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

MIGRATION - citizen of Vietnam - refusal of parent visa - whether Visa Applicant passes character test - past criminal offending in Vietnam - Ministerial Direction No. 110 - Primary Considerations - protection of the Australian community from criminal or other serious conduct - protective factors - claim of innocence - low risk of re-offending - strength, nature and duration of ties to Australia - best interest of minor children - expectation of the Australian community - Other Considerations - whether discretion should be exercised to refuse the grant of the visa under section 501(1) of the Migration Act 1958 (Cth) - decision under review set aside and substituted.

Administrative Review Tribunal Act 2024 (Cth)

Migration Act 1958 (Cth)

FYBR v Minister for Home Affairs [2019] FCAFC 185

HZCP v Minister for Immigration and Border Protection [2018] FCA 1803

Direction No. 110 - Migration Act 1958 - Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.

1. Review is sought by the daughter Applicant ('Review Applicant') on behalf of her father, Mr Hoang Nam Nguyen ('Visa Applicant'), of a 19 December 2024 decision refusing a Class UT Subclass 173 (Temporary) Contributory Parent visa (Visa) pursuant to s501(1) of the Migration Act 1958 (Cth) ('the Act').

1. The 63-year-old Vietnamese national Visa Applicant applied for the Visa on 29 April 2014, over 11 years ago. He last visited Australia in September 2014. Associated with the Visa application is the similar visa application of the Review Applicant's mother/Visa Applicant's wife Mrs Thi Thu Hong Nguyen, both visa applicants being the biological parents of the Review Applicant. The Review Applicant is now a single mother with three children, aged 14, 11 and 7, all Australian citizens living in Australia.

1. The Tribunal has considered the documentary evidence before it within the Joint Tender Bundle together with the testimony of the Review Applicant and Visa Applicant, both of whom gave their testimony through an interpreter and were cross-examined, and the written and oral submissions of the parties.
2. The parties agree and the Tribunal finds that the Visa Applicant does not pass the character test as he has a substantial criminal record within the meaning of paragraph 501(7)(c) of the Act. The sole issue for the Tribunal to determine is whether it should exercise the discretion under s 501(1) of the Act to refuse the grant of the Visa after applying Direction 110 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).
3. Paragraph 5.2 of the Direction establishes the framework through which decision-makers should approach deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA of the Act. The framework is as follows:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) The safety of the Australian Community is the highest priority of the Australian Government.

(3) 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.

(4) 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 noncitizen poses a measurable risk of causing physical harm to the Australian community.

(5) 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.

(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, 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.

(7) 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.

The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measurable risk of causing physical harm to the Australian community.

1. Paragraph 8.1(2) of the Direction requires Decision-makers to give consideration to:

(8) the nature and seriousness of the non-citizen's conduct to date; and

(9) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

Nature and seriousness of the non-citizen's conduct to date

1. In considering Primary Consideration 1 under Direction 110 concerning the protection of the Australian community from criminal or other serious conduct the Tribunal first looks to the nature and seriousness of the Visa Applicant's conduct to date. In The Visa Applicant's criminal record in Vietnam identifies a single offence of drug trafficking which was the result of him being arrested in his family home (whilst the Review Applicant was cooking) in Can Tho Province on 7 November 1999, over 25 years ago. He was prosecuted under Article 194 of the Penal Code 1999 of Vietnam and sentenced to 9 years imprisonment (including 2 years as a consequence of his not guilty plea.[1]
2. The facts before the Tribunal are somewhat unique because the Visa Applicant maintains to this day that he is innocent of the offending and that the conviction (which is now wiped from his record under Vietnamese law) was the result of a setup, as a result of an extra marital affair the Visa Applicant had in 1999 with a Ms Thi Viet Phuong Nguyen, being the daughter of a then government official who had threatened to shoot the Visa Applicant, disapproving of that relationship.
3. The Visa Applicant says that the conviction was the result of false evidence from the ex-boyfriend of the woman he had the extra marital affair with. Further, he says that no drugs were found when his home was searched at the time of his arrest, no other individuals were prosecuted, no victims were identified, no witnesses gave evidence nor was there other evidence to support any charges and he conducted his defence himself, believing that because he was innocent he would not be found guilty.
4. The Visa Applicant has maintained his innocence throughout the trial and appeal process and has made attempts since to have the conviction removed. He testified that he has now exhausted his attempts mainly because the conviction is nearly 25 years ago. Further, the Tribunal notes that in June 2010 the Visa Applicant received notification that he was "acquitted of his criminal records and is considered not yet sentenced." The Tribunal also notes that the Visa Applicant was granted early release after about 5 years of imprisonment and the limited evidence before the Tribunal suggests he was a 'model' prisoner.
5. The evidence also shows that this conviction was the only one relating to the Visa Applicant and that he does not use drugs, smoke nor is a violent person. He runs a small convenience shop with his wife, adjacent to their home in Vietnam. It is also submitted that the Vietnamese judicial system, at least at the relevant time, may not have had the same integrity and transparency as the Australian judicial system and the Tribunal notes the US Department of State Country Report on Human Rights Practices 1998 - Vietnam and the various violations highlighted by the Visa Applicant.[2] The Tribunal also notes that the only evidence in respect of the extent of the offence was the testimony of the Applicant that it involved only two capsules of heroin with a minimal street value.
6. Having looked at the very limited documentary evidence regarding the conviction and sentencing and considered the testimony of the Visa Applicant and the submissions of the parties, it is simply not possible for the Tribunal to forensically effectively test the legitimacy of the conviction. In any event, as the Respondent correctly submits, the Tribunal cannot go behind the conviction and the essential facts on which it is based. As stated in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [28] "Where a previous conviction is the foundation for the exercise of power by the decision-maker [as here], no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself." The Respondent goes further and submits that the Visa Applicant's explanation of his innocence is not plausible.
7. The proper approach the Tribunal must take is to avoid attempting to go behind the conviction and instead look at it in the context of a single offence by the Visa Applicant from 1999. In light of the testimony of the Review Applicant and the Visa Applicant and the documentary evidence which is before the Tribunal, the Tribunal finds the nature of that 1999 offending to be of some seriousness but not to be considered "serious" or viewed "very seriously" as contemplated by paragraph 8.1.1(1) (a) and (b) respectively.
8. In context, as a single offence from 1999 with no offending in the past 25 years the Tribunal finds that its seriousness is tempered by the significant number of years which have passed since, during which the Visa Applicant has not re-offended

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

1. Such context also informs the Tribunal's assessment of risk to the Australian community with respect to any re-offending. Whilst acknowledging the Respondent's submission regarding lack of remorse, the Visa Applicant did testify as to his regret that his various attempts to prove his innocence over the years had failed, the Tribunal noting the tension in any expression of remorse for the offending in circumstances where the Visa Applicant maintains he did not commit the offence.
2. The Tribunal further notes various protective factors including the Visa Applicant's age, his otherwise clean record as a good citizen and the fact that if he is permitted to enter Australia, he will be joined by his wife and will be reunited with his only daughter and his three grandchildren which will act as a significant protective factor. In the circumstances the Tribunal finds that there is a very low risk of the Visa Applicant re-offending.
3. The Respondent also points out purported "recent" adverse conduct in failures by the Visa Applicant to properly declare his criminal history in passenger arrival cards in 2008, 2011 and 2014. A similar failure also occurred in visa applications to the Respondent's department in the past. Whilst such should not have occurred the Tribunal is satisfied, on the evidence, that such failures were inadvertent rather than based upon any intention to deceive the Australian government. The Tribunal gives minimal weight to these limited events.
4. The Tribunal is satisfied that this Primary Consideration weighs only slightly in favour of visa refusal.

1. There is no evidence that the Visa Applicant has been associated with any family violence, hence this Primary Consideration is given neutral weight.

The strength, nature and duration of ties to Australia

1. To date the Visa Applicant has not lived in Australia and has not contributed to the Australian community through employment or otherwise. He has a strong and enduring relationship with his only child, the Review Applicant, who will benefit from the physical presence of her parents in Australia and who gave compelling testimony of her desire that her family can be reunited here in Australia and so that she can look after her parents as they age. Also the Review Applicant and the Visa Applicant gave evidence to the effect that the Visa Applicant's three grandchildren, (Nhu Tam Ran 14 years old, William Tran 11 years old and Kaity Nguyen 7 years old) will also each benefit by having grandparents here in Australia, to enhance each of their upbringing.
2. The Review Applicant also testified that should her parents be permitted into Australia, they would assist with their grandchildren, allowing the Review Applicant to look for employment and otherwise assist the Review Applicant with the upbringing of the three grandchildren.
3. The Respondent accepts and the Tribunal finds that the Review Applicant/Visa Applicant's immediate family will face emotional, practical and financial hardship if the visa is refused and the Tribunal so finds.
4. The Tribunal finds that this Primary Consideration weighs significantly against visa refusal.

1. So far as each of the three minor grandchildren are concerned, whilst accepting that to date the Visa Applicant and his wife (as grandparents) have had a relationship limited to video and phone calls, the evidence does support a finding that the Review Applicant, as the primary care giver/single mother of the three minor grandchildren will gain a positive benefit if the visa is allowed. In addition to this, each of the three minor children will have enhanced parenting as a consequence if the Visa Applicant is permitted to reside in Australia. Particularly where, as here, the father appears to have essentially no involvement with the upbringing of the three children, the presence of the grandparents should be of significant positive impact upon each child.
2. In the circumstances the Tribunal is satisfied that this Primary Consideration weighs heavily against visa refusal.

1. The Australian community expects non-citizens to obey Australian laws while in Australia. That expectation may be informed by conduct overseas by a visa applicant and is so informed in this review application. The expectation is to be considered normatively by reference to the Direction itself. The expectations of the Australian community as a whole are to be considered (Direction 110 para 8.5(4)). It is not for the Tribunal itself to determine such expectations.[3]
2. Consistent with the findings the Tribunal has made in respect of both the character test and Primary Consideration 1 above the Tribunal finds that this Primary Consideration weighs in favour of visa refusal.

1. The other considerations within Direction 110 being legal consequences of decision, extent of impediments if removed and impact on Australian business interests do not apply on the facts before the Tribunal and as a consequence are given neutral weight.

1. The Tribunal has conducted the evaluative exercise of weighing up the considerations to determine whether it is satisfied the available discretion should be exercised to refuse the visa.
2. On balance, having applied the findings above as to the weight respectively to be applied to each of the considerations, the Tribunal is satisfied that those against the visa refusal outweigh the considerations in favour of visa refusal. Therefore, the visa refusal decision should be revoked.

1. The decision under review is set aside and substituted with a decision to revoke the visa refusal.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of General Member A. Maryniak KC

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

[2] Applicant Statement of Facts, Issues, and Contentions [28].

[3] See also FYBR v Minister for Home Affairs [2019] FCAFC 185 at [66]- [67], [91], [101] and [104].