’s SFIC at [31(b)].
The Respondent asserts that the applicant has not been assessed by a qualified medical expert as having a “low” risk of recidivism, and some of the factors which he says led to his offending continue to exist, including:
(a)the absence of familial support for the Applicant and Ms Dang in Australia;
(b)stresses from parenthood;
(c)Ms Dang’s mental health condition; and
(d)their daughter’s developmental needs.
Further, the Respondent submits that the Applicant’s risk of reoffending is not diminished or tempered by the fact that the Visa being sought is a short-term bridging visa, as the purpose of the bridging Visa is to regularise the applicant’s immigration status while his partner visa application is being considered, a process which may take more than 34 months to finalise.
In assessing the risk of re-offending, the Tribunal is mindful of the comments of the Full Court in CKL21 v Minister for Home Affairs[34] that:
…while the future is not predictable, it is possible to assess the degree of likelihood of an event occurring in the future based on past and current circumstances. On occasions, the task of predicting future events in curial or administrative decision-making has been described as involving speculation. That is an unfortunate description, as the word speculation is typically used as a synonym for conjecture, which is the formation of an opinion without sufficient evidence for proof. In curial and administrative decision-making, the task of assessing the degree of likelihood of an event occurring in the future requires more than mere speculation. It must be based on a logical process of reasoning based on the known facts. A conclusion that a risk “cannot be ruled out” does not, of itself, logically establish the existence of a risk. Further … a risk may be so low that it must properly be disregarded. In assessing the likelihood of a future event, the key facts will include the regularity with which the event has occurred in the past, the conditions under which the event occurred in the past and the likelihood that those conditions have since changed or other events have intervened to interrupt the cycle of regularity.
[34] (2022) 293 FCR 634 at [74], citing the High Court’s decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 599 at 574-575.
The Tribunal notes that the Applicant lived in Australia illegally between 3 February 2018 (when his entry visa expired) and 9 April 2020 (when he obtained a bridging visa) and he acknowledged working in breach of his visa conditions. This indicates that the Applicant was at least careless in his disregard for Australian immigration laws. However, there is no evidence that the Applicant’s criminal offending was part of a pattern of behaviour or was indicative of antisocial attitudes or underlying character flaws on the part of the Applicant. Aside from the offence for which he was convicted the Applicant has a clean criminal record. His record both in prison and while in immigration detention indicates that he was co-operative and compliant and did not exhibit any propensity to engage in criminal conduct.
The Applicant asserted at trial that his crime was committed out of economic desperation resulting from the COVID-19 pandemic and the government restrictions imposed to deal with it. He said he could not get social security benefits as he was awaiting a visa, and the pandemic had eliminated his ability to work, creating a state of desperation. The Tribunal accepts that the social environment created by the COVID-19 pandemic and the government response to it was difficult for citizens generally and for the Applicant in particular, being a young man with newly assumed family responsibilities and limited support in the community. However, the Tribunal does not accept that the Applicant had no option other than to resort to crime. He had some assets in the form of two motor vehicles. Ms Dang did not explore the opportunity of accessing social security benefits and the Applicant did not reach out to family in Vietnam for financial assistance. The circumstances described by the Applicant as to how he became involved in the criminal activity suggest that his involvement was as much the result of opportunism as it was of dire necessity.
That said, the Tribunal is satisfied that the COVID-19 pandemic was a significant contributing factor to the circumstances giving rise to the Applicant’s offending. It was an unprecedented situation and a similar situation is unlikely to arise in the future.
The Tribunal is also satisfied that the Applicant’s imprisonment has taught him a valuable lesson and that he is genuinely remorseful for his offending. He presented as a credible witness and expressed unqualified regret for having broken the law and a commitment to not re-offend. He also demonstrated by his conduct while on bail when he obtained employment to support his family and through his unblemished record while in prison that he is capable of acting responsibly and contributing positively to the community. It is also notable that he pleaded guilty to the charge against him at an early stage, and the Sentencing Judge tacitly accepted his early plea as indicative of genuine remorse.[35]
[35] G4 at p.30 para [32].
The Applicant was assessed by a Case Management Review Committee for the purpose of considering his parole application and was assessed as a “low” risk of re-offending.[36]
[36] SG4 at p.152.
The Respondent submits that this assessment should be afforded limited weight in circumstances where it was not administered by a psychologist or psychiatrist and was for parole purposes. The Tribunal accepts that such an assessment would carry more weight if conducted by an appropriately qualified professional utilising the assessment tools designed specifically for that purpose. However, the Case Management Review Committee is an experienced body with the benefit of having access to the Applicant’s record over a lengthy period. The Parole Board is charged with responsibility to assess the risk to the community before approving a prisoner’s release and it routinely relies on the Committee’s assessment. The Tribunal gives the Committee’s opinion considerable weight in assessing the risk of re-offending.
Prison records indicate that the Applicant participated in courses while in custody directed at his personal development,[37] although his opportunity to engage in education courses was limited due to COVID-19 restrictions.[38] The records also note that the Applicant was engaged in productive work and that he engaged in physical activity in the gym, read books and tried to learn the guitar. The Applicant’s involvement in productive activities while in prison and his general good behaviour indicates that he has positive social attitudes and healthy self-esteem. This points to a reduced risk of re-offending.
[37] SG4 at p.183.
[38] Ibid at p.182.
The Tribunal is satisfied that the Applicant’s support in the community is sufficiently strong and enduring to mitigate against him being drawn into further offending. He has a stable relationship with Ms Dang and a shared commitment and obligation to their daughter K. Ms Dang has a viable business which would provide some financial underpinning of their circumstances and they have the support of friends such as Ms Vu and Ms Le and Ms Dang’s parents. Ms Le has undertaken to provide the Applicant with employment.
The Applicant does not demonstrate any of the key factors identified as being linked to recidivism.[39] He does not have a general history of unemployment, save for his unusual circumstances during the COVID-19 pandemic. He has no record of drug or alcohol abuse. He does not have a low level of education, having completed high school in Vietnam. He has no history of mental health issues. There is no evidence that he has experienced significant family instability.
[39] Jason Payne Recidivism in Australia: findings and future research (Research and Public Policy Series No. 80, Australian Institute of Criminology October 2007 <
As to the Respondent’s assertion that the Applicant’s risk of reoffending is not diminished or tempered by the fact that the visa being sought is a short-term bridging visa, the Tribunal notes that if the bridging Visa is granted, the Applicant would remain subject to evaluation by the Respondent pending a decision on his application for a partner visa. While that process may take up to 34 months it is likely to act as a moderating influence on the Applicant and tend to limit the risk of him re-offending.
Conclusion
Having regard to each of the factors discussed the Tribunal is satisfied that the Applicant presents a low risk of committing any further crimes.
The Tribunal notes cl 8.1.2(1) and the view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases and that some conduct, and the harm that would be caused if it were repeated, is so serious that any risk that it may be repeated may be unacceptable. The Tribunal is not satisfied that the Applicant’s past offending is so serious that the low risk of him committing a similar crime is unacceptable.
The protection of the Australian community is a primary consideration under Direction 99 and weighs in favour of not granting the Applicant a Visa. While a repetition of the Applicant’s offence could potentially involve significant harm to the Australian community the risk of that occurring is low and accordingly the Tribunal gives this consideration moderate weight.
Family Violence committed by the Applicant
Clause 8.2(1) of Direction 99 states:
The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
There is no evidence that the Applicant has engaged in family violence and this consideration is not relevant to him.
The Strength, Nature and Duration of ties to Australia
Clause 8.3 of Direction 99 requires that decision-makers:
(1)…must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
Impact on the Applicant’s Family Members
The Applicant’s family in Australia is confined to his partner Ms Dang and his daughter K. His parents, siblings and extended family reside in Vietnam.
A decision to refuse to grant the Applicant a Visa would deny Ms Dang and K the opportunity to live in Australia with the Applicant as a family unit. It would require them to choose either to forgo the benefits of their Australian citizenship and relocate to Vietnam with the Applicant or to remain in Australia without the care and support of the Applicant. Either option involves a substantial personal cost for both Ms Dang and K. The difficulty for Ms Dang in choosing between these options is exacerbated by K’s learning difficulties and her own mental health vulnerability.
Ties to his or her child and/or children
The Tribunal accepts that the Applicant is a caring father who strongly desires to re-unite with his daughter and to play a role in her future life. His relationship with his daughter represents a strong tie to Australia.
Strength, duration and nature of any family or social links
The Tribunal also accepts that the Applicant has a strong and enduring relationship with Ms Dang who in turn has the support in the community from Mr Le and Ms Vu both of whom expressed their personal commitment to support the Applicant in re-establishing himself in the community. He also provided evidence of support from other members of the community[40] and indicated in his evidence that he has severed his ties with the persons who led him into offending.
[40] See Exhibits A9, A10, A11 and A12.
Strength, nature and duration of any other ties to the Australian community
The Applicant first arrived in Australia in January 2018. He has been in prison or detention since March 2021. His involvement in the wider Australian community is therefore limited to approximately three years. During this time he demonstrated links to the community through his employment including as a fishmonger and a caravan fitter/installer. His prison records show that he was also productively engaged while in prison having worked in industrial packaging (6 months) and as a cleaner (2 years). Nevertheless, these links are modest.
There is no evidence of any involvement in community organisations or activities.
Conclusion
The Tribunal notes that under cl 8.3(4) the length of time the Applicant has resided in Australia is a relevant consideration but for a person such as the Applicant, who lived outside Australia in their formative years, less weight should be given to the time spent in Australia where the person began offending soon after arriving in Australia. The Applicant has been in Australia for over 5 years and began offending two and a half years after his arrival. In addition, he lived in Australia illegally for over two of those years and has been in prison or detention for over two years. Having regard to these matters, the Tribunal gives limited weight to the time the Applicant has been in Australia.
These matters demonstrate that the Applicant has a connection with Australia but those ties are limited in their strength, nature and duration.
In his final submissions, the Applicant contended that this consideration warrants moderate weight in favour of granting him a Visa.
Under Direction 99, the strength, nature and duration of ties to Australia is a primary consideration, and this represents a change in policy from that expressed in the previous Direction 90.[41] However, even though it is a primary consideration, the Tribunal affords it moderate weight.
[41] NHBK and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 364 at [125].
Best Interests of Minor Children affected by the Decision
Clause 8.4(1) requires that decision-makers must make a determination about whether cancellation or refusal under section 501 is, or is not, in the best interests of a child affected by the decision.[42] The best interests of each child must be given individual consideration to the extent that their interests differ.[43]
[42] This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made: cl 8.4(2) of Direction 99.
[43] Clause 8.4(3) of Direction 99.
The Applicant identified his daughter K as the only minor child whose best interests require consideration.
In considering the best interests of the child, cl 8.4(4) requires specific factors to be considered. The consideration of the factors relevant in this case are set out below:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has maintained a strong relationship with Ms Dang and with his daughter K throughout his time in prison and detention. During the time he was on bail between July 2020 and March 2021 the Applicant lived with Ms Dang and K as a family. The Tribunal accepts that the Applicant is genuine in expressing his love for his daughter and his intention to be a supportive father to her if he is released. This was corroborated by the evidence of each of the witnesses.
While Ms Dang has performed the parenting role in relation to K since the Applicant was imprisoned the evidence of Ms Dang, Ms Le and Ms Vu was consistent that Ms Dang has struggled to cope with raising her daughter K alone and needs the support of the Applicant. Ms Dang was initially given support by Ms Vu but she was unable to maintain the level of support required and Ms Dang’s father came from Vietnam to help her care for K. Ms Dang’s father has had to return to Vietnam. Since then, Ms Dang has utilised child care to look after K while she works full time. Ms Dang has suffered post-natal depression and has ongoing mental health issues which have required her to take prescribed anti-depressant medication. The professional opinion of the psychologist who examined Ms Dang on 1 April 2023 was:
The daughter needs to be cared for, loved, and feel secure. Her welfare, wellbeing and feeling safe and secure are the most vital for her developmental process. To optimally achieve these, the daughter would need the care from both parents. I would be hard for her to be cared for by a mother with clinical depression.[44]
[44] G4 at p.70.
The evidence of the Applicant, Ms Dang and other witnesses is that K has developmental problems and particularly undeveloped speech. It is also claimed that she is hyperactive and is on the autism spectrum. While Ms Dang’s GP has referred K for hearing and speech assessment, that process has not been completed. In addition, there is no professional diagnosis that K is either hyperactive or autistic.
There is also no clear indication from the evidence what Ms Dang will do if the Applicant is returned to Vietnam. She said she would want to go with him but thought it would be detrimental for K. The Applicant said he thought Ms Dang would want to go with him but he would try to prevent her from doing so. The Applicant confirmed that he had not discussed the option with Ms Dang. It therefore remains an open question whether Ms Dang and K would relocate to Vietnam if the Applicant is denied a Visa. What is clear is that the Applicant and Ms Dang will reunite and be able to jointly care for K if the Applicant remains in Australia. The uncertainty arises if the Applicant is removed to Vietnam.
In the absence of any proper assessment of K’s condition it is difficult for the Tribunal to form any firm opinion on the relative effects on K of the options which may present themselves, that is: the Applicant is granted a Visa and remains in Australia, the Applicant is returned to Vietnam and Ms Dang and K remain in Australia or the Applicant is returned to Vietnam and is joined there by Ms Dang and K.
Notwithstanding the absence of a diagnosis, the Tribunal does find on the basis of the evidence of each of the witnesses that K has some as yet undiagnosed developmental problems and that it would be beneficial to her for the Applicant to be available to support Ms Dang in addressing them. In addition, it would clearly be in the interests of K to have the opportunity to have her father in her life and to grow up with the love and support of her two parents.
While this does not necessitate that the Applicant remain in Australia it would clearly be in K’s interests for him to remain here where Ms Dang has an established business and supportive friends and both K and Ms Dang have access to Australian medical resources.
On balance, the Tribunal is satisfied that it would be in the best interests of the Applicant’s daughter K for the Applicant to remain in Australia.
The best interests of minor children affected by the decision is a primary consideration under Direction 99 and weighs in favour of not refusing the Applicant’s Visa. The Tribunal gives this consideration substantial weight.
Expectations of the Australian Community
Clause 8.5 of Part 2 of Direction 99 provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a)acts of family violence or
b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The majority of the Full Court of the Federal Court has explained that cl 11.3 of the former Direction 79 which mirrors the wording of cl 8.5(1) and (2):
…should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasizes that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[45]
[45] FYBR v Minister for Home Affairs (2019) 272 FCR 454, [75]-[76].
The Applicant’s conviction was for a serious crime in breach of the expectations of the Australian community and the Tribunal accepts that the deemed expectation of the Australian community, as expressed in cl 8.5, is that because of it the Applicant should not be allowed to remain in Australia. This consideration weighs in favour of refusing to grant the Applicant a Visa.
As to the weight to be given to this consideration, considerable care is required in determining the proper weight and the Tribunal must carefully consider the facts and circumstances of the case to determine whether it is appropriate.[46]
[46] Ibid at [71]-[72] (Charlesworth J), [97]-[98] (Stewart J).
Clause 8.5(2) of the Direction provides that refusal of a Visa may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. The Applicant’s offence did not involve violence and is not of the kind specified in cl 8.5(2)(a)-(f). The offending was serious but the cultivation of cannabis itself was not directly harmful. The threat to the community from the Applicant’s conduct lay in the facilitation of harm by enabling others to engage in the criminal distribution of drugs in the community. The Tribunal is not satisfied that the Applicant’s offence itself was of the kind to which cl 8.5(2) refers. However, the Tribunal notes cl 8.5(3) which indicates that the expectations of the community apply even if the Tribunal concludes that the Applicant does not pose a “measurable risk of causing physical harm to the Australian community”.
While the consideration applies, it is relevant to assessing the weight to be given to it that the Applicant’s offending was a one-off offence committed by a relatively young man in unusual circumstances and in the context of an otherwise clean record both before and since the offending. It is also relevant that the Applicant represents a low risk of re-offending.
Having regard to the circumstances as a whole the Tribunal is satisfied that the expectation of the Australian community, a primary consideration, should be given limited weight in favour of refusing the Applicant a Visa in the overall assessment of all of the considerations.
OTHER CONSIDERATIONS – CLAUSE 9 OF PART 2
Legal Consequences of the Decision
Clause 9.1(1) requires decision-makers to be:
…mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
Sub-section 197C(3) relevantly provides that s 198 does not require the removal of a person to their country of origin if the person has made a valid application for a protection visa that has been finally determined and a protection finding was made for the person in respect of their country of origin.
The Applicant is a citizen of Vietnam. He unsuccessfully applied for a protection visa on 9 April 2019 and subsequently withdrew an application for merits review of the decision to refuse the application. He has not been the subject of a protection finding. In his final submissions in this matter the Applicant stated that he did not wish to raise any claim that his removal to Vietnam would give rise to international non-refoulement obligations and he accepted that the consequence of a refusal of his Visa under immigration law is his removal to Vietnam.
The Tribunal is therefore satisfied that s 197C(3) of the Act would not preclude removal of the Applicant to Vietnam pursuant to s 198.
Accordingly, the legal consequence for the Applicant of a decision not to revoke the cancellation of his Visa would be his removal from Australia to Vietnam as soon as reasonably practicable with continued detention pending his removal. A decision to revoke the cancellation would restore the Visa and the Applicant’s right to remain in Australia and facilitate his release from detention pending the determination of the Applicant’s partner visa application.
While the Tribunal has had regard to the legal consequences of its decision whether for or against revocation, the consideration is itself essentially neutral and attracts no weight in the assessment of which alternative outcome should be preferred. Any matter relevant to the implications of the Tribunal’s decision are matters which form the basis for the other considerations.
Extent of impediments if removed
Clause 9.2(1) of Part 2 requires that:
Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Applicant conceded in his evidence and in his final written submissions that…there are no significant impediments to him being able to establish himself and maintain basic living standards if he was returned to Vietnam. Therefore, in respect to paragraph 9(1)(b) of Direction No 99, (the Applicant) submits that this consideration should be given neutral weight.
The Tribunal notes that the Applicant is now 28 years old. His prison records indicate that he enjoys good physical and mental health. He has an extended family in Vietnam. He lived in Vietnam until he was 22 years old, he speaks the language and understands the culture.
Given the Applicant’s concession, the Tribunal does not discern any significant impediments to him establishing himself and maintaining basic living standards if he was returned to Vietnam. This consideration therefore attracts no weight either for or against the grant of a Visa.
Impact on Victims
Clause 9.3(1) of Part 2 requires:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The relevant impact under cl 9.3 is the adverse impact likely to result from the non-citizen being granted a visa.[47]
[47] CGX20 v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (No 2) [2020] FCA 1842 [17]-[21], which considers the analogue consideration at 14.4 of Direction No 79.
The Tribunal does not have any evidence of the possible impact of its decision on the victims of the Applicant’s criminal behaviour, their families or other members of the Australian community who may be adversely impacted.
Accordingly, the Tribunal gives this consideration no weight.
Impact on Australian business interests
Clause 9.4(1) requires:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant submits that this consideration weighs slightly in favour of granting the Applicant a Visa, on the basis that the Applicant could help alleviate Australia’s post-COVID-19 skill shortages and contribute to the country’s economic recovery and that his removal from Australia would impact adversely on:
(a)family dynamics and Mr Dang’s ability to conduct her nail business; and
(b)Ms Le’s prospects of finding a suitable employee for her restaurant business.
The Applicant is at best a semi-skilled worker who has no ability to alleviate Australia’s skills shortage in any meaningful way. Ms Dang’s business was established after the Applicant entered prison and he has had no involvement in it. If he were deported it would represent no negative change. It is asserted that the Applicant could play an indirect role to positively impact Ms Dang’s business by assisting Ms Dang with her family responsibilities and thereby enhancing her contribution to her business. While the Tribunal accepts that this possibility may result there is no evidence of any quantifiable effect on the business.
There is no evidence that the Applicant possesses any special skills which are not able to be sourced by Ms Le in the general labour market.
There is no evidence that a decision not to grant the Applicant a Visa would compromise the delivery of a major project or important service in Australia, or that the removal of the Applicant from Australia would have any significant impact on Australian business interests otherwise.
Accordingly, the Tribunal gives this consideration no weight.
CONCLUSION
In Gaspar v Minister for Immigration and Border Protection,[48] North ACJ elaborated on how to approach the exercise of the discretion under s 501CA(4)(b)(ii) of the Act:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.
[48] [2016] FCA 1116, [38].
The same general approach is relevant to the exercise of the statutory discretion under s 501(1) of the Act.
Factors against
There are two considerations which weigh against the granting of a Visa to the Applicant.
(a)The protection of the Australian community is a primary consideration under Direction 99 and weighs in favour of not granting the Applicant a Visa. While a repetition of the Applicant’s offence could potentially involve significant harm to the Australian community the risk of that occurring is low and accordingly the Tribunal gives this consideration moderate weight.
(b)The expectation of the Australian community, also a primary consideration, weighs in favour of refusing the Visa, but having regard to the circumstances as a whole the Tribunal is satisfied that it should be given limited weight in the overall assessment of all of the considerations.
Factors in favour
There are two considerations which weigh in favour of granting a Visa to the Applicant
(a)The best interests of minor children affected by the decision is a primary consideration under Direction 99 and weighs in favour of not refusing the Applicant’s Visa. The best interests of the Applicant’s daughter K are served by the Applicant remaining in Australia and the Tribunal gives this consideration substantial weight.
(b)The strength, nature and duration of the Applicant’s ties to Australia is also a primary consideration, and the Tribunal affords it moderate weight.
Conclusion
Clause 7 of Part 2 of Direction 99 provides guidance on how relevant considerations are to be assessed. It states that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Weighing the factors for and against revocation requires the Tribunal to give both primary and other considerations appropriate weight. This requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[49]
[49] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23].
In assessing the relative weight to attribute to factors for and against revocation, the Tribunal has had regard to the principles set out in cl 5.2 of Direction 99 which provide the framework for decision making under s 501CA of the Act. Those principles are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
The Tribunal accepts that these principles reinforce the importance of the factors weighing in favour of not granting the Applicant a Visa. However, the nature of the Applicant’s crime, although serious, is not of the kind specifically identified in cl 8.5(2) of Direction 99 and referred to in cl 5.2(6). The Applicant is a young man whose single incident of criminal conduct stands in contrast to his otherwise good record. The risk of him re-offending is assessed as “low”. Against this he has significant ties to the Australian community and particularly to his partner and child, both of whom are Australian citizens and who each have specific needs for the Applicant’s support. To this can be added the best interests of the Applicant’s daughter who stands to benefit from the presence of her father and the love and support she needs and deserves.
Weighing up these factors the Tribunal is satisfied that the considerations against refusing to grant the Applicant a Visa outweigh the considerations in favour of refusal. Accordingly, the Tribunal is satisfied that the discretion under s 501(1) should not be exercised to refuse to grant the Applicant a Bridging E (Class WE) (Subclass 050) visa and the decision under review should be set aside.
DECISION
The decision under review is set aside and in substitution the Tribunal decides that the statutory discretion under s 501(1) of the Migration Act 1958 (Cth) is not to be exercised to refuse the Applicant a Bridging E (Class WE) (Subclass 050) visa.
APPENDIX A
List of Exhibits A1 Statutory Declaration of VU Minh Nguyet of 10 July 2023 A2 Statutory declaration of DANG Hong Thuy of 26 June 2023 A3 Statutory declaration of LE Thi Tuyet Anh of 27 June 2023 A4 Seaman’s Book of the Applicant A5 Seaman’s Passport of the Applicant A6 Family photos lodged on 26 June 2023 and 12 July 2023 A7 Statement of TRAN Thi To of 24 June 2023 and translation A8 Statement of DANG Van Hay and translation A9 Statutory declaration of Van Trung NGUYEN of 24 June 2023 A10 Statutory declaration of CAO Thi Hoan of 26 June 2023 A11 Statement of Reverend Nam Le of 25 May 2023 A12 Statutory Declaration of Ha Thi Thu NGUYEN of 1 July 2023 A13 Statement of Attendance (Introduction White Card) of the Applicant A14 Bundle of pay slips and PAYG payment summary A15 Letter from the Australian Securities & Investments Commission dated 26 July 2022 and Record of Registration for Business Name dated 26 July 2022 R1 Bundle of three screenshots lodged on 17 July 2023
I certify that the preceding 129 (one hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Member R West
..............[sgd]..........................................................
Dated: 25 July 2023
Date of hearing: 17 July 2023 Advocate for the Applicant: Quan Sy Do Solicitors for the Applicant: VisaStream | Endless ILA Respondent: In person Advocate for the Respondent: Siran Nyabally Solicitors for the Respondent: Australian Government Solicitor
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