Vu and Minister for Home Affairs (Migration)
[2019] AATA 635
•4 April 2019
Vu and Minister for Home Affairs (Migration) [2019] AATA 635 (4 April 2019)
Division:GENERAL DIVISION
File Number(s): 2019/0290
Re:Hung Vu
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member K Raif
Date: 4 April 2019
Place:Sydney
The Tribunal affirms the decision under review.
.........................[sgd].....................................
Senior Member K Raif
CATCHWORDS
MIGRATION – cancellation of visa under s501 – resident return visa (RRV) – applicant doesn’t pass character test – substantial criminal record – applicant sentenced to a term of imprisonment of 12 months or more – protection of the Australian community – best interests of minor children – expectations of the Australian community – other considerations – strength, nature and duration of ties to Australia – Ministerial Direction No. 65 – Ministerial Direction No. 79 – nature and seriousness of conduct – supply of prohibited drug – shoplifting – common assault – drive with middle range PCA – protection of the Australian community – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) s 501
CASES
Do and Minister for Immigration and Border Protection [2016] AATA 390
Godley v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 83 ALD 411
KDSP and Minister for Immigration and Border Protection [2017] AATA2169
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336YNQY v Minister for Immigration and Border Protection [2017] FAC 1466
SECONDARY MATERIALS
Direction [No 65] – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014
Direction [No 79] – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
SENIOR MEMBER K RAIF
4 April 2019
BACKGROUND
This is an application for review of the decision of the delegate of the Minister for Home Affairs to cancel the Return (Residence) (Class BB) (subclass 155) visa.
The applicant is a national of Vietnam, born in June 1979. He first entered Australia in March 1998 as a holder of a Student visa. The applicant was granted a Spouse visa in December 2000 and subsequently a Resident Return visa (RRV) in March 2017.
The applicant’s National Police Certificate indicates that the applicant has been convicted of several offences between 2001 and 2013. These include theft, shoplifting, handle / receive / retention of stolen property, common assault and driving with middle range PCA. In July 2004 the applicant was issued with a Notice of Intention to Consider Cancellation under s. 501 of the Act but in May 2007 a decision was made not to cancel the visa held by the applicant. At the same time the applicant was given a warning that consideration may again be given to cancelling his visa if he engaged in any further conduct that would bring him within the scope of s. 501.
Since that decision, in November 2013 the applicant was convicted of an offence in the District Court of NSW of “supplying a prohibited drug more than or equal to commercial quantity”. The applicant was sentenced to three years and six months imprisonment. Around June 2018 the applicant was issued with an Apprehended Violence Order (AVO) in relation to his partner and in July 2018 he was convicted of contravening the AVO and stalking / intimidation offences. The applicant was given a good behaviour bond for a period of 12 months. In January 2019 the applicant was convicted of drink driving.
On 26 February 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) under s. 501(2) of the Migration Act 1958 (Cth) (“the Act”). The applicant provided a written response to the NOICC and on 12 December 2018 a decision was made to cancel the visa held by the applicant. The applicant seeks review of the delegate’s decision.
The issues for determination is whether the Tribunal reasonably suspects that the applicant does not pass the character test and whether the applicant satisfies the Tribunal that he passes the character test. If the ground for cancellation is established, the Tribunal will consider how the discretion to cancel should be exercised.
RELEVANT LAW
Pursuant to s. 501(2) of the Act, The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
The character test is set out at s 501 of the Act, and relevantly prescribes at s 501(6) that a person will not pass the character test if the person has a substantial criminal record as defined by subsection (7). Subsection 501(7)(c) defines the substantial criminal record as, relevantly, a person being sentenced to a term of imprisonment of 12 months or more.
Should a finding be made that the applicant does not pass the character test, the discretion to cancel the visa under s. 501(2) is enlivened. The exercise of discretion is governed by considerations set out by Direction 79 – Visa refusal and cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA. Direction 79 is binding on the Tribunal performing functions, or exercising powers under s. 501 of the Act.
Direction 79 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. These principles include (see cl 6.3 of Direction 79):
...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... and will not cause or threaten harm to individuals in the Australian community.[1]
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… should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.[2]
[1] Clause 6.3(1) of Direction 79.
[2] Clause 6.3(3) of Direction 79.
The General Guidance at cl 6.2(1) of Direction 79 states that:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
The primary considerations which are set out in cl 9(1) of Part A of Direction 79 are:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia; and
c)Expectations of the Australian community.
The other considerations which are set out of cl 10(1) in Direction 79 are:
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims; and
e)Extent of impediment if removed.
Decision-makers should ‘generally’ give greater weight to primary considerations than other considerations. Further, one primary consideration may outweigh other primary considerations: cl 8(4) and (5) of Direction 79. However, as observed by Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:
…….Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
As such, the other considerations referred to in Direction 79 ‘may be afforded equal or greater weight than primary considerations in an appropriate case’.[3]
[3] Colvin J at [26].
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Tribunal was provided with documents under section 501G of the Act (referred to as the ‘501G documents’), which relevantly comprise the notice of cancellation, submissions for the decision, the statement of reasons for refusal of the applicant’s visa and the evidence or other material considered in the case. This included the applicant’s National Police Certificate, papers relating to his criminal proceedings and sentencing remarks, evidence from the applicant in response to the NOICC and other documents.
The applicant’s National Police Certificate issued in November 2016 indicates that the applicant has been convicted of the following offences:
Date
Offence
Result
11 November 2001
Receive Etc property stolen outside NSW.
Without conviction. Bond to be of good behaviour for 12 months.
11 November 2001
Goods in personal custody reasonably suspected of being stolen.
Without conviction. No penalty imposed.
15 September 2003
Theft from shop (Shop steal).
Without conviction. Adjourned to be of good behaviour until 14/09/2004.
15 September 2003
Fail to answer bail granted
Without conviction. Adjourned to be of good behaviour until 14/09/2004.
24 October 2003
Handle/ receive/ retention stolen goods.
18 months imprisonment.
31 March 2003
Goods suspected stolen in/ on premises.
Convicted. Bond to be of good behaviour for 5 years.
18 April 2006
Shoplifting
Imprisonment 9 months.
18 April 2006
Shoplifting
Convicted. Bond to be of good behaviour for 5 years.
13 May 2010
Common Assault
Imprisonment 18 months. Sentence suspended on entering bond to be of good behaviour for 18 months.
25 November 2010
Drive with Middle Range Prescribed Concentration of Alcohol.
Fined $600. Licence disqualified for 12 months.
25 November 2010
Common Assault
Home detention for 12 months.
4 November 2013
Supply Cannabis more than indicatable and less than commercial quantity (3 charges); knowingly participate in the criminal group assist crime.
-
4 November 2013
Supply prohibited drug more than or equal to commercial quantity.
Imprisonment 3 years and 6 months.
There is evidence before the Tribunal that the applicant had been convicted of other offences – including a breach of the AVO and driving while under the influence - since the National Police Certificate was issued.
The applicant concedes, in his submissions to the Tribunal, that he fails the character test.
The Tribunal notes that the most recent offence recorded in the applicant’s National Police Certificate indicates that the applicant had been convicted and imprisoned for a term of three years and six months. The Tribunal finds that the applicant is a person who has been sentenced to a term of imprisonment of 12 months or more. He has a substantial criminal record as defined in s. 501(7)(c) of the Act. As the applicant has a substantial criminal record, the Tribunal reasonably suspects that the applicant does not pass the character test. The applicant has not satisfied the Tribunal that he passes the character test. The Tribunal finds that there are grounds for cancelling the applicant’s visa under s. 501(2) of the Act.
EXERCISE OF DISCRETION
The Tribunal’s considerations are set out below with regard to the Direction 79.
Primary considerations
Protection of the Australian community
Paragraph 9.1 of Direction 79 states that:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens 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.
As noted above, the applicant has been convicted of multiple offences throughout the period of his residence in Australia. The Tribunal considers the offences to be quite serious, particularly the offences involving violence towards others, as well as drug offences which resulted in a significant term of imprisonment. Although the applicant claims his offending was not violent, the Tribunal is mindful that the applicant had been convicted of an assault, has been issued with an AVO and has admitted to the Tribunal that he had made threats to his wife.
In his written submission to the delegate, which included a number of declarations from the applicant, the applicant has set out the circumstances in which the offences occurred.
In relation to the goods in custody offences and shop lifting, the applicant states that the stolen good involved clothing and personal items and as a result of his offending, he was given good behaviour bonds and subsequently a custodial sentence. The applicant states that these offences were not considered to be serious crimes as they were not violent or sexual crimes and the last offence occurred in 2006. The Tribunal acknowledges that these offences may be considered to be of less serious nature and not involving violence towards others. However, the repeated and frequent nature of the offending is of concern to the Tribunal.
In relation to the assault offences, the applicant states in his declaration that he was walking on the street and abused by a victim who swore at home and made racist comments and who started the fight. The applicant admits that he overreacted when he hit the victim. The applicant states that he did not commence the assault but the victim abused and attacked him first. He was given a good behaviour bond and no prison sentence was imposed, suggesting that the court did not consider that the applicant would commit further violent offences. The applicant states that he avoided other confrontations since then and walked away. The police report refers to the applicant physically striking and kicking the victim several times.
The applicant states that other than the 2009 incident, he does not have a history of violence and there has been no further violence since that incident. However, as noted above, the applicant has been issued with an AVO in 2018 and he was convicted of the breach of an AVO and stalking / intimidation. The applicant’s oral evidence to the Tribunal is that there were two occasions when the police was called to his home, that on one occasion during an argument with his wife, he broke her fan and he also admits that during another argument he threatened to burn his wife’s possessions. The applicant also admitted in oral evidence that he threatened his wife’s co-worker during the incident in July 2018. In the Tribunal’s view, such threats may also be considered as violent conduct and conduct intended to cause fear. The Tribunal does not accept the applicant’s argument that he does not have a history of violence. The applicant concedes that he makes ‘bad choices’ when he consumes alcohol.
The Tribunal considers the nature and seriousness of the conduct to be significant. The assault offence, and the domestic violence conduct, involves violence or threat of violence towards others. Direction 79 states at paragraph 9.1.1(b) that in considering the nature and seriousness of the criminal offending, the decision-maker must have regard to the principle that crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed.
In relation to the drug offences, the applicant states that his role was to arrange the time and quantity of supply of cannabis between suppliers and buyers and he collected payments from buyers on behalf of the suppliers. The applicant states that he does not have a history of using drugs and is not a drug addict. The Tribunal accepts that there is no evidence of the applicant using drugs.
There are before the Tribunal the sentencing remarks of Garling AJ of the District Court of NSW in relation to the applicant’s drug conviction in November 2013. These indicate that the applicant was responsible for arranging the time and quantity of supply of cannabis and that the amount of the charge of cannabis was close to 55 kilos. Garling AJ found that the applicant played the role of the facilitator, which was a higher role than a courier and interpreter and more than organising the collection of money. The Tribunal considers the nature and seriousness of the conduct leading to this conviction to be serious.
In relation to the breach of the AVO and the intimidation / stalking offences, the applicant explains in his submission to the delegate of 21 September 2018 and his declaration that his relationship with his wife ended in June 2018 and his wife left him, taking the child. He was charged with intimidation of his wife and an AVO was granted which prohibited him from approaching his wife. The applicant went to his wife’s place of work to ask her about their daughter and a worker called the police. The applicant states that the breach of the AVO was not violent in nature but involved him going within 100 meters of his wife’s place of work to ensure about their child. The Tribunal accepts that this incident may not have involved violence, although the police report indicates that some threats may have been made.
The applicant’s former partner gave oral evidence to the Tribunal and for the purpose of this decision she will be referred to as Ms N. She repeatedly stated that the applicant may do ‘bad things’ and that he cannot control himself when he is angry or when he drinks. Ms N initially told the Tribunal that she is not fearful of the applicant but later admitted that she is still afraid he may do something bad if he is angry and said that she is ‘a little afraid’ of Mr Vu. The Tribunal is of the view that any conduct that causes another person to be fearful for their safety and well-being is serious.
The applicant suggests that his offending was less serious since his conviction for the drug offences. The Tribunal accepts that the subsequent offending attracted lesser sentences, however the Tribunal does not consider it helpful or necessary to consider each offence in isolation. It is permissible, in the Tribunal’s view, to consider the cumulative nature of the offences, their frequency and the applicant’s overall willingness to abide by the law.
The Tribunal considers the cumulative nature of the offending serious. Even though the more recent offences may be said to be less serious, the fact that they occurred after the applicant had made several undertakings not to re-offend and during the time when he was facing the cancellation of the visa and was aware of the consequences of his conduct, suggests the applicant’s inability, or unwillingness, to act in accordance with the laws. The offences took place over a lengthy period of time, starting within three years of the applicant’s entry to Australia and continuing to the present. Many of the offences, in particular the drug offence and the breach of the DVO, are serious and the applicant received custodial sentences in relation to several offences.
The Tribunal finds that the frequency and cumulative effect of the applicant's criminal conduct is a matter of serious concern. The nature and seriousness of his offending weigh heavily in favour of cancellation.
The applicant argues in his submission to the delegate that he has reformed since committing these offenses and that there is a low risk of reoffending. In his Personal Circumstances Form dated March 2018 the applicant claims that he has changed and has demonstrated that he has been of good character since the last offence in 2012. In his statement dated 27 March 2018 the applicant also stated that he has made an effort to change his life, had found employment and participated in various rehabilitation programs. The applicant states in his written submission to the delegate that he has changed his life since 2012 and has not reoffended and has not had any dealings with his past friends. The applicant states that he has completed a counselling program on gambling and has stopped gambling. He does not take drugs and cut down on his drinking. The applicant refers to his employment. In oral evidence to the Tribunal the applicant stated that he no longer gambles and only drinks casually. The applicant states that he has realised his error and that his future would be different. The applicant states that he would not re-offend. The Tribunal is mindful that the applicant made the same claims of having reformed in response to the first NOICC and had then made an undertaking of not re-offending. Given the subsequent offences that occurred, including after the time that his daughter was born and after the applicant was issued with the second NOICC, the Tribunal finds the applicant’s evidence unpersuasive. The Tribunal notes that despite his claims that he had changed, the applicant continued to re-offend.
The evidence before Tribunal suggests that at least some of the offending occurred due to, or in proximity of the applicant consuming alcohol. The applicant concedes in his evidence to the Tribunal that he sometimes has difficulty controlling his behaviour due to alcohol and that was also the evidence of Ms N. The Tribunal considers it significant that despite the applicant’s participation in rehabilitation programs in the past, the applicant admits that he continues to consume alcohol, although he claims he does so less than before. The applicant was only recently convicted of driving under influence, supporting the evidence that he has continued with alcohol intake. If the applicant continues, the Tribunal is concerned that the applicant will continue to engage in anti-social or criminal behaviour.
The applicant relies on the report of Mr Green and claims that family is important to him and that the presence of his wife and child make it less likely that he will re-offend. The Tribunal does not accept that assertion, given the fact that the applicant has been issued with an AVO in relation to his spouse and was convicted of breaching the AVO. The most recent offences occurred after the birth of his daughter, so the presence of these family members has not altered the applicant’s behaviour. In such circumstances, the Tribunal does not accept that the presence of his spouse and child, or his relationship with these family members, would minimise the risk of the applicant committing further offences or engaging in other serious misconduct.
The Tribunal is of the view that the applicant would have recognised the significance of his offending and had the opportunity to reform following the earlier convictions. As noted above, the offences took place over a lengthy period. The applicant had ample time to appreciate the significance of his conduct. The Tribunal is mindful that in response to the first NOICC, in his submission dated 23 October 2006, the applicant stated that there was little likelihood that the offensive conduct may be repeated due to a number of factors, including the applicant’s relationship with his partner, the deterrent influence of his most recent imprisonment, development of his skills and maturity. The applicant stated in his statement of 23 August 2006 that he appreciated his errors and does not wish to re-offend. The applicant stated that he has changed his behaviour and would abide by the Australian laws. The applicant presented evidence of having attended drug and alcohol counselling support program, as well as a number of other training programs. The Tribunal is mindful that despite these undertakings, the applicant continued to offend and had committed multiple offences between 2006 and 2018. While the applicant told the Tribunal that his situation now is different because of the importance of his relationship with his daughter, the Tribunal does not accept that evidence, given that some of the offences were committed after the birth of the child.
The Tribunal has also considered the pre-release report dated 13 May 2014 which refers to the applicant participating in various programs while in custody and maintaining a ‘satisfactory record of custodial performance’. It is recommended that the applicant is suitable for a medium level of intervention by Corrective Services commensurate with the assessed risk. The pre-sentencing report does not suggest that there is a low risk of reoffending, considering that medium level of intervention has been found to be necessary. Mr Green’s report of 19 April 2018 refers to the change in the applicant’s circumstance that may reduce the risk of re-offending. At that time in April 2018, Mr Green has assessed the risk of re-offending as low, based on factors including the applicant’s relationship with his spouse. That relationship has now ended and offences were committed following the breakdown of the relationship. Given the subsequent offending, the Tribunal has formed the view that Mr Green’s assessment can be given limited weight.
In his submission to the Tribunal of 1 March 2019 the applicant refers to the reasoning in Godley v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 83 ALD 411 that “a person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character”. The Tribunal accepts that this is the case, however, the Tribunal does not accept that such a determination can be made in the present case and in the applicant’s circumstances. This is because there is little probative evidence of the applicant having reformed. Despite the applicant’s participation in counselling programs and his claimed desire to reform, the birth of his daughter and his desire to remain in Australia, the applicant’s oral evidence to the Tribunal is that his gambling problems continued until 2010 or 2011 (or around 2012 when he was arrested for drug offences) and although he claims to have stopped drinking heavily at some point, the applicant also admitted that he started drinking again around the time of his most recent drink driving offence in December 2018. The applicant’s oral evidence to the Tribunal is that part of the reason his relationship with his spouse broke down in June 2018 was due to his drinking and gambling and the applicant suggested to the Tribunal that he resumed drinking in early 2018. It appears that the behaviour that may have contributed to the previous offending has continued and there is no evidence that since the applicant resumed the intake of alcohol, he completed any formal rehabilitation programs that may assist him in avoiding such behaviour. (In oral evidence the applicant stated that he would ‘think seriously’ about the matter once the visa cancellation matter is resolved). The Tribunal is not satisfied on the evidence before it that the applicant has been rehabilitated or has reformed, in relation to his alcohol intake, despite his present circumstances.
The Tribunal is mindful that even after receiving the NOICC and when the applicant was on notice that his visa and the possibility of being removed from Australia, the applicant continued to offend. The repeated nature of the offending, the frequency and the seriousness of the offences, all suggest that the applicant has little appreciation of, or remorse for, his conduct, despite his evidence that he has reformed and that there is little prospect of reoffending. The Tribunal does not consider that the risk of reoffending is minimal or insignificant. The Tribunal is not satisfied the applicant’s behaviour in the future would be substantially different from his past conduct. The repeated offending does not support the applicant’s contention that he has reformed or that he is now a person of good character.
The Tribunal also places weight on the fact that the applicant was previously issued with the Notice of Intention to Consider Cancellation and although the cancellation did not proceed at that time, the applicant was warned that his visa may be cancelled if he engaged in criminal conduct. The applicant was fully cognisant of the implication of his conduct and the Tribunal is of the view that at that time, the applicant appreciated the significance of the visa cancellation. The fact that the applicant continued to reoffend, and was engaged in more serious criminal conduct, contradicts in the Tribunal’s view, the applicant’s claims that he has reformed. The Tribunal considers the risk of the applicant engaging in further criminal conduct to be substantial, despite his claims that his conduct has changed.
The Tribunal considers the risk to the Australian community, should the applicant commit further offences or engage in other serious conduct, to be significant, given the serious nature of past offences and the fact that some of the offences included violence or threats of violence towards others. The Tribunal has formed the view that protection of the Australian community weighs in favour of the cancellation of the applicant’s visa.
The best interests of minor children
The applicant has a daughter born in Australia in 2015. In his evidence to the Tribunal the applicant states that since her birth, the applicant has been involved in all major decisions of his daughter’s life and made various payments for his daughter. The applicant presented evidence of his interactions with his daughter, including photographs, records of financial support, a number of statements and other materials.
The applicant’s evidence to the Tribunal is that his relationship with his partner had broken down. The applicant states that they attended family mediation in 2018 and agreed on a Parenting Plan for the care of their child, which they signed in 2018 and which the applicant carried out until his detention in January 2019. The Plan allows the applicant to see his daughter regularly and to participate in her upbringing. The applicant has expressed his intention and desire to be part of his daughter’s life and notes that his former partner cooperates for the benefit of the child’s welfare and upbringing. The applicant notes that if he were to return to Vietnam, any court order in relation to the child’s care would not be enforceable. In oral evidence, the applicant described how he helped look after the child from her birth and the financial support he has provided for his daughter’s upbringing.
The applicant said that his ex-wife has no family in Australia and nobody to help her care for the child and after the child’s birth, he was more experienced than his wife in looking after the child. The applicant submits that he is a joint carer for the child. The Tribunal accepts the applicant’s evidence. The Tribunal accepts that the applicant has developed, and maintains a close relationship with his daughter and that he has played a meaningful role in his daughter’s upbringing. The Tribunal accepts that the applicant has provided financial support to the child. The Tribunal is prepared to accept that the applicant is willing to play a positive parental role in the future. The Tribunal also accepts that at the time when the applicant did have access to his daughter, he acted as a caregiver to his daughter, although the Tribunal is mindful that there were periods when the applicant had access to his daughter.
The Tribunal has had regard to the psychological report of Mr Green. Mr Green outlines the applicant’s circumstances and the reasons for the offending, sets out the risk factors for re-offending and the effect that the separation from his daughter may have on the applicant. Having regard to that evidence, the applicant’s own evidence about his relationship with his daughter, the evidence of the applicant’s former spouse and other materials, the Tribunal accepts that the applicant has a close relationship with his child and provides parental guidance and support to her. The Tribunal accepts that it is in the best interest of the applicant’s minor child to maintain that relationship. The Tribunal accepts that the best interests of the child weigh against the cancellation of the visa. The Tribunal acknowledges that it is a primary consideration and has given it considerable weight.
The applicant’s evidence to the Tribunal is that his daughter is presently in Vietnam, living with her grandparents. Both the applicant and his former spouse told the Tribunal that it is their intention for the child to stay in Vietnam for a few months before returning to Australia.
Expectations of the Australian community
Paragraph 9.3 of Direction 79 states that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person… Decision-makers should have due regard to the Government’s views in this regard.
Consideration of the expectations of the Australian community must be made by reference to the community that is ‘fair minded and mature’[4] and an ‘informed, reasonable member of the Australian community rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s501’.[5] The Australian community could not be said to be intolerant of any risk. [6]
[4] Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23].
[5] Waits and MIMIA [2003] AATA 1336 at [36].
[6] KDSP and Minister for Immigration and Border Protection [2017] AATA 2169.
In YNQY v Minister for Immigration and Border Protection[7] said that the description of ‘community expectation’ in Direction 65 (which is substantially identical to Direction 79) operates as a prescription statement. Mortimer J states at [76]:
In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[7] [2017] FCA 1466.
In his written submission to the Tribunal the applicant states that the community may expect for the cancellation issue to be dealt with quickly but he only received the NOICC more than three and a half years after the 2013 conviction and in that time he completed his parole and resumed his life in Australia. The applicant also notes that when he was granted the Resident Return visa in 2017, the delegate would have been satisfied that he passed the character test. In oral evidence, the applicant also submits that it is significant that the applicant was released after serving his sentence. He states that he was allowed to live in the community and to sponsor his partner, so the Department was aware of his circumstances. The applicant submits that Directions 65 and 79 require cancellations to be processed expeditiously. The Tribunal does not consider that the delay in issuing the NOICC indicates that the applicant was assessed as not being a risk to the community. While the Tribunal acknowledges that the Directions require timely processing of cancellations, the Tribunal is mindful that there may have been many reasons for the delay, including simple administrative delays. The Tribunal is mindful that any administrative process, including the delay in cancelling a visa and any assessment that may have been made as part of that process (and the Tribunal does not accept that the delay is indicative of an assessment favourable to the applicant), such an assessment does not affect the Tribunal’s obligations. It is for this Tribunal to determine whether the applicant passes the character test and any previous assessment by a decision-maker in relation to a visa grant has no bearing on that determination. The Tribunal also notes that the applicant has been subject to more convictions since the time his Resident Return visa was granted, so any character assessment may have been different in light of the additional information.
As for the delay, the Tribunal acknowledges that the community expectation may be that matters such as the present one are dealt with as expeditiously as practically possible but the Tribunal is of the view that the community may be more concerned with the nature of the applicant’s conduct than with the delay in dealing with his immigration issues.
The Tribunal has considered the totality of the applicant’s circumstances. The applicant has been living in Australia for around twenty years and is well settled in Australia. He has formed social and financial ties in Australia. He has an Australian citizen child residing in Australia. The Tribunal acknowledges that the community may expect to give the applicant ‘a second chance’ and to enable him to maintain his life in Australia and his relationship with his child. However, the nature and frequency of the applicant’s offending is also relevant. The applicant’s offending is serious and his convictions are multiple. The applicant had already been warned of the possibility of his visa being cancelled following the earlier convictions, and made an undertaking to reform at that time. Despite that, the applicant continued to reoffend.
Paragraph 6.3(2) of Direction 79 provides that 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. The applicant has committed serious crimes in Australia. He has persistently engaged in criminal conduct over a lengthy period of time. Given the nature and consistency of such conduct, the Tribunal has formed the view that the community expectation would be that the applicant’s visa should remain cancelled.
The Tribunal considers that there are some factors which weigh in the applicant’s favour when considering community expectations, most notably the length of time the applicant has spent in Australia, the presence of his child here and the extent of his settlement in Australia. Despite these, the Tribunal is of the view that the Australian community does not expect people to repeatedly engage in criminal behaviour. This is particularly so when the applicant had already been warned that his visa may be cancelled and he had been given an opportunity to remain in Australia despite his earlier offences. He was fully cognisant of the consequences of his conduct and expectations of the community in relation to his conduct.
The applicant submits that he has not committed any serious offence since 2014. The applicant states that there was no violence during the incident when the AVO was breached. The Tribunal is of the view, however, that a breach of an AVO is in itself a serious offence as it may cause fear. Ms N’s evidence to the Tribunal is that at least during the relationship and at the time the AVO was issued, she was fearful of the applicant. While the Tribunal acknowledges the applicant’s claim that there has been no serious misconduct since 2013, the Tribunal does not believe it is preferable to consider these offences in isolation.
The applicant submits that the serious crimes were committed before the birth of his daughter in 2015. He submits that the importance of his desire to remain in Australia with his daughter, the shock of detention and the current proceedings and the risk of separation from his daughter would ensure that the applicant would fully appreciate the risk of re-offending. The Tribunal does not accept that argument because, as noted above, the Tribunal is of the view that the applicant fully appreciated the risk of re-offending at least by the time he was previously issued with the NOICC. Even though that was before the birth of his daughter, the applicant would have been fully cognisant that his visa may be cancelled if he continued to engage in criminal conduct. The applicant had already experienced the ‘shock of detention’ following his custodial sentence. Following the birth of his daughter in 2015, the applicant continued to re-offend. These factors had not affected the applicant’s conduct.
The applicant submits that the Australian community would not expect to separate a father and a child and for an Australian child to grow up in a country different from her father’s. The Tribunal accepts that the presence of the applicant’s child in Australia, and his relationship with that child, may support the view that the applicant should be allowed to remain in Australia. These factors must be weighed against other considerations, including the applicant’s conduct.
The Tribunal finds that the applicant’s criminal history would not meet Australian community expectations. Although there are considerations that are favourable to the applicant, the Tribunal does not consider that the Australian community would expect the applicant to hold a visa in circumstances where he had committed offences, expressed remorse about his conduct and made an undertaking to change, was warned about the consequences of future misconduct, and then continued to commit serious offences. The Tribunal finds that the applicant’s conduct does not meet Australian community expectations.
Other considerations
International non-refoulement obligations
In his written submission dated 7 May 2018 the applicant refers to Articles 17 and 23 of the International Covenant on Civil and Political Rights and request that his family life be given consideration. The applicant states that he wishes to continue to be a good husband to his wife and a good father to his daughter. The applicant states that if his visa is cancelled his wife’s Partner visa would most likely be refused and their child would have no parents to care for her in Australia and she may become a state ward. The Tribunal notes that the applicant’s former spouse has now been granted a permanent Australian visa and there is no suggestion that any consideration is being given to its cancellation, given that it has been granted after the applicant’s own visa was cancelled. The Tribunal does not accept there is any chance of the child becoming a ward of the state as a result of the applicant’s visa being cancelled.
As for the applicant’s claim that he wants to be a good husband to his wife, the Tribunal notes that an AVO was issued in relation to the applicant to protect his partner. The AVO was issued in June 2018 for a period of 12 months and remains in place. The applicant’s own evidence is that the relationship has ended. Ms N’s evidence to the Tribunal is that she is sometimes fearful of the applicant. In these circumstances, the Tribunal does not accept the applicant’s evidence.
The applicant does not claim that Australia’s non-refoulement obligations would otherwise arise. The Tribunal finds that international non-refoulement obligations would not be affected by the outcome of this review.
Strength, nature and duration of ties
The applicant presented a number of statements and character references from third parties. The applicant’s cousin, also gave oral evidence to the Tribunal confirming the close relationship between the applicant and his daughter. The Tribunal accepts that those who provided references believe the applicant to be a good person and to have reformed. They also refer to the applicant’s relationship with his daughter. The Tribunal accepts the cousin’s evidence that he believes the applicant to be a good father. The Tribunal also accepts that since his entry to Australia some twenty years ago, the applicant has formed ties in the Australian community. The applicant has been resident in Australia for many years, mostly as a holder of a permanent visa and had previously engaged in employment (albeit for very limited periods) and he also completed some study in Australia. The Tribunal accepts that the applicant has strong and significant ties in Australia of lengthy duration.
Impact on Australian business interests
There is no evidence before the Tribunal to indicate that Australian business interest would be impacted as a result of the applicant’s visa being cancelled.
Impact on victims
The applicant’s former spouse expressed fear as a result of the incident when the applicant approached her place of work. Police reports show that she has expressed fear in relation to other incidents leading to the separation. There is little other evidence before the Tribunal concerning the impact on victims.
Extent of impediment if removed
The applicant states that his removal from Australia and from his daughter’s life would not only adversely affect his daughter but also himself. The Tribunal accepts that the separation of the applicant from his child is likely to have an adverse effect on the applicant, as well as his child. The applicant states that he may not be able to see his child again and his child would be affected if she grows up without a father. The Tribunal is mindful that the child can visit Vietnam, and presently lives in Vietnam, although the Tribunal acknowledges that such arrangements would need to be made with the support of the child’s mother due to the child’s young age. Ms N’s evidence to the Tribunal is that subject to finances, she is willing to bring the child to Vietnam several times a year. There is also the possibility of electronic contact.
The applicant states in his submission to the delegate that it would be difficult for him to start his life again in Vietnam and to find work in Vietnams as he has not lived there for the past 20 years. The applicant states that this would cause him and his family to live in poverty. The applicant has not presented any evidence of having sought employment or of having been denied employment in Vietnam and there appears to be no probative basis for the applicant’s claim that he would be unable to find employment in Vietnam. The Tribunal is also mindful of the applicant’s oral evidence that his family had provided financial support to him whenever he faced problems in Australia. That appears to contradict the applicant’s written evidence that his family cannot help. Although the applicant claims his family has been helping him ‘with difficulty’ and that their financial source has been exhausted, the applicant presented no evidence to support these assertions. The Tribunal does not accept that the applicant would be unable to find employment in Vietnam. The Tribunal does not accept that the applicant will face poverty if he returns to Vietnam.
The Tribunal accepts, however, that the applicant has spent many years in Australia and that he may find it difficult to re-establish his life in Vietnam, despite the presence of several relatives there. The Tribunal also accepts that the cancellations of the visa would preclude the applicant’s opportunity of returning to Australia in the near future.
The applicant states in an earlier written submission that he is not certain if he would face any criminal action in Vietnam due to his convictions in Australia but, again, the applicant presented no probative evidence that this would be the case. The applicant informed the Tribunal in oral evidence that this claim was not pursued.
Generally, the Tribunal accepts that the applicant would face significant impediment if removed from Australia.
CONCLUSION
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant does not pass the character test and that there are grounds for cancelling his visa.
The Tribunal accepts that the best interests of the applicant’s child require the applicant’s presence and ongoing relationship with the child in Australia. The Tribunal acknowledges that it is a primary consideration and the Tribunal gives this significant weight in favour of the applicant. However, that does not necessarily mean that the decision must be made in favour of the applicant.
The Tribunal also accepts that that there may be a significant impediment to the applicant if removed, as the applicant has spent a very lengthy period of time in Australia and has established his life here. The Tribunal accepts that the applicant has substantial ties in Australia and there is evidence of community support. The Tribunal also accepts that the applicant’s departure from Australia may cause hardship to his daughter and his former wife, who has no other family support in Australia and who relies on the applicant financially and with the child’s upbringing. These are strong factors that support a finding that a cancellation should be set aside.
However, against these considerations, the Tribunal has formed the view that expectations of the Australian community would be in favour of the cancellation, despite the applicant’s links to Australia and despite the presence of his child here. This is because the applicant has committed serious offences in Australia and his offences are numerous. Despite the warning the applicant received when the possibility of the visa cancellation was first raised with him, and despite his undertakings to change, the applicant continued to re-offend. The Tribunal has formed the view that the applicant has a substantial disregard of the Australian law, which he has displayed throughout the period of his stay in Australia. The applicant continued to offend after the birth of his daughter and after the second NOICC was issued, when the applicant was fully cognisant of the potential implications of his conduct. In the particular circumstances of this case, the Tribunal has formed the view that the expectations of the community would be in favour of the cancellation and that is also a primary consideration.
In terms of the protection of the Australian community, the Tribunal rejects the applicant’s claim that he would not re-offend or there is little chance of him re-offending. The Tribunal places weight on the fact that the applicant made the same undertakings in response to the first NOICC and these were supported by his treating psychologist, yet the applicant committed serious crimes since that time. Despite the applicant’s claim that his present circumstances are different because he no longer drinks, does not gamble and has a close relationship with his daughter, the Tribunal does not accept the applicant’s claims given that he has made the same undertakings in the past and has not complied with these. The Tribunal does not accept that the chance of the applicant reoffending are insignificant. The Tribunal has formed the view that there is a real likelihood of the applicant reoffending or engaging in other serious conduct. Given the frequency of the offending and the violent nature of some of the offences, the Tribunal considers that the risk of reoffending is considerably more than negligible. If such offending occurs, it poses a risk to the community. The Tribunal has formed the view that protection of the Australian community would be in favour of the cancellation.
There is little information before the Tribunal about the impact on Australian businesses and on the victims. The Tribunal has found that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.
DECISION
The Tribunal has formed the view that the protection of the Australian community and community expectations outweigh other considerations. Having considered the applicant’s circumstances singularly and cumulatively, the Tribunal finds that the visa should be cancelled. The Tribunal affirms the decision under review.
I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Raif.
.............................[sgd]...........................................
Associate
Dated: 4 April 2019
Date(s) of hearing: 27 and 28 March 2019 Solicitors for the Applicant: P Silver Solicitors for the Respondent: D Watson, Australian Government Solicitor
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