Bui and Minister for Immigration and Multicultural Affairs (Migration)

[2025] ARTA 217

Bui and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 217 (13 March 2025)

Applicant/s:  Son Huu BUI 

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2024/11075

Tribunal:  Senior Member A Mercer    

Place:Melbourne

Date:13 March 2025

Decision:Pursuant to section 105(c) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal sets aside the decision under review and substitutes it with a decision that the cancellation of the Applicant’s Class BS subclass 801 Partner visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

..........[SGD]................................................

Senior Member A Mercer

Catchwords

MIGRATION – refusal to revoke cancellation of the Applicant’s permanent subclass 801 (Partner) visa – drug offence – Direction 110 – Protection of the Australian community – interests of minor child – decision set aside – cancellation of visa revoked

Legislation

Administrative Review Tribunal Act 2024 (Cth)

Drugs, Poisons and Controlled Substances Act 1991 (Vic)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Sentencing Act 1991 (Vic)

Cases

Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Minister for Home Affairs v HSKJ [2018] FCAFC 217

BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181

BHL19 v Cth of Australia (No. 2) [2022] FCA 313

AJL20 v Cth of Australia [2020] FCA 1305

Doan and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 52

Chu and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 99

Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567

Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2

Jama v Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FCAFC 148

Hambledon v Minister for Immigration and Border Protection [2018] FCA 7

Secondary Materials

Direction 110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a decision under s 501CA

Statement of Reasons

1. On 14 October 2024, the Administrative Appeals Tribunal (the AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.

2. This matter concerns an application for review of a decision by a delegate of the Respondent to refuse to revoke the cancellation of the Applicant’s Class BS subclass 801 Partner visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).

3. In reconsidering this matter, the Tribunal must decide if the Applicant passes the character test; and, if he does not, whether there is another reason the cancellation of his visa should be revoked.

   BACKGROUND

4. The Applicant was born in Vietnam in January 1979 and is now aged 46. The Applicant has three siblings, being an older sister, a younger sister and a younger brother. The Applicant’s older sister is an Australian citizen and resides in Melbourne, while his younger sister and younger brother both reside in Vietnam. The Applicant’s parents also reside in Vietnam.[1]

   [1] HB, Applicant’s Statement of Facts, Issues and Contentions (SOFIC), document 1 at page HB1.

5. The Applicant completed secondary and tertiary education in Vietnam. He obtained a Bachelor of Civil/Construction Engineering and worked in this field for several employers in Vietnam for several years until coming to Australia to study in May 2013 as the holder of a subclass 573 Student visa. In Australia, he completed a Diploma of Business at Southern Cross Institute, a Diploma of Management at Cambridge International College and a Bachelor degree of Business Management at CIC Higher Education.[2]

   [2] Ibid, pages HB2-3.

6. The Applicant was married in Vietnam to his first wife in November 2006. He had two children with her, a daughter born in December 2007 (currently aged 17) and a son born in August 2011 (currently aged 13). The Applicant and his first wife were divorced in July 2015 in Vietnam, and she and the children continue to reside in Vietnam. The Applicant has telephone contact with his children and pays child support to his first wife for them via a private agreement.[3]

   [3] HB, Applicant’s SOFIC, document 1, page HB3.

7. The Applicant married his present wife, Thoai Ngoc Chau Phan (born June 1981) in Australia on 8 June 2019. The Applicant applied for a subclass 820 provisional Partner visa on the basis of his marriage, in or about 9 September 2019. On 12 May 2023, he was granted a Class BS subclass 801 permanent Partner visa.[4]

   [4] Ibid, pages HB3-4.

8. Ms Phan was married previously and has two children from that marriage: a daughter born in July 2003 (currently 21), and a daughter born in May 2006 (currently 18). In addition, she has a son born in June 2018 (currently 6) from a relationship she had between the end of her first marriage and her relationship with the Applicant. Ms Phan is an Australian permanent resident and her children are Australian citizens. Ms Phan was divorced from her first husband in November 2017. Her daughters maintain contact with both parents. Ms Phan’s son does not have contact with his biological father. The Applicant is Ms Phan’s son’s step-father and has a close relationship with him as he moved into Ms Phan’s house shortly after the birth of her son and remained part of the household until his arrest in June 2023.

9. The Applicant’s step-son was born with Down syndrome and was also diagnosed with heart problems in or about May 2019. He underwent a heart operation in November 2019 at the Royal Children’s Hospital in Melbourne to repair his atrial septal defect. Due to her son’s conditions, Ms Phan did not work for most of the time after his birth and the Applicant was the main breadwinner for the family until his arrest. He also helped care for his step-son, partly to relieve his wife, and partly due to his strong bond with his step-son. Since the Applicant’s arrest, Ms Phan’s son and younger daughter have been living with Ms Phan’s younger sister and her three children, to relieve the pressure on Ms Phan. Her son also receives support from the National Disability Insurance Scheme (NDIS)[5].

   [5] Ibid, page HB4.

10. On or about 15 June 2023, the Applicant was arrested by Victoria Police for being involved in a crop house as a crop sitter at a rural property in Victoria. He was charged with cultivating a commercial quantity of cannabis (307 plants totalling 245.86 kilograms across 10 rooms in a hydroponic setting).[6]

    [6] Ibid, page HB5.

11. The Applicant pleaded guilty to this offence, and on 2 May 2024, he was convicted and sentenced to 30 months of imprisonment with a non-parole period of 20 months. He is presently incarcerated at Ravenhall Correctional Centre in Melbourne.

12. On 25 June 2024, the Applicant’s subclass 801 Partner visa was cancelled by a delegate of the Minister pursuant to s 501(3A) of the Act on the basis that the Applicant did not pass the character test because of the operation of ss 501(6)(a) and (7)(c) (that is, because he had a ‘substantial criminal record’ which includes having been sentenced to a term of imprisonment of 12 months or more). The Applicant applied to have the cancellation revoked on 25 July 2024 and made submissions in support of that request.[7]

    [7] HB, G Documents, document G6, pages HB206 – 213.

13. On 19 December 2024, a delegate of the Minister refused to revoke the cancellation of the Applicant’s subclass 801 visa.[8]

    [8]Ibid, G Documents, document G2, pages HB176 - 195.

14. On the same date, the Applicant sought review of that decision with the Tribunal.

15. The Applicant attended a Tribunal hearing which took place over 3 and 4 March 2025. He was represented by Mr Anthony Krohn of Counsel and Mr Kevin Khoa Tran of Winstan Lawyers. Ms Sarah Thompson of HWL Ebsworth Lawyers represented the Minister at the hearing. The Applicant called three witnesses at the hearing, being his wife, his sister, Ms Bich Thuy Thi Bui, and his sister-in-law (his wife’s younger sister), Ms Thoai Phan, all of whom reside in Australia. They gave evidence and were cross examined on 4 March 2025. The Tribunal, the Applicant and his witnesses were assisted by the services of an interpreter in the English and Vietnamese languages.

    LEGISLATIVE FRAMEWORK

16. Under s 501(6) of the Act, the Minister must cancel a visa that has been granted to a person if, among other things:

    (a)The person has a substantial criminal record (as defined by subsection (7))…

17. Subsection 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

18. The transcript of the proceedings of the County Court of Victoria at Shepparton dated 2 May 2024[9] records that the Applicant was sentenced to 30 months of imprisonment, with a non-parole period of 20 months. A forfeiture and disposal order was also made. The Tribunal is therefore satisfied that the Applicant has a substantial criminal record within the meaning of ss 501(6)(a) and (7)(c).

    [9] HB, G Documents, documents G4 and G5, pages HB198 – 205.

19. Given this, the Tribunal finds that the Applicant does not pass the character test and his subclass 801 Partner visa is subject to mandatory cancellation.

20. Accordingly, the Tribunal must determine whether, pursuant to s.501CA(4)(b)(ii), there is:

    …

    Another reason why the mandatory cancellation of the applicant’s visa should be revoked.

    …

    THE DIRECTION

    Under s 499(1) of the Migration Act 1958 (Cth) (the Act), the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any direction given by the Minster (s 499(2A)).

21. The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’) on 21 June 2024. It is expressed to apply to the Administrative Appeals Tribunal (AAT) in making a decision under s 501 or s 501CA of the Act, and the Tribunal must comply with the Direction (as noted above, this now applies to the Administrative Review Tribunal).

22. Clause 5.2 of Direction 110 outlines a set of principles to provide a framework to approach decision making. These are:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)The safety of the Australian Community is the highest priority of the Australian Government.

    (3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    (7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

    (8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[10]

    [10] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘Direction 110’)

23. The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:

    (1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (2)The primary consideration … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

    (3)One or more primary considerations may outweigh other primary considerations.[11]

    [11] Direction 110, cl 7.

    THE APPLICANT’S REQUEST NOT TO HAVE HIS VISA CANCELLED ON CHARACTER GROUNDS

24. The Applicant and his representatives made oral and written submissions that the Applicant’s offending took place in the context of his being the breadwinner for his family in Australia. They conceded that he became involved in a commercial cannabis operation but noted that he was not the ring leader of the operation, that he was under financial pressure at the time due to his wife’s gambling problem and his need to support both his family members in Australia and in Vietnam (including his elderly, ill father who required treatment for lung cancer). Counsel also stated that he pleaded guilty at the earliest opportunity and made full admissions, that he was genuinely remorseful, that he had not been involved in any other criminal activity, and that he had completed a number of courses while in prison, designed to assist him to reintegrate into the community upon his release and/or avoid involvement in drugs in the future.

25. They noted that this was recognised by the sentencing judge and was reflected in the relatively low sentence imposed on the Applicant (30 months with 20 months’ non-parole period in the context where there was a potential maximum sentence of 25 years).[12] The Applicant and his representatives also provided evidence from the Applicant’s Australian citizen older sister that she could provide accommodation for the Applicant, Ms Phan and the Applicant’s step son upon the Applicant’s release from prison[13]. The Applicant indicated in his witness statement that he had an employment offer for when he was released from jail.

    [12] HB G Documents pages 34 to 39.

    [13] HB 142.

26. The Applicant and his representatives emphasised the adverse effect on Ms Phan and her young son if the Applicant’s visa was cancelled were he to depart Australia. They noted that the Applicant had essentially been a father to Ms Phan’s son since shortly after his birth as the boy’s biological father was not involved in their lives and his whereabouts were unknown. It was also emphasised that Ms Phan’s son had special needs.

27. Ms Phan’s younger sister, with whom Ms Phan’s son and younger daughter now live, has also indicated in her witness statement dated 10 February 2025[14] that she is struggling to care for Ms Phan’s son due to his high care needs and that she is very concerned that Ms Phan is unable to care for him herself without the practical, emotional and financial support of the Applicant. It was submitted that the effect on Ms Phan’s son (the Applicant’s step-son) would be extremely adverse if the Applicant had to depart Australia and the two were separated. Alternatively, it would also be extremely detrimental for the Applicant’s step-son to relocate with his mother to Vietnam to be with the Applicant, given that the Applicant’s step-son has never lived there, has health issues, and is almost entirely non-verbal, and would struggle to adjust to living in an unfamiliar environment where he would not have access to the NDIS or the kind of health care and educational support he receives in Australia.

    [14] HB 77.

28. Finally, it was argued that the Applicant would also struggle to adjust to returning to live in Vietnam given that he had been absent for over 10 years, would be separated from his immediate family (Ms Phan and his step-children; in particular, his step-son) and his extended family in Australia (his older sister and her children and his sister-in-law and her children, plus several aunts, uncles and cousins residing in Brisbane). It was stressed that the Applicant was at a low risk of reoffending, based on his single offence, his guilty plea, his full admissions, his remorse, his completion of various courses while in jail and his desire to avoid future incarceration and his desire to support his family.

    RESPONDENT’S CONTENTIONS

29. In the Respondent’s Statement of Facts, Issues and Contentions, (SOFIC),[15]the Respondent argued that the Applicant did not pass the character test because he had a substantial criminal record, and that the Tribunal should exercise its discretion not to revoke his visa cancellation, taking into account the considerations in Direction 110. The Respondent asserted that primary considerations 1 (protection of the Australian community) and 5 (expectations of the Australian community) weighed heavily in favour of the Tribunal refusing the visa, and to the extent that primary considerations 3 (strength, nature and duration of ties to Australia) and 4 (best interests of minor children in Australia), and any of the other considerations (such as the legal effect of a refusal and any impediments to removal of the Applicant), weighed in the Applicant’s favour, they were outweighed by primary considerations 1 and 5.[16]

    [15] HB 144.

    [16] HB 144.

30. The Respondent argued that the nature and seriousness of the Applicant's conduct weighed heavily in favour of exercising the discretion to affirm the decision to refuse revocation of the cancellation decision. Further, paragraph 7(2) of Direction 110 provided that this consideration was generally given greater weight than other primary considerations. 

31. The sentencing remarks of His Honour Judge Chettle of the County Court of Victoria on 2 May 2024[17] provided the following summary of the Applicant's offending:

    2.       Very briefly stated, on 15 June 2023 you were located in a property in Labuan Road, Strathmerton, that had been set up as an elaborate hydroponic cannabis growing venture, with plants in 10 rooms of the house totally 307 in number with a wight of 245.86 kilograms. This is significantly higher than a commercial quantity, which is 25 kilograms of weight or 100 plants.  

    3.       The place was sophisticated. It had a drying room; it had a bypass. You then were interviewed by the police where you made full admissions as to your role which, it is accepted by the prosecution, you were a sitter for the crop. You were not a principal, and you were being paid at a rate of $700 a week plus an anticipated $7,000 profit when the crop was harvested. You performed the function of sitting. You mixed chemicals, you fed the plants, and the plants, you told the police, were already there when you came. Your job was to look at the plants.  

    [17] HB G Docs G4.

1. While taking into account the personal circumstances of the Applicant, the sentencing judge stated that 'this is not an insignificant crop' and that the applicant was 'involved in a serious criminal enterprise.'[18]

   [18] Ibid, G4, page 37. 

2. The seriousness of the Applicant's offending was demonstrated by the two- and half-year custodial sentence. 

3. The offence the Applicant was convicted of arose under s 72A of the Drugs, Poisons and Controlled Substances Act 1991 (Vic). It was defined at s 3(1) of the Sentencing Act 1991 (Vic) (Sentencing Act) as a 'category 2' offence. Under the Sentencing Act, requirements for mandatory custodial sentences applied to category 1 and category 2 offences. The stipulation that the offence carried a mandatory custodial sentence was a recognition that it was regarded as one of the most serious offences that a person may be convicted of. Other category 2 offences included manslaughter, child homicide, kidnapping, and arson causing death.

4. The regime for mandatory sentencing for category 1 and category 2 offences was introduced because of a concern by the Victorian government to ensure that the sentences imposed for such offences were appropriate given the gravity and culpability of the offender.[19]

   [19] HB 157 - Second Reading, Sentencing (Community Correction Order) and Other Acts Amendment Bill 2016. 

5. Section 5(2H) of the Sentencing Act provides that where a person has committed a category 2 offence, a court must make a custodial order unless one of the following exceptions apply: 

   (a)the offender has assisted or has given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence; or 

   (b)the offender provides on a balance of probabilities that: 

   (i)subject to subsection (2HA), at the time of the commission of the offence, the person had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender's culpability; or 

   (ii)the offender had impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or 

   (c)the court proposed to make a Court Secure Treatment Order or a residential treatment order; or 

   (d)there are substantial and compelling circumstances that are exceptional and rare and that justify not making a custodial order. 

6. None of these exceptions applied with respect to the Applicant.

7. While the sentencing judge noted that a custodial sentence was required to be imposed under s 5(2H) of the Sentencing Act as the exceptions in that provision did not exist, His Honour also stated the 'seriousness of [the applicant's] offending dictates that nothing other than a term of imprisonment is appropriate for [the] offending.'[20]

   [20] HB, G4, page 38.

8. Noting that the safety of the Australian community was the highest priority of the Australian Government (paragraph 8.1(1)), and the commercial cultivation of narcotics put at risk the safety of the community by contributing to the proliferation of organised crime and by impacting the health and wellbeing of members of the community, the Respondent contended that the nature and seriousness of the Applicant's offending weighed heavily against revoking the cancellation decision.  

9. Paragraph 8.1.2(1) of Direction 110 provided that the Australian community's tolerance for any risk of future harm became lower as the seriousness of the potential harm increased. This entailed a cumulative consideration of (paragraph 8.1.2(2)): 

   (e)the nature of the harm to individuals or the Australian community should the noncitizen engage in further criminal or other serious conduct; 

   (f)the likelihood of the non-citizen engaging in such conduct, taking into account: 

   (i) information and evidence on the risk of the non-citizen re-offending; and 

   (ii)       evidence of any demonstrated rehabilitation. 

10. The Respondent contended that given the nature of the Applicant's offending, it was likely that, if repeated, there was a risk of serious harm to members of the community arising from the manufacture, distribution and use of prohibited drugs, and it was submitted that the community's tolerance for such offending was very low. This was despite the Applicant's claim that there was 'no victim' as the Applicant was 'arrested before the crop was sold.' [21] 

    [21] HB, 154, paragraph 64.

11. While the Applicant's criminal offending involved his indirect participation in the illicit scheme to cultivate a substantial amount of cannabis plants, the Respondent contended that the Applicant's involvement enabled the organised criminal activity of those ultimately responsible for the scheme. If the police had not intervened, the crop had the potential to cause significant harm to the community. 

12. His Honour noted that '[t]he number of plants and the weight of the plants, the sophistication of the enterprise all demonstrated it to be a significant commercial crop which [the Applicant was] aware of' and the Applicant knew he was doing 'something illegal.'[22]

    [22] HB, G4, page 37.

13. The Applicant submitted that the reason for his offending was 'out of a sense of need' and that he was receiving a 'very low wage - $700 per week.'[23]  The High Court had previously held that past actions were legitimate predicators of future behaviour: Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567; 578-579.

    [23] HB, 15, paragraph 92.

14. While the Applicant had undertaken a number of drug awareness courses, the Respondent contended that these did not address the reasons for his offending, which was due to financial constraints. For example, the Applicant had not undertaken any form of financial counselling nor indicated he would do so. Furthermore, the Applicant stated in his witness statement that if he was released, he intended to work to support his family and that a person he knows had employment available for him. However, the Applicant had not provided any further information regarding his intended line of employment or what steps he would take to not have any temptation to return to a criminal enterprise in order to make a living. In light of the financial advantages arising from future involvement in a similar scheme for the production of narcotics, and the Applicant's apparent limited earning capacity otherwise, the Tribunal could not be satisfied that the Applicant would not offend again in a similar way.

15. For these reasons, the Respondent contended that given the nature and seriousness of the Applicant's offending and term of imprisonment given, the Tribunal should find that the protection of the Australian community weighed heavily in favour of affirming the decision to refuse to revoke the cancellation decision. 

16. Paragraph 8.2 of Direction 110 referred to the Australian Government's serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia, and that these concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.  However, there was no evidence that this consideration was relevant to this matter (this being the Respondent’s position as at the date of the SOFIC on 21 February 2025). 

17. Paragraph 8.3 of Direction 110 required the Tribunal to have regard to the strength, nature and duration of ties in Australia. In particular, the Tribunal was required to consider any impact the decision may have on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. 

18. The Applicant last arrived in Australia on 28 May 2013, at the age of 34 years. He arrived on a student visa and had remained in Australia since, except for making three overseas trips in 2014, 2015 and 2017. The Applicant had not left Australia since 2017.[24] 

    [24] HB, G Documents, G26, page HB 169.

19. The Applicant's immediate family members included his wife (an Australian permanent resident), his step-son (an Australian citizen) and his sister (an Australian citizen). In this regard, the Respondent accepted that this primary consideration was relevant to and weighed in favour of the Applicant's visa not being cancelled. However, it was submitted that the weight to be given to this consideration was diminished by other considerations regarding the Applicant's ties to the community.

20. The Applicant has been incarcerated since his arrest in 2023. Although it was acknowledged that the Applicant had contributed to the Australian community by way of his previous employment, the Applicant himself had conceded that his 'most recent employment was the work caring for the crop.'[25] 

    [25] Ibid, Document 2, paragraph 46 at page HB21.

21. The Applicant had not provided any other evidence to demonstrate other ties to the Australian community. 

22. The Respondent contended that while the Applicant had ties to Australia and accepted that this should be given some weight in favour of the Applicant, this primary consideration should not be given greater weight than the primary consideration of the protection and expectations of the Australian community, which weigh in favour of refusing to revoke the cancellation decision.  

23. Paragraph 8.4(1) of Direction 110 required the Tribunal to make a determination whether the best interests of minor children in Australia were affected by the decision. 

24. Paragraph 8.4(3) of Direction 110 made it clear that where there were two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ. Paragraph 8.4.4. outlined the factors to which decision makers must have regard when considering the best interests of minor children. 

25. The Respondent acknowledged that the Applicant had one step-son, who was a minor (currently aged 6) and was born with Down syndrome. 

26. While it was not disputed that the best interests of the Applicant's step-son would be affected by the Tribunal's decision, there was evidence before the Tribunal that suggested that the Applicant’s step-son was currently residing with his maternal aunt, who was also taking care of her own three children. It was claimed that the Applicant's wife had depression and was unable to care for her child: statutory declaration of Thoai Phan dated 6 February 2025.[26] 

    [26] HB, Document 3, page HB77, paragraph 13.

27. The Respondent contended that this consideration weighed somewhat in favour of the Applicant, but should not be given any significant weight due to the current custodial arrangements regarding his step-son. 

28. Paragraph 8.5(1) of Direction 110 stated that the Australian community expected non-citizens to obey Australian laws, and, where a non-citizen had engaged in serious conduct in breach of this expectation, the Australian community, as a norm, expected the Australian Government to not allow such a non-citizen to enter or remain in Australia. 

29. Paragraph 8.5(2) provided that non-revocation of a mandatory cancellation might be appropriate simply because the nature of the character concerns or offences was such that the Australian community would expect that the person should not continue to hold a visa and listed the types of conduct (sub-paragraph 8.5(2)(a) to (f)). 

30. Paragraph 8.5(3) provided that the expectations of the Australian community applied regardless of whether the non-citizen posed a measurable risk of causing physical harm to the Australian community. 

31. Paragraph 8.5(4) stated that this consideration was about the expectations of the Australian community as a whole and directed decision-makers to proceed based on the Government's view as articulated in the Direction, without independently assessing the community's expectations. This was consistent with the decision in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR). 

32. In FYBR, Charlesworth J sitting as a member of the Full Court of the Federal Court said in relation to the analogous paragraph 13.3 under the former Direction No. 65: 

    '75.  ... cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.

    76. The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government’s assessment of community expectations is “generally” to be afforded greater weight than the “other considerations” listed non exhaustively in cl 12. The word “generally” contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors arising for consideration under cl 12. There may be cases in which it is not appropriate to give the community expectations discerned under cl 11.3 any weight at all.

33. The position of principle that the 'deemed community expectation' would in most cases call for cancellation still stands: Doan and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 52 at [91]; Chu and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 99 at [82]; FYBR at [75].

34. However, in determining whether to act in accordance with the deemed community expectations, the Tribunal must not infer what the expectations of the Australian community would be by taking into account the personal circumstances of the Applicant but to proceed on the basis of the normative principles set out in paragraphs 8.5(1) to (4): Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [52].

35. Factors such as whether the Applicant was of good character or whether there was a risk of reoffending could not be taken into account. To do so, the Tribunal would be at risk of 'double counting' when attributing weight to this expectation and again when weighing all considerations in the final assessment: Jama v Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FCAFC 148 at [33].

36. Paragraph 5.2(6) of the Direction provided that Australia might afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age. The Respondent contended that the deemed expectations of the Australian community were not reduced in this case, in circumstances where the Applicant had not lived in Australia for most of his life, nor had he lived in Australia from a young age. 

37. While the Applicant's offending did not involve violence and was not of a kind specified in paragraph 8.5(2)(a) to (f) of the Direction, the Respondent contended that the cultivation of cannabis was harmful to the Australia community and that the Australian community had a low tolerance for such offences, which had a long-lasting impact on victims and a pervasive effect upon criminality in the community. 

38. Given the nature of the offending and term of imprisonment sentenced, it was submitted that the Australian community would expect the Australian Government to cancel the Applicant's visa.

39. Paragraph 9 of Direction 110 set out 'other considerations' to be taken into account, including but not limited to:

    (a)     legal consequences of the decision (paragraph 9.1); 

    (b)     extent of impediments if removed (paragraph 9.2); and

    (c)     impact on Australian business interest (paragraph 9.3). 

40. Paragraph 9.1 of Direction 110 provided that unlawful non-citizens were, in accordance with s 198, liable to removal from Australia as soon as practicable in circumstances specified in that section, and in the meantime, detention under s 189, noting also that s 197C(1) of the Act provided that, for the purposes of s 198, it was irrelevant whether Australia had non-refoulement obligations in respect of that person.

41. If the decision under review was affirmed, the Applicant upon completion of his prison sentence would be taken into immigration detention and removed to Vietnam. The consequence of any removal after a visa cancellation is such that the applicant could not be granted any visa to enter and remain in Australia, in accordance with Special Return Criteria 5001. The Applicant did not make any claims for protection from Vietnam and therefore the question of whether Australia's non-refoulement obligations are engaged was not relevant to this review. 

42. While the legal consequences are such that the Applicant would be removed from Australia without prospect of return to Australia, the Respondent contended that was precisely intended by the legislation and therefore this consideration should not be afforded any weight in favour of the Applicant. 

43. In any case, the Respondent submitted that the legal consequences for the Applicant if his visa was cancelled did not outweigh the risk to the Australian community should he remain. This risk, which the Respondent contends was not acceptable to the Australian community, was mitigated through the Applicant’s removal from that community as a legal consequence of his visa being cancelled.

44. Paragraph 9.2 of Direction 110 required decision makers to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country in establishing themselves and maintaining basic living standards, taking into account: 

    (d)     the non-citizen's age and health; 

    (e)     whether there are substantial language or cultural barriers; and 

    (f)any social, medical and/or economic support available to them in that country. 

45. The Applicant was 46 years of age. He had indicated that he did not have any diagnosed medical or psychological conditions for which he was currently receiving treatment for, and therefore could be impacted by removal to Vietnam.  

46. The Applicant had no substantial language or cultural barriers if he were to return to Vietnam. Rather, the Applicant had indicated that he remained in contact with his children in Vietnam and spoke with them on a weekly basis (G7, page 56). He also had several immediate family members who continue to reside in Vietnam (G7, page 57).

47. Further, given the Applicant's high level of education and his history of employment in Australia and Vietnam, it was submitted that he would be able to obtain employment in Vietnam if returned. 

48. To the extent that the Applicant would experience emotional stress from being separated from his family, as well as some social and economic hardship, the Respondent contended that the Applicant would not face any substantial impediments in establishing himself and maintaining basic living standards in Vietnam. He would also be able to remain in contact with his family in Australia, similarly to the way that he currently maintained contact with his family in Vietnam.

49. If returned to Vietnam, it could be expected that the Applicant would experience some period of readjustment to life there, but he would not experience any real impediments to reestablishing himself in the Vietnamese community and maintaining basic living standards. Therefore, this consideration should be considered neutral. 

1. Under paragraph 9.3 of the Direction, decision makers had to consider any impact on Australian business interests if the non-citizen is not allowed to remain in Australia. 

2. There was no evidence that this consideration was relevant to this matter. 

3. Having regard to the primary and other considerations set out in Direction 110, the correct or preferable decision was to affirm the decision under review. 

   TRIBUNAL’S CONSIDERATION

4. The Direction contains five primary considerations, which were:

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

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

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

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

   (5)expectations of the Australian community.[27]

   [27] Direction 110, cl 8.

5. The Tribunal has considered each one in turn, keeping in mind the principles in cl 5.2 of the Direction.

   The protection of the Australian community

6. The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.[28]

   [28] Direction 110, cl 8.1(1).

7. The Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[29]

   [29] Ibid.

8. Decision-makers should consider the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[30]

   [30] Ibid, cl 8.1(2).

   Nature and seriousness of the conduct

9. The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[31]

   Criminal offending

   [31] Ibid, cl 8.1.1(1)(a).

10. The Applicant’s conviction is set out above at paragraph 11 above.

    Sentencing remarks, 2 May 2024[32]

    [32] HB, G documents, G4, pages HB198 – 203.

11. His Honour Justice Chettle found that the Applicant had been involved in crop sitting at a rural property in Victoria that ‘had been set up as an elaborate hydroponic cannabis growing venture, with plants in 10 rooms of the house totalling 307 in number with a weight of 245.86 kilograms.’ Chettle J noted that this was significantly higher than a commercial quantity, which was 25 kilograms in weight or 100 plants.

12. Chettle J acknowledged that upon his arrest, the Applicant cooperated with the police and made full admissions which indicated that he was a crop sitter who was paid $700 per week and was to be paid a further anticipated $7,000 on the harvesting of the crop. Chettle J accepted that the Applicant was not a principal in the scheme and his role was to look after the plants as they grew.

13. Chettle J described the Applicant’s relationship with his Australian wife Ms Phan as ‘complex and dysfunctional’ but recognised that the Applicant was a father figure for Ms Phan’s son, who was an infant when her relationship with the Applicant began, and who had heart issues, Down syndrome and a mild intellectual disability.

14. Chettle J acknowledged that the Applicant entered into the criminal enterprise largely due to financial pressure arising from: (a) his child support payments to his ex-wife and children in Vietnam, totally approximately $2,000 per month, (b) his payment of his father’s medical expenses in Vietnam, totalling approximately $400 per month, and (c) Ms Phan’s gambling debts arising from a poker machine habit.

15. Chettle J recognised that the fear of being deported and separated from his Australian family (particularly his step-son) would make his incarceration more difficult for the Applicant. His Honour further accepted that the Applicant had good prospects of rehabilitation given his employment history, his genuine remorse for his criminal activity, his early plea of guilty and cooperation with the police, his lack of substance abuse himself, and his lack of any prior convictions. His Honour noted, however, that the crop for which the Applicant was responsible was ‘not insignificant’ and was a ‘serious criminal enterprise,’ and that the Applicant was aware of this.

16. Chettle J noted that he was required to impose a custodial order pursuant to s 52H of the Sentencing Act 1991 (Vic) and that the maximum penalty was 25 years’ imprisonment for the offence, indicating how seriously Parliament viewed the commercial cultivation of cannabis. His Honour, having regard to all of the factors of the Applicant’s case, imposed a jail sentence of 30 months, with 20 months to be served before the Applicant would be eligible for parole. His Honour also declared that 322 days of that sentence had already been served by the Applicant by way of pre-sentence detention.

17. Given that the Applicant’s offending involved a commercial quantity of drugs, the Tribunal regards this offending as serious.

18. The Tribunal considers that this is reflected in the fact that the Judge imposed a custodial sentence on the Applicant for the offences, albeit a relatively short one of 30 months (10 of which were suspended) in the context where the maximum penalty that could be imposed was 25 years (regardless of whether the maximum penalty is often imposed or not).

19. There was no direct evidence before the Tribunal regarding the impact of the offending on any victim, such as a victim impact statement. It was acknowledged that the police disrupted the crop before it was harvested and sold. However, the Tribunal considers that the potential impact of the sale of cannabis to potentially vulnerable members of the Australian community is serious. Moreover, enterprises such as the one in which the Applicant was involved perpetuate and fund organised crime in Australia, which the Tribunal also regards as serious.

20. There is, however, in the Tribunal’s view, no trend of increasing seriousness in the Applicant’s offending. Nor did he organise the criminal enterprise. Moreover, the Tribunal acknowledges that the Applicant had not offended prior to being charged in 2023.

21. There is no indication that the Applicant provided false or misleading information to the Department, including by not disclosing prior criminal offending. In fact, the Applicant provided the Department (and the Tribunal) with information about his offending, his sentence and the various programs with which he has been involved since his conviction.

22. There is no indication that the Applicant has offended or reoffended after being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending to his migration status.

23. Although the Applicant’s offence must be characterised as serious, the factors set out at paragraphs 100 to 102, and the Applicant’s expression of remorse, weigh somewhat in favour of revoking the cancellation of the Applicant’s visa.

    Other conduct

24. The Direction specifies at cl 4(2) that serious conduct includes behaviour or conduct of concern that does not constitute any criminal offence.

25. At hearing, the Respondent’s representative noted that part of the material relied upon consisted of LEAP records (taken from the database of the Victorian Police) and a non-authorised brief book, also from Victoria Police.[33] This material indicates that the Applicant and his wife were involved in two incidents in which Victoria Police attended. One took place on 27 February 2021 at the home of the Applicant and his wife, when the police were called after an argument between the Applicant, his wife and the father of the Applicant’s step-son, who was visiting. The Police records indicated that a neighbour who overheard the verbal argument called the Police, that they attended and that no charges were laid or further action taken after speaking with the Applicant and his wife.

    [33] HB, Part B, 576 and 581 respectively.

26. The second relates to an incident which occurred on 30 March 2023, where it is reported that the Applicant and his wife were returning from Cobram and had an argument in the car, resulting in them pulling over at a petrol station. The Applicant’s wife refused to re-enter the car and he drove off. The Police were apparently called by staff at the petrol station. The Police subsequently interviewed the Applicant’s wife, who indicated that the Applicant had struck her but that she did not wish to pursue the matter.[34]

    [34] HB, Part B, pages HB593 – 594.

27. Counsel for the Applicant objected to the inclusion of this material on the basis that it fell short of authoritatively establishing in either case that family violence had been committed by the Applicant (as no charges were laid in either case and no convictions obtained) and was therefore of low probative value but was highly prejudicial to the Applicant.

28. The Tribunal adjourned the hearing to consider these arguments and ultimately determined to include this material as it considered that it was relevant to its consideration of the Applicant’s criminal and general conduct, that the Applicant and his wife would have the opportunity to respond to it, and that it would then be a matter for the Tribunal as to what weight (if any) to attribute to this material.

29. At hearing, both the Applicant and his wife gave separate evidence and were questioned about these incidents.

30. In relation to the February 2021 incident, both the Applicant and his wife agreed that they had had an argument in the context of a visit by the Applicant’s step-son’s biological father but they both indicated that it was resolved prior to the Police arriving, and that neither of them had called the Police. No charges were laid.[35]

    [35] HB, pages HB579 – 580.

31. In relation to the March 2023 incident, the Applicant’s wife indicated at hearing that she had returned to work in Cobram at the hotel where she was previously employed, on a short-term basis to cover for an absent staff member, and that she and the Applicant were returning from there to Melbourne by car when they had an argument about her gambling. She told the Tribunal that the Applicant did not hit her, but she confirmed that they did pull over at a petrol station and had an argument inside and that she refused to return to the car. She ultimately paid for someone at the petrol station to drive her to her friend’s place in Shepparton. While she was there, the Police contacted her – she assumed that her number was given to the Police by the people at the petrol station as she used Pay ID on her phone to pay for being taken to Shepparton. Later, the Applicant picked her up and they returned to Melbourne. The Applicant’s wife told the Tribunal that the Applicant did not hit her and references to this in the Police notes were incorrect.

32. Both the Applicant and his wife confirmed to the Tribunal that the Police sought an interim violence order (IVO) against the Applicant after this incident, but that the Applicant’s wife did not wish to take any further action and no charges were laid and no further orders made. However, it appears that a Court issued an IVO in respect of the Applicant. It was conceded by the Minister’s representative that a copy of the IVO had been unable to be located and its terms and length were unknown. The Applicant and his wife told the Tribunal that they understood it had lapsed some time ago.

33. These incidents raise the issue of whether the Applicant has committed family violence and therefore comes within the ambit of paragraph 8.2 of the Direction. Subparagraph 8.2(2) states that this consideration is relevant in circumstances where:

    (a)A non-citizen has been convicted of an offence found guilty of an offence, or had charges proven howsoever described that involve family violence; and/or

    (b)There is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen… has been afforded procedural fairness.

34. Having reviewed his criminal records, the Tribunal is satisfied the Applicant has not been found guilty of an offence or had any charges proven involving family violence.

35. It appears that he was the subject of an IVO initiated by Victoria Police arising from the incident in March 2023 when he and his wife argued during their car trip from Cobram to Melbourne, although (as noted above), the terms and duration of the IVO are not known. It appears that it is no longer in force.

36. While it is true that the records of Victoria Police’s interview with the Applicant’s wife on 30 March 2023 refer to the Applicant striking her in the face, at hearing, she denied this and told the Tribunal that the Applicant did not hit her. It is evident that, whatever she told police in her interview in March 2023, she did not support the Police charging the Applicant at that time and the Police in fact did not do so.

37. The Tribunal acknowledges that a victim of family violence may have many reasons for denying that violence took place, such as fear of the perpetrator and/or an interest in remaining in the relationship due to fear of financial disadvantage. However, in this case, the Applicant’s wife categorically denied at hearing that the Applicant hit her and no charges were proceeded with. It is hard for the Tribunal to go behind this.

38. While the interview records of the Victoria Police officer who interviewed the Applicant’s wife in March 2023 might be regarded as an independent and authoritative source that family violence did occur, the Tribunal notes that in this case, there were no independent witnesses to the alleged violence (as it allegedly occurred in the car when only the Applicant and his wife were present), the Applicant’s wife declined to cooperate with any charges at the time, and denied to the Tribunal that she had been hit by the Applicant.

39. The Tribunal is also aware that family violence is not confined to physical violence, and may include verbal abuse and/or coercive control. It is also clear that the relationship between the Applicant and his wife is one of intermittent volatility in which they have had arguments, as both admitted to the Tribunal in their evidence.

40. However, in the absence of clearer and more definitive evidence, the Tribunal is not satisfied that there is information or evidence from independent and authoritative sources indicating that the Applicant is, or has been involved in, the perpetration of family violence. The Tribunal reaches this conclusion despite the fact that the Applicant appears to have been the subject of an interim IVO applied for by the Police without the involvement of the Applicant’s wife in 2023. It appears that this IVO was not supported by a confirmatory statement from the Applicant’s wife.

41. Similarly, the Tribunal is not satisfied that the fact that the Police were called to the home of the Applicant and his wife in February 2021 following a verbal argument between them establishes that there is information or evidence from independent and authoritative sources indicating that the Applicant is, or has been involved in, the perpetration of family violence.

42. It therefore gives consideration 8.2 neutral weight in favour of revoking the cancellation.

43. The Tribunal has also considered whether these incidents constitute ‘other serious conduct’ for the purposes of consideration 8.1, given that such conduct is not confined to criminal offences. While the Tribunal accepts that the Victorian Police were called on two occasions following arguments between the Applicant and his wife, it is not persuaded – given that these two incidents occurred some two years apart and were not initiated by the Applicant’s wife and did not definitively involve physical violence – that this constitutes ‘serious conduct.’ The Tribunal therefore gives this neutral weight for the purposes of consideration 8.1.

    Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

44. The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences.  Clause 8.1.2 of the Direction states, in part:[36]

    (1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

    (2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

    a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    i. information and evidence on the risk of the non­citizen re-offending; and

    ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …

    [36] See also Direction 110, cl 8.1(2)(b).

45. This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[37] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[38] There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[39]

    Nature of the harm

    [37] Direction 110, cl 8.1.2(2)(a).

    [38] Ibid cl 8.1.2(2)(b).

    [39] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.

46. In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community, should the Applicant reoffend.[40]

    [40] Direction 110, cl 8.1.2(2)(a).

47. The Tribunal considers that the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct is serious, given the potential for perpetuation of organised crime and/or harm to vulnerable drug users in the Australian community. - However, the Tribunal is not persuaded that the nature of the harm involved in crop-sitting is so serious that if any risk of its repetition is unacceptable.

    Likelihood of the non-citizen engaging in further criminal or serious conduct

    (a)Rehabilitation

48. The Tribunal is to consider evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the Applicant’s most recent offence. 

49. The Applicant provided evidence of having undertaken the following courses while on remand and/or in jail:

    ·ATLAS – Mapping a Way Forward – Adapt (17 July 2023);

    ·ATLAS – Mapping a Way Forward – Take Stock A (18 July 2023);

    ·Prison Legal Education and Assistance Project Court Readiness Program (24 October 2023);

    ·Healthcare ICE and Me Program (30 January 2024); and

    ·Healthcare Cannabis and Me Program (14 March 2024).[41]

    [41] HB 72 to 76.

50. The Applicant also provided evidence of having returned negative drug tests for a range of substances on a number of occasions while in jail (February 2024 to July 2024)[42]. He indicated that he undertook courses related to drug use while he was in jail not because he himself had a drug problem but because he wished to understand more about problematic drug use. The fact that the Applicant was not a drug user himself was also noted in Chettle J’s sentencing remarks, along with His Honour’s view that the Applicant appeared to have good prospects for rehabilitation for the reasons set out at paragraph 24 above.

    [42] HB 70 and 71.

1. At hearing, the Applicant gave evidence that he was confident that he would not reoffend, given the high price that his offending had cost him, and his family, including the threat of having to leave Australia. In cross-examination, he conceded that he had not undertaken any financial counselling courses while in jail but maintained that he would manage his financial issues without resorting to crime if allowed to remain in Australia.

2. The question of the financial pressure on the Applicant was discussed at some length at the hearing, given its contribution to his offending. The Applicant confirmed that he (along with his siblings) still support their father financially for his lung cancer treatment, and that he is still liable to pay child support to his ex-wife in Vietnam under a private agreement between them. The Applicant told the Tribunal that a previous employer, for whom the Applicant had worked building carports, had offered to re-employ the Applicant at any time. However, it was conceded that the Applicant had no documentary evidence, such as a letter from that employer, to substantiate this claim.

3. The Tribunal notes that the Applicant’s work history in Australia indicates that he has generally been able to find work in different fields, predominantly labouring work (though also including forklift driving and pizza delivery) over the years he has resided in Australia (although it appears that his English language ability impedes his opportunities to work as an Engineer in Australia). The Tribunal therefore considers it likely he will be able to do so upon his release from jail.

4. The Tribunal accepts the evidence given by the Applicant’s sister that she is willing and able to provide accommodation rent-free to the Applicant, his wife and the Applicant’s step-son, which the Tribunal accepts will remove a major financial stressor.

5. The Applicant and his wife gave evidence that before being jailed, the Applicant was the main breadwinner for the family, as the Applicant’s wife had been caring for her son since his birth in the home (with assistance from her family members, including the Applicant, his mother-in-law during her visits from Vietnam, and the Applicant’s sister-in-law). The Applicant and his wife confirmed at hearing that the Applicant’s wife had worked in a friend’s restaurant in Shepparton and then at the Cobram Hotel for an approximately six-month period in 2022, during which time her mother largely cared for her son and she returned to Melbourne periodically. The Applicant and his wife indicated that this was possible due to the Applicant’s mother-in-law visiting from Vietnam for an extended period, and that it gave the Applicant’s wife an opportunity to get out of the house and earn money while her son was able to be cared for her by her mother (and the Applicant, around his working hours). However, the Applicant and his wife also gave evidence that this was where her gambling problem arose.

6. It was not disputed that the Applicant’s wife developed a gambling addiction in 2022 which was ongoing at the time that the Applicant entered into the crop-sitting arrangement and at the time of his arrest. Both parties gave evidence that it was the cause of arguments between them, and that the financial stress it caused was part of the reason for the Applicant agreeing to crop-sit in order to repay debts.

7. The question of whether the Applicant’s wife is continuing to gamble was raised at hearing, on the basis that if she were, this potentially elevated the risk of the applicant reoffending. The Applicant said that he was unsure whether she was or not, as did his sister-in-law (his wife’s younger sister). The Applicant’s wife said emphatically that she had stopped.

8. In the absence of any more definitive evidence, the Tribunal accepts, on balance, that the Applicant’s wife is no longer gambling. It is also satisfied, from the Applicant’s evidence at the hearing, that he has undertaken courses while in jail to better understand problem gambling and would be in a better position to deal with any reoccurrence of his wife’s gambling problem than he was when it occurred in 2022.

9. The Tribunal notes that as the Applicant remains in jail at the time of the Tribunal’s consideration, there is no time in the community post-offending to better assess  his likelihood of reoffending.

10. However, overall, the Tribunal considers that the Applicant is at low risk of reoffending, taking into account all of the available evidence.

11. Taking the factors in 8.1.2(2) cumulatively, the Tribunal gives this factor moderate weight in favour of revoking the cancellation of the Applicant’s subclass 801 visa.

    Family violence committed by the non-citizen

12. Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.

13. The Direction states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia.  The Government’s concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.[43]

    [43] Direction 110, cl 8.2(1).

14. For the reasons set out at paragraphs 109 to 123 above, the Tribunal gives this factor neutral weight in favour of revoking the cancellation of the Applicant’s visa.

    The strength, nature and duration of ties to Australia

15. This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Clause 8.3 of the Direction provides that:

    (1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

    (2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

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

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

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

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

    Immediate family

16. The Applicant is married to an Australian permanent resident, Ms Thoai Bao Chau Phan.

17. Ms Phan has three children: two daughters, one aged 18, and one aged 22 from her first marriage, and a son aged 6, from another relationship prior to her marriage to the Applicant. The father of her son left the relationship on or about the time of their son’s birth in 2018 and has had little contact with Ms Phan or their son since that time. He has not provided any financial support to Ms Phan in relation to their son.

18. The Applicant is step-father to Ms Phan’s three children and has a particularly close bond with his step-son, as he came into the household in 2019 while his step-son was an infant. Following the Applicant being charged and jailed, Ms Phan evidently found it difficult to cope. Her younger daughter and her son have therefore been living with Ms Phan’s younger sister Ms Thoai Phan and her family (a 17 year old son, and two daughters aged 15 and 9) since approximately July 2023. Ms Thoai Phan has provided a statutory declaration dated 6 February 2025 expressing (amongst other things) her support for the Applicant to be able to remain in Australia as she considers him the best available source of financial and emotional support for his wife and (in particular) his step-son.

19. The Applicant and his wife gave evidence that although the Applicant has a good relationship with his step-daughters, they are now both adults and moreover have a relationship with their biological father, as well as their mother. The older daughter has moved to Perth, where she is living with family on her father’s side and working, while the younger daughter is living with her aunt (the Applicant’s sister-in-law) and is now at university.

20. In addition, the Applicant’s older sister resides in Melbourne, Australia and is an Australian citizen. The Tribunal accepts that she is supportive of the Applicant and is fully aware of the circumstances of his offending. She provided a witness statement in support of the Applicant’s visa not being cancelled and oral evidence at the hearing to the same effect. The Applicant’s sister has two children, a daughter aged 28 and a son aged 22. The latter lives with her in a four-bedroom house in suburban Melbourne.

21. The Tribunal accepts that the Applicant also has an Australian cousin and aunt and uncle in Brisbane, who did not provide any statements to the Tribunal. However, the Tribunal accepts that they wish for the Applicant to remain in Australia.

22. The Tribunal notes that the Applicant has two younger siblings (a brother and sister) in Vietnam, together with his parents and his parents-in-law.

23. The Tribunal accepts that it would cause significant emotional distress to the Applicant’s Australian close family members if the Applicant’s visa cancellation was not revoked, and he had to return to Vietnam. It also accepts that such a development would be likely to perpetuate the financial and emotional stress currently faced by the Applicant’s wife and her younger sister, who is looking after two of the Applicant’s wife’s children in addition to her own three children.

24. However, if the Applicant were to be removed from Australia, the Tribunal considers that his adult family members in Australia would be able to maintain contact by such methods as telephone, messaging applications and video conferencing, methods which are commonly used now by family members in different countries or locations.  The Tribunal accepts that this would not be possible to any meaningful degree for the Applicant’s step-son, for reasons discussed in more detail below.

25. The Tribunal accepts that the Applicant also has several Australian nieces and nephews who are under 18 years of age. The effect on them, and on the Applicant’s step-son who is under 18 years of age, will be discussed in more detail below.

26. Overall, the Tribunal considers that the adverse effect on the Applicant’s family members in Australia if the Applicant’s visa is cancelled weighs in favour of revoking the cancellation of his visa.

    Other ties to the Australian community

27. As noted above, the Applicant arrived in Australia in 2013 at the age of 34. He is now 46 years old and has not left Australia for any significant periods since his arrival (although he has travelled outside Australia for periods of approximately two to four weeks in May 2014, July 2015 and September-October 2017).

28. As noted above, the Applicant completed secondary and tertiary education in Vietnam, qualifying as a Construction Engineer, and working in this and related fields there until 2013. Upon coming to Australia in 2013, he completed several Diploma level courses in Business and Management and a Bachelor of Business Management. His 10 year employment history in Australia has been varied, including factory work for a variety of different employers in different fields (including steel trolleys, chickens, and food production) and work as a casual fork-lift driver at a milk factory.

29. Prior to his incarceration, the Applicant lived in a rental property with Ms Phan. His sister has indicated that he, Ms Phan and the Applicant’s step-son would be able to live with her on his release, as she has a four bedroom house in which she lives with her younger child (now 22).

30. As also noted above, the Applicant arrived in Australia as an adult in 2013, aged 34. There is little in the way of countervailing contribution to the Australian community to weigh against these factors apart from the Applicant’s study in Australia, his employment in various factories, and his family ties to Australia.

31. Overall, the Tribunal considers that the Applicant has been in Australia for a reasonably long period (some 12 years), and that he has strong personal ties here.

32. The Tribunal finds that the Applicant’s offending did not start soon after he moved to Australia, but rather, after he had been here approximately 10 years, and was experiencing significant financial pressure. However, it took place when he was an adult, and it is acknowledged that he was fully cognisant that he was embarking on a criminal enterprise when he became involved.

33. On balance, the Tribunal considers that the majority of these factors weigh in favour of revoking the cancellation of the Applicant’s subclass 801 visa.

    Best interests of minor children in Australia affected by the decision

34. Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under cl 8.4, the Tribunal must make a determination on whether cancellation or refusal under s 501 of the Act is or is not in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.

    Applicant’s step-son

35. It is not disputed that the Applicant played a parental role in his step-son’s life from some time in early 2019 to the time that he was arrested in mid-2023. The Tribunal accepts that both the Applicant and his wife considered that it was not in the boy’s interest to visit the Applicant in jail, given his health issues and young age.

36. It is further not disputed that the Applicant’s son has Down syndrome, a mild intellectual disability and has undergone two operations to repair heart defects. He is now aged 6 and has started school.

37. Prior to the Applicant’s incarceration, his step-son lived at home with the Applicant, Ms Phan and his two half-sisters. Since approximately mid-2023, he has lived with his aunt, Ms Phan’s younger sister, together with his younger half-sister and Ms Phan’s sister’s three children aged 17, 15 and 11.

38. The Applicant stated that he strongly wished to re-establish contact with his step-son and play a part in his life as his step-father, and to be able to provide his step-son with financial and emotional support.

39. The Tribunal accepts that it is normally in the best interests of minor children to have ongoing contact with both their parents, where possible, and this has been recognised in Australian case law, such as Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177. The Tribunal accepts that the Applicant’s step-son has never had an ongoing relationship with his biological father, and his only consistent father figure to date has been the Applicant from the time that he was an infant. However, it notes that the Applicant has not had contact with his step-son since approximately July 2023 and has essentially been in the care of his biological mother Ms Phan and subsequently with Ms Phan’s younger sister since the Applicant was arrested in mid-2023 and convicted and jailed in 2024.

40. The Tribunal acknowledges that subparagraph 8.4(4)(a) of the Direction indicates that less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact). It further acknowledges that the Applicant has had a reasonably significant period of absence in his step-son’s life (approximately one and a half years at the time of the Tribunal’s decision) and the primary parental role for his step-son is currently played by Ms Phan’s sister (the Applicant’s step-son’s aunt).

41. The Applicant’s step-son’s personal views are unknown and the Tribunal concurs with both the Applicant’s and the Minister’s representatives that it would be inappropriate to seek his views, given he is a young child, and has difficulty communicating due to his Down syndrome and mild intellectual disability. The Applicant and his wife both expressed the opinion that the Applicant’s step-son was showing signs of depression following the Applicant being jailed, although no medical evidence was provided to substantiate this. Nevertheless, the Tribunal accepts that the Applicant’s unexplained (to his step-son) absence would have adversely affected his step-son. From the evidence of the Applicant, his wife and his sister-in-law, the Tribunal accepts that the Applicant has had a close relationship with his step-son and, until his arrest and incarceration, took an active role in his care even while working as the main breadwinner for the family. The Applicant’s wife, sister-in-law and sister gave detailed evidence at hearing about the care that the Applicant provided to his step-son, which in turn supported his wife to look after the boy.

42. Given the Applicant’s step-son’s young age, the Tribunal considers that there is scope for the Applicant to re-establish an active (step)parental role (whether that is initially supervised or not) in his life prior to his step-son turning 18. This was strongly supported by Ms Phan and her sister, both of whom saw the Applicant’s role in his step-son’s life as crucial, both emotionally and financially.

43. The Tribunal has considered the potential impact on the Applicant’s step-son of the Applicant’s prior offending but gives weight to its assessment that the Applicant poses a low risk of reoffending, and that he is not prevented from having contact with minor children in Australia. It also appears that there is no current involvement by Child Protective Services (CPS) in Victoria in the family’s case, other than to issue a letter to the Applicant’s sister-in-law in February 2025.[44] While the Minister’s representative raised concerns about whether Ms Phan and the Applicant would be assessed as suitable to care for the Applicant’s step-son in the event that the Applicant was released from jail and allowed to remain in Australia, the Tribunal notes that there is no clear evidence that either Ms Phan or the Applicant would be regarded by CPS as unsuitable to care for the Applicant’s step-son (although it acknowledges that Ms Phan has not been able to cope with caring for her son on her own since the Applicant was arrested and jailed). The Tribunal considers that even if the Applicant were allowed supervised contact with his step-son (as opposed to living with him), this would still be beneficial to the boy and to his mother.

    [44] HB, Document 5, page HB141.

44. While the Tribunal acknowledges that the Applicant is presently in jail in Australia and there is no indication of when he will be removed upon his release, the Tribunal accepts that the Applicant’s present uncertain immigration status is an inhibiting factor on his wish to regain contact with his step-son. It further accepts that the Applicant’s step-son’s Down syndrome and a mild intellectual disability would make communicating via social media (such as Face Time) ineffective if he and the Applicant were in different countries. In reaching this conclusion, the Tribunal gives weight to the medical evidence of the level of communication difficulties arising from his Down syndrome and intellectual disability and the evidence of the Applicant’s sister-in-law at hearing that her nephew is now demonstrating frustration at not being able to communicate at the level of his peers due to his conditions.

1. The Tribunal has also had regard to the possibility that Ms Phan would take her son to Vietnam to join her husband if the Applicant’s visa cancellation is not revoked, and considers that this would emphatically not be in the boy’s interest. It accepts that the Applicant’s step-son, who is not a Vietnamese citizen, would not have automatic access to state health care in Vietnam, and that the family would struggle to pay for private health care for him. The Tribunal also accepts that the health care available in Vietnam for a person with his conditions would not be at the level offered in Australia, particularly given the NDIS support that he receives here. In light of his ongoing mental and physical health issues, the Tribunal considers that any such relocation would be physically and mentally adverse and distressing to the Applicant’s step-son.

2. The Tribunal finds that it would be in the best interests of the Applicant’s step-son that the Applicant’s visa not be cancelled so that he has the opportunity to re-establish his relationship with his step-son, for whom he has been a father figure for most of his step-son’s life. The Tribunal considers that the right to have a relationship with his step-father attaches to the Applicant’s step-son, and not the Applicant.

3. In reaching this conclusion, the Tribunal also gives particular weight to the evidence at hearing of the Applicant’s sister-in-law. While it is clear that she has cared for her nephew (and one of her nieces) from mid-2023 to date, it is equally clear that this has been at some personal cost to her (amongst other things, having to give up full time employment) and that this is not sustainable in the long term. The Tribunal found her to be a compelling witness.

4. The Tribunal gives this factor significant weight in favour of revoking the cancellation of the Applicant’s visa.

   Applicant’s step-daughters and step-nieces and nephews

5. In addition to his step-son, the Applicant also has two step-daughters in Australia, from his wife’s first marriage. The younger step-daughter is now 18 and lives with her aunt. The older step-daughter is 22 and now lives in Perth with her father’s family. While it was submitted that the Applicant had had a good relationship with them while living with their mother and their half-brother, no written statements of support were provided from either of them and they are now adults. It is also apparent that they have a relationship with their biological father and therefore the Applicant does not play a parental role in their lives.

6. The Applicant has two nieces and nephews and three step-nieces and nephews in Australia. The children of his older sister are adults and there is no suggestion that the Applicant plays, or has played, a parental role in their lives.

7. The children of his wife’s sister are aged 17, 15 and 11 respectively. While they are minors, there is no indication that the Applicant plays, or has played, a parental role in their lives.

8. While it may be assumed that these relatives may be distressed to some degree if the Applicant were to leave Australia, no evidence was presented to suggest that they would be significantly adversely affected, nor that they would be unable to maintain contact with the Applicant via telephone, social media and so on.

9. The Tribunal gives this factor a little weight in favour of revoking the cancellation of the Applicant’s subclass 801 visa.

   Expectations of the Australian Community

10. The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Clause 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government would not allow them to enter or remain in Australia.

11. Clause 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.  This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence.[45] 

    [45] Direction 110, cl 8.5(2).

12. Clause 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

13. This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.[46]

    [46] Ibid, cl 8.5(1).

14. In weighing this consideration, the Tribunal is guided by the principles in cl 5.2 of the Direction.  In applying these principles, and given the fact that the Applicant’s crime involved cultivation of a significant commercial quantity of cannabis, the Tribunal considers that the Australian community would expect the Applicant’s visa to be cancelled, and finds this consideration weighs in favour of cancellation of the visa.

    Other considerations

15. Clause 9 of the Direction states:

    (1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

    a)legal consequences of the decision;

    b)extent of impediments if removed;

    d)impact on Australian business interests.

    Legal consequences of decision under section 501 or 501CA

16. The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[47] 

    [47] Direction 110, cl 9.1.

17. There are a range of legal consequences of a decision to cancel the Applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:

    ·unlawful status;

    ·the likelihood of becoming subject to detention and/or removal;[48]

    ·refusal of other visa applications and cancellation of other visas;[49]

    ·a prohibition on applying for other visas;[50] and

    ·periods of exclusion and special return criteria may apply.[51]

    [48] Migration Act 1958 (Cth) ss 189, 196, 197C, 198.

    [49] Ibid s 501F.

    [50] Ibid s 501E.

    [51] Ibid s 503, special return criteria (SRC) 5001.

18. Generally, if a visa is cancelled, the visa applicant becomes an unlawful non-citizen 28 days after being notified of the decision, unless he or she has been granted another visa. Under s 189 of the Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198, if he becomes an unlawful non-citizen.[52]

    [52] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful at [112]-[122].

19. The Tribunal is satisfied that the Applicant would normally be subject to removal as soon as practicable under s 198, and to be detained under s 189 until then. However, the Applicant is currently serving his jail sentence. He applied for parole in May 2024 and the Adult Parole Board approved this in principle in August 2024, planning for which is ongoing.[53] His release date is not yet known.

    [53] HB, pages HB387 to 392.

20. As a result of the High Court of Australia case of NZYQ v MICMA [2023] HCA 37, the Applicant cannot be detained where there is ‘no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future at the time of the Tribunal’s decision’ (at [54]).

21. However, there is no indication that this would be the case for the Applicant. He remains a Vietnamese national and, subject to him having or applying for a valid Vietnamese passport,   could be removed to Vietnam. The Tribunal notes that the Applicant has not identified any risk of persecution or targeted harm if he were to return to Vietnam. He is not the subject of a protection finding in relation to that country.

22. Accordingly, it appears that the Applicant would be granted a Bridging Visa (Removal) (BVR) upon release from jail to cover the period during which his removal to Vietnam is facilitated, which might be subject to a range of conditions, including the requirement to wear a monitoring ankle bracelet. Typically, a BVR requires its holder to report daily to the Department by telephone, notify of changes to his address, employment and of any material changes to his circumstances, may restrict his employment in certain sectors and/or with certain chemicals, and requires him to (in summary) cooperate with any efforts by the Australian government to remove him from Australia.

23. At hearing and in his pre-hearing submissions, the Applicant and his Australian family members expressed concern that if he were removed to Vietnam, he would struggle to adjust as he has no assets or employment there and it is now over 10 years since he worked and lived there. However, the Tribunal notes that the Applicant has two younger siblings and his parents still living in Vietnam to whom he could turn to for emotional support (although the Tribunal accepts that none of them is in a position to provide the Applicant with financial support). In addition, the Applicant speaks the language, has tertiary qualifications and an approximately 10-year work history there, albeit he has not lived and worked there since 2013.

24. The Applicant’s two children from his first marriage also reside in Vietnam.

25. The Tribunal accepts that affirming the cancellation of the Applicant’s visa will result in his being removed to Vietnam at some time shortly after his release from jail. The Tribunal further accepts that this prospect would have an adverse psychological effect on the Applicant. The Tribunal is also satisfied that such an outcome would have an adverse effect on the Applicant’s Australian family members, in the context where the family as a whole has already experienced considerable stress as a result of marriage breakdowns, gambling problems and the Applicant’s step-son’s health conditions and intellectual disability.

26. Another adverse consequence of the cancellation not being revoked is that there are significant restrictions on the Applicant being able to apply for another visa. As his subclass 801 Partner visa has been cancelled, he is now subject to s 48 of the Act and would not be able to apply for another visa while in the migration zone (Australia) other than a protection visa. Moreover, an application for any visa other than a protection visa would be subject to s 501E – the Applicant could not make an application in the migration zone for any other visa than a BVR as prescribed by cl 2.12AA of the Regulations. The Applicant would have to be invited to make such an application.

27. These factors weigh in favour of revoking the cancellation of the Applicant’s subclass 801 visa.

28. The Tribunal acknowledges that the potential loss of Australian permanent residence is the loss of a valuable right, not least to the Applicant’s sense of security and certainty.

29. Accordingly, and on balance, the Tribunal considers that the legal effects of cancelling the visa on the Applicant weigh in favour of revoking the cancellation of his subclass 801 visa.

    Extent of impediments if removed

30. Clause 9.2 of the Direction provides that, taking into account the matters identified in sub-clauses 9.2(1)(a), (b) and (c) of the Direction, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under sub-clauses 9.2(1)(a), (b) and (c) are:

    ·the Applicant’s age and health;

    ·whether there are substantial language or cultural barriers; and

    ·any social, medical and/or economic support available to the Applicant in their country.

31. As noted above, the Tribunal accepts that, although he is a middle-aged man in good physical health, the Applicant would have limited family support or obvious means of support from other sources (including employment, at least initially) if removed to Vietnam, where he has not lived for 10 years. However, he would not face substantial language or cultural barriers given he lived in Vietnam from birth to the age of 34.

32. The Tribunal therefore gives this factor marginal weight in favour of not revoking the cancellation of the Applicant’s subclass 801 visa.

    Impact on Australian business interests

33. Clause 9.3 of the Direction states:

    (1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

34. The Tribunal notes that Direction 110 indicates that this factor is generally only given weight where decision would significantly compromise the delivery of a major project or important service in Australia. It was conceded by the Applicant and his representatives that this was not the case with his situation.

35. Accordingly, the Tribunal considers that this carries neutral weight in favour of refusing the visa.

    CONCLUSION

36. The Applicant does not pass the character test under s 501 of the Act, and the Tribunal must consider whether the mandatory cancellation of his subclass 801 visa should be revoked, having regard to the primary and other considerations in the Direction.

37. Clause 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed.

38. There has been extensive judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Ministerial Directions (considering a number of Ministerial Directions preceding the Direction).[54]

    [54] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.

39. The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (‘CRNL’) said ‘[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.’[55]

    [55] [2023] FCAFC 138, [28].

40. In determining the weight to be applied to each consideration, the Tribunal has considered the primary and other considerations and weighed them in light of the evidence and findings using the guidance provided by the Direction. 

41. Greater weight must generally be given to the protection of the Australian community than other primary considerations.[56] Greater weight will also generally be given to primary considerations. In examining what this requires, the Full Court in CRNL stated that this means greater weight will be given unless there is some reason why that general approach should not be adopted.[57] 

    [56] Direction 110, cl 8.1(1)

    [57] Ibid [27].

42. In the circumstances of this case, the Tribunal considers that the general approach should be adopted that greater weight is given to the protection of the Australian community, and to the other primary considerations. A consideration of the Applicant’s conduct, which constituted a serious criminal offence, along with the expectations of the Australian community, weigh in favour of not revoking the cancellation of the visa. Conversely, the Applicant’s ties to Australia carry strong weight in favour of revoking the cancellation of the visa. The best interests of minor children (particularly the Applicant’s step-son) also, in the Tribunal’s view, carry very strong weight in favour of revoking the visa cancellation in this case. Of the other considerations, the legal consequences of the decision and the extent of the impediments to the Applicant were he to be removed to Vietnam carry moderate weight in favour of revoking the cancellation of his visa.

43. In relation to the primary consideration of the protection of the Australian community, the Tribunal considers that although it cannot be said that the Applicant presents no risk of reoffending, the balance of evidence indicates that that risk is low.

44. The Applicant has the support of his family in Australia, and the Tribunal is satisfied that the Applicant is genuinely remorseful for his offending. He  has taken steps to minimise his chances of reoffending, not least because he does not wish to return to jail or immigration detention, but also as he does not wish to cause his family members any further distress. Moreover, he wishes to obtain employment and resume a spousal relationship with his wife as well as a parental relationship with his step-son. The Tribunal considers that these factors do constitute significant protective guard rails against the possibility of the Applicant reoffending. This is so, even though some of these factors existed at the time that the Applicant offended. The Tribunal considers that the Applicant has demonstrated progress in his awareness of the effect of his offending, and the nature of his wife’s gambling addiction. The Tribunal is satisfied that he has a good degree of communication with his sister and sister-in-law in Australia, which it also considers to be a protective factor.

45. The Tribunal concludes that while the primary considerations of protection of the Australian community and the expectations of the Australian community weigh in favour of not revoking the visa cancellation, in this case they are outweighed by the primary considerations in favour of revoking the cancellation; namely, the strength, nature and duration of the Applicant’s ties to Australia, and in particular, the best interests of a minor child, the Applicant’s step-son. Also weighing in favour of not refusing the visa are the non-primary considerations of the legal consequences of the decision and the extent of impediments if the Applicant is removed from Australia.

46. Although the Tribunal has given the consideration of the protection of the Australian community greater weight than the other primary considerations, it has concluded that the combined weight of the considerations that weigh in favour of revoking the cancellation of the Applicant’s subclass 801 visa outweigh those in favour of cancelling the visa. The Tribunal considers that the primary considerations of the best interests of the Applicant’s minor step-child, along with the strength, nature and duration of the Applicant’s ties, together with consideration of the legal consequences of the decision, cumulatively weigh in favour of exercising the discretion to revoke the cancellation of the visa.

    DECISION

47. Pursuant to section 105(c) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal sets aside the decision under review and substitutes it with a decision that the cancellation of the Applicant’s Class BS subclass 801 Partner visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

    Dates of hearing:  3 and 4 March 2025

    Counsel for the Applicant:  Mr Anthony Krohn

    Solicitors for the Applicant:  Mr Kevin Khoa Tran, Winstan Lawyers

    Solicitor Advocate for the Respondent:         Ms Sarah Thompson, HWL Ebsworth