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MIGRATION - refusal to grant visa on character grounds under s 501(1) - contributory parent visa - applicant has substantial criminal record - driving offences - visa overstay - best interests of minor children weigh in favour of granting visa - decision under review set aside.

Migration Act 1958 (Cth)

Pavey and Minister for Home Affairs [2019] AATA 4198

Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)

1. Thi Kim Roi Nguyen seeks review of a decision of the Minister for Immigration and Migrant Services (the Respondent) to refuse to grant Chu Xuan Thang a Contributory Parent (Migrant) (Class CA) visa (the visa) under s 501(1) of the Migration Act 1958 (Cth) (the Act).
2. Mr Chu is a citizen of Vietnam and resides in that country. He first arrived in Australia in 1996 as holder of a student visa and remained until departing on 18 July 2012. Mr Chu did not hold a visa and was an unlawful non-citizen from July 1999 to August 2008, and again from June 2009 to October 2011 when he was taken into immigration detention. In October 2011, Mr Chu and Ms Nguyen married. Mr Chu departed Australia on 18 July 2012.[1]
3. Ms Nguyen travelled frequently to Vietnam and they have two sons together. Both children reside in Western Australia where they are being cared for by Ms Nguyen's mother. Mr Chu wishes to return to Australia so he can be his sons' primary carer.
4. For the reasons that follow, the reviewable decision will be set aside and the matter remitted to the Respondent.

1. Subsection 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
2. Paragraph 501(6)(a) provides that a person does not pass the character test if they have a 'substantial criminal record'. Paragraph 501(7)(d) of the Act provides that a person has a substantial criminal record if the person has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.
3. Subsection 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The relevant direction is Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 110).[2]
4. Paragraph 5.2 of Direction 110 provides overarching principles which I am to consider when deciding whether to refuse a non-citizen's visa under section 501.

(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 non­citizens 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 non-citizen 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.

(8) 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 non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

1. Part 2 of Direction 110 identifies the considerations the Tribunal must take into account where relevant to a decision.[3] In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.
2. The primary considerations in the Direction are:

(1) protection of the Australian community from criminal or other serious conduct;

(2) whether the conduct engaged in constituted family violence;

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

(4) the best interests of minor children in Australia; and

(5) expectations of the Australian community.

1. The other considerations set out in Direction 110 which must be taken into account where relevant include, but are not limited to:

a) legal consequences of the decision; > > b) extent of impediments if removed; > > c) impact on Australian business interests.

1. Mr Chu's criminal history is detailed below. As he has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more, it is not in dispute that he does not pass the character test. As such, the sole issue to be determined is whether the discretion given by subsection 501(1) of the Act to refuse to grant Mr Chu a visa should be exercised.

1. Mr Chu arrived in Australia in November 1996 to study when he was 17 years old. When his student visa expired in July 1999, he remained in Australia without a visa. He gave evidence of the period during which he was in Australia and his current circumstances in a statement dated 26 November 2024 and gave evidence at the hearing. A summary of his evidence is set out below.
2. Mr Chu's parents wanted him to go to Australia after he finished high school to continue his education. When he first arrived in Australia he planned complete his studies and return to Vietnam to help his family by obtaining a well-paid job.
3. In March 1998, his brother in Vietnam was seriously injured in a traffic accident and required major surgery. Mr Chu's parents had to sell their properties to pay for his brother's surgery and post-surgery care. His mother had to stop working and provide full-time care to his brother.
4. As Mr Chu's parents had used their savings to pay for his brother's medical treatment, they were unable to continue to pay for his tuition. When his student visa expired, Mr Chu had not completed his studies. He felt ashamed and was too proud to return to Vietnam without a qualification. He was reluctant to return to Vietnam where he feared he would be a burden to his parents. Although he faced difficult financial circumstances in Australia, he chose to stay.
5. Mr Chu does not dispute his offending. His first offending was in 1999, when he was young and did not understand the law in Australia. With the benefit of time, Mr Chu now appreciates the potential harm of his offending.
6. When he was living in Australia, Mr Chu repaired machines at bakeries. As he was required to make repairs on-site, he needed a driver license to work. This was a factor in his decision to continue driving despite knowing he did not have a licence.
7. Mr Chu was 20 years-old when his student visa expired and claims that he did not know he needed a visa to remain in Australia lawfully. He accepts he was ineligible to work without a visa, but claims he did not know he was prohibited from working until his imprisonment in 2008. Mr Chu was released from prison into immigration detention in 2009. In June 2009 he was granted a temporary visa to stay in Australia and make arrangements to return to Vietnam. He sought an extension to the temporary visa, but was told he would need to apply from Vietnam. As he and Ms Nguyen had just started their relationship, he decided to remain in the community unlawfully until being detained in October 2011.
8. Mr Chu's time in prison enabled him to understand the consequences of his actions. He has matured and see his imprisonment as a turning point. He says that his mistakes have cost him the opportunity to be with his sons and he intends to teach them to obey the law. Although he reoffended in October 2011, Mr Chu said this was because of a medical emergency which required him to take control of a vehicle and transport the driver to hospital.
9. Mr Chu and Ms Nguyen married in October 2011 while Mr Chu was in immigration detention. Ms Nguyen had two sons and Mr Chu became their stepfather, taking an active role in their lives. Soon after his return to Vietnam, Ms Nguyen visited him with one of her sons. Ms Nguyen returned to Australia in 2013 to work.
10. Ms Nguyen and Mr Chu's first child, AY, was born in Australia in November 2013. Ms Nguyen took AY to Vietnam in January 2014 to meet Mr Chu. Ms Nguyen and Mr Chu decided it would be best for AY to live with Mr Chu in Vietnam while Ms Nguyen cared for his two stepsons in Australia. The couple's second child, JY, was born in August 2015 in Australia and taken to Vietnam to meet Mr Chu in December 2015. It was agreed that AY would return to Australia to commence his education, and JY lived in Vietnam with Mr Chu until he returned to Australia until May 2022.

1. Ms Nguyen is Mr Chu's wife and the mother of his two sons. She confirmed she is not the primary caregiver for her two sons as she is currently caring for her youngest child, who is not related to Mr Chu, in Sydney. Ms Nguyen speaks to AY and JY when she contacts her mother. She visits them Perth when she can and the children visit her in Sydney, but she will not relocate to Perth. Ms Nguyen gave evidence her mother has told her she is getting old and cannot care for AY and JY permanently. Ms Nguyen wants Mr Chu to return to Australia and become primary carer of the children.

1. Ms Trieu is Ms Nguyen's mother and Mr Chu's mother-in-law. She is the maternal grandmother of AY and JY and their primary carer. She maintains regular contact with Mr Chu.
2. Ms Trieu is aging and cannot continue to care for her grandsons permanently on account of her deteriorating health. She writes that AY and JY are settled in Perth where they attend school and have established lives. She hopes that Mr Chu can be physically present in their lives to provide care and guidance.

1. I now turn to the considerations set out in the direction.

Primary Consideration 1: Protection of the Australian Community

1. The Direction requires me to have regard to the protection of the Australia community from criminal or other serious conduct. Relevantly, paragraph 8.1.1 of the Direction states:[4]
   1. When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
2. Paragraph 8.1.1. provides that decision-makers should also give consideration to the 'nature and seriousness of the non-citizen's conduct to date' and paragraph 8.1.2. requires consideration of 'the risk to the Australian community, should the non-citizen commit further offending or engage in other serious conduct.'[5]
3. Mr Chu's criminal history is set out in a Digital National Police Certificate dated 18 October 2023.[6] In May 1999 he was fined for driving without a licence. In December 2003 he was fined for driving with an expired licence and disqualified from driving for 18 months. He was also given a section 9 bond for two years for use false instrument with intent.
4. On 21 September 2004 Mr Chu was convicted in the Local Court of New South Wales of drive while disqualified from holding a licence, for which he was sentenced to nine months imprisonment suspended upon entering a section 12 bond. On 7 April 2006 he was fined for exceeding the speed limit and special category Driver Drive with Special Range Prescribed Concentration of Alcohol.
5. On 14 July 2008, Mr Chu was convicted in the Local Court of New South Wales at Burwood of two counts of drive while disqualified from holding a licence for which he was sentenced to 6 months and 3 months imprisonment. He was also called up for the September 2004 convictions for drive with middle range prescribed concentration of alcohol and Drive while disqualified from holding a licence.
6. On 16 November 2011 Mr Chu was convicted in the Bankstown Local Court of Drive while disqualified from holding a licence and Driver/Rider State False Name/Address.
7. Mr Chu has a history of frequent driving related offending. He does not dispute the cumulative effect of multiple traffic offences and repeated pattern offending is serious, but submitted his offending did not result in actual harm to individuals. He also plead guilty to the offending, resulting to a discount in sentence. I consider Mr Chu's offending was frequent and the cumulative effect that is offences exposed the Australian community to danger.
8. I acknowledge that there were considerable periods where Mr Chu did not offend and the nature of the offending was limited to driving offences and offences related to his driving. Nonetheless, the seriousness of his offending escalated over time, as reflected by the sentences imposed upon him. He has been sentenced to multiple terms of imprisonment for his offending. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and must be viewed as a reflection of the objective seriousness of the offences involved.[7] Mr Chu's offending commenced within three years of his arrival in Australia.
9. Traffic offences involving unlicensed driving and drink-driving point to an incapacity to distinguish right from wrong and to otherwise conform to the rules of Australian society. Mr Chu's offending also included an element of dishonesty in the provision of false name and address. Mr Chu's partial explanation that he was unaware of the law is not credible and does not reduce the seriousness of his offending.
10. It is of significant concern that Mr Chu was an unlawful non-citizen from July 1999 through to August 2008 and again from June 2009 to October 2011. I consider this demonstrates a repeated and continued disregard for Australian law.
11. Having regard to the Direction, I find Mr Chu's offending and other conduct in Australia to be serious.
12. Paragraph 8.1.2 of the Direction requires me to consider the risk to the Australian community should Mr Chu commit further offences or engage in other serious conduct.
13. Should Mr Chu engage in further criminal conduct of a similar nature, there is a risk of significant physical and psychological harm to other road users. Should he become an unlawful non-citizen or be dishonest in his dealings with government officials, there is potential for significant financial and enforcement costs to the Australian community.
14. Turning to the risk of reoffending, Mr Chu maintains he is extremely remorseful for his offending and overstaying his visa. A pre-sentence report dated 24 June 2008 stated Mr Chu 'did not appear to accept responsibility for his actions, nor did he acknowledge the seriousness of his continued traffic offending'. Mr Chu's formal rehabilitation is limited to a drug and alcohol rehabilitation and traffic education program completed in 2004.
15. Mr Chu contends his conduct before departing Australia was largely attributable to his relative youth, financial pressures and the inability of his parents to continue to provide financial support after his brother's accident.
16. Mr Chu claims that his circumstances have now changed significantly. He is no longer under financial pressure, he has matured and becoming a father has helped him appreciate his offending was wrong. He submits that the absence of these factors is a significant protective factor against further offending. Further, his most recent convictions were in November 2011. In evidence are translated Judicial Record Form of the People's Committee of Phu Tho Province certifying that as of 8 September 2023, Mr Chu had no criminal records.[8] In a statement Mr Chu's business partner, Thi Phuong Anh Pham, writes of Mr Chu's good character and desire to be with his sons. Mr Chu's mother writes of her son's remorse for his past conduct in Australia.
17. I have had regard to the protective factors identified by Mr Chu, particularly his changed personal circumstances. However, there is very limited evidence of rehabilitation, and he reoffended after completing the drug and alcohol rehabilitation and traffic education program in 2004. I consider the prolonged period over which Mr Chu's offending occurred, his dishonesty with police, and having knowingly remained in Australia without a valid visa, indicative of an increased risk of reoffending. That said, I accept he has not offended for more than a decade and his family obligations are a significant protective factor. On balance, I consider there is a low risk that Mr Chu may reoffend.

1. Mr Chu's past criminal and other conduct is serious. Should he be allowed to reside in Australia, there is a low risk that he may reoffend. Further offending may cause harm to the Australian community and this primary consideration weighs strongly in favour of not granting Mr Chu a visa.

Primary consideration 2: Family Violence committed by the non-citizen

1. Paragraph 4(1) of Direction 110 defines family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful.[9]
2. Mr Chu has not committed family violence, and this consideration weighs neutrally.

Primary Consideration 3: The strength, nature and duration of ties to Australia

1. I am required to consider the impact of the decision on Mr Chu's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. I am also required to consider the strength, nature and duration of any other ties that Mr Chu has to the Australian community having regard to:

(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community

(b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

1. Mr Chu resided in Australia between November 1996 and July 2012. He has immediate family members in Australia, notably his two minor children, Ms Nguyen and his mother-in-law Kim Ngan Trieu.
2. The June 2008 pre-sentence report stated that Mr Chu has been in a de-facto relationship for eight years and had a five-year-old daughter from this union. Mr Chu gave evidence that he no longer believes the child to be his daughter and has not indicated that either his former partner or their child would be affected by the refusal of his visa.
3. Mr Chu has provided statements from Australian citizens and permanent residents in support of his application. These include family friends Thi Mong Tuyen Nguyen, Kim Ngoc Vo and Thi Thuy Hang Vu. Kevin Nhat Huy Nguyen is a long-time friend and former colleague. They speak of Mr Chu's regret for his past conduct in Australia and their desire he returns to Australia.
4. Mr Chu and Ms Nguyen are no longer in a relationship but are still married. Nonetheless, Ms Nguyen would be affected should Mr Chu be unable to assume role as primary carer for their two children. It is apparent that she maintains some affection for Mr Chu and would likely be emotionally distressed should his visa be refused. I consider the impact of this decision on Ms Nguyen is considerable. Mr Chu was stepfather to Ms Nguyen's two eldest sons, who reside in Perth. Mr Chu maintains a relationship with them, but it is unclear how they may be affected by this decision. A decision to refuse Mr Chu a visa would have consequences for his mother-in-law, Kim Ngan Trieu, who is currently caring for his two sons.
5. Based on the evidence, Mr Chu contributed to the Australian community through his paid employment repairing machinery at bakeries. However, I afford less weights to his contribution given he was not permitted to work in Australia without a valid visa.
6. Overall, this primary consideration is afforded considerable weight in favour of granting Mr Chu a visa.

Primary Consideration 4: Best interests of minor children affected by the decision

1. Paragraph 8.4 of the Direction requires decision-makers to decide whether the cancellation is, or is not, in the best interests of minor children in Australia affected by the decision.[10] This consideration applies only if the child is under 18 years old at the time of the decision. In considering the best interests of each child, the factors that must be considered where relevant include:[11]

(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

(e) whether there are other persons who already fulfil a parental role in relation to the child;

(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

1. Mr Chu is father to two Australian citizen minor children - AY who is 11 years-old and JY who is age 9. Mr Chu says he has a responsibility and obligation to take care of his children and it is in the best interest of each of his sons that he is granted a visa.
2. Despite being in Vietnam, Mr Chu has maintained a loving relationship with both his sons. JY spent most of his childhood and formative years living in Vietnam with Mr Chu. JY returned to Australia in 2022 to start school. AY spent most of his formative years living in Australia, but also spent time living with Mr Chu in Vietnam.
3. Both children have continued to visit Mr Chu in Vietnam. Mr Chu maintains frequent contact with both his sons over the phone and online and has made genuine attempts to be part of their lives. He plans to continue to be a positive influence and play an active role in his sons' lives, particularly as they enter adolescence.
4. Mr Chu does not presently perform a parenting role and the Respondent contends he could continue contact with his children in other ways as he is already doing so. The children are currently being raised by Ms Trieu who is their primary carer and fulfils the parenting role. Ms Nguyen and Mr Chu have stated that Ms Trieu is unable to continue to perform this role due to her advancing age and associated ill-health. In her statement, Ms Trieu confirms she is the temporary carer for both children. She takes them to school, picks them up and feeds them. She fulfils all parental duties on her own but cannot continue to perform this role for her grandsons on a permanent basis. Although she loves her grandsons she is becoming weak and fragile as she reaches old age.
5. Ms Nguyen gave evidence that her mother had agreed to raise AY and JY temporarily following the birth of her youngest child in 2020. I accept that Ms Nguyen does not plan to take care of her sons in Perth and does not intend to leave Sydney with her youngest son. There is ample evidence that Mr Chu has raised both his sons for a period in Vietnam, maintained consistent contact and established a relationship with both children. I accept he intends to reside in Perth with the children and become their primary carer.
6. Ms Nguyen gave evidence that Mr Chu had supported the children financially while in Vietnam, and she expected he would continue to do so should the visa be refused.
7. I accept that Mr Chu is sincere in his intention to be the primary carer of his sons. Having particular regard to the parental role that Mr Chu intends to perform should he return to Australia, I find this primary consideration weighs very heavily in favour of granting the visa.

Primary Consideration 5: Expectations of the Australian community

1. Paragraph 8.5 of the Direction relevantly provides:[12]

(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

1. Paragraph 8.5(3) of Direction 110 states that these expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[13]
2. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant's circumstances or evidence about those expectations. Rather the Tribunal must give effect to the 'norm' stipulated in the Direction.
3. In this matter, the Australian community would expect that Mr Chu does not hold a visa and this consideration weighs strongly against issuing a visa to Mr Chu.

1. Consistent with the submissions of the Applicant and Respondent, I am satisfied that the other considerations set out in Direction 110 are relevant to this application.

1. Mr Chu's offending, while at the lower end of the spectrum in terms of seriousness, was persistent and of increasing seriousness over time. His overall conduct while in Australia, including his periods of unlawful non-citizen, demonstrated a consistent disregard for the law and Australian government officials. His claim that he was unaware he required a visa for most of the time he was in Australia is not credible and reflects poorly on him. The evidence supports his having some remorse for his offending, albeit primarily on account of the impact it has had on him and his family. Mr Chu has been in Vietnam and separated from his sons for most of their lives. I accept this has had a salutary effect and there is a low chance he will reoffend. Overall, the primary consideration of the protection of the Australian community weighs in favour of exercising the discretion to refuse the visa, but is afforded less weight owing to the low risk of reoffending. The expectations of the Australian community similarly weigh against issuing a visa and are afforded significant weight.
2. Mr Chu's ties to the community are limited but meaningful. Ms Trieu would be affected should he be refused a visa, as would Ms Nguyen. Their interests are afforded considerable weight in favour of granting Mr Chu and visa.
3. The best interests of Mr Chu's two sons are served by having Mr Chu as their primary carer. Having particular regard to their age and the uncertainty of the current care arrangements, this primary consideration weighs very heavily in favour of issuing a visa.
4. Overall, on balance the evidence supports the correct and preferable decision is that the discretion to refuse to grant the visa under section 501(1) should not be exercised.

1. The decision under review to exercise the discretion to refuse Mr Chu's application for a Contributory Parent visa will be set aside. In substitution, the matter is remitted to the Respondent for reconsideration with the direction that the discretion to refuse to grant the visa under section 501(1) not be exercised.

[2] Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024), ('Direction').

[3] Ibid part 2.

[7] Pavey and Minister for Home Affairs [2019] AATA 4198.