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PYNT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3912 (21 November 2022)

Last Updated: 22 November 2022

PYNT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3912 (21 November 2022)

Division: GENERAL DIVISION

File Number(s): 2022/7077

Re: PYNT

APPLICANT

And Minister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal: Dr L Bygrave, Member

Date: 21 November 2022

Place: Sydney

The decision under review is set aside and, in substitution, the cancellation of the Applicant’s visa is revoked under subsection 501CA(4) of the Migration Act 1958 (Cth).

.....................................[SGD]...................................

Dr L Bygrave, Member

CATCHWORDS
MIGRATION – mandatory cancellation of visa – Resident Return (class BB) (subclass 155) visa – visa cancelled under s 501(3A) of the Migration Act 1958 (Cth) – Applicant did not pass character test – substantial criminal record – Ministerial Direction No. 90 – primary considerations – protection of the Australian community – nature and seriousness of Applicant’s conduct – seriousness of offending and future risk – family violence committed by the Applicant – expectations of the Australian community – other considerations – extent of impediments if removed – links to the Australian community – strength, nature and duration of ties to Australia – decision under review set aside and substituted

LEGISLATION
Drug Misuse and Trafficking Act 1985 (NSW) s 29

Migration Act 1958 (Cth) ss 499, 500, 501, 501CA

CASES
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115

SECONDARY MATERIALS

1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol

Australian Government Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam (2022)

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Development Pathways, Social Assistance in Viet Nam: review and proposals for reform (2016)

International Covenant on Civil and Political Rights and its Second Optional Protocol

Ministerial Direction No. 90 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (15 April 2021)

The UK Home Office, Country Policy and Information Note Vietnam: Mental healthcare (2021)

US Department of State, 2021 Country Report on Human Rights Practices: Vietnam

REASONS FOR DECISION


Dr L Bygrave, Member


21 November 2022

INTRODUCTION

  1. The Applicant, PYNT, is a 51-year-old male who is a citizen of Vietnam.[1] He arrived in Australia on 31 January 1982 on a Refugee (P302/12 category Indo-Chinese) visa and, on 21 November 2006, he was granted a Resident Return (class BB) (subclass 155) visa (visa).[2]
  2. On [redacted] October 2015, the Applicant was convicted in the District Court of New South Wales (NSW) for the offence, ‘supply prohibited drug >= large commercial quantity-SI’ and sentenced to a ‘head sentence of nine years with a non-parole period of imprisonment of five years and six months’.[3]
  3. On 5 December 2019, the Department of Home Affairs (the Department) notified the Applicant in writing that his visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) on the basis that he did not pass the character test on the following ground: he had a ‘substantial criminal record’ as defined in paragraph 501(7)(c) of the Act because he had been ‘sentenced to a term of imprisonment of 12 months or more’ (the original decision).[4] The Applicant was renotified of the original decision on 20 January 2022.[5]
  4. The Applicant, with the assistance of his legal representative, filed a Request for Revocation of a Mandatory Visa Cancellation Under S501(3A) form on 15 February 2022.[6] The Applicant’s legal representative also filed written submissions dated 16 May 2022 and 6 July 2022, and a Personal Circumstances Form dated 6 July 2022.[7]
  5. On 26 August 2022, a delegate of the Minister[8] decided not to revoke the original decision to cancel the Applicant’s visa.[9] The Applicant was notified of this decision in writing on 29 August 2022.[10]
  6. On 30 August 2022, the Applicant made an application for review of the delegate’s decision to the General Division of the Administrative Appeals Tribunal (the Tribunal).
  7. This matter was heard by the Tribunal in Sydney on 3 and 4 November 2022. The Applicant had legal representation and counsel; he attended the hearing and provided oral evidence in person with the assistance of an interpreter of the Vietnamese language.

RELEVANT LEGISLATION AND POLICY

The power to revoke a visa cancellation

  1. Subsection 501(3A) of the Act states:
    (3A) The Minister must cancel a visa that has been granted to a person if:

    (a) the Minister is satisfied that the person does not pass the character test because of the operation of:

    (i) paragraph (6)(a) substantial criminal record, on the basis of paragraph (7)(a), (b) or (c);

    ...

    (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. [emphasis added]

  2. The character test is set out in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) of the Act states that ‘a person does not pass the character test’ if they have a ‘substantial criminal record’ as defined by subsection 501(7); and paragraph 501(7)(c) of the Act defines a ‘substantial criminal record’ as the ‘person has been sentenced to a term of imprisonment of 12 months or more’.
  3. Section 501CA of the Act sets out the provisions that apply if the Minister makes a decision (the original decision) under subsection 501(3A) to cancel a person’s visa. Subsection 501CA(4) relevantly provides:
    (4) The Minister may revoke the original decision if:

    (a) the person makes representations...; and

    (b) the Minister is satisfied:

    (i) the person passes the character test (as defined by section 501); or

    (ii) that there is another reason why the original decision should be revoked. [emphasis added]

  4. I am satisfied the Applicant does not pass the character test in subsection 501(6) of the Act because his criminal record, which includes a sentence of nine years imprisonment, meets the statutory definition of a ‘substantial criminal record’ in subsection 501(7) of the Act. I am also satisfied that paragraph 501(3A)(b) of the Act was enlivened at the date of the original decision as the Applicant was serving this sentence of imprisonment on a full-time basis in prison.[11] This finding is not disputed by the Applicant.
  5. Consequently, pursuant to subparagraph 501CA(4)(b)(ii) of the Act, I consider whether there is another reason to revoke the original decision to cancel the Applicant’s visa.
  6. The power of the Tribunal to review the decision to cancel the Applicant’s visa is provided by subsection 500(1) of the Act. The Minister has given written directions as to the exercise of the power to review the decision under subsection 499(1) of the Act and subsection 499(2A) of the Act provides that I must comply with these directions.
  7. The relevant direction is Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction No. 90), which commenced on 15 April 2021.

Direction No. 90

  1. Direction No. 90 provides the following guidance on how the discretion is to be exercised:
    6. Exercising the discretion

    Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

  2. The Minister sets out the principles in paragraph 5.2 that provide a framework to approach the task of deciding whether to revoke a mandatory visa cancellation under section 501CA of the Act. These principles are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.

  1. Primary considerations are listed in section 8 of Direction No. 90 as follows:
(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. Other considerations are set out at section 9 of Direction No. 90. These include (but are not limited to):
(1) international non-refoulement obligations;

(2) extent of impediments if removed;

(3) impact on victims;

(4) links to the Australian community, including:

(a) strength, nature and duration of ties to Australia; and

(b) impact on Australian business interests.

  1. Section 7 of Direction No. 90 states that in applying the primary and other considerations: information and evidence from ‘independent and authoritative sources’ should be given appropriate weight; primary considerations ‘should generally be given greater weight’ than the other considerations; and one or more primary considerations ‘may outweigh other primary considerations’.

EVIDENCE

  1. The evidence set out below is based on information contained in documents filed with the Tribunal and oral evidence given at the hearing by the Applicant, Ms ‘EL’ (social worker with Legal Aid NSW) and Dr ‘TW’ (neuropsychologist).
  2. At the outset, I note the conduct and evidence of the Applicant at the Tribunal hearing was very unusual. The Applicant attended the hearing in person and presented as an extremely stressed and distressed individual; he repeatedly requested for his hearing ‘to be adjourned to next year’ because he had not had ‘enough time to prepare’.[12] I acknowledged the Applicant’s request but decided not to adjourn the hearing on the basis that his application for review is expedited and I am required to make a decision by 21 November 2022; he has had long-standing legal representation from Legal Aid NSW; and his legal representative and counsel were present at the hearing and had filed comprehensive submissions and evidence on his behalf.
  3. The Applicant subsequently provided oral evidence at the hearing, albeit limited. He was assisted by an interpreter of the Vietnamese language but also spoke in English. I accept that his oral evidence was broadly consistent with written statements he filed with the Tribunal dated 4 October 2022 and 30 October 2022 (original statements). However, at the hearing on 3 November 2022, the Applicant said the original statements contained ‘a lot of errors’, so he was given time at the hearing to read and make changes/corrections to his original statements.[13] I note these ‘amended statements’ contained very minor corrections to the original statements. I am satisfied these statements comprise an accurate account of the Applicant’s personal and family history as the statements are generally consistent with the Applicant’s background set out in the ‘Pre-Sentence Report’ by the NSW Community Corrections Service dated 31 October 1991 and the decision record of the Refugee Review Tribunal dated 21 September 2006. I also accept these statements provide credible evidence in setting out the Applicant’s understanding of the facts.

The Applicant’s personal and family history

  1. The Applicant was born in the province of Kien Giang, Vietnam in 1971. According to his written statement, he does not ‘remember [his] life in Vietnam’ but knows he ‘lived in a village’ and thinks he ‘went to school for two years’.[14]
  2. The Applicant’s father fought in the Army of the Republic of Vietnam during the war and, following the change of government in 1975, was placed in a re-education camp. After the Applicant’s father was released, the family were forced to move to the countryside by the government and the Applicant’s grandfather committed suicide following the confiscation of his property.[15] The Applicant’s family subsequently decided to flee Vietnam.
  3. The Applicant (the fourth oldest child of his parents) left Vietnam in 1981 and travelled by boat to Thailand with four of his siblings, his grandmother and his aunt. They stayed in a transit camp in Thailand for several months until, with the assistance of the UNHRC, they were accepted as refugees by Australia.[16]
  4. The Applicant arrived in Australia on 31 January 1982, when he was aged 11 years. He completed primary school and high school to year 10 in Australia. The Applicant was cared for by his grandmother until she died in 1989; subsequently, the Applicant and his younger brother ‘fended for themselves’ as their older siblings and aunt had departed the house.[17] The Applicant and his younger brother left school, were unemployed and ‘began to get into trouble’.[18]
  5. In April 1991, the Applicant’s parents and five younger siblings arrived in Australia as sponsored migrants.[19] The Applicant’s son, who is his only child, was also born in 1991.
  6. The Applicant has the following immediate family members living in Australia: his mother, nine siblings (four brothers and five sisters) and his son. He also has extended family members in Australia including two uncles, an aunt, six cousins, a niece and three nephews, and a brother-in-law and sister-in-law.[20]
  7. During his time in Australia, the Applicant has had periods of employment as a factory worker at a food processing (chicken) factory, a sewing factory, and a computer factory. He has also worked for a tiling/roof restoring service.
  8. The Applicant has not returned to Vietnam and knows no one in Vietnam.

The Applicant’s history of drug addiction and traumatic brain injury

  1. The Applicant commenced using heroin in early 1991. In a ‘Pre-Sentence Report’ dated 31 October 1991, the Applicant claimed he ‘used the drug [heroin] irregularly’ but stopped prior to being arrested in July 1991 and had not used drugs while in prison.[21] The Applicant accepts that he has a ‘history of drug addiction, namely heroin’, which he first used in 1991 (aged 20 years old) and ‘was on a methadone program’ since he was 24 years old.[22]
  2. In November 1994, the Applicant was the victim of an assault to his head; he suffered a fractured skull and had an operation on the left frontal area of his cranium.[23] The Applicant described this event in his written statement as follows:
    When I was a young boy somebody hit me on my head and broke my skull. They hit me with like a steering wheel lock. I think I knew the person but I don’t know.

    I don’t remember anything after that but I remember I woke up in hospital and feeling all this stuff on my head and stitches as well.[24] [replicated as in original]

  3. In 2015, the Applicant received a provisional diagnosis of Major Neurocognitive Disorder. According to the Applicant’s legal representative, there were reports prepared by Dr ‘AL’ and Dr ‘MH’ of NSW Justice Health in relation to the Applicant’s sentencing in 2015 that indicated this was ‘the result of a traumatic brain injury acquired from the assault in 1994 and consequential hypoxic brain damage in 1995’.[25] The Applicant also received treatment in 1998 from a Rehabilitation Medicine Specialist at the Brain Injury Rehabilitation Unit at Liverpool Hospital.[26] Neither the Applicant’s nor the Minister’s legal representatives were able to access these medical reports.
  4. The Applicant’s addiction to drugs appears to have increased following his traumatic brain injury in 1994 and subsequent experiences of migraines and pain. In his statement, he wrote:
    I was given some drugs after I got hit in the head for my pain. I used those drugs a lot and then I didn’t stop.[27]
  5. I accept the evidence of the Applicant (which is supported by the absence of any reports to the contrary) that he has abstained from drugs since being imprisoned in May 2015 and has remained on a methadone program during his time in prison and immigration detention. I further note that the Applicant’s compliance with a methadone program while at Villawood Immigration Detention Centre from September 2020 to September 2022 is set out in his International Health and Medical Services (IHMS) clinical records.[28]
  6. Finally, there is some evidence that the Applicant has a history of depression and/or issues with his mental health, although it is inconsistent. The IHMS clinical records contain entries dated September 2020 that he was feeling depressed but ‘did not want to elaborate further’, was ‘hesitant to seek for help’, appeared ‘very vague, retarded reaction, stressed’, and had a ‘history of depression but [was] not on any medication’.[29] He later refused mental health input, stating that ‘he will ask for help when he needs it’.[30] A review by a psychiatrist in March 2022 noted the Applicant denied ‘any past psychiatric issues’ and recorded an impression of ‘no evidence of mental illness’.[31] In his oral evidence at the hearing, the Applicant said he saw a counsellor one or two times at Villawood Immigration Detention Centre but stopped because he did not ‘know what to say’.[32]

Neuropsychological assessment of the Applicant by Dr ‘TW’ (neuropsychologist) – October 2022

  1. Relevant to understanding whether the Applicant has a neurocognitive and/or mental health condition, his legal representative requested Dr ‘TW’ to undertake a neuropsychological assessment of him. This assessment occurred in person at Villawood Immigration Detention Centre on 6 October 2022 and Dr ‘TW’ provided a report dated 25 October 2022.
  2. In his report, Dr ‘TW’ outlined a review of documents about the Applicant’s history, an assessment based on his behavioural observations of the Applicant, a neuropsychological assessment from psychometric (and other) tests, and a risk assessment of the Applicant.
  3. Dr ‘TW’ provided the following summary and opinion in relation to this assessment:
    13. Formal neuropsychological assessment was unable to be completed with [the Applicant] due his limited effort and disengagement with the assessment process. His failure on five tests of performance validity confirms his limited effort. Overall, I am unable to comment on the extent of any genuine cognitive difficulties [the Applicant] might be experiencing in light of his limited engagement on testing. His poor effort on psychometric testing appears to be explained by his unfamiliarity with formal assessment protocols (as opposed to malingering or deliberately feigning cognitive impairment), his distrust and lack of familiarity with me as his assessor, and his history of traumatic brain injury (see paragraphs 14 and 15 below).

    14. There was nevertheless evidence of some degree of cognitive difficulty based on my interactions with him, notwithstanding the limitations of this assessment. He was slow to process information, he was extremely flat and presented with a significant degree of apathy (i.e., a lack of goal-directed behaviour and initiation secondary to brain dysfunction), and he had difficulty understanding sentences with increasing grammatical or syntactical complexity. There were also numerous suggestions of cognitive impairment throughout the supplied documentation (he was described as “vague” ... with “retarded reaction” ... “he was not making any sense to simple questions” [GP consultation on 24 September 2020], and “appears thought blocks/confused” [Mental Health Consultation on 29 September 2020]). Furthermore, his understanding of his current circumstances based on his personal statement suggest some difficulties with insight.

    15. It appears likely that he experienced genuine medical incidents throughout the nineties, including traumatic and hypoxic brain injuries, and he has been provided a provisional diagnosis of Major Neurocognitive Disorder due to Traumatic Brain Injury... This diagnosis is consistent with his presentation and lack of engagement with the assessment process, his overt cognitive difficulties, his apathy and difficulties with insight (which are common from damage to the frontal lobes of the brain), his account of his accident in his personal statement, and the available evidence in the documentation. Psychometric testing is, however, needed for diagnostic purposes, to better understand his cognitive strengths and weaknesses, and to identify his support needs. However, this will likely require significant rapport building over a period of time for a clinician to achieve a valid index of his cognitive faculties.[33] [emphasis added]

  4. Dr ‘TW’ provided oral evidence to the Tribunal on 4 November 2022, particularly setting out the Applicant’s cognitive function and appropriate treatment. Dr ‘TW’ said the ‘diagnostic label’ of a ‘major neurocognitive disorder’ refers to a person ‘having significant cognitive limitations that would affect their functioning due to a traumatic brain injury’, noting that cognitive functioning differs depending on the cause of the neurocognitive disorder.[34] He acknowledged he had been unable to complete formal testing of the Applicant but opined:
    [The Applicant] does present with a very qualitative air of cognitive impairment. So, he very much is slow to process information, [is] very limited in terms of verbal output and expressiveness, and also there is some evidence of memory difficulties with him too. So, he would have quite a number, I would suspect, of limitations across various domains in terms of cognition. Given that what the documentation suggests in terms of his brain injury being from the 90s, and it being almost 30 years ago, and the way that he was functioning previously, would suggest that there probably is some degree of adaptive and practical limitations in terms of his care that he would need. So, based on my observations with him, and the way that he presented, I would say that is consistent with that diagnosis [of a major neurocognitive disorder].[35] [emphasis added]
  5. Dr ‘TW’ also said the Applicant presented with ‘apathy’, which is a ‘lack of motivation due to potential brain dysfunction’ and showed ‘a lack of insight into his personal circumstances’ in that his self-reporting of his circumstances did not coalesce with the actual evidence.[36] Dr ‘TW’ noted this was evident in the Applicant’s statement where he wrote: ‘People say I’m confused but I don’t think I am. I think I’m fine and I don’t know why they put me in here’.[37] He explained the Applicant’s behaviour in relation to his request for the hearing to be adjourned and the changes/corrections to his written statements as follows:
    [The Applicant] seems to be aware of the significance, but lacks, I would predict, that higher order [executive] thinking to be able to reason, to implement strategies, and to implement resources in terms of managing that situation...

    I think there’s really a disconnect between understanding what something is, and the potential significance and salience of that. And so, it sounds like there’s extra weight placed on quite minimal information that’s not important, and a reduction on things that are very overly important.[38] [emphasis added]

  6. In relation to the Applicant’s mental health, Dr ‘TW’ distinguished between mental health impairment and cognitive impairment: a mental health impairment is ‘related to an effective disorder, an anxiety disorder, a psychotic disorder’ whereas a cognitive impairment is ‘an intellectual disability, brain injury, acquired brain injury, dementia etc’.[39] Dr ‘TW’ further said:
    There was suggestions that [the Applicant] did have a history of depression ... raised throughout the documentation. And he did mention that ... in his personal statement .... I can’t speak to the veracity of that. I can really only speak to the cognitive impairment side of things.

    Where things become quite tricky, particularly for someone with [the Applicant’s] profile, is it’s very hard to distinguish between ... depression and apathy. They can present quite similarly in terms of that lack of motivation, that very flat, blunted affect, very slow to process information. So it can be quite difficult to tease those apart. So usually what someone might do ... from a therapeutic perspective is engage in treatment or medication and see if that improves the symptoms of depression, whereas if it was the apathy, we would expect that to be consistent. It would not change ... But usually, it would require more of a psychiatrist who’s familiar with brain injury to try and tease it apart as well.[40] [emphasis added]

The Applicant’s criminal history

  1. The Applicant’s criminal record is detailed in the Australian Criminal Intelligence Commission (ACIC) report dated 21 March 2022, which shows:
  2. The Applicant was sentenced to terms of imprisonment as shown in his ‘Conviction, Sentences and Appeals’ report dated 3 December 2019 from the NSW Department of Corrective Services.[41] In particular, the Applicant received sentences of imprisonment for the following offences.
  3. On 1 November 1991, the Applicant was indicted for ‘robbery in company’ in the NSW District Court and sentenced to a term of imprisonment for three years with a non-parole period of 12 months. The sentencing remarks of the Judge described the offending behaviour as follows:
  4. Although noting the age of the Applicant and his companions, the Judge stated that the ‘offence of robbery in company ... by any standards [is] an extremely serious offence’.[43]
  5. On [redacted] July 1999, the Applicant was convicted in the NSW District Court of the offences, ‘common assault-T2’ and ‘contravene apprehended domestic violence order’ and sentenced to six months imprisonment (the convictions were confirmed after the Applicant appealed the severity of sentences imposed by the Local Court).[44] In the sentencing remarks, the Judge set out the following facts of the Applicant’s offending:
  6. The Judge acknowledged in the sentencing remarks that the Applicant had an ‘unfortunate background’, the contribution of his heroin addiction to his offending and his steps to overcome his addiction by going on a methadone program.[46] The Judge noted the Applicant’s ‘difficulty with drugs is still very much a problem’ and opined that the ‘objective seriousness of these type of offences is very high’.[47]
  7. On [redacted] October 2015, the Applicant was sentenced in the NSW District Court after he was found guilty by a jury in March 2015 of the charge that he supplied ‘a prohibited drug, namely buprenorphine, an amount which was not less than the large commercial quantity of that prohibited drug’ in May 2011.[48] The Crown relied on the ‘deeming provision’ in section 29 of the Drug Misuse and Trafficking Act 1985 (NSW), which provides that, where a person has in their possession an amount of a prohibited drug that is more than the trafficable quantity of the drug, then the possession is deemed to be for supply unless the person can establish the drug is for their own use. In this case, the Applicant sought to establish the buprenorphine was for his own use, but this was not accepted by the jury.
  8. The facts of the Applicant’s offence outlined in the District Court of NSW judgement were:
  9. The Judge stated the storage of pills ‘was not an opportunistic nor chance acquisition’ and reflected ‘a degree of planning and premeditation’, but determined the criminality involved was ‘above low-range, below mid-range’.[50] In sentencing the Applicant to a term of imprisonment of nine years and a non-parole period with conditions of five years and six months, the Judge made a finding of special circumstances.

Written warning from the Department

  1. Documents before the Tribunal show that on 20 October 1992 and 24 November 1992, following the Applicant’s conviction for ‘robbery in company’, the (then-named) Department of Immigration, Local Government and Ethnic Affairs wrote to the Applicant to advise him the Minister had decided ‘not to order his deportation from Australia’ and warn him that ‘any further convictions will lead to the question of his deportation from Australia being reconsidered’.[51]

The Applicant’s time in prison and immigration detention

  1. Records before the Tribunal show the Applicant has been incarcerated for various periods between 1991 and 2020. It also appears the Applicant was held in immigration detention between 2003 and 2006,[52] and he has been held in immigration detention since his release from prison on parole in September 2020.
  2. The Applicant’s ‘Conviction, Sentences and Appeals’ report from the NSW Department of Corrective Services shows he completed the Equips addiction rehabilitation program in 2019 and was in the process of completing the Equips foundational course while in prison.[53]
  3. IHMS clinical records for the Applicant show his engagement with medical services at Villawood Immigration Detention Centre between September 2020 and September 2022.[54]
  4. There are no other records before the Tribunal describing the Applicant’s time in prison and/or immigration detention.

PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

  1. Paragraph 8.1 of Direction No. 90 outlines the Government’s commitment to protecting the Australian community ‘from harm as a result of criminal activity or other serious conduct by non-citizens’ and requires that I give consideration to:
    (a) the nature and seriousness of the Applicant’s conduct to date; and

    (b) the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.

The nature and seriousness of the Applicant’s conduct to date

  1. Paragraph 8.1.1 requires that I consider the nature and seriousness of the Applicant’s ‘criminal offending or other conduct to date’.
  2. The Applicant’s criminal history is set out above in paragraphs 43-51. Having regard to the relevant factors in subparagraph 8.1.1(1) of Direction No. 90, I make the following findings about the nature and seriousness of the Applicant’s conduct to date:
  3. Based on the evidence, I am satisfied that the nature and seriousness of the Applicant’s criminal offending and other conduct weighs strongly against exercising the discretion to revoke the cancellation of his visa.

The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

  1. At subparagraph 8.1.2(1) of Direction No. 90, the Minister states the view ‘that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases’ and ‘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. Subparagraph 8.1.2(2) of Direction No. 90 sets out that, in assessing the risk that may be posed by the Applicant to the Australian community, I must have regard to, cumulatively:
  3. The Applicant’s criminal history shows he has been convicted for possession and supply of prohibited drugs, break enter and steal, robbery in company and assault. However, I accept the submissions made by the Applicant’s counsel that the nature of the Applicant’s offending ‘largely consists of non-violent, drug-related offences’ committed more than 20 years ago.[56] However, on the basis of the Applicant’s past offending, I am satisfied that if he engages in further criminal or serious conduct – namely, possess and/or supply prohibited drug – the nature of any harm to either individuals or the Australian community could include harm to people and their property.
  4. I now consider the likelihood of the Applicant engaging in further criminal or serious conduct.
  5. The evidence before the Tribunal indicates a nexus between the Applicant’s long-standing drug addiction (since the age of 20 years), traumatic brain injury (sustained when he was 23 years old) and his offending behaviour. However, I am satisfied the evidence shows the Applicant has abstained from using drugs since he was imprisoned in May 2015 to present, a period of seven and a half years, and has remained on a methadone program during his time in prison and immigration detention.
  6. In his statement, the Applicant wrote:
    Now I am on the methadone program since many years now. I go every day to take it and I want to keep staying on this program when I go back home. It’s been many years now it’s working for me and I be sticking with it...

    I don’t like detention. I don’t know why I am here. I am an Australian citizen. I did the citizenship test ten years ago and then I paid the money for it and now I am just waiting for the certificate.

    Sometimes I feel depressed because I don’t understand why I am here. I don’t remember all these things people are saying I did. I did nothing wrong I think.

    I remember they thought I did drug supply but there were no charges. I don’t know why they took me to court because I appealed it and then the police put no charges against me. The case was dismissed.

    I been here all my life and I don’t remember all the things they say I did wrong. And they I don’t know why they do this to me when I don’t remember all these things happening the way they said it all happened.[57] [replicated as in original]

  7. In his oral evidence at the hearing, the Applicant said that his visa is ‘still good’ and he is ‘innocent’, which appeared to relate to his conviction in the District Court NSW in October 2015.[58]
  8. In his report dated 25 October 2022, Dr ‘TW ’opined the following about the Applicant’s history of offending, drug use and traumatic brain injury:
    16. [The Applicant] has a long history of offending behaviour that predates his brain injury and is primarily driven by his poorly controlled substance use and likely the company that he keeps. However, it can be speculated that his brain injury could further complicate his behaviour. He presents with apathy and difficulties in insight (as noted above, these are common outcomes of a severe brain injury), which point specifically to a disorder of the frontal lobes of the brain (the area of the brain responsible for higher-level cognitive processes such as control and regulation of behaviour). There was also an increase in frequency of drug-related charges from 1995 and more infrequent violent and emotionally reactive charges from 1999 (e.g., assaults charges, including assault against police). This suggests that his emotion and behaviour regulation may have been compromised post-injury – and this could be an important mitigating factor in understanding his behaviour (offending and otherwise) post-injury. His suspected cognitive difficulties, together with his substance usage, would exacerbate his emotion dysregulation and further compromise his thinking and behaviour.[59] [emphasis added]
  9. In relation to assessing the Applicant’s likelihood of reoffending, Dr ‘TW’ further stated:
    17. Examination of [the Applicant’s] recidivism risk was also invalid based on his responses across key items on a formal psychometric measure... I am therefore unable to estimate his risk of committing further offences and to comment on his treatment needs in this regard. However, examination of the supplied documentation, particularly his criminal history and his own personal statement, suggests a relationship between [the Applicant’s] substance usage and his history of criminal offending. It appears likely that participation in substance use treatment and relapse prevention programs would be needed to minimise his risk of recidivism. I understand he has already completed the Equips program, and treatment should now focus on relapse prevention so he can better manage his substance usage in the real world. Behavioural strategies, modifications to his environment, and other interventions that have been adapted specifically for cognitively impaired populations are recommended for this purpose. However, he may be challenging to engage in treatment, and extra tolerance and effort may be required to achieve engagement and positive change. A pre-treatment program of motivational interviewing may help to support his engagement in treatment over the longer term.[60] [emphasis added]
  10. In relation to treatment for the Applicant, Dr ‘TW’ provided oral evidence about the importance of environmental interventions (for example: structure and routine, access to medication and accommodation supports, and access to professional medical care) and social interventions (such as reliance on family and social supports to manage behaviours and cognitive issues, and consistent support from people providing behavioural support). Dr ‘TW’ stated the National Disability Insurance Agency (NDIS) could provide the Applicant – as a person with a brain injury – with service support, occupational therapy support, house care, cleaning, shopping, and social supports.
  11. I note that the Applicant, if released into the Australian community, remains subject to the conditions of his parole until 23 March 2024. I have also considered – and place significant weight on – the comprehensive ‘Release Plan Report’ for the Applicant completed by Ms ‘EL’ (social worker with Legal Aid NSW) dated 28 October 2022.
  12. The ‘Release Plan Report’ sets out background information about the Applicant and, based on a discussion with Ms ‘EL’, his thoughts about potential accommodation, employment and medical support if he is released into the Australian community. The report also detailed:
  13. Ms ‘EL’, in her written statement dated 26 October 2022 and oral evidence, confirmed that she would support the Applicant in the community over a six-month period if he was released from immigration detention and identified further information about additional coordinated community support (including supportive housing and social services) she had sought for the Applicant from a case worker, Mr ‘AA’ at St Vincent De Paul.[61]
  14. I am satisfied the services outlined in the Applicant’s ‘Release Plan Report’ to support him if he is released into the community, as well as the conditions of his parole and the support of Mr ‘AA’, would substantially ameliorate any risk to the Australian community. I find this plan would provide the Applicant with a structure of the types of environmental and social/behaviour-based interventions that were identified by Dr ‘TW’ to manage his brain injury. I also place weight on the Applicant’s abstinence from drugs and adherence to a methadone program for the past seven and a half years.
  15. Considering both the nature and seriousness of the Applicant’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct, I am satisfied on balance that the primary consideration of protection of the Australian community from criminal or other serious conduct weighs against exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa. However, I place less weight on this consideration on the basis of the comprehensive plans in place to support the Applicant if he is released into the Australian community.

PRIMARY CONSIDERATION 2 – FAMILY VIOLENCE COMMITTED BY THE APPLICANT

  1. Subparagraph 4(1) of Direction No. 90 states family violence ‘means 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 relevantly include ‘an assault’.
  2. Direction No. 90, at subparagraph 8.2(1), states ‘the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of...remaining in Australia’. Subparagraph 8.2(3) outlines the factors I must consider in relation to the seriousness of the family violence engaged in by the Applicant. These factors include:
  3. The Applicant was convicted for ‘common assault-T2’ and ‘contravene apprehended domestic violence order’ in July 1999. The relevant facts of these offences are described in paragraphs 47-48; I am satisfied the victim in these matters was the Applicant’s sister and these offences comprise family violence as defined in subparagraph 4(1) of Direction No. 90.
  4. While I consider these offences are very serious, I note they occurred within a short period of several days more than 23 years ago, the Applicant has never repeated this behaviour and he subsequently (when the AVO expired) lived with this sister until he was jailed in May 2015.
  5. I am satisfied that the primary consideration of family violence committed by the Applicant weighs against exercising the discretion to revoke the cancellation of the Applicant’s visa. However, I place less weight on this consideration in view of the extended period that has passed, and that the offending behaviour has not been repeated.

PRIMARY CONSIDERATION 3: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

  1. Subparagraph 8.3(4) of Direction No. 90 lists the factors I must consider in considering whether cancellation of the Applicant’s visa is in the best interests of a minor child (under 18 years old at the time of the refusal) affected by the decision.
  2. The Applicant has provided no evidence of any minor children in Australia who would be affected by the decision to cancel his visa. Consequently, I place no weight on this consideration in relation to exercising the discretion to revoke the cancellation of the Applicant’s visa.

PRIMARY CONSIDERATION 4: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

  1. Subparagraph 8.4(1) of Direction No. 90 provides:
    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 subparagraph 8.4(2) of Direction No. 90, the Minister states that non-revocation of the mandatory cancellation of a visa may be appropriate because character concerns or offences are such that the Australian community would expect the person should not continue to hold a visa; and the Australian community expects the Australian government can and should cancel the visas of non-citizens if they raise serious character concerns through conduct including acts of family violence and/or serious crimes of a violent nature. Further, expectations of the Australian community ‘apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community’: subparagraph 8.4(3) of Direction No. 90.
  3. Subparagraph 8.4(4) of Direction No. 90 states:
    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.
  4. Considering the requirement of paragraph 8.4 and the principles set out in paragraph 5.2 of Direction No. 90, I am satisfied the Australian community expects a non-citizen will obey Australian laws, not cause harm to individuals or the Australian community, and the Australian government should cancel the visa of a non-citizen if they commit serious crimes.
  5. I have set out my consideration of the nature and seriousness of the Applicant’s criminal history and the risk to the Australian community if he were to commit further offences in paragraphs 58-75; and my consideration of family violence committed by the Applicant at paragraphs 78-80. Based on the evidence and having regard to the principles and requirements in Direction No. 90, I find the Australian community would have a very low tolerance of the Applicant’s offending and would expect the Australian Government to cancel his visa.
  6. In written submissions, the Applicant’s counsel referred to the decision of FYBR v Minister for Home Affairs[62] and contended:
    The Applicant concedes that, in accordance with FYBR v Minister for Home Affairs, there is a deemed expectation of the Australian community that non-citizens will obey the law and a failure to obey the law will be held against them.

    However, FYBR makes it clear that the inquiry does not end there. It is incorrect to limit consideration of the expectations of the Australian community to the Applicant’s offending history. There is a second deemed expectation that the Tribunal will carefully consider the facts and circumstances of the particular case to determine whether it is appropriate refuse to grant a visa in accordance with the first expectation. Justice Charlesworth noted that the second expectation is concerned with “the consequences that should befall a non-citizen who has fallen foul of the first expectation”.

    In the present case, it is contended that the weight to be given to the deemed expectations of the community should be significantly moderated, in circumstances where:

  1. I have considered the written and oral evidence, submissions made by the Applicant’s counsel and the provisions outlined in paragraph 8.4 of Direction No. 90. On balance, I find the primary consideration of expectations of the Australian community weighs against exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa. However, I place less weight on this consideration due to the Applicant’s circumstances, in particular, his neurocognitive disability.

OTHER CONSIDERATIONS IN DIRECTION NO. 90

  1. Section 9 of Direction No. 90 lists the other considerations that I ‘must also take into account’ in deciding whether to revoke the mandatory cancellation of a visa, which relevantly include:
  2. For completeness, I find there is no evidence before the Tribunal that the consideration of impact on Australian business interests are relevant to these proceedings.

Other Consideration 1: International non-refoulement obligations

  1. Subparagraph 9.1(1) of Direction No. 90 articulates Australia’s non-refoulement obligations in accordance with international human rights treaties and the ‘obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm’. [64]
  2. Direction No. 90, at subparagraphs 9.1(2) to (5), further states:
(2) In making a decision under section 501..., decision-makers should carefully weigh any non-refoulement obligations against the seriousness of the non-citizen’s criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provide that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal...of a non-citizen’s visa... This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists ... Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.

(4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation ... of their visa under s501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

(5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.

  1. The Applicant’s evidence about his family’s reasons for leaving Vietnam is set out at paragraph 24. The Applicant wrote in his statement:
    I’m scared to go back to Vietnam because they’re going to capture me and they kill me. They not happy about my father and they will hurt me because they need to punish someone for my dad.

    That government still there and they not forget about my dad fighting for the Americans. The Communists got a lot of power there and they wanna make me pay.

    I think they gonna put me in jail and then they don’t get me.[65] [replicated as in original]

  2. Based on this evidence and submissions made by the Applicant’s counsel (set out below), I am satisfied the Applicant has raised a claim to international non-refoulement obligations.
  3. The Applicant’s counsel acknowledged the circumstances of the Applicant’s claim to non-refoulement were ‘unusual’.[66] This is because the Applicant made an application for a protection visa in 2004, which was refused by a delegate of the Minister, and this refusal decision was then affirmed by the Refugee Review Tribunal on 21 September 2006 (the Applicant was subsequently granted a Resident Return (class BB) (subclass 155) visa on 21 November 2006). The Applicant’s counsel accepted that the Applicant is prevented by section 48B of the Act from making a further application for a protection visa, unless the Minister exercises a personal, non-compellable power to permit such an application. This means that consideration of the Applicant’s non-refoulement claims cannot be deferred to a future application for a protection visa.
  4. Both the Applicant’s counsel and the Minister’s legal representative provided extensive and considered written and oral submissions about how the Tribunal should consider Australia’s international non-refoulement obligations to the Applicant.
  5. Relying on extensive Vietnam country information, the Applicant’s counsel submitted that ‘Australia has non-refoulement obligations in respect of the Applicant under the Refugees Convention’ based on his ‘well-founded fear of serious harm in Vietnam for reasons of his membership of the particular social group being a “persons with mental illness”, “persons with disability” and/or “drug users”’.[67] The Applicant’s counsel further identified the following instances of ‘serious harm’ (based on the definition in subsection 5J(5) of the Act) that would affect the Applicant:
(a) a threat to his life or liberty; ...

(d) significant economic hardship that threatens his capacity to subsist;

(e) denial of access to basic services, where the denial threatens his capacity to subsist;

(f) denial of capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist.

  1. The Applicant’s counsel also contended that the ‘assessment of non-refoulement obligations is forward-looking’ and should consider ‘whether there is a real chance or real risk of serious or significant harm in the reasonably foreseeable future’.[68]
  2. In the alternative, the Minister’s legal representative submitted that the Applicant’s claims for protection were set out in his application for a protection visa in 2004 and considered in the decision record of the Refugee Review Tribunal dated 2 September 2006. The Minister further contended that the factors raised in the Applicant’s current claim to international non-refoulement were the same as those considered by the Refugee Review Tribunal in 2006.
  3. I have read the decision record of the Refugee Review Tribunal dated 2 September 2006 that outlined the Applicant’s evidence and considered his claims of fear of persecution from the Vietnamese government due to the following factors:
  4. The Refugee Review Tribunal decision record considered the Applicant’s claims individually and cumulatively, together with relevant independent country information, and determined it was not satisfied the Applicant had:
    a well-founded fear of persecution for the Convention reasons of his race, his religion, his real or imputed political opinion or his membership of a particular social group should he return to Vietnam now or in the reasonably foreseeable future.[70]
  5. I take into account the decision of the Refugee Review Tribunal dated 2 September 2006.
  6. I have also considered the country information on Vietnam (summarised below in the other consideration of extent of impediments if the Applicant is removed from Australia). While I accept that the Applicant – as a person with a provisional diagnosis of major neurocognitive disorder, and a history of drug addiction and accessing a methadone program – would experience very significant difficulties in Vietnam, I find there is insufficient evidence before the Tribunal to show that his circumstances rise to the level of serious harm or persecution as defined in and required by the Act.
  7. For these reasons, I am satisfied the consideration of international non-refoulement obligations can be given no weight in relation to exercising the discretion to revoke the cancellation of the Applicant’s visa.

Other Consideration 2: Extent of impediments if the Applicant is removed from Australia

  1. The extent of impediments if the Applicant is removed from Australia relates to his capacity to reside in, establish himself and maintain ‘basic living standards’ in his ‘home country’ of Vietnam. Pursuant to subparagraph 9.2(1) of Direction No. 90, I must consider his ‘age and health’, whether there are any ‘substantial language or cultural barriers’, and any ‘social, medical and/or economic support’ available to him in Vietnam.
  2. The Applicant’s counsel provided extensive country information about Vietnam relevant to the Applicant’s circumstances. I set out these reports below.
  3. The United States of America (US) Department of State reported in April 2021 about the lack of access to social services experienced by persons with mental and physical disabilities in Vietnam:
    The constitution provides for the protection of persons with mental and physical disabilities. The law prohibits discrimination against or mistreatment of persons with physical disabilities, mental disabilities, or both and protects their right to access education and other state services, but the government struggled to enforce these provisions. Persons with disabilities faced widespread social stigmatization. The law protects the rights of persons with disabilities, including their access to education, employment, health services, information, communications, buildings, transport, the judicial system, and other state services; however, most persons with disabilities faced challenges in exercising their rights.

    Services for persons with disabilities were often unavailable, and declared policies were not implemented. For example, while the law requires new construction or major renovations of government and large public buildings to include access for persons with disabilities, enforcement was sporadic, particularly outside major cities...[71] [emphasis added]

  4. A 2016 paper by Development Pathways, which was financed by the United Nations Development Programme, outlined that persons with disabilities in Vietnam experience poverty due to inadequate access to social supports:
    The challenges faced by people with disabilities translate into higher poverty rates for people with disabilities. There is a clear relationship between poverty and disability across Vietnam... the poverty rate of households with a disabled member is 20% higher than households without a disabled member, while, for severely disabled household members, the poverty rate is 30% higher.

    ...People with disabilities of working age face significant challenges. They have additional costs, such as medical expenses, assistive devices and special transportation needs and it has been estimated that disability increases the cost of living by around 10%. Many are unable to work, due to the additional costs they face in accessing employment, while others have significant care costs, which are often placed on their families.

    ...People with severe disabilities, between the ages of 40 and 59 years, continue to be more likely to live in poverty than non-disabled people: many of these will have become severely disabled on reaching this age group, and it is likely to reflect their inability to continue to engage productively in the labour market. The challenges faced by people with disabilities in participating in the economy vary by region, since they face greater challenges in areas with poorer infrastructure...

    ...Although Vietnam has a disability benefit system, it is unclear what proportion of people with severe disabilities actually receive a benefit. It is evident, though, that many miss out and it is possible that some of those receiving the benefit have less severe disabilities.[72] [emphasis added]

  5. This report also described inadequate social care services available for persons with mental illness:
    On the specific issue of care of vulnerable individuals, the system is weak and, overall, priority is given to the provision of institutional care, despite international recognition that priority should be given to care in the community. Yet, even institutional care is weak. There are too few social protection centres and many provinces are unable to offer institutional care to particular categories of the population: for example, there are only 16 Provinces with centres to support people with mental health issues.

    MOLISA [Ministry of Labour, Invalids and Social Affairs] [in 2015] has highlighted a range of weaknesses in the public institutional care centres including: insufficient numbers of staff while those employed do not have adequate skills; low standards of accommodation, including poor quality equipment and inadequate sanitation; and an absence of key services such as counselling. Similar problems can be found in those centres run by non-state providers. MOLISA [in 2011] found that the mental health centres were not designed to provide mental health services, while staff did not have skills to provide healthcare or rehabilitation, so that people could reintegrate into their communities. Their report goes on to say that the centres cannot provide a patient-centred approach that respects the human rights of residents. In fact, none of the mental health centres had any professional guidance to follow.

    MOLISA is taking steps to improve the situation in social protection centres but is hindered by inadequate levels of funding, in particular in poorer Provinces. The challenges are greater in non-state centres since they only receive a monthly allowance for each beneficiary, but do not receive additional financial support for medical care and hygiene, which is available to the public centres. The limited finance for centres also translates into low salaries, which means it is challenging to recruit good staff.

    There is very limited formal support for those living in the community and most of the burden is still placed on family members, relatives or neighbours, which inhibits their ability to work and can generate high levels of stress. In fact, MOLISA [in 2011] found that 18% of those with severe mental illness living at home were held caged or chained, after having applications to move into mental health centres turned down, due to the government’s limited capacity to offer this support.

    Overall, a high proportion of people with care issues and needs are likely to receive inadequate attention. A wide range of mental health issues – such as depression, anxiety, post-traumatic stress, issues related to alcohol or substance abuse and challenges faced by post-natal women – are not addressed, with the system focusing only on psychotic disorders. There is unlikely to be sufficient attention given to issues such as domestic violence and child abuse, while many frail older people and people with disabilities are left to fend for themselves...[73] [emphasis added]

  6. The United Kingdom (UK) Home Office also reported in 2021 in relation to the mental health system in Vietnam:
    An article published in 2019 in the journal Innovations in Global Mental Health, titled ‘Challenges in Integrating Mental Health into Primary Care in Vietnam’ stated that:

    Vietnam has a weak mental health system governance with no mental health policy and legislation and an ineffective action plan. Like other developing countries, Vietnam is having institutional approach [sic] in providing formal mental health services such as psychiatric hospitals and social protection centers. Informal community care providers which care for most people with mental disorders were ignored by the government. In addition, mental health human resource is facing shortage in terms of quantity and limited quality.[74] [emphasis added]

  7. In January 2022, the Australian Government Department of Foreign Affairs and Trade (DFAT) reported the following barriers for persons with mental illness accessing treatment in Vietnam:
    Stigma is a barrier to seeking treatment and some people or their families may deny that a mental health problem exists in the first place. Young people may be more willing than older people to self-describe as mentally unwell and seek treatment.

    The quality of mental health treatment varies from place to place. It is likely to be better at main hospitals than district-level hospitals, for example. In-country sources told DFAT that treatment is often inadequate, with a large ratio of patients to mental health professionals, and that most mental health conditions, especially depression and anxiety, will go untreated. Treatment relies on medication rather than psychotherapy, which is often unavailable.

    Cost may be a barrier to mental healthcare, especially for the very poor or those with complex needs. Basic treatment and basic medications are covered by social health insurance. In country experts told DFAT the out-of- pocket cost for medication is low and affordable to most people. Distance can also be a significant barrier to treatment. Mental health treatment is supposed be available at the district level, but DFAT understands this is not always the case in practice.[75] [emphasis added]

  8. DFAT further reported about drug addiction in Vietnam:
    ...illegal drug use is a significant social problem...

    Drug users, especially amphetamine addicts, might be required to register with the police and may be detained at government treatment centres known as ‘06 Centres’. There are no drug substitution therapy options for methamphetamine addicts. Drug users typically spend 12 months in 06 Centres, though some remain for up to four years for post-treatment management. In-country sources report that conditions in 06 Centres vary from centre to centre. They describe conditions as ‘prison-like’ (with guards, bars, razor wire and compulsory work) but generally clean and safe, if sometimes overcrowded. Sources told DFAT 06 Centres do not provide effective, proven medical treatment for drug addiction.

    Heroin addicts may be diverted to methadone programs run by health professionals. These programs have been running since 2008 and have been scaled up in recent years. The number of people in 06 Centres has reduced as the availability of methadone programs has increased. Methadone treatment is not free, but the costs are heavily subsidised by the Government. Services may be available to patients outside of clinics, with methadone provided for use in the home.

    It is difficult to say who will be taken to a 06 Centre rather than given drug substitution treatment. Substitution treatment is only available to opioid users; methamphetamine users do not receive substitution treatment. In general, if a drug user is referred to treatment through the health system, they are more likely to receive substitution treatment; if referred through police, they are more likely to be placed in an 06 Centre. DFAT understands people caught by police more than once are more likely to be taken to an 06 Centre.

    Social stigma against drug users is strong. Drug users may be seen as ‘morally weak’ and those subjected to stigma may experience discrimination from families and employers. Stigma exists against not only current drug users but also former and recovering drug users. Drug use is seen as a moral issue and the media portray drug users negatively. In-country sources told DFAT it may be possible to hide former drug use from, for example, employers, but families and communities are likely to know that a person is or has been a drug user and thus people may be subject to stigma.[76]

  9. Based on the written and oral evidence, I make the following findings of fact:
  10. In terms of difficulties the Applicant may face in Vietnam, Dr ‘TW’ stated in his report on 25 October 2022:
    19. It is difficult to speculate about the impact deportation would have on [the Applicant] given that I was not able to address these questions with him. However, according to his personal statement, he does not appear to have any family in Vietnam, and he would be without familial and social support should he return to the country. He would also struggle to find work to support himself financially (particularly considering his suspected communication, cognitive and interpersonal difficulties). He raised concerns for his safety given his family’s history in the Vietnam war and his perceived marginalisation as a member of a minority group. He also believes that he has regular contact with his family in Australia (which does not seem to be the case based on the available evidence) and his delusional and persecutory beliefs, together with his history of depressive mood ... suggest that his mental health will suffer in the event of his deportation and his (perceived) separation from his family in Australia.[77]
  11. Dr ‘TW’ also gave oral evidence about the impact on the symptomology of the Applicant’s brain injury if he is returned to the ‘unfamiliar environment of Vietnam’:
    I actually have a student who is doing research on apathy in Vietnam following brain injury, and ... she actually found that, obviously, [it is] quite a different society in terms of the way that it manages brain injury. So, there’s a lot less resources available for medical services and rehabilitation, and ... therefore a lot more onus is placed on family members to help provide that support. ... There’s a lot more emphasis placed on the family unit, and also supports in terms of helping managing someone’s brain injury within that culture. So, from that perspective, given that [the Applicant] has ... no supports in Vietnam, no family members still remain in Vietnam, he would then be quite vulnerable, particularly without those family members and supports from that collective framework. So, I reckon that would be more of the potential impact on his brain injury, and would therefore, given that there’s then more limited resources available to him from a medical perspective, that would be a concern of mine.[78] [emphasis added]
  12. It is clear from the documentary and oral evidence before the Tribunal that the Applicant would experience extreme and untenable impediments if he is returned to Vietnam. Due to his brain injury/neurocognitive disability and without familial support, I find he would not be able to access the very limited social and medical services or methadone treatment in Vietnam that the country information suggests may be available to him. It is also very unlikely, in view of the Applicant’s extended time in prison and detention and limited employment experience, that he would have any capacity to earn a livelihood and consequently, I find he would be at extreme risk of poverty. I also accept the Applicant has expressed a subjective fear of harm from the Vietnamese Government if he is returned to Vietnam and, in view of his brain injury/neurocognitive disability, I find this would cause him significant distress.
  13. In considering the evidence and making these findings, I am satisfied the Applicant is an extremely vulnerable person due to his brain injury/neurocognitive disability. Reinforcing this vulnerability is the dearth of historical medical evidence outlining diagnoses, treatment and available care/support; this is despite the Minister extensively summonsing documents from government agencies and the efforts of the Applicant’s legal representative. This absence of evidence is especially obvious and concerning given the Applicant’s distressed behaviour, poor memory/recall, limited insight, and confused and vague demeanour at the Tribunal hearing.
  14. On balance, I am satisfied the consideration of the extent of impediments if the Applicant is removed from Australia weighs extremely strongly in favour of exercising the discretion to revoke the cancellation of his visa.

Other Consideration 3: The impact on the victim

  1. Subparagraph 9.3(1) of Direction No. 90 requires that I consider the impact of the section 501CA decision on members of the Australian community, including any victims of the applicant’s criminal behaviour.
  2. The only victim of the Applicant’s offending that is known is his sister. I accept the evidence that the Applicant lived with his sister and her children in the period after the AVO expired until he was imprisoned in 2015.
  3. Based on the limited evidence before the Tribunal, I give this consideration no weight in exercising the discretion to revoke the decision to cancel the Applicant’s visa.

Other Consideration 4: Strength, nature and duration of ties to Australia

  1. In considering the strength, nature and duration of the Applicant’s ties to Australia, subparagraphs 9.4.1(1) and (2) of Direction No. 90 stipulate that I must consider any impact of the decision on his ‘immediate family members’ in Australia and I must have regard to:
  2. The Applicant arrived in Australia aged 11 years old and has lived in Australia for over 40 years. He has never departed Australia. As acknowledged by the Judge’s sentencing remarks in 1999, the Applicant has had an ‘unfortunate background’; he arrived in Australia as a child with some of his siblings and extended family members but was later left (with his younger brother) to fend for himself from the age of 16 years after his grandmother passed away. He was addicted to heroin by the age of 20 years, however, has been on a methadone program since the age of 24 years. He sustained a traumatic brain injury when he was 23 years old, and in 2015 had a provisional diagnosis of Major Neurocognitive Disorder. While this background does not excuse the Applicant’s offending, it provides context in understanding his behaviour.
  3. I accept that, based on the Applicant’s ‘Convictions, Sentences and Appeals’ record and the decision record of the Refugee Review Tribunal, he has spent an extensive period in prison and in detention. I also accept that he has had periods of employment in factories and tiling services, which is considered a positive contribution to the Australian community.
  4. The Applicant has established family ties – his son, mother, nine siblings and extended family – with members of the Australian community including Australian citizens and people who have an indefinite right to stay in Australia. In his statement, he wrote that he wants to see his family who live in Sydney:
    I used to live with my sister. I think I lived with her for many years before I got to jail. I think I will go live with my sister or my parents...

    I gotta find my family here in Sydney because I think they’re waiting for me. I got my family details so I gotta contact them.[79] [replicated as in original]

  5. I accept this evidence by the Applicant but note there has been no evidence or statements filed by members of his family, despite attempts by his legal representative.
  6. Based on the evidence, I am satisfied the other consideration of strength, nature and duration of ties to Australia weighs very strongly for exercising the discretion to revoke the decision to mandatorily cancel the Applicant’s visa.

CONCLUSION

  1. I am satisfied that:
  2. In relation to the other considerations, I find:
  3. Section 7 of Direction No. 90 states that primary considerations should generally be given greater weight than other considerations. However, I am satisfied this weighting should not apply to the Applicant in these circumstances because – for the reasons I set out at paragraphs 117–118 – I place significant weight on the extent of impediments to the Applicant if he is removed from Australia. Indeed, given the Applicant’s situation, I consider that the other considerations cumulatively outweigh the primary considerations.
  4. Weighing all the relevant primary and other considerations, I am satisfied that there is another reason to revoke the decision to cancel the Applicant’s visa.
  5. For these reasons, the decision made by a delegate of the Minister on 26 August 2022 to not revoke the mandatory cancellation of the Applicant’s visa is set aside.

DECISION

  1. The decision under review is set aside and, in substitution, the cancellation of the Applicant’s visa is revoked under subsection 501CA(4) of the Act.

I certify that the preceding 134 (one hundred and thirty -four) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member.

...................................[SGD].....................................
Associate

Dated: 21 November 2022

Date(s) of hearing:
3 and 4 November 2022
Counsel for the Applicant:
D. Bhutani, Maurice Byers Chambers
Solicitors for the Applicant:
K. Anandasivam, Legal Aid NSW
Solicitors for the Respondent:
M. Donald, Sparke Helmore Lawyers

[1] The Applicant’s year of birth appears as either 1970 or 1971 in different records.

[2] Exhibit R1-TB9, 246.

[3] Exhibit G-G4, 39.

[4] Exhibit G-G12.

[5] Exhibit G-G13. The notice was re-issued to the Applicant following the Federal Court decisions in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174.

[6] Exhibit G-G15, 99-102.

[7] Exhibits G-G16 and G-G17.

[8] Referred to in the decision as ‘Delegate of a Minister administering the Migration Act 1958’.

[9] Exhibit G-G3, 37.

[10] Exhibit G-G3, 10.

[11] Exhibit G-G5, 46.

[12] Oral evidence of the Applicant on 3 November 2022, Transcript of proceedings, 9.

[13] Oral evidence of the Applicant on 3 November 2022, Transcript of proceedings, 37.

[14] Exhibit A1.

[15] Exhibit G-G19, 156-157.

[16] Exhibit R1-TB5, 100.

[17] Exhibit R1-TB5, 100.

[18] Exhibit G-G19, 157.

[19] Exhibit R1-TB5, 100.

[20] Exhibit G-G16, 118.

[21] Exhibit R1-TB5, 101.

[22] Exhibit G-G16, 121.

[23] Exhibit R1-TB1, 62.

[24] Exhibit A1.

[25] Exhibit G-G16, 121.

[26] Exhibit A4, 19.

[27] Exhibit A1.

[28] Exhibit A2.

[29] Exhibit A2, 108, 111 and 114.

[30] Exhibit A2, 107.

[31] Exhibit A2, 46.

[32] Oral evidence of the Applicant on 3 November 2022, Transcript of proceedings, 31.

[33] Exhibit A4.

[34] Oral evidence of Dr ‘TW’, 4 November 2022, Transcript of proceedings, 51.

[35] Oral evidence of Dr ‘TW’, 4 November 2022, Transcript of proceedings, 51.

[36] Oral evidence of Dr ‘TW’, 4 November 2022, Transcript of proceedings, 52-53.

[37] Exhibit A1.

[38] Oral evidence of Dr ‘TW’, 4 November 2022, Transcript of proceedings, 68-69.

[39] Oral evidence of Dr ‘TW’, 4 November 2022, Transcript of proceedings, 71.

[40] Oral evidence of Dr ‘TW’, 4 November 2022, Transcript of proceedings, 72.

[41] Exhibit G-G5, 42-47.

[42] Exhibit G-G8, 66.

[43] Exhibit G-G8, 68.

[44] Exhibit G-G4, 40.

[45] Exhibit G-G7, 62-63.

[46] Exhibit G-G7, 64.

[47] Exhibit G-G7, 64.

[48] Exhibit G-G6, 52.

[49] Exhibit G-G6, 53-56.

[50] Exhibit G-G6, 57-58.

[51] Exhibit G-G20, 180-190.

[52] The Refugee Review Tribunal decision record refers to the Applicant being held in detention for four years – see Exhibit G-G19, 177. This is also consistent with the Applicant’s ‘Conviction, Sentences and Appeals’ report that shows he left prison on 24 May 2003 and states ‘deportation’ – see Exhibit G-G5, 46.

[53] Exhibit G-G5, 48.

[54] Exhibit A2.

[55] [2022] FCAFC 115, [124].

[56] Applicant’s Statement of Facts, Issues and Contentions, 4 October 2022.

[57] Exhibit A1.

[58] Oral evidence of the Applicant on 3 November 2022, Transcript of proceedings, 29.

[59] Exhibit A4.

[60] Exhibit A4.

[61] Oral evidence of Ms ‘EL’ on 3 November 2022, Transcript of proceedings, 40.

[62] [2019] FCAFC 185.

[63] Applicant’s Statement of Facts, Issues and Contentions, 4 October 2022, citations omitted.

[64] 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the International Covenant on Civil and Political Rights and its Second Optional Protocol.

[65] Exhibit A1.

[66] Applicant’s Statement of Facts, Issues and Contentions, 4 October 2022.

[67] Applicant’s Statement of Facts, Issues and Contentions, 4 October 2022.

[68] Applicant’s Reply Submissions, 31 October 2022.

[69] Exhibit G-G19, 170-177.

[70] Exhibit G-G19, 177-178.

[71] US Department of State, 2021 Country Report on Human Rights Practices: Vietnam (2021), 1.

[72] Development Pathways, Social Assistance in Viet Nam: review and proposals for reform (2016), 45, citations omitted.

[73] Development Pathways, Social Assistance in Viet Nam: review and proposals for reform (2016), 75, citations omitted.

[74] The UK Home Office, Country Policy and Information Note Vietnam: Mental healthcare (2021), 13.

[75] Australian Government Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam (2022), 9.

[76] Australian Government Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam (2022), 9-10.

[77] Exhibit A4,

[78] Oral evidence of Dr ‘TW’, Transcript of proceedings on 4 November 2022, 57.

[79] Exhibit A1.

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