Federal Court of Australia

Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 150

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the second respondent on 26 July 2022 to affirm the decision of a delegate of the first respondent not to grant the applicant a combined Partner (Temporary) (Class UK) and Partner (Permanent) (Class BS) visa be set aside.

2.    The review of the decision of a delegate of the first respondent not to grant the applicant the visa referred to in Order 1 be referred again to the second respondent differently constituted for a fresh review of the decision according to law.

3.    The first respondent pay the applicant’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWART J:

1    The applicant applies for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), to affirm a decision of a delegate of the first respondent (Minister) to refuse to grant him a visa pursuant to s 501(1) of the Migration Act 1958 (Cth). The application for judicial review is brought under s 476A of the Act.

Background

2    The applicant is a citizen of Vietnam who arrived in Australia in February 2012 on a three month visa to attend a rowing camp in Orange, NSW. The applicant overstayed his visa, becoming unlawful in April 2012. While unlawful in Australia, the applicant met and married an Australian citizen with whom he had a son born in April 2014.

3    In July 2015, the applicant was detected by police at a property in Ryde, NSW, which was found to be a cannabis-growing facility where police found 69 cannabis plants and 66.48kg of cannabis leaf. The applicant was arrested, held in custody and initially refused bail.

4    On 4 November 2015, the applicant lodged an application for a combined Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa sponsored by his wife. On 7 November 2015, he was granted bail to live with his wife and son.

5    In respect of the conduct in July 2015 for which he had been arrested, on 4 April 2016, the applicant was convicted of the offences of “Cultivating prohibited plant more than or equal to commercial quantity – cannabis”, “Take part supply prohibited drug greater than or equal to commercial quantity” and “Goods in personal custody suspected being stolen” (NSW offences). He was sentenced to 10 months imprisonment, which sentence was suspended on entering into a bond to be of good behaviour for 10 months.

6    In October 2016, the applicant and his wife had another child.

7    In May 2017, the applicant moved from Sydney to Perth.

8    In July 2017, the applicant was arrested by officers of the Western Australia Police Force and charged with offences related to cannabis grow houses at two separate premises in Western Australia (WA offences).

9    On 25 June 2019, the applicant was convicted on a plea of guilty on two counts of “Cultivate a prohibited plant with intent to sell or supply” and sentenced by the District Court of Western Australia at Perth to concurrent sentences of fifteen and sixteen months imprisonment. The applicant was sentenced on the basis that he was an “aider” as he had been detected in two of the grow houses by the location of his fingerprints on the toilet door of one premises and on the front door and “the side of a biscuit wrapper” on the kitchen bench of the other premises.

10    The sentencing judge made the following remarks:

You are to be sentenced on the basis that, by being present at the premises on one occasion each, you provided security for the cultivation. This security was provided by your accompanying your co-offender on each occasion. While this role is limited, I find, from the presence of your fingerprints, that you did enter the houses and it must have been obvious to you that a large-scale cannabis operation was being conducted. Also, you were paid for your role but what that payment was is unknown.

The delegate’s decision

11    On 21 April 2022, a delegate of the Minister decided to refuse to grant the applicant a Partner visa on the grounds that he did not pass the “character test” in s 501(1) of the Act because he has a substantial criminal record by virtue of being sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a), 501(7)(c).

12    The applicant applied for merits review of the delegate’s decision in the Tribunal.

Review by the Tribunal

13    A NSW Police “Customised Report” containing eight pages of narratives which recorded contact between the NSW Police and the applicant was in evidence before the Tribunal. The Customised Report referred to an incident on 6 March 2022 when the applicant had been stopped in his car and arrested by NSW Police after being found in possession of 2 grams of cannabis in cling wrap and a further 250 grams of cannabis in a bag under the driver’s seat (2022 offence).

14    During the Tribunal hearing, the applicant was asked questions about this incident. He said that he had been found by NSW Police in possession of between 200 and 250 grams of cannabis leaves which he had been mixing with his tea to help with his sleeping, and that he had appeared in Court for that offence on 31 March 2022. He said that he had been fined $550 for this offence.

15    The Customised Report narrative states that when police asked the applicant what the substance in the cling wrap was, he said “Cannabis, I bought it in Cabramatta”. When asked about the substance in the bag under the seat, he said it was “cannabis, I bought it on ebay for five dollars”.

16    On 26 July 2022, the Tribunal affirmed the decision of the delegate.

17    The Tribunal stated in its reasons that it recognised that in exercising the relevant statutory discretion it must comply with Ministerial Direction No 90 which sets out the relevant considerations.

18    In relation to primary consideration 1, being protection of the Australian community, the Tribunal addressed the WA offences, stating at [45]:

At law, the Applicant, according to the parties (sic) provisions of the West Australian Criminal Code in relation to the second set of offences, is properly regarded as an “aider”. The Applicant was not the principal offender. Nonetheless, the role played by the Applicant in that series of offences, and indeed in the first series of offences, was integral, substantial and necessary for the criminal schemes to succeed. Furthermore, there is evidence that the Applicant received, on both occasions, some form of payment.

(Emphasis added.)

19    During the hearing, the applicant said that he was paid a cleaning fee on a one-off basis of $500 in the context of the WA offences, which the Tribunal at [53] noted should be regarded “with a degree of circumspection” because of its earlier finding that it was inherently improbable that the applicant did not appreciate that he was carrying on illegal activity in relation to the NSW offences. At [55], the Tribunal stated that “the actual involvement of the Applicant, in terms of his real and practical criminality, is not minimal, in the Tribunal’s view”.

20    In relation to the 2022 offence, at [59] the Tribunal noted that the drug in respect of which the possession offence was committed was the same drug for which he was charged with cultivation offences in 2015 and 2017. The Tribunal noted that it was obvious that the 2022 offence was not a cultivation offence, but that having regard to the Tribunal’s view on the applicant’s credibility, the Tribunal was not prepared to accept the applicant’s explanation that he had possession of the cannabis to make a solution to assist him with sleeping (at [60]).

21    At [62], the Tribunal stated in relation to the 2022 offence that if the applicant did not grow the cannabis himself, then “[i]t is therefore possible to further infer that the Applicant continues to associate with those who use and perhaps deal in drugs, most likely cannabis” (emphasis added) and concluded that “the Applicant does, in fact, continue such associations”.

22    At [62]-[63], the Tribunal stated that it was satisfied that the 2022 offence was “clearly indicative” of the applicant being prepared to continue to commit offences which are drug offences and, at [71]-[72], that the applicant is “a real risk of once again re-offending and probably offending in relation to drug-related matters which, in turn, are likely to be or have a commercial aspect”. At [74]-[75], the Tribunal concluded in relation to primary consideration 1 that the risk to the Australian community of allowing the prospect of future offending in relation to drug-related matters that may be commercially-oriented is a significant and dangerous risk which weighs particularly heavily against the applicant.

23    The Tribunal’s treatment of the other considerations in Ministerial Direction 90 are not particularly relevant to the present review application and can be summarised briefly. The Tribunal found that primary consideration 2, being family violence committed by the non-citizen, was not relevant to its review. In relation to primary consideration 3, being best interests of minor children in Australia, the Tribunal found that the interests of the applicant’s two children weighs strongly in the applicant’s favour. In relation to primary consideration 4, being expectations of the Australian community, the Tribunal considered that substantial weight should be given to the consideration because of the nature and extent of the applicant’s drug offending.

24    With respect to the “Other considerations” stipulated in Ministerial Direction 90, in relation to international non-refoulement obligations, the Tribunal was of the view that the concerns raised by the applicant were so imprecise that it could not act on them, and that the applicant would be best making an application for a protection visa (at [124]). With respect to the consideration of the extent of impediments faced by the applicant if removed from Australia, the Tribunal considered that the concerns raised by the applicant operated in his favour and gave them “real weight”. The Tribunal considered that the consideration of impact on victims had no relevance to its review. With respect to links to the Australian community, the Tribunal found that the fact that the applicant’s wife and children (all Australian citizens) will continue to live in Australia weighs strongly in the applicant’s favour. Consideration of the impact on Australian business interests was held to have no relevance to the Tribunal’s review.

25    Ultimately, the Tribunal concluded at [142] that “the seriousness of [the applicant’s] particular involvement in commercial drug cultivation and the real likelihood of continued offending in the future leads the Tribunal to conclude that those factors outweigh the powerful considerations in the Applicant’s favour”.

Application for judicial review

26    The applicant seeks orders that the decision of the Tribunal dated 26 July 2022 be set aside and that the application for review of the delegate’s decision be remitted to the Tribunal for reconsideration according to law.

27    The applicant’s sole ground of review is that the Tribunal made critical findings which were not supported by the evidence and were irrational. Three particular findings were challenged in the applicant’s originating process but the challenge to the third finding was not pressed.

28    There was confusion between the parties during the course of exchanging written submissions as to whether the applicant was asserting a “no evidence” argument or an irrationality and unreasonableness argument, or both. During the hearing, the applicant clarified that its contention was that the Tribunal fell into error in relation to two of its findings which were irrational and lacking a reasonable basis.

First challenged finding

29    The first finding of the Tribunal that the applicant challenges is that the role played by the applicant in the offences committed in Western Australia relating to the cultivation of cannabis with intent to sell or supply to another “was integral, substantial and necessary for the criminal schemes to succeed” (at [45]). The applicant contends that the finding was not supported by the evidence in the sentencing remarks of the District Court and a statement of material facts relating to the offences. During the course of the hearing before me, it was common ground that the statement of material facts referred to and adopted by the sentencing judge was not before the Tribunal or me.

30    The applicant submits that according to the sentencing judge, the applicant’s role in the WA offences was no more than that of an “aider” who had attended each cannabis grow house once only for the purposes of providing security. The sentencing judge found that the applicant knew that the two properties were being used for growing a large amount of cannabis and that this was sufficient to support the conviction of the applicant as an “aider” in each offence. Importantly, the remarks on sentence described the applicant’s role as “limited”.

31    The applicant submits that it was not open for the Tribunal to find that the attendance of the applicant once at each of the properties, whether for security (as found by the sentencing judge) or as a cleaner (as contended for by the applicant in the Tribunal), was “integral, substantial and necessary for the criminal schemes to succeed” and that this characterisation of the applicant’s participation vastly overstated the seriousness of the offences.

32    The Minister submits that it is important to note that the Tribunal’s finding that “the role played by the Applicant in that series of offences [referring to the WA offences], and indeed in the first series of offences [referring to the NSW offences], was integral, substantial and necessary for the criminal schemes to succeed” was in relation to both the WA offences and the NSW offences, and that the evidence before the Tribunal with respect to the latter was that the applicant attended the premises two to three times per week to water cannabis plants over an extended period of time.

33    It is important to note that, aside from exculpatory or explanatory statements by the applicant which the Tribunal was entitled to reject, the only evidence before the Tribunal of the circumstances of the WA offences were the remarks of the sentencing judge.

34    The issue before me is whether the Tribunal’s finding that the applicant’s role in the WA offences was “integral, substantial and necessary for the criminal schemes to succeed” was unreasonably or irrational based on the evidence before it. As explained by Gordon J in Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; 399 ALR 644 at [43]:

unreasonableness is concerned with both outcome and process. Whether what is being reviewed is an exercise of power or the formation of a state of satisfaction, a finding of unreasonableness is not limited to cases where the outcome is one which no reasonable decision-maker could have reached. As Crennan and Bell JJ relevantly said [in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [133] and [135]]: “the correct approach is to ask whether it was open to the [decision-maker] to engage in the process of reasoning in which it did engage” and a decision might be said to be illogical or irrational (or, it might be added, unreasonable) “if there is no logical connection between the evidence and the inferences or conclusions drawn”.

35    Repeating the remarks of the sentencing judge set out at [10] above, after stating that the applicant provided security for cultivation by being present at the premises on one occasion each, his Honour stated “[w]hile this role is limited, I find from the presence of your fingerprints that you did enter the houses and it must have been obvious to you that a large-scale cannabis operation was being conducted. Also, you were paid for your role, but what that payment was is unknown”. Towards the end of the sentencing remarks, the judge stated “Considering the commercial and sophisticated nature of the cultivation and your involvement in it, while being at the lower level, still being a trusted role, I am positively satisfied that it is not appropriate to suspend the term of imprisonment”.

36    The Tribunal could not logically reason that the applicant’s role in the cannabis operation was “integral, substantial and necessary” for the scheme to succeed in the face of the findings by the sentencing judge that the applicant played a “limited” role “at the lower level”; those two sets of conclusions are in conflict with one another. Further, it was illogical for the Tribunal to reason that by visiting each of the two premises once, as found by the sentencing judge, the applicant provided a level of security to the operation that was necessary for its success. Cultivating marijuana in a grow house is doubtless a long-term operation. A one-off security visit could not rationally be characterised as integral, substantial and necessary; there is no logical connection between the evidence before the Tribunal and the conclusion reached.

37    Further, even adopting the sentencing judge’s view that it must have been obvious to the applicant that a large-scale cannabis operation was being conducted at the premises (as the Tribunal does at [54]), it is irrational to find that that state of knowledge means that the applicant’s role was “integral, substantial and necessary” for the operation to succeed; awareness of the scale of an operation by observation has no bearing on the extent of the observer’s role in the operation. Indeed, the larger the scale of the operation, the less basis there is for a conclusion that a particular person’s single visit to it means that their role was “integral, substantial and necessary”.

38    Such irrationality does not amount to jurisdictional error such as to justify the setting aside of the Tribunal’s decision under s 476A of the Act unless it was “material” to the decision. In that regard, it is necessary to consider whether the decision that was made by the Tribunal could have been different had the error not been made “as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [38]. With reference to that passage, it was explained in Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398 at [33] that the standard of “reasonable conjecture” is “undemanding”.

39    In my view, the Tribunal’s finding at [45] that the applicant’s role in the NSW offences and WA offences was “integral, substantial and necessary for the criminal schemes to succeed” was a material finding in the Tribunal’s assessment of the applicant’s involvement, in terms of his real and practical criminality, as “not minimal” and the seriousness of his offending as “very serious”. I reject the submission by the Minister that such an error is not material because the allied finding that the applicant’s role in the NSW offences was also “integral, substantial and necessary for the criminal schemes to succeed” was clearly justified. The Tribunal’s finding was positively expressed as being in relation to the WA offences, and the same finding in relation to the earlier NSW offences as subsidiary.

40    The Tribunal’s ultimate decision to affirm the decision of the delegate was the result of a finely balanced assessment. On the one side of the ledger there were the three sets of offences of decreasing seriousness in 2015, 2017 and 2022 which were the basis for the Tribunal’s finding that the applicant is a real risk of once again re-offending in relation to drug-related matters which weighed “particularly heavily” against the applicant. On the other side of the ledger there were his young children’s best interests and the applicant’s “extremely strong ties to Australia” which both weighed “strongly” in the applicant’s favour. In the latter regard, the Tribunal found that the applicant is married to an Australian citizen with whom he has two young children, he has lived in Australia for over 10 years and has worked in and contributed to Australian society. On any view, it must have been a close call for the Tribunal to have found that the balance tipped against the applicant.

41    Had the Tribunal correctly characterised the applicant’s role in the WA offences as “limited” and “at the lower level”, that may well have led to the Tribunal arriving at a different characterisation of the nature of the risk that the applicant poses to the Australian community, and the overall balance may have tipped in the applicant’s favour. After all, the considerations with regard to the interests of his young children and his links to Australia must unquestionably weigh strongly in his favour.

42    In those circumstances, I am satisfied that the Tribunal’s error amounts to jurisdictional error and that its decision should on that account be set aside. The first basis for the ground of review must succeed.

Second challenged finding

43    The second finding of the Tribunal that the applicant challenges is the inference that the applicant “continues to associate with those who use and perhaps deal in drugs, most likely cannabis” (at [62]). The applicant pleads that this inference was not open on the evidence and was irrational.

44    The applicant and the Minister agree that the evidence before the Tribunal was that in March 2022, the applicant was found in possession of 200 to 250 grams of cannabis.

45    The applicant points out that this quantity is little more than the amounts now permitted to be in the personal possession of a resident of the ACT, being up to 50 grams of dried cannabis or up to 150 grams of fresh cannabis: Drugs of Dependence (Personal Cannabis Use) Amendment Act 2019 (ACT). On that basis, taken together with the fine of only $550, it cannot be said that the Australian community would regard the offence as serious. The applicant further submits that the Tribunal’s reference to the applicant associating with those who “deal” with drugs was particularly egregious, with the implication of drug supplying and trafficking. It is contended that by “artificially, and without any reasonable basis” conflating the seriousness of the applicant’s conduct in the WA offences and the 2022 offence, the Tribunal fell into error.

46    As noted at [14] of the Tribunal’s reasons, in the Customised Report before it, the police recorded that when asked about the cannabis found in the applicant’s possession in the 2022 offence, the applicant stated it was “cannabis. I bought it in Cabramatta” and “cannabis leaf, I bought it on ebay for five dollars”.

47    During the Tribunal hearing, the applicant stated in answer to the question “Have you been involved in the growing or distribution of cannabis since your arrest in Western Australia in 2017?” that “Recently, because of my sleep deprived, I actually did buy the cannabis leaves to mix with my tea”. Later during the hearing, in relation to the 2022 offence, the applicant stated that he “bought cannabis leaves to mix with my tea to help with my sleeping”. In that context, the Tribunal in its reasons at [62] stated that “if the Applicant did not grow the cannabis himself, then he associated with those who provided the cannabis to him”, leading to the inference that the applicant “continues to associate with those who use and perhaps deal in drugs”.

48    During the hearing, the meaning of “associate” was discussed at some length. Section 501(6)(b) of the Act provides that a person does not pass the character test if the Minister reasonably suspects that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person, and that the group, organisation or person has been involved in criminal conduct. However, this provision was not relied on by the Tribunal. The Minister submits that the applicant by, buying cannabis, plainly associated with the person who sold it, and that in order for the applicant to know where to buy cannabis from, he must know people who sell it. The Minister also submits that the fact that buying cannabis is a unlawful transaction or criminal transaction (at least in NSW) which necessarily occurs in a covert, hidden way, leads to the inference that it is more than a passing, arm’s length transaction, and is therefore an association with the person who sells it.

49    Although I accept that a cannabis user does not necessarily have to have an ongoing, involved relationship with someone from whom they buy cannabis, I imagine that in order to buy cannabis the user would generally have to know a person to call, they have to arrange to meet the person, and they have to pay that person. Adopting a wide definition of “to associate with”, meaning to connect or be involved with, I accept the Minister’s submission that there could be said to be an element of association with people using or dealing cannabis in order to purchase cannabis, and that such a transaction differs from the example discussed during the hearing of walking into any corner store or a grocery store to buy something.

50    There was little evidence before the Tribunal as to the details of the transaction behind the 2022 offence, which is unsurprising in the context of a possession charge. The only evidence before the Tribunal was in the Customised Report from which the inference was open that the applicant met with someone in Cabramatta to purchase cannabis, albeit a small amount. I therefore accept that although the basis for the finding was at best tenuous, given the evidence before the Tribunal that the applicant purchased cannabis from someone and the inference that that was a personal transaction, the Tribunal’s finding that the applicant “continues to associate with those who use and perhaps deal in drugs, most likely cannabis” was not quite of such a character as to be irrational or unreasonable in the requisite sense.

51    The second basis for the ground of review must therefore fail.

Conclusion

52    In the result, the decision of the Tribunal falls to be quashed. The Minister should pay the applicant’s costs.

Associate:

Dated:    1 March 2023