Trang and Minister for Home Affairs (Migration)

[2019] AATA 4087

Trang and Minister for Home Affairs (Migration) [2019] AATA 4087 (1 October 2019)

Division:GENERAL DIVISION

File Number:           2019/4189

Re:Phuoc Dat Trang

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Boyle

Date:1 October 2019  

Place:Perth

The decision under review is affirmed.

..........................[sgd]..............................................

Deputy President Boyle

CATCHWORDS

MIGRATION – Migration Act 1958 (Cth) – mandatory visa cancellation – s 501CA(4) – substantial criminal record – is there another reason why the cancellation decision should be revoked? – Direction 79 – protection of the Australian community – nature and seriousness of the conduct – the risk to the Australian community – nature of harm – expectations of the Australian community – non-refoulement obligations – necessity to consider protection obligations – strength, nature and duration of ties – extent of impediments if removed – decision affirmed

LEGISLATION

Migration Act 1958 (Cth) – ss 499, 499(1), 499(2A), 500(1)(ba), 501(3A), 501(6), 501(7), 501(7A), 501CA, 501CA(4)

CASES

AXT19 v Minister for Home Affairs [2019] FCA 1423

CZCV and Minister for Home Affairs [2019] AATA 91
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
Lansdowne and Minister for Home Affairs [2019] AATA 2448
Le v Minister for Immigration and Border Protection [2015] FCA 1473; (2015) 237 FCR 516
LZTW and Minister for Home Affairs [2019] AATA 779
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Omar v Minister for Home Affairs [2019] FCA 279
Pinder and Minister for Home Affairs [2019] AATA 1398
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Subasinghe and Minister for Home Affairs [2019] AATA 751
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
VPKY and Minister for Home Affairs [2019] AATA 352
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Home Affairs, 28 February 2019) – paras 2, 6.1, 6.2, 6.3, 7(1)(b), 8, 8(3), 8(4), 8(5), 13(2), 13.1, 13.1.1, 13.1.2, 13.3, 14, 14(1), 14.2, 14.5

REASONS FOR DECISION

Deputy President Boyle

1 October 2019

THE APPLICATION

1. The applicant seeks the review of a decision of a delegate of the respondent made on

   
   

   5 July 2019 under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the mandatory cancellation of the applicant’s Class BF Transitional (permanent) visa
   (the visa). The applicant’s visa had been cancelled pursuant to s 501(3A) of the Act because the applicant did not pass the character test by reason of his substantial criminal record and because he was serving a term of imprisonment for a crime against a law of the Commonwealth or a state.

2. The application for review is made in accordance with s 500(1)(ba) of the Act which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of decisions of a delegate of the Minister under s 501CA(4) of the Act not to revoke a decision to cancel a visa. The Tribunal is satisfied that the application has been made in accordance with the relevant legislation and that the Tribunal has the jurisdiction to review the decision.

   THE ISSUES

3. The issue is whether the Tribunal should exercise the power in s 501CA(4) of the Act in favour of revoking the mandatory cancellation of the visa.

4. In addressing the above issue, the Tribunal must determine:

   (a)whether the applicant passes the character test (as defined in s 501(6) of the Act); and

   (b)if he does not, whether the Tribunal is satisfied that there is another reason why the cancellation decision should be revoked.

   BACKGROUND

5. The applicant arrived in Australia in 1990 at the age of 19 and has resided here ever since. The applicant was born in Cambodia in June 1970. Both his parents were Vietnamese citizens and the applicant is a citizen of Vietnam (R3: a copy of the applicant’s birth certificate (and an English translation) issued by the Socialist Republic of Vietnam which nominates the applicant’s nationality as Vietnamese).

6. The applicant’s first conviction was in 1992 for driving offences committed in 1991. He has 59 convictions for a range of offences including the following offences for which the applicant has received sentences of imprisonment:[1]

   (a)On 20 April 1999 the applicant received convictions for assault occasioning bodily harm and aggravated burglary (habitation) with intent and received concurrent terms of imprisonment of two years.

   (b)On 29 April 2004 the applicant received convictions for a range of offences including explosion cause damage to property and escape legal custody and received a total term of imprisonment of four years.

   (c)On 6 August 2009 the applicant received convictions for a range of drug offences including possession of prohibited drugs with intent to sell (heroin) and sentenced (after appeal) to a total term of imprisonment of three years and four months.

   (d)On 5 September 2014 the applicant was convicted of possession of a prohibited drug with intent to sell (methylamphetamine) and sentenced to a term of imprisonment of three years and nine months.

   [1] R1, G5.

7. The applicant’s complete criminal history is as follows:

Court	Court Date	Offence	Offence Date	Penalty imposed
Moora Court of Petty Sessions	22-01-1992	No ‘P’ Plates; Road Traffic (Drivers’ Licences) Regulations 1975; s 13(1);  Probationary MDL	30-08-1991	Fined: $50.00
		Speeding		Fined: $200.00 Licenced disqualified for 3 months
Perth Court of Petty Sessions	26-10-1994	Possess smoking implement	Fined: $50.00
	14-11-1994	Possess smoking implement	Fined: $50.00
	03-01-1995	No Motor Drivers Licence	Fined: $400.00
	01-09-1995	Traffic - Demerit Suspension	Demerit point suspension MDL disqualified 3 months
	03-01-1996	Receiving	29-07-1995	Fined: $50.00
		Exceed Speed Limit		Fined: $75.00
Joondalup Court of Petty Sessions	05-06-1996	Refuse to Supply Or Provide False Name and Address	07-05-1996	Fined: $125.00
		No Motor Drivers Licence - Under Suspensions		Fined: $200.00 Licence disqualified for 9 months cumulative
	22-01-1997	Possess Driver’s Licence Calculated to Deceive	07-09-1995	Fined: $200.00
		No Motor Drivers Licence - Under Suspension		Fined: $200.00 Licence disqualified for 9 months cumulative
Perth Court of Petty Sessions	14-03-1997	On premises/curtilage Without Lawful Excuse	Fined $25.00
Carnarvon Court of Petty Sessions	01-10-1997	Driving Under the Influence	25-07-1997	Fined: $500.00 Licence disqualified for 6 months concurrent
		No Motor Drivers Licence - Under Suspension		Fined: $500.00 Licence disqualified for 9 months cumulative
Perth Court of Petty Sessions	06-10-1997	Possess a quantity of Heroin	25-06-1997	Fined: $200.00
	20-01-1998	Dangerous Driving		Fined: $500.00 Licence disqualified for 12 months concurrent
		No Motor Drivers Licence		Imprisonment for 6 months sentence suspended sentence for 15 months Licence disqualified for 2 years cumulative
Perth Supreme Court of Western Australia	20-04-1999	Aggravated Burglary with intent (habitation)	Imprisonment for 2 years.
		Assault occasioning bodily harm	Imprisonment for 2 years concurrent
Perth Court of Petty Sessions	28-05-1999	Possess prohibited drug	On each charge: Imprisonment for 4 months
		Prohibited use of Drugs
Carnarvon Court of Petty Sessions	30-10-2000	No Motor Drivers Licence	27-10-2000	Fined: $150.00
		Fail to Stop when Called Upon		Fined: $200.00
Joondalup Court of Petty Sessions	27-03-2002	No Motor Drivers Licence	23-03-2002	Fined: $80.00
		Unlicensed Vehicle	23-03-2002	Fined: $260.00
Midland Court of Petty Sessions	05-04-2002	Attempted Forgery	Imprisonment for 3 months 1 day concurrent. Sentence suspended for 16 months
Perth Court of Petty Sessions	20-02-2003	No Motor Drivers Licence	13-04-2002	Fined: $200.00
	15-04-2003	No Motor Drivers Licence - Under Fines Suspension	08-03-2003	Fined: $400.00 Licence disqualified for 12 months cumulative
Perth District Court of Western Australia	29-04-2004	Drive vehicle contrary to compliance notice	04-08-2003	Fined: $500.00
		Fail to Stop when Called Upon		Fined: $200.00
		Refuse to Supply or Provide False Name and Address		Fined: $200.00
		No Motor Drivers Licence - Under Suspension		Imprisonment for 6 months [Total of 4 years from 28 November 2003] Licence disqualified for 2 years cumulative
		On premises/curtilage without lawful excuse		Imprisonment for 2 months concurrent from 28 November 2003
		Explosion cause damage to property		Imprisonment for 3 years from 28 November 2003
		Escape legal custody		Imprisonment for 6 months cumulative from 28 November 2003
		Breach of bail (3 charges)		3 months imprisonment concurrent for each charge from 28 November 2003
Perth Magistrates Court	21-12-2006	Obstructing public officers	26-09-2006	Fined: $500.00 (global)
		Give False Personal Details to Police		Fined: $500.00 (global)
Perth District Court of Western Australia	06-08-2009	Possession of Prohibited Drugs with Intent to Sell or Supply (Heroin)	Appeal allowed: Sentence set aside: Total: 3 years and 4 months imprisonment from 31 July 2009
		Possess stolen or unlawfully obtained property
		Possess a Prohibited Drug (Methylamphetamine)
		Possess a Prohibited Drug (MDMA)
		Possess a Prohibited Drug (Heroin)
		Possess a Prohibited Drug (Heroin)
Perth Magistrates Court	22-09-2009	No authority to Drive -  Fines Suspension	09-07-2009	Fined: $800.00
Midland Magistrates Court	21-10-2009	No authority to Drive - Fines Suspension	30-06-2009	Fined: $200.00
	22-10-2009	Possessing stolen or unlawfully obtained property	Fined: $500.00
		Possessed a prohibited weapon	Fined: $400.00
	25-11-2009	No Authority to Drive - Fines Suspension	09-07-2009	Fined: $400.00
Perth Magistrates Court	14-02-2014	Possessed a controlled weapon	08-01-2014	Fined: $600.00
	25-07-2014	Drove a vehicle with number plate not issued to that vehicle	29-04-2014	Fined: $200.00
District Court of Australia (Perth)	05-09-2014	Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine)	21-03-2013	Imprisonment for 3 years 9 months commencing 31 July 2014

1. On 31 August 2016 the applicant’s visa was cancelled under s 501(3A) of the Act.

   
   

   This was on the basis that the applicant had a substantial criminal record and was at that time serving a sentence of imprisonment.

2. Following the cancellation the applicant was invited to, and made, representations about revocation of the decision to cancel his visa. The applicant’s representations were summarised in the delegate’s decision as follows (R1, G3 at 12) as follows:

   ·That his long-term de facto partner and four adult step-children reside in Australia and would miss him if he were removed.

   ·

   That his mother and sister reside in Australia; his mother has numerous health problems and his sister requires his assistance in caring for her.

   
   

   They would suffer hardship if he is removed from Australia.

   ·That he fears for his life in Vietnam, having left that country as a refugee and thereby attracting the adverse attention of the government.

   ·That he has no family or friends in Vietnam and doesn’t know how he would survive there.

   ·That he has taken steps towards rehabilitation; he completed a number of therapeutic courses in prison and upon his release from custody he will reside for 12 months in Shalom House rehabilitation centre.

   ·That he has matured, and for the above reasons, he will not re-offend.

3. On 5 July 2019 the delegate of the respondent made the decision under s 501CA(4) of the Act not to revoke the cancellation of the visa.

   THE HEARING

4. The application was heard on 23 and 24 September 2019. The applicant was represented by Mr Glenister and the respondent was represented by Mr Gerrard. The applicant was examined and gave evidence through an interpreter as did the applicant’s mother, sister and Ms Xuan.

5. Oral evidence was given at the hearing by:

   ·the Applicant;

   ·Peter Lyndon-James;

   ·Nguyen Thi Nguyen ;

   ·Phuoc Nga Trang;

   ·Xuan Thi Vo;

   ·Dr James McCue; and

   ·Mr Ahn Tuan Phan; and

   ·[omitted for publication] (Church Pastor).

6. The following documents were tendered into evidence at the hearing:

   ·G-Documents (Exhibit R1);

   ·Supplementary G-Documents (Exhibit R2);

   ·Applicant’s Birth Certificate (Exhibit R3);

   ·DFAT Country Report dated 21 June 2017 (Exhibit R4);

   ·Witness Statement of Peter Lyndon-James dated 30 August 2019 (Exhibit A1);

   ·Witness Statement of Nguyen Thi Nguyen dated 4 September 2019 (Exhibit A2);

   ·Witness Statement of Phuoc Nga Trang dated 4 September 2019 (Exhibit A3);

   ·Witness Statement Xuan Thi Vo dated 30 August 2019 (Exhibit A4);

   ·Psychological Report of Dr James McCue dated 3 September 2019 (Exhibit A5);

   ·Witness Statement of Anh Tuan Phan dated 3 September 2019 (Exhibit A6); and

   ·Witness Statement of [church pastor] dated 4 September 2019 (Exhibit A7).

7. In addition to the witness statements and letters separately tendered as identified above, the G documents (R1) and Supplementary G documents (R2) contained relevant material, in particular the applicant’s request for revocation of the cancellation of the visa (R1, G11) and the applicant’s personal circumstances form (R1, G12). At pages 98 and 99 of R1 there is a hand-written statement addressed to ‘The Department of Immigration and Border Protection’ apparently signed by the applicant which, by virtue of its contents, appears to be a statement provided by the applicant in response to the invitation to make representations about revocation of the decision to cancel his visa (see [9] above).

8. Also included in the G documents (R1) were letters addressed to the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) from Eapon Carlose, the applicant’s then lawyer, dated 9 November 2004 (R1, G21) and an undated letter date stamped as received on 24 March 2006 headed ‘Re: Notice of Intention to cancel Visa dated 16 December 2005’ which refers to Mr Carlose’s previous ‘submissions in my letter dated 9 December 2004’ (R1, G22). There is no letter from Mr Carlose dated 9 December 2004 included in the G documents, just the letter dated 9 November 2004. Both letters make representations as to why the applicant’s visa should not be cancelled. Further there is no Notice of Intention to cancel Visa dated 16 December 2005 included in the G documents or the Supplementary G documents, however, given the references to such a notice the Tribunal assumes that a notice dated 16 December 2005 was issued.

   LEGISLATIVE FRAMEWORK

9. Section 501(3A) of the Act provides that:

   (3A) The Minister must cancel a visa that has been granted to a person if:

   (a)the Minister is satisfied that the person does not pass the character test because of the operation of: 

   (i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

   (ii)    …; and

   (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

10. Section 501(6) of the Act provides that:

    (6) For the purposes of this section, a person does not pass the character test if:

    (a) the person has a substantial criminal record (as defined by subsection (7)); or...

    (Original emphasis.)

11. A ‘substantial criminal record’ is defined by s 501(7) of the Act as follows:

    (7) For the purposes of the character test, a person has a substantial criminal record if:

    (a) the person has been sentenced to death; or

    (b) the person has been sentenced to imprisonment for life; or

    (c) the person has been sentenced to a term of imprisonment of 12 months or more; or

    (d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more...

    (Original emphasis.)

12. Section 501(7A) of the Act provides clarification for when a person is sentenced to concurrent sentences of imprisonment:

    (7A) For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.

13. Section 501CA of the Act further provides:

    (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

    …

    (4)The Minister may revoke the original decision if:

    (a) the person makes representations in accordance with the invitation; and

    (b) the Minister is satisfied:

    (i)      that the person passes the character test (as defined by section 501); or

    (ii)      that there is another reason why the original decision should be revoked.

    (Original emphasis.)

    Ministerial Direction no. 79

14. Section 499(1) of the Act provides that the Minister may give written directions as follows:

    (1)The Minister may give written directions to a person or body having functions or powers under this Act ... if the directions are about:

    (a)the performance of those functions; or

    (b)the exercise of those powers.

15. Section 499(2A) of the Act states that ‘[a] person or body must comply with a direction under subsection (1).’ This Tribunal is such a person or body.

16. On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Act, named ‘Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under
    s 501CA’ (Direction 79). The commencement date for operation of Direction 79 was
    28 February 2019 (Paragraph 2 of Section 1 of Direction 79).

17. Paragraph 6.1 sets out the objective of Direction 79. Paragraph 6.1(3) relevantly provides:

    Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a)

    
    

    (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

18. Paragraph 6.2 of Direction 79 provides general guidance as follows:

    (1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

    (2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

    (3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

1. Paragraph 6.3 of Direction 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4) of the Act, including the Tribunal. They are:

   (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

   (2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

   (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against 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.

   (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life,

   
   

   or from a very young age.

   (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

   (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

2. Paragraph 7(1)(b) of Direction 79 provides that, informed by the principles set out in paragraph 6.3 of Direction 79, the decision-maker (in this case the Tribunal) must take into account the considerations in Part C of Direction 79 in order to determine whether the mandatory cancellation of the visa will be revoked.

3. Paragraph 13(2), which is in Part C of Direction 79, provides:

   (2)   In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

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

   b) The best interests of minor children in Australia;

   c) Expectations of the Australian Community.

4. Paragraph 14 of Direction 79 which is also in Part C provides:

   (1)   In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

   a)    International non-refoulement obligations;

   b)    Strength, nature and duration of ties;

   c)    Impact on Australian business interests;

   d)    Impact on victims;

   e) Extent of impediments if removed

5. Further guidance as to how a decision-maker is to apply the considerations in Direction 79 can be found in paragraph 8 of Direction 79 which provides:

   (1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder,

   
   

   or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

   (2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

   (3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

   (4) Primary considerations should generally be given greater weight than the other considerations.

   (5) One or more primary considerations may outweigh other primary considerations.

   DOES THE APPLICANT PASS THE CHARACTER TEST?

6. Failure of the character test arises as a matter of law: Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666, 685 at [63]. The character test is defined in s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if the person has ‘a substantial criminal record’. This phrase, in turn is defined in s 501(7)(c) which provides that a person will have a substantial criminal record if they have ‘been sentenced to a term of imprisonment of 12 months or more’. That is clearly so in the applicant’s case.

7. The applicant does not pass the character test. The applicant cannot rely on
   s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
   The issue therefore is whether the discretion under s 501CA(4)(b)(ii) should be exercised.
   In other words, is there another reason why the original decision should be revoked?

   PRIMARY CONSIDERATIONS

   First primary consideration: Protection of the Australian community from criminal or other serious conduct (13(2)(a))

8. Paragraph 13.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:

   (1) ...should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non­citizens in the expectation that they are,

   
   

   and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

   (2) Decision-makers should also give consideration to:

   a) The nature and seriousness of the non-citizen’s conduct to date; and

   b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

   Nature and seriousness of the conduct (13.1(2)(a))

9. Paragraph 13.1.1(1) of Direction 79 provides:

   (1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

   a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

   b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

   c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

   d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

   e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

   f)The cumulative effect of repeated offending;

   g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

   h) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

   i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

10. On any measure, the applicant has a serious criminal record. As the applicant concedes (applicant’s SFIC para. 24) between 22 January 1992 and 5 September 2014 he had received 59 convictions for criminal and traffic offences. The applicant submits,

    
    

    citing Dr McCue’s report (A5), that  ‘[a]ll of Mr Trang’s offences appear to have been motivated, or significantly influenced, by his frequent and chronic pattern of illicit drug use’. That may be the case, however, insofar as the Tribunal must consider the applicant’s criminal offending, the fact that he may have been motivated or influenced by his drug use or need for drugs does not diminish the seriousness of his criminal record for the purposes of this consideration.

11. The respondent points to the comments made by the sentencing judges as indicative of the seriousness of the applicant’s offending. In sentencing the applicant in relation to his offences of aggravated burglary and assault occasioning bodily harm on 20 April 1999, Miller J stated:[2]

    … The crimes of which you have been convicted are extremely serious examples of their kind.

    …

    In sentencing you I take into account these matters; firstly, the gravity of the offences. The offence of aggravated burglary has become extremely prevalent in our society. This offence is at the higher end of the range of seriousness for an offence of its kind, a large group of youths assembling outside the duplex of the victims, with three of them at least making immediate entry, two of whom were armed with knives. Others who were outside were armed with sticks.

    I accept that you did not know that any of those who entered were armed with knives, and the jury verdict certainly reflects this. However, you did go to the duplex in company with others, in pursuance of a plan to assault those within the premises, and your presence would undoubtedly have encouraged the others to do what they did.

    [2] R1, G6 at 30.

12. Miller J outlined the circumstances of the applicant’s offending as follows:[3]

    [3] R1, G6 at 27-28.

    The facts were these. The evidence led at trial established that on the night of

    
    

    2 February 1998 you were recruited from the [omitted] pool hall in [omitted] to go to a fight. It was your co-accused [omitted] who was responsible for so recruiting you. You willingly went with a group from the pool hall, who joined a group already outside the pool hall, to a venue where this fight was to occur.

    The duplex was pointed out to you in [omitted] whilst you sat in the vehicle in which you had travelled to that address. That vehicle was then parked in the carpark of a nearby group of flats.

    …

    It is clear that you saw the deceased [the victim] run from the unit, then seriously injured. You played no part in attacking him and left the scene with others. However, you were there as a member of a group of persons who had formed a common intention to prosecute an unlawful purpose; namely, to go to [omitted] and assault the occupants therein. The jury’s verdict indicates that it was satisfied beyond reasonable doubt that you were part of that plan and it was a probable consequence of the plan that [the victim] would be unlawfully assaulted and thereby occasioned bodily harm.

    As to your criminal responsibility, it is by reason of the provisions of section 8 of the Criminal Code you were a party to the offences to which you have been convicted. You were in what the crown prosecutor referred to as the outer ring of those involved in the events of the night in question. You were not centrally involved in the discussions as to how the attack was to be carried out, but by making up the numbers as you did you were an important player in the events that occurred.

13. The respondent says that the applicant’s offending on that occasion should also be viewed in light of the fact that a person died in the attack. The applicant points out that the applicant was acquitted of murder. Miller J notes in his sentencing remarks that:

    On 4 February 1999 you stood trial on an indictment alleging counts of aggravated burglary, murder, and with intent to do grievous bodily harm doing grievous bodily harm. The latter count was the subject of a verdict of not guilty by direction, leaving an alternative count of unlawful assault occasioning bodily harm

    On 14 April 1999 the jury convicted you of aggravated burglary with circumstances of aggravation being that you were in company with others and ought to have known that there was another person or persons in the place in question, and you were convicted of unlawful assault occasioning bodily harm. You were acquitted of the count of murder.

14. In considering this conviction the Tribunal has not, as suggested by the respondent, treated the offending as more serious than would otherwise be the case because someone died in the attack in which the applicant was involved. The circumstances of the attack and the applicant’s involvement in what was a pre-meditated and calculated mass attack on someone’s home are in themselves serious. The applicant was, however, acquitted of the more serious charges, including murder, and it would, in the Tribunal’s view, be inappropriate to elevate the seriousness of the applicant’s offending by reference to conduct of others involved in the attack. As Miller J put it, the applicant was ‘…in the outer ring of those involved…’ (R1, G6 at 28).

15. The Tribunal notes Miller J’s comment that:[4]

    …You have a record of convictions for traffic related matters and some minor drug offences and in relation to your last conviction for driving without a licence you were given a suspended sentence of imprisonment. The conviction was on

    
    

    20 January 1998 and the sentence you received was 6 months’ imprisonment suspended for a period of 15 months. You were, therefore, on a suspended sentence at the time of commission of the offences in question…

    [4] R1, G6 at 28.

16. As a consequence of these convictions a deportation order in respect of the applicant was made on 10 November 1999. On 11 August 2000, however, the deportation order was revoked by Deputy President Forrest. In the reasons for that decision, Deputy President Forrest stated:[5]

    [D]espite the seriousness of your offending, the risk of your reoffending is low and you do not represent an unacceptable threat to the community.

    [5] R2, SG1 at 177.

17. The applicant continued to offend. On 29 April 2004 the applicant was sentenced to a term of four years’ imprisonment in respect of a range of offences committed in the period from August to November 2003 (see [7] above). In sentencing the applicant for those offences, Jackson DCJ noted that the applicant had ‘a very bad record’ and ‘a complete disregard for the orders of the court’.[6]

    [6] R1, G7 at 49.

18. The applicant continued to offend. On 6 August 2009 the applicant received an aggregate sentence of 4 years’ imprisonment imposed in respect of a number of drug offences Groves DCJ in sentencing observed that ‘these are very serious offences’ (R1, G8 at 53) before noting:[7]

    [7] R1, G8 at 53-55.

    Drugs in the community are the cause of much crime in our community.

    Those involved with illicit or illegal drugs commit crimes to support their habits. They disseminate drugs to others who become addicted to them. They in turn may commit crimes to support their habit. People’s lives are ruined by drugs in our community and family lives are ruined. These are just some of the consequences of illegal drugs in the community. That is why there are severe penalties for those who engage with drugs and with the sale or supply of drugs

    …

    Engaging in the distribution of drugs into the community is a serious offence.

    
    

    The gaining of profit from the trade in drugs simply makes the offending worse.

    Heroin, methylamphetamine and MDMA are all regarded at the higher range of drug types. The major sentencing consideration is to stop people dealing in drugs. The trouble is that you were exposing other people in the community to hard drugs, drugs ruining other people’s lives just as you have ruined and wasted your own life by reason of your addiction to these drugs.

    I must consider all the options available in terms of the Sentencing Act in considering what to do with you. In my view, only a sentence of imprisonment is appropriate to reflect the seriousness of this offending.

19. Groves DCJ also commented in sentencing (R1, G8 at 54) that:

    In summary, the pre-sentence report tells me that you have a minimising attitude towards your offending. You indicated a lack of responsibility for your actions and expressed little regret for your current circumstances.

20. As a consequence of his offending, the applicant was considered by the Department for visa cancellation. However, on 1 October 2010 the applicant was notified that a decision had been made not to cancel his visa.[8] That notice contained the following formal warning:

    Mr Trang has committed crimes frequently whilst in Australia. On this occasion the decision to not cancel his visa was very close. Any further offending is very likely to lead to further consideration of his visa but with little sympathy for his failure to grasp this opportunity.

    (Original emphasis.)

    [8] R1, G23.

21. The applicant signed an acknowledgement of receipt of this notice on 14 October 2010.[9]

    [9] R1, G24.

22. The applicant continued to offend and on 5 September 2014 he was sentenced to another lengthy prison term for drug offences committed with his partner.[10] In sentencing Stavrianou DCJ said:[11]

    [10] R1, G9.

    [11] R1, G9 at 60 and 63.

    (Addressing Ms X, the applicant’s co-accused and then partner)

    There were also prohibited drugs located in the bedroom, different quantities located in the bedroom as well as some smoking implements. The police also located a number of mobile phones and I accept that the possession of the mobile telephones can be indicia of drug dealing. There’s no dispute in this matter that you and Mr Trang were user/dealers and that’s the basis upon which I intend to deal with you,

    
    

    that you’re a user/dealer.

    …

    In relation to you, Mr Trang, you’ve also been convicted of one offence after trial that on 21 March 2013 at [omitted], you and … [co-accused/partner] had in your possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.

    The gravity and seriousness of your offending is reflected in the maximum penalty for the offence that was committed. The statutory maximum penalty for an offence contrary to section 61A of the Misuse of Drugs Act is a fine of $100,000 and/or

    
    

    25 years’ imprisonment.

    …

    [Y]ou had joint possession with [co-accused/partner] of 47 and a half grams of methylamphetamine. It was of a relatively high purity. It was 47 per cent. There was telephone intercept material located.

    The street value of the drug was about $20,000 if sold as a single item.

    
    

    The methylamphetamine was located in the freezer chest. It was in a Clipseal bag which was inside a brown paper bag.

1. His Honour went on the comment:[12]

   I’ve already outlined the nature of methylamphetamine in my remarks to …

   
   [co-accused/partner].

   Methylamphetamine is at the top of the tree in terms of prohibited drugs.

   [12] R1, G9 at 65.

2. The applicant was sentenced to a term imprisonment of three years and nine months.

3. In his SFIC, the respondent pointed to the significant number of drug-related offences committed by the applicant and submits that it is patently clear from the sentencing remarks that the courts have found the applicant’s offences serious.

4. The respondent also notes, in relation to paragraph 13.1.1(h) of Direction 79 that the applicant was formally warned on one occasion and also effectively received an earlier warning via the deportation proceeding before Deputy President Forrest in the Tribunal in 2000.[13]

   [13] R2, SG1.

5. In his extempore decision handed down on 11 August 2000, Deputy President Forrest said to the applicant:[14]

   It was your evidence that you will not re-offend; that you have had time to think about your convictions while in prison and are determined to make a fresh start and be a responsible member of the community. I am acutely aware that assurances of reform are easily made where self-interest may influence a response however I accept that you have the support of your mother and sister.

   …

   Having listened to your evidence I am satisfied that your expression of remorse should be accepted as a genuine indication of a determination not to re-offend.

   
   

   I am prepared to accept that your prospects of rehabilitation appear to be good and with your employment opportunity that you have are an acceptable risk to the community of not re-offending.

   [14] R2, SG1 at 176-177.

6. It emerged at the hearing of the present application that there may have been further instances where the applicant was made aware of the consequences of offending on his visa. By letter dated 9 November 2004 (R1, G21), lawyer Eapon Carlose wrote to the DIMIA in response to a notice of intention to cancel the visa. In that letter the applicant’s lawyer advised:

   10. Having said that, my instructions are to promise and assure you that there is absolutely no likelihood of him re-offending. My client is remorseful

   
   

   (he pleaded guilty to the charges he recently faced in court) and fully understands the seriousness and gravity of his misdeeds.

   11. The time he has spent in prison and the threat of deportation has made him realise that, if given a chance to remain in Australia and he re-offends, deportation will be inevitable – a consequence he was not alive to previously.

7. There was a second letter from Eapon Carlose in 2006 (undated but date stamped as received by DIMIA on 24 March 2016) which referred to a ‘Notice of Intention to cancel Visa dated 16 December 2015’.[15] In that letter Mr Carlose advised:[16]

   7. …there may be a need for general deterrence to other non-citizens,

   
   

   my instructions are that my client intends to leave the past behind and make a fresh start. He repeats his assurance and undertaking that, on his release, he will commence and continue being a law-abiding member of the community…

   8. I mentioned in my earlier submission that my client has strong prospects of employment. I am instructed that he has been assured by a friend of steady regular employment on release.

   [15] R1, G22.

   [16] R1, G22 at 109.

8. The respondent submits (respondent’s SFIC) that:

   29. Taking into account the nature, frequency and pattern of the offences, their cumulative effect on the community, the fact that the applicant had been warned previously and still committed offences, the sentences imposed, the comments of the sentencing Judges, and the specific guidance and principles set out in Direction No 79, the respondent contends that the nature and seriousness of the applicant’s conduct is a significant consideration that weighs heavily against revocation of the decision to cancel the applicant’s visa.

9. In respect of this consideration, the applicant (applicant’s SFIC) says as follows:

   31. It is conceded that 13.1.1(1)(d)-(f) and (h), militate in favour of the view that the offences committed by Mr Trang are to be viewed seriously. He has received a number of separate sentences of imprisonment and spent a significant amount of time in custody and his history of offending has been relatively consistent over a long period and cannot be said to be decreasing in seriousness.

10. In respect of considerations identified in subparagraphs (a)-(c) of paragraph 13.1.1(1),

    
    

    the applicant submits that the offences committed by the applicant do not fall into the types of offences mentioned in those subparagraphs which must be viewed as very serious. The applicant does concede that the conviction for assault occasioning bodily harm does ‘clearly fall’ within the category of offences identified in those subparagraphs, presumably subparagraph (a), being a crime of violence. In relation to that offence, the applicant contends that:

    Given the factual scenario, which included that Mr Trang did not personally assault anyone, this is certainly an assault down the very lowest end of the scale in terms of violence. There is little if any evidence that Mr Trang has any tendency to offend in the manner contemplated by these factors.

11. The respondent points out that the applicant has also been convicted of carrying prohibited weapons being a samurai sword and a cattle prod. Contrary to the applicant’s assertion that there is little, if any, evidence that the applicant has any tendency to offend in a violent manner, the Tribunal considers that his willingness to be involved in the attack in 1999 and in carrying prohibited weapons indicates a willingness to use violence. Further, the Tribunal considers the causing of an explosion, the firebombing of a residential property, for which he was convicted in 2004 to be a violent offence.

12. Further, while the applicant does not specifically state it to be his argument that unless an offence falls within one of the categories in subparagraphs 13.1.1(1) (a) to (c) of Direction 79 it cannot be treated as ‘very serious’, insofar as that argument is suggested by the submissions made by the applicant, the Tribunal rejects that argument. Noting that it is only subparagraphs (a) and (b) which require offences of the types described therein to be ‘viewed very seriously’, there is nothing in the wording or intent of Direction 79 that limits how the seriousness of offending is to be rated or what adjectival test is to be applied. Clearly offending of any type, if the nature and circumstances of the offending warrants it, can be treated as very serious. An obvious example would be an offence committed against a vulnerable member of the community, such as an elderly person, which, under subparagraph 13.1.1(1)(c) must be treated as ‘serious’. That is not to say, however, that in certain cases offences against a vulnerable person, while not involving violence or being of a sexual nature, cannot be treated as very serious.

13. In the present case the Tribunal is of the view that the firebombing of a residential property, even if it is not to be treated as a crime involving violence, should be treated as a very serious offence. Similarly the dealing of drugs, in particular methylamphetamine and heroin, over an extended period of time should be treated as very serious offending.

14. The factors indicating that it is appropriate to treat the applicant’s offending as being very serious are:

    ·the sentences imposed by the courts (Direction 79 para. 13 1.1.(1)(d));

    ·the frequency of the applicant’s offending: 59 convictions in 22 years and the trend of increasing seriousness (para. 13.1.1(1)(e));

    ·the cumulative effect of the applicant’s repeat offending (para. 13.1.1.(1)(f)); and

    ·

    the fact that the applicant had been formally warned of the consequences of

    
    

    re-offending in relation to his migration status and had otherwise been made aware of the consequences of reoffending (see [51]-[54] above) (para. 13.1.1.(1)(h)).

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1(2)(b))

15. Paragraph 13.1.2 of Direction 79 provides:

    (1)   In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

    a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

16. Senior Member Dr M Evans in CZCV and Minister for Home Affairs [2019] AATA 91 (CZCV) summarised the task for the Tribunal as follows:

    56. ... the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice … (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]):

    An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.

    57.   In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “...there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.

17. The Tribunal agrees with and adopts the approach taken by Senior Member Dr M Evans in the above paragraphs (see also LZTW and Minister for Home Affairs [2019] AATA 779 and Subasinghe and Minister for Home Affairs [2019] AATA 751).

    Nature of harm to individuals or the Australian community (13.1.2(1)(a))

18. Applying paragraph 13.1.2(1)(a) of Direction 79, the harm that would be caused if the applicant were to repeat his offending behaviour, in particular his drug dealing, is obvious and serious. The Tribunal adopts Groves DCJ’s observation cited at [43] above that:[17]

    …exposing other people in the community to hard drugs, drugs ruining other people’s lives just as you have ruined and wasted your own life by reason of your addiction to these drugs.

    and agrees with Stavrianou DCJ’s observation cited at [48] above that:

    Methylamphetamine is at the top of the tree in terms of prohibited drugs.

    [17] R1, G8 at 55.

19. A very thorough and useful analysis of the harm that is caused to individuals and to the community by drugs, in particular methylamphetamine, is contained in Senior Member Groom’s decision in VPKY and Minister for Home Affairs [2019] AATA 352 at [18]-[20].

20. Member Eteuati in Lansdowne and Minister for Home Affairs [2019] AATA 2448 at [107]-[109] observed:

    107.The deleterious effects of drug trafficking on the community are well-known and often stated. Australia’s National Drug Strategy 2017-2026, referred to by the Respondent, notes that:

    “Over the last five years there has been an increase in the availability and purity of methamphetamine... As a consequence, states and territories are reporting an increase in the harms associated with its use including increased presentations to drug treatment services, ambulance attendances and presentations/admissions to Australian public hospitals.”

    108. In Ngo v The Queen [2017] WASCA 3, the Court of Appeal of the Supreme Court of Western Australia (Buss P with whom Mazza JA agreed) stated that the victim of trafficking or attempted trafficking in illicit drugs was the Australian community generally and that:

    “The illicit drug trade is a scourge. It inflicts very significant damage on the people who consume the drugs. Also, the deleterious effects of illicit drug consumption extend to the families, friends and associates of the consumers and society generally.”

    109. The Respondent in his written submissions referred to the Tribunal’s decision in SCJD and Minister for Home Affairs (Migration) [2018] AATA 4020 (“SCJD”). In SCJD, Senior Member Cameron stated the following in relation to the harmful effects of drug trafficking at [80] to [83]:

    “The seriousness of drug trafficking is well known. It has been commented on by several of the trial judges before whom the Applicant has come.

    The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person’s drug dependency. There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.

    In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.

    There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.”

    (Footnotes omitted.)

21. Counsel for the applicant argued in closing that the harm that would be caused to the community and to individuals in the community should be viewed in light of the fact that, even if the applicant were to be removed from the community, people would still be able to purchase drugs from other dealers. The Tribunal rejects that argument. The fact that those to whom the applicant supplied drugs in the past may be able to purchase drugs from another dealer (in relation to which there was no evidence) is not the relevant consideration. Paragraph 13.1.2(1)(a) of Direction 79 requires the decision-maker to consider ‘the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct’, not to consider whether harm would be suffered by the community or individuals in any event if the applicant were not allowed back into the community.

22. The Tribunal finds that the harm to individuals or the Australian community if the applicant were to re-offend in the nature of his previous criminal offending would be significant.

    The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (13.1.2(1)(b))

23. The applicant submits that:[18]

    34. In considering the likelihood of Mr Trang reoffending the Tribunal must take into account:

    a. Information and evidence from independent and authoritative sources;

    b. Evidence of rehabilitation; and

    c. The duration of Mr Trang’s intended stay.

    [18] Applicant’s SFIC para. 34.

24. The applicant identifies the information and evidence from independent and authoritative sources as being:[19]

    (a)His criminal history;

    (b)Sentencing remarks of Stavrianou DCJ; and

    (c)Psychological report from Dr McCue.

    [19] Applicant’s SFIC para. 35.

25. In relation to Stavrianou DCJ’s sentencing comments, the applicant says that his Honour noted that Mr Trang seemed to be ‘developing some insight in relation to [his] offending’ (R1, G9 at 63-4) and that he had ‘some prospect of rehabilitation’.[20] His Honour also noted that the applicant attributed his past offending to illicit substance use, which his Honour accepted, and that he wanted to engage in programmatic intervention for his substance abuse issues.[21]

    [20] R1, G9 at 64.

    [21] R1, G9 at 64.

26. The applicant also refers to the psychological report of Dr McCue (A5) as being the most authoritative source of information on his risk of reoffending. The applicant submits that

    
    

    Dr McCue describes him as ‘open and candid’ and engaged in the interview process. According to the applicant’s SFIC (para. 37) Dr McCue ultimately concludes that the applicant’s prognosis for desistence from offending is good.

27. The respondent says that the Tribunal needs to take into account the length and range of the applicant’s offending, that the applicant has received 59 convictions over a 22 year period covering violent offences, drug possession and intent to sell, traffic offences, weapons offences, dishonesty offences, escape from custody and breach offences. Those convictions, the respondent says, clearly demonstrate a thorough disrespect for the law. The pattern and repetition of similar offences is clearly concerning. The applicant has consistently spurned opportunities provided to him and disregarded warnings from the courts, government departments and the Tribunal.

28. The respondent contends that the Tribunal should have significant concerns in respect of the risk of re-offending having regard to:[22]

    [22] Respondent’s SFIC para. 34.

    34.1.The misplaced optimism of Deputy President Forrest in revoking the applicant’s deportation order in 1999. In particular, the respondent draws the Tribunal’s attention to the Deputy President’s comment that the applicant’s involvement with drugs was a matter of concern although he was not an addict and that he was a low risk of re-offending.

    34.2.The cumulative pessimism of the sentencing judges remarking on the applicant’s “very bad record”, “complete disregard for the orders of the court”, “significant entrenched drug use”, “minimising attitude towards your offending … lack of responsibility for your actions” and “past poor response to supervision”. The respondent draws the Tribunal’s attention to the comment of Groves DCJ that:

    You were provided with the opportunity to address your drug use when sentenced for the previous offences. You failed to engage or take the opportunity to address the cause of your offending”

    34.3.The applicant avoided deportation in 1999 and received a formal warning from the Department in 2010 and yet went on to commit serious offences.

    34.4.The applicant is a long-term drug user and has received a number of positive drug tests in whilst incarcerated. Although he has provided evidence of engaging with rehabilitation whilst incarcerated any claimed abstinence from drugs has not been tested in the community. His ability to remain substance-free in the Australian community cannot be guaranteed, particularly where financial or other stressors which are not present in prison or detention are re- introduced.

    34.5.There is no evidence that any underlying causal factors of drug addiction have been addressed.

    34.6.The applicant was denied release on parole on 27 September 2016 for the following reasons:

    Although your parole plan includes residential rehabilitation with Shalom House, given your drug related prison charges, the Board has no confidence that you will be able to comply with a residential rehabilitation program.

    An extensive criminal history included violence which suggests a high risk of reoffending.

    Despite completion of the Pathways Program, the Board notes that five out of six charges during the sentence relate to drug offences, the most recent of which was on 27 July 2016 during the Pathways Program.

    It is noted that it is sometime since you had the opportunity of community supervision, however, the Board notes that you breached your last Parole Order and failed to comply with court orders.

    Poor prison conduct noting six prison charges and numerous negative offender notes detailing poor work ethic suggesting an unwillingness or inability to comply with directions.

    The Board notes that your Visa to remain in Australia is cancelled. Should you agree to returning to your country of origin you may wish to re-apply for parole consideration.

    (R2, SG3 at 362)

    34.7.The appellant had previously had a parole order cancelled in 2006 after the appellant recorded 10 positive urinalysis results and failed to take up a drug programme to which he had been referred.

    34.8.The completion report for the most recent evidence of rehabilitation, the Pathways Program, notes some gains but also cautions that the applicant “has had a long history of anti-social behaviour including substance misuse, anti-social criminal associations, peers and criminal conduct”.

    34.9.Whilst the applicant has family support, it is also the case that his long-standing partner, [co-accused/partner], also has a significant drug and criminal history and indeed was a co-offender in the applicant’s most recent offences, receiving a lengthy prison sentence herself. It has been recognised that [co-accused/partner] “poses a risk to his sobriety”. Whilst the applicant is said to recognises [sic] this, the Tribunal is entitled to be concerned that a resumption of this relationship increases the risk of re-offending.

    34.10.Finally the respondent draws the Tribunal’s attention to the report of clinical psychologist Dr James McCue which notes that whilst the applicant showed some insight:

    a. His offending behaviour has been significantly influenced and motivated by his serious and chronic addiction to heroin and amphetamines.

    b. His risk of re-offending if he were to be released into the community is likely to be most determined by his ability to abstain from illicit drug use and thus involvement with a drug subculture.

    c. There is no psychological risk assessment tool available to assist in the assessment of drug use however conclusions regarding risk of relapse can be drawn from the factors known to influence a person’s use of drugs.

    d. Those factors relevant to the applicant are (1) his difficulty managing emotional reactions related to symptoms of post-traumatic stress following his exposure to fatal violence and death prior to arriving in Australia; (2) his feelings of isolation and loneliness; (3) his forming an intimate relationship with an illicit drug user; and (4) his forming friendships with other illicit drug users.

    e. The applicant has demonstrated some insight into these factors. However, notwithstanding that insight, he has not experienced time outside of a custodial environment recently, to action his awareness and maintain his abstinence from drug use in the community.

    f. He presents with treatment needs that require him to be assisted to fully and robustly address, and then continue to manage, the factors that contributed to his drug addiction. It is these factors, if left untreated, that pose the greatest risk to him relapsing into illicit drug use and re-offending.

    (Footnotes omitted.)

1. In addressing the effect of the applicant’s deportation, Ms Trang in her statement (A3) says:

   Dat is my only brother who survives with me during the war. If Dat is deported, my family will be upset not only because we will lose a relative in Australia, but also, we will be helpless in rendering Dat family support, love and attention which he will need badly. Mom is getting older and I am not very healthy. Thus, having Dat around the house when all my children move out is of great help when we women are getting older.

2. Ms Trang also said that she was fearful that if the applicant was returned to Vietnam he would be persecuted because he fled Vietnam and that he might also be persecuted because he is a Christian and ‘Christians are not recognised in Vietnam’.[46]

   [46] A3, para. 18.

3. A written statement was also provided and evidence given at the hearing by [omitted for publication].

4. A statement was also provided by Ms Xuan Thi Vo who also gave evidence at the hearing. Ms Xuan is a member of the [omitted] Church in [omitted].[47] She first met the applicant in 2005 when she visited Acacia Prison ‘to teach [the] bible and spread the love of God’.[48] She also visited the applicant in 2008 when he was in the Perth Immigration Detention Centre. On his release in 2008 the applicant was baptised at Ms Xuan’s [omitted] church. She says that the applicant has a good work ethic and that she does not ‘think that Dat is a very bad character’.[49]

   [47] A4.

   [48] A4, para. 3.

   [49] A4, para. 8.

5. In her statement Ms Xuan’s says that after the applicant was baptised in her church sometime in September 2008 he ‘actively participated in activities organised by the church … worked on the garden, cut the grass, cleaned up public areas, laid bricks, re-painted and did some other works to maintain the church for about a year or so’.[50]

   [50] A4, para. 6.

6. Counsel for the applicant in closing summarised the applicant’s case in relation to this consideration as follows:

   Now, he has some ties to the broader Vietnamese community, particularly the church community, but it’s really his ties to his mother and sister which are the most significant for Mr Trang.  Now, his mother was clearly distraught during her evidence, and it clearly affected her greatly to see Mr Trang in the position that he is now in.

   …

   Now, the effect on the mother and the sister, also may take into account quite separately from the ties Mr Trang personally has to them.  Now, the main – obviously, and just about in all cases, there will be an effect, some emotional trauma, if you like, to members of a person’s immediate family who, when that person is removed from Australia and sent elsewhere, and that is something that should be given significant weight in and of itself, especially given that the –

   
   

   Mr Trang’s mother and sister are both Australian citizens.

   Now, the main point of contention is what will happen to Mr Trang’s mother.  Now, the evidence was that she’s currently, and has always been cared for by

   
   

   Mr Trang’s sister, and that she’s obviously old and she’s suffering from some health conditions, and that she will certainly require care going forward.  Now, the effect on her, of Mr Trang being removed from Australia, will obviously be that he won’t be available to support her. And to care for her in the future.  But equally, there is an effect on his sister, who will then have to resume sole responsibility for her care and support.

   Of course, I wouldn’t want to describe Mr Trang’s mother as a burden on her sister, but effectively, the decision of the tribunal will determine whether she is to receive any support from Mr Trang.  Of course, it’s conceivable that the tribunal could allow Mr Trang’s application, and he could go on his merry way using drugs and never support his mother, but that is not what he’s representing that he’s going to do.  But certainly, if he is removed from Australia, he will not be in a position to support his mother, and that – that task will fall solely on his sister, who has her own now adult children and her own employment to pursue, and it will certainly have a significant effect on her if he’s not available to help share the burden of caring for their elderly mother.

7. The respondent in his SFIC, having pointed to the applicant’s extensive criminal record and substance abuse and submitting that ‘his links to the Australian community should be viewed through the prism of his poor conduct whilst amongst the community’,[51] states his position as follows:

   56. Notwithstanding the above, the respondent concedes that the applicant clearly has ties to Australia, albeit not to the extent that they should outweigh the protection and expectations of the Australian community.

   [51] Respondent’s SFIC para. 55.

8. The Tribunal accepts that the applicant has links to Australia through his mother and his sister. The Tribunal also accepts that the applicant’s mother and sister will suffer considerable distress if the applicant were to be removed. The Tribunal, however, finds that neither the applicant’s mother nor his sister would be likely to suffer any adverse financial or physical impact if the applicant were to be removed. The fact is that he has never provided any support to either his mother or his sister and the likelihood of him doing so in the future if he were allowed to stay is, in the Tribunal’s view, minimal.

   
   

   The Tribunal is satisfied that if the applicant were to be removed the applicant’s sister would continue to provide support and sustenance to the applicant’s mother as she has for the last 23 years.

9. The applicant’s connections to the broader community are not significant. The total effective positive involvement with the community that the evidence identifies is that for around a year in 2008 he became involved in some activities of a church in [omitted]

   
   

   (see [122] above).

10. The Tribunal finds that while this consideration weighs in favour of revocation of the cancellation of the visa, very little weight is to be given to it.

    Impact on victims (14(1)(d))

11. The respondent made no submissions in relation to this consideration and there is no evidence before the Tribunal of what impact there might be on any victims if the cancellation of his visa was revoked.

    Extent of impediments if removed (14(1)(e))

12. Paragraph 14.5(1) of Direction 79 provides:

    (1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    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.

13. The applicant’s SFIC (para. 59) claims that the applicant:

    … [omitted for publication]. He is no longer a young man at 49 years old. A large proportion of Vietnam’s workforce work in laborious jobs (DFAT report [2.16]). Given Mr Trang’s lack of skills or qualifications, he will most likely have to work in a labour based job, something he will struggle to do given his age and health issues.

14. There was little or no medical evidence presented to support the above diagnoses and the Tribunal notes the applicant’s evidence at the hearing that his conditions, more particularly his [redated] condition, does not affect his capacity to work (Transcript at 14). In closing counsel for the applicant conceded that:

    Now, Mr Trang himself gave evidence and said that his health doesn’t affect his ability to work, so that falls away.  But in a general sense, he is – he is obviously of a – he’s not of a young age, and he has some health concerns that were – that he talked about.

15. The Tribunal agrees with the applicant’s counsel’s concession that, based on the applicant’s own evidence, the argument that there is an impediment based on the applicant’s inability to work ‘falls away’.

16. The other impediments identified in the applicant’s SFIC were:

    60. Mr Trang has not lived in Vietnam since he was a child. While he can speak the language, culturally it will be difficult for him to adjust.

    61. Mr Trang has no family in Vietnam. It is unclear from the DFAT report whether Vietnam has a social welfare system. It appears likely that Mr Trang will not have any social or economic support if removed to Vietnam.

17. In closing the applicant’s counsel submitted that the DFAT report did not indicate that there was social security available and that:[52]

    … the fact that he has no family ties and the overwhelming likelihood that there is no social security available to him will represent the greatest impediment to him establishing himself to the standard of living, which is available to most people in Vietnam,…

    [52] Transcript at 134.

18. The respondent’s SFIC states his position to be:

    58. The respondent concedes that the applicant may experience some hardship as a consequence of returning to Vietnam. The respondent acknowledges that there are likely to be some transitional difficulties but those impediments would by no means be insurmountable. The applicant would return to a country he lived in until he was 19. There are no language or cultural barriers to his return. The respondent contends that the applicant would be able to maintain basic living standards. Whilst this factor may weigh in favour of revocation, the respondent submits the limited impediments to his return are strongly outweighed by the primary considerations.

19. While noting that the applicant left Vietnam before he was 19 years old, the Tribunal agrees with the respondent’s assessment. The applicant obviously speaks Vietnamese fluently and there is nothing before the Tribunal to suggest that, once the obvious difficulties that would be faced by anyone in re-settling into a country that they have not been in for 30 years, are overcome, the applicant would not be able to maintain a basic living standard available to other citizens of Vietnam. While the applicant is not a young man, he is certainly still of normal working-life age and, on his own evidence, his health does not affect his ability to work.

20. While some of the evidence, particularly that of [omitted for publication], appeared to be addressing claims of religious persecution in Vietnam, it is the Tribunal’s understanding that that evidence was primarily lead in respect of the now-abandoned (in these proceedings at least) non-refoulement consideration. Insofar as it might be argued that restrictions on the ability of the applicant to practice his Christian faith are impediments (noting that that is not a factor identified in paragraph 14.5(1) of Direction 79, the Tribunal notes the evidence of [omitted for publication], however, also notes the information relating to freedom of belief and religion set out in paragraphs 3.6 to 3.8 of the DFAT Country Information Report Vietnam Report (R4). While the Tribunal accepts that there are, in practice, some restrictions on the practice of religious beliefs in Vietnam and that practice of religious beliefs in Vietnam is not as free as it is in Australia, any such restriction is not, in the Tribunal’s view, an impediment on the applicant being re-settled in Vietnam.

21. Overall the Tribunal’s assessment is that this consideration does not weigh either for or against the revocation of the cancellation of the applicant’s visa.

    The Weighing Exercise

22. Guidance is given by Direction 79 of how the decision-maker should apply the primary and other considerations. Paragraphs 8(3), (4) and (5) of Direction 79 are relevant.
    They provide:

    (3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

    (4) Primary considerations should generally be given greater weight than the other considerations.

    (5) One or more primary considerations may outweigh other primary considerations.

23. A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While these cases were generally looking at that exercise under Direction 65, the same considerations apply to the exercise required by Direction 79 which is materially in the same terms. The leading cases in this regard are Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 which was discussed by the Full Court of the Federal Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217.

24. Senior Member Dr M Evans in CZCV at [164] summarised the legal position following the various cases referred to above as follows:

    Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so...

25. The Tribunal agrees with and adopts the approach outlined by Senior Member Dr M Evans.

26. Looking at the first primary consideration, the protection of the Australian community, the Tribunal’s assessment is that this consideration weighs very heavily against the revocation of the cancellation of the applicant’s visa. Similarly the third primary consideration, the expectations of the Australian community, weighs heavily against the revocation of the cancellation.

27. In relation to the other considerations identified in paragraph 14 of Direction 79 that the Tribunal considers to be relevant, namely, the strength, nature and duration of ties and the extent of impediments, the Tribunal finds that the first weighs in favour of revocation of the cancellation of the applicant’s visa, but that little weight should be given to that consideration, and that the second does not weigh either for or against the revocation of the cancellation of the applicant’s visa.

    CONCLUSION

28. The applicant does not pass the character test. The issue is whether, guided by Direction 79, there is another reason why the mandatory cancellation of the visa under s 501(3A) of the Act should be revoked. Taking into account all of the provisions of and considerations required by Direction 79, as guided by the authorities identified above, the Tribunal is satisfied that there is not another reason why the decision to cancel the visa under
    s 501(3A) of the Act should be revoked under s 501CA(4)(b)(ii) of the Act.

    DECISION

29. The decision under review is affirmed.

I certify that the preceding 147 (one hundred and forty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

........[sgd]...............................................................

Associate

Dated: 1 October 2019

Dates of hearing:	23 and 24 September 2019
Counsel for the Applicant:	Mr H Glenister
Representative for the Applicant:	immiPRO
Counsel for the Respondent:	Mr A Gerrard
Solicitors for the Respondent:	Australian Government Solicitor