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Administrative Appeals Tribunal of Australia |
Last Updated: 3 June 2021
Nguyen and Minister for Immigration, Citizenship, Migrant Services and
Multicultural Affairs (Migration) [2021] AATA 1578 (3 June 2021)
File Number(s): 2021/1503
Re: Ngoc Nhi Nguyen
APPLICANT
And Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal: L M Gallagher,
Member
Date: 3 June 2021
Place: Perth
The Reviewable Decision, being the decision of the Delegate, dated 11 March 2021, to refuse the grant of a Bridging E (Class WE) visa to the Applicant pursuant to section 501(1) of the Migration Act is affirmed.
................[Sgd].....................................................
L M Gallagher, Member
CATCHWORDS
MIGRATION – decision of delegate of Minister to refuse Bridging E visa – character test – criminal record – criminal damage – family violence – Direction No. 90 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – extent of impediments if returned to Vietnam – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43
Migration Act 1958 (Cth) – ss 116(1)(g), 499(1), 499(2A), 500(6B), 500(6J), 500(6L), 500(1)(b), 501(1), 501(6), 501(6)(a), 501(6)(d)(i), 501G
Migration Regulations 1994 (Cth) – reg 2.43
CASES
Bread Manufacturers of NSW v Evans [1981] HCA 69
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Chandra and Minister for Home Affairs [2019] AATA 4894
CPCF v Minister for Immigration and Border Protection [2015] HCA 1; [2015] 255 CLR 514
CZCV and Minister for Home Affairs [2019] AATA 91
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
KLLV and Minister for Immigration and Border Protection [2016] AATA 869
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445
Meyrick v Minister for Home Affairs [2020] FCA 677
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Home Affairs v Stowers [2020] FCA 407
Nigro v Secretary to the Department of Justice [2013] VSCA 213
NTTH and Minister Immigration, Citizenship, Migrant Services and
Multicultural Affairs 
[2021] AATA 1143 
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Sadiq and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 80
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424
WAD230/2014 v Minister for Immigration and Border Protection [2015] FCA 705; (2015) 148 ALD 117
Wightman and Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
YNQY v Minister for Immigration & Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation Under s501 and Revocation of a Mandatory Cancellation of a Visa Under s501CA (20 December 2018)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 90: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (08 March 2021) – paras 2, 3, 4(1), 5.1, 5.1(2), 5.1(3), 5.1(4), 5.2, 5.2(4), 6, 7, 8, 8(1), 8.1(1), 8.1(2), 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(b)(i), 8.1.1(1)(b)(ii), 8.1.1(1)(b)(iv), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.(2)(a), 8.1.(2)(b), 8.2, 8.2(2)(b), 8.2(3)(a), 8.2(3)(b), 8.2(3)(c,) 8.3, 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(g), 8.4, 8.4(1), 8.4(2), 8.4(3), 8.4(4), 9, 9.1, 9.1(b), 9.1(c), 9.1(d), 9.2, 9.3, 9.4, 9.4.1, 9.4.2
REASONS FOR DECISION
L M Gallagher, Member
3 June
2021
INTRODUCTION
BACKGROUND FACTS
Other visa applications and proceedings
Applicant’s offending
for which he was sentenced to a 15-month Intensive Supervision Order.[12]
...
On the night of the incident, the accused was staying at the victim's address, and they were sharing a common bed.
While the victim was asleep, the accused assessed the victim's phone and viewed text messages and intimate photos of the victim and her new partner.
The accused became angry and woke the victim, asking questions about her new partner, becoming progressively enraged as he did.
The victim sat up in bed and the accused reached out and grabbed her around the neck with his left hand and slapped her multiple times to the left-hand side of the face while yelling "I'm going to kill you".
The victim's cousin, who was also present came into the bedroom and the accused walked out. The victim's cousin locked the door behind him.
The accused returned and yelled "if you don't open the door, I'm going to kill you both".
The accused went to the kitchen and grabbed a bread knife and a kitchen knife and began cutting into the door with both knives. The victim could see the ends of the knives penetrating the door, when he made a big enough hole he reached through and opened door [sic].
The accused entered the bedroom and held one of the knives to the victim's throat, stating "This [sic] might be my baby, so I will not kill you this time, But I will kill you slowly".
The accused lowered the knife and began repeatedly slapping the victim before sitting on the floor and yelling at the victim.
The accused eventually left the room and called a relative of the victim, stating "I'm going to kill her".
The victim's relative called Police who attended a short time later and arrested the accused at the] scene.
The accused was conveyed to Mirrabooka Police Station, He took part in an interview and he made full admissions to the offence.
As a result of the incident, the victim suffered swelling and contusions to both sides of her face and around her neck. During the incident the victim was terrified and afraid of her life.
Present proceedings
ISSUES
THE HEARING AND THE MATERIAL BEFORE THE TRIBUNAL
(a) Mr Rosario Antonio Caruso (Applicant’s employer); and
(b) Mrs Sue Caruso (Applicant’s employer’s wife).
(c) Applicant's Statement of Facts, Issues and Contentions (SFIC) dated 22/04/2021 (A1);
(d) Statutory Declaration of Ngoc Nhi Nguyen dated 14 April 2021 (A2);
(e) Report by Dr Phil Watts (Psychologist) dated 21 November 2020 (A3);
(f) Updated report Dr Phil Watts dated 23 March 2021 (A4);
(g) Report by Mr Jeffrey Cummins (Psychologist) dated 13 April 2021 (A5);
(h) Applicant's written submissions dated 20 April 2021 (A6);
(i) Letters of instruction to Dr Watts dated 29 October 2020[27] and 16 March 2021 (A7);
(j) A 452-page set of “Section 501 – G documents” numbered G1 to G46 (R1);
(k) A 130-page Tender Bundle (R2); and
(l) Respondent's SFIC dated 04/05/2021 (R3).
LEGISLATIVE FRAMEWORK
Refusal of a visa under s 501(1) of the Migration Act
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
The character test
(6) For the purposes of this section, a person does not pass the character test if:
...
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia;
...
(Original emphasis.)
Direction No. 90
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
(2) Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. ... Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
(1) Australia has a sovereign right to
determine whether non-citizens who are of character concern are allowed to enter
and/or remain
in Australia. Being able to come to or remain in Australia is a
privilege Australia confers on
non-citizens in the expectation that
they are, and have been, law-abiding,
will respect important
institutions, such as Australia’s law enforcement framework, and will not
cause or threaten harm to individuals
or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian Community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by any other non-citizens who have been participating in, and contributing to the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(4) Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia; and
(4) expectations of the Australian community.
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
EVIDENCE
The Applicant
(a) He is remorseful for his offending and recognises he has failed to fulfil his duty as a husband.[32]
(b) He is determined to redeem himself for his daughter.[33] He and his wife are his daughter’s only family in Australia.[34] He does not wish for his daughter to live in Vietnam.[35] If he were to leave Australia, his daughter will have no form of support,[36] his parents and parents-in-law being unable to assist financially[37] and he would worry that he would not be present in his daughter’s life or be able to love and support her.[38] He understands his wife and daughter have returned to Australia (from Vietnam).[39]
(c) He would trade anything to see his daughter in person. He chokes up when he sees his daughter on video calls. He yearns for the opportunity to hold his daughter, play with her, hear her say I love you” and take her to her first day of kindergarten.[40]
(d) At the time of his offending, he did not have the necessary understanding of the consequences that his “one-time wrongdoing” would have on himself, his family and the community.[41]
(e) His parents did not support his marriage[42] and withdrew all means of support when and his wife were married.[43]
(f) He ceased his studies to work in order to support himself and his wife and to save for a deposit on a house. He has lost funds he had saved for a house deposit on a sale that did not proceed and on legal fees.[44]
(g) The accumulating stress and pressure crept up on him and dampened his self-control without him noticing. Without family support he felt lost, quickly succumbing to depression, his temper deteriorating from there.[45]
(h) While he is not allowed to contact his wife, he sends money to her sister to give to his wife to help take care of their daughter.[46]
Now I think I did make the mistake about my anger so I try to calm down and control my anger, you know, try not to make the same mistake again.
...
I realise I make the mistake to my wife so now I repay the mistake by loving her more and caring for her more.
(Emphasis added).
At the time (indistinct words) emotional way and physical way and I did not put respect to them but I did not realise until I attended the course[57] I learnt about I should not do so.
(a) his siblings lived in the US but maintained houses in Vietnam;[67] then
(b) his siblings were born in Vietnam, rather than residing there in 2018;[68] then
(c) his sister and brother had not attained their US green card at that time, therefore he indicated they still resided in Vietnam;[69] then
(d) he was confused at the time and did not have a clear understanding about the form;[70] and finally
(e) he remembered signing the form and declaring he understood the information he supplied and that it was correct.[71]
INTERPRETER: I never asked to go overseas to reside with my brother. I only asked when I go on holiday to visit I will stay with my brother.
MS TATTERSALL: Well, the records indicate that when you were seeking approval to go overseas you said when you went overseas you would stay with your brother. So do you accept that you told the Department of Justice that?
INTERPRETER: Yes, I agree, but I mean it for holiday so I just stay with my brother, this doesn't mean I want to reside with him forever.
MS TATTERSALL: So does that mean you now accept that one of your brothers lives in Vietnam?
INTERPRETER: Yes, currently this brother he is back in Vietnam so he could not back to US for studying.
My sibling they went back to Vietnam for the visit but they did not say clearly they go back for good or just for a visit...
When it was put to the Applicant that more occurred on the evening of 20 May 2019 than he described to the Tribunal,[87] the Applicant agreed[88] and added:[89]
INTERPRETER: Afterward so I carry her, I put her in bed. I took some water for her. I was so scared so I rang my sister-in-law and then I asked my sister-in-law (indistinct) and asked my sister-in-law ring to the police.
MS TATTERSALL: So did you do anything else to your wife?
INTERPRETER: Yes, I used a knife to open the door and, yes, I yell, I slap and (indistinct) to my wife, but I have the knife accidentally the knife cut into my hand, so when the police arrived and then I just follow what the police, you know, ask me to do.
INTERPRETER: At beginning you asked just a single question so I give you the single answer. I did not tell in detail from beginning to end what happened.
MS TATTERSALL: Well, you’re still not telling beginning to end what happened, are you?
INTERPRETER: Yes, I tell the whole thing.
MS TATTERSALL: Well, the records from the police say that you first became angry with your wife and asked her questions about (indistinct) new partner, and became enraged. If you want to put each of these propositions as I go, Mr Interpreter. You then grabbed her around the neck and slapped her multiple times while yelling, ‘I’m going to kill you.’ Your wife’s cousin then entered the bedroom and you walked out. You then yelled, ‘If you don’t open the door I’m going to kill you both.’ You then grabbed a bread knife and a kitchen knife and began cutting into the door with both of the knives. You then reached through the door and opened it, held one of the knives to your wife’s throat and said, ‘This might be my baby so I’m not going to kill you this time, but I will kill you slowly.’ You then lowered the knife and began slapping her repeatedly.
...
You then left the room and called a relative of your wife stating, ‘I’m going to kill her.’ And it was that relative that called the police. So that’s quite a lot more than what you described to the tribunal, isn’t it?
INTERPRETER: So could you please give the - ask the question in clear way.
MEMBER: Ms Tattersall has read from the police record about the facts the police have of what occurred in May 2019. Ms Tattersall has put it to Mr Nguyen that this is a lot more information that Mr Nguyen has given the tribunal about what happened. Does Mr Nguyen agree that, yes, this is a lot more information or, no, it is not more information.
INTERPRETER: Yes, that’s right.
MS TATTERSALL: And the police records also don’t support your assertion that you called a relative to call the police and ambulance, do they?
...
INTERPRETER: I do have the witness about I ring to the relative, so (indistinct) can clarify with this witness.
MS TATTERSALL: Well, you’ll agree no witness has clarified that information and the police records specifically describe that a caller was ringing from an Uber. She said her brother-in-law just rang her and told her he killed her sister. And from there she called the police.
...
MS TATTERSALL: I was referring to page - sorry, Member - I was referring to page 37. And so what I put to the applicant was firstly that he has provided no evidence - independent evidence - to cavel [sic] with the police records. And [secondly] the police records clearly state that a woman called from an Uber, telling the police that the applicant had rung her and told her that he’d killed her sister.[92]... Did he have anything that he wanted to say in relation to what I just put to him?
INTERPRETER: The different because at that night - that time - so the person provide a statement was in shock. But two day later, so everything - I mean the feeling is calm down, them want to re-provide statement, but the police refused to take the statement again. So that is the difference.
MS TATTERSALL: So are you saying that your sister-in-law gave an incorrect statement to police originally?
INTERPRETER: I don’t mean it’s not correct, but I mean my sister-in-law at that time she use broken English, so maybe some misunderstood between her and police, so, you know, that’s why different in the statement.
MS TATTERSALL: And that’s not the first time that police have been called in relation to an incident with you and your wife, is it?
INTERPRETER: This was the big serious one happened, yes. But before that, so during the time we together so there a few minor thing happen as well.
...
MS TATTERSALL: ...What minor things happened?
INTERPRETER: In 2018 - so, we were buying a property. Then (indistinct) so didn’t want to buy so we have argument. Actually no violent but my wife she rang police, police come and then (indistinct) out and then police say it’s better we separate for a while. So I did move out, you know, yes. Three days.
MS TATTERSALL: Well the 72-hour police order was issued, wasn’t it?
INTERPRETER: The suggestion is 72 hour not being together, so I voluntary, you know, yes, to go out.
MS TATTERSALL: Well, it wasn’t voluntary. It was something that was imposed on you because a formal order was issued.
INTERPRETER: At that time so no one (indistinct) the argument, but just because we need to be separate, so, yes, I’m willing to do so.
MEMBER: So, Mr Nguyen - sorry to interrupt, Ms Tattersall - Mr Nguyen, just before did you say - because you are talking about an argument now. So, before did you say that there was nothing violent? Or did I hear that incorrectly?
INTERPRETER: No violence.
MEMBER: Mr Nguyen, you’re saying it was just a verbal argument in 2018.
INTERPRETER: That’s right.
MEMBER: So the police record that says that your wife says that you got into her face and that you grabbed her by the arms and then you threw her to the ground - and so what do you say about that being on the police record?
INTERPRETER: That’s not true.
...
MEMBER: If you could interpret to Mr Nguyen, the record says that his wife punched him? And that his wife kicked him. And that she refused to let him leave the address. Is Mr Nguyen saying that that is incorrect as well?
...
INTERPRETER: Yes.
...
MS TATTERSALL: ... Do you remember telling Dr Watts that you’d never been in trouble with the police before?
INTERPRETER: Yes. I remember I did say, at that time, I did not, you know, hurting anyone.
...
MS TATTERSALL: Did you tell Dr Watts that an allegation had previously been made that you had hurt your wife?
INTERPRETER: Before never, just only one time.
MS TATTERSALL: Did you tell Dr Watts about the 72-hour police order?
INTERPRETER: The truth, I don’t quite remember.
MS TATTERSALL: Do you remember whether you told Mr Cummins about the 72-hour police order?
INTERPRETER: I don’t remember, yes, about, but I did mention about this. But as long as I remember it, I don’t - I did not hurt anyone.
MEMBER: Doesn’t Mr Nguyen say he’s told them all of the things that were, for example, recorded on the police report?
INTERPRETER: Yes, that’s right.
MEMBER: So even though Mr Nguyen didn’t tell the tribunal today, he says that he’s told his friends earlier in time?
INTERPRETER: Not recently. Not today but I stay with my friend one and a half years ago.
MEMBER: Okay, but I just want to clarify, Mr Nguyen, whether he says that he’s told them all the things. So all the things that we looked at in the police report or just some of the things like the things he told the psychologist.
INTERPRETER: Yes, the whole thing.
MS TATTERSALL: ... none of your evidence previously provided to the tribunal refers to any ongoing counselling with Dr Sang?
INTERPRETER: No, actually I saw Mr Sang just once and then he say now is my emotion is [s]table, yeah, but I contact to the Vietnamese community to two time but I still contacting, you know, the Vietnamese community in case if I need some counsellor.
MS TATTERSALL: Well, Dr Sang didn't say that you were stable. He actually said that you and your wife required further counselling?[108]
INTERPRETER: I don't know but saw Dr Sang and he no meant - I don't know what he put in the report but he no mentioning about ask me, you know, to come back to see him.
MS TATTERSALL: And so when you first made the request you said you wanted to leave because you wanted to see your family and your wife?
INTERPRETER: No, at that time I am going to my wife gave birth so I want to see my child, yes, not - because want to get close to my wife.
MS TATTERSALL: Well, the records from the Department of Justice say that you requested their permission to travel because you wanted to spend time with your family and wife who was due to deliver your baby.
INTERPRETER: Actually at that time I would like to go back to see my family then I want to see the baby - my child, yes, but I did not have interpreter therefore they not clear what I meant.
MS TATTERSALL: Okay, well the records state that the first time you raised the matter you asked to, as I said, spend time with your family and your wife. When you were told that that wouldn't be permitted, you then stated that you wanted to go because your mother was ill.
INTERPRETER: Beginning I did inform about my mother, she was not well, she very ill, yes, and but this was reject - this was refused, then I ask again I say okay I'm not allowed to see my wife and my child but I would like to go then to see my family, yes, to see my mother.
MS TATTERSALL: So you changed the reason for the request because you thought you would have a better outcome, is that right?
INTERPRETER: No, that's not true, yes, the two time is the same request, I want to see my parents the first time and the second time also I want to see my parents.
INTERPRETER: At that time I did not understand much, I thought by law so I have no proof, this with me and my step mother but I love her but if I put her name down and then if ask for the proof I have nothing to prove of the relationship.
INTEPRETER: ... I mean it easy to get anger - me to get upset, thought upsetting but to keep inside and the way I behave I talk to people still calmly. I don't explode, you know, my anger to people.
MEMBER: ... So when Mr Nguyen had his assessment at Hakia [sic] (indistinct) – so that was on 20 May 2019, he indicated that he had partner support. Was that correct?
INTERPRETER: Yes, that’s right.
MEMBER: All right. So just to be clear, Mr Nguyen is referring to his wife then? He just at that time had come from a situation where he’d physically abused and threatened her life. And he’s still satisfied he had her support at that time? Yes or no?
INTERPRETER: Yes.
MEMBER: ...So he said that he’s always been sure that the child was his.
...
MEMBER: Does Mr Nguyen ever recall telling anyone after that that he didn’t – that he wasn’t 100 per cent certain that the child was his.
INTERPRETER: I never tell friends about that.
MEMBER: All right. Well it seems that on 18 July 2019 there’s a record that he said:[121]
Victim is currently pregnant with his child although said 70 per cent chance of it being his.
So in July 2019 would he agree then that he was still unsure in his mind if the child was his?
INTERPRETER: I don’t remember but maybe I thought so but after seeing the counsellor and later on I realised what I thought was wrong.
MEMBER: This was recorded to have been said in July 2019 and we’ve established – the evidence shows that there was no counselling undertaken until August 2020.
...
INTERPRETER: Later on, yes, I believe that he’s my child so therefore I send the money, you know, to support the child.
MEMBER: Well 11 days later on 29 July, Mr Nguyen is now saying that:[122]
Partner pregnant with his child.
So 11 days later he’s changed his mind. Can he remember what changed his mind?
INTERPRETER: On the 10th of July, so I attend to the court, yes, and then at the court – so I was told about, you know, the law here. So from attending the court – so I realised I was wrong so therefore I changed, you know, my thought about the child. Instead not my child, you know, yes, confirm its my child.
MEMBER: I’m just not clear on that answer. So the question was 11 days after he said the child was 70 per cent chance of being his. He’s satisfied that it is his. So is it that he went – did someone else tell him – I’m just not clear on that last answer.
INTERPRETER: So day after day I tried to improve better so I think about what happened. Until the 29th and then, yes, realised that is my child.
MEMBER: So Mr Nguyen is saying he thought about what happened and that’s what made him change his mind. When he says what happened, what’s he referring to there?
WITNESS: Because I just say - - -
INTERPRETER: I changed my thought just because I realise, yes, that is my child and then I feel, you know, I want to live with my child and then I want to love my child. I want to be, you know, (indistinct) my child.
(Emphasis added).
MEMBER: So I just want to have it straight that Mr Nguyen says that his mother passed away. His biological [mother] passed away.
INTERPRETER: Yes.
MEMBER: Does he remember when? The date?
INTERPRETER: I don’t quite remember but some time in 2019.
MEMBER: Can Mr Nguyen say if it was the end of 2019, the middle, a month?
INTERPRETER: In the last half of 2019. From June until the end of 2019.
MEMBER: Is that the best guess Mr Nguyen can give. He can’t remember even the month that his mother passed away?
INTERPRETER: (Indistinct). So I just want to remember the bonding. Good memory between me and my mother so therefore I didn’t check when.
MEMBER: All right. Because it seems when Mr Nguyen applied to leave the state he refers to his mother being terminally ill. So does he accept she was still alive in November 2019?
INTERPRETER: That’s why I said from the second half but more like towards the end of 2019.
MEMBER: So is Mr Nguyen saying that this record has triggered his memory? That in November 2019 his mother was still alive?
INTERPRETER: So my mum, she was in the hospital. Her condition getting worse but the family did not want to inform me. So maybe about worry they - - -
MEMBER: Mr Nguyen, that’s not answering the question so I’ll ask another one. Does he accept that when he applied to leave the state he indicated that his mother was still alive?
INTERPRETER: Yes.
...
MEMBER: So is he then saying – is Mr Nguyen then saying that he does recall that she was alive even though she was very unwell at the end of November in 2019?
INTERPRETER: Yes.
MEMBER: Does he recall as well that that application was unsuccessful? So he wasn’t allowed to leave?
INTERPRETER: Yes.
MEMBER: Then does he remember about two months later – so about – let me have a look – not long after his daughter was born does he remember saying that he no longer wanted to be in a relationship with his wife? That was on 20 January 2020.
INTERPRETER: Yes.
MEMBER: Does he recall that at this time he also said he learned about his daughter’s birth from his mother?
INTERPRETER: My feeling is just because I separated from my wife for a while so therefore there is no contact so maybe the connection will stop.
MEMBER: Well it says here that Mr Nguyen learned about the birth of his daughter from his mother. Is that correct?
INTERPRETER: No, not from my wife. From my mother-in-law and my sister-in-law, brother-in-law but not from my wife about the birth of my daughter.
MEMBER: No, it says that his mother informed him. Is that correct?
INTERPRETER: Mother-in-law, not my mother.
MEMBER: Mr Nguyen says he doesn’t know the exact date that his mother passed away because his family doesn’t tell that sort of information. Does he recall telling his case officer about his mother’s passing on a particular day?
INTERPRETER: I got call from my family to inform me about my mother pass away and then I have – I went to see them - - -
MEMBER: So Mr Nguyen is now saying his family did tell him because before he just said that his family didn’t tell him when.
INTERPRETER: I did not say my family my did not inform me about my mother pass away. I only say I just want to remember the good bonding, the good memory between me and my mother.
MEMBER: I understand incorrectly then because I heard that his family doesn’t tell these sorts of things because I remember the gesture you made with your hands. If you could tell him.
INTERPRETER: When my mother was sick my family did inform me so when my mother pass away the family did inform me again. They did not hide from me.
MEMBER: Okay. So speaking of being informed, Mr Nguyen said just now that his mother-in-law informed him when his daughter was born but in the record it says it was his father who contacted him.[124] So is that incorrect? Is that record incorrect?
INTERPRETER: My mother-in-law informed my father, also informed me about my wife gave birth.
MEMBER: So that’s the third time the story has changed so I’ll just be sure. First Mr Nguyen said that his mother told him and then – that’s what’s in the record – and then he’s corrected that to say it was his mother-in-law and then now that the record has been put to him to say that it was his father who contacted him, he wants the tribunal to accept that his mother-in-law told his father-in-law who then told him. Is that correct?
INTERPRETER: The truth is my wife gave birth (indistinct) but on her side. On her family’s side. Yes. So therefore my mother-in-law ring back to us and know about my wife gave birth so my mother-in-law tried to inform to my mother but my mother just pass away so my father, he answer the phone. So by the way is my mother-in-law inform my father about my wife gave birth.
MEMBER: ... So Mr Nguyen’s daughter was born on 26 December, is that correct, 2019?
INTERPRETER: Yes, that’s right.
MEMBER: And then the records show, even if Mr Nguyen doesn’t remember that his mother passed away around about 29 November 2019.[125] So that’s about a month before.
....
INTERPRETER: 29 November 2019.
MEMBER: So on that basis and on Mr Nguyen’s evidence, his mother-in-law didn’t know for one month that his mother was dead.
INTERPRETER: Actually to family, they live apart different town and also me and my wife, we in relationship but the family say they not happy. So therefore they don’t get contact each other. They don’t have the bond.
MEMBER: Mr Nguyen, if you could give a concise answer. In February 2020 you indicated you didn’t want to be in a relationship with your wife.[127] When did you change your mind? If you could give a month or a period of time or something that helps you remember when.
INTERPRETER: I thought of my daughter so day after day my daughter getting bigger. Yes, so I realise I still love my wife. So therefore, you know, I change.
MEMBER: ... The restraining order ... expires on 11 June.[128] ...You say you’ve not had any contact with your wife because you’re not permitted to. You say your family can’t really communicate messages very quickly because they live far apart. ... There’s no evidence there of any indication about your wife’s plans. So [how] does the tribunal know that your wife shares your wish to reunite?
INTERPRETER: My wife talk to my sister-in-law about she want, you know, back reunion. So my sister-in-law can clarify that.
MEMBER: The sister-in-law is not giving evidence today and neither is your wife. Does Mr Nguyen accept there is no evidence before the tribunal about his wife’s plans?
INTERPRETER: I did provide my sister-in-law’s phone number. I don’t know how come she is not here, yes – put it to the tribunal.
Mr Caruso
(a) He was not 100% sure and he did not get into that conversation with the Applicant.[132]
(b) He heard a knife was involved,[133] in that the Applicant was sort of whacking it on the door on which the Applicant’s wife was in the room on the other side.[134]
(c) He did not know too much about what was said by the Applicant and his wife during the incident and didn’t ask the Applicant about this.[135]
Mrs Caruso
DOES THE APPLICANT PASS THE CHARACTER TEST?
Applicant’s submissions regarding the “character test”
(a) The Applicant had no criminal record prior to his conviction on 10 July 2019[153] and he has no offended since.[154]
(b) The Tribunal found, in an unrelated matter, that the Applicant had not provided false and/or misleading information.[155]
(c) The Applicant’s offending conduct on 15 May 2019 was, according to Dr Watts, a one-off incident.[156] Dr Watts was also of the view that the Applicant appeared, to some degree, to have grown up in the process of what had occurred[157]
(d) At the time of his offending, the Applicant lacked family support,[158] was not emotionally mature, had to endure life obstacles such as providing financial support to his wife with the knowledge that she had been unfaithful and did not know how to manage stress. [159] This led the Applicant to lose his self-control and triggered the offending conduct.[160]
(e) The Applicant has been able to address his anger management issues.[161]
(f) The Applicant is extremely remorseful for his actions, has acknowledged the seriousness of his actions and the pain that he has caused.[162] The Applicant’s remorse is demonstrated in his statutory declaration and the reports by Dr Watts[163] and Mr Cummins and by the fact he fully complied with the police and pleaded guilty at the earliest opportunity.[164]
(g) His character references attest to his “good character” and “very calm demeanour.”[165]
(h) The prosecuting officer did not ask for a term of imprisonment at sentencing, “thus not showing a concern” for the Applicant being released into the community.[166]
(i) The Applicant has satisfactorily completed written assessments following mandatory psychological and domestic violence counselling and has learned how to manage his anger and emotions and relieve stress.[167]
(j) Mr Cummins’ comment that the Applicant’s risk factor has transitioned from moderate to low indicated that he has progressed and rehabilitated.[168]
(k) The Applicant’s in-laws have forgiven him for his “rough treatment” towards his wife, which is the reason why he now he can now see his daughter via video-conferencing.[169]
Respondent’s submissions regarding the “character test”
(a) The sentencing judge described the offending as having occurred when the Applicant was in the midst of an “uncontrollable rage.”[174] If the Applicant’s mental state was such that he was unable to control his rage, then it should concern the Tribunal that there is no independent evidence of the Applicant having undertaken any targeted counselling or therapy to address what would appear to be an anger management issue, other than the Applicant’s self-directed completion of “worksheets.”[175] The Applicant’s representative asked the Respondent’s delegate to infer that courses to that effect must have been undertaken because there is no evidence of the intensive supervision order having been breached,[176] however the Applicant must know whether he has undertaken such courses.[177] He does not mention any courses in his recent statutory declaration, and instead focuses on the benefit he derived from gym, yoga and meditation.[178] The absence of meaningful evidence that the Applicant has undertaken anger management treatment and benefited from it should cause the Tribunal to be concerned when assessing whether he presents a risk of any further criminal conduct.
(b) The Applicant ceased attending group family violence sessions because of his employment commitments and because he found it difficult to keep up because of his lack of proficiency in the English language.[179] The report prepared in February 2020, for the purpose of determining whether the Applicant was suitable for the domestic violence program he was being assessed for, reflects poorly upon the Applicant’s acceptance of responsibility for his offending.[180] This appears to be the report the Applicant explained in his SFIC at [28] that he was “eager” to receive.[181] The summonsed records then refer to attempts being made to secure one-on-one family violence sessions for the Applicant, but there is no record that any such sessions occurred for a considerable period of time.
(c) The records suggest that the onus was placed on the Applicant to source a suitable practitioner but he does not appear to have done so until August 2020, shortly before the end of the supervision order.[182] The Applicant appears to have seen this practitioner only once,[183] and the summary of the Applicant’s offending that was given to the practitioner (“an altercation culminating in pushing and shoving”) is very different to the agreed facts upon which the Applicant was sentenced.[184] The psychologist recommended that the Applicant and his wife “(separately and jointly) seek further counselling to help resolve any family conflicts and improve marital relationships.”[185] It is unclear whether this recommendation has been taken up by the Applicant.[186] It does not appear to have been done, given the Applicant’s wife has only recently returned to Australia and the Applicant indicated he does not know his wife’s current location.[187]
(d) The Applicant has not always told the truth about is offending and he has engaged in victim-blaming:
(i) In July 2019, the Applicant told a WA Department of Justice worker that on the night of the offending “he broke through the door with a knife as his wife was threatening to kill herself.”[188] There is no mention of any suicide threat by the wife in the agreed facts upon which the Applicant was sentenced.
(ii) The Applicant was described in November 2019 by WA Corrective Services as having a “poor attitude to his offending” and as “feel[ing that] the victim is responsible for his actions” – the Applicant “appears to minimise current offending, blaming victim for being crazy” [189] He was also quoted by WA Corrective Services as claiming that “in his home country his wife would be imprisoned for breaking the marriage with infidelity.”[190]
(e) There is also evidence from the Applicant’s supporters (which has presumably been provided on the Applicant’s instructions) which engaged in victim blaming with respect to the Applicant’s offending. For example, one of the Applicant’s character references offered the gratuitous opinions that the Applicant’s wife appeared to be “mentally unstable,” “very controlling,” “never able to hold down a job,” “jealous,” “not friendly, “cold,” “demanding,” “overbearing,” “not responsive,” and not “interested in making conversations.”[191]
(f) The Applicant has had limited opportunity to test his rehabilitation given that he had spent a considerable period of time since the supervision order ended in immigration detention.
(g) The Applicant’s status as a temporary visa holder with a permanent visa application extant did not deter him from committing serious offences in Australia.
(h) The Applicant was prescribed drugs for mental health issues after the offending, but he ceased taking the prescription after six months.[192] It is unclear whether this decision reflected medical advice.[193]
(i) There is real uncertainty as to whether the relationship between the Applicant and his wife will continue:
(iii) It is notable there is no evidence at all from the Applicant’s wife despite her now having returned to Australia.
(iv) In January 2020, the Applicant said, “his attitude has shifted with regard to his ex-partner and he now wants to be in [a] relationship with her because too much has happened between them.”[194]
(v) Although the Applicant suggests that he has not talked to his wife since the offending by reason of the family violence order, he recently told Dr Watts that he expects the relationship will continue.[195] The basis of this expectation, in light of the total lack of communication between the Applicant and his wife in well over a year, is unclear.
In any event, a continuation of the relationship can be seen to present a risk given the Applicant’s apparent attribution of blame for the offending to his wife by reason of her behaviour and mental health issues, and where the treatment needs identified by the psychologist for both the Applicant and his wife appear to be unmet.
(j) Contrary to the Applicant’s claims regarding his employment prospects if he were permitted to remain in Australia,[196] it is difficult to see the Applicant’s employment prospects upon release from detention as serving as a protective factor for him. He was employed when he committed his offences.
(k) The Applicant appears to have lied about his (biological) mother’s death with a view to obtaining permission to leave Australia. First, he claimed that he needed to travel because his mother was dying from cancer.[197] He subsequently withdrew that request because his mother had died.[198] This exchange occurred in a later conversation between the Applicant and a Department of Justice employee:[199]
He said his ex partners [sic] mother in law contacted his mother who informed him about the birth. CCO queried this given he advised his mother had passed away last years [sic]. Mr Nguyen was quick to correct himself claiming it was his Dad who contacted him and denied he had been dishonest about his mother’s death.
However, in his SFIC and his written submission, the Applicant’s mother is listed as alive.[200] The same claim is made in his statutory declaration.[201] This apparent propensity to lie to attain a desired outcome should cause the Tribunal to be concerned as to the veracity of his rehabilitation.
(l) The Applicant’s expert evidence does not assist him, as:
(i) the version of the offending the Applicant gave to Dr Watts is vastly different to the agreed statement of facts upon which he was sentenced (“he lost control and slapped his wife”).[202] Dr Watts does not appear to have been given the sentencing remarks of the summonsed documents concerning the other family violence in the relationship.[203]
(ii) Dr Watts was concerned about the “defensive profile” given by the Applicant in his interview, wherein the Applicant “either may not have insight into or is defensive about their psychological functioning.”[204]
(iii) The summonsed records (discussed below with respect to the second primary consideration) confirm that, contrary to Dr Watts’ opinion, the Applicant’s offending was in fact not a “one off” in terms of family violence by the Applicant.[205]
(iv) Dr Watts’ second report appears to be identical to the first report. It too does not appear to have been prepared with reference to key documents such as the agreed statement of facts upon which the Applicant was sentenced.[206]
(v) It is not possible to reconcile what the Applicant told Mr Cummins about what Dr Sang said about his treatment needs with the Department of Justice’s records about Dr Sang’s treatment recommendations for the Applicant.[207] The Tribunal should infer that the Applicant knowingly misrepresented to Mr Cummins what Dr Sang recommended to him by way of treatment, with a view to obtaining a favourable report from Mr Cummins.
Tribunal’s findings regarding the “character test”
(a) the inconsistencies between accounts of events recorded by the police, given by the Applicant to the psychologists, his general practitioner and his contact officer regarding
and the Applicant’s inability to satisfactorily reconcile or explain these matters at hearing;
(b) the lack of any formal counselling undertaken by the Applicant and his belief that it was not required, despite his having violently offended in the midst of an “uncontrollable rage”;
(c) the undercurrent of victim blaming that is woven throughout the Applicant’s accounts of events, in relation to his own rationalisation of his criminal conduct, and throughout his character referees’ claims as to the Applicant’s good character; and
(d) stemming from (b) and (c), the Applicant’s wish to continue his relationship with his wife, where his and his wife’s treatment needs appear to be unmet, the Applicant’s belief that his treatment needs in fact have been met and he is rehabilitated and his knowledge that wife and daughter are now located in Perth,
along with the Applicant’s assertion of remorse being limited to his statements that he had made a mistake and that family violence was “quite serious,” cause the Tribunal significant concern that the risk that the Applicant would engage in criminal conduct if he were to remain in Australia is real and not fanciful or remote.
DISCRETION TO REFUSE TO GRANT THE VISA
First primary consideration: Protection of the Australian community (para 8.1 of Direction No. 90)
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
Nature and seriousness of the conduct (para 8.1.1 of Direction No. 90)
(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 the following:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(Emphasis added).
At about 3 am on Monday 20 May 2019, the accused was at [address]. The accused and the victim are husband and wife and have begun – have been in a relationship for the past three years, and lately have been estranged. Recently, the victim has begun a relationship with a new partner.
...
The victim is currently pregnant with the accused’s baby. On the night of the incident, the accused was staying at the victim’s address, and they were sharing a common bed. While the victim was asleep, the accused assessed the victim’s phone and viewed text messages and intimate photos of the victim and her new partner.
The accused became angry and woke the victim, asking questions about her new partner, becoming progressively enraged as he did. The victim sat up in bed and the accused reached out and grabber [sic] around the neck multiple times to the left -hand side of the face while yelling “I’m going to kill you.” The victim’s cousin, who was also present, came into the bedroom and the accused walked out. The victim’s cousin locked the door behind him.
The accused returned and yelled “if you don’t open the door, I’m going to kill you both.” The accused went to the kitchen and grabbed a bread knife and a kitchen knife and began cutting into the door with both knives. The victim could see the end of the knives penetrating the door, when he made a big enough hole he reached through the and opened the door. The accused entered the bedroom and held one of the knives to the victim’s throat, stating, “this might be my baby, so I will not kill you this time. But I will kill you slowly.”
The accused lowered the knife and began repeatedly slapping the victim before sitting on the floor and yelling at the victim. The accused eventually left the room and called a relative of the victim, stating “I’m going to kill her.” The victim’s relative called police who attended a short time later and arrested the accused at the scene, where he was conveyed to Mirrabooka Police Station. He took part in an interview and he made full admissions to the offence.
As a result of the incident, the victim suffered swelling and contusions to both sides of her face and around her neck. During the incident, the victim was terrified and afraid of her life...
...I accept that your behaviour on 20 May was entirely out of character. You’re 27 years of age and there is no suggestion whatsoever that you have let your anger get the better of you in the past.
On this occasion, clearly you did and it was in a very explosive way. For [the victim], this must have felt like a lifetime, your behaviour towards her. You knew she was pregnant, you assaulted her, someone came to protect her. Your smashed your way into the room and threatened to kill her with that knife. But the prosecution is not asking for jail today. Quite frankly, if the circumstances were even slightly different, you would be going to jail today for a very long time.
Quite frankly, I don’t accept...that infidelity in a relationship should lead to this type of behaviour. Infidelity in a relationship is sad, it occurs from time to time, but quite frankly it shouldn’t lead people to lose their senses to such an extent that they put knives against their partners [sic] throats. You have spent – I think it was nearly one month in custody, in jail...
And today, you could have been looking at a much longer term of imprisonment in custody in one of those facilities. I’m going to take a step back, and it’s a long way back from term of imprisonment, and it’s for this reason and possibly solely for this reason, for this one reason, the prosecution is not urging the court to send you to jail. You will be placed on an intensive supervision order for each of these charges. It will be for – each intensive supervision order will be for a period of 15 months...
(Emphasis added).
(a) The Applicant was a person of good standing prior to 20 May 2019. The Applicant’s offending was a ‘one time’ incident, and in accordance with Magistrate Potter’s sentencing remarks, an incident that fell outside his usual character.[214]
(b) The prosecution’s request for a fine, then a community order suggests the offending was a one-off situation which was brought about by situational factors which the Applicant has now addressed.[215]
(c) Since the offending, the Applicant has been on good behaviour in the community and in immigration detention. Despite the nature and seriousness of the Applicant’s offending, Dr Watts is of the view that the Applicant is at the lowest end of the scale in terms of domestic violence offenders and Mr Cummins stated the Applicant is at the lower end of the spectrum in terms of being a risk of re-offending.[216]
(d) The Applicant has never provided false or misleading information to ang government department. The Applicant refuses to speak to his wife in fear of breaching his restraining order, which indicates he is a person who, at all material times, is compliant and respectful of Australian laws.[217]
(a) The Applicant has committed crimes of violence, which are considered by the Australian government and community to be very serious.[219]
(b) The victim of the Applicant’s offending was a woman. She was pregnant at the time of the offence. Violent offences against women are also viewed very seriously by the Australian Government and the Australian community, regardless of the sentence imposed.[220]
(c) The seriousness of the Applicant’s offending is underscored by the fact that the only reason he was not sentenced to imprisonment was that the prosecution did not ask for that to occur.[221]
(a) Paragraph 8.1.1(1)(a) – the crimes for which the Applicant has been convicted were an act of family violence, committed against a woman. The other conduct relating to the incident on 2 October 2018 was also an act of family violence, committed against a woman.
(b) Paragraph 8.1.1(1)(b) – the crimes for which the Applicant has been convicted were crimes committed against a pregnant person, who may be considered a vulnerable person.[224] The other conduct relating to the incident on 2 October 2018 and the matters addressed in [91(a)] above falls within sub-para (iii) of this consideration.
(c) Paragraphs 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1.(1)(e), 8.1.1(1)(f) and 8.1.1(1)(g) – the Tribunal has considered these sub-paras of Direction no. 90 and finds that the Applicant’s conduct and the present factual matrix does not come within their scope. No arguments were put by the parties in relation to these matters.
And certainly also in the sentencing remarks it’s also mentioned there that – and confirmed that the prosecution also initially began to ask for a fine only but was cut short by his or her Honour and the court then imposed a non-custodial sentence...
(Emphasis added).
MS TATTERSALL: ...Mr Breisch also referred in his opening statement to the prosecution originally asking the sentencing judge for a fine. And, in my submission, that’s also not correct, a correct interpretation of what occurred. And you’ll see at page 42 - - -
MEMBER: Yes.
MS TATTERSALL: - - - about halfway down the page a Ms Cumbers begins:
The prosecution would normally put forward an argument towards imprisonment.
However, then refers to the possibility for counselling or a community based order and then says:
Or if you felt a fine was. [.....]
MEMBER: Yes.
MS TATTERSALL: So and then the sentencing judge cuts Ms Cumbers off. So it’s certainly not that the prosecution was asking for that, it was merely addressing the situation should the judge think that that was appropriate which, of course, was not the case.
(Emphasis added).
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2 of Direction No. 90)
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view 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 assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359 , [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration & Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration & Border Protection (No 2) [2015] FCA 705 at [42]–[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
In BSJ16 v Minister for Immigration & Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “... there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration & Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.
Nature of the harm
[I]n a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women — children who, as in this instance, witness their mothers being abused, degraded and dehumanised — and sends a message to these children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.
Likelihood of the non-citizen engaging in further criminal or other serious conduct
(a) Magistrate Potter’s imposition of a non-custodial sentence and acknowledgement of the Applicant’s remorse suggests the Applicant has good prospects for rehabilitation.[239]
(b) There is literature that suggests rehabilitation programs can be effective in reducing recidivism.
(c) Dr Watts’ opinion that the Applicant’s offending was a one-off, his risk of re-offending was low and that he had learned and grown since that time. [240]
(d) The Applicant had behaved well whilst in immigration detention.
(e) Mr Cummins’ was of the view that the Applicant had “transitioned” from being a moderate risk at the time of his offending to a low risk at the time of interview on 13 April 2021, revealing that the Applicant has rehabilitated. The Applicant’s possibility of reoffending has (also) been assessed by Mr Cummins as “in a practical sense minimal” and Mr Cummins is of the view that Applicant does not pose any risk to the Australian community.[241]
(f) Both Dr Watts and Mr Cummins were aware of the nature of the Applicant’s offence and appraised sufficiently to make an assessment of the Applicant’s character and possibility of reoffending. Thus, the credibility of the reports is not impugned and should be given full weight. The Respondent did not request its own psychological evaluation of the Applicant.
(g) The Applicant’s risk of reoffending is also lowered to the extent of “non-existent” given there is a restraining order in place,[242] which the Applicant has complied with since the date of issue.
(h) The applicant was aged 27 at the time of the offending and since then nothing further has arisen to attract the attention of any authority.
...
The letter of instruction to Mr Cummins, so I'll just pull that out. I'll just find it, that would be helpful.
Now, yes, so that’s the email from Lam Huang [sic]. Now, that says after the convictions are listed it says:
Our client was sentenced in July 2019 on an intensive correction order. The reasons for that sentence was that the magistrate in his passing judgment was of the view that our client’s offending was out of character as this was his first offending.
Now, there’s a very fine but clear distinction I think that needs to be drawn and I'd like to draw that now. The magistrate did say that, yes, out of character but I didn't understand that as being the reason why there was an intensive correction order imposed rather than a prison sentence. Because if you look at page 43 of the G documents.... The magistrate says:
I'm going to take a step back and it’s a long way back from a term of imprisonment and it’s for this reason and possibly solely for this reason, for this one reason the prosecution is not urging the court to send you to gaol.
So it seems to me the reason for the intensive correction order was because the prosecution was not urging the court to send Mr Nguyen to gaol. So I'm sure in closing you’ll address the inconsistency. I just wanted to raise that...it’s a problem because Mr Cummins was given incorrect information...
(Emphasis added.)
MEMBER: ... Yes, so it’s the second briefing letter, it’s by email, Wednesday, May 12, 2021. I have it marked as A7, so I hope that’s correct. Where the email from your office states:
With the next session we would like to focus more on his regrets and the chance of recidivism.
So there are two reports from Dr Watts which on the face of it look quite similar. They do refer to the subsequent Zoom interview that took place with Mr Nguyen. But what I'd like you to address in the written closings, Mr Breisch, is what are the differences between those two reports that the applicant is wanting to draw the tribunal’s attention to. So the doctor’s been asked to focus more on Mr Nguyen’s regrets and the chance of recidivism. So what do you want to highlight to the tribunal in that respect that has come out of the second report.
Another thing that I'd like to be given some treatment by the applicant is it’s quite clear to see, and this is considering the fact that we’re not looking at the attachments or enclosures that were provided with the last briefing letter to Dr Watts, but Dr Watts and Mr Cummins have been provided with quite different documents. What do you want the tribunal to make of that fact, if anything? And the information that the tribunal’s already indicated in its view is incorrect about what was made of the magistrate’s comment that the – Mr Nguyen’s offending was out of character. What do you want the tribunal to make of that information?
So all of these matters the facts that different documents were provided, the kinds of documents that were provided to the doctors given the documents that are available to the tribunal and were available to those doctors at that time they were briefed. And the fact that they’ve been provided with different documents and asked to be essentially – to provide an opinion on various similar matters. So does that in the applicant’s view effect what can be drawn from those reports, what could be inferred or indeed the weight that can be given to those opinions.
...
Are those matters clear, Mr Breisch? Is there anything else you’re wondering about that we can assist with?
MR BREISCH: No, and I'm indebted to the tribunal for the (indistinct) in according us that indulgence.
Second primary consideration: Whether the conduct engaged in constituted family violence (para 8.2 of Direction No. 90)
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
(3) In considering the seriousness of the family violence engaged in by the non citizen, the following factors must be considered where relevant:
violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominately dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
MEMBER: So then I take it that you will then, of course, go onto specifically address the submissions put forward by the respondent in their statement of facts, issues and contentions because I'm rather curious as – I mean I can understand there would be a focus on risk of reoffending. But, for example, the second primary consideration family violence, which is new to Direction 90 in the sense that it’s a consideration that stands alone, I can’t really see that that’s been addressed to any detailed extent at all in the [Applicant’s] written submissions.
MR BREISCH: I appreciate that, if the Member pleases. But in the submissions it certainly has been put that it was a matter out of character and it was one single isolated incident.
MEMBER: Well, I'll take that to be a submission.
MEMBER: I'm interested in (c), 'Whether the conduct engaged in constituted family violence'; so I'm just search [sic] for the submissions on that consideration.
MR BREISCH: Yes, so am I.
MEMBER: Particularly in the present circumstances.
...
MR BREISCH: The conduct engaged in was in fact family violence, yes.
MEMBER: Well, yes, but the submissions you'd like to make in that regard?
MR BREISCH: Well, the submissions which were made in that regard was that it was a one and only isolated incident which we say was otherwise totally out of character and again we also rely upon not only the sentencing remarks of Her Honour at the sentencing hearing which was in July 2019 but also sub subsequent and consequent psychological reports, which have been prepared, which all discuss and refer to the probability - or more to the point the risk of any further offending which has been stated as being minimal.
MEMBER: I'll just check with you. You don't want to direct me to any other written submissions elsewhere or just what you've said to me just now, that's the guts of it?
MR BREISCH: That's correct, yes.
MEMBER: All right. So I'll take it that's the extent of the applicant's submission on the family violence in this matter?
MR BREISCH: Yes.
(Emphasis added).
(a) There can be seen to be a trend of increasing seriousness between the incident on 2 October 2018 and 20 May 2019.[262]
(b) The sentencing remarks suggest the Applicant’s family violence had an adverse effect on the victim:[263]
As a result of the incident, the victim suffered swelling and contusions to both sides of her face and around her neck. During the incident the victim was terrified and afraid for her life.
(c) The Tribunal cannot conclude that the Applicant is rehabilitated, or that he had made “efforts to address factors which contributed to [his] conduct,” given that the psychologist’s recommendations about counselling were not taken up by him.[264]
Third primary consideration: The best interests of minor children in Australia affected by the decision (para 8.3 of Direction No. 90)
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
The Applicant’s daughter
(a) The Applicant’s daughter is currently at a crucial age of development and desperately requires the constant care from both of her biological parents.[265]
(b) The Applicant is the sole financial provider for his daughter. If the Applicant were not to remain in Australia, his daughter would be without a father figure, a concern that would increase with her age. Children growing up without a father are more likely to participate in increased crime, increased drug abuse and increased sexual problems.[266]
(c) The Applicant has expressed a desire to have a meaningful relationship with his daughter and for both of her biological parents to play a role in her upbringing. This would also enable him to make a significant financial contribution to her upbringing.[267]
(a) The child’s mother, the Applicant’s wife, left for Vietnam in August 2019 and did not return until May 2021.[269] Whilst there is evidence of the Applicant communicating with his parents-in-law about his daughter since she was born as well as evidence of Face Time communication between the Applicant and his daughter, the Applicant does not appear to have been able to meet his daughter in person. Given the child’s age, the Tribunal can infer that this lack of contact has been unable to form a strong relationship with her father.[270]
(b) The Applicant’s involvement in the life of his child does not always appear to have been constant. On 20 January 2020 (more than a month after his daughter was born), the applicant was quoted as saying that “his daughter has been born however he doesn’t have any further information nor does he even know her name.”[271]
(c) Paragraph 8.3(4)(d) of Direction No. 90 calls upon the Tribunal to consider the likely effect that any separation from the Applicant would have on the child. The following can be notified in that regard:
(i) There is no evidence from the child’s mother at all as to whether she intends to facilitate a relationship between the Applicant and his daughter. Although the Applicant appears to be of the view that the relationship will continue, there is a family violence order in place which prevents the Applicant from contacting his wife and she has apparently not elected to have that order discharged or varied, despite her being on a different continent until very recently.[272]
(ii) The Applicant makes various submissions as to the dire consequences he believes will flow to the child is she grows up on the sole care of her mother, namely, that she will “most likely experience poverty, delinquency and school failure” and be “more likely” to participate in “increased crime, increased drug abuse and increase sexual problems.”[273] Not every child that is raised in a single parent household meets that fate. The Applicant can continue to play a parental role via electronic means f the visa is refused. The child’s mother may also re-partner. The Applicant’s submissions on this issue reveal the concerningly low regard with which he views the parenting ability of the mother of his child. This does not bode well for a cooperative co-parenting relationship in the future.
(iii) The Applicant also argues that his ability to financially provide for his daughter will be greater if he is permitted to remain in Australia because he can earn more money in this country.[274] The comparison between the Applicant’s actual income in Australia and Vietnam’s GDP per capita that has been undertaken by the Applicant’s lawyer is unhelpful,[275] because there is no evidence of the income the Applicant could earn in Vietnam, in circumstances where his family lives in a major city and he would be returning to the country with university qualifications and work experience from his time in Australia.
(d) The child’s mother fulfils a parental role in relation to the child, she has always fulfilled that role, and there is no suggestion that she does so inadequately or that she will cease to fulfil that role in the future.[276]
(e) The Applicant’s submission to the Respondent’s delegate,[277] as to the applicability of the Convention of the Rights of the Child, are misplaced because there has been no inconsistency identified between the Convention and Direction No. 90.[278]
(a) the violent conduct directed towards his wife;
(b) the low regard with which he views his wife’s parenting ability and her generally as a person who, for example, is crazy, always complains and is nonsensical;[284]and
(c) the lack of evidence of the Applicant’s or his wife’s plans for the care of their daughter, should his wife not wish to reunite with him following the expiry of the restraining order.
Fourth primary consideration: Expectations of the Australian community (para 8.4 of Direction No. 90)
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.[285]
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed— they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
This Tribunal respectfully agrees with Senior Member Morris. In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, this Tribunal summarised the effect of the Full Court’s judgment in FYBR and the current state of the law as follows:
.... The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’- expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]–[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]–[78].
Special leave was sought to appeal the decision in FYBR (FC). On 24 April 2020 the High Court (Kiefel CJ and Keane J) refused special leave.
Justice Stewart in FYBR (FC) found:
It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590–591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69 ; 180 CLR 404 at 429–430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA1 ; [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case — they are to be understood and applied normatively.
Justice Charlesworth also observed:
Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
...
.... The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
Member Burford put it in Rehman as follows:
It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa.
Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “ deemed” in the Direction, they weigh against revocation with respect to “ serious crimes”.
However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other consideration.
(Footnotes omitted.)
(a) To adopt the norm set out in para 8.4 of Direction No. 90 would constitute an unlawful dictation to a decision maker as community expectations cannot be deemed and should be applied normatively.[290]
(b) The Tribunal ought to apply a degree of informed tolerance for those who have offended in the past, in the Applicant’s case because he has been rehabilitated and made positive contributions through education and employment.[291]
Other considerations (para 9 of Direction No. 90)
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
International non-refoulement obligations (para9.1 of Direction No. 90)
Extent of impediments if removed (para 9.2 of Direction No. 90)
(1) Decision-makers must consider 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 Applicant is a young man with no apparent health difficulties and a solid employment history.
(b) There do not appear to be any linguistic or cultural barriers to the Applicant re-establishing himself in Vietnam. He has spent most of his life in Vietnam, the country to which he would be returned if the visa were refused. He also has family support in that country (apparently both) his parents.[297]
(c) The matters referred to by the Applicant (at para [150] above) fall outside the scope of this consideration. The consideration is directed to the Applicant’s ability to establish himself and maintain basic living standards, not his ability to spend time with his friends in Australia or provide an optimal level of financial and emotional support for his daughter.
Impact on victims (para 9.3 of Direction No. 90)
(1) Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Links to the Australian community (para 9.4 of Direction No. 90)
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.
Strength, nature and duration of ties (para 9.4.1 of Direction No. 90)
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) The Applicant’s daughter’s only family in Australia are the Applicant and his wife and the Applicant is their only source of financial support.
(b) The Applicant’s elderly parents live in Vietnam and are unable to support the Applicant’s daughter, in the event the Applicant were removed from Australia.
(c) The Applicant has closer ties to Australia than Vietnam evidenced by his character references from the Carusos and the fact he had started community sports and encompasses all that it is to be an “Aussie”.[300]
(a) The Tribunal should first consider the impact a refusal decision would have on the Applicant’s immediate family members.[302] The interests of the Applicant’s child have already been taken into account under the third primary consideration. For reasons already given, it is unclear as to whether the Applicant’s relationship with his wife is continuing such that the Tribunal does not know whether she is a member of his immediate family.
(b) The Tribunal should next consider the Applicant’s length of residence in this country.[303] The Applicant has resided in Australia for approximately seven years.[304] Holding all other factors equal, the length of the Applicant’s residence in this country should weigh in favour of the grant of the visa. However, less weight should be given to the length of time in which the Applicant has resided in Australia because:
(i) the Applicant had only resided in this country for five years when he committed the offence; and
(ii) the Applicant has only made modest positive contributions to Australia, such as through the payment of income tax.[305]
(c) As to para 9.4.1(2)(b) of Direction No. 90, the Applicant does not appear to have strong familial or social ties to Australia. In July 2019 the Applicant was quoted by the Department of Justice officials as saying that he “has no family [in] Perth and has some friends but little supports”.[306] There is no evidence that any Australian citizens or permanent residents would suffer hardship in the event of a visa refusal decision. The Applicant’s wife could be seen as a “familial or social tie” the Applicant has to Australia, but she has not given evidence that she would suffer any hardship in the event of a visa refusal decision.
(d) As to para 9.4.2 of Direction No. 90, there is no evidence that a visa refusal decision would have any impact on Australia’s business interests. The Applicant’s prospective employer in the event of his release from immigration detention, Mr Caruso, does not suggest to the contrary in his statutory declaration.[307]
(e) The modest length of both the Applicant’s period of residence in Australia and his contributions to this country are such that this factor only weighs slightly in the favour of the grant of the visa.[308]
Impact on Australian business interests (para 9.4.2 of Direction No. 90)
(3) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
CONCLUSION - THE WEIGHING EXERCISE
Direction 90 guides the decision maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account (see [31] above). It provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. The Tribunal is guided by Colvin J’s judgment in Suleiman v Minister for Immigration & Border Protection and the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ.
The Tribunal in CZCV at [164] summarised the legal position following the various cases referred to above as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. ...
(Footnotes omitted).
(f) the nature and seriousness of the Applicant’s conduct to date is “very serious” (paras 8.1(2)(a) and 8.1.1 of Direction No. 90); and
(g) the moderate risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No. 90),
the primary consideration of the protection of the Australian community weighs very heavily against the grant of the BVE.
(h) International non-refoulement obligations are not relevant in this matter (para 9.1 of Direction No. 90).
(i) The extent of impediments if the Applicant were removed from Australia is a factor of neutral weight (see paras [150]-[152] above) (para 9.2 of Direction No. 90).
(j) The impact on victims consideration does not arise and is therefore neutral (para 9.3 of Direction. No. 90).
(k) The Applicant’s links to the Australian community (para 9.4 of Direction No. 90); being
(i) the strength, nature and duration of the Applicant’s ties (para 9.4.1 of Direction No. 90) weigh slightly in favour of the grant of the Applicant’s BE (see paras [158]-[160]; and
(ii) the impact on Australian business interests (para 9.4.2 of Direction No. 90), which has no relevance to the present matter;
indicate that this consideration weighs slightly in favour of the grant of the Applicant’s BVE.
DECISION
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I certify that the preceding 172 (one hundred and seventy-two)
paragraphs are a true copy of the reasons for the decision herein
of Member L M
Gallagher
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..............[Sgd]..........................................................
Associate
Dated: 3 June 2021
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Date of hearing:
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13 May 2021
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Mr R Breisch , TGH Lawyers
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Ms E Tattersall, Sparke Helmore Lawyers
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[1] R1, G3, p 9.
[2] R1, G2.
[3] R1, G44.
[4] R1, G13, p 69.
[5] R1, G13, pp 68–69.
[6] R1, G18; G42.
[7] A BVA allows a person to stay lawfully in Australia until their substantive visa application is finally determined, or where granted in association with judicial review, until those proceedings are completed (Subclass 010 Bridging visa A (BVA) (homeaffairs.gov.au).
[8] R1, G18. Administrative Appeals Tribunal, ‘Factsheet FS 09: Public Interest Criterion 4020’ (July 2018) provides further information on this.
[9] R1, G20.
[10] R1, G18, p 116. As at the date of the Reviewable Decision, the remitted Partner Visa application had been neither granted nor refused. However, by operation of s501F(2) of the Migration Act the Partner Visa application is taken to have been refused given the Reviewable Decision.
[11] The Applicant and his wife were married in Australia on 1 April 2017 (R1, G43).
[12] R1, G4 and G5.
[13] R1, G8, p 37; G11, p 59 [16]. The Applicant has no other history of offending in Australia and no criminal record in Vietnam (R1, G4. G6).
[14] R1, G8, pp 37–38; G9, p 48.
[15] R2, pp 41–42.
[16] R2, p 41.
[17] R2, p 41.
[18] R1, G15.
[19] R1, G38.
[20] R1, G16 p 79.
[21] R1, G19.
[22] R1, G14.
[23] R1, G22.
[24] R1, G3, p 9.
[25] R1, G3, p 6.
[26] R1, G2.
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 90: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (8 March [2]021).
[27] The documents annexed to this letter do not form part of the evidence before the Tribunal given the “two day rule” in s 500(6J) of the Migration Act. The parties were content with this approach (Transcript, p 3 [35]-[45]; p 4 [5]-[45]).
[28] Namely, R1 at G23, G24–G28 (inclusive), G39 and G40.
[29] Direction No 90 para 5.1(4). Direction No. 79 does not, as the Applicants claims, “remain influential” (A6 para [38]).
[30] Direction No 90 para 8.
[31] A2; R1, G23.
[32] A2 [3].
[33] A2 [4].
[34] A2 [22].
[35] A2 [24].
[36] A2 [22].
[37] A2 [22]– [23].
[38] A2 [24].
[39] A2 [28].
[40] A2 [27].
[41] A2 [5].
[42] R1, G23 [5].
[43] A2 [7].
[44] A2 [10].
[45] A2 [11].
[46] R1, G23 [9]–[10].
[47] A2 [27].
[48] A2 [27].
[49] The Applicant also maintains his wife’s family has forgiven him and supports him, facilitating contact with his daughter and accepting funds transfers to be used to support his daughter (R1, G23 [11].
[50] The Tribunal notes there is no evidence that the Applicant undertook any counselling courses or psychology appointments during the time he spent on remand prior to sentencing, or in the community prior to his appointments with Mr Cummins and Dr Watts in late 2020 and early 2021. The Applicant conceded this to be the case (Transcript, p 19 [5]-[15]).
[51] Transcript, p 18 [30]–[45].
[52] Transcript, p 18 [15]–[20].
[53] Transcript, p 19 [25].
[54] Transcript, p 19 [30]; p 20 [5].
[55] See [46] above.
[56] Transcript, p 23 [5]–[10].
[57] The Applicant referred to ‘the course’, being his weekly attendance with his contact officer, as part of his Intensive Supervisory Order (Transcript, p 23 [10]).
[58] Transcript, p 22 [30]–[35].
[59] Transcript, p 23 [40].
[60] Transcript, p 23 [45]; p 24 [5].
[61] Transcript p 28 [20]–[25].
[62] Transcript, p 28 [35]–[40].
[63] Transcript, p 29 [15].
[64] Transcript, p 30 [5]–[10].
[65] Form 80 - Personal particulars for assessment including character assessment, completed by the Applicant on 19 April 2018 (R1, G41).
[66] R1, G41, p 395.
[67] Transcript, p 30 [20]–[25].
[68] Transcript, p 30 [25]–[30].
[69] Transcript, p 31 [15].
[70] Transcript, p 30 [40].
[71] Transcript, p 31 [5]-[10].
[72] R2, p 44–45.
[73] Transcript, p 50 [20]–[45] and p 51 [5].
[74] Transcript, p 31 [40], [45]. See [52](a), (b) and (c) above.
[75] Transcript, p 32 [5].
[76] Transcript, p 63 [30]–[45].
[77] Transcript, p 32 [15]–[20].
[78] Transcript, p 32 [35]–[40].
[79] Transcript, p 32 [40]; p 33 at [5].
[80] Transcript, p 33 [15]. The Tribunal takes the Applicant to mean when he was released from being remanded in custody, rather than from the detention centre.
[81] Transcript, p 33 [10],
[82] Transcript, p 33 [20], [35].
[83] Transcript, p 33 [30], [40]. See R2, pp 32 and 35 where police records indicate the Applicant slapped his wife 8-10 times with an open hand.
[84] Transcript, p 33 [35].
[85] Transcript, p 33 [35].
[86] Transcript, p 34 [20]–[30]; p 35 [10]–[15].
[87] Transcript, p 36 [5]. See [55] above.
[88] Transcript, p 36 [5].
[89] Transcript, p 36 [15]–[25].
[90] Transcript, p 36 [25]. See [55] above.
[91] Transcript, p 36 [45]; pp 37–42 [5].
[92] See R2, p 37.
[93] Transcript, p 52 [45]; p 53 [5]–[20].
[94] Transcript, p 42 [10]–[45]; p 43 [5].
[95] Transcript, p 52 [35]–[40].
[96] Transcript, p 53 [40].
[97] Transcript, p 43 [5]–[15].
[98] Transcript, p 43 [40].
[99] Transcript, p 43 [20]. See R2, page 35.
[100] Transcript, p 43 [25]. See R1, G8, page 40.
[101] Transcript, p 43 [10]–[35].
[102] Transcript, p 45 [15]–[25].
[103] Transcript, p 45 [25]–[30].
[104] Transcript, p 45 [35]–[40] and page 46 [5]-[30].
[105] Transcript, p 46 [40]. See R2, pages 61 and 65.
[106] Transcript, p 45 [5]–[40].
[107] Transcript, p 47 [10]–[20].
[108] See R2, page 118.
[109] See R2, pp 44–45.
[110] Transcript, p 47 [30]–[45]; p 48 at [5]–[10].
[111] Transcript, p 48 [15]–[30].
[112] Transcript, p 49 [25]–[30].
[113] Namely, his claimed stepmother, with whom the Applicant says his father shares a de facto relationship (Transcript, pp 48–49). The Tribunal notes it does not have any documentary evidence to this effect, rather it makes the point only to assist in setting the context in which the line of questioning about the correctness of the Form 80 was made.
[114] See form 80 at R1, G41, p 394.
[115] Transcript, p 49 [40].
[116] Transcript, p 49 [45].
[117] See [46] above.
[118] Transcript, p 50 [15].
[119] R2, p 47; Transcript, p 56 [20]–[30].
[120] Transcript p 56 at [35]–[45], p 57 and p 58 at [5]–[10]. See [61] above.
[121] See R2, p 55.
[122] See R2, p 60, which states “Partner pregnant with his child, he claims they both want to reunite as they love each other.” The Tribunal notes the restraining order was in force at this time (see [12] above).
[123] Transcript, p 58 at [15]–[45], pp 59–60 and p 61 at [5]–[15]. The Applicant indicated in his SFIC that his biological mother was currently residing in Vietnam; A1 [14(d)].
[124] See R2, p 92.
[125] See R2 pp 86 and 87.
[126] Transcript, p 61 [20]–[45] and p 62 at [5]–[30].
[127] R2, p 93.
[128] R2, p 41.
[129] Mr Caruso’s documentary evidence is at R1, G24 (statutory declaration dated 5 December 2020) and R1, G39 (character reference dated 17 September 2020).
[130] R1, G39; Transcript p 70 [35].
[131] Transcript, p 70 [35].
[132] Transcript, p 71 [40]–[45].
[133] Transcript, p 72 [5].
[134] Transcript, p 72 [5].
[135] Transcript, p 72 [35]–[45].
[136] Transcript, p 72 [5]–[10].
[137] Transcript, p 73 [5]–[15].
[138] Transcript, p 72 [20].
[139] R1, G24, p 187 [8].
[140] Transcript, p 72 [25]–[30].
[141] Mrs Caruso’s documentary evidence is at R1, G27 (statutory declaration dated 5 December 2020).
[142] Transcript, p 77 at [5]–[15].
[143] Transcript, p 77 [35]–[45].
[144] Transcript, p 77 [45].
[145] Transcript, p 78 [5]–[10].
[146] Transcript, p 78 [15].
[147] Transcript, p 78 [25].
[148] R1, G27 at [8].
[149] Transcript, p 78 [25].
[150] KLLV and Minister for Immigration and Border Protection (Migration) [2016] AATA 896 [51], per Fice SM.
[151] Sadiq and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 80 at [123].
[152] Mr Breisch, for the Applicant, made a number of submissions that appear to suggest that the consideration of whether or not the Applicant passes the character test itself is discretionary (see A6 at [36]-[38] and Applicant’s written closing submissions in reply at [7]). Similarly, at hearing, Mr Breisch stated in opening that the risk of reoffending for the purposes of the character test “must be more than a low risk” (transcript, page 8 at [45]). The Tribunal notes that the character test set out in s501(6)(d)(i) of the Migration Act affords no such discretion. The task for the Tribunal set out in s 501(6)(d)(i) of the Migration Act is to satisfy itself either that the Applicant presents a risk of engaging in criminal conduct, or that he does not. The available discretion, rather, is contained in s501(1) of the Migration Act in relation to whether or not a visa should be refused regardless of the fact that an Applicant is of good character. See para 5.1(2) of Direction No. 90 extracted at [37] and [82] to [84] above.
[153] A6 [13].
[154] A6 [32].
[155] A6 [14]. See [8] above.
[156] A6 [15]. See A3 [24] and A4 [35].
[157] A6 [26]. See A4 [10].
[158] A6 [16].
[159] A6 [17].
[160] A6 [17].
[161] A6 [18]. The Applicant stated he elaborated on this further at A6 [28], [33] and [34]. See [86](i)] above and n 169 in this regard.
[162] A6 [20] and [21].
[163] A1, A3 and A5. The Applicant does not direct the Tribunal to any specific paras in these documents.
[164] A6 [22] and [25].
[165] A6 [24].
[166] A6 [24]. See discussion at G8 pp 42–43
[167] A6 [28], [33] and [34]. There is no evidence the Applicant has undertaken any such counselling or assessments.
[168] A6 [29]. See A5 [24]. The inference drawn from Mr Cummins’ risk rating that the Applicant has progressed and rehabilitated is one proffered by the Applicant, not Mr Cummins.
[169] A6 [35]. The Tribunal has not been provided any evidence as to why he is able to contact his daughter via electronic means.
[170] Transcript, p 12 [15]-[20].
[171] R3 [16]. See [84] above.
[172] R3 [16]. Dr Watts is of the view that the Applicant’s likelihood of further offending is relatively low (A3 and R1, G11 [23] and A4 [23].
[173] R3, pp 6 to 11 [17].
[174] R1, G8, p 41.
[175] R2, pp 90 and 102.
[176] R1, G22, p 145 [17].
[177] The Applicant’s evidence at hearing that he has not completed any such courses is at [45] above.
[178] A2 [18].
[179] R2, pp 78 and 96.
[180] R2, pp 123 to 126.
[181] The Respondent appears to be referring to A6 [28] rather than A1 [28].
[182] R2, pp 94, 96–98, 103–104 and p 107.
[183] R2, p 116.
[184] R2, pp 118–119.
[185] R2, pp 118–119.
[186] At the time of writing, this was the case. At the time of hearing, the Applicant’s he had not acted upon this recommendation, given his evidence he is yet to undertake any counselling other than one consultation with Dr Sang. See [63] above.
[187] Transcript, p 53 [40].
[188] R2, pp 44 and 55.
[189] R2, pp 44 and 60.
[190] R2, p 44.
[191] R1, G25, pp 191–192. See to similar effect the reference at R1, G26, p 196 in which the deponent says she “feel sorry for [the Applicant] because he has always been scold down by [his wife]” and because the Applicant’s wife is always complaining and she’s always thinking about non-sense to cause an argument with [the Applicant].”
[192] R1, G12, pp 65–66.
[193] R1, G12, p 67.
[194] R2, p 92. See also R2, p 93 dated 3 February 2020 – “not in a relationship, not interested in being in one.”
[195] R1, G11, p 60.
[196] A6 [50].
[197] R2, pp 44 to 45, 83 and 89.
[198] R2, pp 87 and 90.
[199] R2, p 92.
[200] A1 [14(d)]; A6 [52].
[201] A2 [23].
[202] R1, G11, p 59 [17]; A4 [18].
[203] R1, G11, p 58. The Respondent addresses this further in relation to the second primary consideration. See [131] below.
[204] R1, G11, p 60 [21].
[205] R1, G11, p 61 [24].
[206] R2, G9.
[207] See A5, [22]; R2, pp 118–119.
[208] See n 10.
[209] See [9] above.
[210] The Tribunal does not accept the Applicant’s explanation of these inconsistencies and omissions as being due to language interpretation difficulties or the differing documents provided to Dr Watts and Mr Cummins being due to the inexperience of the file handler (Applicant’s written closing submissions at [15] and [16]).
[211] See for example, Applicant’s written closing submissions in reply at [3] and [4].
[212] R1, G8, pp 39–40.
[213] R1, G8, pp 42–43.
[214] A6 [42]; Applicant’s written closing submissions at [20].
[215] A6 [43]; Applicant’s written closing submissions in reply at [8].
[216] A6 [44].
[217] A6 [45].
[218] R3 [22].
[219] Para 8.1.1(1)(a)(i) of Direction No. 90; Minister for Home Affairs v Stowers [2020] FCA 407 at [45].
[220] Para 8.1.1(1)(a)(ii) of Direction No. 90.
[221] R1, G8, p 43.
[222] Direction No. 90, para 8.1.1(1).
[223] R2, p 25.
[224] Chandra and Minster for Home Affairs [2019] AATA 4894 [36]–[39]. See also Singh and Minster for Home Affairs [2018] AATA 4302 [93].
[225] Para 8.1.1(1)(a)(iii) of Direction No. 90.
[226] See [99] above.
[227] Transcript, p 10 [15]–[20].
[228] Transcript, p13 at [5]–[35].
[229] The Applicant’s representative conceded at sentencing that the Applicant’s predicament was “very serious indeed” (R1, G8, p 40).
[230] Transcript, page 22 [30]. The Applicant said he believed family violence was “quite serious.” See Respondent’s written closing submissions at [26].
[231] [2019] AATA 91 [56]–[57]. The Tribunal in CZCV and the Courts referred to in the related cited cases were considering visa cancellation in the context of predecessors to Direction No. 90. Given the similarity in wording, the same considerations and principles apply to the present matters. The Tribunal therefore follows the approach in these cases.
[232] See extract at [99] above.
[233] A1; A6.
[234] Transcript, p 22 at [35].
[235] In this regard, when asked about the future intentions of the Applicant and his wife at hearing, the Applicant stated that once the restraining order expired he would talk to his wife, repay his previous mistake and endeavour to rekindle the relationship. However, the Applicant later stated that he knew his wife shared his wish to reunite as he had talked to his sister in law about it. Therefore, not only did his evidence differ in relation to his further intentions, there is no independent evidence from the Applicant’s wife or from the Applicant’s sister in law on those matters. See Respondent’s written closing submissions at [10].
[236] As His Honour then was.
[237] At [45].
[238] A1 [18]-[24] and Applicant’s written closing submissions in reply at [5], [6], [10]-[14] and [25].
[239] A1, [18]. The Tribunal has difficulty following the rationale of this submission.
[240] The Applicant does not mention, however, that this opinion was provided in the context of a different matter. See Respondent’s written closing submissions at [28].
[241] A5 [33].
[242] See also A1 at [24].
[243] R3 [28].
[244] See also the Respondent’s closing written submissions at [13]-[26].
[245] See [44] above and n 51.
[246] See G24 (Statutory Declaration of Rosario Caruso); G25 (Statutory Declaration of Tanya Loan Thuy Ong); G26 (Statutory Declaration of Thi Quynh Bich Le); G27 (Statutory Declaration of Susan Caruso); G28 (Statement of Do Thi Thu Hong); G39 (Character Reference of Rosario Caruso).
[247] See Respondent’s written closing submissions at [13]–[15].
[248] Transcript, page 53.
[249] The Respondent has addressed these shortcomings at length in its written closing submissions at [16]-[25]. These omissions and errors include matters such as lack of briefing materials, inaccurate descriptions of offending and rehabilitation undertaken, negative assertions regarding the Applicant’s wife in an attempt to minimise his own actions, inaccurate description of the reasoning behind the intensive supervision order, overstating the nature and extent of his rehabilitation and the leading request to Dr Watts that he provide an opinion in support of the Applicant’s claim.
[250] Transcript, p 10 [20]–[45] and p11 [5]–[20].
[251] Transcript, pp 84–85. The Applicant’s written closing submissions did not address these matters.
[252] For example, he blamed his conduct on the victim, he reflected that his behaviour was normalised in Vietnam and in his home country his wife would be imprisoned for breaking the marriage with infidelity. See [89] (d) and (e) above and R2, p 124.
[253] A1; A6.
[254] Transcript, p 9 [35]–[45].
[255] Transcript, p14 at [30]–[45]; p 15 at [5]–[20].
[256] R2, p 25.
[257] R2, p 43.
[258] R2, p 25.
[259] R2, p 25.
[260] See [59] above.
[261] R3 [33].
[262] Para 8.2(3)(a) of Direction No. 90.
[263] Para 8.2(3)(b) of Direction No. 90.
[264] Para 8.2(3)(c) of Direction No. 90.
[265] A6 [40].
[266] A1 [55], citing Fatherhood Foundation. Fathers in Families, Strengthening & Supporting Fathers and Turning the Tide of Fatherless[ness] in Australia, (2005) p5 <https://dads4kids.org.au/wp-content/uploads/2021/05/FathersinFamiliesLR.pdf>
[267] Applicant’s written closing submissions at [27].
[268] R3 [37].
[269] R1, G3, p 22 [38]; A5 [9].
[270] Para 8.3(4)(a) of Direction No. 90.
[271] R2, p 92.
[272] R1, G23, p 158 at [ix]
[273] R1, G22, pp 149–150.
[274] R1, G22, pp 148–149.
[275] R1, G22, p 149.
[276] Para 8.2(4)(e) of Direction No. 90.
[277] Para 8.3(4)(a) of Direction No. 90. See R1, G22, p 148 [32].
[278] Meyrick v Minister for Home Affairs [2020] FCA 677, [78] per Jackson J.
[279] See [61] above.
[280] Para 8.3(4)(e) of Direction No. 90.
[281] Para 8.3(4)(d) of Direction No. 90.
[282] Para 8.3(4)(b) of Direction No. 90.
[283] Para 8.3(4)(c) of Direction No. 90.
[284] See above nn 190–192 and accompanying text.
[285] By way of contrast, the Applicant submitted the expectations of the Australian community would provide the Applicant a second chance, given that his does not present an unacceptable risk to the community (A1 [25]). See also the Applicant’s submissions at [143] below.
[286] Set out in [38] above.
[287] [2021] AATA 1143 at
[194] .
[290] A6 [47].
[291] A6 [49].
[292] R3 [42].
[293] As it is now referred to. See Wightman above at [88].
[294] A6 [53].
[295] A6 [53].
[296] R3 [47]–[50].
[297] See A1 [14].
[298] The Tribunal is satisfied on the evidence that the Applicant’s three siblings all reside in Vietnam (see [51]-[54] above.
[299] A1 [26]; A6 [51]–[52].
[300] Applicant’s written closing submissions at [29].
[301] R3 [53]–[57].
[302] Para 9.4.1(1) of Direction No. 90.
[303] Para 9.4.1(2)(a) of Direction No. 90.
[304] R1, G13.
[305] R1, G35.
[306] R3, p 19 [55].
[307] R3, p 19 [56].
[308] R3 p 19 [57].
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