Vu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 2876
•13 August 2020
Vu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2876 (13 August 2020)
Division:GENERAL DIVISION
File Number(s): 2020/3275
Re:Thi Lan Anh Vu
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:13 August 2020
Place:Sydney
The decision under review is set aside and in substitution the mandatory cancellation of the Applicant’s visa is revoked.
...............................[sgd]...............................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of visa – failure to pass character test – substantial criminal record – whether there is another reason for the mandatory cancellation to be revoked – ministerial Direction no. 79 – primary considerations – protection of the Australian community – the best interests of minor children – expectations of the Australian community – other considerations – strength, nature and duration of ties – extent of impediments if removed – weighing of primary and other considerations – reviewable decision is set aside and substituted
LEGISLATION
Drug Misuse and Trafficking Act 1985 (NSW) s 3, sch 1
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 79: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (20 December 2018) Preamble, Part C
CASES
Abebe v Commonwealth [1999] HCA 14
Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123
BFXK and Minister for Immigration and Border Protection (Migration) [2018] AATA 886
BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
Coker v Minister for Immigration and Border Protection [2017] FCA 929
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Dang and Minister for Home Affairs (Migration) [2018] AATA 2095
Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 488
Do and Minister for Immigration and Border Protection (Migration) [2016] AATA 390
FCFY v Minister for Home Affairs [2019] FCA 1222
Fox v Percy [2003] HCA 22
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
FYBR v Minister for Home Affairs [2019] FCAFC 185
Georges and Minister for Immigration and Ethnic Affairs [1978] AATA 63
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Lester v State of Western Australia [2011] WASCA 128
Meyrick v Minister for Home Affairs [2020] FCA 677
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Home Affairs v Stowers [2020] FCA 407
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575
Ngo v R [2017] WASCA 3
PQSM v Minister for Home Affairs [2019] FCA 1540
R v Edwards (1996) 90 A Crim R 510
SCJD and Minister for Home Affairs (Migration) [2018] AATA 4020
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
The Trustee for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273
VKTT v Minister for Home Affairs [2019] FCA 1018
VXKK and Minister for Home Affairs (Migration) [2018] AATA 3268
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Amnesty International, Death penalty in 2019: Facts and figures (21 April 2020) < align="left">General Statistics Office of Vietnam, Statistical Yearbook of Vietnam 2019 (Statistical Publishing House, 2019)
Kempthorne, Charlotte, ‘Endangered Kiwis: The rights of children in deportation decisions’ (2012) University of Otago, New Zealand
The Straits Times, ‘Vietnam sentences 11 people to death for drug trafficking’, The Straits Times (online), 18 October 2019 < FOR DECISION
Chris Puplick AM, Senior Member
13 August 2020
Ms Thi Lan Anh Vu (Applicant) has applied to this Tribunal for a review of a decision by a delegate of the Minister (Respondent) not to revoke under section 501CA(4) of the Migration Act 1958 (Cth) (Act) the mandatory cancellation of her visa pursuant to section 501(3A) of the Act.
NARRATIVE OF THE APPLICATION
The Applicant was born in Vietnam in November 1991 and first arrived in Australia, holding a Student (Temporary) (Class TU, Subclass 573) visa, on 7 September 2012.
On 13 March 2019 the Applicant pleaded guilty to the charge of “Take part supply prohibited drug >= commercial quantity” in Burwood Local Court and was committed for sentencing in the District Court of New South Wales at Parramatta. On 26 July 2019 the Applicant appeared before the District Court where she was sentenced to a term of imprisonment of 2 years and 6 months with a non-parole period of 1 year and 3 months.[1]
[1] Section 501G documents (G documents) at 26-27.
On 31 October 2019 the Respondent notified the Applicant that her visa had been subject to mandatory cancellation under section 501(3A) of the Act as a result of her criminal conviction and sentencing to a term of imprisonment in excess of 12 months (cancellation decision).
On 26 November 2019 the Applicant applied for revocation of that cancellation decision.
That request was refused on 21 May 2020 by the Respondent who made a decision not to revoke the cancellation decision under section 501CA(4) of the Act (non-revocation decision).
The Applicant applied to this Tribunal for a review of that non-revocation decision on 29 May 2020.
The matter was heard by the Tribunal on 4 August 2020 through the use of Microsoft Teams technology occasioned by the restrictions imposed on its operations as a result of the COVID-19 pandemic. The Applicant was located at Emu Plains Correctional Centre and was represented by counsel. She had the assistance of an interpreter in the Vietnamese language. Although use of such technology is less than optimal compared to face-to-face hearings, the Tribunal is satisfied that procedural fairness was accorded to all parties through this mode of hearing.
By virtue of section 500(6L)(c) of the Act (“the 84-day rule”) the Tribunal is required to publish its decision no later than 13 August 2020.
THE LEGISLATIVE SCHEMA
The schema of the Act is that it is mandatory for the Minister to cancel the visa of any visa holder who fails the “character test” set out in the Act and is serving a sentence of imprisonment at the time of the Minister’s decision.[2] A person, by definition, fails the character test if they have a “substantial criminal record”.[3] A “substantial criminal record” is defined as existing where a person “has been sentenced to a term of imprisonment of 12 months or more”.[4]
[2] Migration Act 1958 (Cth) (Act) s 501(3A).
[3] Act s 501(6)(a).
[4] Act s 501(7)(c).
There is no dispute between the parties that the Applicant fails the character test.
The Act then provides that a mandatory visa cancellation decision may be revoked if there is “another reason” to do so.[5]
[5] Ibid s 501CA(4)(b)(ii).
The matters which must be considered by a decision-maker, including the Tribunal, in determining whether or not “another reason” exists are set out in ministerial Direction no. 79 (Direction).[6] This Direction is made pursuant to section 499 of the Act and is binding on any decision-maker in making their final determination.
[6] Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 79: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA made on 20 December 2018 and effective from 28 February 2019 (Direction no. 79). Direction no. 79 supersedes Direction no. 65 which was made on 22 December 2014.
As will be explained below, the Direction lists three “primary” and five “other” considerations which must be addressed by the Tribunal. Although designated as “primary” or “other” considerations, this is not taken to mean that “primary” considerations are, necessarily, to be afforded greater weight than “other” considerations.[7] Indeed, the combined weight of “other” considerations may outweigh those designated as “primary”.[8] In this respect it may be better to think of the “other” considerations rather as simply “non-primary”.[9]
[7] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23]-[26] per Colvin J; PQSM v Minister for Home Affairs [2019] FCA 1540, [51] per Colvin J; Minister for Home Affairs v HSKJ [2018] FCAFC 217, [24] and [37] per Greenwood, McKerracher and Burley JJ.
[8] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858, [88]; FCFY v Minister for Home Affairs [2019] FCA 1222, [50] per Thawley J.
[9] Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897, [18]-[19] and [21] per Drummond J when considering the terms of Direction no. 17 (a predecessor direction in similar terms).
While the Tribunal must be guided by the Direction and give effect to its provisions and requirements, when considering the totality of the evidence:
(a)“The choice of, and weight given to, the material before a Tribunal is a matter for it.”[10]
(b)“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”[11]
(c)“The weighing of various pieces of evidence is a matter for the Tribunal.”[12]
(d)“In the end, the criticisms made by the applicant of the Tribunal’s reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.”[13]
[10] Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123, [45] per Spender, Moore and Foster JJ (emphasis added). Citations have been omitted.
[11] Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464, [27] per French J.
[12] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48, [33]: unanimous decision of the High Court.
[13] Abebe v Commonwealth [1999] HCA 14, [197] per Gummow and Hayne JJ.
Indeed, in Meyrick, the Federal Court stated that “[d]eterminations as to weight are quintessentially matters for the Tribunal”.[14]
APPLICANT’S BACKGROUND
[14] Meyrick v Minister for Home Affairs [2020] FCA 677, [141] per Jackson J.
Vietnam
The Applicant gave extensive evidence about her family background in Vietnam and this was supplemented by reference to a report prepared by Dr Ramony Chan for her legal representatives. Dr Chan is a Senior Clinical Psychologist and Conjoint Lecturer at the University of New South Wales and has an extensive record of publications. He has seen the Applicant on more than one occasion. His latest report before the Tribunal is dated 24 July 2020.[15]
[15] Psychological report by Dr Ramony Chan dated 24 July 2020 (Chan Report). A previous report by Dr Chan is dated 5 July 2019.
The Applicant had a stable, loving and supportive family environment in Quang Ninh, Vietnam. She reports that her parents own a business and also own their own home. They were sufficiently financially secure to be able to support the Applicant when she left home to study at the Hanoi University of Business and Technology, so much so that she “had no work experience” while studying. She writes that “[m]y parents provided everything for me”.[16] When she arrived in Australia, they continued to provide support and (together with relatives and friends of the Applicant) contributed towards the $30,000 which she borrowed to establish her own small fashion business in Australia.
[16] Applicant’s statement dated 27 July 2020 at [4].
Her father has been sufficiently supportive such that when the Applicant’s child was born during the first few months of her incarceration, he visited from Vietnam in order to see them both. Apart from her parents and a sister, the Applicant has a number of other relatives also living in Vietnam and some that are resident in either Australia or Canada. Her husband’s parents also still reside in Vietnam.
Australia
The Applicant arrived in Australia on a Student visa in September 2012 aged 20. She undertook a six-month English language course and then enrolled at Macquarie University in a Bachelor of Economics course. She completed 10 units of study over 2 years and was still enrolled and studying at the time of her arrest in July 2018.
With financial assistance from her family and friends she established a small business in Greenacre where she retailed fashion items which she imported from Vietnam where they were manufactured by a friend of hers.
In 2013 she met her now-husband, The Giang Le, who she dated for approximately one year. After they broke up the Applicant returned to Vietnam on holiday some time in 2015 where she met Y Vu Phan. It appears that Mr Phan then came to Australia and the Applicant moved to Melbourne to live with him, suspending her university studies for one year. She formed a de facto relationship with Mr Phan, the basis on which she was granted a Skilled independent (Subclass 189) visa that established her status as a permanent resident in Australia. That relationship ended in December 2017 and the Applicant returned to Sydney.
In Sydney she resumed her studies and resided in Fairfield West where she lived with her uncle Mr Van Quyet Vu. The Applicant also has cousins (including Ms Ngoc Thi Hong (Nicole) Vu), an uncle, aunt (Ms Thi Thoa Vu) and grandmother living in Sydney and has a good relationship with all of them. Her grandmother is currently in Vietnam and unable to return to Australia due to the COVID-19 restrictions. Among the family members she also has a niece (N D Nguyen aged 5 years) and a nephew (J Nguyen aged 2 years).[17]
[17] G documents at [21] and [82].
She resumed her relationship with Mr Le who moved into the Fairfield West house to live with her and her family members. The couple married in May 2018. At the time of her arrest she was still living in the Fairfield West property which is large enough to accommodate some 8 to 10 people.[18]
[18] NSW Department of Corrective Services Case Note Report: Applicant’s bundle of documents (Applicant’s tender bundle) at 130. A Police Event report dated 13 July 2018 refers to 10 adults and 2 children at the premises: Applicant’s tender bundle at 2. The accommodation was deemed suitable as a potential location for post-release on parole: Applicant’s tender bundle at 136.
In addition to this residence, there is a property at Sefton which appears was used as a “safe house”[19] for the drug-related activities. The Sefton property is owned by an unspecified party but has attached to it a “granny flat” which the police reported as being “leased to an Asian couple being Thi Lan Anh Vu and her boyfriend The Giang Le”.[20] It was from this granny flat that certain illegal transactions were conducted. In his sentencing remarks, Judge Bennett stated that this granny flat was also where “Le and Vu who were and continue to be in a relationship resided”.[21] In her evidence to the Tribunal the Applicant denied that she ever resided at the Sefton address and all of the other evidence before the Tribunal tends to corroborate the claim that during the relevant period the Applicant was resident at Fairfield West. Regardless of where might have been the principal place of residence there is no denial that the Sefton property was used for the described activities.
[19] G document at 39 [44].
[20] Applicant’s tender bundle at 4.
[21] G documents at 39 [44].
On 13 July 2018 the Applicant was arrested (details discussed below). She was initially held at Silverwater Women’s Correctional Centre until granted bail on 9 August 2018. The Applicant states that, as a result of being in debt for legal fees, she gave up her studies and both herself and her husband took up employment. It was around this time that she opened her fashion business.
It was under these conditions that the Applicant appeared before the Court on 26 July 2019 where she was sentenced (see above), and as she was over seven months pregnant at the time she was eventually placed in the Mothers and Children’s Program[22] at Emu Plains Correctional Centre’s Jacaranda Cottages. Her baby, Child S, was born in October 2019 at Nepean Hospital and is currently still in the Applicant’s care at Jacaranda Cottages.
[22] See submission to Commissioner, Corrective Services NSW and attached material: Applicant’s tender bundle at 100-104.
THE OFFENCE
The Applicant was involved, with her husband and two other persons, in a syndicate which supplied cannabis to a variety of buyers. The operation was conducted with a degree of sophistication in that the drugs were offered over the Dark Web, payments were made in Bitcoin and detailed ledgers were kept.[23]
[23] G documents at 33 [12].
The role of both the Applicant (and her husband) was principally to package and distribute the drug to buyers via Australia Post.[24]
[24] Ibid 34 [17].
The period over which the Applicant was involved in this operation was a matter of some contestation at the Tribunal hearing. The Minister’s legal representative pressed the Applicant as to when she first became involved with the drug syndicate, suggesting strongly that it was towards the end of 2017 if not earlier. The Applicant maintained, equally strongly, that she only commenced her activities after she had returned from a trip to Vietnam in January 2018.
According to Dr Chan’s report, as reported by the Applicant, “[u]pon returning to Australia, her boyfriend confided in her of his criminal activities”. Further, “[s]he [the Applicant] understood that when they initially met, he [her husband] was not involved in criminal activity or substance abuse”.[25]
[25] Chan Report at 5.
It appears that the Applicant returned from Vietnam on or about 28 January 2018. Unfortunately, there was no evidence before the Tribunal setting out her travel record however this date was not disputed by the Respondent. This date appears to be confirmed in the Agreed Facts tendered to the Court.[26]
[26] Applicant’s tender bundle at 46 [57]. The Chan Report (at 5) is clearly in error in stating that the Applicant was in Vietnam from “early January to early March 2019”.
The Respondent relies upon the Agreed Facts, which state that the Applicant was involved in the offence for which she was convicted between “11 December 2017 and 3 April 2018”.
What actually came before the Court, per the Agreed Facts, in relation to the Applicant involved, inter alia, a “rolled-up charge” involving two amounts of cannabis relating to the period “between 11 December 2017 and 3 April 2018”.[27]
[27] G documents at 40 [49] and [52].
The sentencing Judge stated in his summary of the facts of the case that:
(a)in relation to “the supplies [which] were discovered by the police” pertaining to Ms Ha, Ms Tran and Mr Le,[28] that “[t]he first of those was the supply of 4.08 kilograms on 31 January 2018” between Ms Ha and Mr Le.[29]
(b)in sentencing Ms Ha, who was the wholesaler of all the drugs which the Applicant and her husband then supplied to customers, his Honour referred to her supply “between 31 January 2018 and 4 April 2018 when she provided the cannabis to the three other offenders”.[30]
[28] Ibid 35 [23].,
[29] Ibid 36 [24].
[30] Ibid 59 [158].
The Delegate, in making his/her decision, referred to the fact that “[t]he court heard that between 30 January 2018 and 5 April 2018 Ms Vu, Mr Le and a third co-offender ran their drug supply syndicate”,[31] which may not be an entirely accurate reflection of the timelines set out in the Agreed Facts or the sentencing remarks.
[31] Ibid 18.
In a search of the Applicant’s car on 4 April 2018, “police located a double-sided ledger listing 36 customers, as well as a hand-written smaller ledger detailing the same initial 12 customers as the typed document (giving rise to charges against Vu, Le and Tran). [The Applicant] had removed this document from the [Sefton] safe house” earlier.[32] The drug ledger was dated 2 April 2018.[33]
[32] Applicant’s tender bundle at 45 [51].
[33] Ibid 47 [64].
It is clearly established that the Tribunal must not seek to “go behind” the decision of the sentencing court, although it is entitled to inform itself of the relevant details of the offence and the environment in which it took place.[34]
[34] Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649, 653; Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575, 596-597.
It appears to the Tribunal that whatever the Applicant’s state of mind or knowledge was before 28 January 2018, she claims that she was only actively involved in physically arranging the distribution of the cannabis after her return from Vietnam.
The Tribunal also accepts that her involvement was as a result of what her husband told her about his needing to make financial gain in order to pay off a debt which had been incurred by his family in the sum of some $70,000.[35] The Judge noted Mr Le’s “commendable candour” in admitting that his illegal activities were motivated by financial gain.[36]
[35] G documents at 52 [113].
[36] Ibid 50 [101] and 51 [108].
The sentencing Judge described the Applicant as “a reluctant participant” in the criminal activities, albeit a knowing one who “continued in the enterprise in the interests of her husband and the financial assistance that the misconduct would provide for the reasons he gave and which she supported in her evidence”.[37] However, his Honour was equally satisfied that the Applicant had other options in relation to seeking financial support and did not need to be involved in illegal activities.[38]
[37] Ibid 44 [73] and 45 [81].
[38] Ibid 46 [81].
The amount of cannabis with which the Applicant was convicted for supplying was 38.736 kilograms. This constitutes a proportion of the total amount of cannabis which was moved between the various members of the syndicate. For example, the Applicant’s husband was convicted in relation to two transactions of 71.393[39] and 35.219 kilograms.[40] Under the Drug Misuse and Trafficking Act 1985 (NSW) the definition of a “commercial quantity” is set at 25 kilograms.
[39] G documents at 35 [23].
[40] Ibid 49 [99].
As noted, the Court imposed a sentence in the following terms:
I specify a non-parole period of imprisonment of 1 year and 3 months commencing on 28 June 2019 expiring on 27 September 2020. I specify a further period of imprisonment of 1 year and 3 months to commence at the expiration of the non-parole period and expire on 27 December 2021.[41]
[41] Ibid [97].
In imposing a custodial sentence, the Judge made it clear that he regarded a custodial sentence as inevitable given the amount of cannabis involved and the sophistication of the syndicate’s operations.[42] His Honour considered the impact of a custodial sentence upon the Applicant’s unborn child but found that not sufficient to constitute “exceptional circumstances” leading to the non-imposition of a custodial sentence.[43] On the other hand, his Honour found that “it is a matter that impacts significantly upon the determination of the sentence and the custodial component which must be imposed”[44] and that the Applicant’s case had “ample material upon which to find special circumstances so as to reduce the custodial component of the sentence below the percentage specified in s 44 Crimes (Sentencing Procedure) Act 1999”.[45]
[42] Ibid 43 [71].
[43] Ibid 47 [86]. See R v Edwards (1996) 90 A Crim R 510, 515-517.
[44] Ibid 47 [86].
[45] Ibid 43-44 [71].
Relevant sentencing remarks
Bennett J, in sentencing the Applicant, made the following remarks in relation to the Applicant which are relevant for the Tribunal’s subsequent considerations:
(a)(her offence) “is toward but not at the bottom range of objective seriousness” and “she is charged with knowingly taking part in the supply of a commercial quantity of cannabis and traditionally, although the offence is charged under the same provision with exposure to the same maximum penalty, courts have tended to impose lesser sentences for people charged with that level of participation.”[46]
(b)“she satisfied me that she had demonstrated contrition and remorse”[47]
(c)she was a “reluctant participant” in the criminal activities[48]
(d)“[s]he has a low risk of reoffending according to the assessment made by the officer” who supplied the sentence assessment report[49]
(e)At the time of Dr Chan’s assessment of the Applicant in July 2019, “[t]here is no current drug-related problem. Risk assessment was made; again there is a low risk of recidivism. This leads me to the conclusion that the risk of re-offending is low and that the prospects of rehabilitation for this offender are high.”[50]
(f)“[i]t is tragic that she is where she is. She is a person of otherwise good character participating in serious criminal activity”[51]
(g)“I have allowed a discount of 25% for her plea of guilty attached to the sentence identified upon the synthesis of objective and subjective facts including her contrition and remorse and her strong prospect of rehabilitation. I have taken into account as special circumstances the fact that she is pregnant and her baby is due in October of this year. I have taken into account that she is a person of good character otherwise and has not been before any court, at least in this jurisdiction, in the past.”[52]
[46] G documents at 43 [69].
[47] Ibid 44 [74].
[48] Ibid [73] and 45 [81].
[49] Ibid 47 [88].
[50] Ibid 48 [92].
[51] Ibid [93].
[52] Ibid 49 [95].
DR CHAN’S REPORTS
Dr Chan, as noted above, has assessed the Applicant on two occasions. His most contemporary report dated 24 July 2020 was based upon a semi-structured interview and the conduct of a number of formal psychometric tests. The report is detailed and extensive and reaches a series of conclusions.
In a diagnostic sense, Dr Chan concludes that the Applicant meets the diagnostic criteria for Major Depressive Disorder, Severe, Recurrent Episode according to the standards set in the DSM-5.[53] He states that “[t]he assessment results presented in this report and the documented evidence show that the probability of Ms. Vu’s reoffending in very low”.[54] This assessment is based substantially on Dr Chan’s considerations that the Applicant “does not have any of the risk factors and possesses all of the protective factors”[55] which mitigate in favour of non-recidivism.
[53] Chan Report at 11.
[54] Ibid 12.
[55] Ibid 13.
His final summary is:
Based on the previous evidence, psychometric test results, current findings and literature, it is concluded that Ms. Vu’s risk of recidivism is very low; that the impact of deportation on her and her daughter is significant and detrimental to her daughter; and that she will experience significant difficulties in re-settling in Vietnam; and that her deportation would impact on her relatives and social network in Australia.[56]
[56] Ibid 14.
Dr Chan also gave oral evidence to the Tribunal at hearing. The Tribunal accepts Dr Chan’s formal diagnoses and accepts the evidence presented as a result of the objective psychometric tests.
In his report Dr Chan identifies (through the literature) factors which he asserts are “protective against reoffending”.[57] Among these are marriage, strong social ties, stable accommodation and employment situations and receipt of a first prison sentence. He also notes that factors such as age, gender and type of offence may be relevant in this regard. At the time of the offending, the Applicant was not married but had some social ties with members of her immediate family. Neither her employment nor accommodation arrangements appear to have been particularly stable and of course she had no prior offending record. In assessing a risk of reoffending, the “protective” factors of now being married and having a child should be taken into account in addition to those existing prior to the offence and the factor of an experience of imprisonment is established. The Respondent’s attack upon this line of argument in terms of assessing a risk of reoffending is weakened to the extent that it fails to distinguish the factors present and relevant to the commission of a first offence from those present and relevant to the risk of reoffending.
[57] Ibid 12.
The Tribunal notes that Dr Chan’s report and conclusions appear to be far more grounded in a review of the literature, significant as it may be, than in an assessment of the individual circumstances and personality of the Applicant herself. This may have resulted, in part, from the inability of Dr Chan to conduct in-depth face-to-face interview(s) with the Applicant.
Some of his conclusions are open to debate. For example, Dr Chan states that “[h]er knowledge, skills and social network from Australia are not applicable to living in Vietnam”[58] and while this may well be true of her personal network, her skills in the English language, her study of economics at university level in Australia and study of banking and finance management in Vietnam, and her experiences running a small business, most certainly are.
[58] Chan Report at 14.
Equally, the statement that “[t]he impact of deportation on Ms. Vu’s 10 month old daughter would be significant”[59] must be taken as speculative. For example, while it may very well be that a young child growing up in Vietnam would have fewer opportunities as compared with life in Australia, this is balanced against the fact that she would be returning to an environment where she would have the support of her grandparents and her maternal aunt and may not be subject to some of the prejudices often visited upon Vietnamese people in Australia. Interestingly, the principal authority cited by Dr Chan in this respect, a dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (with Honours) at the University of Otago in October 2012 by Charlotte Kempthorne, concludes by proposing a “proportionality test” to protect the right of vulnerable children, recognising that there are competing interests in this matter.[60]
[59] Ibid 13.
[60] Kempthorne, Charlotte, ‘Endangered Kiwis: The rights of children in deportation decisions’ (2012) University of Otago, New Zealand, 69-70.
Nevertheless, Dr Chan’s report may be taken as, at the very least, strongly supportive of an assessment of the Applicant’s risk of reoffending as being very low. Despite any other concerns it may have, the Tribunal accepts this assessment which accords with the evidence from other sources on this point.
CONSIDERATION OF DIRECTION NO. 79
Direction no. 79 provides that decision-making is to be approached within the framework of the principles set out in paragraph 6.3 of the Direction. These principles (inter alia) emphasise the fact that entry into, and the right to remain in, Australia is a privilege and that non-citizens are expected to abide by the law and not cause harm to the Australian community. They provide that people who commit serious crimes should generally expect to be denied the privilege of entering or remaining in Australia and that Australia has a low tolerance of serious offending by people who have only participated in, and contributed to, the community for a short period of time. They also indicate that credit should be given to individuals who have made a positive contribution to the community (especially over extended periods of time) and that the impact on minor children and immediate family members of any forced removal of a non-citizen should be given consideration. Crimes against women, children or vulnerable members of the community are identified as being of a particular serious character. The Applicant’s offence does not fall into this latter category.
Guided by these principles, the decision-maker must take into account the “primary considerations” in Part C of Direction no. 79 in deciding whether to revoke a mandatory visa cancellation.
The primary considerations are listed as:
(a)protection of the Australian community from criminal and other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
The decision-maker must also take into account “other considerations”, some of which may be relevant and others potentially not. These include but are not limited to:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed.
Primary Considerations
Protection of the Australian community
Clause 13.1 of the Direction identifies two particular issues for consideration, namely the nature and seriousness of the conduct under review and the risk to the community were an offender to commit further offences. The Direction refers to “other serious conduct” and is not restricted to repetition of the original offence.
The importance of this criterion was made clear by the Full Court of the Federal Court in Djalic where it said that “[t]he authorities recognise that the protection of the Australian community lies at the heart of the discretionary power to cancel the visa of, or deport a non-citizen convicted of serious criminal offences”.[61]
[61] Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 488, 505 [68].
There is no doubt as to the seriousness of the conduct here in question. The amount of cannabis was significant, and the seriousness was remarked upon by the sentencing Judge. The Applicant, in support of her husband was motivated by, and acted on the basis of, financial gain.
In Ngo v The Queen,[62] the Court of Appeal of the Supreme Court of Western Australia stated that the victim of trafficking or attempted trafficking in illicit drugs was the Australian community generally and that:
[t]he illicit drug trade is a scourge. It inflicts very significant damage on the people who consume the drugs. Also, the deleterious effects of illicit drug consumption extend to the families, friends and associates of the consumers and society generally.
[62] [2017] WASCA 3, [63].
The decisions of this Tribunal in recording its abhorrence of the drug trade are too numerous to list but are best summarised in the remarks of Senior Member Cameron in SCJD as follows:
The seriousness of drug trafficking is well known. It has been commented on by several of the trial judges before whom the Applicant has come.
The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person’s drug dependency. There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.
There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.[63]
[63] SCJD and Minister for Home Affairs (Migration) [2018] AATA 4020, [80]-[83].
The Respondent attached to its statement of facts, issues and contentions (SFIC) dated 31 July 2020 a paper prepared by the Australian Institute of Health and Welfare titled Alcohol, tobacco & other drugs in Australia (updated 26 June 2020) (AIHW Report).
In submissions, the Applicant’s Counsel drew attention to figures contained in the AIHW Report regarding the use and impact of cannabis. He highlighted the data showing that cannabis contributed to 0.2% of the total burden of disease and injury in 2015 and 8.3% of the total burden due to illicit drugs, and that 3% (or less) of the burden of schizophrenia, poisoning, anxiety, road traffic injuries and depressive disorders was attributable to cannabis use.[64] Counsel also noted changing social attitudes to the use of cannabis without, in any way, seeking to dispute that it is an illicit drug, the use of which is prohibited and which is not without deleterious side effects.
[64] Attachment A to the Respondent’s statement of facts, issues and contentions (SFIC) dated 31 July 2020 at 7.
The sentencing Judge dealt with this matter directly in his remarks wherein he described cannabis as “a harmful drug” and concluded that “it is a dangerous drug, and those who urge otherwise are misguided”.[65]
[65] G documents at 52 [114].
This accords with comments made by McLure P (with whom Newness JA and Hall J agreed) in the Supreme Court of Western Australia, to the effect that:
The court has since 2001 repeatedly stated that it takes a more serious view of the threat the cannabis trade poses to society and the increased prevalence of it. The risk correlation between the use of cannabis and mental illness and progression to harder drugs is a familiar theme in sentencing materials in more recent times.
Deterrence is the main sentencing consideration for dealing in prohibited drugs, including cannabis, and matters personal to the offender are accorded correspondingly less weight. In the past five years at least there has been a tangible, incremental firming up in the sentences imposed for dealing in other types of prohibited drugs. That is not obviously so in the sentencing of offenders for dealing in cannabis, notwithstanding the identified need.[66]
[66] Lester v State of Western Australia [2011] WASCA 128, [21]-[22].
The Tribunal agrees with the proposition that cannabis is a dangerous drug, especially in its potentially precursor role to the use of other illicit substances, and hence there would be a real danger to the Australian community were its production, sale and distribution not curbed and illicit activities associated with it at this level not subject to sanction.
However, the Tribunal also acknowledges that this is the Applicant’s first, and only, offence and there is no indication of any trend of increasing seriousness in her offending. Furthermore, whilst it is the case that the Applicant was sentenced to a term of imprisonment which is the last resort in the sentencing hierarchy, taking into account (or even not taking into account) any sentencing discounts given, the sentence imposed on the Applicant was on the lower end of the spectrum compared to the maximum penalty.
The question of the risk of reoffending must be addressed by consideration of what expert opinion is before the Tribunal on this matter.
The obvious starting point is the remarks by the sentencing Judge. As outlined above, his Honour accepted that the Applicant was a reluctant participant in the crime, motivated by a need to help her husband financially. His Honour accepted that the Applicant had shown remorse and contrition and that she was, otherwise, a person of good character. His Honour accepted that the Applicant had strong prospects of rehabilitation.
There is, then, the assessment made by an officer of Corrective Services NSW tendered to the Court as a sentencing assessment report dated 4 July 2019 which, using the same test adopted by Dr Chan namely the Level of Service Inventory – Revised (LSI-R), found the Applicant to be at “a Low risk of reoffending”.[67]
[67] Applicant’s tender bundle at 32.
The next expert opinion is that of Dr Chan and as outlined above, even accepting that the Tribunal has some reservations touching on analytic methodology, the Tribunal accepts his findings that the Applicant’s risk of reoffending is very low.
The Applicant has, in her SFIC, summarised the comments made by various officers of Corrective Services NSW in relation to the character and behaviour of the Applicant while in custody. The Tribunal, having checked all the references (details of which have been omitted below), reproduces the relevant paragraph of that submission:
[7] … Prior to her incarceration, the applicant was described as “compliant and well mannered” in the trying circumstances of Silverwater Prison, “very calm and pleasant”, “quite forthcoming and cooperative”, and wanting “a stable job for her and her husband so they can save and create a fulfilling lifestyle for their up and coming family”. Her proposed residence, if released, was described as “pleasant no issues or concerns”. This sort of description continued after her incarceration; she was quickly transferred to the low security Jacaranda Cottages under the Mothers and Children’s Program, where she was described as “calm and cooperative”, “polite and calm”, “an attentive and loving mother”, “very future focussed and planning for her new family”, “polite and complies with the centre routine” and “gets along well with staff and [other] inmates”, “works hard as an office sweeper in the Jacaranda office and she is very punctual and polite”, “complies with Centre routine and gets along well with others”, and “was of great assistance today when asked to clean staff amenities this afternoon…completed task without any hesitation”.
Taking all of these together, in relation to this criterion of the Direction, the Applicant advances in her SFIC the proposition that “[t]his factor ought to weigh heavily in her favour”.[68]
[68] Applicant’s SFIC dated 22 July 2020 at [9].
The Respondent replies to the effect that this is an illogical proposition given that, unless there is absolutely zero risk of reoffending, any risk, no matter how small, must count at the very least neutrally, if not always negatively, in relation to any applicant.
The Tribunal agrees with that position. This criterion can never count in favour of an applicant save in the situation where reoffending is actually not possible. There may, hypothetically, be such circumstances but none has ever been drawn to the attention of the Tribunal.
On the other hand, this criteria is not what has been elsewhere described as creating “erected hurdles that it [is] simply impossible for the applicant to clear”, and the Tribunal is “not under an obligation to evaluate in any particular way the risk of harm to the Australian community of the applicant re-offending”.[69] There is no “prescribed formula” which a decision-maker must follow in this regard.[70]
[69] Coker v Minister for Immigration and Border Protection [2017] FCA 929, [58] and [62] per Moshinsky J.
[70] BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78, [43].
At best this criterion can be given a neutral weight, that is, it counts neither for nor against an applicant, or alternately, it may be given a very limited weight against an applicant where the circumstances support such an assessment.
Taking both elements of the criteria together, in relation to Ms Vu, the Tribunal is of the opinion that her risk of reoffending is very low (preferring Dr Chan on this point as “very” low compared to previous assessments as merely “low”) and that this risk is not unacceptable.
This criterion should be taken to count only marginally against her application.
Best interests of minor children in Australia
The Federal Court has emphasised the importance of adherence to the ministerial Direction that the interests of each of the relevant children must be considered and assessed individually.
Clause 13.2 provides that decision-makers must make a determination about whether revocation is or is not in the best interests of the child, where that child is, or would at the time when the decision is made, be under 18. Clause 13.2(3) provides that if there are two or more relevant children, the best interests of each child should be given individual consideration, to the extent that their interests may differ.[71]
[71] VKTT v Minister for Home Affairs [2019] FCA 1018, [22] per Burley J. Emphasis in original.
This point was reinforced most recently in the Federal Court’s decision in Stowers where Yates J noted the responsibility of the Tribunal:
to give individual consideration to the best interests of each child falling within the class, to the extent that the interests of the children differ.[72]
[72] Minister for Home Affairs v Stowers [2020] FCA 407, [60].
As far as can be determined, there are three minor children whose interests must be considered: the Applicant’s child (Child S, born October 2019), a niece (N D Nguyen aged 5 years) and a nephew (J Nguyen aged 2 years).
In relation to the Applicant’s niece there is no probative evidence that the Applicant has played any significant part in the child’s development, care or upbringing. No claim to this effect is made in any of the Applicant’s submissions, either her SFIC, statement to the Tribunal or even the letters of support from family members.[73] The best that can be said is that Dr Chan, in his report, refers to the Applicant’s “strong attachment” to both of them and the fact that they have visited her while she was in detention. In the absence of anything directly from the Applicant and the fact that the Applicant’s niece already has others who fulfil a parental role, the Tribunal does not place significant weight on the claims by Dr Chan that her removal from Australia “would impact on their [that is, the children’s] mental health”.[74]
[73] G documents at 109, 111 and 113.
[74] Chan Report at 13.
What may be concluded in relation to the five year old niece may also be said, but perhaps with even greater confidence, in relation to the two year old nephew.
The Tribunal recognises that there are family ties at issue here but it gives very limited weight to those as they relate to the niece and nephew.
The position of the baby, Child S, is much more difficult to assess. The Tribunal has already noted Dr Chan’s assessment of this issue and its concerns about the extent to which he, and now this Tribunal, is required to speculate about impacts on a child of such tender age. This is because the child has not yet developed a degree of awareness of, or attachment to, surroundings or environments and has not had the benefit of parental care other than from only one parent, without other immediate family support and involvement.
There is no doubt that there are significant differences between Australia and Vietnam ranging across the entire spectrum of social, political and economic indicators. The Respondent concedes that this criterion weighs in favour of the Applicant but only to a “minimal” extent.[75]
[75] Respondent’s SFIC at [42].
The Tribunal, however, rates it more highly than this. The Tribunal itself is part of a continuum of decision-making based upon the rule of law.[76] Those laws are made by the Parliament, and applied by members of the Tribunal, appointed by elected representatives of the people chosen at fair, free and regular elections by its citizens. Those same representatives are accountable for their actions. The same cannot be said of the communist state of Vietnam. The access to health and educational services and to economic opportunity are not equal between the two nations and the opportunities for individual free expression, including the right of dissent, is markedly different.
[76] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16, [53].
There is no evidence to suggest that mother and daughter will be separated. The question is where they will remain together. On the assumption that the Applicant will continue to have custody of Child S, regardless of the ongoing position of the child’s father, the Tribunal believes that it is significantly in the best interests of the child that she be allowed to remain in Australia and eventually avail herself of the benefits of being a member of the Australian community rather than be, in effect, sent to Vietnam with little or no prospect of return to Australia, as the place of her birth, any time soon.
The Tribunal cannot speculate on the fate of the child’s father and as a result cannot be sure whether the child will have the benefit of being brought up by two parents. However, the Tribunal notes that the father has played no significant, or indeed any, role in the nurturing of the child to date.
The Tribunal weighs the best interests of the child in this instance as counting strongly in favour of revocation of the Applicant’s visa cancellation.
Expectations of the Australian community
Determination of what these expectations may be has long bedevilled this Tribunal and various decision-makers.
In cases such as YNQY and BFXK the Federal Court and this Tribunal have noted that this criterion starts off from a position of being, ipso facto and indeed by intention, unfavourable to an applicant.[77] However, as was stated in BFXK, the degree of unfavourability is to be assessed in relation to the individual circumstances of each applicant and each case.
[77] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, [76]; BFXK and Minister for Immigration and Border Protection (Migration) [2018] AATA 886, [126].
In FYBR the Full Court of the Federal Court gave a definitive ruling[78] (by majority) as to the interpretation of this criterion. It stated (per Charlesworth J):
To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”, in the sense explained by Mortimer J in the limited passage from YNQY upon which the Tribunal relied at [54] of its reasons (extracted at [20] above). It is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”. I do not understand the judgment of Griffiths J in DKXY to differ from that of Mortimer J in YNQY in that respect. For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[79]
[78] On 24 April 2020 an application for special leave to appeal this decision was dismissed by the High Court.
[79] FYBR v Minister for Home Affairs [2019] FCAFC 185, [67]. Emphasis added.
The other judge of the majority (Stewart J) put it in these terms:
… it is not the decision-maker who makes an assessment of community values on behalf of the community, and that those values are expressed as norms in Direction 65.[80]
[80] Ibid [104]. Direction no. 79 is in identical terms to Direction no. 65 on this point.
His Honour also said:
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.” This limited expression of “community expectations” by the Government is, one would expect, quite uncontroversial which is an attractive feature given the heterogeneity of views in this area.[81]
[81] Ibid [101].
Charlesworth J, on the same matter, stated:
Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.[82]
[82] Ibid [75].
It is thus clear that the Tribunal must find that the expectations of the Australian community weigh against the Applicant once it is established that a serious offence has been committed.
However, as noted above, it is a matter for the Tribunal to assign the weight to that negative conclusion that it sees fit. What may militate in favour of an Applicant (that is, result in this consideration being given little or less weight than might otherwise be the case) is the repeated position of the Tribunal that although community expectations may be negative they are not necessarily punitive[83] and that the idea of people having a “second chance” and a chance at rehabilitation is something which is quintessentially Australian.[84]
[83] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336, [36].
[84] Do and Minister for Immigration and Border Protection (Migration) [2016] AATA 390, [23]; The Trustee for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273, [65]; VXKK and Minister for Home Affairs (Migration) [2018] AATA 3268, [138]; Dang and Minister for Home Affairs (Migration) [2018] AATA 2095, [91].
Each case coming before the Tribunal is different and each must be assessed individually. In this instance the Tribunal has also had the benefit of observing the Applicant as a witness and found her to be a person of some credibility, especially in terms of the degree of remorse and the appreciation of the gravity of her offence. The Tribunal appreciates that there is authority on both the utility of seeing a witness directly, especially where an original decision-maker has not[85] and, equally, caution about preferring assumptions drawn therefrom over documentary evidence.[86]
[85] Georges and Minister for Immigration and Ethnic Affairs [1978] AATA 63.
[86] Fox v Percy [2003] HCA 22, [30]-[31].
The Tribunal believes that the Applicant has made a substantial case in favour of being granted a “second chance” and that it is proper for the Tribunal to give consideration to this as part of the process of determining the weight which should be assigned to this definitionally negative criterion.
The Tribunal accepts that this criterion must, ipso facto, count against the Applicant but given all the circumstances the Tribunal does not believe that it weighs heavily against the Applicant. The concerns of the Respondent that there is only a low level of tolerance for the Applicant’s offending behaviour is to be balanced against the “second chance” argument and thus the Tribunal finds that this criterion is only marginally against revocation.
Other considerations
The Tribunal turns to the consideration of the “other” criteria in the ministerial Direction, noting again that “other” should not be taken as “lesser” but rather simply as “non-primary”.
(a)International non-refoulement obligations: no matters related to this criterion were raised by either party and the Tribunal does not independently believe that any arise for consideration.
(c)Impact on Australian business interests: no matters related to this criterion were raised by either party and the Tribunal does not independently believe that any arise for consideration.
(d)Impact on victims: no matters related to this criterion were raised by either party and the Tribunal does not independently believe that any arise for consideration.
Strength, nature and duration of ties
The Applicant has been in Australia for approximately 8 years. During that time, she has undertaken full-time studies, including some at university level. She has established and run a small business. She has married and given birth to a child in Australia. She has developed a network of social contacts which include members of her family and others beyond. Although assisted by an interpreter at the Tribunal hearing, she is nevertheless reasonably fluent in English.
Although Dr Chan’s report speaks of a potentially negative effect upon family members should the Applicant be removed from Australia, the Respondent rightly points out that there is no direct evidence from any of them tendered for the Tribunal’s consideration.[87]
[87] Respondent’s SFIC at [48].
Taken as a whole the Tribunal is prepared to accord some degree of weight in favour of the Applicant on this criterion but it does not assign more than minimal weight.
Extent of impediments if removed
This matter is somewhat more difficult to assess. The Applicant claims that were she to be returned to Vietnam both she, and her family, would suffer discrimination and social isolation once it became known in her hometown that she had been involved in illegal drug activities and subject to deportation. She offers anecdotal evidence about the social isolation and ostracism of a school-mate in similar family circumstances and points out that Vietnam imposes the death penalty for drug crimes.
The Applicant states that she was born in Quang Ninh which is her “hometown”. Quang Ninh is in fact a province of Vietnam with a population of some 1.3 million people[88] and that of its 14 largest towns (ranging in size from 2,000 to 227,000) none is called Quang Ninh. This is not to dispute that the Applicant was born in a small town or village nor that there would be some knowledge rapidly apparent in her community regarding the circumstances of her return from Australia, especially with a small child and without her husband.
[88] General Statistics Office of Vietnam, Statistical Yearbook of Vietnam 2019 (Statistical Publishing House, 2019) 97.
Amnesty International confirms that the death penalty is operational in Vietnam[89] and it is imposed for drug related crimes.[90] However, there is no reason to believe that the Applicant would be subject to any intervention by the Vietnamese authorities in relation to offences committed in Australia. Any disadvantages suffered would be as a result of what might be occasioned within her local community, although there is no indication that she might not chose to live elsewhere in Vietnam other than with her parents.
[89] Amnesty International, Death penalty in 2019: Facts and figures (21 April 2020) < In October 2019 eleven people were sentenced to death for drug related crimes in Vietnam: The Straits Times, ‘Vietnam sentences 11 people to death for drug trafficking’, The Straits Times (online), 18 October 2019 <>
There would, no doubt, be a significant loss of face for the Applicant’s family were she to be returned to Vietnam as a result of a deportation for criminal offences, but this is not a matter that the Tribunal considers should weigh in favour of revocation.
Of greater importance is the question of her potential separation from either her child or her husband. As discussed above, there is no evidence to suggest that were the Applicant to be returned to Vietnam that she would not take her child with her. Nothing suggests otherwise.
She would, however, suffer the detriment of separation from her husband. He is also incarcerated, and his non-parole period expires on 17 January 2022 with his head sentence finishing on 17 January 2024. The Tribunal understands that his visa has also been cancelled and his appeal for revocation of that decision is contemporaneously before another member of the Tribunal. This Tribunal is in no position to speculate on the outcome of the husband’s application and there are numerous permutations which would arise for Ms Vu as part of a family unit depending upon whether successful revocation appeals for either party result in the family being reunited (after January 2022 at the earliest) in either Australia, Vietnam or in neither.
The Respondent points out that the Applicant is fluent in the Vietnamese language. She lived there until she was 20 years of age and is familiar with its customs and mores. She would be eligible for the same services and supports available to other Vietnamese citizens. She has skills (English language, business experience) which would potentially stand her in good stead in re-establishing a productive life in that country and she has, by her own account, the continuing support of her parents (with whom she, initially at least, would live) and her sister.
This again is a case where the criterion weighs in favour of the Applicant, but equally, only to a limited extent and with minimal weight.
SUMMARY OF CONSIDERATIONS
In relation to each of the criterion as they stand vis-à-vis the revocation of the cancellation decision:
(a)Primary
(i)protection of the Australian community from criminal and other serious conduct: counts marginally against revocation;
(ii)the best interests of minor children in Australia: counts strongly in favour of revocation;
(iii)expectations of the Australian community: counts marginally against revocation.
(b)Other
(i)international non-refoulement obligations: irrelevant to revocation consideration in this case;
(ii)strength, nature and duration of ties: counts marginally in favour of revocation;
(iii)impact on Australian business interests: irrelevant to revocation consideration in this case;
(iv)impact on victims: irrelevant to revocation consideration in this case;
(v)extent of impediments if removed: counts marginally in favour of revocation.
CONCLUSIONS
In undertaking a most difficult “calculus”[91] of weighing up the factors for and against the Applicant, the Tribunal is mindful of the exhortation of Chief Justice Allsop in Hands:[92]
By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
[91] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47, [52].
[92] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, [3]. Citations omitted.
This is, indeed, a finely balanced case involving as it does a serious crime involving dangerous drugs in large quantities. The offender, here in the persona of the Applicant is, by all accounts and in all other respects, a person of good character. There is evidence to suggest her “reluctant” participation in an activity designed to assist her husband and his family, but she was not under any irresistible compulsion to participate: it was her choice. She is obviously a person of some intelligence who took steps to establish her own business. She is now the mother of a young child with concerns about that child’s welfare and future, which was not the case at the time of the offending. The nature of her future relationship with her husband is uncertain and dependent upon decisions being made outside the control of either of them. She has expressed what the sentencing Judge and the Tribunal accepts is a genuine degree of remorse and has not sought to deny her responsibility for her actions. Again, as the sentencing Judge noted her prospects of rehabilitation are strong. She has the capacity to make a contribution to the Australian community and the Tribunal is persuaded that she would do so if given the opportunity. Her child would benefit from the opportunity to grown up, and derive the benefits of being, in Australia.
This is not a matter simply of two criteria marginally against revocation, two criteria marginally in favour and one strongly in favour. The Tribunal’s task is, as is made pellucidly clear in the Court’s statement above, not merely one of decisional checklists and formulaic expression, it is to come to an overall assessment of what is the correct and preferable decision in the matter before it. In this instance, the best interests of the small child are sufficient to tip the balance, and in the view of the Tribunal are determinative.
The calculus of considerations in relation to the question of revocation of the mandatory visa cancellation falls on the side of revocation.
DECISION
The decision under review is set aside and in substitution the mandatory cancellation of the Applicant’s visa is revoked.
I certify that the preceding 122 (one hundred and twenty-two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
................................[sgd]................................
Associate
Dated: 13 August 2020
Date(s) of hearing: 4 August 2020 Counsel for the Applicant: Mr N Poynder Solicitors for the Applicant: DNG Lawyers & Migration Solicitors for the Respondent: Ms M Donald
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