Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

THE DECISION OF THE TRIBUNAL 6 After summarising background matters concerning Mr Vu's history since his arrival in Australia, the Tribunal identified the issues for determination as being whether the Tribunal reasonably suspected that Mr Vu did not pass the character test, and how the discretion to cancel the revocation should be exercised under s 501(2) of the Act. 7 The Tribunal proceeded to consider the framework provided by Ministerial Direction 79, which decision-makers must follow when determining whether or not a person passes the character test pursuant to s 501(6) of the Act, and when exercising their discretion in deciding whether or not to cancel a person's visa. In considering whether Mr Vu passed the character test, the Tribunal first noted that s 501(6) stipulates that a person will not pass the character test if they have a substantial criminal record, which a person has if they have been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)). 8 The Tribunal then at [17] set out a summary of Mr Vu's criminal record by reference to his National Police Certificate, which addressed offences up until 4 November 2013. Between November 2001 and September 2003, he was sentenced for committing five criminal offences involving receiving stolen property, being in possession of goods reasonably suspected of being stolen, theft, and a failure to answer bail granted. Convictions were not recorded for these offences, other than for an offence of having goods suspected of being stolen on a premises, for which he received a conviction and a 5 year good behaviour bond. In October 2003, Mr Vu was sentenced to 18 months imprisonment for handling/receiving/retaining stolen goods. In April 2006, Mr Vu was convicted of four counts of shoplifting, and received a 9 month sentence of imprisonment. In 2010, Mr Vu was convicted of common assault, and for mid-range drink driving. He received an 18 month sentence of imprisonment, suspended on a good behaviour bond, and then a 12 month home detention sentence for the two common assault offences. In 2013, Mr Vu was sentenced to 3 years and 6 months imprisonment for supplying a commercial quantity of a prohibited drug. The Tribunal noted that Mr Vu was also convicted for the breach of an AVO in 2018 and for drink driving in 2019 after the National Police Certificate in the evidence was issued, and after he had received the NOICC. 9 The Tribunal determined that Mr Vu did not pass the character test as he has a substantial criminal record as defined under s 501(7)(c), noting that Mr Vu conceded as much. 10 The Tribunal then turned to consider whether to exercise its discretion to cancel Mr Vu's visa. The Tribunal identified the protection of the Australian community from criminal or other serious conduct as "Primary Consideration A" in the exercise of its discretion pursuant to Direction 79. 11 In the first paragraph of its consideration of Primary Consideration A, the Tribunal said the following: [23] As noted above, the applicant has been convicted of multiple offences throughout the period of his residence in Australia. The Tribunal considers the offences to be quite serious, particularly the offences involving violence towards others, as well as drug offences which resulted in a significant term of imprisonment. Although the applicant claims his offending was not violent, the Tribunal is mindful that the applicant had been convicted of an assault, has been issued with an AVO and has admitted to the Tribunal that he had made threats to his wife. 12 The Tribunal then examined the nature of Mr Vu's offending. In relation to his offences from 2001 until 2006, the Tribunal acknowledged that the offending was of a less serious nature and did not involve violence, although noted its frequent nature was concerning. The Tribunal stated that it considered Mr Vu's conduct in committing the drug supply offence in 2013 to be serious. The Tribunal noted that the circumstances of Mr Vu's common assault conviction in 2010 involved him physically striking and kicking the victim several times. The Tribunal then went on to consider the circumstances surrounding Mr Vu's breach of an AVO in 2018: [27] The applicant states that other than the 2009 incident, he does not have a history of violence and there has been no further violence since that incident. However, as noted above, the applicant has been issued with an AVO in 2018 and he was convicted of the breach of an AVO and stalking / intimidation. The applicant's oral evidence to the Tribunal is that there were two occasions when the police was [sic] called to his home, that on one occasion during an argument with his wife, he broke her fan and he also admits that during another argument he threatened to burn his wife's possessions. The applicant also admitted in oral evidence that he threatened his wife's co-worker during the incident in July 2018. In the Tribunal's view, such threats may also be considered as violent conduct and conduct intended to cause fear. The Tribunal does not accept the applicant's argument that he does not have a history of violence. The applicant concedes that he makes 'bad choices' when he consumes alcohol. [28] The Tribunal considers the nature and seriousness of the conduct to be significant. The assault offence, and the domestic violence conduct, involves violence or threat of violence towards others. Direction 79 states at paragraph 9.1.1(b) that in considering the nature and seriousness of the criminal offending, the decision-maker must have regard to the principle that crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed. … [31] In relation to the breach of the AVO and the intimidation / stalking offences, the applicant explains in his submission to the delegate of 21 September 2018 and his declaration that his relationship with his wife ended in June 2018 and his wife left him, taking the child. He was charged with intimidation of his wife and an AVO was granted which prohibited him from approaching his wife. The applicant went to his wife's place of work to ask her about their daughter and a worker called the police. The applicant states that the breach of the AVO was not violent in nature but involved him going within 100 metres of his wife's place of work to ensure about their child. The Tribunal accepts that this incident may not have involved violence, although the police report indicates that some threats may have been made. 13 The Tribunal also explained that Mr Vu's estranged wife (who is variously referred to in the decision as his "former wife", "former partner" and "Ms N") gave oral evidence to the Tribunal that Mr Vu cannot control himself when he is angry or drinks, and that she was "a little afraid" of him. The Tribunal considered Mr Vu's conduct that adduced the fear in his wife to be serious. 14 The Tribunal was not persuaded by Mr Vu's evidence that he had reformed since committing his offences and that there was a low risk he would reoffend, given that he had made similar claims in relation to an earlier NOICC and had given an undertaking not to re-offend, which he subsequently broke. It was similarly unpersuaded that the presence of his wife and child, or his relationship with these family members, would minimise the risk of Mr Vu committing further offences or engaging in other serious misconduct, given that he had breached the AVO in relation to his wife. 15 Overall, it found that the frequency and cumulative effect of Mr Vu's criminal conduct was a matter of serious concern, and that the risk to the Australian community should he commit further offences was significant, given the serious nature of past offences and the fact that some of the offences included violence or threats of violence towards others. The Tribunal found that Primary Consideration A weighed in favour of the cancellation of Mr Vu's visa. 16 The Tribunal then turned to consider Primary Consideration B as identified in Direction 79, being the best interests of minor children in Australia. The Tribunal noted that Mr Vu has a young daughter in Australia born in 2015, and that he has been involved in all major decisions in her life and in supporting her and helping look after her since birth. He provided documentary evidence of his relationship with his daughter, including photographs, records of financial support and a number of statements. 17 The decision records that Mr Vu told the Tribunal that he and his wife had entered into a Parenting Plan in 2018 for the care of his daughter following their separation, which allowed him to see his daughter regularly and to participate in her upbringing. He said to the Tribunal that his wife has no family in Australia and nobody to help her care for the child, and he was more experienced than his wife in looking after the child. Mr Vu argued that he was a joint carer of his daughter. 18 The Tribunal accepted Mr Vu's evidence regarding the relationship with his daughter, and said the following: [47] …The Tribunal accepts that the applicant has developed, and maintains a close relationship with his daughter and that he has played a meaningful role in his daughter's upbringing. The Tribunal accepts that the applicant has provided financial support to the child. The Tribunal is prepared to accept that the applicant is willing to play a positive parental role in the future. The Tribunal also accepts that at the time when the applicant did have access to his daughter, he acted as a caregiver to his daughter, although the Tribunal is mindful that there were periods when the applicant had [no] access to his daughter. [48] The Tribunal has had regard to the psychological report of Mr Green. Mr Green outlines the applicant's circumstances and the reasons for the offending, sets out the risk factors for re-offending and the effect that the separation from his daughter may have on the applicant. Having regard to that evidence, the applicant's own evidence about his relationship with his daughter, the evidence of the applicant's former spouse and other materials, the Tribunal accepts that the applicant has a close relationship with his child and provides parental guidance and support to her. The Tribunal accepts that it is in the best interest of the applicant's minor child to maintain that relationship. The Tribunal accepts that the best interests of the child weigh against the cancellation of the visa. The Tribunal acknowledges that it is a primary consideration and has given it considerable weight. 19 After finding that Primary Consideration B weighed in Mr Vu's favour, the Tribunal considered Primary Consideration C, the expectations of the Australian community, and found that Mr Vu's conduct did not meet those expectations. 20 The Tribunal then turned to address the "Other Considerations" set out in paragraph 14(1) of Direction 79 that decision-makers must consider in the exercise of their discretion. In relation to the impact of Mr Vu's departure on victims, the Tribunal said the following: [66] The applicant's former spouse expressed fear as a result of the incident when the applicant approached her place of work. Police reports show that she has expressed fear in relation to other incidents leading to the separation. There is little other evidence before the Tribunal concerning the impact on victims. 21 In relation to the extent of impediments that Mr Vu would face if removed from Australia, the Tribunal accepted that it would have an adverse impact on him and his daughter if he was to be removed, although it considered it was possible that his daughter may be able to visit him in Vietnam. The Tribunal did not accept that Mr Vu would face poverty if returned to Vietnam, despite his contentions otherwise. However, the Tribunal considered that overall, Mr Vu may find it difficult to re-establish is life in Vietnam, and would face significant impediments if removed from Australia. 22 The Tribunal relevantly concluded as follows: [74] The Tribunal accepts that the best interests of the applicant's child require the applicant's presence and ongoing relationship with the child in Australia. The Tribunal acknowledges that it is a primary consideration and the Tribunal gives this significant weight in favour of the applicant. However, that does not necessarily mean that the decision must be made in favour of the applicant. [75] The Tribunal also accepts that that there may be a significant impediment to the applicant if removed, as the applicant has spent a very lengthy period of time in Australia and has established his life here. The Tribunal accepts that the applicant has substantial ties in Australia and there is evidence of community support. The Tribunal also accepts that the applicant's departure from Australia may cause hardship to his daughter and his former wife, who has no other family support in Australia and who relies on the applicant financially and with the child's upbringing. These are strong factors that support a finding that a cancellation should be set aside. [76] However, against these considerations, the Tribunal has formed the view that expectations of the Australian community would be in favour of the cancellation, despite the applicant's links to Australia and despite the presence of his child here. This is because the applicant has committed serious offences in Australia and his offences are numerous. Despite the warning the applicant received when the possibility of the visa cancellation was first raised with him, and despite his undertakings to change, the applicant continued to re-offend. The Tribunal has formed the view that the applicant has a substantial disregard of the Australian law, which he has displayed throughout the period of his stay in Australia. The applicant continued to offend after the birth of his daughter and after the second NOICC was issued, when the applicant was fully cognisant of the potential implications of his conduct. In the particular circumstances of this case, the Tribunal has formed the view that the expectations of the community would be in favour of the cancellation and that is also a primary consideration. [77] In terms of the protection of the Australian community, the Tribunal rejects the applicant's claim that he would not re-offend or there is little chance of him re-offending. The Tribunal places weight on the fact that the applicant made the same undertakings in response to the first NOICC and these were supported by his treating psychologist, yet the applicant committed serious crimes since that time. Despite the applicant's claim that his present circumstances are different because he no longer drinks, does not gamble and has a close relationship with his daughter, the Tribunal does not accept the applicant's claims given that he has made the same undertakings in the past and has not complied with these. The Tribunal does not accept that the chance of the applicant reoffending are insignificant. The Tribunal has formed the view that there is a real likelihood of the applicant reoffending or engaging in other serious conduct. Given the frequency of the offending and the violent nature of some of the offences, the Tribunal considers that the risk of reoffending is considerably more than negligible. If such offending occurs, it poses a risk to the community. The Tribunal has formed the view that protection of the Australian community would be in favour of the cancellation. [78] There is little information before the Tribunal about the impact on Australian businesses and on the victims. The Tribunal has found that Australia's non-refoulement obligations would not be breached as a result of the cancellation.

4.2 Ground 2 - reasoning illogical, irrational or unreasonable for failure to properly balance relevant considerations under Direction 79 37 In ground 2 Mr Vu contends that the Tribunal's decision was illogical, irrational and/or unreasonable. He submits that the Tribunal's reasons were infected by jurisdictional error in this form because it was incumbent on the Tribunal, in order that it approach its task reasonably, to understand the totality of the evidence bearing on the matters that Direction 79 required it to consider, and also not to adopt a formulaic approach to the application of the discretion conferred on it and as required to be exercised pursuant to Direction 79. 38 The matters that Mr Vu relies on traverse much of the reasoning of the Tribunal. He first contends that having regard to the evidence concerning the effect of his deportation upon his infant daughter, the only conclusion reasonably open would be that it would likely be a crushing blow to him and his estranged wife and his family, but the Tribunal's reasons do not reveal any appreciation of these matters. Secondly, he contends that the Tribunal overlooked the evidence put forward by his estranged wife, in support of the non-cancellation of his visa, in concluding that there was little other evidence (beyond that of the fear expressed by his estranged wife) concerning the impact on victims. Thirdly, Mr Vu submits that the Tribunal's reasons do not reflect a proper reasoning process as to why it sometimes accepted his evidence on some matters but rejected it in respect of others, which it characterised as "mere assertions". Fourthly, he contends that the Tribunal's reasons do not reveal that it properly understood the evidence of his criminal conduct in expressing its conclusion at [77], where it said: The Tribunal has formed the view that there is a real likelihood of the applicant reoffending or engaging in other serious conduct. Given the frequency of the offending and the violent nature of some of the offences, the Tribunal considers that the risk of reoffending is considerably more than negligible... 39 Mr Vu submits that this is not an accurate summary of his offending having regard to the evidence that he was only convicted of one assault in 2010, that this was temporally remote from the Tribunal's decision and that since his daughter was born in 2015, he has not engaged in violent conduct. Furthermore, having regard to the Tribunal's findings at [28] and [31], Mr Vu submits that the conclusion at [44] set out below, was not based on a proper understanding of the evidence: The Tribunal considers the risk to the Australian community, should the applicant commit further offences or engage in other serious conduct, to be significant, give the serious nature of past offences and the fact that some of the offences included violence or threats of violence towards others. The Tribunal has formed the view that protection of the Australian community weighs in favour of the cancellation of the applicant's visa. 40 There is no dispute as to the relevant principles applicable in order to establish jurisdictional error for failure to exercise a discretionary power reasonably. The concept of legal unreasonableness concerns the lawful exercise of power. The Court's task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory. It does not involve a merits review of a decision. In assessing whether a particular outcome is unreasonable it is necessary to bear in mind that within the boundaries of power there is an area of 'decisional freedom' within which a decision-maker has a genuinely free discretion and where reasonable minds may differ as to the correct decision or outcome. The width and boundaries of that area is to be determined by evaluating the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power and the relevant principles and values of the common law applicable to reasonableness in decision-making: see generally Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 (Allsop CJ, Griffiths and Wigney JJ) at [58] - [64]. 41 Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [135] that: … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn… 42 Having regard to these matters of principle, and the breadth of the decisional freedom conferred having regard to the scope and purpose of s 501 of the Act and considerations in Direction 79, in my view Mr Vu has not demonstrated jurisdictional error on the part of the Tribunal, either in relation to any of the individual matters to which he has referred in his submissions, or collectively. 43 The matters to which Mr Vu draws attention may be characterised as a profound disagreement with the outcome of the reasoning of the Tribunal, but they do not give rise to a conclusion that it has fallen into jurisdictional error. Plainly, the Tribunal takes into account the effect that his deportation would have on his daughter (Primary Consideration B). In so doing, it concludes at [48] that Mr Vu has a close relationship with her and that he provides parental guidance and support to her. It finds that the best interests of the child weigh against the cancellation of the visa. In this regard, Mr Vu's partner gave oral and written evidence in support of his case. In the context of giving consideration to the impact on victims of his criminal behaviour within paragraph 10.4 of Direction 79, the Tribunal finds at [67] that his wife expressed fear as a result of the incident where he approached her place of work and fear to police arising from other incidents leading to their separation. Mr Vu submits that the Tribunal overlooked the evidence put forward by his wife that she gave in support of him remaining. However, that evidence focussed on the benefit to their daughter of the visa not being cancelled, a factor that the Tribunal found weighed in his favour. The oral evidence she gave supports the finding of the Tribunal as to the fear that she experienced. Mr Vu points to no aspect of the evidence given by his wife to indicate that the finding concerning the impact on the victim of his conduct was incorrect. The oral evidence indicates the contrary. Finally, Mr Vu's criticism of the characterisation by the Tribunal in [77] and [44] of the nature of his criminal conduct does not withstand scrutiny. These paragraphs take account of the "frequency of the offending and the violent nature of some of the offences" in concluding (in [77]) that the risk of reoffending is "considerably more than negligible". As I have noted in my review of ground 1, at [27] of its reasons the Tribunal characterised the behaviour of Mr Vu as making threats to both his wife and her co-workers as "violent conduct and conduct intended to cause fear". It rejects his submission that he has no history of violence. The police record identifies that in addition to the circumstances that led to the AVO (which involved yelling at his wife and her colleagues), in 2010 he was convicted of assault. 44 Having regard to the reasoning of the Tribunal, and the evidence to which it had regard, in my view Mr Vu has not established that the conclusions reached were illogical or unreasonable in the sense that they were simply not open on the evidence, or that there is no logical connection between the evidence and the inferences or conclusions drawn: SZMDS at [135]. Nor do I consider that the reasoning reflects a conclusion reached that is sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power; cf Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [11] (Allsop CJ, Griffiths and Wigney JJ). Whilst the temporal gap between the assault conviction in 2010 and the circumstances surrounding the breach of the AVO in 2018 may lead other decision-makers' to the conclusion that there was not a more than a negligible risk of re-offending, in my view those findings were open on the evidence and were not lacking the requisite logical foundation. Nor, to the extent that it may be considered to be a separate head of legal unreasonableness, in my view does the reasoning of the Tribunal amount to a mechanical formulaic expression hiding a lack of the necessary reflection upon the whole of the human consequences of the decision in the manner criticised by Allsop CJ in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [44] - [47]. 45 Accordingly, ground 2 must be dismissed.

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Judgment (7 paragraphs)

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