Vu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 1783
•5 June 2024
Vu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1783 (5 June 2024)
Division:GENERAL DIVISION
File Number(s):2024/1538
Re:Thi Huyen Trang Vu
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member W Frost
Date of decision: 5 June 2024
Date of written reasons: 14 June 2024
Place:Canberra
Pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review not to revoke the mandatory cancellation of the Applicant’s visa under subsection 501(3A) of the Migration Act 1958.
....[SGD]....................................................................
Member W Frost
Catchwords
MIGRATION – cancellation of Applicant’s Class BS Subclass 801 Partner visa – mandatory cancellation of visa under s501(3A) Migration Act – whether Applicant passes the character test – substantial criminal record – consideration of Ministerial Direction 99 – whether ‘another reason’ why decision should be revoked under s501CA(4) – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975, s 43 (1)(a)
Migration Act 1958, ss 5AB,189, 197(c), 198, 499, 499(2A), 500(1)(ba), 501(3A), 501(6), 501(6)(a), 501(7)(c), 501CA(3), 501CA, 501CA(4), 501CA(4)(b)(ii), 501G.
Migration Amendment (Aggregate Sentences) Act 2023Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
GNRK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 250
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50].
Suleiman v Minister for Immigration and Border ProtectionWGKS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 38
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member W Frost
14 June 2024
INTRODUCTION
This proceeding concerns the review of a decision by a delegate of the Respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), not to revoke a decision to mandatorily cancel the Class BS Subclass 801 Partner visa (Visa) of the Applicant, Ms Thi Huyen Trang Vu, under subsection 501(3A) of the Migration Act 1958 (Act).[1]
[1] Exhibit 1, pages 1-20.
Ms Vu is a 34-year-old Vietnamese citizen who has resided in Australia since 2009.[2] In April 2022, Ms Vu was convicted of criminal offences related to the cultivation and supply of a commercial quantity of the prohibited drug cannabis.[3] In July 2022, Ms Vu’s Visa was mandatorily cancelled because she had been sentenced to a term of imprisonment of 12 months or more (Cancellation Decision).[4] She sought revocation of the Cancellation Decision,[5] but a delegate of the Minister refused this request.[6] As a result, Ms Vu applied to the Administrative Appeals Tribunal (Tribunal) for review of that decision.[7]
[2] Exhibit 1, pages 120-123 and Exhibit 32.
[3] Exhibit 1, pages 22-24.
[4] Ibid., pages 124-130.
[5] Ibid., pages 47-65.
[6] Ibid., pages 10-20 and 169-177.
[7] Ibid., pages 1-9.
The Tribunal has considered all of the documents in the bundle of documents filed in this proceeding, pursuant to section 501G of the Act, together with the parties’ submissions and their respective additional documents.[8] For the following reasons, the Tribunal has decided to affirm the decision under review not to revoke the decision to cancel Ms Vu’s Visa. This means that Ms Vu’s application to the Tribunal is unsuccessful, and her Visa remains cancelled.
[8] Exhibits 1-34.
BACKGROUND
In 2009, at 19 years of age, Ms Vu arrived in Australia on a student visa.[9]
[9] Exhibit 1, pages 32 and 120; Exhibits 3, 26 and 32.
Between 31 January 2010 to 15 March 2010 and from 31 May 2010 to 26 September 2010, Ms Vu was out of Australia.[10]
[10] Exhibit 32.
In July 2010, Ms Vu married her now former husband, Mr L.[11]
[11] Exhibit 1, page 33; Exhibits 3 and 26.
Between 17 December 2010 and 6 November 2011, Ms Vu was out of Australia.[12]
[12] Exhibit 32.
During this time, in April 2011, Ms Vu’s only biological child was born in Vietnam, where he continues to reside with his maternal grandmother.[13]
[13] Exhibit 1, page 56. See also Exhibits 8 and 26.
In or around September 2011, Ms Vu and Mr L divorced.[14]
[14] Exhibit 3, page 3; Exhibit 26.
In 2012, Ms Vu married her current husband, Mr B.
Between 14 January 2013 and 22 February 2013, Ms Vu was out of Australia.[15]
[15] Exhibit 32.
Between 14 April 2018 and 16 May 2018, Ms Vu was out of Australia.[16]
[16] Ibid.
On 3 December 2019, Ms Vu was granted the Visa the subject of this proceeding, being a Class BS Subclass 801 Partner visa.[17]
[17] Exhibit 1, pages 117-119.
Between 23 December 2019 and 19 February 2020, Ms Vu was out of Australia.[18]
[18] Exhibit 32.
In August 2020, Ms Vu was arrested and taken into custody for the offences related to the cultivation and supply of a commercial quantity of a prohibited drug.[19]
[19] Exhibit 1, pages 40-41 and Exhibit 26.
On 7 April 2022, Ms Vu was convicted in the District Court of New South Wales (NSW) of ‘Knowingly take part-cultivate >=large comm qty proh plant-SI’ and ‘Take part supply prohibited drug >=large commercialqty-SI’.[20] She was sentenced to an aggregate term of five years and six months’ imprisonment with a non-parole period of three years and two months.[21] The term of imprisonment commenced from the time Ms Vu was taken into custody on 27 August 2020 and expires on 26 February 2026, with the three-year and two month non-parole period having ended on 26 October 2023.[22]
[20] Exhibit 1, pages 22-41.
[21] Ibid.
[22] Ibid.
On 26 July 2022, Ms Vu’s Visa was mandatorily cancelled under subsection 501(3A) of the Act, because it was determined that she did not pass the ‘character test’ under the Act and was serving a sentence of imprisonment on a full-time basis in a custodial institution for the aforementioned offending.[23] Ms Vu was invited to make representations seeking revocation of that decision.[24]
[23] Ibid., pages 124-130.
[24] Ibid.
In August and October 2022, Ms Vu requested revocation of the mandatory cancellation of her Visa and made associated submissions.[25]
[25] Ibid., pages 47-73.
On 25 August 2023, the NSW State Parole Authority directed that Ms Vu be released on parole from 26 October 2023 and noted that she would at that time be taken into immigration custody.[26] Ms Vu has been residing at Villawood Immigration Detention Centre since October 2023.
[26] Ibid., pages 99-103.
On 13 March 2024, a delegate of the Minister decided not to revoke the mandatory cancellation of Ms Vu’s Visa.[27] On the same date, Ms Vu received notice of that decision via her then lawyers.[28]
[27] Ibid., pages 10-21 and 169-177.
[28] Ibid., pages 166-168.
On 15 March 2024, Ms Vu applied to the Tribunal for review of the decision not to revoke the mandatory cancellation of her Visa.[29]
LEGISLATION & MINISTERIAL DIRECTION
[29] Ibid., pages 1-9.
The Act
Subsection 501(3A) of the Act relevantly provides that the Minister must cancel a visa that has been granted to a person if satisfied that the person does not pass the ‘character test’ because they have 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 the Commonwealth, a State or a Territory’.
Under subsection 501(6)(a) of the Act, a person does not pass the character test if they have a ‘substantial criminal record (as defined by subsection (7))’. Pursuant to subsection 501(7)(c) of the Act, a person has a ‘substantial criminal record’ if the person ‘has been sentenced to a term of imprisonment of 12 months or more’.
Subsection 501CA(3) of the Act provides that when a decision has been made under subsection 501(3A) to cancel a visa that has been granted to a person, the Minister must give the person written notice setting out the cancellation decision, particulars of the relevant information and invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original cancellation decision.
Under subsection 501CA(4) of the Act, the Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
For completeness, the Tribunal notes that subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) of the Act. Accordingly, the delegate’s decision not to revoke the mandatory cancellation of the Visa is reviewable by the Tribunal.
The Direction
Under section 499 of the Act, the Minister may give written directions to a person or body, such as the Tribunal, having functions or powers under that Act, if the directions are about the performance of those functions or the exercise of those powers and are not inconsistent with the Act or the regulations made under it. The person or body to whom the directions are given must comply with them, pursuant to subsection 499(2A) of the Act.
On 23 January 2023, the Minister made a direction under section 499 of the Act, being Direction No. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99), which commenced on 3 March 2023 and applies in relation to the Tribunal’s consideration of Ms Vu’s application for review of the decision not to revoke the mandatory cancellation of her Visa.
The Preamble to Direction 99 sets out its objectives and principles, relevantly including:
(a)the objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test is liable for cancellation of their visa (paragraph 5.1(1));
(b)a non-citizen who has had their visa cancelled under subsection 501(3A) of the Act may request revocation of that decision under section 501CA of the Act (paragraph 5.1(3));
(c)where a decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case (paragraph 5.1(3));
(d)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community (paragraph 5.2(1));
(e)non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia (paragraph 5.2(2));
(f)the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (paragraph 5.2(3));
(g)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time (paragraph 5.2(4));
(h)Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years (paragraph 5.2(5)); and
(i)decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(6)).
Paragraph 6 of Direction 99 provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Section 8 in Direction 99 relevantly states that, in making a decision under subsection 501CA(4) of the Act, the following are ‘primary considerations’:
(1)protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(2)whether the conduct engaged in constituted family violence (Primary Consideration 2);
(3)the strength, nature and duration of ties to Australia (Primary Consideration 3);
(4)the best interests of minor children in Australia (Primary Consideration 4); and
(5)expectations of the Australian community (Primary Consideration 5).
Section 9 of Direction 99 relevantly provides that, in making a decision under subsection 501CA(4) of the Act, the following non-exhaustive list of other considerations must be taken into account, where relevant:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
Finally, paragraph 7 of Direction 99 states that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
ISSUES
The issues for determination by the Tribunal in this proceeding were:
(a)whether Ms Vu passed the ‘character test’ defined in subsection 501(6) of the Act; and
(b)if not, whether there was ‘another reason’ why the original decision to mandatorily cancel the Visa should be revoked under subsection 501CA(4)(b)(ii) of the Act.
EVIDENCE
Ms Vu
The Tribunal has considered Ms Vu’s written material, including her Statutory Declaration made in this proceeding on 24 April 2024.[30]
[30] Exhibit 1, pages 74-80; Exhibits 3 and 5.
Ms Vu gave evidence at the Tribunal hearing by video from Villawood with the assistance of a Vietnamese interpreter.
Ms Vu told the Tribunal that she was the victim of domestic violence in that country. Ms Vu was referred to her statement that her former husband, Mr L, had recently returned to Vietnam and threatened her mother, including with removal of Ms Vu’s son. She confirmed this was correct.
Ms Vu told the Tribunal that she still fears her former husband because she was facing a lot of difficulties when divorcing him. She described him as ‘a man of violence’ who threatened and swore at her. When Ms Vu found out about his extramarital affair, she wanted a divorce, but he ‘intimidated’ and ‘assaulted’ her and said he did not want to divorce. After divorcing, Mr L went to Japan and returned to Vietnam in 2023 and has ‘threatened’ Ms Vu's mother and told her that he would take Ms Vu’s son with him. Ms Vu is worried that if Mr L knows she is returning to Vietnam, he will ‘chase’ her and ‘threaten’ her safety. She also fears for the safety of her mother and son.
Ms Vu was asked what she thinks will happen to her if she has to return to Vietnam. Ms Vu told the Tribunal that if she is forced to leave Australia, she will have to ‘confront’ her ex-husband and he will ‘follow me’, ‘intimidate me’, and ‘do everything to make me very scared’.
Ms Vu is concerned for her son, who is now 13 years old. She does not want him to see what may happen to her with his father as she worries it will make him ‘so scared’ and does not want anything to happen to him.
Ms Vu was referred to her challenges growing up, including family separation and her parents’ attempted suicide. Ms Vu told the Tribunal that when she was 11 or 12 years old, her parents started to divorce and she witnessed her father’s attempted suicide. After this incident, her father poured petrol throughout the house and said he wanted to ‘finish everything with us’. She was asked how the recently completed SMART recovery course had assisted in helping to understand her behaviour and the underlying trauma she had been carrying for many years.
Ms Vu said she committed the crimes because she did not understand the ‘detrimental effects’ of drugs on people. After she learnt about their effects from the recently completed courses, Ms Vu knew it was ‘very wrong’ and was regretful and remorseful. Ms Vu said she now knows how to deal with issues and problems when she becomes stressed and how to identify solutions. She says she also learnt that she will pay the consequences of her detrimental actions.
Ms Vu told the Tribunal she did not know the location of her co-accused and other offenders.
By way of cross-examination, Ms Vu was referred to her recent Statutory Declaration and said its content was true and correct.[31] She told the Tribunal that she spoke the words in English in front of her lawyer and confirmed that she can talk and write in English, but not perfectly. Ms Vu said she read the completed statement and understood its contents.
[31] Exhibit 5.
Ms Vu was also referred to her signed undated seven page written statement in English that was before the Tribunal and said that she wrote that document while in gaol.[32] Ms Vu said she asked a friend in gaol to correct the grammatical mistakes. She studied English at school in Vietnam and came to Australia on a student visa to study a six-month English course and then enrolled in a business course which she did not complete.
[32] Exhibit 1, pages 74-80.
Ms Vu was asked whether she understood that the student visa was to study a particular course in Australia and for her to then return to Vietnam. She agreed. Ms Vu was asked why she then remained in Australia after this incomplete study. Ms Vu told the Tribunal she met her second husband and wanted to stay in Australia and did not want to return to Vietnam to be confronted or chased by her first husband. It was put to Ms Vu that her first husband was not in Vietnam during that time and was said to have returned in late 2023. Ms Vu confirmed that she married her second husband in August 2012 after they met in the beginning of 2012.
After Ms Vu was arrested her husband, Mr B, became ‘very angry’ and they did not have contact for a ‘very long time’. She agreed that she has not spoken to her estranged husband since 2020. Ms Vu told the Tribunal her husband was informed about her criminal offending after she was arrested and went to gaol. Ms Vu did not tell him she was committing crimes before that time. She was in a relationship with Mr B at the time of her offending and said she was living at the same residential address. However, Ms Vu also said that, in March or April 2020, she moved out of their matrimonial home because she sold her business in 2019 and was planning to sponsor her son to come to Australia. She further stated that her cousin also came to Australia to study at 19 years of age and Ms Vu told her husband that they needed to accommodate that person.
Ms Vu was asked why she moved out of home and away from her husband in March or April 2020. Ms Vu told the Tribunal that they were still in a relationship despite her moving out; they had ongoing contact and she visited the house in which her husband lived on weekends. Ms Vu was asked whether her evidence was that she moved out of that home because she wanted to live with her cousin, rather than her husband. She told the Tribunal that she discussed with her husband that for the first few months when her cousin came to study, she would live with her cousin so Ms Vu could look after her ‘physically and mentally’ during the COVID-19 pandemic. Ms Vu and her husband agreed that they would look for another rental property to accommodate everyone and to live together.
Ms Vu agreed that she was granted the Visa in December 2019 and by March or April 2020 she had moved out of the house she shared with her husband. She also again confirmed that she had not spoken with her second husband since 2020. Ms Vu said her husband was ‘angry’ about her offending and she did not have the opportunity to explain to him what she had done.
Ms Vu told the Tribunal that the plan was for her to return to live with her second husband after a few months in early 2020 and for them to sponsor her son to move from Vietnam. She agreed that she did not return to living with her second husband and did not have that opportunity because he could not arrange his business so they could move back together.
It was put to Ms Vu that she knew from the commencement of her criminal offending that it was illegal. She agreed to knowing it was illegal. Ms Vu also agreed she knew from the beginning that her offending was wrong. Ms Vu told the Tribunal that she knew it was ‘wrong’ and ‘illegal’, but her co-offender was a ‘very good and loyal friend for a long time’ and he was ‘very helpful to me’ and she treated him like ‘a brother’; she acknowledged this ‘thinking’ was ‘wrong’. Ms Vu said, at that time, she thought she had a ‘debt’ with him and did not think carefully when she committed the crimes. She was unaware at that time of the detrimental effect of cannabis on the community and the seriousness of the crime. She also agreed she knew from the ‘beginning’ that her offending was wrong.
Ms Vu was referred to her evidence that her co-offender was like a brother. It was put to her that, while he knew of her offending, she did not tell her own husband. She again agreed to not telling her husband of her offending. Ms Vu’s second husband was born in Australia and has a Vietnamese background. Ms Vu told the Tribunal that he has never lived in Vietnam, but he and his family travelled with her to visit Ms Vu’s family in that country. This family in Vietnam included her mother, older brother and son. She agreed that these three people are the closest people she has in the world and that they all live in Vietnam. Ms Vu told the Tribunal that she did not tell any family members about her offending because she ‘knew it was illegal’ and was ‘worried about that’.
The Minister’s representative referred to Ms Vu’s statement that the production or dealing of drugs is treated very seriously in Vietnam.[33] She agreed. Ms Vu said that, at the time of her offending, she was unaware of the serious and dangerous effect of drugs on the community because she had never used drugs or dealt with drug addicts.
[33] Exhibit 3.
At the hearing, Ms Vu expressed her remorse and claimed she was unaware drug dealing was illegal and had a serious impact. Upon further questioning she explained her evidence had not changed, and that she did understand ‘roughly’ the illegal activity and was ‘worried about it’, but did not know how to stop due to the relationship with her co-offender. Ms Vu then confirmed that she did know her offending was illegal at the time it occurred.
As a result, it was put to Ms Vu that this knowledge of the illegality was why she did not tell her husband or any family members. Ms Vu agreed. She said at that time she thought she had a debt with her co-offender because he had been very helpful through her divorce from her first husband and had helped her family. This co-offender continued helping Ms Vu, in relation to securing the Visa, wedding-related payments and lawyers’ fees.
Ms Vu was asked why she did not tell her husband about her offending if she thought she had a good reason to disregard the law due to feeling obliged to her co-offender. She was worried her husband would ‘not accept’ what she was doing and it would change his attitude towards her. It was put to Ms Vu that her excuse about indebtedness to her co-offender was not reasonable at the time. Ms Vu apologised. It was then put to Ms Vu that she knew at the time of her offending that her excuse was not reasonable because she did not inform family members, including her husband, who was said to have benefited from her co-offender’s assistance. Ms Vu told the Tribunal that she did not tell them because she was worried that they would be ‘angry’ with her. She agreed to knowing how seriously illegal drugs are treated in Vietnam.
Ms Vu confirmed that she was born in Vietnam and that her mother resides in that country with Ms Vu’s 13-year-old son. Ms Vu’s father also lives in Vietnam. She was close to her father until her parents separated when she was approximately 12 or 13. Ms Vu said she could not contact her father because he declined to talk to her on the telephone. Ms Vu saw her father when she last returned to Vietnam at the end of 2019. After that visit, she only contacted her father when released from gaol in 2023; he was unaware of her incarceration and they never talk about it. Ms Vu said her mother and brother knew she was in gaol, but not her son. Ms Vu confirmed that, after she was released from gaol, she resumed talking to her brother and that they are still close.
Ms Vu told the Tribunal that her mother currently has two siblings living in Vietnam; the third has passed away. Ms Vu agreed that she is particularly close to her aunt in Vietnam and that her father’s cousin, Ms Thi Vang Vu, helped Ms Vu’s mother to raise Ms Vu after her parents’ separation. She told the Tribunal that her father had five siblings but after her parents’ divorce she had no further contact with these aunts and uncles. However, Ms Vu told the Tribunal that she had contact with her father’s cousin after she came to help Ms Vu and her family, because that cousin knew what her father had done was wrong. Ms Vu said she was unsuccessful in trying to contact her father after her parents’ separation and did not maintain contact with his siblings. Ms Vu explained that Ms Vang Vu’s mother and her father’s mother were ‘cousins’. She was unsure of her familial relationship to Ms Vang Vu because Ms Vu was ‘too young’, although her parents told her that Ms Vang Vu was a distant cousin and the families lived close together.
Ms Vu told the Tribunal that her brother in Vietnam has two daughters, born in 2002 and 2007, with whom she speaks.
Ms Vu was asked whether there was any reason why her close family would not provide her with emotional support if she had to return to Vietnam. She told the Tribunal that she is actually only close to her mother and brother and did not have much contact with the rest of her family in Vietnam. Ms Vu said life in Vietnam was ‘difficult’ so her extended family could not support her ‘emotionally or materially’. She further stated that her brother is a painter, but after COVID-19 it was difficult for him to get work, he had to look after his daughters and she would become ‘a burden’ for the whole family.
The Minister’s representative put to Ms Vu that it was ridiculous to state that she would not have emotional support in Vietnam, particularly given she left her child in Vietnam in the care of her mother. Ms Vu told the Tribunal that her mother and brother are both divorced and the former was subject to ‘family violence’ and that her mother could not tell any of her family in Vietnam that Ms Vu was in gaol because it would be hard to get emotional support from them. Ms Vu told the Tribunal that her mother looked after her son for 13 years and was ‘very tired’, she had had ‘enough of the sorrow’, she ‘dealt with a lot’ and was ‘heartbroken’ due to family breakdown, she was 66 and was ‘too old’ to share with her any emotions.
As a result, Ms Vu was asked why she would not want to return to Vietnam to finally be with her son and assist her aging mother. Ms Vu said that she wanted to live peacefully and safely with her son, and she could not find this in Vietnam. Her mother wishes that they are safe and does not want Ms Vu to return to Vietnam to be ‘harassed’, ‘followed’ and ‘bullied’ by her ex-husband. It was put to Ms Vu that she abandoned her child in Vietnam and in 13 years she had not decided to return to live with her son. Ms Vu said that she did not abandon her son but that she only left him in Vietnam for her mother to look after him. Ms Vu said after she came to Australia and remarried, she felt ‘happiness and safety’ in this country and planned for her son to move to Australia. Her son wishes to migrate to Australia to live with Ms Vu in this country.
It was further put to Ms Vu that she was never before worried about the child’s father returning to take their son over 13 years and that, if that occurred, at least he would then have one parent to look after him. Ms Vu said that her ex-husband was a ‘violent person’ and ‘could not control his actions’ and she was worried that if her son lived with his father he would do the same thing and brainwash her child to talk ‘ill’ of her. As a result, the Minister’s representative put to Ms Vu that she had left her mother and son in Vietnam where the child’s father could easily access them. Ms Vu said that she worried ‘about that’. Her ex-husband lived in Japan from 2014 to 2023 and never showed any support for their son until the end of 2023 when he returned to Vietnam where he ‘made trouble’ with her mother about their child. Ms Vu speaks almost daily to her son and he told her that he only wants to live with her in Australia.
Ms Vu was asked whether she was aware of a protection or refugee visa. Ms Vu told the Tribunal that when she came to Australia she was sponsored for a spousal visa so was unaware of protection or refugee visas. Ms Vu stated that because she was unsure about these visas she only sought to have her permanent Visa reinstated. The Minister’s representative asked Ms Vu whether there was any reason why she would not apply for a protection or refugee visa if she was unsuccessful in the present review. Ms Vu said that it would be best if her Visa was reinstated so she can sponsor her son to live with her in Australia. As a result, Ms Vu was asked whether or not she would apply for a protection visa in circumstances where she had been convicted of serious drug offences and there was a possibility that she would not remain in Australia. Ms Vu again said that she wanted an opportunity for the Visa to be reinstated, she did the crime which was wrong, but asked for reinstatement to sponsor her son to live with her in Australia. She was again asked if she would apply for a protection visa if the Visa was not reinstated. Ms Vu told the Tribunal that the permanent resident Visa is ‘the more reasonable choice’ for her to stay in Australia with the prospect of being able to sponsor her son to move to Australia.
Ms Vu confirmed that she had been employed for most of the time she resided in Australia, including in the beauty industry. She was referred to a number of letters of support from people in that industry attesting to her good work ethic. Ms Vu said that she was dedicated and works really hard. It was put to Ms Vu that this employment history would put her in good stead to gain employment in Vietnam. She said that she left Vietnam at 19 years old and has lived in Australia for 15 years. She did not have any employment credentials from Vietnam and ‘didn’t know anything’ about that country. She also said that due to her crimes in Australia, people in Vietnam will isolate her when they find out about her offending and that this may preclude her from obtaining employment.
The Minister’s representative referred Ms Vu to the statement provided from Ms Vu’s friend’s husband, Mr Haytham Wafa, including an offer of employment. She confirmed that everyone who had provided letters of support, apart from Mr Wafa, had a Vietnamese background. Ms Vu was asked whether there was any reason why these people could not provide work references to support her gaining employment in Vietnam. Ms Vu said that they have all lived in Australia for a very long time, so they can only support her or guarantee a job for her if she stays in Australia. It was again put to Ms Vu whether there was any reason why they could not provide a work reference for her to provide prospective employers in Vietnam. Ms Vu said that they ‘could do that’, but her criminal offending will affect her name, she would be ‘isolated’ and would not have career or job opportunities in Vietnam. She also said that all beauty shops in Vietnam had closed down since COVID-19.
Ms Vu was referred to her distant relative in Australia, being her father’s cousin and was asked whether she had any other extended family members in Australia. Ms Vu said she had a female cousin and their family, together with her second husband’s family, with whom she would again socialise if released into the community. Ms Vu also referred to her father’s cousin’s two adult children with whom she is ‘very close’. Her cousin had a one-year-old child who visited her in Villawood almost weekly.
Ms Vu was asked whether there were any other children whose interests may be affected by the Tribunal’s decision. She said before being arrested she looked after the daughter of a ‘very close friend’ who is now in Melbourne.[34] She last spoke with this child during a video call with the child’s mother, Ms Vu’s friend, about one month ago. Ms Vu confirmed that she could continue contact with the child by video if she returned to live in NSW, but said the child missed her after Ms Vu was arrested. She agreed that she could continue to have video contact with this child from Vietnam.
[34] Exhibit 11.
Ms Vu also referred to three other children, being her father’s cousin’s granddaughters, to whom she was ‘very close’, including because she lived with them when she first came to Australia before moving in with her first husband. Two children were born in 2010 and 2013. Ms Vu confirmed that there were no written statements in these proceedings from the parents of these children. Ms Vu later referred to the third child of these parents, being another grandchild of her father’s cousin. Ms Vu further stated that she was ‘close’ to these three granddaughters of her father’s cousin, being the children of that cousin’s second adult son. Ms Vu confirmed that none of these children are her biological child, but she is ‘very close’ to them, used to live with them and was especially close to the girl born in 2010 when the mother of her child gave birth to the other child in 2013 (the third was born in 2015). All three of these minor children are presently cared for by their biological parents, but Ms Vu said she looked after them when she was first in Australia and lived with them before moving in with her husband.
Ms Vu did not look after the three other grandchildren of her father’s cousin, being the children of the eldest son of the cousin, but played with them ‘all the time’ before she married. She agreed to not having the level of closeness to these other three children as the other set of three children. Two of these three children are 18 years of age or older, with them having been born in 2003, 2006 and 2011. The one child under 18 presently lives with her parents.
Ms Vu was again referred to her offending. She told the Tribunal that she had recently read the sentencing remarks from April 2022. Ms Vu agreed that the actions set out in the sentencing remarks constituted the offences which she committed.
Ms Vu was referred to evidence that she took part in offending out of a sense of obligation to her co-offender. She agreed with this evidence. It was put to Ms Vu that she had a heavy involvement in the cannabis growing facility. She was unsure, but said she only did what her co-offender told her to do. Ms Vu confirmed that she organised with a real estate agent to purchase the land where the cultivation occurred and the loan with a mortgage broker, but that the co-offender ‘told [her] to do it’. She agreed to having inspected the farm and negotiated its purchase. Ms Vu collected the keys to the property. She organised the greenhouses and negotiated a price for their purchase. Ms Vu agreed that she organised for the other equipment, such as rainwater tanks, to be purchased and installed. She also agreed to conducting negotiations with several sellers regarding the purchase of the cannabis plants. She told the Tribunal that after she inspected the plants she reported to her co-offender and he decided which to purchase.
Ms Vu agreed that she was involved in supplying 427 kilograms of cannabis leaf comprising 2,441 plants. She was unsure of the exact number of plants, but considered it to be a ‘big number’ and therefore likely correct. Ms Vu agreed that she purchased the plants, but said it was done on behalf of her co-offender. She also agreed that she was personally involved in the supply of the drugs. Ms Vu agreed that she and her co-offender were involved in the establishment of the entire cannabis operation.
Ms Vu was referred to the paper, ‘Estimating drug harms: a risky business?’, and asked about the purpose of its provision on her behalf to the Tribunal.[35] She said that after she committed the crimes and was arrested she learnt about the effect of cannabis on the community so she wanted to show that to the Tribunal. It was put to Ms Vu that the document appeared to suggest that certain drug crimes may not be as harmful or proportionate to their legality. She was asked whether her view, or that of the community, was that crimes, including the large scale commercial cultivation of drugs, should not be illegal. Ms Vu told the Tribunal that what she did was illegal.
[35] Exhibit 29.
Ms Vu was again asked why, if she was actually fearful of returning to Vietnam because of her ex-husband, she had not applied for a protection visa to remain in Australia. Ms Vu told the Tribunal that she lived in Australia and got the Visa with her husband and did not understand the protection visa process. Ms Vu’s ex-husband returned to Vietnam in late 2023. She said she was ‘always frightened and fearful’ of her ex-husband. It was put to Ms Vu that her ex-husband could have returned to Vietnam at any stage without her knowledge. Ms Vu said he recently contacted her mother. Ms Vu agreed that she had returned to Vietnam multiple times since she separated from her ex-husband. It was put to Ms Vu that these visits to Vietnam occurred, despite her claimed fear of that person in Vietnam. Ms Vu said that she felt safe when returning the first time to Vietnam because she did so with her second husband. She was later told that her ex-husband went to Japan in 2014 and had not returned. Ms Vu was asked how she could know the location of her ex-husband every time she returned to Vietnam. She said that her mother and ex-husband live in close proximity and ‘all the neighbours, they knew what happened if he returned’ and Ms Vu’s mother had said her ex-husband had gone to Japan and not returned.
There was no re-examination of Ms Vu, however as a result of her solicitor’s submission at the conclusion of cross-examination that she had attended psychiatric, psychological and counselling sessions while in Villawood (which had not previously been disclosed to Ms Watson-Munro, the Respondent or the Tribunal), and despite some reservations about the application of the ‘two-day rule’ under the Act, the Tribunal asked Ms Vu about these consultations. Ms Vu said she attended approximately four mental health counselling sessions while in immigration detention. In response to a question regarding any diagnosis made as a result of these sessions, Ms Vu said she had ‘a lot of stress’ and had lessons for controlling or reducing stress and how to prevent committing crimes in the future. Ms Vu also told the Tribunal she attended a drug and alcohol counselling session in March 2024 and was informed about the ‘serious effects’ of drugs in the community. Ms Vu said that she attended a psychological session in Villawood on 3 April 2024 and had another session in mid-April 2024. In these two sessions, Ms Vu said she learnt how to control ‘anger’, ‘stress’ and ‘bad attitude’ through breathing, meditation and prayer, and to get rid of ‘the bad talk’ and to concentrate on positive talk to ‘learn for the future’. She also referred to two psychiatric sessions in November 2023 and February 2024, in which Ms Vu said she learnt how to control and improve her mental and physical health. Ms Vu told the Tribunal she learnt that if she became very stressed she should share that with her family and friends in order to reduce that stress.
The Tribunal referred Ms Vu to her mother’s statement in these proceedings dated 8 April 2024, and asked why there was no reference at all to Ms Vu’s ex-husband, including any threats made by him to Ms Vu’s mother.[36] Ms Vu said the statement referred to her broken marriage and unhappiness, but that maybe her mother forgot to mention the violence from Ms Vu’s ex-husband. The Tribunal again referred to the alleged recent threats to Ms Vu’s mother and there being no reference to them in the very recent letter from her mother. Ms Vu confirmed that her mother did not mention these alleged threats. When Ms Vu was again asked why there was no such reference, she said it was because her mother ‘just wanted to show the Tribunal what made me frightened or scared of the husband and then what she wished the Court [sic] to take into consideration in giving me a chance’. When the Tribunal noted that there was no other evidence about the alleged threats from her ex-husband, Ms Vu said she had confided in Thi Vang Vu, her father’s cousin.
[36] Exhibit 8.
Ms Thi Vang Vu
The Tribunal has considered Ms Vang Vu’s Statutory Declaration made on 28 December 2023 and her letter of support dated 15 March 2024.[37]
[37] Exhibits 5 and 6.
Ms Vang Vu gave evidence at the Tribunal hearing with the assistance of a Vietnamese interpreter and confirmed adherence to her written statements. She is the cousin of Ms Vu’s father and has two sons and six grandchildren.
Ms Vang Vu told the Tribunal that she knew Ms Vu as a young child in Vietnam. When she came to Australia, Ms Vu lived with Ms Vang Vu and her husband. They still had contact when Ms Vu moved out of their home.
Ms Vang Vu described Ms Vu as being ‘very close’ with Ms Vang Vu’s grandchildren, especially the children of her second son. For example, Ms Vu would look after the first daughter of that son when she lived with Ms Vang Vu, including feeding, nursing and playing with the child. Ms Vu was also described as being ‘close’ to her first son’s children, especially the daughter. Ms Vang Vu said that Ms Vu helped prepare meals and nurse the youngest child.
Ms Vang Vu was referred to her letter of support dated 15 March 2024 stating that she was ‘shocked’ upon learning of Ms Vu’s criminal offending.[38] When Ms Vu was a child, Ms Vang Vu helped to educate her to always be a very good person; Ms Vu worked hard and was dedicated to her job and Ms Vang Vu could not understand why she committed the crimes, was arrested and went to gaol. Ms Vu called Ms Vang Vu from gaol and said she was ‘lured’ by a friend to commit the crimes and that in future she would not trust any friend which could harm her or do wrong and will not commit future crimes. Ms Vang Vu said that if Ms Vu remained in Australia, she will be a good member of the community.
[38] Exhibit 6.
Ms Vang Vu was taken to her statement that she has experienced hardships in Vietnam and was asked to describe these difficulties.[39] Ms Vang Vu said that, if Ms Vu returned to Vietnam, she would face a lot of hardships because after the COVID-19 pandemic the economic situation was ‘even worse’ and there were not many jobs for young people. Ms Vang Vu said that people in Vietnam will look unfavourably on Ms Vu given her criminal record and it will be ‘very hard’ for her to find ‘any job’. She said Ms Vu’s family in Vietnam were ‘poor’ and they would not be able to financially assist Ms Vu. As a foster parent for Ms Vu, Ms Vang Vu always told her to be a good person and said that Ms Vu listened to her, believed in Buddhism and was praying all the time. Ms Vang Vu said that Ms Vu has work experience in Australia, had lived in this country for a long time, is used to the environment and community and that it was best for her to remain in Australia, and to then sponsor her son and mother to come to this country.
[39] Ibid.
Ms Vang Vu was referred to her written statement that she was concerned for Ms Vu’s safety.[40] Ms Vang Vu told the Tribunal that Ms Vu’s ex-husband came to her mother’s residence, threatened her and talked badly to her son, which made them ‘scared’ and ‘fearful’ of him. Ms Vang Vu said it would therefore be safer for Ms Vu’s two immediate family members to come to Australia. Ms Vang Vu said she recently returned to Vietnam and visited Ms Vu’s mother and was told in December 2023 that her ex-husband had returned from Japan and came to the house and ‘threatened’ Ms Vu’s mother, making her ‘scared’, and making her son ‘fearful’, which affected his studies because he was ‘really scared’. Ms Vu’s mother always accompanies her son to school or elsewhere because they are worried that he will be kidnapped by his father. Ms Vang Vu considered that, if Ms Vu returned to Vietnam, the three family members would be in ‘constant fear’, because her ex-husband is a ‘drunkard’ and when drunk does ‘something silly’, so they would always be worried and scared.
[40] Ibid.
Ms Vang Vu told the Tribunal that, if Ms Vu remained in Australia, she will support her to be a better person by keeping an eye on Ms Vu and ‘try to teach her’ to ‘keep her good character all the time’, she will not be able to recommit any crime and would ‘need to be a good person’ and get a job so she can ‘look after herself’. Ms Vang Vu said Ms Vu promised that she would not reoffend and will work hard to look after herself and help Ms Vang Vu after her scheduled surgeries.
Under cross-examination, Ms Vang Vu told the Tribunal that she returned almost annually to Vietnam since Ms Vu has been in Australia, except for a four-year period around the COVID-19 pandemic. She met Ms Vu’s child in Vietnam on her last visit in late 2023; they have not met in Australia and the child has not been to this country. Ms Vang Vu confirmed that, after moving to this country in 2009, Ms Vu had returned to Vietnam and did so in 2010 for some time to marry her ex-husband and give birth to her son before returning to Australia in 2011.
Ms Vang Vu said she stopped working in 2022 when she started having gallbladder issues requiring surgery, followed by difficulties with her ‘eyes’ and ‘bones’. She cannot work and receives Centrelink payments to support herself. Ms Vang Vu said that her two sons financially assisted her to purchase the return plane ticket to Vietnam. Her sons are employed running businesses in waste removal and fixing houses respectively. She agreed that they were good sons and cared for her. They are married and she is close with their partners. When Ms Vang Vu is sick the partners come to visit, assist and look after her, together with her sons. She said that it would be best if Ms Vu could look after her to allow her immediate family to focus on their lives.
Ms Vang Vu promised that if Ms Vu was allowed to remain in Australia, she, and her two sons would do their best to ensure she was a ‘good person’, find a job and ‘build a future’ in this country. She confirmed that this would include financial assistance, such as to purchase a car or for a house deposit or to open a business. Ms Vang Vu said they would ‘still help her’ if she returned to Vietnam, but ‘not as much as if she stayed in Australia’, because if Ms Vu went to Vietnam she would be ‘incriminated’ due to her record. It would be difficult for Ms Vu to open a shop and people would not attend it, so the family in Australia could not assist as much as they could if she remained in this country.
Ms Vang Vu told the Tribunal that she learnt of Ms Vu’s offending from her cousin, the woman who came from Vietnam to study in Australia. Ms Vu had not been visiting Ms Vang Vu, so the cousin told her the ‘whole thing’; she was shocked. Ms Vu told Ms Vang Vu of her criminal offending via telephone from gaol and that it related to ‘cannabis’. Ms Vang Vu was worried about Ms Vu’s mental state and refrained from asking more about the offending, because she was worried that her depression may worsen. Therefore, Ms Vang Vu sought to comfort and educate her to change herself to become a better person. Ms Vang Vu agreed that Ms Vu told her that she was lured to offend by her friend. Ms Vang Vu confirmed that Ms Vu said she went to gaol was due to ‘cannabis’. Ms Vang Vu was referred to her statement that Ms Vu was involved in a ‘serious’ criminal offence and was asked what she knew of Ms Vu’s involvement in this offending.[41] Ms Vang Vu told the Tribunal that Ms Vu told her that she was gaoled ‘because of the cannabis’ with a ‘three or four’ year sentence, which indicated to Ms Vang Vu that it was a ‘serious crime’. She confirmed having not received ‘any detail’ about the offending from Ms Vu. Ms Vang Vu said that Ms Vu was ‘lured’ by a friend to commit crimes related to cannabis and ‘that’s all’; she did not ask more about it because of Ms Vu’s ‘severe depression’. Ms Vang Vu said that she considered Ms Vu would ‘cut off’ contact if she asked questions about the offending. Ms Vang Vu tried to ask for details, but Ms Vu started crying and said she regretted what she had done. Ms Vang Vu did not press Ms Vu for further details due to her emotional state.
[41] Ibid.
Mr Haytham Wafa
The Tribunal has considered Mr Wafa’s letter of support dated 22 December 2023 and his business’ offer of employment to Ms Vu dated 15 April 2024.[42]
[42] Exhibit 21.
Mr Wafa gave evidence at the Tribunal hearing and said that he had known Ms Vu for approximately six or seven years. Ms Vu is a friend of his wife. Mr Wafa confirmed that he has offered Ms Vu a job as a ‘Commis/Cook’ or assistant to the head chef at one of his cafes. He said that ‘people make mistakes’, she is ‘very committed’, sincere and well-spoken. Mr Wafa was ‘shocked’ to find out about Ms Vu’s offending and did not think Ms Vu had the character to ‘commit whatever she committed’, but considered she was ‘peer pressured’. Mr Wafa wants Ms Vu to keep an eye on his business and he trusts her to do so.
Under cross-examination, Mr Wafa said he did not know ‘the details’ of Ms Vu’s offending. She had told him she regretted making a ‘mistake’ and had said that she had been convicted of an offence. This discussion occurred when Ms Vu was at Villawood. Ms Vu told Mr Wafa and his wife that she had made a ‘mistake’, was convicted and residing in Villawood. Mr Wafa confirmed there has been no other discussion regarding her offending. He did not know what offences Ms Vu was convicted of, but understood she was sentenced to approximately three years’ gaol. Mr Wafa told the Tribunal that he knew Ms Vu before the COVID-19 pandemic as a good and hard working person and wanted to give her a chance.
Mr Wafa said he did not ask his wife about Ms Vu’s offending; they discussed offering her future employment. However, Mr Wafa’s wife told him Ms Vu’s offending was drug related. Mr Wafa said this was personal and he did not want to ask specifically what happened.
Mr Wafa confirmed that he met Ms Vu in 2018. He did not know when the offending occurred, but said sometime in 2019 his wife told him that Ms Vu was selling her shop and returning to Vietnam to see her family for a period of time and was planning to return to Australia with her son. The next time Mr Wafa heard about Ms Vu was when she was in Villawood. She used to come to his coffee shop and had many conversations, including about her business. However, Mr Wafa told the Tribunal he could not say he knows Ms Vu ‘very well’, but enough to trust her and give her another chance. Mr Wafa said he knows Ms Vu more than a stranger on the street; she is a hard worker and would be an asset to his business.
Mr Wafa said that unless Ms Vu was ‘a psychopath or a murderer’ there was nothing he could be told about her offending that would dissuade him from offering her a job. He said people make genuine mistakes and believed Ms Vu was ‘peer pressured’, because ‘usually’ people who commit crimes have been pressured or have pressure in their life.
The Minister’s representative asked Mr Wafa how he would feel if informed that Ms Vu had been involved in a large scale illegal drug operation. Mr Wafa said he would be concerned and shocked, but it would not deter him from giving Ms Vu ‘another chance’. He would want to ensure she does not make another mistake and believed she was a good person who made ‘an honest mistake’. Mr Wafa considered that Ms Vu had learnt a lesson from her mistake and highly doubted she would want to repeat it, especially as a mother and was missing out on these years with her son.
It was put to Ms Wafa that he knew very little about Ms Vu. He said he knows ‘enough about her’ and she would tell him ‘everything’ upon her release. Mr Wafa had not visited her in Villawood. Mr Wafa’s wife used to see Ms Vu every few weeks when she was living in the community.
Ms Thi Bach Hong Pham
The Tribunal has considered Ms Pham’s Statutory Declaration made on 28 December 2023.[43] Ms Pham gave evidence at the Tribunal hearing with the assistance of a Vietnamese interpreter and confirmed her offer for Ms Vu to reside with her if released into the community.
[43] Exhibit 7.
Under cross-examination, Ms Pham told the Tribunal that Ms Vu had informed her of the offending after she was arrested. Ms Vu asked Ms Pham to be a witness for this proceeding when she was in Villawood. They last saw each other before Ms Vu was arrested when she attended Ms Pham’s restaurant in approximately 2018. The next time Ms Pham heard from Ms Vu was in 2023 when she asked her to provide a statement in this proceeding.
Ms Pham told the Tribunal she was busy working so did not know that Ms Vu went to gaol. Ms Vu had never told Ms Pham that she was in gaol. Ms Pham learnt from Ms Vu’s mother that Ms Vu was convicted of criminal offences. Ms Pham confirmed that Ms Vu had not told her that she was in gaol or about her offending. Ms Pham said that when she met Ms Vu’s mother in Vietnam she informed her that Ms Vu did not have many relatives or friends in Australia and asked her to assist Ms Vu, including providing employment in Ms Pham’s son’s restaurant if she was released into the community. Ms Pham confirmed that she did not know the nature of Ms Vu’s criminal offending.
Mr Tim Watson-Munro – Psychologist
Following an assessment of Ms Vu on 9 April 2024, Mr Watson-Munro prepared a report dated 30 April 2024, which relevantly stated that his opinion was as follows:[44]
1. Ms Vu presents as a co-operative though psychologically troubled woman, who is currently before the Administrative Appeals Tribunal (‘AAT’), in relation to a decision to cancel her Class BS subclass 801 Partner Visa under s501(3A) of the Migration Act 1958. Her background has been well described in the material I have read, which was confirmed through my discussions with her. I note that her visa has been cancelled because of the ‘character test’, against a backdrop of her being sentenced to a term of imprisonment of 12 months or more. I note that she has no prior forensic history and that up until her involvement in these matters, her life has been characterised by a primarily pro-social attitude and behaviour.
2. It is apparent that she has suffered longstanding symptoms of depression, anxiety, low self-esteem, in addition to stress. In this regard, I respectfully would suggest that the opinion reflected in the report of our colleague, Mr Bradley Jones, that she was not suffering any psychological condition at the time of offending is inconsistent with the test results that he describes referable to the Depression Anxiety Stress Scales and indeed, her general history. Mr Jones notes that his test reflected severe levels of depression, extremely severe levels of anxiety and severe levels of stress. This respectfully would be consistent with her background developmental history, coupled to significant adjustment issues, arising from her exposure to the harsh realities of the criminal justice system.
3. It is apparent that in the lead up to her offending, Ms Vu was psychologically vulnerable. She was suffering adjustment issues in terms of her arrival in Australia, had not received treatment for the significant stressors and traumas she had been exposed to during her developmental history in Vietnam, with her suffering additional pressures, arising from her endeavours to establish two nail salon businesses, which were struggling. Significantly, against a backdrop of these issues, she became quite reliant upon the co-accused, Duc Vu and as noted in the documentation, acknowledged that she was vulnerable to his solicitations and directions. In saying this, Ms Vu in no way at the time of my assessment was attempting to diminish her responsibility and, in this regard, she fully accepts her culpability for her offending conduct and associated punishment. I mention it more to indicate a possible causality in terms of her impaired judgment at that time.
4. On a more positive note there is no history of substance use in this case and it would appear that she has not abused alcohol. I note that she has consistently endeavoured to better herself whilst in custody and in immigration detention. To this end, she has completed a range of programs addressing her physical and mental health, vocational training and a strong involvement in improving upon her literacy. I note that she has completed barista training and attendant to this has a firm offer of employment at Chinchilla on Mavis at Revesby.
5. It is apparent that Ms Vu continues to suffer a range of psychological symptoms of depression and anxiety, which in part have been aggravated by her uncertain position in Australia and attendant to this, high anxiety regarding what would occur to her should she be returned to Vietnam. I note that she has been married on two occasions and that her first husband who is now in Vietnam has allegedly made threats against her mother, in addition to threats referable to their son. Ms Vu believes that the opprobrium surrounding her criminal history will negatively impact upon her capacity to reassimilate into the Vietnamese community. It is clear that she would benefit from treatment. I am encouraged by an absence of substance use in this case. Treatment should involve a combination of Cognitive Behaviour Therapy (CBT), in addition to supportive and motivational psychotherapy. The CBT will provide her with skills to improve upon her self-esteem to enable her to be more assertive in the future, as well as providing skills to cope with her high levels of anxiety. She will require support in the Australian community and to this end, I gather that her extended family, including her cousin, continue to offer logistic and emotional support in this regard.
6. There are consequently a number of protective factors in place, which will reduce the risk of reoffending. These include the support of her family, a strong motivation to not reoffend, her willingness for treatment, her expressions of remorse, the considerable training that she has undertaken to improve upon her English literacy and vocational skills, as well as an absence of substance use. Taking all factors into account, I believe that the risk of her reoffending, consistent with earlier testing involving the Level of Service Inventory – Revised is Low.
[44] Exhibit 23, pages 10-11.
Mr Watson-Munro gave evidence at the Tribunal hearing and confirmed adherence to his written report. He was referred to his statements in the report that Ms Vu was a ‘co-operative though a psychologically troubled woman’ but had ‘no indications of major psychiatric disturbance’.[45] He told the Tribunal that Ms Vu is ‘depressed’ and ‘anxious’, but does not have ‘a major psychiatric disturbance’, such as bipolar disorder or schizophrenia.
[45] Exhibit 23, pages 3 and 8.
Mr Watson-Munro was referred to the 2022 psychological report prepared by Mr Jones and to his own statement that, based on psychometric testing, Ms Vu suffers severe symptoms of depression, anxiety and stress’.[46] He was asked, if the threats and uncertainties in her life were absent, how quickly Ms Vu would heal or overcome her symptoms with the proposed Cognitive Behaviour Therapy (CBT) and psychotherapy. Mr Watson-Munro said that Ms Vu had no psychiatric illness, but considered that she had long-standing symptoms, had spent a considerable period of time in custody and immigration detention, she was relatively intelligent, motivated to make amends with her behaviour and had undertaken courses while deprived of her liberty. Mr Watson-Munro noted that the testing in 2022 identified severe levels of depression, anxiety and stress, although Ms Vu did not appear to be ‘that depressed now’, but would respond well to therapy, which would be determined by whether she remained in Australia. If Ms Vu remained, Mr Watson-Munro told the Tribunal, a lot of her stress, anxiety and despair will ‘reduce if not ‘dissipate’. Mr Watson-Munro recommended consistent treatment for six to 12 months which would see a ‘considerable improvement’ with the passage of time.
[46] Ibid., page 9.
Mr Watson-Munro was referred to his written opinion that Ms Vu was a low risk of reoffending.[47] He told the Tribunal that Ms Vu was assessed in 2022 using the ‘LSI-R’. The results of the testing indicated that she was a low risk of reoffending. Mr Watson-Munro told the Tribunal that Ms Vu accepted responsibility for her offending and had consistently expressed remorse to him, as with others, and if the risk was previously considered low, in the absence of any anti-social behaviour, she ‘continues to be low’ and he was also encouraged that she does not use illicit drugs or abuse alcohol. Mr Watson-Munro said that Ms Vu previously had a ‘propensity to be caught up with others’, but had matured. Therefore, with the proposed treatment and protective factors, her risk of reoffending ‘remains low’.
[47] Ibid., page 11.
Mr Watson-Munro was asked how likely it was that Ms Vu would remain vulnerable to reoffending after being in gaol and receiving some treatment. Mr Watson-Munro told the Tribunal that Ms Vu has ‘insight’, she has ‘matured’, and reflected on the dynamics surrounding her offending, but believed she would benefit from the treatment described in the report. That is, the programs Ms Vu had undertaken in gaol and immigration detention were ‘not quite the same’ as consulting a psychologist and ‘working through the dynamics that led to that type of vulnerability’. Mr Watson-Munro said ‘there is a way to go, I suspect’, but she has ‘improved from the time when she was highly vulnerable at the time of her offending’.
Mr Watson-Munro was taken to his reference that Ms Vu had ‘consistently endeavoured to turn her life around’.[48] He considered Ms Vu’s efforts were ‘very significant’ and he looks for ‘efforts at change’ which reflects a person’s ‘insight’. Ms Vu has undertaken ‘a wide range of programs, which can only be to her benefit’. Mr Watson-Munro also referred to Ms Vu’s fear of returning to Vietnam, being ‘anxious’ about her ex-husband, her claim that threats had been made against her mother, the fear of losing her son, the difficulty reassimilating after a period of time in Australia and fears that the knowledge in Vietnam of her incarceration will create ‘additional obstacles for her’. Mr Watson-Munro said that Ms Vu’s efforts to date were ‘commendable’ and ‘speaks to her motivation to not reoffend in the future’.
Mr Watson-Munro was asked whether there was a real risk of Ms Vu reoffending. He told the Tribunal that there was a ‘low risk’ based on his clinical judgment, psychometric testing undertaken some time ago and nothing having changed ‘in that regard’. However, Mr Watson-Munro said that he ‘cannot say with 100% certainty’ that a person will not re-offend; Ms Vu had no prior criminal history, no history of drug use, but committed serious criminal offending reflected in the Court’s sentencing from which ‘she seems to have learnt’. Therefore, Mr Watson-Munro told the Tribunal he considered the risk of reoffending was ‘low, but it’s not infallibly low; it’s yet to be determined, I think, in terms of how she assimilates into the community, the sort of treatment she has and the other protective factors that I’ve described’.
[48] Exhibit 1, page 4.
Under cross-examination, Mr Watson-Munro said the factors that led to Ms Vu’s offending were her ‘financial duress’ and the relationship with the co-offender; it was ‘driven by a need for money’. He said that Ms Vu’s motivation was not driven by impaired judgment referrable to drug use; she was depressed and anxious at the time, but not to the extent that she was ‘out of touch with reality’ or ‘unaware of her wrongdoing’. Mr Watson-Munro told the Tribunal that Ms Vu informed him during his assessment that she was ‘demoralised, demotivated and worried’ at the time of her offending and ‘struggling with her nail business’.
The Minister’s representative referred to the LSI-R tool applied by Mr Jones in 2022, which identified a low risk of Ms Vu reoffending. Mr Watson-Munro said that this was a psychometric instrument looking at ‘static factors’ in a person’s developmental history, including attitude to criminal offending. The limitation of these instruments is that they provide ‘an actuarial analysis of risk’ and do not look at ‘dynamic factors’ associated with risk that are ‘amenable to change through treatment’. However, the LSI-R is a ‘widely used and accepted instrument within NSW Corrective Services’ and the ‘low’ result would be a ‘fairly reliable indicator of her risk at that time’. Since that assessment, there was no further criminality, Ms Vu has matured, understood the nature of her wrongdoing, served a significant prison term and was now in immigration detention, therefore ‘the risk remains low’.
The Minister’s representative put to Mr Watson-Munro that, if the LSI-R had been administered before her offending it would also have produced a ‘low risk’ result. Mr Watson-Munro could not say what such a test would have produced, but she then had no history of offending or drug and alcohol abuse, although was at that time suffering severe levels of depression, anxiety and stress and now appeared ‘less depressed, stressed and anxious’; she had ‘moved on’. Mr Watson-Munro said because Ms Vu had offended, ‘it certainly wasn’t low’. He agreed that people do offend after being assessed as a low risk of doing so. Mr Watson-Munro also agreed that Ms Vu had never been involved in any anti-social behaviour other than her offending. He said that Ms Vu had no prior history, matured and had taken positive steps to deal with the dynamics around her offending conduct, therefore it was ‘arguable on that basis [that] the risk of reoffending is low’, with the ‘additional caveat’ of the recommended treatment.
Mr Watson-Munro told the Tribunal that it was difficult to comment on Ms Vu’s motivation for undertaking the programs in gaol and immigration detention, but that generally speaking people who do programs are ‘keen to not reoffend’, to ‘make amends’ and ‘not to return to gaol’. He considered that Ms Vu wanted to understand her offending and equip herself to reassimilate in to the community if given the opportunity.
Mr Watson-Munro told the Tribunal that Ms Vu had said to him that she did not understand the impact and the severity of her offending.
Mr Watson-Munro confirmed his opinion that Ms Vu had depression and anxiety before her offending and was yet to be treated for those conditions. He said that these factors can impact on a person’s judgment, insight, and impulse control, but that he could not comment on her mental state many years ago.
The Minister’s representative referred to Mr Watson-Munro’s written statement that Ms Vu was ‘psychologically vulnerable’ in the lead up to her offending and was ‘suffering adjustment issues’ after arriving in Australia. She had not received treatment for the ‘significant stressors and traumas she had been exposed to during her developmental history in Vietnam’ and additional pressures associated with her struggling nail businesses.[49] Mr Watson-Munro told the Tribunal that a person can experience adjustment issues 10 years after arriving in Australia, particularly in the context of Ms Vu being away from her country of origin and unresolved psychological stress referrable to the breakdown of her marriage. Mr Watson-Munro was questioned on the continuance of these adjustment issues and considered that ‘there are new issues now’, that she needs to ‘come to terms with, including adjusting to her criminal history and the significant time spent in gaol and immigration detention’. Mr Watson-Munro believed that Ms Vu will ‘continue to suffer some adjustment issues’ if released into the Australian community, which is why he recommended psychological treatment. He understood that Ms Vu had not recently had psychological treatment, but had undertaken a range of treatments that could generically be described as ‘psychological treatments’. In addition, Ms Vu had ‘matured’; she ‘remains depressed and anxious’, with the dynamics surrounding that primarily relating to her uncertain future. Mr Watson-Munro said that it was not inevitable Ms Vu would re-offend if she does not have treatment, it would be ‘a further protective factor’ referrable to her adjustment issues.
[49] Exhibit 23, page 10.
Mr Watson-Munro confirmed his opinion that Ms Vu’s risk of reoffending ‘remains low’; it was ‘low’ in the absence of treatment when assessed in 2022 but would be bolstered by the protective factors and treatment, including psychological assistance to reassimilate into the community. He considered it ‘unlikely’ Ms Vu would reoffend if allowed to remain in Australia, but ‘not impossible’; she has a prior history of serious criminal offending, but it was ‘more likely than not’ that she would not reoffend because the risk ‘remains low’, ‘actuarily, clinically, taking into account dynamic factors and her expressions of remorse’. Mr Watson-Munro told the Tribunal that Ms Vu has ‘protective factors’, she would benefit from treatment, appears to have ‘learnt her lesson’, expressed remorse and has demonstrated some insight into the impact of her offending, which ‘are all positives’.
CONTENTIONS
Ms Vu
Ms Vu accepted that, as a result of her sentence of imprisonment, she had a ‘substantial criminal record’ and therefore did not pass the character test under subsection 501(6) of the Act.[50] However, Ms Vu contended that there was ‘another reason’ to revoke the original decision to cancel her Visa, pursuant to subsection 501CA(4)(b)(ii) of the Act. Some of the contentions made by or on behalf of Ms Vu in her written submissions in relation to the specific considerations under Direction 99 were subsequently changed in her closing submissions at the hearing, such that Ms Vu’s ultimate position in this proceeding was that:
(a)under Primary Consideration 1, the nature and seriousness of Ms Vu’s conduct weighed against her and in favour of not revoking the cancellation decision;
(b)also under Primary Consideration 1, her low risk to the Australian community weighed heavily in Ms Vu’s favour and revocation of the cancellation decision;
(c)Primary Consideration 2, regarding family violence, was inapplicable;
(d)Primary Consideration 3, the strength, nature and duration of ties to Australia weighed moderately in her favour;
(e)Primary Consideration 4, the best interests of minor children in Australia, weighed in Ms Vu’s favour;
(f)Primary Consideration 5, the expectations of the Australian community, did not weigh heavily against Ms Vu;
(g)under the other consideration of the legal consequences of the decision, Ms Vu was not covered by a protection finding, but her claimed fear of her former husband should be considered in this proceeding; and
(h)the extent of impediments if removed weighed in her favour.
[50] Applicant’s Statement of Facts, Issues and Contentions dated 26 April 2024, page 3.
As a result, Ms Vu contended that, upon weighing the competing considerations, the Tribunal should find that there was ‘another reason’ why the decision under review should be set aside and substituted with a decision to revoke the decision mandatorily cancelling the Visa under the Act.
Minister
As a result of Ms Vu accepting that she did not pass the character test in section 501 of the Act, the Minister contended that there was not ‘another reason’, pursuant to subsection 501CA(4)(b)(ii) of the Act, why the cancellation decision should be revoked. The Minister submitted that the Tribunal should affirm the decision under review because Primary Consideration 1, the protection of the Australian community, and Primary Consideration 5, the expectations of the Australian community, weighed significantly in favour of not revoking the mandatory cancellation of the Visa, and that their cumulative weight exceeded the total weight of the considerations in Ms Vu’s favour.
CONSIDERATION
Does Ms Vu pass the character test under the Act?
On 7 April 2022, Ms Vu was sentenced by the District Court of NSW to an aggregate term of five years and six months’ imprisonment for offences in relation to the cultivation and supply of a commercial quantity of the illicit drug cannabis’.[51] Under subsection 501(7)(c) of the Act, Ms Vu therefore has a ‘substantial criminal record’ because she has been sentenced to a term of imprisonment of 12 months or more.
[51] Exhibit 1, pages 22-41.
For completeness, the Tribunal notes that, pursuant to section 5AB of the Act, inserted by the Migration Amendment (Aggregate Sentences) Act 2023, the provisions of the Act and the regulations ‘apply no differently in relation to a single sentence imposed by a court in respect of 2 or more offences to the way in which those provisions apply in relation to a sentence imposed by a court in respect of a single offence’. The Tribunal is therefore satisfied that there is no issue regarding the applicability of the Act due to Ms Vu having been sentenced to a term of imprisonment for two offences, as an aggregate term, rather than separately for each of those offences.
Pursuant to subsection 501(6)(a) of the Act, the Tribunal finds that Ms Vu fails the character test due to having a substantial criminal record. Accordingly, for the purpose of subsection 501CA(4)(b)(i) of the Act, the Tribunal is satisfied that Ms Vu does not pass the character test as defined in subsection 501(6)(a) of the Act.
Is there another reason why the decision to cancel the Visa should be revoked?
As a result of the Tribunal’s finding that Ms Vu does not pass the ‘character test’, pursuant to subsection 501CA(4)(b)(ii) of the Act, it turns to consider whether there is ‘another reason’ why the decision to mandatorily cancel her Visa should be revoked.
In accordance with subsection 499(2A) of the Act, the Tribunal must comply with Direction 99 in making a decision regarding a request for revocation of a mandatory cancellation decision pursuant to section 501CA of the Act. Paragraph 6 of Direction 99 provides that a decision-maker must take into account the primary and other considerations identified in Direction 99, where relevant to the decision. Accordingly, the Tribunal sets out below its evaluation of Ms Vu’s circumstances against the relevant considerations in Direction 99.
Primary Consideration 1 – Protection of the Australian Community
Paragraph 8.1 of Direction 99, regarding Primary Consideration 1, states that:
(1) When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or 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.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of Ms Vu’s conduct
Paragraph 8.1.1 of Direction 99 sets out a list of factors that decision-makers must have regard to in considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, which includes:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii.crimes of a violent nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c);
iv.where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending, in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
h) where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Under paragraph 8.3(4)(a)(iii) of Direction 99, less weight should be given to the length of time spent in the Australian community in circumstances where Ms Vu was not ordinarily resident in Australia during her formative years, although the Tribunal is satisfied that Ms Vu’s offending did not begin ‘soon after arriving in Australia’, because she had been in Australia for approximately a decade when she began committing the offences. As a result, the Tribunal finds that this element is neutral in its consideration.
Having regard to all of the above matters in relation to Primary Consideration 3, the Tribunal finds that the strength, nature and duration of ties to Australia, weighs moderately in favour of Ms Vu and revocation of the decision to cancel her Visa.
Primary Consideration 4 – Best interests of minor children in Australia
Paragraph 8.4 of Direction 99 requires decision-makers to make a determination about whether non-revocation under section 501CA of the Act is, or is not, in the best interests of a child affected by the decision. This consideration applies, pursuant to paragraph 8.4(2), only if the child is, or would be, under 18 years old at the time when the decision not to revoke the mandatory cancellation of the visa is expected to be made.
Ms Vu has one minor child who resides in Vietnam with her mother; Ms Vu has no biological children in Australia. However, and despite Ms Vu’s written submissions contending that this consideration was neutral in the Tribunal’s evaluation, during the course of the proceeding it became apparent that, given her links to the minor children of friends and extended family in Australia, Primary Consideration 4 was relevant and weighed in Ms Vu’s favour.
Matteo
Ms Vu told the Tribunal that she was very close and ‘very attached’ to her cousin’s one year old son in Australia, called Matteo.[97] However, the Tribunal notes that Ms Vu does not play a parental role to this child; Matteo has his own biological parents, and Ms Vu has only known this infant child while she has been incarcerated or in immigration detention. That is, the nature and duration of the relationship is limited and, given the child’s age, the effect of any separation would be negligible. Ms Vu has met Matteo in person at Villawood.[98] The Tribunal accepts that, if Ms Vu were removed from Australia, she would not have the opportunity in this country to continue this relationship in person. Having regard to the available evidence, the Tribunal is satisfied that the best interests of Matteo weigh marginally in favour of revoking the decision to cancel Ms Vu’s Visa.
[97] Exhibit 3.
[98] Exhibit 16.
Cinderella
Ms Vu’s friend, Ms Thi Thuy Linh Dinh, provided a letter in support of Ms Vu dated 5 April 2024, which referred to the relationship Ms Vu has with Ms Dinh’s 11 year-old daughter, Cinderella.[99] Ms Dinh, and presumably her daughter, have known Ms Vu for seven years.[100] However, for half of this time, Ms Vu has been in gaol or immigration detention. There was no evidence of contact between this child and Ms Vu during this time. Nevertheless, the Tribunal notes that Ms Dinh stated that Ms Vu had taken on ‘the role of a second mother effortlessly, showering my daughter with affection, care, and attention’ and she described their ‘beautiful friendship’.[101]
[99] Exhibit 11.
[100] Ibid.
[101] Ibid.
Despite this, Cinderella has at least one person, being Ms Dinh, that already fulfills a parental role in relation to the child, they live in another state in Australia to that which Ms Vu would return if released into the community. Additionally, there was no contention a relationship via electronic means could not be maintained.[102] In this regard, Ms Vu recently spoke with Cinderella during a video call with Ms Dinh. Ms Vu confirmed that she could continue contact with the child by video, but said that the child missed her after Ms Vu was arrested in 2020. The Tribunal accepts that, if Ms Vu were removed from Australia, she would not have the opportunity in this country to see the child in person.
[102] Ibid.
Having regard to the available evidence, the Tribunal is satisfied that the best interests of Cinderella weigh in favour of revoking the decision to cancel Ms Vu’s Visa, albeit marginally.
Friend’s niece
Another friend of Ms Vu, Ms Phuong Thuy Dinh, provided a letter in support of Ms Vu dated 5 April 2024, which referred to the love Ms Vu had for Ms Dinh’s unnamed ‘niece’ and that she ‘often takes care of my niece very carefully’.[103] Despite there being no evidence regarding the age of this child, the Tribunal proceeds on the assumption that this niece of Ms Vu’s friend is a minor child in Australia. The Tribunal again notes that Ms Vu was in gaol or immigration detention for the last three and a half years. There was no evidence of contact between this child and Ms Vu during that time. Based on the evidence before the Tribunal, it appeared that the nature and duration of the relationship was limited. As with the child Cinderella, there was no evidence that Ms Vu plays a parental role with this child, they live in another state in Australia to that which Ms Vu would return if released into the community and there was no contention that they could not maintain a relationship via electronic means. However, the Tribunal accepts that, if Ms Vu were removed from Australia, she would not have the opportunity in this country to see the child in person.
[103] Exhibit 12.
Having regard to the available evidence, the Tribunal is satisfied that the best interests of Ms Vu’s friend’s niece weigh marginally in favour of revoking the decision to cancel Ms Vu’s Visa.
Ms Vu’s father’s cousin’s four minor grandchildren
Ms Vu’s Statutory Declaration referred to her being ‘close’ to the families of her father’s cousin’s two adult sons.[104] There was no further written evidence regarding those two sons’ four minor children, being the grandchildren of Ms Vu’s father’s cousin, and the nature of Ms Vu’s relationship with those children.
[104] Exhibit 3.
However, the Tribunal heard oral evidence from Ms Vu and Ms Vang Vu regarding Ms Vu’s very close relationship with the children, which is set out above in these reasons. The Tribunal accepts that Ms Vu was close to these children when she lived in the Australian community before she was arrested in 2020, including having lived with at least one of the children early in her time in Australia. To this end, the Tribunal again notes that Ms Vu was in gaol or immigration detention for the last three and a half years. There was no evidence of contact between these children and Ms Vu during this time or any written evidence or support from or on behalf of these children. There was also no evidence that Ms Vu plays a parental role with these children of extended family; all four children have both parents in their lives. Moreover, there was no contention that they could not maintain a relationship via electronic means if Ms Vu returned to Vietnam. However, the Tribunal accepts that, if Ms Vu were removed from Australia, she would not have the opportunity in this country to again see these children in person.
Having regard to the available evidence, the Tribunal is satisfied that the best interests of Ms Vu’s father’s cousin’s four minor grandchildren weigh marginally in favour of revoking the decision to cancel Ms Vu’s Visa.
Conclusion – Primary Consideration 4
Ms Vu’s only biological child lives in Vietnam. On the limited evidence before the Tribunal, Ms Vu has non-parental relationships with three minor children in Australia through her friends and also familial, but non-parental, connections to an additional four minor children in this country. The impact of Ms Vu’s conduct has caused her to be absent from these children’s lives during the more than three years she was incarcerated. For all of the above reasons, in totality, the Tribunal finds that Primary Consideration 4 weighs marginally in favour of Ms Vu and revocation of the decision to cancel her Visa.
Primary Consideration 5 – Expectations of the Australian community
Paragraph 8.5(1) of Direction 99 states that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In addition, paragraph 8.5(2) of Direction 99 provides that non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not continue to hold a visa. In accordance with paragraph 8.5(3) of Direction 99, the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Moreover, paragraph 8.5(4) of Direction 99 states that Primary Consideration 5 is about the expectations of the Australian community as a whole, and that decision-makers should proceed on the basis of the Government’s views articulated in relation to this consideration, without independently assessing the community’s expectations in the particular case.[105] Furthermore, as the Federal Court of Australia said in YNQY v Minister for Immigration and Border Protection, the consideration is ‘in substance...adverse to any applicant’.[106] However, it is still necessary for the Tribunal to assess the circumstances particular to Ms Vu in evaluating this consideration. In this regard, Justice Stewart in FYBR v Minister for Home Affairs[107] said as follows:
[97] … The community thus expects that it will be necessary in every case to assess the circumstances particular to the visa applicant in question in order to reach an evaluative assessment of “appropriateness”. That assessment is not an assessment of what the Australian community expects in the particular case. The Australian community expects people to obey the law, and if they do not (or there is a risk that they will not) then that is relevant to whether or not they will be granted a visa, and in some cases it may be appropriate that they will be refused a visa because of their disobedience (or the risk of their disobedience). Direction 65 [now Direction 99] does not ascribe to the Australian community a relevant expectation with regard to the outcome in the particular case. That is a matter for the decision-maker.
…
[102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be.
[105] See also FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [75].
[106] [2017] FCA 1466 at [76].
[107] (2019) 272 FCR 454; [2019] FCAFC 185.
Paragraph 8.5(1) of Direction 99 makes plain that the Australian community expects that non-citizens will obey Australian laws. Ms Vu has breached this trust and has been convicted of criminal offences in Australia. The Tribunal has found that Ms Vu’s offending was serious. To reflect the gravity of her offending, Ms Vu was sentenced to an aggregate term of imprisonment of five years and six months, with a non-parole period of three years and two months.
In this regard, pursuant to paragraph 8.5(2) of Direction 99, non-revocation of the mandatory cancellation of the Visa may be appropriate simply because the nature of the offences are such that the Australian community would expect that the person should not continue to hold a visa. The Tribunal is satisfied that Ms Vu’s serious offences give rise to the Australian community expecting that the Australian Government can and should cancel the Visa.
For these reasons, the Tribunal finds that Primary Consideration 5 weighs very heavily against the revocation of the decision to cancel the Visa, although the overall weight is slightly moderated due to the below matter.
The principle at paragraph 5.2(4) of Direction 99 is, relevantly, that Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been ‘participating in, and contributing to, the Australian community only for a short period of time’. The Tribunal finds that this stated ‘low tolerance’ is not applicable to Ms Vu because she had participated in, and contributed to, the Australian community for approximately 11 years before her offending and subsequent imprisonment, which is more than ‘a short period of time’. As previously stated in these reasons, Ms Vu arrived in Australia from Vietnam approximately 15 years ago in 2009 and was in custody from 2020. By way of an example of Ms Vu’s participation and contribution, she was employed in Australia and paid income tax during her time living in the Australian community.[108] The Tribunal is therefore satisfied that this consideration moderates the weight against revocation of the decision to cancel Ms Vu’s Visa.
[108] Exhibits 3 and 28.
As previously stated, Ms Vu arrived in Australia aged 19 in 2009. She has lived in Australia since that time, being a period of approximately 15 years, with a period of approximately 11 years before she was convicted of the offending, following which she has been incarcerated and in immigration detention. Consequently, Ms Vu has neither lived in the Australian community for most of her life nor from a very young age. Pursuant to paragraph 5.2(5) of Direction 99, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age, and the level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years. Having regard to this principle, the Tribunal is satisfied that it does not apply to Ms Vu and it is given no weight under this Primary Consideration 5.
On balance, having regard to all of the aforementioned matters, the Tribunal finds that Primary Consideration 5, the expectations of the Australian community, weighs heavily against revocation of the decision to cancel Ms Vu’s Visa.
Conclusion: Primary Considerations
In concluding its analysis of the primary considerations under Direction 99, the Tribunal has found that two primary considerations, Primary Consideration 1, the protection of the Australian community and Primary Consideration 5, the expectations of the Australian community, both weigh heavily against revocation of the original decision cancelling Ms Vu’s Visa. The Tribunal has also found that Primary Consideration 3, the strength, nature and duration of ties to Australia, weighs moderately in favour of Ms Vu and revocation of the decision to cancel the Visa and that Primary Consideration 4, the best interests of minor children in Australia, weighs marginally in Ms Vu’s favour. The Tribunal again notes that Primary Consideration 2, regarding family violence, was inapplicable and afforded neutral weight in this decision.
Other considerations
Paragraph 9 of Direction 99 provides that ‘other considerations’ must be taken into account where relevant and include (but are not limited to): legal consequences of the decision; extent of impediments if removed; impact on victims; and impact on Australian business interests. The Tribunal turns to address these listed ‘other considerations’ and notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Justice Colvin said in Suleiman v Minister for Immigration and Border Protection:[109]
…Direction 65 [now Direction 99] 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 [now Direction 99] 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 [now Direction 99] 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 [now Direction 99] 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.[110]
[109] [2018] FCA 594.
[110] Ibid at [23].
Legal consequences of the decision
Paragraph 9.1(1) of Direction 99 provides that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198 of the Act, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime detention under section 189, noting also that subsection 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
Accordingly, the Tribunal acknowledges that, as an unlawful non-citizen, Ms Vu is presently in immigration detention in Australia and, following an adverse decision in this proceeding, liable to removal from this country to Vietnam as soon as reasonably practicable pursuant to the Act.
As set out in paragraph 9.1(2) of Direction 99, a non-refoulment obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. This obligation on Australia arises under international law pursuant to various international treaties and covenants. However, as noted in paragraph 9.1(3) of Direction 99, international non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim. That appeared to be the situation in this proceeding including because, in advance of the hearing, Ms Vu had not contended that any international non-refoulment obligation was applicable to her in this proceeding and her written submissions stated that this consideration was not relevant and that she had no protection claim.[111]
[111] See Applicant’s Statement of Facts, Issues and Contentions dated 26 April 2024, pages 7-8.
However, in discussion with the Tribunal in closing submissions, Ms Vu’s representative said that the Tribunal should address her claims under paragraph 9.1.2 of Direction 99, which deals with non-citizens not covered by a protection finding and provides as follows:
(1)Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2)However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security considers associated with them. [emphasis in original]
Ms Vu raised concerns about how she will be treated if she returned to Vietnam relevantly, for this element of the Tribunal’s consideration, by her ex-husband. Ms Vu claimed to be fearful for her safety ‘because her ex-husband has returned to her hometown and have [sic] threatened [her] mother to take away her son’.[112] Ms Vu claimed that she ‘will suffer ongoing abuse, psychological trauma at the hands of her ex-husband’ who was a ‘violent person’.[113] In Ms Vu’s Statutory Declaration and oral evidence to the Tribunal, she referred to the domestic violence perpetrated against her by her former husband in Vietnam before they divorced in 2011.[114] This included allegations that, on two separate occasions, Ms Vu’s ex-husband attempted to choke her and bit her cheek.[115] Ms Vu also claimed in written and oral evidence that her ex-husband would ‘start chasing me and harass me’ if she returned to Vietnam and ‘threaten’ her safety.[116]
[112] Applicant’s Statement of Facts, Issues and Contentions dated 26 April 2024.
[113] Ibid.
[114] Exhibit 3, page 2-4.
[115] Ibid.
[116] Ibid.
The only other documentary evidence before the Tribunal from a third party (that is, other than Mr Watson-Munro’s recent report containing statements made by Ms Vu) which could be said to relate to these claims was contained in the letter of support from Ms Vang Vu dated 15 March 2024, which stated that ‘we are also very concerned for her safety and her son’s safety’.[117] Ms Vang Vu’s oral evidence to the Tribunal was that, if Ms Vu returned to Vietnam, the three family members would be in ‘constant fear’, because Ms Vu’s ex-husband was a ‘drunkard’ and when drunk does ‘something silly’, so they would always be worried and scared.
[117] Exhibit 6.
However, Ms Vu’s mother, to whom the alleged recent threats had been directed in Vietnam, did not give evidence at the Tribunal hearing or make reference to the historical abuse and alleged recent threats to her own safety in her own letter dated 8 April 2024 and filed in this proceeding.[118]
[118] Exhibit 8.
Based on the limited available evidence, the Tribunal does not have sufficient evidence to make any finding in relation to Ms Vu’s claimed fear of harm. Nevertheless, if Ms Vu considers that she is at risk of a specific type of harm, Ms Vu can apply for a protection visa in Australia. Under questioning from the Minister’s representative about a possible protection visa application, Ms Vu maintained that it would be ‘best’ if her Visa the subject of this proceeding was reinstated. Having considered Ms Vu’s claims, the Tribunal proceeds on the basis, as it is open to do under paragraph 9.1.2(2) of Direction 99, that if Ms Vu applies for a protection visa, any protection claims she has that may give rise to international non-refoulement obligations will be assessed at that time, as required by section 36A of the Act.
Accordingly, the Tribunal finds that this other consideration in Direction 99 is neutral in the Tribunal’s decision. However, for completeness, the Tribunal further considers Ms Vu’s claimed fear of harm from her ex-husband as an additional ‘other’ consideration below in these reasons.
Extent of impediments if removed
Paragraph 9.2(1) of Direction 99 requires consideration of the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
Ms Vu is a citizen of Vietnam and lived in that country up until she was 19 years old. She is now 34 and returned to that country on a number of occasions until her arrest in 2020.[119] The evidence before the Tribunal indicated that Ms Vu presently has no known physical health issues, although she does have psychological issues that require treatment, as recommended by Mr Watson-Munro. There was no evidence before the Tribunal that Ms Vu could not receive psychological treatment in Vietnam and any other medical support required and available to all citizens of that country. Accordingly, the Tribunal is satisfied that Ms Vu’s age and health will not likely present impediments in establishing herself and maintaining basic living standards if she is removed from Australia, and therefore does not weigh in favour of revocation of the cancellation decision.
[119] Exhibit 1, page 2 and Exhibit 32.
Ms Vu was born and raised in Vietnam. She has immediate family in Vietnam, is fluent in the Vietnamese language and has visited on a number of occasions, most recently in 2019 and 2020. Accordingly, the Tribunal is satisfied that Ms Vu would face no substantial language or cultural barriers if removed from Australia to Vietnam. The Tribunal therefore finds that this factor does not weigh in favour of revocation.
Ms Vu’s mother, sibling, and only child currently all live in Vietnam. Therefore, Ms Vu has social ties and a support network in Vietnam. The Tribunal is satisfied that this will likely not result in her experiencing more than initial difficulties in establishing herself in that country. In this regard, Ms Vu’s mother, her sibling, and only child currently all live in Vietnam. The Tribunal finds that this support reduces the extent of any impediments Ms Vu may face if removed from Australia to Vietnam.
However, the Tribunal accepts that Ms Vu will likely face initial impediments in securing economic support, especially in the form of employment and financial assistance, and that this weighs in favour of revocation. The weight attributable to this element is moderated because Ms Vu has her immediate family in Vietnam, who were described as ‘poor’ but who could provide accommodation and support. Moreover, Ms Vu’s extended family in Australia were also willing to assist her if she was removed to Vietnam, although not to the same extent as if she remained in Australia.
In addition, Ms Vu is young, has no known physical health issues, is a low risk of reoffending and has a strong record of employment which should enable her to find a job in Vietnam utilising her various acquired skills across multiple industries.[120]
[120] See, for example, Exhibit 1, pages 113-114 and 116.
Despite this, the Tribunal accepts that there would be a period of adjustment for Ms Vu if removed from Australia and that she will likely experience some initial difficulties in re-establishing herself in that country, including in relation to employment and economic support. Ms Vu claimed that it would be difficult for her to obtain employment or open a ‘shop’ because people in Vietnam would know about her criminal record and she would therefore be effectively marginalised. Aside from Ms Vang Vu’s evidence, there was no independent corroborating evidence to support this contention. Additionally, none of the witnesses that appeared in support of Ms Vu in this proceeding knew about the details of her offending. It was therefore unclear the extent to which general members of the public in Vietnam would be aware of her criminal record in Australia, although the Tribunal notes that her co-offender was said to be from the same city as Ms Vu and, in her words, ‘people may have already known about him and me’.[121] To this end, the Tribunal accepts that the prospects of Ms Vu securing paid employment or establishing a business in the short term are potentially slim due to her criminal offending in Australia and the stated employment prospects in Vietnam. Despite this, as evidenced by Mr Wafa’s offer of employment in Australia, the Tribunal considers that employers in Vietnam across various industries, even if they were aware of her criminal record in Australia, would offer Ms Vu employment including because of her qualifications, skills and the history of her work ethic.
[121] Exhibit 3.
Accordingly, the Tribunal finds that the aforementioned factors in relation to the impediments Ms Vu is likely to face if removed to Vietnam weigh in favour of revocation of the cancellation decision. However, the Tribunal is satisfied that, as a citizen of Vietnam, Ms Vu would enjoy the same rights and support available to other citizens of Vietnam and would therefore be able to establish herself and maintain basic living standards in the context of what is generally available to other citizens. The Tribunal again notes that Ms Vu would have no language or cultural barriers to overcome if she returned to Vietnam and there was no evidence that she could not access any social, medical and economic support required in Vietnam that is generally available to other citizens. As a result, the Tribunal finds that these matters weigh marginally in favour of non-revocation.
Ms Vu contended that she was fearful for her safety due to her ex-husband having recently returned to live in Vietnam and submitted that he had threatened her mother with removal of their child. The Tribunal deals separately below with Ms Vu’s stated fear of her ex-husband as an additional other consideration. However, under this other consideration, the Tribunal accepts that Ms Vu may face some impediments if removed to Vietnam in establishing herself and maintaining basic living standards in circumstances where her fear of her ex-husband, including the alleged threats to her mother and in relation to her son, may impact upon her psychological state and the ability for her and her immediate family to live peacefully in Vietnam. Again, the Tribunal notes that there was no evidence that Ms Vu could not access any required medical or economic support that was generally available to all Vietnamese citizens. Nevertheless, this factor weighs in favour of Ms Vu and revocation of the cancellation decision.
Having regard to the totality of the evidence and the various factors involved in this consideration, the Tribunal finds that the extent of impediments if removed weighs in Ms Vu’s favour. However, for the reasons set out above, the Tribunal finds that moderate weight is attributable under this other consideration in favour of revocation of the cancellation decision.
Impact on victims
Paragraph 9.3 of Direction 99 relevantly states that decision-makers must consider the impact of the section 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available. In the absence of any relevant evidence in relation to this other consideration, the Tribunal finds that it is inapplicable in this proceeding. Accordingly, the Tribunal gives this other consideration no weight in its decision.
Impact on Australian business interests
Paragraph 9.4 of Direction 99 provides that:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal again notes that there was evidence of Ms Vu having been employed during the approximately 11 years she lived in the Australian community before she was taken into custody for her offending. However, paragraph 9.4 of Direction 99 relevantly states that an employment link would generally only be given weight where the decision under section 501CA of the Act would significantly compromise the delivery of a major project or delivery of an important service in Australia. There was no evidence before the Tribunal that the decision would have any such impact, or any impact at all, and Ms Vu made no such submission. Accordingly, the Tribunal finds that this other consideration is not relevant and is given no weight in its decision.
Additional other consideration
As noted above, paragraph 9(1) of Direction 99 states that the ‘other considerations’ to be taken into account by a decision-maker are ‘not limited to’ those set out under paragraph 9 of Direction 99. To this end, and as set out above in these reasons, Ms Vu raised one additional other consideration which the Tribunal addresses immediately below.
Fear of ex-husband in Vietnam
As set out above under the ‘other’ consideration of the legal consequences of the decision, Ms Vu raised concerns about her fears of her ex-husband if she returned to Vietnam. In Ms Vu’s Statutory Declaration and oral evidence to the Tribunal, she referred to the domestic violence perpetrated against her by her former husband in Vietnam before they divorced in 2011.[122] Ms Vu also claimed that her ex-husband would ‘start chasing me and harass me’ if she returned to Vietnam and that he would ‘threaten’ her.[123] Ms Vu does not want to face her ex-husband again and fears living in Vietnam where her ex-husband now resides.
[122] Exhibit 3.
[123] Ibid.
The Tribunal accepts that Ms Vu’s ex-husband may have been violent towards her during their marriage, which ended 13 years ago in 2011. Without downplaying the nature of the alleged future harm, Ms Vu’s oral evidence to the Tribunal rose no further than that she feared that her ex-husband would chase, harass and threaten her if she returned to Vietnam. Ms Vu returned to Vietnam on a number of occasions after she divorced her ex-husband and, despite their families living in close proximity, she could not have definitively known that he had not returned to that country at any earlier time.[124]
[124] Exhibit 32.
Aside from Ms Vu’s written statements in this proceeding and the history taken from her by Mr Watson-Munro, the only other documentary evidence before the Tribunal which potentially related to these claims was contained in the letter of support from Ms Vang Vu dated 15 March 2024, which stated that ‘we are also very concerned for her safety and her son’s safety’.[125] There was no other documentary evidence referring directly to the alleged threats against Ms Vu’s mother or Ms Vu’s own recently expressed fear of harm from her ex-husband. There was no specific reference to any threat of violence or abuse from Mr L towards his former spouse, Ms Vu.
[125] Exhibit 6.
In this regard, most tellingly, Ms Vu’s mother, to whom the alleged recent threats had been directed in Vietnam, did not give evidence at the Tribunal hearing or make reference, in her own letter of support dated 8 April 2024, to the alleged threats to her safety or Mr L’s recent actions towards her and her grandson.
While the Tribunal accepts that Ms Vu may have experienced family violence during her marriage to her ex-husband, this union ended 13 years ago, there was no evidence of any contact between the pair since that time, there was no independent corroborating evidence regarding any alleged threats made to Ms Vu by her ex-husband, Ms Vu’s very recently expressed fears only arose in the course of this Visa review process and Ms Vu had as recently as 2020 been in Vietnam to visit her immediate family. Moreover, Ms Vu’s son has continued to live with his maternal grandmother from the time Ms Vu left that country in November 2011 after she gave birth to him in April of that year. There was no evidence that, at any time during this lengthy absence from her son, aside from three short visits up until 2020, that any application was made for either or both of Ms Vu’s son or mother to visit Ms Vu in Australia. Given the potential for Ms Vu’s former husband to return to Vietnam to seek custody of their child at any time during her lengthy absence from that country and her son, the Tribunal considers that the lack of any visit to Australia by that child or Ms Vu’s mother or any application by Ms Vu for a visa on their behalf indicates that the alleged recent threats against Ms Vu’s mother and in relation to her son, and the potential harm against her, did not have the ring of truth to them. For all of these reasons, based on the available evidence, while this other consideration weighs in favour of Ms Vu and revocation of the decision to cancel her Visa, the Tribunal affords it marginal weight.
CONCLUSION
The Tribunal has found that Ms Vu does not pass the ‘character test’ as defined in subsection 501(6) of the Act because of her ‘substantial criminal record’. Following this finding, the issue for determination by the Tribunal was whether there was ‘another reason’ why the original decision to cancel Ms Vu’s Visa should be revoked. This required a consideration of Direction 99. The Tribunal has found that there is not another reason why the original decision should be revoked.
The Tribunal is satisfied, based on its assessment of all considerations, that the relevant ‘other’ consideration, and the additional other consideration raised on the evidence before the Tribunal, together with Primary Consideration 3, regarding the strength, nature and duration of ties to Australia, and Primary Consideration 4, which all weigh in favour of revocation, do not outweigh the two remaining relevant primary considerations, being the protection of the Australian community and the expectations of the Australian community, which both weigh heavily against revocation of the cancellation decision. The Tribunal has found that Primary Consideration 3 and Primary Consideration 4, respectively weigh moderately and marginally in favour of Ms Vu and the other relevant considerations weigh moderately and marginally in favour of revocation of the cancellation decision. The Tribunal again notes that, pursuant to paragraph 7(2) of Direction 99, primary considerations should generally be given greater weight than other considerations. In this regard, the Tribunal has found that Primary Consideration 1 and Primary Consideration 5 outweigh those considerations in favour of Ms Vu and revocation of the decision to cancel her Visa. Accordingly, the Tribunal finds that there is not ‘another reason’ why the original decision to cancel Ms Vu’s Visa should be revoked and Ms Vu’s application before the Tribunal is unsuccessful.
DECISION
Pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review not to revoke the mandatory cancellation of the Applicant’s visa under subsection 501(3A) of the Act.
I certify that the preceding 221 (two hundred and twenty one) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
....[SGD]....................................................................
Associate
Dated: 14 June 2024
Date(s) of hearing:
Date final submissions received:
29 and 30 May 2024
17 May 2024
Solicitor for Applicant: Mr Stephen John, Stephen John Lawyers
Solicitor for Respondent: Mr Tigiilagi Eteuati, Australian Government Solicitor
1
4
0