Tran and Minister for Immigration, Migrant Services and Multicultural Affairs (Migration)

Tran and Minister for Immigration, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1423 (22 May 2020)
Division:GENERAL DIVISION
File Number(s): 2018/3345
Re:Phuc Thien Tran
APPLICANT

AndMinister for Immigration, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal: The Hon. John Pascoe AC CVO, Deputy President
Date:22 May 2020
Place:Sydney

The reviewable decision of the delegate is affirmed
................................[sgd]........................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
MIGRATION – Mandatory visa cancellation – Class BB Subclass 155 Resident Return (Five Year) Visa – multiple convictions – previous immigration warning – failure to pass character test – Ministerial Direction No. 79 applied – protection of the Australian community – nature and seriousness of the conduct – the risk to the Australian community – best interests of the child – strength, nature and duration of ties – extent of impediments if removed – decision affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Pavey and Minister for Home Affairs [2019] AATA 4198
FYBR v Minister for Home Affairs [2019] FCAFC 185
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA
REASONS FOR DECISION
22 May 2020
BACKGROUND

The applicant is a 46-year-old Vietnamese citizen. He arrived in Australia in 1988 when he was 17 years of age.
On 14 September 2017, a delegate of the Minister (‘the Delegate’) mandatorily cancelled the applicant’s Class BB Subclass 155 Resident Return (Five Year) Visa under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). The Delegate found that the applicant had a substantial criminal record and therefore did not pass the character test under s 501(6)(a) of the Act.
On 27 September 2017, the applicant made representations to the Department in considering whether the Delegate should exercise their discretion to revoke the decision to cancel the visa.
On 31 May 2018, a delegate of the Minister decided not to revoke the original decision to cancel the visa under s 501(CA)(4) of the Act.
On 8 June 2018, the applicant applied to the Tribunal for review of the delegate’s decision.
The applicant has a lengthy criminal history. He has spent more than eight and a half years in prison, having been convicted of 54 offences between the date of his first arrest in September 1994 and August 2017 when he was taken into immigration detention.
A summary of the applicant’s criminal convictions includes:
(a)5 offences involving violence;
(b)11 offences involving stealing;
(c)12 offences involving drugs;
(d)2 offences involving firearms; and
(e)19 driving offences.
The applicant was initially warned in July 2005 that, although a delegate had decided not to cancel his visa, any conviction for further offences would result in a further assessment to consider cancellation of his visa.
A second warning was issued in October 2007. The warning included the following information:
Please note that visa refusal or cancellation may be considered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered.
In October 2012, the applicant was issued a formal cancellation letter, which stated as follows:
The purpose of this letter is to warn you that further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6) could result in consideration of the cancellation of your visa.
THE ISSUES
The applicant did not challenge the fact that he does not meet the character test, as he has been sentenced to imprisonment of 12 months or more on at least 10 occasions. He has a substantial criminal record and so does not pass the character test pursuant to section 501(6)(a) of the Act.
Accordingly, the issue before the Tribunal is whether, having regard to Ministerial Direction 79 (‘the Direction’), the Tribunal should exercise its discretion in revoking the mandatory cancellation of the applicant’s visa.
THE LAW
Given that it is agreed that the applicant does not meet the character test, it is now necessary to consider the evidence in accordance with Direction 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’) in deciding whether or not to exercise the discretion under section 501(1) of the Act.
There are also a number of general guidelines in relation to the exercise of discretion set out in the Preamble to the Direction. The following principles contained in paragraph 6.3 are of particular relevance:
(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 women or children or vulnerable members of the community such as 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
….
(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.
The Direction sets out primary and other considerations that must be taken into account, where relevant, when deciding whether to refuse to grant a visa. Primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations. Those primary considerations pursuant to Part C of the Direction are as follows:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian Community.
The Direction also sets out other considerations that must be taken into account, which include (but are not limited to):
(d)international non-refoulement obligations;
(e)strength, nature and duration of ties to Australia;
(f)impact on Australian business interests;
(g)impact on victims; and
(h)extent of impediments to the applicant if removed from Australia.
CONSIDERATION
In considering this matter, I have taken into account the evidence that the applicant presented before this Tribunal and the evidence given at before the previous Tribunal (decision dated 21 August 2018).
Turning first to the primary considerations regarding the protection of the Australian community from criminal and other serious conduct, this consideration requires the Tribunal to look at the nature and seriousness of the applicant’s behaviour and the risk to the Australian community if he were to engage in similar behaviour in the future.
Nature and seriousness of the crime
The applicant has been convicted of a number of serious offences. He started his offending shortly after he arrived in Australia.
On 10 September 1996, the applicant was involved in an assault in company with five other men, involving wood, fists and feet in the assault on a single victim. The applicant’s role involved kicking the victim’s face and stomping on the victim’s feet, and he was convicted of malicious wounding and sentenced to 9 months’ imprisonment.
On 22 or 23 October 1996, the applicant robbed a person armed with a baseball, taking a gold necklace, $340 in cash and $1,000 in coins. On that same day, he stole a gold necklace from another victim.
On 22 October 1996, the applicant, as part of a gang, robbed a man and forced him to take them back to his household. Members of the gang lured the victim to a meeting place, where they ran his vehicle off the road and effectively abducted him. The victim was then kicked and punched, threatened with a gun and, as the sentencing judge noted, a “vicious bashing [was] inflicted on him” by a plank of wood. He incurred significant injuries, namely a broken nose, a broken right hand, missing teeth and multiple lacerations to the face. The victim’s wallet was stolen, and money demanded from him. The offenders found various addresses in his wallet and made the victim nominate an address where they could get money. Under “the most severe duress” the victim nominated the address of his mother-in-law. The gang ransacked the mother-in-law’s house, occupied by an elderly couple and a disabled child. The couple and the child were forced to lie on the lounge room floor, with their hands and feet bound by towelling and sheets until around 3:00AM. Items such as a necklace from the mother-in-law and $2,200 in cash were stolen.
This, and a number of the applicant’s other offences, are of very serious concern as they involved violence against members of the Australian community. Of particular concern is the fact that he has exercised violence and abuse towards his victim’s elderly in-laws and their child with very serious disabilities in company. The sentencing judge described his crimes as “savagery”, “a reign of terror” and “a highly traumatic and terrifying ordeal”.
Although these crimes occurred in 1996, they cannot be discounted both because of the applicant’s apparent disregard of the rights of others and the length of the sentence he received, namely five years. It is also of concern that these offences occurred shortly after his arrival in Australia.
Whilst the applicant has not been convicted of further crimes of violence recently, he has a history of repeated offending and has incurred some 54 convictions. 11 of these convictions resulting in sentences of imprisonment for more than a year.
In summary, the applicant has been sentenced to several terms of imprisonment accumulating to him spending over eight and a half years in prison since 1994. Paragraph 13.1.1(1)(d) of the Direction states that the Tribunal should have regard to circumstances where a court has sentenced an offender to a term of custodial imprisonment. This may be seen to reflect the seriousness of the offences involved,[1] as imprisonment is viewed as a last resort.
[1] See for instance, Pavey and Minister for Home Affairs [2019] AATA 4198 at [44].
Furthermore, repeated prison sentences do not appear to have deterred the applicant either from his continuing use of drugs nor from repeated offences. It is of serious concern that the applicant ignored three warnings from the Department in July 2005, October 2007 and October 2012.
Clearly neither imprisonment nor very specific warnings as to the possible cancellation of his visa had any effect on the applicant’s behaviour.
Risk to the Australian community
The Tribunal is guided by paragraph 13.1.2 of Direction 79, which provides that the tolerance of the Australian community for any risk of future harm becomes less as the seriousness of any potential harm increases. It is necessary for the Tribunal to have regard to the nature of the harm to individuals within the Australian community should the non-citizen engage in further criminal or serious conduct and to the likelihood of the non-citizen engaging in further criminal or serious conduct, taking into account available evidence including evidence of risk of the applicant reoffending.
To date, the applicant does not appear to have been prepared to change his conduct, despite this being in the best interests of his family and his oral evidence provided at the hearing. At the hearing, the applicant gave evidence that he wanted to care for his family and said that he felt he had been punished sufficiently for his past crimes. The applicant also gave evidence that he had been orphaned, and that he did not want his children to grow up without a father. He said that his time in detention has provided him a chance for him to reflect on his life, and that he wanted to be given the opportunity to change.
Apart from the applicant’s expression of remorse and regret, as well as his stated intention not to reoffend and to look after his family, there is very little evidence to indicate that he has a low chance of recidivism. The applicant has given many assurances about not reoffending in the past whilst continuing to offend. For example, on the day after being arrested for driving while disqualified and for possession of prohibited drugs he committed the same offences. He then committed the same offences four weeks later. In the circumstances, it is difficult to see why the applicant will change his conduct now.
The applicant has given similar assurances in 2002 and 2006 but has still reoffended.
It is also of concern that the applicant does not appear to have completed any programs which would help him deal with his ongoing and underlying drug dependency and apparent disregard for the law. Under cross-examination, the applicant said he had completed some courses but that he had lost the certificates. He said it was his intention to engage in counselling if he were released into the community.
When questioned about an incident involving drugs during his current period in detention, the applicant said the drugs belonged to someone else and that he had taken responsibility for owning them to stop everyone else from being punished. The applicant’s recent Detention Records show that on 13 December 2019 the applicant was found with contraband which tested positive for methylamphetamine, on 23 September 2019 a search of the applicant’s room found contraband (suboxone), on 5 August 2019 the applicant was involved in a fight with another detainee and on 1 October 2018 the applicant was abusive to a Detainee Service Officer. Whilst it is hard to ascribe too much weight to incidents that occurred in detention where charges have not gone through the judicial system, the applicant’s recorded behaviour, including incidents involving drugs and violence, do not point to reformation.
The applicant said that if he were released into the community he would work, study and try to stay away from former bad friends who might lead him astray. Further, he said he would look for work if released and that a former boss could help him out. He said that the possibility of being returned to Vietnam was a core reason to change his behaviour.
In light of the evidence, including the applicant’s long history of criminal offences over a period of 24 years (including drug offences, driving offences, property offences and violence) alongside his long-standing drug addiction, it is difficult to see any objective evidence that, if the applicant were to be released back into the Australian community, he would not be at risk of reoffending.
The remarks of the various sentencing judges and their concerns about the applicant reinforce the concerns of the Tribunal as to the likelihood of recidivism. The applicant has ignored both judicial and department warnings in numerous occasions. There is no evidence that the applicant has engaged in any serious counselling nor that he has taken significant steps to ensure that he will have support if he were to return to the community.
Given the evidence, I find that there is a real risk that the applicant will reoffend, and this weighs heavily against a decision to revoke the cancellation of the applicant’s visa. Furthermore, given the applicant’s extensive criminal history and the nature of the offences, I give significant weight to this consideration against revocation of the cancellation decision.
Best interests of minor children in Australia
The applicant has two daughters born in May 2005 and April 2011. He claims to be the primary carer and the financial supporter for his family.
His long-term partner did not appear at the hearing but gave evidence before the previous hearing at the Tribunal that the applicant has a strong bond with his daughters, as well as another child, who she gave evidence was the step-child of the applicant. The applicant also gave evidence that his bond with his daughters and his stepdaughter was equally strong.
In his evidence before the Tribunal, the applicant acknowledged that he had not spent a great deal of time with his children, nor with his stepdaughter, because he had spent a long period of their lives in prison or immigration detention.
The applicant gave evidence that he spoke to all the children three times a week. He first spoke to their mother and then spoke to the children individually. He said they continually asked when he would be released.
He gave evidence that his partner took care of the children physically and financially. She was in receipt of Centrelink benefits and was also employed part-time as a cleaner. He said that the children’s maternal grandmother also assisted with the care of the children, particularly on the weekends.
The applicant said that he missed his children and that he wanted to spend time and take care of them. This is supported by his partner’s evidence at the hearing of the previous Tribunal that she and the children intend to live with the applicant if released.
I find that the applicant has a strong bond with his children and that they are important in his life. It would be a major wrench for the children, including his stepdaughter, if he were to be removed to Vietnam where they would be unlikely to see them often.
I note the applicant did not give much new evidence at the hearing before the Tribunal, but previous evidence provided to another Tribunal was also before the Tribunal on this occasion and provided some assistance particularly in relation to his ongoing relationships with his wife and children. The applicant explained at the hearing that he was still in a committed relationship with his partner and in touch with his children, but that she did not appear before the Tribunal to give evidence on this due to challenges with COVID-19 and her need to take care of the children.
I find that this consideration weighs in favour of revocation and I give it significant weight.
Expectations of the Australian community
As set out by the full court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185, the Tribunal is guided by the direction and the Government’s views as to the expectations of the Australian community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to the applicant’s circumstances or evidence about those expectations.[2]
[2] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] (per Charlesworth J) and [92]-[93],[100][104] per (Stewart J).
This position was further enunciated by Justice Mortimer in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] and [77] where her Honour stated as follows:
[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] ... It was inevitable that this consideration would weigh against revocation: that is what it is intended to do.

The applicant’s extensive and violent criminal history criminal history, his failure to heed judicial or departmental warnings or change his conduct substantially, demonstrate that he does not meet the expectations of the Australian community. This consideration weighs heavily against revocation of the Delegate’s decision.
OTHER CONSIDERATIONS
The strength, nature and duration of ties to Australia
The applicant has lived in Australia since the age of 17 and considers Australia to be his home. The applicant gave evidence at the hearing that he was orphaned at a young age. He spent some years in Thailand before he came to Australia. Although he speaks Vietnamese fluently, his evidence was that he has no familiarity or connection with Vietnam and no family in Vietnam.
All the applicant’s children, including his adult daughter and his stepdaughter, live in Australia, as does his long-term partner. His parents and a maternal aunt are also residents in Australia.
Despite his family connections, much of the applicant’s time in Australia has been spent in prison or in immigration detention unfortunately, due to his long history of criminal offences. This has reduced the applicant’s contact with his family and has limited his capacity to contribute positively to the broader community. There was no evidence before the Tribunal of any strong community links in Australia.
I find this consideration weighs in favour of revocation and I give it moderate weight.
Impediments to removal
The applicant has not spent time in Vietnam since he was approximately 14 years of age, although he has visited Vietnam on one occasion since leaving.
Although the applicant speaks Vietnamese, it is likely that he would have adjustment difficulties in initially establishing a life for himself in Vietnam. He would probably not have the same access to social security nor a similar standard of medical care, although he does not seem to suffer from any particular or diagnosed medical problems at this time.
The applicant’s earnings in Vietnam would likely be less than in Australia, and it is likely that he would find some difficulty in obtaining suitable employment. However, the applicant has demonstrated from his employment history that he can work in a variety of jobs, including as a waiter, a warehouse worker and a construction labourer.
The applicant gave evidence that he would have no place to stay in Vietnam, although he did seem to have aunts who lived in Vietnam.
There may be a slight positive, in that the applicant would be removed from the bad influences which may have contributed to his offending in Australia. He does not have a criminal record in Vietnam.
I find that there are impediments to the applicant being returned to Vietnam. This consideration weighs in favour of revocation and I give it moderate weight.
DECISION
The applicant expressed a great deal of remorse, but unfortunately there was very little evidence of any major steps or commitment to ensure that he would not reoffend.
Having considered all the evidence, I am of the opinion that the applicant’s long history of criminal offences, the seriousness of those offences, his failure to heed warnings and the likelihood of his reoffending outweigh those considerations in his favour.
Accordingly, the correct and preferable decision is to affirm the decision of the delegate.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President.

..................................[sgd]......................................
Associate
Dated: 22 May 2020

Date of hearing: 29 April 2020

Self-represented applicant:

Respondent’s representative:

Mr P. Tran

Mr A. Gerrard

[2020] AATA 1423

22 May 2020

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