JWKG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 21 (19 January 2021)

Strength, nature and duration of ties (to Australia) (paragraph 14.2)

1. The Direction requires decision-makers to have regard to how long a person has resided in Australia, noting that less weight should be given when the non-citizen began offending soon after arrival in Australia and, on the other hand, more weight should be given to time the person has spent contributing positively to the community. The Tribunal must also consider the nature of any family or social links with Australian citizens or permanent residents, including the effect of non-revocation on them.
2. The Applicant arrived in Australia in 2013. On release from immigration detention he first worked in a voluntary capacity tending the garden at St John's Church in Glenorchy, Tasmania. He later got a short-term job on a cherry farm in Tasmania. On moving to Sydney, he obtained employment with a company that installed aluminium windows. He told the Tribunal that this was full-time employment, for six days a week, for a period of around three years. The Respondent submitted that there was no evidence to corroborate that this was full-time employment. Equally, there was no evidence that it was not, and the evidence of the three other witnesses was that they knew about the job. I can see no reason why the Applicant would mislead the Tribunal about the hours he worked. I therefore consider that, during this period, he made a positive contribution to the Australian economy and community.
3. His single offence occurred in May 2019, which was some six years after his arrival in Australia and around five years after he was released into the community.
4. As mentioned earlier, the Applicant does not have family of his own in Australia. He does have a circle of friends in Melbourne and Sydney, and particularly in Tasmania, three of whom gave oral evidence. The Tribunal found that the evidence of Father Moate and Mr and Mrs Campton was significant. There was consistent evidence of an historical friendship with the Applicant since he first was released from the Pontville IDC, one that has been maintained through regular contact even after the Applicant moved to the mainland. Their assessment of his character as generally worthy is important in this consideration.
5. The fact that Mr and Mrs Campton have previous experience in housing refugees and released prisoners and helping them in their rehabilitation and in finding employment weighs strongly in regard to this consideration. It was clear that JWKG wanted to embrace this offer and return to Tasmania to live with the Camptons in their house and make a fresh start, once released from prison and if allowed to remain in Australia. The articulated plans for English language tutoring and career counselling are also important in the Tribunal's conclusion that this would be a significant protective factor in JWKG's rehabilitation and against recidivism.
6. The Tribunal finds that this consideration weighs in favour of revoking the cancellation of the visa, and relatively heavily so.

Impact on Australian business interests (paragraph 14.3)

1. The Direction provides that the Tribunal should consider any impact on Australian business interests if a non-citizen's visa is not revoked, noting that an employment link would generally only be given weight where not restoring the person's visa would significantly compromise the delivery of a major project or important service in Australia.
2. While the Applicant's evidence of stable employment in Sydney in the construction industry for around three years is accepted by the Tribunal, I do not consider that this rises to the level that would require consideration under this part of the Direction.
3. The Tribunal finds that this consideration is not relevant and weighs it neutrally in this assessment.

1. The Direction provides for the Tribunal to take into account any information available where a victim of a person's offending may be aware of the immigration status of the person. The Respondent submitted that there is no evidence relevant to this consideration, and the Tribunal accepts that submission.
2. This consideration therefore weighs neutrally.

Extent of impediments if removed (paragraph 14.5)

1. The Direction requires the Tribunal to consider the extent of any impediments that JWKG may face if removed from Australia to Vietnam, in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of that country. Factors that should be taken into account are the Applicant's age and health, any substantial language or cultural barriers, and any social, medical and/or economic support available to him in Vietnam.
2. JWKG's own evidence at the hearing was that he is in good health. He told Ms Lechner that he was not on any current medication. JWKG confirmed to the Tribunal that he speaks Vietnamese and there is no evidence before me of any cultural barriers. Mrs Campton in her evidence noted that he has a circle of Vietnamese friends in Australia with whom he has mixed, so it is reasonable to conclude that he has maintained some cultural linkages.
3. While the Tribunal accepts that the social and economic support, and health care, that would be available to JWKG if he is repatriated are not comparable to that available to him in Australia, that is not the measure set out in the Direction. The correct yardstick is to examine the situation of the Applicant in the context of what would be available to him as a Vietnamese citizen in company with other Vietnamese nationals in that country. There was no evidence before the Tribunal of any special considerations that might be relevant to JWKG in this respect, which might create some special impediment if he is repatriated. He would have the same access to social support as would any other citizen of Vietnam.
4. The Tribunal finds that this consideration weighs neutrally in this assessment.

1. The Tribunal has weighed all the relevant considerations in the Direction. One of the primary considerations is not relevant to his circumstances. Of the other two primary considerations, both weigh against revoking the mandatory cancellation of the visa, but neither of them heavily, nor in the Tribunal's view, determinatively. In regard to the other considerations, all of them have been found by the Tribunal to weigh neutrally except for the consideration relating to the strength and nature of JWKG's ties to Australia. This consideration is found to weigh in favour of the Applicant and, for the reasons set out above, relatively heavily.
2. The Tribunal is not limited only to the consideration of the factors set out in the Direction in making its considered assessment as to whether there is another reason to revoke the mandatory cancellation of the Applicant's visa. In this consideration, the Tribunal notes that JWKG held down a good job for some three years, paid taxes and was a productive member of the community. He took out a bank loan, bought a car and used some of the funds for living expenses.
3. Unfortunately, JWKG also became involved in gambling, and fell, relatively heavily, into debt. At this time, he also lost his job; it would appear on the uncontested evidence through no fault of his own. Unfortunately, this added to the financial pressure he was under. He became vulnerable to the influence of criminal elements. It may be that because of his low average intelligence, as professionally assessed, that he was suggestible. However, it was not accepted by the Court that his low intelligence diluted his culpability for his criminal offending, and such a proposition is also not accepted by the Tribunal.
4. However, it is important that the nature of the offending is carefully considered. The Applicant received relatively small financial gain from his involvement in watering the cannabis crop on around six or seven occasions and was not involved in the setting up of the drug operation. There is no evidence that he stood to benefit from the ultimate sale of the cannabis. Because he admits that he knew what he was doing was wrong, JWKG cannot be regarded as a dupe, but equally he was not a significant player in this enterprise. The sentence he received reflected the provisions in the Victorian legislation, which in turn rightly reflect community concerns about the infiltration into our society of illegal drugs.
5. The Tribunal notes (Exhibit A3) that the officers of Fulham Correctional Centre have consistently provided reports of JWKG's conduct which reflect well on him in prison. Before the Tribunal (GD, p 106) was a report from a Kangan TAFE English teacher dated 3 September 2020. She recorded that JWKG "always works well in class and has a positive attitude towards his studies". She records that he was a regular attender at the classes and worked conscientiously, was polite and well-behaved. Father Moate recorded in his statement (GD, p 109) that when he had a serious fall and broke his shoulder, JWKG took leave from his job in Sydney and travelled back to Tasmania to help Father Moate in showering and dressing and getting to medical appointments, during his convalescence.
6. Paragraph 8(4) of the Direction states that primary considerations should generally be given greater weight than other considerations. However, the Tribunal in consideration whether there is 'another reason' under section 501CA(4)(b) of the Act necessarily requires me to take into account the totality of the Direction, and any other relevant factor consistent with the Act. Referring to an earlier but relevantly similar version of the Direction, the Full Court of the Federal Court of Australia said in Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; (2016) 241 FCR 461 at 473 [57]:

Notwithstanding these features, as the Minister submitted, the terms of Direction No 55 to not purport to direct a decision maker as to the outcome of the s 501(2) residual discretion in relation to any given individual, or categories of individuals. Further, by the use of qualifying words such as "generally" (for example, in cl 8(4) that primary considerations "should generally be given greater weight than the other considerations"), the weighing process in each case is in substance left, as it must be, to the individual decision maker exercising the power under s 501.

1. It has been held by the Full Court of the Federal Court (Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [35]) that the Tribunal would err if it concluded that an 'other consideration' in the Direction was incapable of outweighing a primary consideration.
2. The Tribunal, in examining all the considerations and the circumstances of the Applicant overall, has concluded that the weight of the primary consideration relating to the strength of JWKG's ties with Australia does outweigh the two primary considerations which, if not heavily, do weigh against him. JWKG is a young man of below average intelligence who committed one offence. It was a serious offence. But there is no evidence of any other criminal behaviour by him, or other serious conduct that did not lead to prosecution but that might be relevant in this assessment.
3. There is uncontested evidence of the Applicant's good character in other respects in undertaking voluntary work and helping someone convalescing from an accident. There is also evidence that he was able to obtain and hold regular, full-time employment. The Tribunal is satisfied that significant protective features are ready and available to surround him on release from prison. The Applicant said he was keen to take up the accommodation offer in Tasmania, with people he already knows well, who gave evidence to the Tribunal of their support, and who have experience in assisting other recently released prisoners. This factor, together with a positive environment and prospects of obtaining employment and improving his English, would be strongly protective against JWKG further offending and, in the Tribunal's view, augurs well for his complete rehabilitation, as does his good conduct in gaol. Should he decide not to avail himself of this proffered offer, JWKG is completely aware that the Minister retains the option to cancel his bridging visa at any time if the conditions on which it is granted are breached. After careful consideration in this particular case of a single, albeit serious, offence and concrete positive indicators for rehabilitation and a settled and law-abiding future, the Tribunal finds that the preferable decision is that the discretion provided in the Act should be exercised in favour of the Applicant.

1. The Tribunal decides to set aside the decision of the delegate of the Respondent dated 26 October 2020. In its place, under section 43(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal substitutes a decision that the mandatory cancellation of the Applicant's Class WE Subclass 050 - Bridging (General) visa be revoked under section 501CA(4)(b)(ii) of the Migration Act 1958.

I certify that the preceding 120 (one-hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

...[sgd]....................................................................