Vo and Minister for Home Affairs (Migration)

Vo and Minister for Home Affairs (Migration) [2018] AATA 1305 (17 May 2018)
Division:GENERAL DIVISION
File Number: 2018/1075
Re:Van Thoi Vo
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

DECISION
Tribunal:Member M Kennedy
Date:17 May 2018
Place:Adelaide

The Tribunal affirms the decision under review.
....................[Sgd]....................................................
Member M Kennedy
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant does not pass character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations - protection of the Australian community from criminal or other serious conduct – expectations of the Australian community – other considerations -strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 501
CASES
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
SECONDARY MATERIALS
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Member M Kennedy
17 May 2018

Mr Vo is a recidivist heroin dealer. He seeks revocation of a decision to cancel his visa. I have decided not to revoke the visa cancellation.
BACKGROUND
On 23 June 2000, Mr Vo was convicted of three counts of possessing heroin for sale, and other offences, and sentenced to 8 years imprisonment with a non-parole period of four years and six months.
On 21 December 2010, Mr Vo was convicted of trafficking in a controlled drug, heroin, and sentenced to imprisonment for 6 years and 7 months with a non-parole period of 4 years and one month.
These are not Mr Vo’s only convictions, but the conviction of 21 December 2010 triggered the mandatory cancellation of Mr Vo’s Transitional (Permanent) (Class BF) visa under s 501(3A) of the Migration Act 1958 (the Act) on 16 February 2017.
On 2 March 2017, Mr Vo made representations seeking the revocation of the visa cancellation under s 501CA of the Act. On 20 February 2018, a delegate of the Minister decided not to revoke the decision to cancel the visa, finding that Mr Vo failed the “character test”, and finding that there was not another reason why the original decision to cancel the visa should be revoked.
Mr Vo has applied to the Tribunal for review of that decision.
Documentary evidence
The Tribunal has before it the documents produced by the Minister pursuant to s 500(6F) of the Act, hereafter referred to as the ‘G Documents’, and particular folios referred to as ‘G1’ etc.[1]
[1] Exhibit R1.
The Tribunal also has before it supplementary documents lodged by the Minister on 3 May 2018, hereafter referred to as the ‘S Documents’, and particular folios referred to as ‘S1’ etc.[2]
[2] Exhibit R2.
Mr Vo has lodged two documents of the nature of a combined statement and submission, which I have marked as A1[3] (10 March 2018) and A2[4] (30 April 2018).
[3] Exhibit A1.
[4] Exhibit A2.
Mr Vo did not produce any witnesses during the hearing or lodge any further documentary evidence.
LEGISLATIVE FRAMEWORK
Section 501 of the Migration Act provides for the cancellation of a visa on character grounds.
Relevantly, where the Minister is satisfied that a person does not pass the “character test” because a person has a “substantial criminal record” and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of a State, the Minister must cancel the visa: subsection 501(3A) of the Act.
At the time of the primary decision, Mr Vo was serving a full-time sentence of imprisonment at Mobilong Prison.
The character test is set out at sub-section 501(6). Mr Vo did not contend that he passes the character test, and I find on the basis of the convictions set out at G19[5] (Page 1 of the National Police Certificate recording the conviction of 21 December 2010) that Mr Vo does not pass the character test because he has a substantial criminal record: s 501(6)(a) and s 501(7) of the Act. A person has a “substantial criminal record” if the person has (among other things) been sentenced to a term of imprisonment of 12 months or more.
[5] Exhibit R1, p19-21.
Under sub-section 501CA(4), the Minister may revoke that visa cancellation if the person makes representations in accordance with an invitation to do so within a prescribed time, and the Minister is satisfied that the person either passes the character test or there is another reason why the original decision should be revoked.
As mentioned above Mr Vo made that request on 2 March 2017, but a delegate of the Minister declined to revoke the visa cancellation. This is the decision before the Tribunal, and the issue for me to decide is whether to revoke the visa cancellation.
The visa cancellation may be revoked if I decide that Mr Vo passes the character test as defined by s 501. However, for the reasons mentioned above, I find that Mr Vo does not pass the character test on account of his substantial criminal record.
I may also revoke the visa cancellation if satisfied there is another reason why it should be revoked: sub-paragraph 501CA(4)(b)(ii) of the Act.
To avoid doubt, the proper construction of s 501CA(4) does not involve the exercise of a discretion to revoke per se. Rather, the structure of the provision is such that where the Minister is satisfied that one or other of the two conditions identified by s 501CA(4)(b)(i) (the character test) or s 501CA(4)(b)(ii) (another reason why the original should be revoked) is met, the Minister is required to revoke the decision. So understood, the permissive ‘may’ in s 501CA(4) is to be construed as ‘must’ if the necessary state of satisfaction is reached: Gaspar v Minister for Immigration and Border Protection.[6] With that understood, I will continue to use the language of the legislation, and any further reference to the concept of discretion that I make must obviously be understood as applying judgement and weighing the various factors I must take into account.
[6] (2016) 153 ALD 337.
Ministerial Direction 65 (the Direction)
Section 499 of the Act authorises the Minister to give written direction to a body, such as the Tribunal, having functions or powers under the Act about the performance of its functions and the exercise of powers. I must comply with directions issued under this provision.
Ministerial Direction 65, at Part C, engages directly with the performance of my functions and exercise of my powers in reviewing Mr Vo’s revocation request. I am to treat:
·The protection of the Australian community from criminal or other serious conduct;
·The best interests of minor children in Australia; and
·The expectations of the Australian community.
as primary considerations. Each of these terms is elaborated upon in the Direction.
Other considerations must also be taken into account; namely, international non-refoulement obligations, the strength, nature and duration of ties, impact on Australia’s business interests, impact on victims and the extent of impediments if Mr Vo is removed from Australia.
Primary considerations are generally to be given greater weight than the other considerations.
The Direction provides further guidance to me in terms of the objectives of the Migration Act and the character provisions, the objective of the Government in protecting the community from harm as a result of criminal activity, including maintaining public confidence in the character assessment process.
The Direction sets out principles asserting Australia’s sovereign right to determine whether non-citizens of character concern are allowed to remain in Australia, and that permission for non-citizens to remain in Australia is a privilege conferred in the expectation that non-citizens are and have been law-abiding and respectful of Australia’s institutions and will not cause or threaten harm to individuals or the community.
The relevant principles against which I am to approach the exercise of my powers in this matter are that:
·the community expects that the Government can and should cancel visas of non-citizens if they commit serious crimes in Australia;
·a non-citizen who has committed a serious crime should generally expect to forfeit the privilege of staying in Australia;
·sometimes criminal offending or other conduct is so serious, and the harm that would be caused if it were to be repeated so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances even strong countervailing considerations may be insufficient to justify not cancelling the visa;
·Australia has a low tolerance of any criminal or other serious conduct by people who have been participating or contributing to the Australian community only for a short period of time; however, the community may afford a higher level of tolerance in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age; and
·The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether the visa should be cancelled.
With compliance with these principles in mind, I turn to consider the particular circumstances in this review. I find it convenient to do so within the framework of the Direction.
Primary consideration: The protection of the Australian community.
I have regard to the Government’s commitment to protect the community from harm as a result of criminal activity by non-citizens, and acknowledge the Government’s view that remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community: Item 13.1 of the Direction.
I am to give consideration the nature and seriousness of Mr Vo’s conduct to date, and the risk to the Australian community should Mr Vo commit further offences or engage in other serious conduct.
The nature and seriousness of Mr Vo’s conduct
The Direction calls on me to consider the nature and seriousness of Mr Vo’s conduct, expressed to be criminal offending or other serious conduct. In this regard, the conviction that has caused Mr Vo to fail the character test is not the only instance of his criminal offending leading to other convictions.
In response to questions posed to Mr Vo by the Minister’s counsel, Mr Vo said that he had come to Australia at the age of 15. His father passed away 2 years later from illness. Mr Vo said he started coming into trouble with the law from a young age.
Certain offences, initially described by Mr Vo as not serious, were explored. On the face of it, the offences are traffic offences and were dealt with by the courts as such, but on closer examination of the records of the South Australia Police,[7] Mr Vo was detected driving at 110km per hour in a 60km per hour zone on a major arterial road in metropolitan Adelaide. In response to questioning from the Minister’s counsel, Mr Vo agreed that this behaviour placed the community at risk. It is open to me to form the view that this offending was dealt with leniently by the court at the time, which imposed punishment by way of fine and licence disqualification.
[7] Exhibit R1, p122-124.
The licence suspension led to subsequent convictions for driving while disqualified. Mr Vo confirmed that he was aware his licence was disqualified at the time and can recall choosing to drive anyway a couple of times.
Counsel for the Minister also took Mr Vo through a number of convictions for larceny.[8] Mr Vo explained that all these offences were closely associated with his drug addiction. He would go to shops and take clothes without paying for them because he needed clothes. Similarly, Mr Vo explained that a conviction for possession of stolen property[9] related to him helping a friend sell the property to help him get money for drugs.
[8] Exhibit R2 police records at S101 and S109.
[9] Exhibit R2 police records at S136.
As to Mr Vo’s most serious convictions (although in terms of the protection of the community I am not inclined to view the speeding offence as a minor matter having noted its particular circumstances), it can be observed in general terms that Mr Vo had become a heroin addict and fallen into a cycle of conduct involving its possession, sale and supply. Mr Vo told the Tribunal that he first started using heroin in about 1995 or 1996.
Mr Vo said he could not remember the circumstances of his first heroin-related offence (for possession) when questioned about it by counsel for the Minister. Police records[10] describe Mr Vo being approached by Police, and Mr Vo then entering a pharmacy where he was observed by staff to dispose of what was established to be a package of heroin into a rubbish bin.
[10] Exhibit R2, p145.
Police records in the supplementary documents contain a number of other instances of Mr Vo being detected in possession of heroin.
At S153,[11] the circumstances of an offence are recorded that resulted in Mr Vo’s conviction for possessing heroin for sale, by the District Court of South Australia on 22 March 1999, dealt with by way of suspended sentence and bond.
[11] Exhibit R2, p153.
As for Mr Vo’s offending which resulted in lengthy prison sentences, I consider first the sentencing remarks of Judge Lunn made on 23 June 2000 in the District Court.[12]
[12] Exhibit R1, p29-34.
His Honour noted that Mr Vo had, on 14 September 1999, been located in a car near the Convention Centre in Adelaide with a mobile phone, cash and 0.07 grams of heroin. Witnesses had observed persons approaching the car and apparently carrying out transactions with him. His Honour considered that conduct to be indicative of possession of the heroin in the car being for retail street sales of heroin.
His Honour also dealt with events of 27 October 1999 when heroin was again located by police in Mr Vo’s car. On this occasion there were 8 foil wrappers located and a total of 1.48g of powder containing 0.081g of heroin. On that occasion a call was received on Mr Vo’s mobile phone from someone seeking to purchase drugs. Similarly, on that occasion people had been observed approaching Mr Vo’s car to conduct transactions.
His Honour noted that on 14 December 1999 police had approached Mr Vo near the Festival Centre, and Mr Vo was observed to throw away foil wrappers containing 1.51g of powder of which 0.99g was heroin. Mr Vo had cash and a mobile phone, which again received several calls from people wishing to purchase drugs.
His Honour also noted that Mr Vo had pleaded guilty to an offence of possessing heroin for supply on 22 March 1999, and had been dealt with by way of suspended sentence and a bond. His Honour dealt with the breach of that bond, and two other bonds related to driving whilst disqualified offences, and also an application arising out of Mr Vo’s failure to complete his community service.
His Honour noted the leniency with which Mr Vo had previously been treated, but considered it unknown whether Mr Vo could overcome his heroin addiction. His Honour speculated that Mr Vo was likely to reoffend and would spend much of his life in gaol if he did not. His Honour viewed Mr Vo’s offending while on a bond for essentially identical offences as an aggravating feature, and considered it appropriate to impose a penalty that demonstrated that release on bond is not a licence to continue offending.
His Honour remarked that although the quantity of heroin involved was not substantial, the offending was part of a significant retail business conducted with heroin users. His Honour observed that the prosecution case was strong, and he would have imposed a sentence of 10 years but for early pleas of guilty. His Honour imposed a sentence of 8 years, 10 months and five days, with a non-parole period of four years and six months
Following release from prison in 2005, Mr Vo committed driving offences in 2008.
On 3 April 2009, Mr Vo committed his second offence that resulted in lengthy imprisonment. It is this offence that triggered the mandatory cancellation of Mr Vo’s visa. I turn to the sentencing remarks of Judge Smith in gaining an understanding of the nature and seriousness of Mr Vo’s conduct in this regard.
His Honour noted that police had attended premises in an unmarked car, where it was clear that Mr Vo and another were expecting customers. Mr Vo had 8 packages of heroin in his possession and approached the car before realising it contained police. Mr Vo attempted to discard the packages. A search of the house revealed packaging, scissors and scales. A customer arrived at the premises while police were present and an incriminating conversation took place. His Honour noted that Mr Vo had falsely denied selling heroin (this was a jury trial).
His Honour noted that Mr Vo had described resuming his use of heroin in 2008, which had resulted in his loss of employment and being turned out by his mother. At the time of sentencing however, his Honour observed that family support had returned.
His Honour noted that Mr Vo had been given the benefit of home detention bail, but had flouted the conditions, committing no less than six bail offences, including during the period between trial and sentencing. His Honour accepted prosecution submissions that he could have no confidence that Mr Vo was on the road to rehabilitation or would comply with any bond conditions.
There was no discount on the sentence because there had been no plea of guilty. His Honour observed there had not even been belated contrition or remorse. His Honour considered that there needed to be both general and personal deterrence in the matter and considered that Mr Vo’s addiction provided no ground for leniency. His Honour imposed a sentence of seven years (out of a maximum of ten) and a non-parole period of four and a half years.
Mr Vo was released to home detention on 29 April 2014, but in March 2015 it was discovered that he was residing with a brother who also had convictions (in breach of conditions) and Mr Vo tested positive in a drug test. The home detention order was revoked.
Mr Vo was however still released on parole on 14 May 2015. By the end of that month Mr Vo had again tested positive to a drug test and was issued a warning. After a further positive drug test on 3 July 2015 a warrant was issued for Mr Vo’s arrest, and he was returned to prison on 13 July 2015. He was released on parole again in September 2015, before being returned to prison after a positive drug test on 5 February 2016. Mr Vo was released again on 2 March 2016, and then returned to prison after a positive drug test on 18 March 2016. Parole was formally cancelled on 28 June 2016.
Mr Vo was taken into immigration detention when released on parole on 19 June 2017.
The Minister submits that Mr Vo has been convicted of a very large number of offences which have seriously impacted, or had the potential to impact, members of the community in an adverse way. The Minister notes that Mr Vo has derived financial gain through causing harm to drug users on multiple occasions.
I accept the Minister’s contentions in this regard. The seriousness of Mr Vo’s criminal conduct as a whole must be viewed as very grave indeed. Having regard to the sentences imposed by the Courts and the remarks of the sentencing judges, I identify nothing to mitigate the seriousness with which these crimes of drug dealing should be viewed.
The Direction explains that violent and sexual crimes are to be viewed very seriously, as are crimes against vulnerable members of the community or government representatives in the performance of their duties. I do not consider that Mr Vo’s offending has these characteristics. However, the Direction in this regard is expressed without limiting the range of offences that may be viewed in this way. In my view, offences of the nature of drug trafficking are also offences that are to be viewed very seriously.

I consider that the sentences imposed by the courts in Mr Vo’s case reinforce the seriousness of his conduct, as does his recidivism on a cumulative basis. I take into particular account the breach of home detention bail and bail offences described by Judge Smith during the trial and sentencing process as aggravating matters. Likewise, I view the circumstances leading to the cancellation of Mr Vo’s parole in a similar light.
There is no evidence that Mr Vo was warned at any stage about the consequences of further offending in terms of his migration status, but the Directions expressly provide that the absence of a warning should not be considered in Mr Vo’s favour. It follows that I place no favourable weight on the absence of a warning to Mr Vo in forming a view about the nature and seriousness of his offending.
Although the Minister has provided evidence to the Tribunal of adverse incidents during Mr Vo’s time in immigration detention, he has not been convicted of a crime in relation to his detention. These matters relate to altercations over computer use and cooking oil. They demonstrate a poor capacity on the part of Mr Vo to deal with challenges, but do not influence the already adverse view I take of the nature of Mr Vo’s conduct.
In his oral evidence, Mr Vo provided little explanation or context for his offending other than pointing to his drug addiction. He said he had tried many times to break his habit, but could add little cogent or plausible detail to explain what he had actually done in this regard. He mentioned seeing a counsellor, but stopped seeing this person because he had become too busy. I consider there is nothing in Mr Vo’s account of the offending or explanation for it to weigh against a finding that the nature and seriousness of his conduct is very grave indeed.
The risk should further offences be committed
In accordance with the Direction, my consideration of the risk should further offences be committed incorporates cumulatively an assessment as to the potential harm to the Australian community should the conduct be repeated, and also the likelihood of Mr Vo engaging in further criminal or other serious conduct.
As to the first limb, and as mentioned above, I have found that Mr Vo’s conduct is essentially of the nature of drug dealing in heroin. I consider the potential harm to the Australian community of the supply and trafficking of heroin, should Mr Vo’s conduct of that nature be repeated to be grave.
As to the likelihood of Mr Vo engaging in further criminal conduct, I received from Mr Vo on a number of occasions representations and pleas to the effect that he would not be involved in drugs any more. Mr Vo explained that he wanted a second chance to make his mother happy, and he would never take drugs or reoffend again.
In Exhibit A2, Mr Vo asks that I take into account vocational rehabilitative courses he has undertaken while in prison. In his evidence, Mr Vo confirmed that he had never undertaken education, training or sustained rehabilitation outside of the prison system.
I note that Mr Vo has competed courses in agri-food operations, firefighting (as part of Certificate II in Public Safety) and associated operation of the SA Government radio network. Mr Vo has undertaken a general introductory course in vocational education and safe chemical handling.
As to education specifically addressing the core problem of his drug addiction, being an activity that has a cogent link to his risk of rehabilitation, there is evidence that Mr Vo has completed brief intervention programs in relation to alcohol and other drugs, and Phase 1 and 2 of the Making Changes Program.
In evidence, it was properly put to Mr Vo that in relation to his participation in drug rehabilitation course while in prison, it appeared that his involvement in these courses coincided with or pre-dated positive drug detection while in prison and subsequent reoffending. When asked if he agreed that his involvement in such courses hadn’t changed his behaviour, Mr Vo said that the courses had helped him in a number of ways, but [the urge to use drugs] was always there.
Mr Vo suggested that the Making Changes course may have affected him particularly, explaining that he had learned one strategy in particular that may assist him avoid drug dependency. He referred to the ‘3 Ds’ strategy. However, when questioned for specific detail about what steps he had taken in the past or would take in the future to avoid contact with former drug using associates, Mr Vo’s evidence was vague and unsatisfactory. Specifically as to past attempts to make changes of this nature, I formed the impression that Mr Vo had not previously done anything in particular to avoid his drug-using associates.
I find that I can place little favourable weight on Mr Vo’s participation in general vocational courses or courses directed towards changing behaviour associated with drug abuse. I accept the contention from the Minister that despite undertaking courses of this nature in the past, Mr Vo has demonstrably either used drugs concurrently with participation in those programs or subsequently reoffended or breached parole conditions.
It also follows that I can place little weight on Mr Vo’s representations to me that he does not intend to use drugs or offend in the future. His behaviour between April 2014 and June 2016 detailed above means that his representations cannot be accepted. At the time of sentencing before Judge Smith, his Honour observed that he could have no confidence that Mr Vo was on the path to rehabilitation. While I note that Mr Vo appears not to have used heroin since 2016, this is in the context of his incarceration or detention. The Minister’s counsel correctly points out that Mr Vo’s last positive drug test was only two years ago.
The connection between Mr Vo’s drug use and his offending is obvious. It is recognised by Mr Vo and, was remarked upon by the sentencing judges. Where I have no confidence that Mr Vo has taken steps to address his drug use, and where Mr Vo failed dismally to abstain from drug use while offered parole between 2014 and 2016, I consider that the fundamental driver of Mr Vo’s serious offending remains in place.
I have taken into account the opinion of Ms Turner, set out in correspondence to the Department of Immigration of 12 February 2016.[13] Ms Turner was Mr Vo’s parole officer. Ms Turner observed at the time that Mr Vo’s problem was with drugs, and observed that at that time he had demonstrated little motivation to address his drug habit. A statistical assessment of the risk of recidivism had produced a result within the medium range. Ms Turner expressed the view that Mr Vo had poor prospects of rehabilitation despite there being a number of positive attributes such as work ethic. I gain little reassurance as to Mr Vo’s prospects of rehabilitation or likelihood of not reoffending on the basis of the observations and opinion in that report.
[13] Exhibit R1, p91.
There is no countervailing assessment or opinion as to the risk of recidivism produced by Mr Vo.
I have also considered evidence regarding support available to Mr Vo in the event that he were to be released into the community. In my view, the consideration of such matters is important to assessing the risk of recidivism and therefore the risk to the community.
Mr Vo has not produced any witnesses to the Tribunal. He told the Tribunal that he has two brothers and an elderly mother in Australia. He had asked a brother to attend the Tribunal to support him but his brother had declined because he was too busy. Mr Vo says his mother is too old to attend the Tribunal. Mr Vo told me that he does not wish to have contact with his other brother (the brother who has criminal convictions), but this brother does presently live with his mother.
In the absence of supporting evidence from Mr Vo’s family members, I am not satisfied that Mr Vo will receive any significant family support that may affect my assessment of his risk of recidivism. It is also the case that Mr Vo’s family have previously proved to be unable to prevent his reoffending.
In my assessment, Mr Vo presents a high risk of reoffending for drug related offences, including trafficking.
Having regard to the nature of the harm to the Australian community should Mr Vo engage in further criminal conduct of the nature of drug trafficking and my concern that the risk of reoffending is high, I have formed the view that the risk posed by the offending and the likelihood of the conduct being repeated cumulatively, poses an unacceptable risk to the Australian community.
I am of the view that the Australian community must be protected from the unacceptable risk posed by Mr Vo.
Primary consideration: The best interests of minor children affected by the decision
I do not consider that there are minor children in Australia affected by this decision.
No evidence was expressly raised by Mr Vo in relation to this consideration, but I note Mr Vo identified as having nieces and nephews in Australia when completing a personal circumstances form for the Department. The delegate turned his mind to the interests of these children, assuming them to be minors.
I raised this issue with Mr Vo at the hearing. He told me that his brother has children, but he does not have contact with them.
As Mr Vo does not have any contact with these children, I do not consider that their interests are affected by this decision. However, the specific considerations set out in the direction appear to include consideration of children with whom a non-citizen does not have meaningful contact, and so I have turned my mind to each of those matters.
I consider that the nature and duration of the relationship between the children identified by Mr Vo in the form (but not elaborated upon in his evidence) is minimal to non-existent. I consider it highly unlikely that Mr Vo will play a positive parental role in relation to these children in the future in circumstances where he does not have contact with these children, let alone a parental role, and in circumstances where I have formed the view that Mr Vo has not addressed his drug addiction and presents a high risk of reoffending in drug-related crime. Similarly in this regard, I consider that Mr Vo’s prior conduct and future conduct if it were to be repeated could have only negative consequences for any children with whom he has contact.
I do not consider, on the limited evidence available to me, that any separation from Mr Vo would have an adverse effect on these children in circumstances where, on Mr Vo’s evidence, he does not have contact with the children. I understand from Mr Vo’s evidence that the children’s parents, (including Mr Vo’s brother) already fulfil a parental role for the children.
The views of the children are unknown to me. There is no evidence that Mr Vo has abused or neglected these children, and there is no evidence that the children have suffered physical or emotional trauma from Mr Vo’s conduct.
Overall in relation to this consideration, I am of the view that there are no relevant children in Australia who will be affected by the decision.
Primary consideration: Expectations of the Australian community.
Paragraph 13.3(1) of Direction No 65 states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The respondent submits that having regard to the seriousness and risk posed by Mr Vo’s offending, the low motivation demonstrated to date by Mr Vo in addressing his drug problem and his squandering of chances to rehabilitate offered by the courts and parole system, the Australian community would expect that his visa remains cancelled.
Mr Vo did not address the expectations of the Australian community in his remarks to the Tribunal.
Considering the guidance in the Direction as to the Government’s view of the expectations of the community, the evidence before me in this matter and the cogent submissions of the Minister’s representative in this regard, I agree that the Australian community would expect that Mr Vo’s visa remain cancelled.
I consider this particularly so given I have reached the view that Mr Vo poses an unacceptable risk to the community through the nature of his offending and the high risk of reoffending. The community would expect decisions of this nature to be taken so as to protect it from such risks.
I have taken into account that the Australian community may have greater tolerance for a person who has lived in Australia since the age of 15, but in Mr Vo’s case it would appear that a significant proportion of his time in Australia has been spent in prison. I do not consider that the community would take a more sympathetic view of Mr Vo’s circumstances in this regard in light of his history of offending, recidivism and squandered chances for rehabilitation.
I consider, having regard to the objectives of the Directions, the principles set out in the Direction and the explanation of the meaning of the concept of the ‘expectation of the Australian community’ set out in the Direction that this is a case where the community would expect the visa cancellation not to be revoked.
Other considerations: Strength, nature and duration of ties
I take into account that Mr Vo arrived in Australia at the age of 15 and has resided here since that time.
Mr Vo explained that his immediate family (his mother and two brothers) reside in Australia. He chooses not to have contact with one brother, but expressed concern about his elderly mother. Mr Vo appeared to recognise that his conduct has had an adverse effect on her.
Mr Vo told me he completed Year 10 in Australia, but has not completed any other training or education outside of the prison system. Mr Vo described holding a range of unskilled employment.
Mr Vo’s offending commenced early in his adulthood, soon after he arrived in Australia in his mid-teens. Mr Vo explained that his family had come as refugees from Vietnam but he had remained in Vietnam as he was too young to travel. He was sponsored to Australia later. His father had passed away from liver cancer two years after Mr Vo arrived. On the face of it (in the absence of any expert psychological evidence as to the source of Mr Vo’s drug addiction and offending), it is likely that Mr Vo had a traumatic adolescence and early adulthood.
However, I do not see in Mr Vo’s history any period of time where he has contributed positively to the Australian community. To the contrary, activities of recidivist drug dealers harm the community immensely. I do not consider any other aspect of Mr Vo’s background known to me takes away that stain.
I do not place significant weight on Mr Vo’s family ties to Australia, because I have residual concerns arising out of the absence of any supporting evidence from Mr Vo’s family members in these proceedings. Not only did no witnesses attend to speak to the Tribunal, but there is no written expression of support. I do not presume that Mr Vo has the support of his family in Australia, and I do not presume that any residual ties are strong.
Mr Vo told me that his eldest brother lives in Vietnam as he was too old to migrate to Australia with his parents. Mr Vo has had some contact with this brother, but was concerned he may not be offered support because he has never sent money to Vietnam. I accept that Mr Vo has only limited and nominal family ties outside of Australia.
I have had regard to the matters set out at item 14.2 of the Direction. I do not consider that Mr Vo’s ties to Australia through his family are strong, and I do not consider Mr Vo has made a positive contribution to the Australian community
Other considerations: Extent of impediments if removed.
I note that Mr Vo speaks Vietnamese and spent his formative years in Vietnam. Nonetheless, I accept Mr Vo’s concerns that he has nothing in Vietnam, and cannot be assured of support from his brother who lives there, or the support of other extended family.
Furthermore, Mr Vo has demonstrated little capacity in Australia to change his drug taking behaviour notwithstanding the increasingly adverse consequences for him. I can have no confidence that Mr Vo will be able to access external resources in this regard should he be removed from Australia to Vietnam.
However, Mr Vo is middle aged and I am not aware of any adverse health circumstances. He will not face cultural or language barriers in Vietnam, and there is no evidence to indicate he will be unable to access the basic social, medical and economic support available to citizens of Vietnam.
Nonetheless, I consider Mr Vo will face significant difficulties in the absence of clear family support but particularly in light of his own personal characteristics and drug problems. I consider Mr Vo will have great difficulty maintaining basic living standards, particularly if he again turns to drug use in Vietnam. I place weight on those circumstances.
Other considerations: international non-refoulement obligations, impact on Australian business interests, impact on victims
No evidence or argument was advanced in relation to Australia’s non-refoulement obligations. When I asked Mr Vo if he had any concerns in relation to fearing serious harm or persecution in Vietnam, Mr Vo said he had never thought about it.
No evidence was given in relation to the impact on Australian business interests.
I have no direct evidence from victims of Mr Vo’s offending, noting that no individual victims are identifiable given the nature of his crimes.
ASSESSMENT
I am to decide if there is any reason why the decision to cancel Mr Vo’s visa should be revoked, with my consideration of this issue exercised in accordance with the Direction.
In this regard, I have found that the primary consideration of the protection of the Australian community, including the nature and seriousness of Mr Vo’s offending and the risk to the community should Mr Vo reoffend, is such that I consider the risk posed by Mr Vo to be unacceptable.
In respect of another primary consideration, namely, the expectations of the Australian community, I consider that, guided by the Direction as to what the expectations of the community are, Mr Vo’s case is one where the community would expect the visa to be cancelled.
As to the third primary consideration, I do not consider that the interests of any minor children in Australia are affected by this decision.
I consider that Mr Vo will face significant impediments if removed from Australia, but the nature and duration of Mr Vo’s ties to Australia are such that they provide little favourable weight towards revoking the cancellation. My concerns in this regard do not outweigh the force of my conclusions in relation to the primary considerations.
Ultimately, having considered all the evidence before me in accordance with the Direction, I have reached the view with a high degree of certainty that there is no other reason why the original decision should be revoked.
DECISION
I affirm the decision under review.

I certify that the preceding 117 (one hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of Member M Kennedy

....................[Sgd]....................................................
Administrative Assistant
Dated: 17 May 2018

Date(s) of hearing: 9 May 2018

Applicant: In person

Advocate for the Respondent: Ms L Butler

Solicitors for the Respondent: Australian Government Solicitor

[2018] AATA 1305

17 May 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date(s) of hearing:	9 May 2018
Applicant:	In person
Advocate for the Respondent:	Ms L Butler
Solicitors for the Respondent:	Australian Government Solicitor