The Applicant did not give evidence at the hearing. His counsel submitted that he adopts all that he said before the previous hearing of the Tribunal, the transcript of proceedings of which was accepted into evidence.
[2]
SCJD gave evidence at the previous hearing through a Vietnamese interpreter, though he responded to the Tribunal in a mixture of English and Vietnamese. SCJD said that he has, in his words, 'middle' ability in the Vietnamese language.
He told the Tribunal that he is tested nearly every day for drugs in prison and admitted testing positive in October 2018 for buprenorphine. SCJD said he was not prescribed that drug but was depressed and worried, which is why he took it. He admitted that he had taken illegal drugs in prison, on one occasion 'ice' and on other occasions buprenorphine. He thought he took ice around July 2017. He said he stopped taking these illicit drugs because he felt he had too much to lose.
When asked about a container of white powder found in his cell, SCJD said it was not his. When asked about an incident where he was being asked to provide a urine sample and the prison officer reported he urinated on the floor of the cell, SCJD said he did not. SCJD admitted providing an adulterated urine sample.
SCJD told the Tribunal about various medical problems of his (now late) grandmother in the lead up to his arrest in January 2015, which led to her hospitalisation in December 2014. He also gave evidence about the health of his parents, both his mother and father having mobility challenges and having to walk with a stick.
In terms of his criminal history, SCJD agreed with his counsel that his criminal history was very serious and, if he could turn back time, he would have not got involved in such incidents.
SCJD was asked about his arrest in 2015 when drugs and firearms were found at his house. He said that the property found belonged to others who had lived in the house and who had left it, after failing to pay rent. SCJD said when the police discovered the items "I have to take responsibility for it."
SCJD was asked about returning to Vietnam in 2010. He said at that time he was experiencing back pain and was using a wheelchair. He said a friend told him of a doctor in Vietnam and his friend took him there so that this doctor could perform acupuncture. He said it did not fix his back problem. SCJD said that his back pain was the only reason he went back to Vietnam and that he was now scared of being sent back there because he did not know anyone there and because of how the Vietnamese authorities treat drug addicts. SCJD said he believed that the Vietnamese authorities put drug addicts in gaol or punish them in other ways or 'shoot them'.
SCJD was asked about his son, 'XS', who was born in December 2001. He said that when he was released from gaol in 2005, he had attempted to make arrangements with his ex-wife to see his son, and had obtained a Court order, but in spite of the order she refused to allow him access. He confirmed to the Tribunal in response to a direct question that he had not seen XS for 17 years (at that time), but then clarified to say he was once allowed to hold him by his mother when their son was aged around three or four.
SCJD was asked by his counsel whether he had been given other chances before, in relation to the cancellation of his visa. The Applicant agreed that he has had two previous occasions where his visa was cancelled. Mr Guo put to SCJD that he had made promises about getting off drugs and not committing more crimes and asked what was different now. SCJD said he was older now, and wanted to be with his son, and 'all my family if I could'.
Under cross-examination from Ms Nyabally, at the previous hearing, SCJD said he had one brother and four sisters, one of whom (a sister) went missing in sinister circumstances and whose fate remains unknown. SCJD said that they had travelled by boat to Malaysia and then an uncle had sponsored the family to come to Australia. His parents still live in Victoria. His parents separated and his mother now lives with her new partner; his father lives by himself. SCJD agreed that he has had issues with alcohol and using drugs in the past; he told the Tribunal that he first used marijuana in 1990 or 1991 and then started using heroin. He said he also started dealing in heroin to support his habit.
He agreed that he first used cannabis in gaol and then his dealer suggested he use heroin. SCJD was taken to his record of offending and asked about a 1990 appearance at the Magistrates' Court. He said that the conviction for assault came after he had an argument in a car park when he found he could not get his car out, and 'slapped' the person. The Applicant told the Tribunal he was not affected by drugs at the time.
SCJD was asked about a 1991 conviction for possessing heroin. SCJD said he had held the drugs for the purposes of trafficking, and the Tribunal noted that was a finding of a Judge of the County Court in July 1991.
In respect of the 1993 convictions for using a drug of dependence and firearms offences, SCJD said he was using drugs at the time and agreed he was convicted of gun charges, stating that 'someone' had given him the guns to keep, and he was 'young and stupid' at the time and using cannabis and heroin.
SCJD was taken to a 1997 conviction by the County Court where he was sentenced to 15 months' imprisonment, wholly suspended for two years on condition that he undergo treatment at Odyssey House, and that he was back before the courts two months later.
Ms Nyabally quoted from a previous Tribunal decision which referred to a conviction for trafficking heroin between 15 December 1995 and 1 January 1996. This involved the sale of heroin to undercover police officers in three transactions for a total of $29,600, and a second 1996 conviction relating to attempted trafficking in hashish when SCJD was arrested after paying three undercover police officers $43,500 for what he believed was five kilograms of that drug. When asked how he came by such large sums of cash, SCJD said he was a 'middleman' and was obtaining the drugs for that person. He said at the time in 1995 his drug habit was costing him around $1,000 a day; he was using every day.
In respect of his residency at Odyssey House, SCJD said he spent nine months there and learned how to stop using drugs. SCJD spoke about being released from immigration detention in 1998 in relation to the deportation order made against him, and then about meeting his (now ex-) wife and starting a new life and starting a family with the birth of their son. He said he struggled financially and fell back into using drugs around 2001, just before his son was born in December of that year. He said he re-commenced taking drugs away from the house without his wife or other members of the family being aware.
SCJD agreed that he failed to attend court to answer charges three times and eventually a warrant was issued for his arrest. He said in 2001 he was dealing in ice and heroin, hiding this dealing activity from his family. He agreed that heroin, a coffee grinder with white powder in it and a commercial heroin press were found at the house that he was sharing with his then pregnant wife. He said he pleaded guilty in relation to some drugs which he said had been left in the house by previous occupants because he did not want any repercussions on his wife.
The Applicant agreed that he used ice and heroin in prison in 2004 and was then released on parole. He said he stopped using illicit drugs at that time because he wanted to be with his son, but then found his wife was seeing someone else, and their marriage came to an end.
In respect of the 2015 offending, SCJD said he resumed using ice and started dealing to support his habit. He said he sold both 'ice' and heroin in the streets. He said he was dealing from the house owned by his mother. He said he was under stress at the time because his grandmother, who subsequently passed away, had gone into nursing care.
SCJD agreed that he gave a false name when police executed a warrant at the house, because he was scared. He agreed that sums of cash were found at the house. SCJD agreed that when police searched a car, which he said was his mother's car, they found a bag of methylamphetamine and a notebook with alleged drug transactions. At the house, the police also found a firearms holster which SCJD said was his.
A gun was found in a bag on the floor of the sitting room of the house. SCJD said he "had to say it was mine"; he said he had been living in the house for "a couple of weeks" at that time. SCJD was asked about a Winchester long arm firearm located behind a kickboard under the kitchen bench in the house wrapped in a towel and asked if that firearm was his. SCJD said he could not remember.
SCJD was asked about a loaded black and silver sawn-off shotgun located in a cavity behind the refrigerator in the kitchen and asked if that firearm was his. SCJD said he could not remember. SCJD was asked whether a shotgun cartridge found at the house was his; he responded that he could not remember. SCJD was then asked whether a home-made firearm found in a cavity behind the refrigerator by the police was his. SCJD said he could not remember. When asked about a ballistic vest located in a wall cavity behind the refrigerator in the kitchen and whether it was his, SCJD said he could not remember. In terms of a notebook found in his mother's car parked outside the house which contained a list of ingredients used in the manufacture of drugs, SCJD said he could not remember whether that was his notebook. In relation to whether he owned a samurai sword found in the lounge room of the house, SCJD said he could not remember.
Ms Nyabally asked the Applicant about the report in relation to his conviction for the offence of Riot in prison whether he broke a surveillance camera, and SCJD said he regretted doing that. Counsel also asked him whether he had misled lawyers when he said (GD, p 81) that he had remained drug-free in prison, but he said he could not remember that.
In reference to SCJD's statements about wanting to provide support for his parents as they age, Ms Nyabally asked him whether his siblings would also be able to provide any necessary support. SCJD said that as the oldest son, he had a cultural duty in this regard.
[3]
The Tribunal heard expert evidence at the previous hearing from Dr Annie Cantwell-Bartl, a general psychologist, who said she had examined SCJD on two occasions. Dr Cantwell-Bartl said that her considered diagnosis was that SCJD suffered PTSD and a major depressive episode (DSM-IV). Asked about these diagnoses, Dr Cantwell-Bartl said that SCJD experienced four major traumas while at sea coming to Australia, including witnessing the captain of the boat committing suicide. Another traumatic event to which SCJD has been exposed was, in Dr Cantwell-Bartl's evidence, the murder of SCJD's sister and the fact that her body has never been found.
The Tribunal asked Dr Cantwell-Bartl whether SCJD disclosed to her that he had used drugs once in the 48 months before she examined him, Dr Cantwell-Bartl said that he had not. She said that where she used the phraseology "used no drugs" the meaning was that the Applicant was not using any illicit drugs and that SCJD did disclose to her that he was using an anti-opiate drug.
Dr Cantwell-Bartl said that it was important that SCJD have ongoing counselling. It was her view that SCJD was authentic in his desire to reconnect with his son and support his elderly parents.
Under cross-examination, Dr Cantwell-Bartl was asked whether she knew that the drugs SCJD was taking had not been prescribed. She said that fact was not clear to her, but it would not change her view. Dr Cantwell-Bartl said she did not use any diagnostic tools to assess SCJD's risk of recidivism during his two consultations with her.
When asked what her opinion of SCJD's likely conduct if he did not make use of support and counselling services, Dr Cantwell-Bartl said it was still her view that he would not re-offend but such support would make him less likely to resume using drugs. Dr Cantwell-Bartl said that she was aware in general of SCJD's offending but did not have a complete criminal history before her.
[4]
SCJD's brother gave evidence. He operates his own electrical installation business, and employs three or four others, as work requires. SCJD's brother said that he would be prepared to employ SCJD on his release, and that the Applicant could also live with him.
[5]
SCJD's brother-in-law also gave evidence. He said that he had previously been a friend of the Applicant before becoming his brother-in-law. It was his view that SCJD was more mature now and consequently would not revert to his previous criminal activity. He said that he was unaware that SCJD had tested positive for drugs whilst incarcerated.
[6]
Mr Guo submitted that SCJD's application is advanced on two key planks - the Applicant's risk of recidivism and on his rehabilitation. He submitted that there are good prospects that SCJD can keep clean from drugs and that it was the childhood trauma of the Applicant which had led him to drug use in the first place. Counsel said that SCJD had been faced with the trauma of being wrongly accused of murder; the trauma of the disappearance of his sister; and the trauma of the death of his grandmother.
The Applicant has been involved in serious criminality to support his addiction. Mr Guo submitted that SCJD does not display a pathological criminality and was, instead, a response to addiction. He says that SCJD's circumstances have now changed and that there is a material difference between the submissions made to the previous hearing before the Tribunal. He cited SCJD's generally good behaviour in prison and that he had abstained from drug use except for one use of 'ice' in a period of 57 months. Mr Guo also urged the Tribunal to give weight to Dr Cantwell-Bartl's professional opinion of the Applicant as appearing genuine and authentic, after her 35 years of assessing drug-affected individuals.
Counsel argued that SCJD has no family members or friends in Vietnam and that his principal language is English, not Vietnamese. Mr Guo reiterated the written submissions and documents tendered before the Tribunal about how he said the Vietnamese Government treats drug users.
In respect of SCJD's use of buprenorphine, Mr Guo submitted that it is not an illicit drug but that SCJD took it without prescription to avoid taking other, perhaps more harmful, drugs. Mr Guo submitted that SCJD has been tested regularly during his incarceration, for some periods daily, and had only failed one test, which is an objective indicator of his taking personal responsibility for combatting his addiction.
Mr Guo submitted that SCJD has been on methadone treatment in prison since February 2019 with only one refusal of treatment in March 2019. He said that the fact that SCJD has struck 'rigidly' to this course of treatment since March 2019 is a comfortable basis for the Tribunal to infer that he has a commitment to continue to adhere when released from custody.
In respect of what may face SCJD if repatriated to Vietnam, Mr Guo submitted that the Applicant would be 'a drug addict, likely to be destitute and jobless, and would face a high risk of death.' Mr Gao said that the consequences of the programmes run by the Vietnamese Government are 'so stark, that even if the Tribunal finds that the Applicant is not reformable, mercy still requires revocation'. Counsel also pointed to SCJD's hepatitis C diagnosis and what treatment would be available to him in Vietnam for that condition, including the high cost of anti-viral medication.
In reference to journeys that SCJD has made back to Vietnam since he settled in Australia in 1981, Mr Gao said that the Applicant only returned for health reasons, did not go there for employment purposes and only returned for a short period of time.
[7]
The Respondent said it was not in dispute between the parties that the Applicant fails the character test and so the question before the Tribunal is whether there is another reason in terms of section 501CA for the cancellation of the visa to be revoked.
Ms Nyabally responded to submissions by Counsel for SCJD that there is a relationship between the Applicant's drug-taking and all his offending. She submitted that while such a relationship may explain some of the offending, there was evidence also before the Tribunal of financial gain; there was also evidence of several firearms offences and an assault offence which did not involve drug-taking. Ms Nyabally also referred to SCJD's involvement in a prison riot and that there was no evidence he was taking drugs when he was involved in this conduct.
Counsel said that the Applicant had shown a past pattern of tending to turn to drugs in times of stress. Ms Nyabally said that the Minister accepts that SCJD comes from a loving and supportive family but noted that they had been unable to stop the Applicant's pattern of drug use and criminal behaviour.
Ms Nyabally submitted that the only probative evidence before the Tribunal of SCJD's compliance with methadone treatment was for a period of seven months and this was too short a period for the Tribunal to be satisfied that he will not re-offend.
The Respondent further submitted that given SCJD returned to Vietnam in 2010, he no longer fears harm, because he stayed there for three weeks without any apparent difficulties.
In terms of impediments SCJD may face, Ms Nyabally drew the Tribunal's attention to the DFAT Country Information Report on Vietnam which states that detention is no longer compulsory for drug addicts in that country. She said that the Respondent accepts that the fact that SCJD has hepatitis C may contribute to difficulties he would face without family support.
In terms of SCJD's minor son, the Respondent submitted that little weight should be placed on this primary consideration in this case because the Applicant had not had contact with his child since 2005.
Ms Nyabally referred to paragraph 6.3 of the Direction which requires a decision-maker to take into account whether a person has a long history of disrespecting Australian law, which she said SCJD objectively has displayed. She referred to the 1990 'road rage' incident which SCJD described as occurring when he 'slapped' a motorist, but submitted that description seemed to underplay the facts, given the severity of the penalty imposed.
Ms Nyabally referred to the 1998 decision of the Tribunal which gave SCJD the opportunity to turn his life around. She noted he got married, obtained employment and started a family. However, after a short period he reverted to drug-taking, which, on his own evidence, he hid from his wife.
Ms Nyabally submitted that no protection obligations are owed to SCJD and that this was the assessment made in 2007 (GD, pp 126-130). Ms Nyabally said that the Respondent concedes, because of the length of time he has resided in Australia and his family members here, that SCJD has significant ties with this country.
[8]
**_Protection of the Australian community (paragraph 13.1)
[9]
The nature and seriousness of the non-citizen's conduct to date (paragraph 13.1.1)_**
[10]
This part of the Direction requires the Tribunal to take into account certain principles, including that violent and/or sexual crimes are to be viewed very seriously (paragraph 13.1.1(1)(a)), and that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed (paragraph 13.1.1(1)(b)). At paragraph 13.1.1.(1)(c) crimes against vulnerable members of the community or government representatives or officials in the performance of their duties are serious.
The Direction also requires the Tribunal to take into account the sentences imposed by the courts for a crime or crimes (paragraph 13.1.1(1)(d)), the frequency of a person's offending and whether there is any trend of increased seriousness (paragraph 13.1.1(1)(e)) and the cumulative effect of repeated offending (paragraph 13.1.1(1)(f)).
SCJD has a substantial criminal history, first appearing before the Courts in March 1983 on six charges of theft. He has appeared before the Courts on fourteen subsequent occasions spanning 30 years. There have been convictions for crimes against the person, including some violent crimes, but they are limited to convictions in 1988 and 1990 and subsequent convictions have almost exclusively related to drug possession, drug trafficking and firearms offences. As mentioned above, there is one conviction in relating to a prison riot in which SCJD participated.
There has been a relative frequency in SCJD's offending, but there have also been periods where he has no convictions recorded, notably between 1997 and 2003 and between 2004 and 2015. I do not conclude that there has been a trend of increased seriousness, but there has been a cumulative effect of repeat offending. A worrying trend in SCJD's criminal behaviour has been his several convictions for trafficking in illicit drugs, notably heroin, and the Courts have progressively increased the seriousness of the punitive sanctions applied from suspended sentences to relatively substantial sentences of imprisonment, which is something the Direction requires decision-makers (paragraph 13.1.1(1)(d)) to take into account.
Notably, the Direction states, at paragraph 13.1.1(1)(h) that a factor that the Tribunal must have regard for is whether SCJD has re-offended since being formally warned, or since otherwise being made aware in writing of the consequences of further offending in terms of his migration status. Counsel for SCJD rightly conceded that he has had his visa cancelled on two previous occasions, and the visa has been restored to him, and consideration of cancellation of his visa on a third occasion, where he made several representations against the proposed cancellation, which were ultimately successful. That is a significant factor, because it illustrates to the Tribunal that, in spite of being well aware of the jeopardy to his migration status if he continued to offend, and in spite of being aware of direct exhortations to him, both in previous Tribunal proceedings and in writing, that he would face visa cancellation if his offending did not cease, SCJD continued to re-offend, and to commit serious crimes.
[11]
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2)
[12]
The Tribunal must assess the nature of harm to individuals or the Australian community should a non-citizen engage in further criminal or other serious conduct, and the likelihood of the person engaging in further conduct of that kind, taking into account the evidence on the risk of re-offending.
As mentioned above, Dr Annie Cantwell-Bartl, psychologist, interviewed SCJD on two occasions in September 2018 by telephone to provide a report and assessment, as requested by his lawyers. She conducted a Mental State Assessment, a K10 Depression Scale and a PCL-C Traumatic Stress Scale.
In respect of SCJD's mental state assessment, Dr Cantwell-Bartl reported that his mental functioning and overall manner was within the norm. She said:
[13]
He seemed to have average insight but did not want to think about the possibility of being sent to Vietnam, as it was too painful for him. His judgement presented as average. He was appropriate in his responses. His mood and affect reflected a man struggling with depression and trauma.
[14]
In terms of depression, Dr Cantwell-Bartl reported that SCJD has a depressed mood:
[15]
His self-esteem is low and his level of guilt and self-hatred is high. He struggles with concentration and his symptoms impact on his general functioning. He uses no drugs. [SCJD] has had limited opportunities for assistance. The disturbance he feels does not occur during the course of a chronic psychotic disorder and are [sic] not due to a direct physiological effect or of a substance, or a general medical condition that I can ascertain. The symptoms have caused clinically significant distress and cause impairment in his social, and occupational life.
I also tested [SCJD] on the K10 scale and he had a positive result (Test Score 35), indicating that he is likely to have Major Depression.
[16]
Dr Cantwell-Bartl reported that she conducted a PCL-C Traumatic Stress Scale test to assess whether SCJD had traumatic stress symptoms. She identified two major traumatic events in his life, the first being when as a young boy he witnessed the captain of his boat jump into the sea (on the voyage between Vietnam and Malaysia) and refuse to be rescued. The second event was the disappearance and likely murder of his sister. Dr Cantwell-Bartl recorded that SCJD scored 56 on the assessment test, where a cut-off score of 50 is clinically significant. Dr Cantwell-Bartl said this means that SCJD has 'a diagnosable Post Traumatic Stress Disorder (PTSD). This test was confirmed by clinical assessment and [SCJD] had all three symptoms of traumatic stress: arousal (intrusive thoughts), hyper-vigilance and numbness.'
Under the heading 'Risk of recidivism', Dr Cantwell-Bartl recorded that SCJD told her 'he will not use drugs again as he is aware that drugs will only get him into trouble.' She went on to report:
[17]
It is hard to know whether he is at risk again of recidivism. I believe that if he [is] given this chance of staying in Australia that because he is committed to his family, he has a good chance of not offending again, particularly if he seeks psychological support, ongoing counselling, long term psychotherapy (possibly the possibility of group psychotherapy) and any other relevant support.
[18]
As mentioned above, Dr Cantwell-Bartl gave oral evidence that she did not use any assessment tools in relation to SCJD's risk of re-offending. She noted in her report, her expertise as a general psychologist is in trauma counselling, and it is natural that she concentrated upon that in her assessment of SCJD's general presentation.
As is required by the Tribunal President's guidelines in relation expert evidence, SCJD's solicitors sent Dr Cantwell-Bartl a letter of instruction dated 11 September 2018, which she appended to her report. The letter of instruction refers to SCJD having a heroin and cannabis addiction and having a 1991 conviction for possession of heroin leading to his first term of imprisonment. The letter refers to SCJD being in remand in relation to murder charges (which were dismissed and form no part of the Tribunal's consideration in this matter), and to other terms of imprisonment and 'further drug offences' and 'weapons related offences', theft, failure to answer bail and assault. The letter informs Dr Cantwell-Bartl that the 'overwhelming majority of the Applicant's offences have been drug related'.
It is a matter of concern to the Tribunal that Dr Cantwell-Bartl was not provided with full details of SCJD's offending history, and instead was given this partial summary. While the summary is not inaccurate, it is far from complete and has no reference to SCJD's convictions for drug trafficking. Whilst the trafficking charges are undoubtedly 'drug related' it would have been preferable, given the task SCJD's lawyers were asking of Dr Cantwell-Bartl, had she been given the complete picture. I believe this could have increased the value of this psychological report because it would have led to the psychologist discussing the trafficking convictions with the Applicant, including what might have been the motivations behind him being involved in trafficking, whether it was to provide funds to support his addiction or something more. It is the Tribunal's view that the complete offending history should have been provided.
A consequence of the lacunae in the information given to Dr Cantwell-Bartl is that they affect the weight the Tribunal gives to her assessment of the likelihood of re-offending. Also affecting that weight is Dr Cantwell-Bartl's own evidence that she did not deploy any of the assessment tools for assessment of re-offending that psychologists commonly use. Dr Cantwell-Bartl's view of whether or not SCJD would offend again is based principally on her assessment that past trauma has affected his conduct, and continues to, and if this is properly addressed, she 'believes', as she emphasised to the Tribunal, that he will not re-offend.
Dr Cantwell-Bartl makes the plain statement, when giving her clinical assessment of SCJD, that 'he uses no drugs'. This has been shown to be more a reporting of what the Applicant told her, because the admitted facts are that he did continue to use drugs in prison, 'ice' on one occasion and buprenorphine on others and provided an adulterated urine sample.
In assessing the level of risk to the Australian community if SCJD re-offends, the Tribunal re-states that it does not serve a penal function in this matter. SCJD has been punished by the judicial system where he has been convicted of offences. In this part of the Direction, the Tribunal focusses on the likelihood of the Applicant re-offending if allowed to remain in Australia, in the context of risk to the Australian community.
In this respect, the lack of candour of SCJD in his responses to questions about the firearms and drug paraphernalia found at his residence are of significance. The Tribunal noted that in a series of questions put to him, the Applicant provided identical answers that he 'can't remember' in response to eight questions asking why specific firearms and firearm accessories such as cartridges and a ballistic vest were found in various places at his house, including secreted away, and he denied knowledge of a firearm that police found in a bag on the floor of the sitting room. Having stated that the car outside the residence was his mother's, SCJD then said he did not know why a notebook was in that car relating to the ingredients for drug making. He said he pleaded guilty to the various charges that arose from these items being found because he was the "only one in the house".
The Applicant was taken to a submission made by his solicitors to the Department in February 2018 (GD, p 81) which stated:
[19]
Most importantly, [SCJD] has remained drug free since returning to prison. This is a testament to his determination to leave his criminal past behind him. [SCJD] recognises that drugs are freely available in prison, but has resisted the temptation to use them.
[20]
Given that SCJD had acknowledged using 'ice' in prison, providing an adulterated urine sample and using buprenorphine in prison (which was not prescribed for him), the Applicant was asked why he was not truthful to his solicitors, leading them to make this submission. SCJD said he "couldn't remember".
This lack of frankness, several years later, inclines the Tribunal to the conclusion that SCJD is still prepared to be evasive and to minimise his offending history, and not to be candid about his drug usage in prison. Accepting that the drug use of SCJD in prison is not of the worst kind and that it is probable he could have obtained harder and more illicit drugs, this minimisation of his conduct, especially in regard to the firearms offences of which he had previously pleaded guilty, inclines the Tribunal to the view that there is a real risk of the Applicant re-offending, and a risk that is not negligible.
The Tribunal finds that this consideration weighs against revoking the mandatory cancellation of the visa.
[21]
Best interests of minor children in Australia affected by the decision (paragraph 13.2)
[22]
The Tribunal must make a determination about whether revocation is in the best interests of relevant children. The Direction states that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their best interests may differ.
SCJD has a son, who I will call XS, born in December 2001. He is therefore now aged 20 and not a minor. The Direction states, at paragraph 13.2(2): This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not to revoke the mandatory cancellation decision is expected to be made.
The Applicant's brother made remarks about his minor children (GD, p 1138) but the Tribunal finds that the information is insufficient for a determination on the best interests of these children and will consider them later in these reasons.
The Tribunal finds that this consideration is not applicable, in the terms of this part of the Direction and so weighs neutrally in this consideration.
The Tribunal will consider the matter of the Applicant's son later in these reasons, when evaluating the strength, nature and duration of ties SCJD has with Australia.
[23]
Expectations of the Australian community (paragraph 13.3)
[24]
The first part of this part of the Direction states:
[25]
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.
[26]
The Full Federal Court considered this part of an earlier version of the Direction in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR). The wording in the earlier version of the Direction was relevantly the same. In that matter, two of the three judges (Charlesworth and Stewart JJ) held, in separate judgements, that this part of the Direction expresses a 'norm.'
The Court decided that it is not for a decision-maker to make his or her own personal assessment of what the 'expectations' of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed - they are what the executive government has declared are its views, not presumptions or assessments that a decision-maker may derive by some other evaluative process.
Stewart J stated, at [100]-[101]:
[27]
To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
[28]
(i) non-citizens will obey Australian laws when in Australia;
[29]
(ii) it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;
[30]
(iii) in a particular case, the refusal of the visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.
[31]
Understood in this way, community expectations are simply, and informally, expressed as follows: "If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive."
[32]
His Honour later said (at [102]) that 'the character assessment, even through the prism of community expectations, may not be decisively against the applicant', which is why the decision-maker must assess what is 'appropriate' in the particular circumstances.
Charlesworth J set out different reasoning in Her Honour's judgment at [68]-[74]:
[33]
The content of the expectation
It is necessary to give content to the deemed expectation of the Australian community in a way that is capable of being afforded weight as a primary consideration in a particular case. In the particular case, the Australian community will either expect the visa to be refused, or it will not. In light of what is said above, the present enquiry does not concern what the Australian community expects in fact (assuming such expectations could be objectively ascertained), but rather concerns what the government has deemed the community's expectations to be. The content of the deemed expectation is to be discerned by construing cl. 11.3 itself.
The clause expresses two expectations, the first concerning norms of conduct to be expected of non-citizens, as expressed in the opening sentence:
[34]
The Australian community expects non-citizens to obey Australian laws while in Australia.
[35]
This statement is a reflection of the rule of law as it applies to citizens and non-citizens alike. It is an expectation that will not have been met in respect of a visa applicant who cannot pass the character test in s 501(6) of the Act and so must, of its nature, weigh against the refusal of a visa in all cases to which the Direction applies.
The second expectation is more difficult to interpret. It is expressed in the second and third sentences of the clause as follows:
[36]
Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa.
[37]
This part of the clause is concerned with the consequences that should befall a non-citizen who has fallen foul of the first expectation. It should be understood as expressing an expectation about the outcome of the exercise of the power conferred by s 501(1) of the Act in respect of the particular person whose circumstances are under consideration.
Before proceeding further it must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do. The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker's own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl. 11.3 of the Direction. The clause implicitly recognises that the decision-maker's assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
I have accepted the Minister's submission that cl. 11.3 is intended to give effect to the principle that the Minister may make a statement of the government's views about the expectations of the Australian community, which statement may be acted on by the person conferred with the power in a particular case, as recognised in Uelese. In my view, the task of the decision-maker is to identify what is the 'government's view' about community expectations in the particular case, to 'have due regard' to that view and to 'generally' afford that view more weight than other non-primary considerations in accordance with cl. 8(4). The phrase 'may be appropriate' does not permit the decision-maker to equate the expectations of the Australian community (as expressed in cl. 11.3) with the decision-maker's own view as to the preferable outcome in the ultimate exercise of the discretion. To construe cl. 11.3 in that way would be to ignore the fact that the clause is intended to express a consideration that is capable of being given more weight relative to 'other considerations' in the exercise of the discretion, as cl 8(4) of the Direction generally requires. The primary judge was correct to say that importing into cl. 11.3 all countervailing factors bearing on the ultimate decision would render cl. 8(4) of the Direction unworkable.
[38]
On 24 April 2020 when the High Court of Australia refused an application for special leave in relation to FYBR, Kiefel CJ stated, for the Court, that there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.
In the Tribunal's assessment, because SCJD has committed a large number of offences, and most specifically a number of offences relating to the commercial trafficking of serious drugs of addiction, the Australian community, in the context of that entity as expressed in 13.3 of the Direction, would not expect him to hold a visa to remain in Australia. I find that SCJD has failed to meet the expectation that he obeys the laws of Australia while in this country, an expectation - indeed an obligation - that, as Her Honour remarked above, applies equally to citizens and non-citizens.
Over the period from 1983 to 2016, SCJD has been before the Courts on some 14 occasions. Apart from five trafficking convictions, he has convictions as set out earlier in these reasons for assault, for a large number of firearms offences, for theft, for resisting police, and for failing to answer bail. Because of this sustained pattern of criminality, the Tribunal finds that this consideration weighs against revoking the mandatory cancellation of the visa.
[39]
International non-refoulement obligations (paragraph 14.1)
[40]
This consideration requires a decision-maker to consider whether any of Australia's international treaty obligations may be agitated in a particular case. In particular, will the Applicant suffer significant harm if the mandatory cancellation of his visa is not revoked, and he is returned to his country of citizenship.
The solicitors for the Applicant submitted that SCJD fears harm in Vietnam based on his status as a refugee who departed the country illegally and as a former drug user. His representatives submitted that he will 'face punishment from the Vietnamese authorities for his drug use'. They also submitted that the Applicant 'will face mistreatment, ostracization and harm' from the authorities in Vietnam. SCJD's solicitors further submitted that he fears return to Vietnam because of his status as a person with Hepatitis C and because of access to treatment for that condition in Vietnam. In addition, his representatives submitted that the Applicant's 'status as a returnee with no family and government support makes relocation to Vietnam impossible.'
Before the Tribunal (GD, pp 72-73) were movement records provided by the Department. They indicate that SCJD has travelled out of Australia between April and May 1989 for a period of 41 days; between January and February 1990 for a period of 25 days; and between June and July 2010 for a period of 74 days. It would appear from the submissions of SCJD's solicitors that each of these trips was to Vietnam, because they refer in their Statement to him 'returning to Vietnam on several occasions, albeit for short term visits.'
Before the Tribunal was a statement of SCJD written on 8 July 2010 referring to the reason why he was then in Vietnam. He stated that he was having back trouble and difficulty with his legs and had gone to Vietnam for treatment because 'it is very cheap'. The Applicant refers to having three weeks of treatment and that, having had difficulty walking and having to resort to using a wheelchair before his journey, he could now walk around without needing to use a walking stick.
In his oral evidence at the previous hearing, SCJD said that the primary purpose of his journey to Vietnam in 2010 was for acupuncture treatment. When asked directly why he was scared about going back to Vietnam, SCJD said he did not know anyone there. He also said he was concerned about treatment for drug addicts because they 'send them to gaol and shoot them'.
There is scant evidence to support the written submissions on behalf of the Applicant that he would face 'harm' if repatriated from the Vietnamese authorities. While there were a number of press articles submitted relating to the historical treatment of drug offenders in Vietnam which undoubtedly paint a picture that there was a severe regime in place, there is evidence before the Tribunal that that situation has changed. The most authoritative evidence of this change is contained in the DFAT Country Information Report Vietnam dated June 2017 (GD, pp 868-893). This document is prepared by the Department of Foreign Affairs and Trade for 'protection status determination only' (see GD, p 871) and is relevant to the Tribunal's assessment as to whether non-refoulement claims are engaged in relation to SCJD's application.
The Country Information Report Vietnam states, at paragraph 4.12 (GD, p 888):
[41]
Around 35,000 drug users are detained in administrative centres, referred to as 'Treatment, Education and Social Labour Centres' (also known as '06 Centres'), without charge and with limited judicial involvement. Drug users reportedly spend an average one to two years in these centres; however, detention is no longer compulsory if an individual is registered on a methadone program. Credible reports indicate harsh conditions and mistreatment of detainees at these centres, including forced labour and physical abuse. The centres are often reported to be profitable for those managing them due to the forced labour practices.
[42]
Given that SCJD has commenced a methadone program and has proof of his regular participation in it, which was before the Tribunal, it would appear that he would not be subject to detention, provided he registered for methadone maintenance treatment if repatriated. There was nothing before the Tribunal to support SCJD's claim that people are 'shot' if they have taken drugs in the past.
The Tribunal notes that SCJD also claims that he may receive adverse attention from the Vietnamese authorities because of the manner he left the country in 1980 and for the fact that his father was a soldier in the army of the former Republic of Vietnam. In respect of the first contention, it would not appear that SCJD has been impeded in being issued with Vietnamese travel documents nor in freely entering and freely leaving Vietnam on each of the three occasions on which he has travelled there from Australia.
It also does not seem that his father's former military service, more than 40 years ago, has been an impediment to SCJD in his several visits to the country, nor has it led to any attention from the Vietnamese Government. It was submitted to the Tribunal that relatively short-term visits by the Applicant to Vietnam are different from him returning there to live permanently, but there was little elaboration on this assertion and why it would be substantially different.
The Applicant's submissions about his hepatitis C condition will be considered later in these reasons.
The Tribunal notes that the visa held by SCJD, which has been cancelled, is not a protection visa, and that SCJD has never been refused a protection visa, nor has he held such a visa (he originally came to Australia on a refugee visa). It is relevant that the Applicant may make a valid application for a protection visa, where he may make more substantive claims that he is owed international protection by Australia.
On 6 September 2017 the Immigration Minister made a direction under section 499 of the Act, Direction No. 75. Relevantly, Direction No. 75 states, in Part 2:
[43]
In considering elements of the Protection visa assessment for applicants who raise character or security concerns, decision-makers are to follow the order set out below.
The decision-maker must first assess the applicant's refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns.
[...]
[44]
It is open to SCJD to apply for a protection visa. If he chooses so to do, he would have the opportunity to expand upon any claims relating to his own circumstances that might invoke Australia's non-refoulement obligations. I am also satisfied because of Direction No. 75, and section 499(2A) of the Act, that a decision-maker in relation to such an application is directed by the Respondent to carefully assess those claims, before looking to any character concerns.
The Tribunal is not satisfied on the evidence before it that SCJD has a well-founded fear of being persecuted if repatriated based on his race, religion, nationality, membership of a particular group, or political opinion. There is also insufficient evidence of an existence of a 'real risk' in the sense of that term in section 36(2A) of the Act if SCJD returns to Vietnam permanently, in the sense of denial of medical treatment or discrimination because of his past drug addiction which he submits has substantially diminished now he is on a methadone course. That particular matter will be discussed later in these reasons.
The Tribunal finds that none of the contentions made rise to the level of invoking Australia's convention obligations not to return a person to a country where they will be exposed to potential harm, and so this consideration weighs neutrally in this assessment. Where the contentions may contribute to whether there is 'another reason' to revoke the mandatory cancellation of the visa will be dealt with elsewhere, consistent with authority (Minister for Home Affairs v Omar[2019] FCAFC 188, at [39]).
[45]
Strength, nature and duration of ties (paragraph 14.2)
[46]
This part of the Direction requires the Tribunal to have regard for how long a non-citizen has resided in Australia, including whether the person arrived as a young child, noting that less weight should be given to ties where the non-citizen began offending soon after arrival and more weight should be given to time the non-citizen has spent contributing positively to the community. The Tribunal must also consider family or social links, and the strength and nature of those, between the Applicant and any of his immediate family who are Australian citizens, permanent residents, or who have an indefinite right to remain in Australia.
Living in Australia are SCJD's parents, his son XS, and siblings and their children. It would appear that SCJD has no living relatives in Vietnam, or if he has, they are not close relations. The Tribunal had before it statements from family members including SCJD's mother (GD, p 90) and his younger brother (GD, p 92). SCJD's brother stated that SCJD's "family is all here in Australia".
The Applicant's brother also wrote (GD, p 1138): 'My brother knows my wife and my elder children - it would be great from him to spend time with my younger kids who he has not met because he has been in prison.'
The Tribunal accepts there is a genuine desire by SCJD's brother for the Applicant to get to know his nieces or nephews, but also that the Applicant has never met them.
[47]
SCJD told the Tribunal (transcript p 70) that he had last seen his son in 2005. He said he was in gaol when XS was born. His former wife had previously visited him in prison and brought their son with her. On release SCJD said he lived with his former wife and their son for a short period before they separated. SCJD said she took XS with her when she moved back to live with her parents. He said he could not get into contact with her or with his son, so he approached his solicitor and received certain supervised visitation rights. A copy of a Federal Magistrate's Order in respect of access by SCJD to XS was at GD, pp 98-99. SCJD said he attended a suburban police station where his former wife was to bring XS but told the Tribunal she ignored the court orders and "never [brought] my son to come and see me".
SCJD said he did consult with his solicitors, but that they said there was little they could do, and he stopped trying to see XS in 2005. There was no evidence before the Tribunal that he made further attempts to contact XS. SCJD told the Tribunal that XS was now old enough to make his own decisions about making contact.
There was no current information before the Tribunal as to whether there were any Court orders still in place at the time of the hearing (and in any event they would expire on XS becoming an adult), and the only information on this is what SCJD told the previous hearing. The Tribunal cannot conclude whether they remained in place before XS turned 18.
The Tribunal considers that SCJD's desire to make contact with his son is genuine, and accepts his evidence that his former wife brought XS to prison in order to establish a fatherly relationship between the Applicant and his son, given that he was incarcerated when XS was born. However, the passage of time with no contact between them significantly dilutes the weight that would normally apply to considering the relationship between a child and his or her parent, in a case where there is no evidence of any abuse or neglect.
[48]
The Tribunal had a statement from an officer of the Vietnamese Business Association of Australia Inc. (GD, p 94) in which the writer stated that SCJD had 'learned his lessons and regrets his crimes' but it was essentially written about the effect the deportation of SCJD would have on his mother and there was no evidence that the author of the statement had personal knowledge of the Applicant.
The Tribunal had an unsigned statement dated 20 January 2018 from the proprietor of a building business (GD, p 95) in which the author stated that he knew SCJD and his mother for over five years and that the Applicant had worked for him as a handyman. The writer stated that he would train SCJD as an apprentice carpenter and send him to TAFE for further training.
The Tribunal notes that the Applicant's parents reside in Australia and are getting older, and his mother has suffered from various health conditions. These factors may make it more difficult for them to travel to Vietnam should SCJD be repatriated.
Given that all SCJD's close relatives reside in Australia, including his now adult son, as well as a network of other friends, and taking into account and the length of time the Applicant has resided in this country, the Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa.
[49]
Impact on Australian business interests (paragraph 14.3)
[50]
This part of the Direction requires the Tribunal to consider the impact on Australian business interests if a particular non-citizen's visa is cancelled, but that an employment link would generally only be given weight where visa cancellation would significantly compromise the delivery of a major project or important service in Australia.
There was evidence before the Tribunal of SCJD being employed briefly as a handyman and a waiter, and undertaking some other short-term work including for his mother's business, but I do not find this employment evidence rises to the level which would engage this consideration.
The Tribunal finds this consideration is not engaged in this assessment, and therefore weighs neutrally.
[51]
The way this part of the Direction is couched means that this consideration is only relevant where a victim of a non-citizen's criminal offending is aware of a decision to cancel the person's visa.
The Applicant's counsel rightly conceded that trafficking in drugs is not a 'victimless' crime, because of the effect it has on society and contributing to other criminal offending by dealers and addicts, the latter in order to fund their habit. However, there was no specific evidence before the Tribunal from a person who was aware of SCJD's migration status and so the Tribunal finds that this consideration weighs neutrally.
[52]
Extent of impediments if removed (paragraph 14.5)
[53]
The Direction sets out that the Tribunal must consider the extent of any impediments that a non-citizen may face if removed from Australia to his or her home country, in this case, Vietnam, in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of that country. The Direction provides that the Tribunal should take into account the person's age and health, any substantial language or cultural barriers, and any social, medical or economic support available to them in the country of reference.
Counsel for the Applicant submitted that SCJD left Vietnam aged 12 and has not resided there since that time, that his understanding of Vietnamese was poor, including his ability to read and write in that language. SCJD himself described his knowledge of Vietnamese as 'middle' range and the Tribunal notes he requested a Vietnamese interpreter for the hearing.
In terms of SCJD's health, the various medical examination reports provided to the Tribunal record that he is in general good health, taking into account that he was prescribed a regular methadone course (GD, p 1378). He has had some health issues which appear to have resolved, including undergoing a colonoscopy. Importantly in terms of the material before the Tribunal is a medical report (GD, p 1352) which records that SCJD was still injecting buprenorphine into his groin veins (in order to hide the needle marks from others) at that time, and he told the medical officer he had last taken 'bupe' a few days before the examination.
More importantly is a medical report dated 4 July 2019 (GD, p 1357) which records, in red type, that hepatitis C was not detected. This latest medical information would appear to the Tribunal to indicate a sustained virological response which suggests that SCJD will stay free of the hepatitis C virus indefinitely.
There is a tension in the submissions of the Applicant's representatives about his status in Vietnam. On the one hand it is submitted that he has largely sloughed off his drug addiction, noting a small amount of illicit drug taking in prison, and using buprenorphine without a prescription for that drug. On the other hand, it is submitted that 'as a drug addict' SCJD would face hardship, or even harm, in Vietnam, as voiced by him in his own oral evidence.
The Respondent drew the Tribunal's attention to an article in the International Journal ofDrug Policy written in 2017 (SGD, p 1239) which refers to pressure from international donors on the Vietnamese Government from 2011 on to 'shift away from the compulsory centres approach', i.e. the 06 Centres where drug offenders were detained, and international funding for such centres was withdrawn. Relevantly, this article records improvements in the methadone maintenance treatment (MMT) regime operating in Vietnam (SGD, p 1241):
[54]
Specific changes to drug policy legislation was not observed during our research or after its dissemination (from 2015). What has been observed is the increase in government funding for the expansion of the MMT program from 60 clinics in 20 provinces/cities for 12,253 patients in 2012 (the start of the study) to 216 clinics in 54 provinces as of March 2016 for 44,479 patients. By December 2016, the number increased to 257 clinics...in all 63 provinces with 50,667 patients in treatment. The investment in the MMT program from the national government has increased from approximately US$150,000 in 2014 to US$1,500,000 in 2016. The government has invested in facilities, salaries of key staff and partial running cost [sic] for MMT clinics in the province, paving the way for a sustainable program. Vis a new Decree #90 in 2016 (Government of Vietnam, 2016), the national government has committed to allocate resources to fill all possible gaps created by international donors pulling out of the MMT program.
[55]
It would seem to the Tribunal that there is sufficient evidence that the Vietnamese Government has not only moved away from compulsory detention, but has also recognised the value of supporting methadone clinics, mirroring the international response to helping former drug addicts defeat their previous habit and move to a 'clean' life. There is also ample evidence (SGD, p 1361 to 1396) of SCJD's full engagement in methadone treatment.
The Tribunal finds that this consideration weighs slightly in favour of revoking the mandatory cancellation of the visa, principally because there is some evidence that SCJD is not fluent in Vietnamese, and has difficulty writing and reading that language.
[56]
The Tribunal has found that two of the primary considerations weigh against the Applicant. The other primary consideration, the best interests of minor children affected by the decision, has been found to weigh neutrally. Of the other considerations in the Direction, the consideration relating to international non-refoulement obligations weighs neutrally, noting he has further options in that regard. The considerations relating to strength of ties with Australia and the extent of impediments if removed weigh in his favour, the latter consideration weighing slightly. The remaining considerations are not engaged and weigh neutrally in this balancing exercise.
The Tribunal accepts that the circumstances of SCJD's early life in leaving Vietnam for Malaysia by boat were traumatic, and that these early experiences have had an effect on him which has endured and have had a psychological impact. Whether that contributed to his taking up a drug habit is not something that the Tribunal can determine. It has been submitted by Counsel for the Applicant that his trafficking activities can be ascribed solely to supporting his drug habit. While it may have been an element, the Tribunal cannot accept there was not a significant commercial element in significant trafficking activity. This view is bolstered by the lack of any explanation about the large number of firearms found at SCJD's residence, and his lack of candour about a notebook with drug recipe details found in his mother's car outside, as well as other drug-making apparatus.
In respect of the conviction for Riot, this is relevant because it occurred during SCJD's incarceration and, while he may not have been a principal, he was, in the Judge's words, 'an enthusiastic participant', and happy to damage equipment to allow other rioters protection from being identified. The Tribunal notes that this was in a prison environment and does not place significant weight on this particular conviction in this assessment, except in the context that it was a continuation of criminal conduct.
The Tribunal accepts that SCJD has made efforts to reduce his dependence on illicit drugs, but his conduct in prison supports a level of doubt about how he would fare in the community, and how resistant the Applicant would be to returning to drug use and trafficking. There is a clear difference between a person gripped by drug addiction and committing offences directly connected with that, and a person who engages in substantial trafficking in hard drugs for commercial gain, as SCJD has (noting for example the heroin conviction involving transactions of $29,600 and paying undercover police $43,500 for hashish).
SCJD himself acknowledged that he has been given several chances in terms of his migration status, and that he has failed to reform his criminal conduct. He has been effectively on notice since the first visa cancellation in 1997 to reform his behaviour. That was reiterated by the visa cancellation in 2000, notices from the Department that they were considering cancelling his visa in 2004, 2005 and 2006, all prior to the visa cancellation which is the subject of these proceedings. He has been given many chances, and in spite of short periods where he did not offend, his marriage and the advent of fatherhood, which Deputy President Forrest hoped would have a salutary effect on his criminal behaviour, appeared to have little or no effect.
He is an habitual offender, one involved in the insidious drug trafficking industry and a person who remains unable, even nearing the end of a long prison sentence, to fully acknowledge his criminal offending. The Tribunal therefore concludes that the risk of SCJD reverting to his previous criminal practices is an unacceptable risk, and this weighs heavily against him.
The Tribunal has weighed all the considerations, individually and cumulatively, and considered the particular circumstances of the case, as required by paragraph 6.1(2) of the Direction, in exercising the assessment of whether there is 'another reason' for the mandatory cancellation of SCJD's visa to be set aside. The Tribunal finds that the discretionary power provided for in section 501CA(4)(b)(ii) of the Act is not enlivened in this case. In other words, there is not 'another reason' why the mandatory cancellation of the visa should be revoked. The consequence is that the Tribunal finds the decision under review not to revoke the mandatory cancellation of SCJD's visa was the correct decision in law and the preferable decision where a discretionary power may be exercised.
[57]
The Tribunal affirms the decision under review.
[58]
I certify that the preceding 178 (one hundred and seventy-eight) paragraphs are a true copy of the decision and reasons for decision herein of Senior Member D. J. Morris