Tran and Minister for Home Affairs (Migration) [2019] AATA 125 (12 February 2019)
Division:GENERAL DIVISION
File Number(s): 2018/6858
Re:QUOC TRAN
APPLICANT
Minister for Home AffairsAnd
RESPONDENT
DECISION
Tribunal:SENIOR MEMBER R. CAMERON
Date:12 February 2019
Place:Melbourne
The Tribunal affirms the decision under review.
.....................[sgd]...................................................
SENIOR MEMBER R. CAMERON
Catchwords
MIGRATION – Mandatory cancellation of visa – Whether to revoke cancellation – Where the Applicant does not pass the character test – Where the Applicant has a substantial criminal record – Whether there is another reason cancellation should be revoked – Consideration of Direction no. 65 – Decision affirmed
Legislation
Migration Act 1958 (Cth)
Direction No. 65
Cases
Ali v Minister for Immigration and Border Protection [2018] FCA 650
BCR 16 v Minister for Immigration and Border Protection [2017] FCAFC 96
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Re Ayache and Minister for Immigration and Border Protection [2018] AATA 310
Re Do and Minister for Immigration and Border Protection [2016] AATA 390
Re Waits v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Saleh v Minister for Immigration and Border Protection [2017] AATA 367
Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466Secondary Materials
DFAT Country Information Report Vietnam (21 June 2017)
REASONS FOR DECISION
SENIOR MEMBER R. CAMERON
12 February 2019
INTRODUCTION
The Applicant is a citizen of Vietnam. He arrived in Australia in September 1990 when he was aged 15. He has resided in Australia ever since.
On 20 July 2016, the Applicant’s Return (Residence) (Class BB) subclass 155-Five Year Resident Return visa (“the visa”) was cancelled under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) (“the original decision”).
Following cancellation of the visa the Applicant made representations to the Respondent seeking revocation of the original decision.
On 19 November 2018 a delegate of the Respondent decided, under section 501CA(4) of the Act, not to revoke the original decision (“the reviewable decision”). The Applicant has applied to this Tribunal for review of that decision.
RELEVANT LAW
Migration Act 1958
With regard to the mandatory cancellation of visas, section 501(3A) of the Act provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a “substantial criminal record”. Relevantly, for the purposes of the character test, section 501(7)(c) provides that a person has a “substantial criminal record” if they have been sentenced to a term of imprisonment of 12 months or more.
With regard to the revocation of a mandatory cancellation decision, section 501CA relevantly provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
(5)If the Minister revokes the original decision, the original decision is taken not to have been made.
…
Where a decision has been made by a delegate of the Minister under section 501CA(4) not to revoke a mandatory cancellation of a visa, the affected person may make an application to the Tribunal seeking a review of that decision under section 500(1)(ba) of the Act. The Applicant filed this application for review with the Tribunal on 22 November 2018.
Under section 499(1) of the Act, the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (section 499(2A) of the Act). Currently, the applicable direction is Direction No. 65, Migration Act 1958 – Direction Under Section 499 (“the Direction”).
Direction No. 65
It is appropriate to set out several of the sections of the Direction that are applicable with respect to this application. Paragraph 6.2, “General Guidance”, relevantly provides:
(1)The Government is committed to protecting the Australian community from harm as a result of the criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3)The principles provide a framework within which decision-makers should approach their task of deciding… whether to revoke a mandatory cancellation under section 501CA. The relevant… factors that must be considered in making a revocation decision are identified in Part C of this Direction.
The principles referred to in paragraph 6.2 are contained in paragraph 6.3:
(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.
…
(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.
Part C of the Direction provides guidance for revocation decision-making and contains a number of primary and other considerations. Finally, paragraph 8(4) of the Direction provides that Primary considerations should generally be given greater weight than the other considerations and paragraph 8(5) states that one or more primary considerations may outweigh other primary considerations.
ISSUES TO BE DECIDED
The Applicant has conceded that he does not pass the character test.[1]
[1] This concession is made in paragraph 3 of the Applicant's Statement of Issues, Facts and Contentions. The concession was also made on his behalf in a letter of 31 January 2018 in support of his application for revocation of the mandatory cancellation of his visa. This concession in that letter is to be found at page 135 of the G documents.
As mentioned above, section 501(6)(a) of the Act provides that a person does not pass the character test if they have a “substantial criminal record”. The Applicant has, on three separate occasions, been sentenced to a term of imprisonment of 12 months or more.[2] Therefore, the Applicant does not pass the character test by virtue of section 501(7)(c) of the Act.
[2] The National Police Certificate (page 33 of the G documents) reveals that he was sentenced to terms of imprisonment of 12 months or more at the Melbourne County Court on 13 March 1996, the Melbourne County Court on 24 June 2004 and the Melbourne Supreme Court on 20 May 2014.
Therefore, under section 501CA(4)(b) of the Act, the issue to be determined by the Tribunal is whether there is another reason why the original decision should be revoked.[3]
[3] Section 501CA (4)(b)(ii) of the Act.
THE EVIDENCE AND OTHER MATERIALS BEFORE THE TRIBUNAL
The following documentary evidence was tendered:
(a)Report of Tim Watson-Munro dated 25 January 2019;
(b)Progress Notes from Le Phan Medical Centre consisting of 15 pages concerning the Applicant;
(c)Bank Transfer receipt 31 January 2014 to 22 May 2014;
(d)Referral letter from the Law Institute of Victoria to Ms. Hong 21 January 2018;
(e)Medial referral letter and attached document from Dr Azmi concerning Quco Hoa Tran dated 17 December 2018;
(f)Medical referral letter dated 10 October 2018 from Dr Makarious concerning Quco Hoa Tran;
(g)Transition Learning and Development Statement concerning Jordan De Leon consisting of 8 pages;
(h)Bundle of Case notes;
(i)Bundle of photographs;
(j)Medical report from Dr Hai Phan dated 5 January 2018 (2019) concerning Thi Hong Hoang;
(k)Medical report from Dr Hai Phan dated 5 January 2019 concerning Thu Tran;
(l)Document entitled “Quoc’s birthday fundraiser”;
(m)Bundle of Tax Invoices from Quality Batts Insulation (The Applicant’s company);
(n)Photograph of a swimming pool;
(o)Reference letter from Jeremy Thomas ASA dated 19 December 2018;
(p)Reference letter from Sue Chamberlain dated 30 December 2018;
(q)Petition consisting of 29 pages headed “Request to allow Quoc Tran to remain in Australia”; A-17
(r)Article from Sydney Morning Herald dated 11 January 2018;
(s)Translation of Ve Tran Charges dated 11 January 2019;
(t)Article from Refugee Action Coalition Sydney dated 25 January 2019;
(u)Medical Request Form completed by the Applicant on 26 January 2019;
(v)Witness statement of Anna Carmela Pauline De Leon made 8 January 2019;
(w)Statement of Tania McGrath made 8 January 2019;
(x)Statement of Thi Hue Tran made 8 January 2019;
(y)Statement of Thi Hong Hoang made 2 January 2019;
(z)Statement of The Applicant dated 9 January 2019;
(aa)Statement of the Applicant dated 30 January 2019;
(bb)A bundle of three articles concerning unemployment benefits in Vietnam, barriers to accessing and using health insurance cards for methadone treatment and an article concerning the state of health financing in Vietnam.
(cc)Bundle of documents lodged pursuant to section 501G of the Act (“G documents”), lodged 10 December 2018;
(dd)Bundle of documents attached to Respondent’s Statement of Facts, Issues and Contentions lodged 31 January 2019.
The following persons gave viva voce evidence before the Tribunal:
(a)The Applicant;
(b)Anna De Leon;
(c)Tania Maria McGrath;
(d)Thi Hue Tran; and
(e)Thi Hong Hoang.
THE APPLICANT’S BACKGROUND
The Applicant was born in Vietnam in December 1975, shortly following the collapse of the South Vietnamese regime. He is the second eldest of seven children and the eldest son. Following the Communist takeover of South Vietnam his family endured a very difficult time. They lived in a fishing village very close to the ancient city of Hue.
The Applicant’s sister, who was slightly older than him, gave a harrowing account of how the Communists frequently came and captured their father; he was subjected to persecution because of his Catholic faith. The Communists also tended to ransack the village and took whatever they felt like, including foodstuffs; it was a difficult existence.
The family decided to leave Vietnam and eventually did so by boat. They fled in 1985 by boarding a boat at a beach. The Applicant gave evidence that, in attempting to board a boat to leave, they were intercepted by Communist forces who attempted to shoot them. In the commotion that followed, the Applicant was separated from his mother and two sisters. With his father and several other siblings, they made their way onto the high seas. The boat was attacked by pirates on the high seas. The pirates took any valuables that the refugees had, assaulted some of the men and raped some of the women. The Applicant in his evidence described the experience as horrifying. There is little doubt that this experience has caused the Applicant significant mental anguish ever since.
Eventually, he, his father and other siblings made it to a refugee camp in Hong Kong. Approximately a year to 18 months later, he was joined by his mother and one sister. His mother gave evidence that she made her way from Vietnam through to China and ultimately Hong Kong.
The family remained in the refugee camp in Hong Kong until 1990, when they were granted refugee status and were able to migrate to Australia. The Applicant, his mother and his sister once again gave harrowing evidence of their experiences in the refugee camp. Violence was a daily feature of life. There was conflict between Vietnamese from the North and the South. There were frequent assaults and rape of women. His mother gave evidence that the Applicant maintained a high morale throughout this time. She gave moving evidence of the way the Applicant every day went to the office in the camp in the expectation that acceptance for resettlement in some friendly country would be permitted. She recounted how the Applicant was exuberant when he ran from the office one day, informing them that they had been listed for an interview for acceptance by Australia.
The evidence was that, in the early days after their arrival in Australia, the Applicant was a pivotal member of the family in helping them establish a new life.
The Applicant gave evidence, and it was apparent from observing him in the witness box, that although he has had a somewhat limited education, he is not an unintelligent man. He also displayed in the witness box an awareness of protecting his interests. A further impression was that he appeared to have attributes of diligence and endeavour as was demonstrated by his periods of productive employment. Given these attributes, there were some aspects of his evidence which were surprising. These will be commented on later in these reasons.
THE APPLICANT’S HISTORY OF OFFENDING
The National Police Certificate, which is in evidence before the Tribunal,[4] reveals that the Applicant’s offending commenced with an appearance at the Melbourne Magistrates’ Court in October 1995 and continued until another appearance in the Melbourne Magistrates’ Court in May 2014. All 27 offences were revealed in the certificate.
[4] Page 33 of the G documents.
The Applicant’s first appearance in a court in October 1995 was for firearms offences when he was 19 years of age. His last appearance in May 2014 was for the possession of methylamphetamine.
The categories of offending on the part of the Applicant, identified in the National Police Certificate, include firearms offences, affray, assault, dishonesty, armed robbery, possession of drugs and intentionally causing serious injury.
The National Police Certificate provides some detail of the offences committed by the Applicant. Additionally, in the G documents the reasons for sentence of His Honour Judge Cullity in the County Court of Victoria on 13 March 1996, His Honour Judge Barnett in the County Court of Victoria on 24 June 2004, and Justice Hollingworth in the Supreme Court of Victoria on 20 May 2014 are included. The reasons of those sentencing judges concern the more serious offending on the part of the Applicant. More detailed reference to those reasons will be made later.
THE PRIMARY CONSIDERATIONS
Paragraph 13(2) of the Direction with respect to revocation requests prescribes the Primary considerations to be taken into account by the decision maker. It states:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
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.
PROTECTION OF THE AUSTRALIAN COMMUNITY
Clause 13.1(1) of the Direction requires the Tribunal, when considering the protection of the Australian community, to acknowledge the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Paragraph 13.1(2) further states:
(2) Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the Applicant’s conduct
Clause 13.1.1 of the Direction relevantly provides that:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c) The sentence imposed by the courts for a crime or crimes;
d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e) The cumulative effect of repeated offending;
…
g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The Tribunal finds, on all the evidence available to it, that the Applicant’s offending is very serious within the definition contained in Clause 13.1.1 of the Direction.
The Applicant himself acknowledged that his criminal history involved serious offences of violence, committed over the course of a number of years.[5]
[5] Paragraph 7 of the Applicant's Statement of Facts, Issues and Contentions.
Clause 13.1.1(a) of the Direction provides that violent crimes are viewed very seriously. The observations of the sentencing judges of the County Court in 1996 and 2004, together with Justice Hollingworth in 2014, which were recorded above, are referred to.
The Applicant’s 1996 conviction on a charge of affray involved the use of weapons including a rifle, a machete, a large butcher’s knife, a samurai sword and an iron bar. It is conceded that the rifle was not owned or used by the Applicant. However, the sentencing judge’s observations that the sword, the machete, the butcher’s knife and the iron bar were used to unleash a furious attack on a vehicle with the obvious intent not only damaging such vehicle but also to inflict injury on the occupants of that vehicle are repeated to demonstrate the extreme level of violence that was resorted to in the commission of that crime.
When these observations of Judge Cullity were put to the Applicant in the course of cross-examination, he steadfastly denied that the judge was correct and further stated that there was no intention to inflict injury on the occupants of the car but the intention was to scare them. This denial of the gravity of his offending and what his intentions were in the face of the findings by the sentencing judge do reflect badly on the Applicant. It does also cause the Tribunal to question his reliability as a witness and whether he has genuinely understood the gravity of his offending, not only then but subsequently; and whether he has rehabilitated in the way he wished the Tribunal to believe. These concerns are amplified by the fact that as observed earlier he is not an unintelligent man and on his own evidence he has been drug-free for approximately three years. Also the Applicant pleaded guilty to the charge and was represented by counsel at the plea hearing. No doubt at the plea hearing on the affray charges in 1996 counsel admitted the facts as outlined by the prosecution on behalf of the Applicant. The Applicant in this hearing sought to depart from this admission.
The 2004 convictions in the County Court included armed robbery and assault in the possession of an unregistered firearm. Once again, the comments of the sentencing judge are referred to in their entirety. The armed robbery involved the Applicant attending in company with others, accosting the victim in his car. The victim was attacked with a samurai sword and either a wooden or metal bar. In the course of that attack, it appears that the Applicant was standing adjacent to the passenger door of the car occupied by the victim, making demands of him whilst he was attacked by the Applicant’s co-offenders with the weapons concerned. The victim was struck with the samurai sword on the head, poked in the leg and hit on his side. The victim’s car was also struck with the bar. The victim suffered a cut elbow.
After the commission of the armed robbery, a subsequent search of the Applicant’s premises discovered an unregistered .22 calibre revolver and ammunition. The Applicant was a prohibited person in possession of such a firearm. There was absolutely no reason for the Applicant to be in possession of any firearm, let alone a revolver, which fundamentally has one purpose and one purpose only: to kill or seriously injure.
The crime which resulted in the conviction in the Supreme Court of Victoria for intentionally causing serious injury on 20 May 2014 was particularly vicious. The Applicant attended a house wearing a balaclava. A struggle developed between an occupant of the house, who was a complete stranger to the Applicant. During this struggle, the Applicant produced a knife and stabbed the victim three times, including to the right side of his head. The stab wound to the victim’s head fractured his skull and penetrated his brain. The victim was conveyed to hospital and underwent brain surgery. He was placed on life support for a week and was not expected to live. The victim spent a further 10 days in intensive care. He spent seven weeks in the neurosurgery ward at the Royal Melbourne Hospital.
The very serious nature of the Applicant’s offending involving violence is amplified by the fact that he did not know, or have any previous connection with, the victims of his violence. Usually, his involvement was at the behest of a friend or acquaintance. Often, as in the 1996 and 2004 convictions, it was a friend of his who had the grievance with the victim. In the case of the 2014 conviction for intentionally causing serious injury, his friend or acquaintance had no grievance with the victim, but with another occupant of the premises concerned. The victim was unfortunately in the wrong place at the wrong time. This misfortune is probably likely to affect him for the rest of his life, given that he suffered serious brain injury.
Another disturbing factor concerning the Applicant’s violent offending is that, in each of the crimes for which he appeared in the County Court and the Supreme Court, the victim was unarmed.
It is this readiness to resort to a high level of violence that is of concern, and adequately demonstrates that the Applicant’s offending falls within the purview of very serious violent offending as identified in Clause 13.1.1(a) of the Direction.
Clause 13.1.1(c) of the Direction requires the decision-maker to consider the sentence imposed by the courts for the crimes concerned.
In this context, it should be noted that the Applicant has been sentenced to several terms of imprisonment:
(a)29 May 2014: 4 months imprisonment concurrent;
(b)20 May 2014: 6 years imprisonment;
(c)23 August 2010: 3 months imprisonment (to be served by way of an Intensive Correction Order);
(d)1 August 2006: one month imprisonment, suspended for a period of 12 months;
(e)24 June 2004: 2 years, 6 months imprisonment;
(f)23 March 2004: 1 months imprisonment; and
(g)13 March 1996: 12 months imprisonment, suspended for 24 months.
The various terms of imprisonment imposed on the Applicant reflect the gravity with which the sentencing courts viewed his offending. Additionally, the fact that he has been imprisoned on several occasions must also account for the seriousness of his offending as assessed by each sentencing court.
The Respondent contended by reference to several previous decisions of this Tribunal that, when applying Clause 13.1.1(c) of the Direction, that the imposition of a term of imprisonment on an offender is usually a last resort in the sentencing hierarchy. Therefore, any custodial sentence must be viewed as a reflection of the objective seriousness of the offences concerned. The Tribunal accepts this contention; the nature and seriousness of such offending cannot seriously be disputed.[6]
[6] The authorities referred to by the Respondent were PNLB v Minister for Immigration and Border Protection [2018] AATA 162, Saleh v Minister for Immigration and Border Protection [2017] AATA 367 and Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177. Taulahi’s case held that, with respect to suspended sentences (which it should be observed have been imposed on the Applicant in this case), although in substance different to a sentence of imprisonment which has not been suspended, it can properly be regarded as the "penultimate punishment". A term of imprisonment which is suspended does reflect the gravity of the offending in the view taken by the sentencing court of its nature and seriousness. It is frequently adopted as a means of encouraging the person convicted to rehabilitate and avoid further offending.
The sentencing judges themselves have observed that the Applicant’s offending was serious. Justice Hollingworth at paragraph 15 of the reasons stated: “This is a serious example of the offence.” Judge Cullity stated: “The offences were of such seriousness that personal and general deterrence is called for.”[7]
[7] Judge Barnett in his reasons in the County Court of Victoria on 24 June 2004 did not specifically state that the offending was serious. However, his details of the attack on the victim can readily lead one to conclude that the offending was serious. Those facts have been recited earlier in these reasons. They included the use of weapons to cause actual injury.
The seriousness of the Applicant’s offending should also be considered in the light of what Parliament has imposed by way of a maximum penalty for the offence of intentionally causing serious injury. Justice Hollingworth observed at paragraph 14 of her reasons that the maximum penalty for the offence is 20 years imprisonment.
Clause 13.1.1(d) of the Direction requires the decision-maker to have regard to the frequency of the Applicant’s offending and whether there is any trend of increasing seriousness.
Much has already been considered in these reasons that addresses this factor of the Direction.
The frequency of the Applicant’s offending for offences against the person have occurred over a period of approximately 18 years. They have ranged from common-law assault through to intentionally causing serious injury, for which he was convicted in May 2014. It is of concern that over that period he appears not to have learned his lesson and, culminating in the 2014 conviction, there has been a trend of increasing seriousness. The injuries inflicted upon the victim by the Applicant (details of which have been recounted earlier in these reasons) which resulted in his conviction in May 2014 were horrendous.
Justice Hollingworth identified concerns about the Applicant’s propensity to carry dangerous weapons, in company with others, and use them if he perceived the situation as requiring it. Her Honour found that this fact established a need for the sentence she imposed upon him to contain an element of specific deterrence. The sentence imposed by the Court was based in part on specific deterrence in an endeavour to prevent further offending.
There has also been a frequency of offending by the Applicant with a trend of increasing seriousness, within the meaning of Clause 13.1.1(d) of the Direction. This frequency of offending with a trend of increasing seriousness by the Applicant has occurred both in terms of his commission of crimes of violence and also his firearms offences. His first conviction of affray in 1996, whilst described by Judge Cullity as a “furious attack”, did not result in injury to the victim. The Tribunal does not have details of whether the victims of his assaults for which he was convicted in 1999 and 2000 were injured. However, the victim of the 2004 assault and of course the victim of the intentionally caused serious injury in 2012 (for which he was convicted in May 2014) did suffer injury. The injury suffered did increase in severity and in the case of the last conviction in 2014 was of a life-threatening nature. The more extensive type of injuries suffered by the victims demonstrate a trend of increasing seriousness.
His continuing commission of firearms offences is also disturbing and reflects a frequency and trend of increasing seriousness also within the meaning of Clause 13.1.1(d) of the Direction. His very first conviction was a firearms offence in 1995. In evidence before the Tribunal the Applicant stated that it involved some friends of his who had possession of a rifle which they discharged in a rural area. His explanation was that he was young and stupid and in effect led up the garden path by his friends. One would have expected that he might have learned from the opportunity that was given to him by the sentencing court where, without conviction, he was fined an aggregate of $1000. Regrettably, he did not and in 2004, at the time of his appearance in the County Court of Victoria before Judge Barnett, he was convicted of being a prohibited person in possession of an unregistered firearm. The firearm was located by police in a cupboard under the laundry sink, following a search of his home in St Albans after the armed robbery previously referred to had been committed. The weapon concerned was a .22 calibre revolver together with ammunition. As observed earlier, it is disturbing that he was in possession of any firearm, let alone such a firearm.
Once again, one would have expected him to have learned his lesson, yet he did not. In August 2010 at the Sunshine Magistrates’ Court, he was convicted of being a prohibited person in possession of a silencer. His explanation in evidence before the Tribunal was that the police attended his house and conducted a search. In the course of such search, they looked in a cupboard situated in a bedroom previously used by his brother. It was during that search that the police found the silencer. He denied any previous knowledge of the silencer. Nonetheless, he has been convicted for this offence. Possession of the silencer is a terribly serious matter. Silencers, or as they are sometimes referred to “suppressors”, are usually only connected with attempts to kill or seriously injure people by concealing the noise emitted by the discharge of a firearm. Whatever the Applicant’s explanation for this conviction, the frequency of, and facts surrounding, his convictions on firearms offences do show a trend of increasing seriousness. This is of concern to the Tribunal.
Clause 13.1.1(e) of the Direction requires the decision-maker to have regard to the cumulative effect of repeated offending.
There are several aspects to the cumulative effect of the Applicant’s repeated offending.
Where he has committed acts of violence, there is the effect on his victims. The effect on his victims can be both physical and mental. The effects on the victim of his 2012 offending, where he suffered serious brain injury are readily apparent. Whilst there is no direct evidence, one can only speculate as to the effects on the physical and mental health of the Applicant’s victims.
There is also the cost to the community that is apparent from the Applicant’s offending. The cost of hospital and medical treatment to, at the very least, the victim of the Applicant’s 2012 offending, where he intentionally caused a serious brain injury, that required the victim to spend 10 days in intensive care and a further seven weeks in the neurosurgery ward at the Royal Melbourne Hospital, would be significant. Another cost to the community arising from the Applicant’s repeated offending is of course the time that he has spent in jail. It ultimately costs the community, via taxpayers, vast amounts of money to keep a person in jail each year.
The cost and diversion of resources in the policing and criminal justice spheres to deal with the Applicant’s repeated offending is another factor that adds to the cumulative effect of such offending.
There is also the disturbing effect of his offending on the community at large. It contributes to the community not being a safe environment in which people can go about their business.
Clause 13.1.1(g) of the Direction requires the decision-maker to have regard to whether the Applicant has reoffended since being formally warned, or since otherwise being made aware in writing, about the consequences of further offending in terms of his migration status.
The Applicant has been warned twice, in writing, of the potential consequences of further offending in terms of his migration status.
The first warning was in writing dated 30 April 1999. The Applicant on the same day signed an acknowledgement of receipt of the warning. He conceded in his evidence that he had received it and the signature on the document was his. He also conceded that the letter contained only confirmation of “an oral warning” that had been administered to him concerning his conviction in March 1996 for the offence of affray. The contents of the written warning are referred to in their entirety for their full force and effect. It should be recorded that the language was clear and unequivocal; it says, amongst other things: “nevertheless you are warned that any further conviction will lead to the question of your deportation being reconsidered. Any disregard of this warning will weigh heavily against you if your case is reconsidered.” When questioned about the 1999 warning and his understanding of it, he replied: “I didn’t put much thought into it at the time.”
A further written warning was administered on 21 June 2005 in a letter being a “Notice of Decision Not to Cancel a Visa under section 501 of the Migration Act 1958”. The letter recorded that the Applicant had been previously warned on 6 October 2004 that his Visa may be liable for cancellation under section 501 of the Act on character grounds. The letter again was in clear and unequivocal language. The letter is referred to in its entirety for its full force and effect. However, it recorded specifically a warning that had been given to him previously by a delegated officer (presumably on 6 October 2004) as follows: “Mr Tran must keep away from drugs that leading into criminal activity. He must set himself on a path that will support his partner and children. This will be his second warning over criminal conduct. Should he continue to offend he should not expect a third warning rather the real possibility of visa cancellation.”
Despite these warnings, the Applicant continued to offend. Not only did he continue to offend, but he committed some very serious offences which have been referred to earlier.
Having considered the factors that the Tribunal is obliged to take into account under Clause 13.1.1 of the Direction, it concludes that the Applicant’s offending is very serious within the meaning of that clause. There has been a frequency of significant crimes of violence and firearms offences, amongst others, over many years. He has been given significant custodial sentences which reflect the gravity of his offending. By the same token the courts have given him the opportunity to rehabilitate, yet he has chosen not to avail himself of such opportunities. He has continued to offend after having being given two written warnings, not to mention oral warnings, in clear and unequivocal terms, of the consequences for his immigration status if he were to offend in the future. He did not heed those warnings. The Applicant has committed violent crimes against unarmed members of the community who he did not know.
The Tribunal is also mindful of the principles contained in Clause 6.3 of the Direction concerning the consequences for a non-citizen causing or threatening harm to individuals and committing serious crimes.
In these circumstances, all of the above matters weigh very heavily against revocation of the decision to cancel the Applicant’s visa.
Risk to the Australian community should the Applicant reoffend
Clause 13.1.2 of the Direction provides that:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Applicant has contended both in his Statement of Facts, Issues and Contentions and submissions and during the course of the hearing before the Tribunal (both in evidence and by way of submissions) that he has rehabilitated, or is actively working towards rehabilitation, and as a result, he will not be a risk to the Australian community in the event that he is released.
In both his witness statements that were tendered in evidence in the proceeding and his evidence from the witness box, he stated that his drug consumption or addiction was the main reason for his offending. He stated that the difference between this time and previous occasions when he offended is that he has come to realise the problems he has in terms of the drug addiction from which he has been affected. He has remained drug-free for three years. He also points to the steps that he has taken whilst in custody, including attending various courses. Those courses have included intensive violence programs, anger management and drug and alcohol awareness programs. Apparently, he has also consulted a psychologist whilst in prison. Whilst in immigration detention, he has had more ready access to telephone and internet services. He says that he has taken this opportunity to investigate and make contact with various support and help networks that are available. The time in custody he says has also enabled him to think deeply and reflect upon how he has wound up in the predicament that he is currently in. His evidence included reference to the use of audiobooks and meditation to change his subconscious thinking, or as he put it from time to time, “rewire” his thinking.
The effect of these steps, he claims, is that he has come to the realisation that violence will not solve his problems and that it has, in many ways, destroyed his life. As an example of this, he has pointed out to the Tribunal that on one occasion whilst he was in immigration detention, he was struck from behind by another detainee. On this occasion, he did not react or retaliate. The absence of retaliation on that occasion, he said, was an example of how he has been able to change his approach when confronted with potentially violent situations.
A Consultant Psychologist, Mr Watson-Munro, prepared two reports concerning the Applicant: one dated 25 January 2019 and another one dated 12 May 2017. The Tribunal has read and considered both reports. Unfortunately, Mr Watson-Munro did not give evidence before the Tribunal. The Respondent in submissions contended that, because he did not give evidence, less weight can be placed on the reports. This was hotly contested by counsel for the Applicant. Without giving evidence, Mr Watson-Munro could not be tested in cross-examination concerning any aspects of both reports. This must necessarily limit, to some extent, the use or weight that can be placed upon the material in those reports, let alone what it might prove or establish. There is no doubt that the Respondent would have wanted to put certain matters to Mr Watson-Munro. It would have assisted the Tribunal to have heard from him and had the benefit of such matters being put to him. This is particularly the case in light of the conclusions that he makes in both reports. Mr Watson-Munro concluded that the Applicant is drug-free and, as he described it, in “Full Remission”. He concludes under the heading “Risk of relapse into drugtaking and criminal activity” that the Applicant has “retrained his thinking”, to the point where there is a positive prognosis that significantly reduces the potential for relapse into drug use and potential criminal activity in the community.[8]
[8] Pages 6 & & of Mr Watson-Munro’s report of 25 January 2019 are referred to.
Mr Watson-Munro in his reports also identified the need for the Applicant to undertake treatment for anxiety and depression, which he found had led to consequent drug addiction and offending. He recommended ongoing psychological assistance were he to be released into the community. Given his history there must be real concerns that the Applicant would if he were released undertake such treatment for anxiety and depression and continue to adhere to a program of such treatment as recommended by mental health professionals. His previous experience, where he entered into a methadone program and informed his treating doctor that he was not using other drugs when in fact he was (details of which will be considered later in these reasons), do not give confidence that he would do so.
An additional limb of the Applicant’s contention that he would not be likely to reoffend has been what he describes as the support of his large extended family in Australia. There was an array of family members who made statements at various times in support of the Applicant and gave evidence on his behalf. In addition to those family members, there was the evidence of Tania McGrath, a close family friend who described the Applicant’s parents as being, in effect, her parents.
The Tribunal has considered this material and the contentions that have been made on behalf of the Applicant. However, the Tribunal has significant concerns about whether or not the intentions expressed by the Applicant of how he would avoid a relapse into drug use and offending if he were released would be fulfilled.
Judge Barnett in 2004, in the course of his reasons, acknowledged that the Applicant was suffering from what he described as “a significant addiction to heroin and methylamphetamine” at the time of his offending. His Honour observed that during his time in custody the Applicant had attempted to rehabilitate. These attempts at rehabilitation included attending two drug courses conducted by Moreland Hall (a well-known and reputable facility) and an occupational health and safety course with the Kangan Batman TAFE. His counsel submitted to the court that he was drug free.
Also tendered before Judge Barnett was a psychological report prepared by Mr Warren Symons. The report, it appears, was also tendered in support of a submission made by counsel appearing on the Applicant’s behalf that he had made efforts to rehabilitate himself. The report of Mr Symons report apparently identified the Applicant as suffering symptoms of PTSD. It would appear that these symptoms were not further investigated and treated after that appearance in court.
It is apparent that these intentions expressed to Judge Barnett were not fulfilled. The Applicant continued to abuse drugs since that appearance. This was also notwithstanding the fact that he had completed a methadone program (this fact was noted somewhat adversely by Justice Hollingworth at paragraph 27 of her Reasons for Sentence on 20 May 2014). It does mind one to ask the question that, if such intentions were not fulfilled on that occasion, why they might be fulfilled this time? One must have real doubt. The language used in Clause 13.1.2(1) of the Direction must be considered by the Tribunal as the decision-maker. Those words are that it must have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
The seriousness of the potential harm is apparent from the injuries suffered by the victim of the Applicant’s most recent offending. That harm was a serious brain injury which put the victim on life support for a week, intensive care for 10 days and then a further seven weeks in the neurosurgery ward at the Royal Melbourne Hospital. It is at the highest possible level of harm to the individual, short only of death. It is harm or potential harm which the Australian community cannot tolerate.
Clause 13.1.2(2)(a) and (b) of the Direction require the decision-maker to have cumulative regard to the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal conduct and the likelihood of him engaging in further criminal conduct, taking into account available information and evidence on the risk of him reoffending.
The evidence adduced by the Applicant and the contentions advanced by him as to why there is a relatively low risk of reoffending have been outlined above.
In addition to the failure to rehabilitate after the appearance before Judge Barnett in June 2004, there are several other matters that have emerged from the evidence which are relevant to an assessment of the factors identified in Clause 13.1.2(2) of the Direction.
As noted earlier, there has been a pattern of continuing criminal conduct which has demonstrated an escalation in its nature and seriousness. The escalation in the nature and seriousness of the offending engaged in by the Applicant has been reflected in several terms of imprisonment, culminating in the sentence of Justice Hollingworth of 6 years, with a non-parole period of 4 years.
There is the finding of Justice Hollingworth of the Applicant’s propensity to carry dangerous weapons, in company with others, and to use them if he perceived the situation required it.[9] The finding concerning the Applicant’s propensity relates to offending that occurred over approximately a period of 18 years. If the Tribunal is to accept the evidence and contentions of the Applicant, that he no longer has this propensity; this is a difficult proposition to accept.
[9] Paragraph 55 of Justice Hollingworth's reasons at page 45 of the G documents.
Mr Watson-Munro identified what he described as a strong nexus between the Applicant’s drug use and his propensity to break the law, inclusive of potentially violent behaviour.[10] He opined that with ongoing support, supervision and treatment, as well as structure in his life provided by family and employment, his prognosis is positive. This conclusion is of course based on all of these steps continuing to be adhered to by the Applicant. There must be serious doubts about this occurring in the event of him being released into the community.
[10] Page 187 of the G documents, being part of his report dated 12 May 2017. He also identified in his reports the Applicant's risk of recidivism is being closely connected to him ceasing to use illegal drugs and described it as the single largest contributing factor to such offending.
The Applicant was on a methadone program between 2 January 2009 and 14 August 2012. The clinical notes of the Applicant’s treating doctor, Dr Hai Phan, were in evidence for this period. He has observed that the Applicant at various times had not missed any methadone doses, not relapsed, had no emotional issues, no psychological issues and was keen to stay off heroin. During this period, he committed a number of offences that have already been identified. These offences were committed whilst, on his own admission, during that time span when he did not remain drug free[11]. It was also observed in the Reasons for Sentence of Justice Hollingworth that during his record of interview with the police the Applicant was asked questions about his drug use and he admitted that he had taken Xanax and heroin. Justice Hollingworth also recorded that the Applicant had been interviewed by Dr Ong, a forensic psychiatrist,[12] and that the Applicant informed him that the night before the incident he had smoked ice and heroin, as well as taking Xanax. The Applicant also acknowledged to Dr Ong that the disinhibiting effects of amphetamines and benzodiazepines would have contributed to his actions on the day. This evidence establishes that during that period the Applicant was advising his general practitioner that he was drug free on a methadone program, when he was anything but. It is a significant factor that causes the Tribunal to have extreme reservations about the contentions of the Applicant that, if released into the community, he would remain drug free. It is also a matter that seriously affects his credibility. Apart from the concerns that these matters raise it would have been of assistance to the Tribunal if it were explored with Mr. Watson-Munro in the light of the conclusions he reaches in both of his reports about the risk of the Applicant reoffending.
[11] The Applicant admitted this fact from the witness box as it was self-evident from the progress notes in evidence before the Tribunal from Dr Hai Pha of the Le Phan Medical Centre.
[12] Dr Ong is a well-known and highly regarded forensic psychiatrist. It is unfortunate that his report was not able to be produced to the Tribunal as it may have been of significant assistance.
Another reference was made by Justice Hollingworth to Dr Ong’s report in her reasons, where she noted he said that the Applicant had only limited insight and gave “some limited expressions of remorse in regards to the current offence, though had a tendency to externalise blame in regards to the contribution of the victim to [your] actions”[13]. She further observed that this response was consistent with the way in which he behaved in the latter part of his record of interview with the police (after he eventually acknowledged his involvement in the attack), where he repeatedly blamed the victim. It reflects extremely badly on the Applicant to have blamed the victim for his actions. The victim was unknown to him and was simply in the wrong place at the wrong time. It is far from apparent to the Tribunal that this attribute on the part of the Applicant, to blame an innocent victim who was previously unknown to him and unarmed, has been addressed. It certainly does not appear to have been considered in the reports of Mr Watson-Munro. If it has not been addressed, it heightens the risk to the Australian community.
[13] Paragraph 39 of Justice Hollingworth's reasons.
Justice Hollingworth, when considering whether the Applicant had prospects for rehabilitation in the context of questions of specific deterrence, stated: “You have some prospects of rehabilitation”[14]. Given the extensive material that undoubtedly would have been before Justice Hollingworth, this is hardly a confident finding with respect to his prospects; the risk is certainly there.
[14] Paragraph 50 of Justice Hollingworth’s reasons.
Another matter of concern is that, whilst the Applicant may well have been drug free for the last three years and has undertaken various courses together with investigating many avenues for addressing his drug problems, this has all occurred in the context of his continuing incarceration. He has time on his hands, and he is not subject to external influences such as those of his misguided friends who have led him into offending in the past. He has not, it would appear, had the temptation of drugs placed before him. Notwithstanding the restrictions the terms of imprisonment have subjected him to in the past, he has relapsed with consequences that have led to offending of a serious nature. His history does not lead one to have confidence that this occasion will be different. Overall, the Tribunal cannot be satisfied that the Applicant is a low risk of reoffending. The Tribunal has to have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. It should be noted that some conduct and harm that would be caused, if it were to be repeated, is so serious that any risk of repetition may be unacceptable. Even if there is a low probability of reoffending, the risk may properly be regarded as substantial if great harm would result. That is the case here. Should the Applicant reoffend, the result for the community would be unacceptable. Given the potentially violent nature of the risk, which is unacceptable to the community, it must weigh against revocation of the cancellation of the Applicant’s visa.
THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Clause 13.2(1) of the Ministerial Direction requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of any minor children.
The Applicant has four children:
(a)Evelyne (16 years);
(b)Gabrielle (16 years);
(c)Quoc (7 years); and
(d)Jordan (5 years).
The eldest daughters were from a relationship the Applicant had with Anna Teresa De Leon (“Annette”).
The Applicant’s two eldest daughters, who are twins, have resided since approximately April 2004 with their maternal grandparents. The Applicant stated that the last time he saw them was in 2006 before they left for Singapore. The grandparents have fulfilled a parental role in relation to the twin daughters since that time. During this period, they did reside for some years with their grandparents in Singapore. The Applicant did not consent to the children’s move to Singapore. The evidence indicates that the Applicant did make financial contributions to the support of the twin daughters when they were in Singapore. He has also given support to them, via their aunt Anna De Leon, when they have been in Australia.
The twin daughters began living with their grandparents following a police raid of the house occupied by the Applicant and Annette due to their drug activities. They continue to live with their maternal grandparents in Sydenham. The Applicant gave evidence that he has only spoken to them once but does manage to pass on some messages to them via Annette.
Annette is in some form of custody undergoing drug rehabilitation following the imposition of an 18 month prison sentence for heroin trafficking.
The evidence before the Tribunal reveals that the twin daughters’ grandparents do not wish the Applicant to have contact with them. The Applicant states that the grandparents believe that he has been the reason why their daughters have descended into a life of drug addiction. There has been limited contact between them since 2004. The Applicant has taken steps to obtain legal advice in an endeavour to either gain access to, or custody of the children.
The Applicant has contended that he has played an active role in the twin daughters lives. The evidence does not support this contention. He has had little contact with them because of his drug taking, incarceration over many years and the steps the grandparents have taken to prevent him from doing so.
The Applicant’s two youngest children are from a relationship that he had with Anna Carmelo Pauline De Leon (“Anna”). Anna De Leon gave evidence before the Tribunal. She is a sister of Annette.
The youngest child was born whilst the Applicant was in custody and the first child from his relationship with Anna was born a comparatively short time prior to his arrest for the stabbing incident for which he was sentenced in the Supreme Court by Justice Hollingworth. These facts have meant as a matter of reality that his contact and interaction with his children has been limited.
Anna gave evidence, as did the Applicant, which is accepted by the Tribunal, that prior to his arrest the Applicant was very much involved in the raising of his eldest son Quoc (“Hao”). Since his arrest, he has sent Christmas and birthday cards. When he has been able to, he has telephoned and sought to speak to his children, particularly the eldest son Hao. There was evidence before the Tribunal that when he was able to, he has sent money to Anna to support his children. Both the Applicant and Anna gave evidence that following Jordan’s birth in March 2013, the Applicant sent a substantial amount of money, (approximately $50,000) to her to assist her in supporting the children. The source of this money was from the Applicant’s business installing swimming pools as a subcontractor for a major screen pool supplier. There was evidence before the Tribunal showing monies that he had received from this enterprise. It should be observed that the evidence appears to be that when the Applicant applied himself to his work, he was hard-working and industrious.
Anna De Leon gave evidence that the Applicant has always dearly loved and supported his children as far as he has been able to, given his circumstances of particularly lengthy periods in custody. She also gave evidence that if the Applicant were allowed to remain, he would eventually have more contact with her two children. She emphasised a father’s role in a child’s life as being irreplaceable and ultimately beneficial for the upbringing of children. She emphasised what she considered to be the need for a male role model. She, to her credit, stated that regardless of the state of the relationship between her and the Applicant, she believed that the Applicant would always do his best for his children and support them to the best of his ability.
The Respondent accepts that it is in the best interests of the Applicant’s children for him to remain in Australia. However, the Respondent contends that any weight that that should attach to this primary consideration should be limited for several reasons.
The Respondent contends that there has been little contact between the Applicant and any of his children, as has been observed earlier. This has been because of several factors, including the Applicant’s drug use, his periods in custody and, on occasion, the intervention of the Department of Human Services.[15] There has also been, with respect to the two elder daughters, the intervention of their maternal grandparents, who have consciously taken steps to prevent him having access to them. The Tribunal accepts this contention.
[15] There was significant material before the Tribunal concerning the intervention of the DHS. A Child Protection Order was made removing Hao from his parents care in August 2012 when he was a very young baby. The reason for this was that a loaded shotgun was found in the child's pram after a raid by police. The DHS report states that the shotgun belonged to Anna and was payment for drugs she had previously sold someone. The Applicant conceded that at the time Anna was a drug dealer. Whilst this event was not explored during the course of the hearing, it is a matter of much concern.
Another contention of the Respondent is that, even if he were to be released into the community, on the evidence available any parental responsibility for his two younger children is likely to be limited. It is further contended there is no evidence to suggest he is likely to resume any daily parental care for the two younger children if he is to be released from detention. Any role he is likely to play with any of his children will, of necessity, be restricted. Additionally, it is contended that he has not been a positive role model for any of his children. This is also accepted by the Tribunal.
Further, the Respondent contends that the requirement for the Applicant to undertake ongoing rehabilitation for both his drug addiction and other mental health issues, together with, it is argued, the risk of recidivism on his part, combine to limit his capacity to provide his children with daily care or to have close and regular contact with them. At the very least, it poses the question of whether this is likely to occur. These contentions are properly made.
The Tribunal considers that the evidence of the Applicant and also Anna De Leon should be accepted as to the Applicant’s intentions concerning his children. Their evidence concerning the need for a father or male figure in their children’s lives also is properly put.
However, the limited contact that the Applicant has had with his eldest daughters particularly, by reason of the efforts of their maternal grandparents to restrict or prevent such contact until otherwise resolved, must mean that his role in their lives for the foreseeable future will be limited.
Anna’s evidence that, if he were to remain, eventually he would have more contact with the children was qualified by her saying that this would only come after initial contact and with conditions attached demonstrates that there would be some path to negotiate before he would be able to make an appreciable impact on the lives of his two younger children.
The evidence indicates that the extent to which he is likely to play a positive parental role in the future with his children is limited. Particularly with respect to the eldest daughters, as they have a relatively short time before they turn 18.
There has been a lengthy separation from his children, as already recounted. This lengthy separation means that the likely effect of any future separation, were he not permitted to remain in Australia, would be more limited than otherwise might have been the case. Whilst there is no specific evidence of means of communication available between Vietnam and Australia, presumably internet access and telephone services would be available.
Given the evidence that is before the Tribunal, it accepts that it is in the best interests of the Applicant’s children for the cancellation of the Applicant’s visa to be revoked. However, this consideration does not attract significant weight because of the limited contact he has had with his children over the years as described, as well as the impact of his offending and drug addiction.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Clause 13.3 of the Direction relevantly provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In applying this paragraph, the Tribunal has to construe the language used. The expectation contained in the first sentence of this paragraph, requiring obedience to Australian laws, is not an unrealistic expectation, nor is it difficult to understand. Where the debate sometimes arises is in the subsequent sentences, where the Tribunal has to consider what the expectations of the Australian community might be in the circumstances of the case.
The Applicant in his submission refers to several authorities concerning this question.[16] On the other hand, the Respondent makes a series of statements as to what the Australian community might acknowledge in terms of the Applicant’s difficult background, without necessarily referring to any authorities.
[16] The contents of paragraphs 36-41 of the Applicant's Statement of Issues, Facts and Contentions are referred to.
In Re Do and Minister for Immigration and Border Protection[17], McCabe DP provided some guidance:
A decision-maker is, to some extent, required to guess at the community’s expectations … As I begin my deliberations, I assume the Australian community would be fair-minded and mature … The community would certainly not be vengeful. The Applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the Applicant has lived in Australia and other circumstances which might assist the community to form a proper judgement about the individual and what should be done.
[17] [2016] AATA 390 at [23].
In Re Waits v Minister for Immigration and Multicultural and Indigenous Affairs[18] Block DP also helpfully observed:
The expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.
[18] [2003] AATA 1336 at [36].
Recently, Mortimer J in YNQY v Minister for Immigration and Border Protection[19] made the observation that, in substance, this consideration is adverse to any person who has failed the character test and has been convicted of serious crimes. Her Honour further noted that this paragraph of the Direction was, in effect, a deeming provision about how the executive government wishes to articulate community expectations, whether or not there is any objective basis for such belief. Her Honour concluded that it was inevitable that such a consideration will weigh against an Applicant and indeed that was the intention of that paragraph.
[19] [2017] FCA 1466 at [75]-[77]. The approach of Mortimer J in YNQY was also helpfully considered by Deputy President Forgie in Re Ayache and Minister for Immigration and Border Protection [2018] AATA 310 at [60]-[75].
The Applicant has conceded that he has committed crimes of a serious nature. However, the thrust of his submission is that when his offending is looked at in its context, proportionally and from a non-vengeful perspective; together with the circumstances of his arrival and the consequences for his four children, the Australian community would expect the mandatory cancellation of his visa to be revoked. Particular emphasis was placed upon the experiences of the Applicant when he left Vietnam and the effect on his four children arising from the drug addictions of the Applicant and their mothers.
The Respondent referred to the Principles contained in Clause 6.2(1) of the Direction regarding protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The Respondent then referred to the provisions of Clause 6.3.
Reference is made by the Respondent to several factors in support of the contention that the Australian community would expect that the Applicant’s visa would be cancelled. These factors include the Applicant’s lengthy criminal history over a span of approximately 20 years. The fact that the Applicant has been convicted on several occasions for offending of a serious violent nature. The fact that he has been convicted of firearms offences. That he has been convicted of drug and dishonesty offences. That, cumulatively, this offending has caused significant harm to the Australian community.
There is also the fact that the Applicant has continued to commit serious offences after he received two warnings, in writing, which also followed verbal warnings to the same effect.
The Applicant was given many chances. Apart from frequent appearances in the Magistrates’ Court, the two appearances in the County Court in 1996 and 2004 should have given him a sufficient wake-up call not to indulge in any further offending and certainly not any offending of a violent nature. It should be observed that when he committed the offending for which he was sentenced by Justice Hollingworth, he was not a young man. He had resided in Australia for many years and had been given significant opportunity to change his ways. The Australian community exercised considerable tolerance towards his offending. There must be a point at which the line is drawn on such tolerance; that time has been reached.
The Tribunal is concerned, as was Justice Hollingworth, about the Applicant’s prior criminal history over many years and, as she found, his propensity to carry dangerous weapons in company with others and to use them if he perceived the situation required it. The offending for which he was sentenced by Justice Hollingworth was appalling. Causing serious brain injuries to someone in the circumstances in which it occurred to the victim in that case is unacceptable. Even if the Applicant’s contention that there is a low probability of reoffending were to be accepted, if he were to reoffend, great harm could result. The risk of such future harm by him is simply unacceptable.
In these circumstances the Tribunal finds that an informed, reasonable and fair-minded member of the Australian community would expect the Applicant’s visa to remain cancelled.
OTHER CONSIDERATIONS
There are other considerations that must be considered in revocation matters which are identified in Clause 14(1) of the Direction. It provides that:
(1) … These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
Clause 14.1 of the Direction provides as follows in relation to Australia’s non-refoulement obligations:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
In addressing this consideration, the task of the Tribunal is to consider whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa under section 501CA(4). Clause 14.1 of the Direction requires the Tribunal to assess whether the Applicant will be at risk of a specific type of harm, such that it would trigger Australia’s international non-refoulement obligations.
The Respondent contends that, consistent with Clause 14.1(4) of the Direction, the Tribunal is not required to determine whether non-refoulement obligations are owed to the Applicant because a valid application for a protection visa can be made in the future should the Applicant choose to do so. It then refers to the existence of Ministerial Direction 75. It is pointed out that Direction 75 requires that decision-makers who are considering an application for a protection visa must first assess whether the refugee and complimentary protection criteria are met before considering in eligibility criteria, or referral of the application for consideration under section 501 of the Act. The Respondent relies upon the decision of Justice Flick in Ali v Minister for Immigration and Border Protection.[20]
[20] [2018] FCA 650.
Whilst acknowledging the contention of the Respondent, the Tribunal considers the preferable approach is to follow the decision of the Full Federal Court in BCR16 v Minister for Immigration and Border Protection[21] which held that the Tribunal may consider any international non-refoulement obligations that might arise should the Applicant be returned to Vietnam.
[21] [2017] FCAFC 96.
When assessing whether any non-refoulement obligations are owed and what they may be, the level of analysis required by the Tribunal in such an application is less than that required when assessing a claim for a protection visa. When undertaking such task, the Tribunal cannot engage in the level of evidentiary analysis that would be undertaken if a protection visa application was made in the conventional way by those tasked with processing such claims. The application before this Tribunal, which is an expedited hearing, requires such an assessment to be undertaken within a limited time span and therefore, it cannot and does not have access to the extensive body of evidence normally laid before it during the course of a protection visa hearing.
The Applicant contends that if he were to return to Vietnam alone and without family support there would be a likelihood of him resuming the use of drugs. Consequent upon his resumption of drug taking would be the risk of his arrest and internment in one of Vietnam’s labour camps which have been established to enforce rehabilitation of drug users. It is contended that there have been extensive human rights abuses in drug rehabilitation centres particularly in the southern region of Vietnam. In the materials before the Tribunal relied upon by the Applicant, he refers to an extensive report on human rights abuses in drug rehabilitation centres in southern Vietnam prepared by Human Rights Watch in September 2011.[22] The Tribunal notes the contents of this submission which refers to a variety of alleged human rights abuses ranging from forced labour, isolation, use of electric batons and other forms of torture, cruel, inhuman or degrading treatment or punishment. The Tribunal has taken these submissions into account. It notes that the report is now approximately seven years old and there must be some question as to its currency.
[22] The Tribunal refers to the extensive "Submissions in Support of Revocation under s 501CA of Migration Act 1958" of 12 March 2017 prepared by the Applicants then lawyers under the heading "International non-refoulement obligations". The Submission commences at page 134 of the G documents. The particular consideration is to be found at Pages 160-166
The Respondent refers to the Vietnam Country Information Report prepared by the Department of Foreign Affairs and Trade, (“DFAT”) which stated that ‘detention is no longer compulsory if an individual is registered on a methadone program’. The DFAT report does note that these camps still exist and human rights abuses still occur in them. However, internment is not apparently mandatory in situations where the individual agrees to undertake a methadone program similar to the one the Applicant has participated in previously. The Respondent further contends that the Applicant had been previously placed on a methadone program from 2009 to 2012. It contends that access to such a program is an option for the Applicant.
The Applicant has produced some material which highlights barriers to accessing and using health insurance cards for methadone treatment in northern parts of Vietnam. The contents of these reports are acknowledged.
The Tribunal cannot determine conclusively one way or the other firstly whether the Applicant would be arrested and interred in a labour camp were he to relapse into drug use. Secondly, in the event that he were arrested, it cannot be concluded one way or the other whether he would be subjected to human rights abuses of the type that have been identified earlier in this section.
However, doing the best it can, the Tribunal can only conclude that on the evidence available to it there is some potential risk of harm of the nature described were he to relapse into drug use.
Of course this risk of harm is predicated on the Applicant relapsing into drug use. The Respondent contends that if he has rehabilitated, as he has given evidence to the Tribunal, or has taken significant steps to so rehabilitate with respect to his drug dependency, he has, by his own actions, mitigated any risk of being arrested or detained in a labour camp. The point being that if he is not using drugs he will not be arrested and subsequently detained by reason of his drug use. This is a relevant consideration.
Another limb, or perhaps more accurately the second limb, of the Applicant’s contention that this consideration weighs in favour of revocation of the mandatory cancellation, is that his sister Ve Thi Tran is facing criminal charges for drug trafficking approximately 1.8 kg of heroin in Cambodia. The evidence of the Applicant (which is been subjected to very little corroboration) is that he and his entire family live in fear of the drug cartel who enticed his sister into being a drug mule.[23] The fear that is described is that the drug cartel might use him as a “tool” to make sure that his sister does not speak to police and identify members of the cartel. He is frightened that the cartel will hurt him to send a message to his sister so that she does not give up her details.
[23] There is in evidence before the Tribunal a copy of a press report from the Sydney Morning Herald of 11 January 2018 together with a partial translation of and the original document in Cambodian concerning these charges. In so far as these documents are capable of authentication they would indicate that the Applicant's sister was a drug mule. Quite possibly having been pressured into acting as a mule by reason of losing money in a casino in Australia. It appears that she was arrested by the authorities in Cambodia following a tipoff from the Australian Federal Police.
There is no evidence as to the characteristics of this drug cartel. For instance, we do not know if it is a multinational organisation, whether it is a localised group (in Cambodia or in Australia), whether it is connected to any recognised organised crime syndicates, whether the cartel actually exists or functions in Vietnam, whether it exists in any other countries. Has the drug cartel threatened, harmed or killed people in the past? If so, has it done so in Vietnam and when? There is just insufficient particular evidence concerning the drug cartel that enables the Tribunal to objectively assess whether it is capable of making the threats or carrying out the acts that the Applicant says he fears.
The Applicant also contends that if he is returned to Vietnam the Vietnamese authorities would not have the resources necessary to protect him from the drug cartel or other harm as a drug user. This contention is also somewhat speculative and there is no evidence before the Tribunal that enables it to reach a conclusion about the capacity of the Vietnamese police or law enforcement agencies to provide protection of the type that the Applicant speculates may be necessary. It may well be that in Vietnam the police authorities are well equipped to protect the Applicant. It also presupposes that the cartel will be able to find the Applicant. The DFAT Country Information Report regarding Vietnam notes that the police forces are ‘generally effective at maintaining public order’ [5.4]. The report does note that organised crime groups do exist in Vietnam [2.28], however, not beyond the ability of Vietnam’s security forces to control; violence (of the sort that the Applicant purportedly fears) is noted as being ‘rare’ [2.29].The Respondent contends and the Tribunal agrees that this does involve a considerable degree of speculation.
There is no evidence to date that the Applicant or any member of his family have been threatened or approached by members of the cartel. In several statements made by him, particularly the most recent on 9 January 2019 which this issue is addressed (at paragraphs 88 to 90), there is no evidence of any direct threat being made. He just expresses fear. However, during cross-examination he said that the cartel had threatened his sister and informed her that if she said anything they would come and hurt her family. He gave evidence that his sister told him this early last year when she was charged. He then went on, rather extraordinarily, to say that a few times some people had broken into his mother’s house with a gun. He then said they were people that she had borrowed money from. He stated that the matter was not reported to the police. He said he is frightened that something will happen to one of them. He then put the risk as being that someone might return and shoot them.
Several things should be commented on concerning this portion of the Applicant’s evidence. Firstly, as noted earlier it was not included in any previous statement that he made that was in evidence before the Tribunal. This is quite surprising given the gravity of the evidence. Secondly, his mother was in the witness box and she made no reference to people breaking into her house with guns. She made no reference to potential threats from a drug cartel. If she considered it was relevant to the Applicant’s claims, one would have surely expected her to have mentioned it[24]. Also, on the Applicant’s evidence the incident at his mother’s house is not related to the travails of his sister but simply that of his parents and their gambling problems. It should be noted that there was evidence before the Tribunal that his parents developed a gambling addiction which resulted in them losing the family home. There is no evidence to suggest that, if the people with guns attended at his parents’ home, that it related to the drug-trafficking charges of his sister and any drug-trafficking cartel that she may have been working for. There is also the disturbing suggestion that the matter was not reported to the police. It is puzzling why it was not reported to the police. This is all the more puzzling, particularly when the Applicant said that he and his family feel safer in Australia because there are effective police forces here.
[24] The Tribunal considered that the Applicant's mother was a credible and decent witness. She seemed someone who would very likely have mentioned the matter had it occurred and been of concern to her in the context of this application.
The Tribunal has considerable difficulty with this portion of the Applicant’s evidence and yet again it reflects poorly on his credibility. It displays a tendency to embellish his evidence in the interests of furthering his cause in the witness box and the outcome of the application.
Whilst it is not conclusive, it should be observed that the Applicant’s sister was arrested over a year ago in early January 2018. The Tribunal concludes that there is no evidence that any threats have been made to date against the Applicant or any other member of his family concerning his sister, who is in custody in Cambodia.
For the reasons considered, the Tribunal is unable to reach a conclusion that the Applicant, if he was returned to Vietnam, would be at risk of harm from the drug cartel concerned in such a way as to trigger Australia’s international non-refoulement obligations as envisioned by Clause 14.1 of the Direction.
For all the reasons outlined concerning this consideration, the Tribunal concludes that it weighs marginally in favour of revocation of the mandatory cancellation of the Applicant’s visa.
STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
The Direction at Clause 14.2 addresses the matters to be taken into account for this consideration:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant arrived in Australia at the age of 15 in 1990. He has four minor children residing in the country. He has his parents, siblings, nieces and nephews. Indeed, the evidence is that he has over 50 extended family members in Australia, all of whom are Australian citizens. The Respondent acknowledges that the Applicant has strong family ties to Australia. This is readily apparent from the evidence before the Tribunal, not to mention the evidence given by witnesses orally at the hearing before the Tribunal. The Tribunal accepts this contention.
The Applicant’s mother gave evidence as to the medical conditions from which she suffers.[25] The Tribunal accepts that she has a very strong fondness and affection for the Applicant. This fondness and affection has survived the various experiences that both of them have had. His mother has a series of health problems that have required surgery and ongoing treatment. She gave evidence that her husband is advancing in years and also not in the best of health[26]. It is her hope that, if the Applicant were released, he would be able to provide some assistance for her and her husband upon his release. She also gave evidence that when he did live with his parents from time to time, he provided much support undertaking various household duties such as cooking for the family, providing domestic assistance and doing anything else he could to help them. She also attested to his assistance for other families in the Vietnamese community and described him as a very good and kind person. There is no doubt she will be profoundly affected if the Applicant is not permitted to stay in Australia. Indeed, in one statement she stated that she and her husband are somewhat dependent on the Applicant. Whilst one can understand these sentiments, the dependency must have been to some extent limited due to the fact that the Applicant has been in custody for approximately 6.5 years. However, one appreciates and can understand the genuineness of these statements.
[25] This evidence was also confirmed in a medical certificate from her treating general practitioner Dr Phan that was in evidence before the Tribunal.
[26] There was also a medical certificate from his treating general practitioner Dr Phan confirming the conditions from which he suffers.
His sister Thi Hue Tran, who was a compelling witness, gave evidence of the support that the Applicant has offered not only to his parents, but to her and other family members. She recounted that he was of assistance to them during the escape from Vietnam, the time in the refugee camp and the subsequent time in Australia, including establishing the family in a new land. She particularly emphasised the care he gave to his parents following the loss of the family home in 1999 by reason of the parents’ addiction to gambling. Several of her siblings she said have distanced themselves from their parents as a result of this, whereas the Applicant remains supportive and provided whatever assistance he could. She also corroborated the Applicant’s evidence concerning the assistance he provided to them concerning their medical conditions.
There was evidence before the Tribunal, which is accepted, that the Applicant did from time to time (as also noted earlier) work industriously both as an employee and running his own business as a sub-contracted swimming pool installer. There was a reference from a chartered accountant for whom the Applicant had worked for approximately two years between 2008 and 2010 which was impressive. That reference also acknowledged that he left that employment to start his own business installing swimming pools. There is documentary evidence to show that he was making quite a reasonable living as a sub-contractor for a swimming pool company. The Tribunal acknowledges that by reason of these facts he has made some contribution positively to the Australian community.
There were also a variety of statements and even a significant number of letters in a petition or pro forma style contending that he should be permitted to stay. The Tribunal acknowledges each of these statements or signatories to the pro forma documents as evidence of the qualities that those persons assess the Applicant as having. It is apparent that within many parts of the Vietnamese community the Applicant is seen as fundamentally a good person, notwithstanding his offending. It is acknowledged that these people have been made aware to some considerable extent the nature and seriousness of such offending, yet still are prepared to vouch for him. This weighs in his favour.
The Respondent contends that, in accordance with the provisions of Clause 14.2(1)(a)(i) of the Direction, less weight should be given to this consideration, given that the Applicant commenced offending five years after his arrival and continue to offend repeatedly over almost 20 years, not to mention the gravity of such offending.
Taking into account all of the evidence before it, the Tribunal concludes that this consideration weighs very much in favour of revocation of the mandatory cancellation of the Applicant’s visa.
IMPACT ON VICTIMS
Clause 14.4 of the Direction provides as follows in relation to impact on victims:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
There is no evidence before the Tribunal concerning the impact of a decision not to revoke on members of the Australian community, including the Applicant’s victims.
However, the Tribunal has to acknowledge the extremely serious injuries suffered by the victim of the crime for which he was sentenced by Justice Hollingworth. It would seem unlikely that the victim would not be profoundly affected by this offending on the part of the Applicant for the rest of his life.
However, in the absence of more evidence the Tribunal is unable to place any weight on this consideration.
EXTENT OF IMPEDIMENTS IF THE APPLICANT IS RETURNED TO VIETNAM.
Clause 14.5(1) of the Direction requires the Tribunal to consider the extent of any impediments if the Applicant is removed from Australia:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The Applicant contends that, if he is returned to Vietnam permanently, it will likely trigger a return of depression and anxiety. As noted earlier, in the event that this occurs, he is concerned that he is more likely to relapse into drug taking, which could lead to his arrest and detention.
He also contends that, if he is returned to Vietnam, he would have no knowledge of current or available support services for his mental health challenges and other obstacles to his resettlement there. Allied to this consideration is the contention of the Applicant that it will be difficult for him to access appropriate health care services and pharmaceuticals that he may require, particularly methadone, should he relapse into drug use. These are valid contentions and must be taken into account. The issues concerning drug use once again, of course, are predicated on him relapsing into such drug use. However, he says he has been drug-free for three years. This cannot be ignored.
However, as the Respondent contends, when one examines the DFAT Country Information Report for Vietnam of June 2017 it reveals that the Applicant is entitled to access healthcare services. The World Health Organisation report into the “Mental Health System in Vietnam” 2006 reveals that he would also be entitled to access mental health services. It should be noted that these services are available to all of Vietnam’s citizens. The Respondent also contends that he is, more likely than not, entitled to access government insurance programs for the aged, invalidity, work injury, sickness and death.
There is also a question of employment opportunities for the Applicant if he were to return. Whilst there is evidence concerning unemployment benefits payable in Vietnam, there is no evidence to suggest that he would not be eligible for such benefits in the same way that it is generally available to other citizens of that country.
The Applicant says that he can speak Vietnamese. He says his writing is not that good and he can read a little bit. It must be borne in mind he left as a 10-year-old. However, he says he did learn some Vietnamese in Australia.
It is not apparent what the employment opportunities would be for the Applicant if he were to return to Vietnam. As noted earlier, he has demonstrated a capacity to be a good employee if he chooses to do so. There seems to be no reason why he would not be able, were he determined to do so, find some form of useful employment which would enable him to derive an income to re-establish himself and provide a basic standard of living in that country.
It is acknowledged that the Applicant has few relatives in Vietnam. He has returned to Vietnam on two occasions since he arrived in Australia. The evidence is that he did not really enjoy those trips, including one for the funeral of his grandfather, as it led to flashbacks of the experiences of his youth after the takeover of the South by the communists.
The Applicant also gave evidence that people who are drug dependent or attend drug rehabilitation centres are generally treated as social outcasts whom the rest of the community look down upon. This would have to be acknowledged as a barrier to some extent in the event that he were to relapse into drug use.
On the material before it, the Tribunal accepts that the Applicant will face some significant hurdles if he returns to Vietnam. Overall the Tribunal finds that this consideration weighs in the Applicant’s favour, but it does not outweigh any of the primary considerations addressed above.
CONCLUSION
The Tribunal has outlined the Applicant’s offending earlier in these reasons. The offending covers a variety of crimes and took place over a period of just under 20 years. His most recent conviction, for which he was sentenced by Justice Hollingworth in the Supreme Court, was particularly grave.
The Applicant has been convicted of several crimes of violence involving the use of a weapon and against persons who were previously unknown to him. He has also been convicted of firearms offences, amongst others.
There have been several terms of imprisonment imposed on the Applicant, including the most recent term by Justice Hollingworth of six years.
In this case, two of the primary considerations, being the protection of the Australian community and the expectations of the Australian community, outweigh all other considerations. In reaching this conclusion, the Tribunal finds that the risk of future harm by the Applicant is unacceptable. Even if the risk of reoffending is low, as contended for by the Applicant, given the great harm that would potentially result in the event of reoffending, it is just so serious that even a low risk of repeat offending is unacceptable.
In such a setting, if he engages in further criminal conduct were he to remain in Australia, the Australian community will be at risk. In making this assessment, the Tribunal has considered the nature of the harm to individuals or the community should he engage in further criminal or other serious conduct and the likelihood of further criminal or other serious conduct, taking into account all the information and evidence that has been tendered concerning the risks of the Applicant reoffending.
Balancing all of the primary and other considerations contained in the Direction, as the Tribunal is obliged to do, it is satisfied that the correct and preferable decision is to not revoke the cancellation of the Applicant’s visa.
DECISION
For the reasons set out above, the Tribunal affirms the decision under review.
I certify that the preceding 176 (One-hundred and seventy-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member R. Cameron
.....................[sgd]........................................
Associate
Dated: 12 February 2019
Date(s) of hearing: 4 and 5 February 2019 Solicitors for the Applicant: Hammond Taylor Counsel for the Applicant: Mr G Bucchorn Solicitors for the Respondent: Clayton Utz Advocate for the Respondent: Ms R Noronha
- AGLC
- Tran and Minister for Home Affairs (Migration) [2019] AATA 125
- Case
- [2019] AATA 125
- Decision Date
CaseChat Overview and Summary
The legal issues before the Tribunal were whether the Applicant's criminal conduct was so serious that it outweighed any other considerations for revocation, and whether the best interests of his minor children in Australia warranted revocation. The Tribunal was directed to consider primary considerations including the protection of the Australian community from criminal or serious conduct, the best interests of minor children, and the expectations of the Australian community.
The Tribunal reasoned that the Applicant's offending was very serious, noting the nature and seriousness of his conduct, the sentences imposed by courts, and the cumulative effect of repeated offending. It found that the Applicant posed a substantial risk of reoffending, and that any repetition of his conduct would cause unacceptable harm to the community, particularly given its potentially violent nature. While acknowledging the Applicant's four minor children, the Tribunal noted that his two eldest daughters had resided with their maternal grandparents since 2004 and that the Applicant had limited contact with them. The Tribunal was not satisfied that the Applicant was a low risk of reoffending and concluded that the protection of the Australian community weighed heavily against revoking the visa cancellation.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The National Police Certificate provides some detail of the offences committed by the Applicant. Additionally, in the G documents the reasons for sentence of His Honour Judge Cullity in the County Court of Victoria on 13 March 1996, His Honour Judge Barnett in the County Court of Victoria on 24 June 2004, and Justice Hollingworth in the Supreme Court of Victoria on 20 May 2014 are included. The reasons of those sentencing judges concern the more serious offending on the part of the Applicant. More detailed reference to those reasons will be made later.THE PRIMARY CONSIDERATIONS Paragraph 13(2) of the Direction with respect to revocation requests prescribes the Primary considerations to be taken into account by the decision maker. It states:(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations: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.PROTECTION OF THE AUSTRALIAN COMMUNITY Clause 13.1(1) of the Direction requires the Tribunal, when considering the protection of the Australian community, to acknowledge the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Paragraph 13.1(2) further states:(2) Decision-makers should also give consideration to:(a)The nature and seriousness of the non-citizen’s conduct to date; and(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.Nature and seriousness of the Applicant’s conduct Clause 13.1.1 of the Direction relevantly provides that:(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;c) The sentence imposed by the courts for a crime or crimes;d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;e) The cumulative effect of repeated offending;…g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour). The Tribunal finds, on all the evidence available to it, that the Applicant’s offending is very serious within the definition contained in Clause 13.1.1 of the Direction.