ZJFK and Minister for Home Affairs (Migration) - [2018] AATA 3774

ZJFK and Minister for Home Affairs (Migration) [2018] AATA 3774 (10 October 2018)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2018/4169
GENERAL DIVISION  )
Re: ZJFK
Applicant

And: Minister for Home Affairs
Respondent
CORRIGENDUM
TRIBUNAL:  Member Mr A. Maryniak, QC
DATE OF CORRIGENDUM:            11 October 2018
PLACE:            Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

In the first sentence of paragraph 46, the word ‘set’ is inserted between ‘is’ and ‘aside’

........................[sgd]...........................................
Member
Division:GENERAL DIVISION
File Number(s): 2018/4169
Re:ZJFK
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

DECISION
Tribunal:Member Mr A. Maryniak, QC
Date:10 October 2018
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides that the Applicant not be refused a Protection (Class XA) visa under s 501(1) of the Migration Act 1958.
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Member
Catchwords
MIGRATION – refusal of protection visa – applicant is a citizen of Vietnam – applicant does not pass character test in s 501(6)(d)(i) of Migration Act – whether discretion to refuse visa should be exercised – risk of re-offending – international non-refoulement obligations – decision under review set aside
Legislation
Migration Act 1958 (Cth) ss 5, 29, 30, 31, 36, 195A, 197C, 198, 499, 501
Cases
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
AQM18 v Minister for Immigration and Border Protection [2018] FCA 944
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Member Mr A. Maryniak, QC
10 October 2018
INTRODUCTION

The Applicant seeks review of a decision of a delegate of the Respondent (the Minister) to refuse the grant of a Protection (Class XA) visa (protection visa) under s 501(1) of the Migration Act 1958 (Cth), (the Act) for which he was notified on 18 July 2018. The hearing was conducted on 1 and 2 October 2018 and the Applicant gave evidence and was cross-examined with the assistance of an interpreter in the Vietnamese language. The Tribunal has taken into account this evidence and the documentary evidence before it. His partner and his partner’s sister were available in Melbourne but were not called to give evidence. It is assumed such evidence would not have assisted the Applicant.
It was submitted and the Tribunal accepts that the Applicant was born in a village in Vietnam. He is a 30 year old Catholic Vietnamese citizen. In connection with the Catholic Church, the Applicant became involved in anti-government activities, which drew the attention of the Vietnamese authorities.
The Applicant arrived in Australia on 11 August 2015. His tourist visa ceased on 11 September 2015 but he remained in Australia unlawfully.
In early 2016 the Applicant pleaded guilty to cultivation of a narcotic plant. On appeal in the County Court his sentence was reduced from 6 months to 4 months. The Judge noted the Applicant’s remorse. The Applicant says he pleaded guilty because he had heard that Immigration Detention was better than prison.
The guilty plea was a consequence of being arrested on 11 February 2016 in a house in Ballarat whilst police executed a Drugs, Poison and Controlled Substance warrant. He was seen coming from a room in the Ballarat house which contained 20 mature cannabis plants, identified as a hydroponic grow room. Two further rooms in the house contained sophisticated hydroponic set ups.
On 13 January 2016 Victoria Police had commenced investigating the house. Surveillance had identified a silver Mitsubishi Magna attending the house regularly.
On 31 January, 2 February and 4 February 2016 police saw the Applicant arriving at and leaving the Ballarat house in the silver Magna. The car was outside the house for at least 2 hours, between 4 and 6 pm on 2 February and for about 5 hours on 4 February 2016, on which date the police intercepted and identified the Applicant (via a Licence check) as he left the Ballarat house.
On 5 February 2016 police saw the Applicant in Leith Street, Ballarat in the silver Magna. He was observed collecting a green Mazda 2 identified as belonging to a Mr D who had the same residential address as the Applicant in Melbourne. The Applicant denied this event. Mr D was remanded in custody in respect of another cannabis grow house in Sebastapol.
On 22 July 2016 the Applicant applied for a protection visa, claiming to fear harm in Vietnam from government authorities because of his participation in religious and anti- government activities. A delegate of the Minister refused to grant that visa. However, the delegate’s decision was set aside by the Migration and Refugee Division of the Tribunal on 15 February 2017 and the matter was remitted with a direction that s 36(2)(a) of the Act was satisfied – the Applicant was a refugee and hence for the purposes of this decision he is a refugee.
LEGISLATIVE BACKGROUND
Visas
Subject to the terms of the Act, the Minister may grant a non-citizen[1] permission either to travel to and enter Australia or remain in Australia. That permission takes the form of a visa.[2] A visa may be subject to conditions. It may be permanent, allowing the person to remain in Australia indefinitely, or it may be temporary, allowing the person to remain during a specified period, for a specified event or while the holder has a specified status.[3] There are various classes of visa set out in s 31(2) and others may be specified in regulations made under the Act. Regulations may specify the criteria that must be met for a visa of a specified class[4] as do specific provisions of the Act.[5]
[1] A non-citizen is a person who is not an Australian citizen: Migration Act; s 5(1).
[2] Migration Act; ss 5 and 29(1)
[3] Migration Act; s 30
[4] Migration Act; s 31(3)
[5] See, for example, s 36 in relation to protection visas.
ISSUES
The Tribunal is required to determine two issues in making its decision. It must first determine whether the Applicant passes the character test under s 501(6) of the Act.
If satisfied that the Applicant does not pass the character test, it must then consider whether to exercise the discretion under s 501(1) of the Act to refuse his application for a protection visa. The Tribunal is required to apply the relevant considerations in Ministerial Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction) in determining whether the discretion should be exercised.
The Character Test
Section 501(1) of the Act provides:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Section 501(6)(d)(i) provides that a person will not pass the character test if:
(d)in the event the person were allowed to enter or remain in Australia, there is a risk that the person would:
(i)engage in criminal conduct in Australia”
In the decision notification letter of 18 July 2018, the Minister’s delegate considered that the Applicant failed the character test under s 501(6)(d)(i) as there was a risk that he would engage in criminal conduct if permitted to remain in Australia. The Tribunal must therefore consider this risk in determining whether he passes the character test.
BACKGROUND
The Applicant said he met a man name ‘Son’ at a market in December 2015 or January 2016. The Tribunal accepts that when Son heard the Applicant’s voice, he realised that he came from the same province in Vietnam, and began to talk to him. They saw each other numerous times at the market and Son told the Applicant that he had helped a lot of people find employment and accommodation in Australia, and he would help the Applicant find employment.
The Applicant asserted that Son told him that he needed help for about two weeks delivering food to a friend in Ballarat who could not drive. Son gave the Applicant $200 for food and petrol and said that he would give him more money when he returned to cover any extra costs. Son lent the Applicant his silver Magna. It is asserted that the Applicant was told to deliver food to the house every couple of days. The Applicant said that the food he delivered comprised instant noodles, green tea, coca cola, McDonalds and KFC.
The Applicant’s evidence is not corroborated. It does not seem plausible that the alleged unnamed man living at the house, who was never seen by any of the police surveillance, would be adequately fed by McDonalds or KFC delivered once every couple of days, only supplemented with packets of noodles and coca cola. Such was the Applicant’s evidence. Equally implausible is the assertion by the Applicant that he did not know that cannabis was being cultivated in the house.
In any event, of critical concern to the Tribunal is the reluctance of the Applicant to be up front about the amount of time he spent at the house during various visits. In initial cross examination he stated that he was at the house for about an hour during the visits.
As mentioned earlier, this is incorrect. After the police evidence was put to the Applicant in cross examination he very reluctantly accepted eventually that he may have stayed around two hours on one visit and for around 5 hours during a visit where he loaded planks of wood onto the silver Magna. This occurred during the 4 February 2016 visit according to the police evidence.
In evidence he said the house was dirty and smelly. The Tribunal does not accept the Applicant’s explanation that he simply sat around in the house for the hours he was there, passing the time by playing games on his phone. By his account of just delivering food to an unnamed man he never really spoke to, it is implausible that he needed to or would have stayed in that house for those extended periods of time. Further, even if the Applicant was not familiar with the smell of cannabis as he claimed, it seems unlikely that he would not have inquired as to what the odour in the house was.
The Applicant’s attempt to downplay his involvement with the crop house, probably motivated by his fear of returning to Vietnam, is in contradiction to his guilty plea and his obligation to give truthful evidence to this Tribunal. Also whilst I accept he may have been under a misapprehension as to the length of his tourist visa – he says he thought it was for one year, not one month; this is yet another example of the Applicant paying reckless disregard, at the least, for Australian laws. It is unfortunate that he did not take steps to clarify the details of his tourist visa.
The Tribunal accepts that the Applicant was too trusting of Son and was to a degree a victim of manipulation but he must take responsibility for his own actions and his plea of guilty to cultivating cannabis. The Tribunal cannot go behind that guilty plea.
Consistent with the Tribunal’s findings is the police evidence that upon entering the house to arrest the Applicant he was seen running from one of the rear rooms in which the cannabis was being cultivated. The Applicant’s partial answer to that, that he was wearing latex gloves because he was cleaning the toilet was not convincing.
The Applicant denies the Mazda 2 incident discussed in paragraph 8 above. The Tribunal prefers the police evidence and finds that this did occur.
In light of the tension between the Applicant’s guilty plea and the Applicant’s evidence, together with the implausibility of critical parts of the Applicant’s evidence and the fact that he was involved in a sophisticated drug production operation literally within months of arriving in Australia, the Tribunal finds that there is a greater than a remote or trivial risk that the Applicant will engage in criminal conduct in Australia. He therefore fails the character test. However, such risk is low because the Applicant appears genuinely remorseful of his conduct even if he has not been entirely frank in giving his evidence.
The Discretion
The discretion being enlivened, the Tribunal is guided by the considerations set out in Part B of the Direction in determining whether it should be exercised. Under s 499(1) of the Act the Minister may give directions about the exercise of functions or powers under the Act and the Tribunal is mandated by s 499(2A) to comply with the Direction in making its decision.
Clause 11 under Part B of the Direction sets out primary considerations to be taken into account regarding the refusal of an Applicant’s visa.
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian Community.
Clause 12 provides the other considerations which must be taken into account, where relevant. They include (but are not limited to):
a)International non-refoulement obligations;
b)Impact on family members;
c)Impact on victims;
d)Impact on Australian business interests.
These considerations are given their raison d’être by the principles set out in paragraph 6.3 of the Direction which are as follows:
“(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)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non‑citizen’s visa should be cancelled, or their visa application refused.”
In applying the considerations, whether primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[6] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against refusal … or whether or not to revoke a mandatory cancellation of a visa …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[7]
PRIMARY CONSIDERATIONS
[6] Direction No. 65 at [8(2)]
[7] Direction No. 65 at [8(4)] and [8(5)]
Protection of the Australian Community
The Tribunal is to have regard to the nature and seriousness of the Applicant’s conduct and the risk to the Australian community should he re-offend or commit other serious conduct. The Applicant’s counsel contends that given he is a first time offender and that the offence was not violent or sexual in nature and attracted a relatively brief sentence his conduct should not be regarded as serious. The Respondent argued that his conduct should be regarded as objectively serious and this was compounded by his efforts to downplay his offending.
The Tribunal considers that the Applicant’s conduct was not at the higher end of offending as contemplated by the Direction, however it should still be regarded as serious. Even though on the evidence the Applicant was a low-level participant, he was an integral part of a major ‘crop house’. It is also of concern that he involved himself with this operation within months of arriving in Australia. These ‘crop houses’ produce a significant amount of illicit cannabis and rely upon low level participants to exist and continue.
In the circumstances and considering his lack of candour with the Tribunal, there remains a real, albeit low, risk that the Applicant will re-offend, even taking into account that the Applicant was a vulnerable individual with mental health issues who has taken steps towards rehabilitation whilst in detention. There would necessarily be a measurable degree of harm inflicted upon the Australian community if he were to re-offend in a like manner, resulting in the proliferation of cannabis in the community. Overall the Tribunal finds that this consideration weighs in favour of refusing the Applicant’s protection visa application.
Best Interests of Minor Children
The Applicant claims that it would be in the best interests of his partner’s sister’s three children, whom he had spent a few months assisting with their care, prior to his arrest. The Respondent concedes that it would be in those children’s best interests for the Applicant to be granted the visa. The Tribunal agrees and finds accordingly. However, the Tribunal places reduced weight upon this consideration due to the Applicant’s limited relationship with the children to date.
Expectations of the Australian Community
In light of the findings above this consideration weighs against the Applicant. As noted in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, the Federal Court has held that this consideration is inextricably linked to the other primary consideration regarding protection of the Australian community. The expectations referred to in the Direction are those espoused by the Government in clause 13.3 (which is relevantly identical to clause 11.3(1) of the Direction.
In light of the findings above, in particular the Applicant’s lack of complete candour with this Tribunal and the relatively brief amount of time he spent in Australia before committing his first offence, the Australian community would expect the visa application to be refused. However, the Applicant did appear genuinely remorseful and appears to now appreciate the privilege associated with being able to remain in Australia. The Australian community would acknowledge this and the expectation would also be qualified by the Applicant’s low risk of re-offending and the potential harm he could face if returned to Vietnam. This consideration therefore weighs only slightly in favour of refusing his protection visa application.
OTHER CONSIDERATIONS
Non-Refoulement Obligations

The Migration and Refugee Division of the Tribunal has already determined that the Applicant is a person in respect of whom Australia has protection obligations.[8] That decision is not being reviewed here, so this Tribunal must weigh up Australia’s non-refoulement obligations, bound to the limited extent by the previous refugee finding.
[8] G-Documents 90-99.
If this Tribunal affirms the delegate’s decision the Applicant would be liable to be removed from Australia, subject only to the Minister’s non-compellable discretion under s 195A of the Act.[9] The legal consequence of ss 198 and 197C of the Act is that if the Applicant’s protection visa is refused, the Applicant will be removed as soon as practicable to Vietnam, subject only to the s 195A discretion.[10]
[9] Section 198 of the Act.
[10]DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; AQM18 v Minister for Immigration and Border Protection [2018] FCA 944.
The Tribunal confronts that reality. The Tribunal must take into account Australia’s non-refoulement obligations under international law. If the protection Visa is refused this 30 year old Applicant will most likely be refouled to Vietnam where he will face a real risk of suffering serious or significant harm. The Tribunal must weigh up this real risk of persecution against its findings in respect of the primary considerations.
The Tribunal accepts the Applicant’s submission that his offending is at the lower end of the range of seriousness, particularly when weighed against the probable undesirable consequences for the Applicant, if he is returned to Vietnam.
REMAINING OTHER CONSIDERATIONS
The other considerations listed under Clause 12 do not arise for consideration based on the evidence. The Direction requires the Tribunal to consider the impact on immediate family members who are Australian citizens, permanent residents or who have a right to remain in Australia indefinitely. The Applicant’s partner does not appear to fall into any of these categories.
No evidence has been provided regarding the impact on any victims of the Applicant’s offending or the impact on Australian business interests.
CONCLUSION
On balance, the Tribunal finds that the considerations collectively fall just in favour of the Applicant. Save for the instances of lack of candour discussed, the Tribunal is of the view that the Applicant was naive in the extreme and is now remorseful for his criminal conduct in Australia. Whilst this conduct was serious in nature, the Tribunal considers that the prospects of the Applicant re-offending are relatively low despite there being some risk. Limited weight is also given to the interests of his partner’s sister’s children that he remain in Australia so that he can continue to assist with their care.
The Australian community would take a dim view of the Applicant’s offending and would not expect him to be granted a protection visa however it would note his remorse and low risk of offending alongside the consequences of sending him back to Vietnam.
In this matter the non-refoulement consideration strongly favours setting aside the delegate’s decision. The Tribunal considers that the potential significant harm the Applicant may face in Vietnam is such that this consideration outweighs the adverse considerations relating to his offending. The correct and preferable decision is to set the reviewable decision aside.
DECISION
The decision to refuse the application is aside and substituted for a decision that notwithstanding that the Applicant does not pass the character test in s 501 of the Act, he not be refused a protection visa under s 501(1). That will enable consideration of any other matters arising under the application for a visa.

47. I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Member Mr A. Maryniak, QC

..........................[sgd]..........................................
Associate
Dated: 10 October 2018

Date(s) of hearing: 1 and 2 October 2018

Counsel for the Applicant: Mr P. Reynolds

Solicitors for the Applicant: Asylum Seeker Resource Centre

Solicitor for the Respondent: Ms A. Briffa, Australian Government Solicitor

Date(s) of hearing:	1 and 2 October 2018
Counsel for the Applicant:	Mr P. Reynolds
Solicitors for the Applicant:	Asylum Seeker Resource Centre
Solicitor for the Respondent:	Ms A. Briffa, Australian Government Solicitor