Pham v Minister for Immigration and Multicultural Affairs

Federal Court of Australia|2024-11-29|Before: Mr J, Perram J

THE COURT ORDERS THAT:

The application be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PERRAM J:

Introduction

The applicant, Mr Pham, is a citizen of Vietnam. He has lived in Australia since 1996 when he arrived at the age of 22. In 2011 he was granted a Class BB Subclass 155 Five Year Resident Return Visa.
In 2021 Mr Pham pleaded guilty to recklessly dealing with the proceeds of crime contrary to s 193B(3) of the Crimes Act 1900 (NSW). The offence involved Mr Pham fraudulently altering a cheque drawn on a casino and presenting it for payment. The fraudulent alteration involved changing the payee from a Mr Li to Mr Pham himself and by changing the amount of the cheque from $20 to $528,000. Mr Pham disbursed the proceeds of the fraudulently altered cheque to family members, associates and others. On 26 November 2021 Mr Pham was sentenced to a term of imprisonment of two years and seven months (backdated to commence on 29 October 2021) with a non-parole period set at 1 year and 6 months. He was due to be released on parole on 28 April 2023.
As at 23 February 2022, Mr Pham had two legal characteristics relevant to this appeal. First, he was serving a full-time sentence in a New South Wales correctional facility for an offence against the law of New South Wales. Secondly, he was doing so under a sentence which exceeded 12 months.

Ground 1

In making its decision the Tribunal was bound to comply with any written directions issued by the Minister about the performance of its functions or the exercise of its powers: s 499(2A) of the Act. Once such direction is Direction 99. Direction 99 deals with, inter alia, the revocation of a mandatory cancellation of a visa under s 501CA. The Tribunal was therefore bound to apply it to Mr Pham's case. Clause 9.2 of Direction 99 provides: (1) Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: (a) the non-citizen's age and health; (b) whether there are substantial language or cultural barriers; and (c) any social, medical and/or economic support available to them in that country.
In its reasons ('TJ'), the Tribunal accepted that Mr Pham was suffering from 'alcohol use disorder and other substance use disorder': TJ [98]. Although the Tribunal did not refer to the primary evidence about this, it is clear that Mr Pham had a history of substance abuse, primarily relating to alcohol and heroin. On the assumption that Mr Pham was returned to Vietnam, the Tribunal was therefore bound by cl 9.2(1)(c) to consider the impediments that he would face in maintaining basic living standards in Vietnam and, in doing so, to take into account the medical support which would be available to him in that place.
The Tribunal dealt with the subject matter of cl 9.2(1)(c) at [98]-[103] of its reasons. The Tribunal thought that the most significant such impediment which he faced was the possibility that he might succumb to drug addiction: TJ [100]. Mr Pham led evidence before the Tribunal which suggested that drug users in Vietnam were forced into rehabilitation centres where they were mistreated: TJ [100].
Relying upon country information provided by the Department of Foreign Affairs and Trade ('DFAT'), the Tribunal distinguished the position of persons with a heroin addiction from those with an addiction to methamphetamine: TJ [101]. The Tribunal accepted that the latter could be detained in rehabilitation centres (TJ [101]) and that if Mr Pham were to find himself in one of these centres he would be mistreated: TJ [102].
On the other hand, so far as an addiction to heroin was concerned, the Tribunal concluded that persons with such an addiction were diverted into methadone programs which had been scaled up in recent years: TJ [101].
In light of these two matters, the Tribunal concluded that there were good prospects that Mr Pham would get his heroin addiction under control in Vietnam with the assistance of these methadone programs. However, it also accepted that there was a significant risk that Mr Pham would return to the use of methamphetamine in Vietnam and therefore end up in one of the rehabilitation centres, where he would be mistreated: TJ [102].
I was not taken to any evidence that Mr Pham did in fact have an addiction to methamphetamine but neither party sought to make an issue of this. The point for present purposes is that the Tribunal thought that Mr Pham's addiction to heroin did not create a problem but that his addiction to methamphetamine did. Consequently, it concluded that the consideration in cl 9.2 weighed in favour of revoking the cancellation: TJ [103].
In this Court, Mr Pham attacked an aspect of the Tribunal's process of reasoning at TJ [98] about cl 9.2. This is the first of six paragraphs running from TJ [98]-[103] where the Tribunal dealt with cl 9.2. It is, in other words, the introductory paragraph. As I have indicated in the preceding paragraph, the last of these paragraphs - TJ [103] - resulted in the Tribunal concluding that the consideration in cl 9.2 weighed in favour of revoking the cancellation of Mr Pham's visa.
Paragraph 98 is in these terms: There are few impediments to the applicant establishing himself and maintaining basic living standards in Vietnam. He is middle aged and is in good physical condition and enjoys reasonable mental health (although I note that he has been diagnosed with alcohol use disorder and other substance use disorder). He grew up in Vietnam and is fluent in the language and he understands the culture. (Emphasis added.)
In his written submissions, Mr Pham contended that the finding that he enjoyed reasonable mental health was not open on the material before the Tribunal. However, it was accepted by Mr Wherrett, in the course of argument, that the Tribunal's statement that Mr Pham enjoyed reasonable mental health had to be read alongside its statement that he was in good physical condition. The implication of this was that 'reasonable mental health' connoted something less than 'good mental health'.
Mr Wherrett therefore refined his submission so that the point became that the Tribunal had misunderstood the nature of Mr Pham's mental health issues. He submitted that the Tribunal had approached the matter on the basis that Mr Pham's mental health issues were different to his substance use disorders when, in fact, the substance use disorders were themselves the mental health issues. Thus, the argument ran, the Tribunal's conclusion that Mr Pham enjoyed reasonable mental health was afflicted by error because that assessment excluded the substance use disorders.
Whilst one may admire the ingenuity of this submission, I regret that I cannot accept it. As I have explained, the Tribunal dealt with the implications of Mr Pham's substance use disorders in considering how he would be treated in Vietnam. Even assuming that TJ [98] is to be read in the manner suggested by Mr Wherrett, so that the Tribunal erroneously failed to take into account Mr Pham's substance use disorders when assessing the state of his mental health, this does not matter. It does not matter because the actual issue the Tribunal was required to assess under cl 9.2 was not whether Mr Pham was in good, bad or indifferent mental health. It was instead what medical support was available to him in Vietnam. As I have explained above, it is apparent that the Tribunal did assess that and, indeed, assessed it in a way that was favourable to Mr Pham. I therefore reject Ground 1.

Ground 2

As Ground 2 was developed orally, the failure to comply with Direction 99 was said to be that the Tribunal had only considered reactive treatments if Mr Pham were to relapse and had not considered preventative treatments that would assist him in avoiding relapse. There was evidence, for example, that it had been recommended in Australia that Mr Pham should undergo drug and alcohol counselling, an opioid substitution program, phone counselling and a program known as the MERIT program.
Before the Tribunal, Mr Pham did not make a submission that it should consider such programs. His submission to the Tribunal was: It should be noted that individuals with drug addictions in Vietnam are held at compulsory drug-treatment centres between 2-4 years which violate their human rights through forced labour, detention, physical and sexual violence and denial of healthcare.
In this Court, Mr Wherrett drew my attention to a report prepared by DFAT which was in evidence before the Tribunal and, in particular, to a passage at 2.18 to 2.19: 2.18 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. 2.19 Costs 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 to be available at the district level, but DFAT understands this is not always the case in practice.
This may be conveniently summarised as being about mental health treatments. Mr Wherrett accepted that the Tribunal was not taken specifically to these paragraphs. However, he submitted this this did not matter. This was because there was authority for the proposition that the mere fact that the evidence contained this material was sufficient to engage the Tribunal's obligation to consider it.
The authority Mr Wherrett relied upon was Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080 ('Bainbridge'). With respect, I do not think that Bainbridge establishes a principle quite so wide. Bainbridge was concerned with the mandatory duty that the Tribunal has under cl 8.4 of Direction 99 (in tandem with s 499(2A) of the Act) to make a determination that the cancellation of a visa (or the non-revocation of a cancellation decision) is, or is not, in the best interests of any minor children affected by the decision. In Bainbridge the material before the Tribunal suggested that Mr Bainbridge had a nephew and a niece both of whom were minor children. This was clear because the Tribunal referred to their existence in its reasons.
Before the Tribunal, however, Mr Bainbridge had been unrepresented and had not advanced a case based on those two children, although he had advanced a case based on the position of his own children. McDonald J concluded that once the Tribunal was aware of the niece and the nephew, it was obliged to determine whether non-revocation was, or was not, in their best interests. This the Tribunal had not done and so its decision was set aside.
I do not think Bainbridge applies in this case for three reasons. First, unlike Bainbridge, the matters in the passage from the DFAT report have not been shown to have been known to the Tribunal. Mr Pham did not make any submissions about that passage. It is true that he did make a submission about another section on the same page (which concerned drug addiction). But since the Tribunal did not refer to the passage I am not prepared to infer from the fact that it is on the same page that the Tribunal was aware of it. The inference I draw is that the Tribunal did not read the passage since its attention was not drawn to it. This fact makes this case distinguishable from Bainbridge.
Secondly, unlike Bainbridge, even if the Tribunal had known of those facts, they are not of a kind which would, on their own terms, have engaged a mandatory duty on the Tribunal to make a determination of some matter (such as a determination of whether non-revocation of a cancellation decision is, or is not, in the best interests of minor children).
Thirdly, it is evident that Mr Bainbridge was unrepresented before the Tribunal and this was an important element in McDonald J's reasoning process about the application of cl 8.4: Bainbridge at [34].
For those reasons, I do not accept that Bainbridge applies in this case. The fact, therefore, that the above-cited passage of the DFAT report was in evidence did not give rise to any obligation on the part of the Tribunal to consider it. If Mr Pham had made a submission about the absence of proactive treatments in Vietnam, then the Tribunal would, of course, have been obliged to deal with those submissions in accordance with the principle established in Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs [2003] HCA 26; 197 ALR 389. But in the absence of such a submission having been made, I do not accept that it had any obligation to consider the matter. I therefore reject Ground 2.

Ground 3

Clause 8.3 of Direction 99 deals with the strength, nature and duration of ties to Australia possessed by an applicant for revocation of a cancellation decision. Clauses 8.3(1)-(2) deal with family and social ties. Clause 8.3(3) required the Tribunal to consider the strength, nature and duration of any other ties that Mr Pham had to the Australian community.
It is evident that the Tribunal regarded Mr Pham's employment history as relevant to cl 8.3(3). Only TJ [83] dealt with his employment history and TJ [84]-[89] were concerned with his ties to family and friends. Because it is important to Mr Pham's submission, it should be noted too that the Tribunal's overall conclusion on the consideration in cl 8.3 was at TJ [89] ('In my assessment this consideration weighs in favour of revoking the cancellation but not strongly').
Mr Pham's primary attack is focussed on TJ [83] where the Tribunal said this: The applicant has been in Australia since 1996. He has a wife whom he remains close to and three children who maintain a relationship with him. He does not speak English well and has not established a consistent history of employment in Australia. It would appear that many of his ties are to friends and acquaintance who support his drug use.
Mr Pham submitted that the finding in the underlined passage is wrong and that there were two items of evidence before the Tribunal which contradicted it. The first was a section of his personal circumstances form submitted by him as part of his application for revocation of the cancellation. At p 12 of that form Mr Pham had provided details of his employment history. Omitting irrelevant parts, the section is as follows (as best as I can read it): Period Occupation Employer details (include name of company and telephone number, if available) From To 8/2018 26/11/21 under work compo Employers Mutual NSW Ltd 2018 process worker Phantom Stone Pty Ltd 10/6/11 2016 self employed Top Gardening Enterprises Pty Ltd 20/4/07 2010 self-employed MHP Lawn & Gardens 2003 2007 worker Barbara Tailoring 1999 2001 worker Powder Coating

The second item of evidence was the sentencing remarks of the District Court on 26 November 2021 at [53]: The offender continued working in casual labouring jobs in Australia. The offender is currently unemployed and receiving Work Cover payments following a work injury about twenty months ago.
The submission is that a finding that Mr Pham had not established a consistent history of employment in Australia cannot be reconciled with this evidence. Mr Wherrett submitted that the delegate, who unlike the Tribunal had set the material out, had considered the material and apparently accepted it since the delegate's decision recorded that they had 'taken into account that Mr Pham has completed work from 1999 to 2018'. The delegate's conclusions are, of course, not evidence but I apprehended that the point was that it showed that where the evidence was considered it led the delegate to a different conclusion to that reached by the Tribunal.
The evidence before the Tribunal was that between 1999 and 2018 Mr Pham was working, with the possible exception of 2002. From August 2018 he was on workers compensation having suffered an injury at work and from 26 November 2021 (or perhaps a week or two before that) he was in custody on the criminal charges until he was released into immigration detention on 28 April 2023.
The question is whether the Tribunal's conclusion that Mr Pham had not established a consistent history of employment is one which was open to it. Here the search must be for what the Tribunal intended by that word. In the present context, I would read the Tribunal as having meant that Mr Pham had not established to the Tribunal's satisfaction that he had been consistently employed whilst in Australia. This view, whilst perhaps harsh, was not wrong. In light of the evidence before the Tribunal as just summarised, it could rationally have arrived at the view that Mr Pham had been employed for almost all of the time since his arrival in Australia. However, it could also arrive rationally at the view that he had not been consistently employed based on precisely the same evidence. Consequently, I do not accept that the finding at TJ [83] is irrational in the requisite sense and I do not think that Ground 3 should be upheld.
Mr Pham also submitted that two other paragraphs in the Tribunal's reasons exhibited the same irrationality. The first was TJ [88(f)] which was in was in the same section as TJ [83] and stated that '[Mr Pham] has ties in Australia which span more than 25 years, but apart from his family they could not be described as strong'.
The second paragraph was in a section of the Tribunal's reasons headed 'Conclusion': The applicant's ties to Australia are quite weak, and although CP's best interests are served by the applicant remaining in Australia, there are good reasons to believe that she will cope with the applicant's removal and can maintain a relationship with him once he has gone. Accordingly, the primary considerations strongly favour upholding the cancellation. (Emphasis added.)
I would agree that if Mr Pham had been successful in setting aside the Tribunal's conclusion at TJ [83] that Mr Pham had not established a consistent history of employment, then these two statements would be further examples of the same irrationality. However, since the challenge to TJ [83] has not succeeded, I do not think a rationality challenge to these paragraphs can succeed.

Ground 4

Mr Pham has a daughter who at the time of the Tribunal's decision was 16 years old. In keeping with the convention of not naming minors in administrative and curial proceedings unless necessary, the Tribunal adopted the convention of referring to her as 'CP'. I will adopt the same convention. CP's relevance to this proceeding emerges from cl 8.4(1) of Direction 99 which bound the Tribunal to make a determination as to whether the non-revocation of the cancellation of Mr Pham's visa was in CP's best interests. Clause 8.4(4) sets out the matters which the Tribunal must consider in determining that issue. Together, cll 8.4(1) and (4) are as follows: 8.4 Best interests of minor children in Australia affected by the decision (1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision. … (4) In considering the best interests of the child, the following factors must be considered where relevant: 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.
In considering the matters set out in cll 8.4(1) and (4) the Tribunal is, as all administrative decision makers are, required to give each matter proper, genuine and realistic consideration. This obligation has been paraphrased to require that the Tribunal should engage in an active intellectual process directed at a claim or criterion: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at 360 [35] per Griffiths, White and Bromwich JJ. As the Full Court also acknowledged in Carrascalao at 359 [32] the requirement that a decision maker give each criterion proper, genuine and realistic consideration must not be permitted to slide into impermissible merits review: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at 175-176 [30] per the Court.
It has been held that if the Tribunal merely catechistically recites that it accepts that the revocation of a cancellation would be in the best interests of a child affected by the decision, then this will mean that the Tribunal will have failed to give the matter proper, genuine and realistic consideration: Webb v Minister for Home Affairs [2020] FCA 831 ('Webb'). In that case, Anastassiou J explained the matter this way at [45]-[46]: 45 The Minister's Reasons in this respect convey an impression that he has accepted, because he must, that revoking the cancellation is in the best interests of the children, as any other conclusion is not reasonably open having regard to the objective circumstances referred to above. However, the Minister's Reasons in relation to this critical consideration do not explain why, or in what way, he considers that depriving Chase, Matthew and Nakita of the opportunity of direct personal contact makes revocation in their best interests, or why depriving Shae-Lee of the opportunity of the Applicant becoming her primary carer in future makes revocation in her best interests, while eschewing as I have noted above, any statement to the effect that the children's best interests go without saying. 46 It may be said that having reached a conclusion in favour of the Applicant in relation to the best interests of the children, it was unnecessary for the Minister to say any more. Put another way, it may be said "the Applicant could not have done better." However, in my view the fact that the Minister came to a conclusion concerning the best interests of the children that was favourable to the application, does not dispense with the need for the Minister to express the reasons for this conclusion beyond acknowledging that it was in the best interests of the children to revoke the cancellation of the Applicant's visa. A conclusion at that level would perhaps be sufficient if the conclusion was dispositive of the application. Here, the question of the best interests of the children was plainly significant but not dispositive.
Mr Wherrett relied on Webb to submit that TJ [92]-[93] exhibit the same error. Those paragraphs are in these terms:
I am satisfied that it is in CP's best interests that the applicant remain in Australia in the sense that it will almost always be important to a child to have an opportunity to physically connect with a parent. I am not satisfied that there will be enduring psychological harm if the applicant does not remain in Australia. CP has had to deal with extended periods of separation from her father in the past and has continued to thrive despite that.
Consequently, this factor weighs only moderately in favour of revoking the cancellation.
If this were all that the Tribunal had said on this topic then I would accept that the case might well fall within the holding in Webb. However, as Mr Johnson correctly submitted, Mr Wherrett's submission overlooks what the Tribunal also said at TJ [90]-[91]:
The interests of one minor child have been identified as engaged: the applicant's daughter CP who is 16 years of age. She clearly has an emotional connection with her father demonstrated by her regular visits to him in Villawood and on display during her evidence before the Tribunal. Although the applicant has let CP down in countless ways and has been absent from her life for extended periods of time, I am satisfied that it is in CP's best interests for her to have her father physically present in her life rather than removed to Vietnam.
Having regard to the factors identified at 8.4(4) of the Direction I note the following: (a) The applicant is CP's father and it is important for any child to have access to their father. However, the applicant has not always discharged parental responsibilities in relation to CP. I am satisfied that the applicant moved out of the family home when CP was very young, and she has not lived with him since. The applicant has however been involved in some aspects of parenting including taking CP to school on many occasions. The relationship has however been characterised by long periods of absence, as a consequence of the applicant living in Melbourne and being incarcerated twice since 2017. The two do however maintain phone contact and CP has visited regularly since the applicant has been in Villawood. (b) The applicant is, upon release, likely to engage with CP as a parental figure but it is unclear how positive a parental role he will play. As noted previously I consider that there is a significant risk that the applicant will resume drug use in some form upon release into the community. If that occurs it will make it difficult for CP to resume living with him. She presently lives with her mother's family who do not approve of the applicant. (c) The applicant's past drug use and absence is likely to have had an impact on CP. If the applicant resumes drug use, that is likely to further erode her faith and trust in her father. She does however seem to be willing to overlook her father's faults and is determined to maintain a relationship with him. If the applicant resumes offending I do not think that it will have a directly negative impact on CP. (d) Physical separation will have an impact on CP. However, the applicant has been absent from CP's life for extended periods before. She will be able to visit the applicant in Vietnam and so physical contact will not be cut-off entirely. They will still be able to communicate by phone and over the internet; (e) CP's mum fulfills the main parental role and has done for most of CP's life; (f) CP is keen for her father to remain in Australia; (g) There is nothing to suggest that CP has been or is at risk of being subject to violence or abuse or neglect; (h) There is no evidence that CP has experienced trauma as a result of the applicant's conduct.
It will be apparent that the Tribunal considered each of the matters in cl 8.4(4). I do not think that the Tribunal's process of reasoning on this topic is opaque (as Anastassiou J thought in Webb at [48]-[49]). Still less do I think that it can be said that the Tribunal failed to engage in an active intellectual process directed at the issues in cll 8.4(1) and (4). Many of the matters canvassed by the Tribunal might suggest that Mr Pham is perhaps not an ideal parent, but the Tribunal canvassed each of these and reached the conclusion that it was in CP's best interests that the cancellation be revoked.
I therefore reject Ground 4.

Result

The application should be dismissed with costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.

Migration Act 1958(Cth)ss 499(2A), 501, 501CA(4)

At a glance

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