YVYQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 2036
•1 July 2021
YVYQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2036 (1 July 2021)
Division:GENERAL DIVISION
File Number: 2021/2329
Re:YVYQ
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:1 July 2021
Place:Melbourne
The Tribunal sets aside the decision of the delegate of the Respondent dated 8 April 2021. In its place, under section 43(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal substitutes a decision that the mandatory cancellation of the Applicant’s Class BB Subclass 155 Resident Return visa be revoked under section 501CA(4)(b)(ii) of the Migration Act 1958.
.......................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – applicant is a Vietnamese national – applicant held class BB subclass 155 resident return visa – where applicant’s visa cancelled owing to substantial criminal record – where applicant sought revocation of visa cancellation – where delegate of minister refused to revoke – where applicant seeks review by Tribunal – where applicant seeks to summon servant of the minister – summons refused – consideration of two questions – has applicant failed statutory character test – is there another reason to revoke mandatory cancellation of his visa – where minister has made instrument with which decision-makers must comply – Direction No. 90 – primary considerations – other considerations – any other reason – where tribunal satisfied discretion is enlivened – decision under review set aside and new decision substituted
Legislation
Administrative Appeals Tribunal Act 1975, ss 33, 35, 40A
Migration Act 1958, ss 499, 500, 501, 501CA
Cases
Associated Dominion Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250
Cosco Holdings Pty Ltd v Commissioner for Taxation & Anor [1997] FCA 1504
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
HPZB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Re [2019] AATA 5482
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 247; 39 ALR 649
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197
Radge and Commissioner of Taxation, Re [2007] AATA 1317; (2007) 96 ALD 711Senior v Holdsworth, Ex parte Independent Television News Ltd [1976] 1 QB 23
Secondary Materials
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (as later amended)
DFAT Country Information Report Vietnam – 13 December 2019 – Department of Foreign Affairs and Trade
International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976)
Memorandum of Understanding between the Government of Australia and the Government of the Socialist Republic of Vietnam (done at Hanoi on 15 June 2001)
Migration Act 1958 – direction under s 499 – Direction No. 75 – Refusal of protection visas relying on section 36(1C) and section 36(2C)(b) (made 6 September 2017/commenced 7 September 2017)
Migration Act 1958 – direction under s 499 – Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (made 8 March 2021/commenced 15 April 2021).Australia – Senate – Legal and Constitutional Affairs Legislation Committee – Responses to questions on notice – Budget Estimates hearings 29 and 30 May 2001 – Immigration and Multicultural Affairs portfolio (November 2001)
REASONS FOR DECISION
Senior Member D. J. Morris
1 July 2021
PRELIMINARY AND BACKGROUND
The Tribunal made an order under section 35 of the Administrative Appeals Tribunal Act1975 (‘AAT Act’) prohibiting the publication of the name of the Applicant in these proceedings. He will instead be known by the anonym ‘YVYQ’. Details which might tend to identify him will be redacted and where a document is quoted that refers to his name, the anonym will be substituted. The identity of family members who gave evidence will be anonymised. Where a case is quoted, the full citation is in the table of cases above.
YVYQ was born in Vietnam in 1958. He first arrived in Australia in 1985. He held a Class BB Subclass 155 Resident Return visa until 23 March 2020, when it was cancelled by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) under section 501(3A) of the Migration Act 1958 (‘the Act’). The delegate was satisfied that the cancellation was mandatory because YVYQ has a ‘substantial criminal record’ under section 501(6)(a) on the basis of section 501(7)(c) of the Act and because he was at that time serving a sentence of full-time imprisonment.
YVYQ was notified that his visa had been cancelled and he was invited, in accordance with the Act, to make representations to a delegate that there was ‘another reason’ under section 501CA(4) of the Act to revoke the mandatory cancellation of his visa. He did so. And on 8 April 2021 the delegate decided not to revoke the mandatory cancellation. It is this decision of 8 April 2021 that YVYQ has asked the Tribunal to review.
What is the matter for the Tribunal to decide?
The Act provides, at section 500(1)(ba), that a person may ask the Tribunal to review a decision not to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act. The Tribunal is not reviewing the decision of the delegate and the Tribunal is making a fresh decision based on the law and the information before it. The parties are entitled to make submissions and provide further information to the Tribunal as it conducts the review, including information that was not before the delegate.
The Tribunal must evaluate the factors for and against revocation. North ACJ said in Gaspar v Minister for Immigration and Border Protection, at [38]:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. In this instance the Minister acted in accordance with that construction of the section. He did not apply the wrong test.
Therefore, the Tribunal must decide two questions. First, whether the Applicant fails the character test in the Act. If it is found that he does not, then the cancellation of the visa is set aside, which has the effect of restoring it to the Applicant, and that is the end of the matter. However, if the Tribunal finds that YVYQ fails the character test, the second question for the Tribunal to consider is whether there is ‘another reason’ the cancellation of his visa should be revoked.
The timeframe for the decision
When a person in the migration zone applies to the Tribunal to review a decision under section 501CA(4) of the Act not to revoke the mandatory cancellation of his or her visa, section 500(6L) of the Act says that if a decision has not been made 84 days after the date on which the person was notified of the decision, the Tribunal is taken to have affirmed the decision. To avoid this self-executing provision having effect, the Tribunal must make a decision by 1 July 2021. That date was agreed by the parties.
Direction No. 90
Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must comply with a relevant direction. When the delegate refused to revoke the mandatory cancellation of YVYQ’s visa, they consulted Direction No. 79. That Direction was superseded on 15 April 2021 when a new Direction No. 90 took effect. Both parties agreed that the applicable Direction in this matter is Direction No. 90 (hereafter referred to as ‘the Direction’).
Preliminary matter – Refusal to summon person
On 13 May 2021, the solicitors for the Applicant made a request that the Tribunal summons the Secretary of the Department of Home Affairs (the department responsible for Immigration) to provide information in the following terms:
Policies or guidelines that describe, at a general level (ie not documents specifically in respect of the Applicant), how the Department manages persons whose visa cancellations have not been revoked under s 501CA(4).
On 14 May 2021, the Tribunal responded to the solicitors:
The Senior Member has asked me to respond to you in the following terms. It has been the consistent practice of the Tribunal not to issue summons inter partes. A recent discussion on this principle can be found in Re HPZB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 5482 at [7] to [28]. That does not of course preclude the Applicant making, through his representative, a direct approach to the Respondent for the information sought, or to make submissions either in writing or in the hearing on the particular matter.
Later the same day the Applicant’s solicitors responded. They submitted that the summons request was to the Department’s Secretary, not the Minister, so it was not ‘inter partes’. The solicitors went on to say:
…the proper construction of s 40A is not that it precludes the issue of a summons to another party. Nothing in Re Radge and Commissioner of Taxation [2007] AATA 1317; (2007) 96 ALD 711 lays down an inviolable rule to the contrary. In addition, the context of the Applicant seeking a summons is that he does contend the Minister has not provided all material that is relevant, despite his obligation to do so. The Applicant does not allege that this is deliberate, but simply states that the Applicant is aware of Departmental guidelines that go to how and when the personal powers in ss 195A and 197AB may be exercised, and states objectively that these have not been provided to the Tribunal.
Finally, if the Tribunal nonetheless remains of the view that s 40A cannot be exercised in this circumstance, the Applicant seeks a direction from the Tribunal to the same effect, as contemplated in Radge and quoted in HPZB at [17] and [28].
The solicitors requested written reasons if the Tribunal ‘affirms’ its refusal to issue the summons and refuses to issue the direction sought. The Tribunal is not obliged to provide written reasons for interlocutory decisions, but in the interests of the Applicant, I include in these reasons why the Tribunal declined to issue the summons.
The submission that the person sought to be summoned was the Department’s Secretary and not the Minister is accurate. However, it is a distinction in this case without a difference. The rationale of section 501G(2) of the Act that provides that every document, or part of a document that is in the possession or control of the delegate and was relevant to the making of the decision must be seen in the context of the Minister’s delegate being an officer of the Department who is responsible to the Secretary. The delegate is of course not directable in exercising a statutory discretion but nonetheless has the separate statutory obligation to provide the material to the Applicant set out in section 501G. There was no basis put that the delegate had not provided two copies of all the material relevant to the decision to the Applicant, who had then appended one copy to his application for review sent to the Tribunal.
The Tribunal accepts the submission of the Applicant’s solicitors that there is no ‘inviolable rule’ that a party cannot be summoned, but that does not displace the general principle that where there is a separate statutory obligation and there is no evidence (other than an assertion by the Applicant in a letter to the Tribunal) that information has been withheld, the Tribunal will not issue a summons. Because to do so would in effect be using the power under section 40A for a speculatory purpose (see Spender J in Cosco Holdings Pty Ltd v Commissioner for Taxation & Anor; Lord Denning MR in Senior v Holdsworth, Ex parte Independent Television News Ltd, at [34] and, on ‘fishing exercises’, Owen J in Associated Dominion Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd, at [254]).
It was open to the Applicant to make submissions at the hearing that information which ought to have been provided had been withheld by the Respondent. No such submission was made. In the event it had been, the Respondent could have responded. If after that the Tribunal formed the opinion that documents not before the Tribunal may be relevant to the decision under review, section 500(6K) of the Act provides that a notice to produce can be served on the Minister.
There was no disadvantage to the Applicant by the refusal to summon the Secretary. The Applicant was clearly able to obtain the information sought from the Department’s Procedures Advice Manual, because he included it as part of his tender bundle (ATB, pp 156-171).
HEARING
The hearing was on 21 and 22 June 2021. YVYQ was represented by Mr Min Guo of counsel, instructed by Ms Samantha Smith of WLW Migration Lawyers. The Minister was represented by Mr David Brown of The Australian Government Solicitor. The Applicant gave evidence and was cross-examined. Others who gave evidence were the Applicant’s partner, Ms WP; the Applicant’s son, Mr WS; and Ms Carla Ferrari, forensic psychologist. The Tribunal appreciates the assistance of an interpreter in the Vietnamese language in relation to the evidence of YVYQ and Ms WP.
The Tribunal admitted into evidence the following documents:
·Volume of ‘G’ documents (‘GD’) (Exhibit R1);
·Volume of supplementary ‘G’ documents (‘SGD’) (Exhibit R2);
·Statement of YVYQ dated 14 May 2021 (Exhibit A1);
·Further statement of YVYQ lodged 16 June 2021 (Exhibit A2);
·Applicant’s paginated Tender Bundle (‘ATB’) (Exhibit A3);
·Report of Ms Ferrari, forensic psychologist dated 20 May 2021 with letter of instruction dated 23 April 2021 (Exhibit A4);
·Statement of Ms WP dated 12 May 2021 (Exhibit A5);
·Further statement of Ms WP dated 16 June 2021 (Exhibit A6); and
·Statement of Mr WS dated 11 May 2021 (Exhibit A7).
The Applicant’s Statement of Facts, Issues and Contentions (‘ASFIC’), the Respondent’s Statement of Facts, Issues and Contentions (‘RSFIC’) and the Applicant’s Further Statement of Facts, Issues and Contentions were also before me.
Has the Applicant failed the character test?
Before the Tribunal (GD, pp 42-45) was an Australian Criminal Intelligence Commission (‘ACIC’) report relating to the Applicant dated 12 May 2020. The report records that in July 2018 at the County Court in Melbourne YVYQ was convicted of the four counts of the offence of Arson. The remarks of the sentencing Judge (GD, p 60) record that YVYQ was sentenced to a term of imprisonment of five years and six months, with a non-parole period of three years and six months.
The Applicant in written submissions (ASFIC paragraph 3) conceded YVYQ failed the character test and was serving a sentence of full-time imprisonment when his visa was cancelled.
Finding in relation to the character test
On the facts before me, the Tribunal finds that YVYQ fails the character test. This is because he has a ‘substantial criminal record’, having been sentenced in 2018 and in November 2000 to sentences of 12 months or more, and because at the date his visa was cancelled on 23 March 2020, the Applicant was serving a sentence of full-time imprisonment.
APPLICANT’S OFFENDING HISTORY
YVYQ has a relatively extensive criminal history. His first appearance before the Courts was in February 1989 charged with firearms offences. This was less than four years after he arrived in Australia. He was not convicted, and the offences were adjourned, and he was bound over and fined. In 1991 he was convicted of the offence of being Found in a Common Gaming House and fined $50. He has no recorded criminal history for the next six years. In 1997 he was convicted of two counts of Illegal fishing and fined $1,000.
YVYQ has amassed several offences relating to illegal fishing, particularly relating to taking abalone in excess of the catch limit and of less than minimum size. This led to appearances before the Court in November 2000, May 2010, and July and September 2011. He has received two prison sentences for fishing offences, the first of 10 months. His November 2000 appearances before the Magistrates’ Court where he was convicted of the offences of Possessing Abalone Equipment – Exceed Catch Limit and Take Abalone – More than Catch Limit led to an aggregate prison sentence of 17 months for these two offences.
The Applicant has committed some drug offences in January and December 2012 relating to possession of, and trafficking in, heroin. He also has two drink driving offences and offences relating to driving while not authorised to do so.
However, the four convictions for arson together constitute the most serious offending in YVYQ’s criminal history.
Consideration of the Direction
The principles at paragraph 5.2 of the Direction guide decision-makers in the task of deciding whether to revoke the mandatory cancellation of a visa. They are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) 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.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage 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.
(4) 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. However, Australia may 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.
(5) 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 or suspected conduct mentioned in paragraph 8.4(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.
Part 2, paragraph 7 of the Direction also says that primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations.
Part 8 of the Direction relevantly provides that the following are primary considerations:
(1)Protection of the Australian community from criminal or other serious conduct;
(2)Whether the conduct engaged in constituted family violence;
(3)The best interests of minor children in Australia; and
(4)Expectations of the Australian community.
Part 9 of the Direction sets out other considerations which must be taken into account where they are relevant. They are:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
Paragraph 9(1) of the Direction makes clear that a decision-maker is not confined only to these considerations. This means that if there is another articulated claim that something is relevant in a person’s particular circumstances, and the claim relates to a matter that is consistent with the purposes of the Act, that claim should be properly addressed. Any such claim must be material to the matter being considered, which is the exercise of a discretionary power under the Act.
PRIMARY CONSIDERATIONS
The first primary consideration: Protection of the Australian community (paragraph 8.1)
The Tribunal should consider the nature and seriousness of the non-citizen’s conduct and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Sub-consideration: The nature and seriousness of the conduct (paragraph 8.1.1)
The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children or acts of family violence. None of the Applicant’s offending fits within these categories.
The Tribunal must also consider other categories of serious offending, including causing a person to enter into, or be a party to, a forced marriage; crimes committed against vulnerable members of the community, such as the elderly and disabled, or government representatives performing their duties as such, and any crime in immigration detention. It does not seem that any of YVYQ’s offending fits directly within one of these categories, noting that one of the persons whose cars were damaged as a result of the Applicant’s first arson offence was a disability pensioner.
Some of YVYQ’s offending has been at the lower end of the spectrum. His first offences in 1989 related to an occasion where he was drunk and wanted to go rabbit shooting, but a friend tried to dissuade him and, being unsuccessful, called the police. In respect of his drug offences, the evidence points to YVYQ having an addiction and his two offences for possessing heroin and one offence for trafficking may be characterised as linked to this addiction. His evidence, which was not contested by the Respondent, was that he never traded in heroin. In respect of the trafficking offence, YVYQ said it related to an occasion where he and a friend had pooled some money to purchase some ‘tabs’ to smoke and he was apprehended while returning to meet up with his friend. The police report (SGD, p 752) would not necessarily support this account, but it does not entirely disprove it. However, the Tribunal notes that YVYQ’s 2011 trafficking offence was not in relation to a commercial quantity of heroin and was a single offence of this nature.
YVYQ’s fishing offences may be essentially characterised as mercantile offences. While objectively serious, given their number and the fact that the Courts adjudged that they merited two separate custodial offences in 2000 and a significant fine in May 2010 of $6,000, they were not crimes against the person.
The arson offences were objectively very serious. YVYQ set fire to four motor cars parked in public places on four separate occasions over five months between March and August 2017. YVYQ pleaded guilty before the County Court. The Judge’s sentencing remarks (GD, pp 46-61) set out the circumstances of the offences.
In relation to the first offence in March 2017, YVYQ attended a car park in a Melbourne suburb with a bottle of petrol inside a shopping bag. He placed the bottle of petrol under a vehicle, inserted a rag and ignited it. YVYQ then left the scene. Shortly after the vehicle caught fire. Local residents described explosions. Two people who saw the fire walked up to the car park but ran from the area when the vehicle exploded. The fire spread. In total, seven motor vehicles were damaged in the fire, some were destroyed. Two of the vehicles were not insured. The car park building was also damaged and had to be repaired.
The second arson offence occurred in June 2017. YVYQ placed an open tin of petrol under a vehicle parked on a public street. The vehicle was owned by the same person whose car was the first destroyed in the March offence. Police and fire services attended and extinguished the fire. The vehicle was insured.
The third arson offence was in August 2017. YVYQ went to a convenience store and filled a milk bottle with petrol. He paid for the petrol. He went home and 30 minutes later left with an oil tin. He drove to a public street and poured the petrol from the milk bottle into the oil tin. YVYQ then placed the tin under the wheel arch of a motor vehicle parked there. He then lit a rag which he placed in the tin and walked away. About a minute later he returned to ensure that the rag was alight. Soon after the car caught fire and exploded. Police and fire units attended the fire, which destroyed the vehicle. The vehicle was owned by the same person whose vehicle was set afire in the June offence and whose was the first vehicle destroyed in the March offence.
The fourth arson offence was later in August 2017. YVYQ left home with an open canola oil tin. He drove to a street in the same suburb around 3.30 a.m. He placed the tin under a car parked in the street. YVYQ returned home for ten minutes. He then returned to the scene and ignited the oil. After about 20 minutes the vehicle was engulfed in flames. The fire spread to another vehicle parked directly in front. Police and fire units attended. The vehicle was destroyed, and the adjacent vehicle received some damage.
YVYQ’s actions were recorded on closed-circuit television (‘CCTV’). He was arrested a few days after the last incident. He was interviewed and made full admissions. YVYQ told the police at the outset that he had been forced to commit the crimes by a former cell mate who I will call Mr CM. He told the police he had a gun held to his head and his family had been threatened. He said Mr CM had told him the registration details and location of each vehicle prior to each offence. YVYQ told the police (and told the Tribunal in his evidence at this hearing) that Mr CM told him the vehicles were owned by him or members of his family and he would claim the losses on insurance. YVYQ told the police that Mr CM had progressively lent him money amounting to between $10,000 and $15,000 which he had used for gambling on poker machines and Mr CM had told him that, if he set fire to these four vehicles, the debt would be written off.
The Judge considered that YVYQ’s offending was most serious. The offending was planned and led to considerable damage. The explosions caused by the fires were all either in public places or places accessible to the public. In relation to the first offence, while one car was targeted, YVYQ’s offending resulted in widespread damage to vehicles owned by other persons.
Her Honour said:
I understand that your instructions remain that you committed the offences at the direction of another who threatened to kill your family if you did not. I understand that you say that you are still in fear of this person, who knew to find you at [hotel named] where you regularly attended. However, you were not prepared to give evidence in relation to this aspect. While there is no onus on you to do so, in the absence of evidence, I am not satisfied on the balance of probabilities that you were subjected to such threats to your family.
While it may be that you were acting at the behest of another who had some connection with the victim [name redacted], I cannot make any finding beyond this. At the end of the day, you were prepared to engage in this dangerous and destructive activity for some financial benefit and in the absence of any finding, that you did so because of fear for your family’s welfare. I find that your moral culpability is high.
The Judge directed that YVYQ be declared a serious arson offender after the first two charges. Her Honour took account that there was a cumulation and some planning of the offences. She imposed a total effective sentence of five years and six months, for the Applicant to serve three years six months in prison before becoming eligible for parole.
In the event, YVYQ was granted parole on 19 February 2021 (ATB, p 173) and released into the community. He resided at home with Ms WP and Mr WS until he was taken into immigration detention after a period of less than two weeks, on the basis that – his visa having been cancelled – he was an illegal non-citizen.
There is no doubt that YVYQ’s arson offences are very serious. It is well established that the Tribunal cannot go behind the findings of a Court, and the elements of the offence of arson were clearly made out, both on the evidence of the CCTV footage, the items of clothing found at YVYQ’s home (referred to by Her Honour and which matched clothing worn by the figure seen on the CCTV) and not least by the full admissions made by YVYQ at his first police station interview after arrest, and his guilty plea which ipso facto means he accepts all elements of the offences for which he was charged.
The Full Court of the Federal Court of Australia (Branson, Lindgren, and Emmett JJ) stated in Ministerfor Immigration and Multicultural Affairs v SRT, at [40]-[45]:
The manner in which the Tribunal satisfies itself is determined by s 33 of the Administrative Appeals Tribunal Act 1975 (Cth). Under that provision, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. But where the decision to be reached depends upon there having been a sentence that satisfies s 201(c) of the Act, it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. The starting point for consideration by the Tribunal in relation to sentence, when concerned with the question of an order under section 200 of the Act, must be the findings made by the judge in imposing the sentence that satisfies the statutory description of a sentence of imprisonment for a period of not less than one year.
There are good policy reasons why such a principle should prevail. It could only undermine the criminal process for an administrative decision to be based on considerations inconsistent with the conviction or sentence imposed.
Counsel for the respondent submitted that, so long as the decision-maker accepts the fact of the sentence, it is open to the person sentenced to challenge any finding of fact made by the sentencing judge in the course of imposing that sentence. We reject the submission and, as explained later, we do not understand Davies J to have gone so far in Beckner.
Wood J found that it was the respondent who inflicted a stab wound to the heart that was a direct cause of the death of the Deceased. His Honour considered that the jury, having rejected the respondent's statement from the dock must, by their verdict, be taken to have accepted the evidence of two police officers. His Honour considered that the jury verdict in that regard was entirely understandable. He went on to say:
"To kill a man in his own flat, in the brutal and cowardly way which occurred in this case, is a matter which can only attract the abhorrence of the community. It is the kind of offence for which there must be not only personal punishment and retribution, but also a substantial element of general deterrence."
It was on the basis of these findings made by his Honour that the sentence was imposed. It is a matter of speculation as to what sentence Wood J would have imposed had he found different facts. It may be that his Honour would still have sentenced the respondent to imprisonment for a period of not less than one year. Be that as it may, the basis upon which he imposed the sentence that satisfied the requirements of s 201(c) of the Act is impugned by the reasoning of the Tribunal.
To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction, and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.
(Tribunal’s emphasis.)
Therefore, any inquiry that the Tribunal might make in examining the circumstances of an Applicant’s offending must not disturb the essential facts found by the Court in relation to that offending. To the extent that any submissions by YVYQ’s legal representatives may be interpreted to cross that line, the Tribunal rejects them. However, I do not consider that the Tribunal is precluded from considering circumstances of offending which do not challenge any judicial findings. My comfort in taking this approach is because of successive pronouncements by the Court to that effect. For example, in Minister for Immigration and Ethnic Affairs v Daniele, (‘Daniele’) at [653], Fisher and Lockhart JJ said the following:
There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant’s criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial...The Tribunal's task includes assessing the deportee's character and personality, his criminal behaviour, the risk of repetition of criminal acts, the likelihood of his rehabilitation, the future risk to the Australian community if he remains here and the likelihood of harm to him if he is deported.
(Emphasis added.)
The sentencing Judge refers to the fact that YVYQ made his own decision not to give evidence before Her Honour or to submit a duress offence. Accordingly, any such submissions that might, if accepted, have ameliorated the penalties imposed on YVYQ were not advanced.
Mr Brown for the Minister submitted that the Tribunal could not disturb the Judge’s findings that Her Honour was not satisfied on the balance of probabilities that YVYQ’s actions were because of threats to his family. The Judge made this finding because of the lack of evidence and the Applicant’s decision, which was his right, not to give evidence.
The Tribunal has carefully considered the material before it. I am satisfied, based on the police interview the Applicant gave in August 2017 when first arrested, and by other subsequent consistent documents leading up to the conviction and sentencing, that in committing the arson offences YVYQ was acting at the instigation of another person. The reason I make this finding is twofold. Although the prior offending of YVYQ was extensive, it is convenient to categorise it into:
(a)Two minor firearms offences;
(b)Minor property offences;
(c)Significant fishing offences;
(d)Two drug possession offences and one trafficking offence; and
(e)Driving offences.
There was no violence in his past offending nor any instance of offences against the person. The one 1989 offence for Reckless conduct endangering serious injury appears to be for brandishing a gun when YVYQ wanted to go rabbit shooting, but his friend thought he was too intoxicated and so called the police.
In relation to the arson offences, there is no evidence before the Tribunal, nor was there before the Court, that YVYQ had any connexion with the person who owned three of the four vehicles which he targeted. The offences have all the hallmarks of a possible exercise in insurance fraud, albeit one carried out by YVYQ as an agent. It seems the fourth car set on fire was targeted in error. The Tribunal cannot make any findings on the identity of the person called Mr CM, but all the evidence combines to satisfy me that YVYQ committed the arson offences at another’s bidding. This may have been done for payment, or for forgiveness of the gambling debt YVYQ said he had accumulated, or because of personal threats made against the Applicant; there is no value in the Tribunal speculating about that. However, in coming to this conclusion I note that the sentencing Judge in her remarks accepted YVYQ may have been acting at the behest of another who had some connexion with the owner of three of the burnt cars. Although Her Honour made a finding that, in the absence of evidence, she was not satisfied on the balance of probabilities that YVYQ was subject to threats to his family, the Judge did not pronounce on whether YVYQ may have been threatened. It is not necessary for the Tribunal to draw any conclusions about whether YVYQ’s belief to the police (repeated in his evidence at this hearing), that the cars he targeted were owned by Mr CM or Mr CM’s family is plausible. That belief was plainly wrong and the act of setting cars alight, regardless of their ownership, was dangerous and reckless to the safety of the general public.
Nothing in this conclusion should be taken to challenge the Court’s finding that YVYQ’s moral culpability for the four arson offences is high. While the Tribunal accepts, based on the professional opinion of a forensic psychologist (discussed below), that the Applicant is of lower than average intelligence, he was not a person without an awareness of the potential danger of his actions. YVYQ had worked for several years for a major car manufacturer and therefore can be assumed to have even greater than general knowledge that igniting flammable material under vehicles with petrol tanks would be likely to have dangerous consequences. It was perhaps luck and because of the time of night the offences were committed that persons were not hurt, because the evidence is that two of the vehicles targeted exploded, and all these offences occurred in urban settings. There is no psychological evidence that YVYQ committed the offences because of personality tendency. A plausible explanation for this out of character offending is YVYQ’s gambling addiction had led him into significant debt and, on the professional opinion of Dr Carla Lopez, forensic psychologist, who provided a report in March 2018 for the Court, this addiction presented “an ongoing vulnerability for YVYQ’s behaviour to be manipulated” (GD, p 58).
In respect of the single trafficking offence committed by YVYQ in 2011, the police records (SGD, p 752) state he was found in his car with 18 foils of heroin and some cash. A warrant was obtained to search his house, but no drugs or paraphernalia were discovered. He was interviewed by police and made full admissions. In relating to the trafficking and possession charge, and the charge relating to dealing in property suspected to be the proceeds of crime (i.e. the cash), YVYQ was given three months’ imprisonment for each of the three counts, all wholly suspended for twelve months. He breached the conditions of those suspended sentences later the same year when he incurred one further offence for possessing heroin but the Court decided to impose one month prison on that count, wholly suspended, and in relation to the breaches, extended the conditions of the suspended sentences for a further 12 months. YVYQ did not re-offend in any manner until the 2017 arson offences.
Paragraph 8.1.1.(1)(g) requires the Tribunal to consider whether YVYQ has re-offended since being formally warned about the consequences of further offending in terms of his immigration status. The Immigration Department wrote to YVYQ on two occasions. On 14 April 2005, (GD, p 72) he received a warning letter. On 19 November 2007, YVYQ received a formal counselling letter (GD, p 68), making clear that any further criminal offending might jeopardise his immigration status. YVYQ wrote (GD, p 283) acknowledging these warnings and said:
It did not sink in. This is because after this time I got drinking problem and heroin problem. I was not thinking straight. I never really comprehend that the Minister might cancel my visa and remove me. And I did not face the realisation that if commit more crime I would ruin my life, my wife life and my son life as well as others affected by my crimes.
The Tribunal formally finds that the Applicant received two written warnings which he has acknowledged, and he did subsequently re-offend.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)
The Direction requires the Tribunal to consider both the nature of harm should YVYQ engage in further criminal or other serious conduct, and the likelihood of him so engaging.
The nature of the harm if the Applicant re-offended by committing further acts of arson would not only be significant commercial damage to property and infrastructure but also the potential of harm to individuals. The sentencing Judge referred to several of the owners of vehicles destroyed or damaged by the fires. Some were vulnerable, in particular a disability pensioner who relied on her car; and all were affected in terms of their mobility and, in some cases, it hampered their employment. Some of the vehicles were not insured, so there was a direct financial loss to the owners.
If YVYQ committed further fisheries offences, there would be damage to the market, potential denial of livelihood to others involved in the injury and, if further immature molluscs were taken, damage to the fishery itself.
At the hearing, Ms Carla Ferrari, forensic psychologist, gave expert evidence. She examined YVYQ on 11 May 2021 and her report was in evidence (A4). Although she said she did not administer any formal intelligence tests owing to language limitations, her conclusion in the report and reiterated in oral evidence was that YVYQ was of “low average intelligence”. However, Ms Ferrari also considered the Applicant demonstrated “good insight and judgment, able to describe the nexus between his gambling addiction and his recent serious offending.”
Ms Ferrari did administer the Depression Anxiety Stress Scale (‘DASS-21’) psychometric test on YVYQ. She reported that the DASS-21 results produced a score in the ‘extremely severe’ range for depression; the ‘extremely severe’ range for anxiety (autonomic arousal) and ‘moderate’ range for stress (chronic non-specific arousal). In terms of post-traumatic stress disorder, Ms Ferrari stated YVYQ does not currently meet all the criteria for that diagnosis.
Ms Ferrari also administered a Problem Gambling Severity Index (‘PGSI’) test and concluded that YVYQ’s score was 12/27, indicating that at the time of offending he was at ‘high risk of problem-gambling’. In her evidence, Ms Ferrari explained that, given YVYQ had been in prison for several years and then in detention, where the availability of gambling was severely limited compared with the general community, she had based her findings on the 12 month period before YVYQ’s arrest. Mr Guo drew Ms Ferrari’s notice to the fact that there was a short period of just under two weeks between YVYQ’s release on parole and being detained by the Department, and the evidence of his son was that he did not gamble or attempt to gamble in that period. Ms Ferrari said that while that was positive, it was a very short period and a period of around 12 months of abstention in the community would be necessary before any clinical conclusions could be drawn.
Ms Ferrari referred to an incident where YVYQ was the victim of an injury and lost one eye and that this injury led to persistent and episodic depression. She considered that his gambling and past substance abuse were likely moderators and that his trauma symptoms will continue to fluctuate without intervention, having remained constant since the assault.
The evidence YVYQ gave about this assault was that it occurred in 2005. He was at a venue playing on a poker machine. An argument between other patrons near him took place. One of this group smashed a glass, a shard of which went into YVYQ’s eye. He said it was an accident and he did not know the other people. A letter from Dr Swee Onn Chan, the Applicant’s general practitioner, dated 26 February 2021 (ATB, p 141) states:
I have been YVYQ’s local medical officer for over 20 years and have a good knowledge of his medical and social conditions. His left eye is enucleated and he has a false left eye so he has no vision in that eye. As a result he has neglect in his left leg as his peripheral vision is gone. This leads to him tripping over things and he is unsteady on his feet which can lead to falls. Unfortunately this is a permanent condition.
In terms of risk of re-offending, Ms Ferrari wrote:
YVYQ is considered a low to moderate risk of general reoffending. This largely elevated due to his prior criminal history which dates back to 1986 [sic], his untreated mental health conditions, a history of substance use and gambling to moderate these issues, poor problem-solving and self-regulation, lack of supports, and lack of engagement in prosocial leisure activities. These factors are amenable to treatment and can be further reduced with appropriate support.
Mitigating his risk is his age, the fact that YVYQ has stable psychosocial circumstances in Australia, residing with his wife in government housing and in receipt of disability pension. He has strong support from wife and son whom he depends upon to navigate daily interactions and tasks. There is no evidence of a criminal attitude or belief system, rather his offending has been due to underlying, untreated mental health issues which onset following YVYQ being the victim of a serious assault, and a gambling addiction.
There is no evidence of any personality disorder, mania, psychotic disorder, nor any current alcohol or substance abuse or gambling behaviour which further mitigates his risks. He is motivated to address his current deterioration in mental state through psychological treatment and targeted interventions, and has a demonstrated history of help-seeking behaviour having engaged in this previously.
In her oral evidence in response to questions from the Tribunal, Ms Ferrari confirmed the reference in her report to the disability pension related not to the Applicant but Ms WP. Ms WP in her evidence stated she is in receipt of sickness benefit, not a disability support pension.
Mr Guo submitted that active steps have been taken by the Applicant, Ms WP and Mr WS to organise a range of supports for YVYQ if he is released into the community. He furnished a letter from Dr Chan dated 6 June 2021 confirming the Applicant had an appointment for a consultation; and an email dated 10 June 2021 from a counsellor at Gambler’s Help Program, confirming YVYQ was on the waiting list for gambling addiction treatment and was expected to commence the treatment in July 2021 (if released in the community).
The Tribunal also takes into account YVYQ’s own evidence that he is prepared to engage with the Vietnamese Women’s Association of Australia which provides support for gambling addiction treatment in the Vietnamese language. The Tribunal notes that lack of English language has been a persistent barrier to YVYQ obtaining treatment, including on the evidence in engaging in improving and rehabilitative courses while in prison.
The Tribunal notes the evidence of YVYQ’s past engagement with mental health professionals in regard to his heroin habit and that he appears to have successfully sloughed that off. There is no evidence in the medical records before the Tribunal of a return to any illicit drug-taking after 2012. The drug testing in prison confirms that. Gambling has been his more recent vice. It is clear to the Tribunal on the oral evidence of Ms WP and Mr WS that both strongly support the Applicant; especially his son, who has actively sought out and arranged potential treatment, both medical and behavioural.
It would seem to the Tribunal that Ms Ferrari’s professional opinion that YVYQ presents a low to moderate risk of general re-offending, which may become lower on his engagement with further preventative treatment, is supported by all the evidence, and the Tribunal adopts that view as a finding. The Tribunal notes Ms Ferrari’s recording of YVYQ’s demonstrated history of engagement in treatment, above.
The Tribunal makes clear that it is not performing a penal function in this review. It is axiomatic that YVYQ’s arson offences are very serious, and he rightly received a substantial prison sentence after his guilty plea. He has served the non-parole period of that sentence without incident. Balancing that is the view of Their Honours in Daniele, set out above, that the Tribunal may assess the risk of repetition of criminal acts and the likely harm to the Australian community if YVYQ remains here. The Tribunal will also assess the likelihood of harm if YVYQ is repatriated later in these reasons. My assessment is that there is a very low risk of the Applicant committing any further arson offences. There is a low to moderate risk of him re-offending in a general sense, because he has a relatively extensive history of offending so he is patently not in the class of persons who have never offended, but that risk can be further ameliorated with professional support and behavioural modification, and it appears to me YVYQ is genuinely committed to that course. The main driver of his more entrenched offending appears to be, in terms of the fisheries offences, financial gain, and in terms of the arson offences, his gambling debt. Given the nine years since he last took illicit drugs, I consider it is reasonable to assess his engagement in further drug offending as low.
The Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the visa. However, that weight is somewhat tempered by the Tribunal’s findings in relation to the motivation for the most recent serious offending, the more recent conduct of the Applicant and the protective measures put in place.
The second primary consideration: Family violence committed by the non-citizen (paragraph 8.2)
Paragraph 8.2 states:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen…
(2) This consideration is relevant in circumstances where:
(a)A non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)There is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
There was no evidence before the Tribunal relevant to this primary consideration. None of YVYQ’s offending involves family violence, or indeed any acts against the person. It therefore weighs neutrally in this assessment.
The third primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Tribunal is required to make a determination regarding the best interests of any relevant minor children who may be affected by the decision. The Applicant’s son is now aged 31. There was no evidence put forward by the parties of any other minor child who would be affected by a decision for YVYQ to be deported or to stay in Australia. The Tribunal finds this consideration weighs neutrally.
The fourth primary consideration: Expectations of the Australian Community (paragraph 8.4)
Paragraphs 8.4(1) and (2) of the Direction state:
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, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia, of the following kind:
…
The Direction says the expectation of the Australian community is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A former version of the Direction (Direction No. 65) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (‘FYBR’).
It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are ‘deemed’ — they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may derive by some other assessment or process of evaluation. Direction No. 90 imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take is an acknowledgement of the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an Applicant, the relative weight will be affected by the circumstances in the individual case, including the seriousness of the offending or other conduct.
The arson offences committed by the Applicant are objectively very serious and caused major economic loss to several members of the public, and the owner of the car park. YVYQ committed the offences with little thought about the potential consequences to others. He stated in testimony that he sought to ensure with Mr CM that no persons would be near the vehicles when they were lit; there is no evidence to support this claim. Even if I accept it, the CCTV footage as described in the reports show that in each case YVYQ set wicks in flammable material to ignite the fires, and departed the scenes, so he could not be sure that people might not have been present and in danger, whatever claims he makes.
While I am satisfied that the Applicant was acting at the behest of another, I do not think, given the nature of the offences, that the context that he might have been burning the vehicles to forgive a debt or because of threats made to him significantly dilutes the deemed expectation of the community, though it does slightly lighten the relative weight of this consideration in the cumulative assessment.
The Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the visa.
OTHER CONSIDERATIONS
International non-refoulement obligations (paragraph 9.1)
The Direction sets out that a non-refoulement obligation is an obligation on Australia not to forcibly return, deport or expel a person to a place where they would be at risk of a specific type of harm. Australia has obligations under the 1951 Convention relating to the Status of Refugees and other treaties, namely the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (‘CAT’) and the International Covenant on Civil and Political Rights (‘ICCPR’).
The Direction states, at paragraph 9.1(7), that where a person makes a claim which may give rise to international non-refoulement obligations and the person is able to make an application for a protection visa, those claims will be ‘conclusively assessed’ before consideration is given to any character or security concerns associated with the non-citizen. That obligation applying to delegates of the Respondent is also stipulated in Direction No. 75, made under section 499 of the Act.
Direction No. 75 relevantly provides, in Part 2:
In considering elements of the Protection visa assessment for applicants who raise character or security concerns, decision-makers are to follow the order set out below:
(1) The decision-maker must first assess the applicant’s refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns. …
Nevertheless, notwithstanding that, the Tribunal has an obligation to consider any properly articulated claims made at this stage. The Applicant’s written submissions were that he ‘may’ be a person in respect of whom Australia owes non-refoulement obligations. The submissions go on to say that if YVYQ is not owed non-refoulement obligations, the practicability of his removal is relevant, noting Vietnam’s previous refusal to issue a passport to the Applicant as he has no documentation to prove his citizenship.
Before the Tribunal (ATB, p 176) was a letter from the Embassy of the Socialist Republic of Vietnam in Australia, dated 31 July 2007. The letter, from the First Secretary, relevantly says:
The Embassy of the Socialist Republic of Vietnam in Australia has the honor to inform that the Embassy is not in a position to issue passport or Travel document for YVYQ born on 00/00/1958 as the said person does not hold any evidence of Vietnamese citizenship.
Mr Guo in his oral submissions said that this letter supports his submission that YVYQ is ‘stateless’. The Tribunal rejects that submission. The letter plainly says that the reason the Embassy would not issue a passport or travel document to the Applicant is that he did not provide any proof he is a citizen of Vietnam.
Historically, there have been difficulties with repatriation of Vietnamese nationals from Australia. Using the powers available under section 33 of the AAT Act, the Tribunal took note of a Department response to a question in Budget Estimates hearings held by the Senate Legal and Constitutional Affairs Legislation Committee on 29 and 30 May 2001. In response to a question asked by Senator Harradine, the Department advised the Committee that on 15 June 2001 a Memorandum of Understanding (‘MOU’) between Australia and Vietnam, on the readmission of Vietnamese citizens who are being deported or removed for having infringed the law of Australia, was signed in Hanoi by the then Australian Minister for Immigration and Multicultural Affairs and the then Minister for Foreign Affairs of Vietnam. This MOU facilitates administrative arrangements for persons in YVYQ’s category who may not have current travel documents who are subject to deportation from Australia.
Mr Brown in his submissions conceded that, in the event the Tribunal’s decision is to affirm the decision under review in repatriating YVYQ, there may be a period of delay, but that this would only be to allow relevant documentation to be prepared. The Tribunal notes that the current pandemic might also cause some difficulties and additional delays, particularly regarding the availability of airline flights.
The Tribunal does not accept submissions that YVYQ is ‘stateless’, and because of the MOU, concludes that he would be able to be repatriated, but that there might be some period of delay before that occurred. The Tribunal formally finds that the Applicant is a citizen of the Socialist Republic of Vietnam.
It is convenient here to reproduce the sentencing Judge’s summary of YVYQ’s early life:
You were born into poverty in Vietnam. You have seven siblings, and both of your parents are now deceased. You have limited education. You entered the army when you were 18 years old, serving in it for three years until the government collapsed and you were able to escape to a refugee camp in Malaysia where you remained for a number of years before coming to Australia in 1985. You do not speak, read or write English. You are married and have one child who was born in 1991 and who has now left home. You are on good terms with him and he has been supportive of you, both financially and in respect of relaying information from you to your legal advisers in respect of these proceedings. Your wife is in ill health and is in receipt of the disability pension. You have worked as a fisherman an in various factories in the past.
Her Honour’s summary was based on information before her. The oral evidence of YVYQ under cross-examination at the hearing provides more clarity. YVYQ said that he is one of nine children, seven of whom are younger than him. He left school at an early age to help look after his siblings. He has two sisters who now live in Australia. The remaining members of the family are still in Vietnam. He told the Tribunal that at the age of 15 he was conscripted to work for the military but was not recruited into the army. He said his duties were to patrol his village to prevent the Viet Cong entering the area. He said he was given a weapon for these patrols.
After about two years employed in this way, YVYQ said the Communists took over the government of Vietnam, “I did not want to go to the re-education camp, so I ran away”. He went to another part of the country. YVYQ confirmed he never joined the army proper but knew he would have been compelled to enlist once he attained the age of 18.
He worked as a fisherman for some years until some people he worked with assisted his passage to Malaysia in 1981. He was placed in a refugee camp and did some voluntary labouring work while there. When an Australian delegation came to the camp, he completed forms seeking to go to Australia. He was granted a visa in 1985 (GD, p 66).
Before the Tribunal were movement records which showed that YVYQ departed Australia for one month at the end of June 1995, and again from the beginning of December 2007 to the beginning of March 2008. On both occasions he travelled to Vietnam. Also, before the Tribunal was evidence that Australia had issued YVYQ with a titre de voyage, to enable him to depart and re-enter Australia (GD, p 153).
There was no information before the Tribunal of the purpose of these trips, but the fact that YVYQ travelled voluntarily to Vietnam for periods of one month and three months points away from a conclusion that he had held a real risk of harm if he returned to that country. He agreed in response to Mr Brown that, given he had never been conscripted or enlisted, there were no grounds to say that he had ‘deserted’ the army. The Tribunal notes that the DFAT Country Information Report – Vietnam produced by the Department of Foreign Affairs and Trade refers (paragraph 4.10) to protection against double jeopardy for returnees who have completed their foreign-imposed sentences. It goes on to say that the Penal Code (Article 6) provides that a person who is returned who has not completed his or her sentence ‘may be examined for penal liability in Vietnam’.
The Respondent noted that YVYQ was released on parole in relation to his arson convictions, so is still completing his sentence, but submitted that the Tribunal should find ‘there is only a remote chance of the applicant being re-tried in Vietnam for that offending’. In the absence of further information on the policy of the Vietnamese Government, the Tribunal cannot make such a finding. However, it would seem likely that the Vietnamese authorities would take into account that YVYQ had completed the non-parole part of a substantial sentence and had been deemed suitable for, and granted parole into the community, because of his conduct in prison.
Overall, the Tribunal considers that the material before it does not rise to the level of supporting a conclusion that non-refoulement obligations are owed to YVYQ, and this is supported by his total period of some four months living in Vietnam since entering Australia as a refugee.
The Tribunal finds that this consideration weighs neutrally.
Extent of impediments if removed (paragraph 9.2)
The Direction requires the Tribunal to consider the extent of any impediments the Applicant may face if removed from Australia to Vietnam in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country; taking into account his age and health, any substantial language or cultural barriers and any social, medical and economic support available to him.
There are a range of impediments YVYQ would face. The severe injury to his eye in 2005 not only severely affected his peripheral vision but appears on the medical evidence before me to have had a neural consequence. The Applicant gave evidence of walking with his wife sometime after the injury when one of his legs ‘gave way’. On the evidence, the government department responsible for social security authorised a payment to YVYQ in terms of his inability to work; it is not clear whether that was a disability support pension or some other benefit, suffice that there was an acceptance of disablement as a direct result of the eye and associated injury.
Apart from his unilateral blindness and prosthetic eye, YVYQ also has chronic active hepatitis B (GD, p 152). He has been diagnosed with severe depression by both Dr Lopez (at the time of the offending) and Ms Ferrari (in May 2021). YVYQ told the Tribunal that the vision in his remaining eye has deteriorated since the 2005 injury, but that he functions with prescription spectacles. As mentioned earlier, his peripheral vision is significantly hampered.
YVYQ speaks fluent Vietnamese and is familiar with the cultural mores of the country. He said that because of his limited education his writing is not good. There was somewhat conflicting evidence about how much contact he has with his siblings in Vietnam, and Mr WS said that when he spoke to them around the time of his father’s eye injury, their main preoccupation was, if there was a compensation payment, they would like a slice. Mr WS therefore did not consider they would be able to support YVYQ if he was repatriated. Mr WS said that if his father was sent back to Vietnam, he would be able to remit around $100 a month to help his father, but not more than that.
The Respondent submitted that, because of YVYQ’s age, the Applicant would have significant challenges in adapting to life in Vietnam, especially after such a long absence, and urged the Tribunal to give considerable weight to this consideration in favour of revocation.
The Tribunal finds that while the measure in the Direction requires me to consider whether YVYQ would have the same access to medical services in Vietnam as other Vietnamese citizens, not comparing such services with what is available in Australia, YVYQ has special features which take him outside of the general category. He is now 63, has had a significant traumatic injury, which has some permanent mobility effect, and has other health conditions, especially mental health challenges. His employability would therefore be significantly affected by his age and disablement and it was acknowledged by the parties in the hearing that the social welfare structures in Vietnam do not compare with what is available in Australia to a person with equivalent circumstances as YVYQ.
The Tribunal finds that this consideration weighs strongly in favour of revocation of the mandatory cancellation of the visa.
Impact on victims (paragraph 9.3)
The Direction requires the Tribunal to consider the impact of the cancellation of the visa on members of the Australian community, including victims of YVYQ’s criminal behaviour, where that information is available.
The Tribunal interprets this to mean, first, that a victim of a non-citizen’s offending must be aware of the immigration action taken by the Minister or delegate and, second, that they must have expressed a view that is before the decision-maker. There is no such evidence before the Tribunal, so this consideration weighs neutrally.
Links to the Australian community (paragraph 9.4)
Sub-consideration: The strength, nature, and duration of ties to Australia (paragraph 9.4.1)
I must consider the impact of the decision on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely. I must have regard to how long YVYQ has resided in Australia, giving less weight where he offended soon after arriving in Australia and more weight to time he has spent contributing positively to Australia.
There would be a very significant effect on YVYQ’s de facto partner of long standing, Ms WP, if he was deported. The Tribunal has evidence of several health issues relevant to her and notes her evidence that she would not be able to return to Vietnam, if YVYQ was repatriated. That would effectively lead to a permanent separation.
There would also be a very significant effect on the Applicant’s son, their only child. Mr WS is an Australian citizen, born here, and who has embarked on a career. He has been financially supportive to his parents to the extent that he can be, and also active in procuring medical and other support and treatment.
As I have mentioned, there is conflicting evidence about YVYQ’s closeness to his two sisters who live in Australia or their families, and insufficient material for me to judge whether they would be affected by his repatriation.
Although YVYQ has an extensive criminal history as referred to above, he also has been a productive contributor to the Australian economy, working for some years for a major car manufacturer before taking a voluntary redundancy, and for a period operating his own small business. When he first came to Australia, he also worked for a time on farms. This counts in his favour, though the weight is reduced by the fisheries and arson offences. Although his offending history is extensive, it has been sporadic and there are significant periods where he has not offended at all.
I find that this sub-consideration weighs significantly in favour of revoking the mandatory cancellation of the visa.
Sub-consideration: Impact on Australian business interests (paragraph 9.4.2)
This part of the Direction notes that, in assessing impact on Australian business interests, an employment link would generally only be given weight where the decision under review would ‘significantly compromise the delivery of a major project, or delivery of an important service in Australia’. I do not think YVYQ’s work history rises to the level contemplated by the Direction as being significant, and I find this sub-consideration therefore weighs neutrally.
The Tribunal finds that the overall consideration weighs strongly in favour of the Applicant because of the effect on his immediate family if the cancellation of his visa is not revoked.
CONCLUSION
In terms of the four primary considerations set out in the Direction, the Tribunal has found that the primary consideration relating to the protection of the Australian community weighs somewhat against revoking the mandatory cancellation of the visa – this is a mixed weighting because of the seriousness of the most recent offending, and the Tribunal’s finding of a low risk of offending of that nature in the future. The primary consideration relating to the expectations also weighs against the Applicant. The other two primary considerations are not relevant.
Of the other considerations, the consideration relating to Australia’s international non-refoulement obligations weighs neutrally, as does the consideration relating to impact on victims. The consideration relating to the extent of impediments if removed weighs considerably in his favour. The consideration relating to links with the Australian community also weighs significantly in his favour.
The Tribunal notes that the parole order (ATB, pp 172-175) made by the Adult Parole Board of Victoria in relation to YVYQ bans the Applicant from entering any gambling venue without authorisation and requires an assessment in relation to gambling counselling and a subsequent programme or training. This is an enforceable protective measure over and above the measures arranged for YVYQ by his family which he has said he will participate in, and for which evidence of appointments was before the Tribunal.
The Tribunal notes Mr Guo’s submission that YVYQ is still obliged to make a total of $14,000 compensation payments (GD, p 63) to the owners of two cars damaged by his arson offending and that he would be unable to do so if deported. The Tribunal considers this is a relevant factor to consider.
After careful consideration of the significant sentence that YVYQ received, and which he is still serving under parole (albeit suspended owing to his detention by the Department), and taking account, as the Direction (at paragraph 5.1(3)) requires, the specific circumstances of the case, I find that the discretion provided in section 501CA(4)(b)(ii) of the Act is enlivened. In making this decision that the discretion is enlivened, I am reminded that the Full Court of the Federal Court of Australia said (referring to a relevantly similar part of a superseded Direction), in Jagroop v Minister for Immigration and Border Protection, at [57]:
Notwithstanding these features, as the Minister submitted, the terms of Direction No 55 to not purport to direct a decision maker as to the outcome of the s 501(2) residual discretion in relation to any given individual, or categories of individuals. Further, by the use of qualifying words such as “generally” (for example, in cl 8(4) that primary considerations “should generally be given greater weight than the other considerations”), the weighing process in each case is in substance left, as it must be, to the individual decision maker exercising the power under s 501.
It has been also held by the Full Court that the Tribunal would err if it concluded that an ‘other consideration’ in the Direction was incapable of outweighing a primary consideration (Minister for Home Affairs v HSKJ, at [35]).
As a result of a combination of the mental health, age and physical disability of the Applicant, coupled with the (enforceable and voluntary) preventative measures arrayed to assist him if released into the community, and the effect on the health of his partner, particularly, and his son if he is repatriated, I find that the two other considerations which weigh in favour of YVYQ are determinative in the specific circumstances of this case. the decision under review should be set aside. The assessed low to moderate risk of re-offending in a general way, and the low (perhaps very low) risk of re-offending in the manner that triggered the cancellation of his visa reinforces my conclusion that this is the correct and preferable decision.
DECISION
It follows that the mandatory cancellation of the visa should be revoked.
I certify that the preceding 126 (one hundred and twenty six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
..................[sgd]......................................................
Associate
Dated: 1 July 2021
Dates of hearing:
21 and 22 June 2021
Counsel for the Applicant:
Mr Min Guo
Solicitors for the Applicant:
WLW Migration Lawyers
Advocate for the Respondent:
Mr David Brown
Solicitors for the Respondent:
The Australian Government Solicitor
0
2
0