Bui and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 2302

Bui and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2302 (17 May 2024)
Division:GENERAL DIVISION
File Number(s): 2024/1173
Re:Hai Dang Bui
APPLICANT

Minister for Immigration, Citizenship and Multicultural Affairs And
RESPONDENT

DECISION

Tribunal:Senior Member Dr Linda Kirk
Date:17 May 2024
Date of written reasons: 8 July 2024
Place:Sydney

The Tribunal affirms the Reviewable Decision dated 23 February 2024 to refuse to revoke the Mandatory Visa Cancellation Decision.
..............................[sgd]..........................................
Senior Member Dr Linda Kirk

CATCHWORDS

Migration – sophisticated drug syndicate – drug importation – false identities – exposure of Australian community to serious harm - devastating impact upon community, destroying lives, families and fabric of our society– limited connections to Australia – no history of paid employment – community expectations – expert report conclusions rejected for “professional omission” – recent pre-sentencing report favoured – some evidence of remorse – good prospects of rehabilitation – excellent prison record – progress to full rehabilitation – privileged upbringing – intelligent and well educated – character references and employment opportunities upon release – low to medium risk of re-offending – Ministerial Direction No. 99 – risk of re-offending unacceptable – decision under review affirmed.

LEGISLATION

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)

CASES

FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR and Minister for Home Affairs (2019) 272 FCR 454

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Jal v Minister for Immigration and Border Protection [2016] AATA 789

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration v HSRN [2023] FCAFC 68
PNLB and Minister for Immigration and Border Protection [2018] AATA 162

Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 587
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Viane v The Minister for Immigration and Border Protection [2018] FCAFC 116

SECONDARY MATERIALS

DFAT Country Information Report Vietnam, 11 January 2022
Direction no. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

WRITTEN REASONS FOR DECISION

Senior Member Dr Linda Kirk
8 July 2024

Hai Dang Bui (‘the Applicant’) is a 28-year-old citizen of Vietnam who first arrived in Australia on 10 August 2006 and remained in the country for a period of 14 days.[1] On 23 May 2013, the Applicant’s father applied for a Contributory Parent (Migrant) (Class CA) (Subclass 143) visa (‘the Contributory Parent visa’) with the Applicant listed as a member of the family unit. On 2 January 2015, the Contributory Parent visa was granted.[2]
[1] Exhibit R1, G30, 227.
[2]Exhibit R1, G24, 180-2.
Since his first arrival in Australia, the Applicant has departed and subsequently re-entered Australia on 11 occasions.[3] He last arrived in Australia on 20 March 2019.[4] On 11 September 2019, the Applicant was granted a Class BB Subclass 155 Five Year Resident Return visa (‘the visa’).[5]
[3]Exhibit R1, G30, 225-7.
[4]Ibid, 225.
[5]Exhibit R1, G8, 67.
On 16 February 2023, the Applicant was convicted in the Downing Centre District Court of two counts of Supply prohibited drug >indicatable & <commercial quantity-T1, Supply prohibited drug >= commercial quantity-SI, Participate criminal group contribute criminal activity-T2 and Supply prohibited drug>small & <=indictable quantity-T1 (‘the supply offences’). The Applicant was sentenced to an aggregate term of imprisonment of four years, with a non-parole period of two years and five months. The Court also took into account on a Form 1 basis the charges of Knowingly deal with proceeds of crime – SI and supply prohibited drug >indictable & <commercial quantity-T1.[6] The District Court also convicted the Applicant of Import border control plant and sentenced him to a 12-month term of imprisonment (‘the import offence’). A charge of Possess identification info & intend section 372.1 fraud was taken into account on Schedule 16BA basis.[7]
[6]Exhibit R1, G6, 35-7; Exhibit R2, TB3, 29-30.
[7]Exhibit R1, G6, 37.
On 7 March 2023, the Applicant’s visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) (‘the Mandatory Visa Cancellation Decision’) because a delegate of the Minister (‘the Respondent’) was not satisfied that the Applicant passed the character test in subsection 501(6) of the Act.[8] The Applicant was considered to have, pursuant to subsection 501(6)(c), a ‘substantial criminal record’ within the meaning of subsection 501(7)(c) as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution: subsection 501(3A)(b). At the time, the Applicant was serving a sentence of full-time imprisonment at Glen Innes Correction Centre in New South Wales for an offence against a law in Australia.5F
[8] Exhibit R1, G8, 67-72.
On 26 March 2023, within the prescribed period, the Applicant made representations seeking revocation of the Mandatory Visa Cancellation Decision.[9]
[9] Exhibit R1, G11-G12.
On 23 February 2024, a delegate of the Respondent decided, under subsection 501CA(4) of the Act, not to revoke the Mandatory Visa Cancellation Decision (‘the Reviewable Decision’).[10] On the same day the Applicant’s representative was notified of the Reviewable Decision.[11]
[10] Exhibit R1, G3, 18-33.
[11]Exhibit R1, G2, 11-2.
On 27 February 2024, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Reviewable Decision under subsection 500(1)(ba) of the Act.8F[12]
[12] Exhibit R1, G1, 1-10.
The matter was heard by the Tribunal on 8 May 2024. The Applicant attended the hearing in person and was represented by his solicitor. He gave oral evidence and was cross-examined.
The material before the Tribunal consists of:
- Applicant’s Statement of Facts, Issues and Contentions (‘ASFIC’) dated 5 April 2024;
- Respondent’s Statement of Facts, Issues and Contentions (‘RSFIC’) dated 26 April 2024;
- Section 501 G-Documents (G1 – G31, pp. 1 – 251) filed 8 March 2024 – Exhibit R1;
- Respondent’s Tender Bundle (TB1 – TB5, pp.1- 94) filed 26 April 2024 - Exhibit R2;
- Applicant’s Tender Bundle filed 26 April 2024 – Exhibit A1.
The Tribunal has reviewed the evidence before it and refers to relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7) of the Act provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i) been found by a court to not be fit to plead, in relation to an offence; and
(ii) the court has nonetheless found that on the evidence available the person committed the offence; and
(iii) as a result, the person has been detained in a facility or institution.
Section 501CA of the Act applies if the Minister decides under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision.
MINISTERIAL DIRECTION NO. 99
Subsection 499(1) of the Act provides:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Subsection 499(2A) of the Act provides that ‘A person or body must comply with a direction under subsection (1)’.
On 23 January 2023, the Minister, for the purposes of section 499 of the Act, made a Direction titled Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The commencement date for operation of the Direction was 3 March 2023.[13]
[13] Upon its commencement, the Direction revoked the operation of “Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”.
Paragraph 5.1 sets out the objectives of the Direction. Sub-paragraphs 5.1(1) and (2) provide:
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
(2)Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
Paragraph 5.1(4) provides:
(4)The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of the Direction sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse a visa under section 501 of the Act. These principles are as follows:
(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) 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.
(3) 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 measureable [sic] risk of causing physical harm to the Australian community.
(4) 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 noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) 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. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘information and evidence from independent and authoritative sources should be given appropriate weight’.
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations’. That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give a ‘other’ consideration the equivalent of or greater weight than a primary consideration.[14] Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations’.
[14] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account. They are:
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; and
5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
ISSUES FOR DETERMINATION
Before the power in subsection 501CA(4) of the Act to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations as required by subsection 501CA(4)(a) of the Act. The issue before the Tribunal is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo,13F[15] the Full Court of the Federal Court of Australia made the following observations in relation to subsection 501CA(4):
[t]here has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view ...[16]
[15] [2018] FCAFC 151.
[16] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are:
1)whether the Applicant passes the ‘character test’; and
2)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Early years in Vietnam
The Applicant was born in Vung Tau City, Vietnam in 1995. He is the only child of his parents. His father has two children from a previous marriage,[17] including the Applicant’s step-sister, HMB, born in 1982.[18] The Applicant’s mother was diagnosed with cancer in 2006 when he was aged 11 years and she died in 2012.[19]
[17]Exhibit R1, G18, 138.
[18]Exhibit R1, G12, 99.
[19]Exhibit R1, G11, 88; G14, 128.
The Applicant grew up in an ‘academic driven household’ and his parents placed pressure on him to achieve high grades.[20] He attended primary school in Vietnam and in 2007, when he was approximately 12 years of age, he travelled with his father to Australia.[21] His father only remained in Australia for a few months before returning to Vietnam. The Applicant stayed in Australia to study.
[20]Exhibit R1, G14, 128.
[21]Exhibit R1, G18, 139.
Migration to Australia
The Applicant lived with HMB and her mother in Sydney, and he studied at Marsden High School in 2009 and Newington College in 2010. He was an ‘A grade student’ and ‘fully dedicated’ to his studies.[22] He ‘settled in quickly, made plenty of friends at school and considered Australia [his] new home’.[23]
[22]Exhibit R1, G11, 88.
[23]Exhibit R1, G14, 128.
In 2011, the Applicant’s mother was seriously ill and in palliative care, and he returned to Vietnam to be by her side until she passed away.[24] Following his mother’s death, the Applicant’s ‘lifestyle changed dramatically, hitting rock-bottom’. He was ‘emotionally depressed’ and ‘alone’ and was hit hard when he learned that his father ‘had moved on with a new family’.[25] His relationship with his family ‘worsened and became toxic’ and he ‘withdrew into a downward spiral depression’.[26] The Applicant was in a long term relationship of four years with his partner, which ended in 2014 after she had an abortion and her mother forbid them from seeing each other. Following the end of this relationship, the Applicant spiralled deeper into depression. He had relied on his partner for support and ‘felt lost and could not turn to anyone else for support’.[27]
[24]Exhibit R1, G11, 88.
[25]Ibid.
[26]Exhibit R1, G14,128.
[27]Ibid.

The Applicant ‘could not accept what was happening around [him]’ and he decided to return to Australia. He returned in February 2015 and then departed again in March 2015.[28] When he returned to Australia in July 2016, the Applicant enrolled in Hotel and Resort Management at Torrens University in the Blue Mountains and worked in part-time jobs so he could pay for his daily expenses.[29] He ‘could not get over’ his mother’s death and his father ‘moving on with his new family’. He had ‘no one to turn to for help, advice and support’ as his step-sister was going through a divorce. His mental health was ‘at an all-time low’ and he ‘felt more depressed and anxious everyday’.[30]The Applicant ‘began to get off the rails, started hanging out with the wrong group of friends’ and they ‘peer pressured’ him into ‘doing work for them’.[31]
[28]Exhibit R1, G30, 226.
[29]Exhibit R1, G11, 88; G14, 128.
[30]Exhibit R1, G14, 128.
[31]Exhibit R1, G11, 88.
The Applicant departed Australia on 14 December 2016 and returned on 10 May 2017. He left again in January 2018 and returned on 4 April 2018, and subsequently departed on 5 June 2018 and returned on 5 August 2018. He next departed Australia on 29 January 2019 and returned on 20 March 2019 and he has remained in Australia since this date.[32]
[32]Exhibit R1, G30, 225-7
Drug use
The Applicant told Mr Sam Albassit, the psychologist who prepared a psychological assessment prior to his sentencing, that he ‘began experimenting with illicit substances’ and ‘began consuming MDMA, Ketamine, Ecstasy and Synthetic Cannabis on a daily basis’.[33] In his oral evidence the Applicant told the Tribunal that he first used drugs when he was in Vietnam.[34] He told Mr Albassit that he ‘began experiencing auditory hallucinations’ and ‘his behaviour was becoming erratic and unpredictable’.[35]
[33]Exhibit R1, G18, 140.
[34] Transcript of proceedings 8 May 2024, 19.
[35]Exhibit R1, G18, 140.
In his statement dated 1 October 2023, the Applicant outlined the extent of his drug use and how it led him to become involved in a drug syndicate:[36]
To cope with my mental health, I started buying drugs off my co-accused and he gave me the opportunity to make quick money and access to drugs through supplying drugs. I started doing drug deliveries and would use the money made to acquire more drugs to fuel my addiction, I was naive and young but that is not an excuse, I ultimately made the decision and now living the consequences for those poor decisions. I remember using cannabis and cocaine everyday, but every time I tried to slow down or even stop, the attempts were unsuccessful because of how easily I could get access to them.
[36]Exhibit R1, G14, 128.
Criminal offending
The Applicant’s National Criminal History Check dated 3 March 2023 records his criminal convictions in Australia.[37]
[37] Exhibit R1, G6, 35-7.
On 27 November 2017, the Applicant was convicted in the Local Court of New South Wales of Possess prohibited drug and received a 12-month good behaviour bond.[38] The Applicant was in possession of 34.4 grams of cannabis.[39]
[38]Ibid, 37.
[39]Exhibit R2, TB1, 15; TB2, 21.
On 16 February 2023, the Applicant was convicted in the District Court of New South Wales of the supply offences and the import offences. The facts surrounding the Applicant’s offending are detailed in the sentencing remarks of Judge Buscombe,[40] and the statement of agreed facts which was filed in the criminal proceedings.[41] These record that the Applicant was a member of a drug syndicate which operated out of a house in Rhodes and was directed by his co-accused, MFM. As part of a police strike force, the house was monitored and placed under lawful surveillance and Police were also monitoring communications between the Applicant and MFM. Surveillance devices captured a number of drug supply transactions on four separate occasions between 4 and 12 September 2020. The Applicant was recorded as supplying 140 grams of methylamphetamine, 279.9 grams of cocaine (being, not less than a commercial quantity), 140 grams of cocaine and 906 grams of cannabis.[42] Surveillance footage also recorded the Applicant, amongst other things, handling, weighing, and packaging drugs, along with receiving payment for those acts of supply. In addition, between 1 June 2020 and 16 September 2020, the Applicant participated in a criminal group directed by MFM. The Applicant had a set of keys to the Rhodes unit in which the supply transactions took place, and he participated in the counting and bundling of large sums of money.[43]
[40]Exhibit R1, G7, 40-6.
[41]Exhibit R2, TB3, 28-33.
[42]Exhibit R2, TB3, 35-7.
[43]Ibid, 34-9.
The facts of the import offences record the Applicant’s participation in and work for MFM’s drug syndicate. Between 14 August 2019 and 23 October 2020, the Applicant and his co-accused imported 38 packages of cannabis (total 6.3kg) from California, USA, for the purpose of sale on the domestic market. In the District Court, the Applicant submitted that he had imported the drugs for his personal use and to otherwise fund his drug use. He sold the imported cannabis and, in so doing, used a number of false identities and several addresses.[44]
[44]Exhibit R1, G7, 45; Exhibit R2, TB3, 31-6.
In determining the seriousness of the Applicant’s offending, Judge Buscombe noted that the quantity and purity of the drug were relevant, but that the role of the Applicant in the operations and his motivation for engaging in such offending were important factors.[45] His Honour found that the Applicant’s role was less than that of MFM, but also noted that one transaction, involving the supply of methylamphetamine and the supply of cannabis, did not appear to involve MFM.[46] The Applicant’s role in the activities of the criminal group was likened to an assistant or worker rather than someone directing the activities of the group.[47] In relation to the import offences, His Honour found that 6.3 kilograms of cannabis ‘cannot be said to be insignificant’ but noted that the quantity was well below that listed as marketable quantity.[48] He also took into account that part of the Applicant’s motivation for offending was to fund or provide for his own drug addiction.[49] He found that the supply offences were very serious, and the other offences were objectively serious.[50]
[45]Exhibit R1, G7, 46.
[46]Ibid, 47.
[47]Exhibit R1, G7, 48.
[48]Exhibit R1, G7, 48-9.
[49]Ibid, 49.
[50]Exhibit R1, G7, 48.
Remorse and responsibility for offending
The Applicant expressed to Mr Albassit his ‘regret and remorse for his actions’ and ‘recognised that his behaviour was reckless and impulsive, and his actions would have had significant repercussions on himself and the wider community’.[51] He spoke of the consequences of his actions ‘which demonstrated insight into his offending behaviour’.[52]
[51]Exhibit R1, G18, 144.
[52]Ibid.
In his sentencing remarks, Judge Buscombe noted the Applicant’s ‘early pleas of guilty’, the statements he made to Mr Albassit, and his letter to the Court and to his step-sister, HMB, and found that ‘there is some evidence of genuine remorse here’.[53] His Honour did not accept that there was a connection between the Applicant’s traumatic background and his use of prohibited drugs, nor that his use of prohibited drugs reduced the moral culpability of his offending.[54]
[53]Exhibit R1, G7, 58.
[54]Ibid, 60.
The Pre-release report prepared by Corrective Services NSW dated 24 March 2023 notes that the Applicant has accepted responsibility for his offending ‘to some extent’, and while apportioning some blame for his drug use on his associates, he ultimately acknowledged it was a result of his own choices.[55]
[55]Exhibit R1, G19, 148.
In his statement dated 1 October 2023, the Applicant expressed his remorse, and stated that his time in prison has allowed him to witness ‘the true impacts of drug addiction’, and he understands that his criminal actions have ‘directly contributed to the misery of other peoples’ lives’. He stated that he has had time to reflect on what he has done and is ‘grateful for the opportunity to repent’.[56] In the final paragraph of his statement the Applicant wrote:[57]
I cannot express enough my sincere remorse and apologies for my inexcusable actions of supplying and importing drugs. I make no excuse for my actions and take full responsibilities for all I have done. If there was a way to go back in time and take my actions, I would do it in a heartbeat. I am deeply ashamed of what I have done which has led me to jail and now losing my visa and being detained in immigration detention.
[56]Exhibit R1, G14, 128.
[57]Ibid, 129.
Mental health condition
In his report prepared for the District Court dated 6 December 2022, Mr Albassit concluded that the Applicant meets the DSM-V criteria for Complex Post-Traumatic Stress Disorder (‘PTSD’). In his opinion, the Applicant’s psychological condition led to his substance abuse:[58]
Due to the complex trauma and mental health issues that occurred throughout his life, [the Applicant] developed a maladaptive pattern of substance use. [The Applicant’s] substance use continued over the years despite experiencing ongoing and persistent psychiatric and psychological issues that were exacerbated by the Substance use.
[58]Exhibit R1, G18, 142.
In his opinion, there is a ‘direct correlation’ between the Applicant’s offending and his ‘ongoing and chronic psychiatric/psychological conditions’.[59]
[59]Ibid, 143.
Rehabilitation
Judge Buscombe considered that the Applicant had ‘very good prospects of rehabilitation’. His Honour stated:[60]
He appears from his comments to have some genuine insight into the terrible harm
that the supply of prohibited drugs is doing in our community. I consider that the
[60]Exhibit R1, G7,58.
offender has very good prospects of rehabilitation. He is intelligent and well- educated. He has engaged in employment and rehabilitation programs while in custody and appears to have made the most of his time I prison. He has an employment opportunity available to him when he does leave custody.
In his statement dated 1 October 2023, the Applicant outlined the steps he has taken to rehabilitate during his period in gaol and immigration detention:[61]
I have done all I can to prove that I have rehabilitated by always staying employed while in custody, preparing my reintegration into the Australian community and taken any opportunity that came my way to study and take part in programs. I have actively addressed my addiction by taking part in the Positive Lifestyle Program, Journey Program as well as Intervention Hubs, designed to target the roots of my problems, the consequences they have left on myself and others; as well as acquiring skills to control, embrace and redirect negative emotions into positive outcomes. I am no longer distracted by negative peers and feel like I finally have a purpose in life.
[61]Exhibit R1, G14, 129.
The Applicant was employed full-time in Food Services during his incarceration in Parklea Correctional Centre from October 2020 to August 2022.[62]
[62]Exhibit R1, G23, 173.
He told the Tribunal that he worked as the leading hand in the kitchen. He explained what this role involved:[63]
[I] would induct new inmates. And as well as mentoring them, helping them to do their job effectively, as well as managing, delegating, and a lot of responsibilities …
[63] Transcript of proceedings 8 May 2024, 12.
Reports by Corrective Services staff commend the Applicant’s work in the kitchen and his positive interactions with inmates and other staff.
Also before the Tribunal is an employment reference from Tayfun Platt, Logistics Industries Overseer at Parklea Correctional Centre dated 29 July 2022 which states:[64]
[The Applicant] commenced employment in the Kitchen Business Unit at Parklea Correctional Centre on the 15th of October 2020 where he underwent a workplace induction prior to commencing work in the unit. The induction covered the conditions of employment which include PPE, attendance, tool register, safety, and pay. [The Applicant] was given shoes and a locker. [The Applicant] engaged extremely well and acknowledged that he understood all instructions.
Since commencing employment [the Applicant] has demonstrated a willingness to learn, as well as strong interpersonal skills with both his overseer and colleagues. [The Applicant] has shown a consistent and diligent approach to his work, contributing to top quality production in a time effective manner. [The Applicant] is both polite and respectful of all colleagues and assists in all aspects within the business unit. [The Applicant] is considered a lead worker in the business unit for his continuous contribution and passion towards his work and the length of time in which he has worked in the unit.
An attendance rate of 100%, [the Applicant] has had zero unexplained days off since commencing employment at Parklea. [The Applicant] is always a punctual individual who is awake and ready for work with his cell cleaned and bed made each morning. [The Applicant] is always willing to help newcomers to the business unit and considered a peer mentor for all the work he has done with them. A monthly review of behaviour within his Accommodation Unit has been conveyed with Accommodation Unit Officers – reporting that [the Applicant’s] qualities at work are in accordance with his behaviour in the Unit.
In conclusion I would like to describe [the Applicant] as a hardworking, dedicated, and well-mannered individual who has an incredible amount of potential. [The Applicant] has worked in this unit since I commenced here and has always done his best to improve himself during his time here at Parklea. I wish him all the best in his rehabilitation process and his reintegration back into society.
[64]Exhibit R1, G23, 172.
The Applicant also was employed in Waste Processing, Metal Fabrication, Timber & Carpentry at Clarence Correction Centre, and in Laundry Services at Glen Innes Correctional Centre.[65] He was the subject of positive case notes in all industries and centres where he was employed.[66]
[65]Exhibit R1, G19, 152.
[66]Ibid; G23, 174-8.
The Applicant completed the following certificates/programs during his incarceration:[67]
·Alcohol Awareness by the Intervention Hub on 6 July 2022;
·Completing the Thinking Skills Hub by the Intervention Hub on 19 May 2021;
·The Positive Lifestyle Program by the Salvation Army on 4 March 2021;
·The Prisoner’s Journey Program by the Prison Fellowship International;
·Emotional Wellbeing Hub by the Intervention Hub on 2 June 2021;
·Statement of Attainment in Transport & Logistics Bluecard from TAFE NSW dated 22 July 2021.
[67]Exhibit R1, G20, 156-160; G21, 169.
The Applicant told the Tribunal that he has abstained from drug use since he was incarcerated in September 2020.[68]
[68] Transcript of proceedings, 8 May 2024, 12.
The Pre-release report dated 24 March 2023 records that the Applicant was classified as a minimum-security inmate, his behaviour in prison was positive, and he did not receive any misconduct charges during his time in custody.[69]
[69]Exhibit R1, G19, 151.
Risk of reoffending
In a Sentencing Assessment Report prepared by his Community Corrections Officer dated 15 September 2022, the Applicant was assessed to be a ‘medium-low risk of reoffending’.[70]
[70]Ibid, 153.
The NSW Corrective Services Pre-release report dated 24 March 2023 made the following findings in relation to the suitability of the Applicant in recommending that a parole order be made:[71]
[The Applicant] demonstrated insight into risk factors, he has engaged in offence targeted programs that were available to him, offering insights into his offending and criminogenic risks. He has maintained employment when available to him, receiving positive reports for his behaviour and attendance.
[The Applicant] appears willing to engage with Community Corrections and has a good
understanding of the interventions he will be required to participate in, he is motivated to avoid further offending. He is open to AOD counselling and cognitive behavioural therapy-based exercises.
He will have stable accommodation and the pro-social support of his family and
family friend. He also has confirmed employment opportunities available to him post
[71]Exhibit R1, G19, 154.
release. Bankstown Community Corrections have proposed a robust case management plan to support [the Applicant] and mitigate possible risks in the community. He would benefit from a prolonged period of supervision to encourage further insight into the impact of offending and support him in developing a prosocial identity.
The report assessed the Applicant at a ‘Medium-Low risk of re-offending’ according to the Level of Service Inventory – Revised (LSI-R).[72]
[72]Ibid, 153.
In his statement dated 10 March 2023 the Applicant wrote:[73]
I have had no interest in committing crimes, and all I want to do is put this past me and be given an opportunity to continue to flourish and get my life back on track. I have done all I can to prove I have rehabilitated, taking advantage of any opportunity that has come my way including employment, participating in programs and staying out of trouble.
[73]Exhibit R1, G11, 89.
Relationship with step-sister and niece
In his statement dated 1 October 2023, the Applicant described his relationship with his step-sister, HMB, and her daughter, AMT, born in 2014:[74]
[74]Exhibit R1, G14, 128.
During this time, I have focused on the most important thing in life - family; I have a 8
year old niece [AMT], that I have to be a role model for. I love my sister and my niece
dearly and would give anything to be in their lives again and show them how far I
have come. My niece especially have a special place in my heart and it pains me to be
away from her while she grows up with her parents divorced. I have had no interest in
committing crimes and all I want to do is put this past me and be given an opportunity
to get my life back on track. Because of my acceptance, my relationship with my
father and sister have improved greatly, they continued to support me throughout my
time and have always been there for me- my sister [HMB] was willing to put up her
entire savings to guarantee bail for me. I look forward to visiting them often and help
out with the house as my sister is currently a single mother bearing a lot of burden by herself.
HMB provided a statement dated 10 October 2023 in which she described her relationship with the Applicant and his relationship with her daughter, AMT:[75]
[The Applicant] and I have previously had quite a close relationship. He lived with me in
Sydney when he travelled here from Vietnam to study in the later years of his high
schooling. I took on the role of the responsible family member in Australia for my
younger brother. [The Applicant] lived with me for part of his high schooling in Sydney where he attended high school in West Ryde and later attended a few terms at Newington Grammar in Stanmore. He returned to Vietnam to finish the remainder of his high school education but returned to Australia to start his tertiary education.
When [the Applicant] returned to Australia to start his tertiary education, we no longer lived together. We did spend time together socially on occasions and he visited me a few times at my old house and spent time with myself and my daughter. When [the Applicant] came to visit us, my daughter grew close to him, they were inseparable. [The Applicant] was particularly fond of [AMT] and would spoil her by buying her gifts whenever he visited. [AMT] was only turning 6 when [the Applicant] was arrested but their short time together proved meaningful as she would often ask where her uncle has been and that she misses him.
Since he has come out of gaol, [the Applicant] has actively made efforts to keep in contact with my daughter and I. He has proven himself to be a changed young man and I am extremely grateful to have him back with us. My daughter has not found out that [the Applicant] went away to gaol but until this day, still look forward to seeing her uncle. I sincerely assure that you consider revoking the decision the cancel his visa so he could remain in Australia to be part of our family again.
[75]Exhibit R1, G15, 130-1.

In his oral evidence at the hearing, the Applicant told the Tribunal that he has not been in contact with his step-sister and niece for more than four years.[76] He said that HMB learned about his ‘antisocial behaviour’ through their father, and since then every time he has attempted to contact her she will say ‘I’m busy’. He asked her to come to the Tribunal hearing and to give evidence, but she said she was ‘busy’. He ‘felt hurt’ by this as it is his ‘only chance’ to stay in Australia.[77] The Applicant told the Tribunal that HMB has given him ‘an ultimatum’ and that he must show her that he has ‘changed’ if he is to be accepted into her and his niece’s life again.[78]
[76] Transcript of proceedings, 8 May 2024, 17.
[77]Transcript of proceedings, 8 May 2024, 16.
[78]Ibid.
Applicant’s father
The Applicant’s father, TTB, resides in Vietnam. In his statement dated 6 February 2023, TTB stated that he operates an established business which sells technological parts and equipment to oil and gas companies in Vietnam, Australia, the US and UK. During the COVID-19 restrictions, the Applicant’s father was unable to travel to Australia to visit him however he did assist with the payment of legal fees.[79] The relationship between the Applicant and his father has strengthened in recent years.[80] TTB stated that he is ‘willing to do everything in [his] power to help [the Applicant] get his life on track so he can pick up where he left off’.[81]
[79]Exhibit R1, G16, 134.
[80]Ibid.
[81]Exhibit R1, G16, 134.
Work and housing in Vietnam
The Applicant told the Tribunal that if he were to return to Vietnam he would reside with his father.[82]
[82]Transcript of proceedings, 8 May 2024, 29.
In relation to work opportunities in Vietnam, the Applicant’s evidence is that his siblings have established employment, and they will be able to assist him to find an office job.[83]
[83]Ibid.
Other family in Vietnam
The Applicant told the Tribunal that he has a sister and two brothers who reside in Vietnam. He only recently discovered that he has a younger brother who is aged four.[84] The Applicant also has 10 to 12 other relatives including uncles, nieces, and nephews.[85]
[84] Transcript of proceedings, 8 May 2024, 28.
[85]Ibid.
Future plans
In his statement dated 1 October 2023, the Applicant outlined the plans he has if he is permitted to return to the Australian community:[86]
I have future plans whilst in gaol for when I get out is to take up an employment opportunity waiting for me at “D Spotless Cleaning” with my employer Rabih Jbeily. Also, I have plans to commit in doing charity work on my day offs (sic) to repay the community and society that I have let down. Nowadays, I surround myself with a positive group of friends who are willing to assist me in reintegrating into the community and often spend their time to help the needy. I am older and wiser and have high hopes of achieving my goals which are to work, get married, have children and rebuild a family that I lost and provide lots of love, care and especially teaching my children the right and wrong in life.
[86]Exhibit R1, G14, 129.
During his evidence at the hearing, the Applicant told the Tribunal that he has two other offers of employment if he returns to the community. The husband of a family friend, Maha Habid, has offered him a job at his car dealership, and another friend who has a plumbing business has also offered him work.[87]
[87] Transcript of proceedings, 8 May 2024, 13-4.
In his statement dated 2 December 2022, Rabih Jbeily, owner and director of D Spotless Cleaning described the job he has offered the Applicant:[88]
An opportunity to commence full-time employment as a member of our cleaning team
is available at D Spotless Cleaning should [the Applicant] be granted bail. [He] would be able to commence work immediately on a full-time basis from Monday to Sunday.
[88]Exhibit R1, G22, 171.
Working hours range from between 8am to 6pm and occasionally on Sunday, however these hours may be tailored to meet any curfew restrictions placed on [him].
The Applicant told the Tribunal that he will live in a granny flat at the back of Maha Habid’s house in Roselands.[89]
[89] Transcript of proceedings, 8 May 2024, 13.
Impediments on return to Vietnam
The Applicant’s evidence is that if he is required to return to Vietnam, he will have ‘no employment’, and ‘no support network’ and he will be ‘unfamiliar with way of life and customs.’ In addition, he will not have ‘psychological help’ and the progress he has made with improving his mental health condition will be ‘reversed’. In addition, as a practising Muslim he will be forbidden to practice his religion as Islam is ‘illegal’ in Vietnam.[90]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[90]Exhibit R1, G12, 103.
1)Does the Applicant pass the ‘character test’?
In the representations and material that the Applicant submitted to the Department and the Tribunal, he does not dispute the information in the National Criminal History Check dated 3 March 2023 recording his criminal conviction and sentence. It relevantly records that on 16 February 2023 the Applicant was convicted in the District Court of New South Wales of two counts of Supply prohibited drug >indictable & <commercial quantity, Supply prohibited drug >= commercial quantity, Participate criminal group contribute criminal activity, and Supply prohibited drug >small & <=indictable quantity, for which he was sentenced to an aggregate term of imprisonment of four years. The Tribunal is satisfied that the Applicant has a ‘substantial criminal record’ for the purposes of section 501(3A)(a) and section 501(6) of the Act as he has been sentenced to a term of imprisonment of 12 months or more: section 501(7)(c). The Tribunal is also satisfied, for the purposes of section 501(3A)(b) of the Act, that on 7 March 2023 the Applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the state of New South Wales.
The Applicant accepts that he does not pass the character test because of section 501(7)(c).[91] The Tribunal is satisfied that the Applicant does not satisfy the character test, and accordingly it finds that section 501CA(4)(b)(i) cannot be invoked to revoke the Mandatory Visa Cancellation Decision.
2)Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
[91] Transcript of proceedings, 8 May 2024, 6.
In determining whether pursuant to section 501CA(4)(b)(ii) of the Act there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must, in accordance with paragraphs 8 and 9 of the Direction, take into account the relevant ‘primary considerations’ and ‘other considerations’. The existence or otherwise of ‘another reason’ is to be established on the balance of probabilities.
The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Federal Court of Australia in Viane v The Minister for Immigration and Border Protection:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.[92]
PRIMARY CONSIDERATIONS
[92] [2018] FCAFC 116; 162 ALD 13 per Colvin J, [64].
Primary Consideration 1 – Protection of the Australian community
Paragraph 8.1 of the Direction provides that, when decision-makers are considering the protection of the Australian community, they:
(1) … should keep in mind 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. In this respect, decision-makers should 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.
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
a)Nature and seriousness of the conduct
Paragraph 8.1.1 of the Direction provides:
(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii. crimes of a violent nature against women or children, regardless of the sentence imposed;
iii. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv.where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant accepts the seriousness of the offences for which he was convicted.[93] Having regard to the factors in paragraph 8.1.1 of the Direction and, for the reasons that follow, the Tribunal finds that the Applicant’s criminal offending is serious.
[93] Transcript of proceedings, 8 May 2024, 6; G11, 89.
The Applicant was involved in a relatively sophisticated drug operation as evidenced by the volume of drugs being supplied and the use of encrypted devices. While Judge Buscombe accepted that the Applicant played a lesser role than his co-offender, MFM, the Applicant was not a passive participant in the criminal enterprise. The Applicant negotiated sales with buyers, was involved in recruiting others to assist in the enterprise, and he was in direct contact with suppliers.
The Applicant’s offending exposed the Australian community to significant harm. The drugs which were the subject of the Applicant’s convictions had the potential to cause grave harm to many individuals, including particularly vulnerable segments of the community, if they had been supplied to users. As Judge Buscombe observed in his sentencing remarks, ‘[t]he supply of prohibited drugs is having a devastating impact upon our community, destroying lives, families and the very fabric of our society’.[94] The Applicant’s broader involvement in the supply of large quantities of prohibited drugs facilitated the presence of drugs in the community, and contributed to organised crime in Australia, both of which are associated with devastating social, physical and financial outcomes.[95]
[94]Exhibit R1, G7, 63.
[95]Exhibit R2, TB4, 65-74.
Having regard to paragraph 8.1.1(1)(c) of the Direction, the Tribunal finds that the custodial sentence imposed on the Applicant by the District Court is an objective indicator of the seriousness of his criminal offending. The offence relevant to the Applicant’s supply of a not less than commercial quantity of cocaine is punishable by a maximum term of 20 years imprisonment. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the Applicant’s offences.[96] Whereas the Applicant did not receive the maximum sentence for his offending, Judge Buscombe imposed an aggregate sentence of four years imprisonment despite the fact the Applicant’s criminal history at that point had comprised a single drug possession charge that was dealt with by way of a good behaviour bond.
[96] Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22]; Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50]; Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 587.
On the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant’s criminal offending is serious in nature, and this weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction relevantly provides:
(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 non citizen 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).
c) where consideration is being given to whether to refuse to grant a visa to the non-citizen- whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
(i)Nature of harm to individuals or the Australian community
Guided by paragraph 8.1.2(2)(a) of the Direction, the Tribunal has considered the nature of the harm to individuals or the Australian community if the Applicant were to commit further drug supply and import offences.
The Tribunal finds that the harm that could be visited on members of the Australian community should the Applicant resume his involvement in the supply of illicit drugs could range from serious to grievous physical, psychological and financial harm. As the type of harm that may be caused to the Applicant’s victims should he reoffend is serious, paragraph 8.1.2(1) of the Direction recognises that the Australian community’s tolerance for the risk of such offending is reduced.
For these reasons, the Tribunal finds that the nature of the harm to individuals or the Australian community should the Applicant engage in similar criminal offending in the future is serious, and that any risk that it may be repeated is unacceptable.
(ii)Likelihood of the Applicant engaging in further criminal or other serious conduct
Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 8.1.2(2)(b) of the Direction, the Tribunal has considered the available information and evidence before it and finds, for the reasons that follow, that the risk of the Applicant re-offending is medium to low.
The Applicant contends that there are several contributors to his criminal offending including his difficult upbringing, the death of his mother, the breakdown of his supportive relationship with his partner and his father remarrying and having another family. He claims that these factors contributed to his drug use and ultimately his drug addiction.[97] The Tribunal notes that Judge Buscombe did not accept that there was a connection between that Applicant’s background and his use of prohibited drugs. Whereas His Honour did accept that the Applicant was addicted to prohibited drugs at the time of the offending, he did not accept that his use of prohibited drugs in some way reduced his moral culpability or the offences.[98]
[97] ASFIC [5].
[98]Exhibit R1, G7, 60.
The Applicant also relies on the findings of Mr Albassit that there was direct correlation between his offending behaviour and his mental health conditions. Judge Buscombe however found that the evidence did not demonstrate that the Applicant’s mental health contributed to the offending in any material way. In making this finding, His Honour considered Mr Albassit’s report and rejected its major conclusions for reason that it did not indicate that Mr Albassit sought confirmation of the account given by the Applicant about his background from other sources, in particular other family members, which His Honour’s view considered to be ‘a serious professional omission’.[99] The Tribunal adopts the approach of Judge Buscombe to Mr Albassit’s report and places limited weight on this report in assessing the Applicant’s risk of re-offending.
[99]Ibid, 59.
The Tribunal has placed weight on the Pre-release report prepared by Corrective Services NSW on 24 March 2023. In this report, the author concluded that the Applicant is a ‘medium-low risk of reoffending’. This report is very detailed and is the most recent assessment of the Applicant’s risk of committing criminal offences in the future, having regard to his past conduct and his behaviour in gaol. Judge Buscombe considered that the Applicant had ‘good prospects of rehabilitation’ and this prediction appears to have been realised during the Applicant’s incarceration. The Applicant’s success in abstaining from drugs for a period of four years, his excellent work record in prison, and his completion of numerous courses and programs demonstrate that he used his time in prison productively and has made significant progress on the path to full rehabilitation.

Based on the evidence before it, the Tribunal finds that the Applicant is a medium to low risk of re-offending.
(iii)whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay and the type of visa being applied for
Relevantly to paragraph 8.1.2(2)(c) of the Direction, the Tribunal finds that if the Mandatory Visa Cancellation Decision is set aside and the Applicant’s visa is reinstated, members of the Australian community will be at risk if he engages in further criminal or other serious conduct for the period that he continues to hold this visa.
On the evidence before it and taking into account the available information and evidence of the risk of the Applicant re-offending and his rehabilitation, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is medium to low. However, the nature of the harm that would be inflicted on members of the community if the Applicant were to re-offend is such that this risk is unacceptable.
For the reasons above and applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, Primary Consideration 1 weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary consideration 2 – Family violence committed by the non-citizen
Paragraph 8.1.1(2) of the Direction prescribes that this consideration is relevant where the non-citizen has been convicted of an offence that involves family violence and/or there is information or evidence from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence. This Primary consideration does not arise on the evidence before the Tribunal.
Primary Consideration 3 – The strength, nature and duration of ties to Australia
Paragraph 8.3 of the Direction provides:
(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)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4)Decision-makers 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) The length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
Having regard to paragraph 8.3(3) of the Direction, the Tribunal notes that the Applicant has ties with two members of his immediate family who are Australian citizens and reside in Australia, being his step-sister, HMB and niece, AMT. Guided by paragraph 8.3(1) of the Direction, the Tribunal has considered the impact of a decision not to revoke the Mandatory Visa Cancellation Decision on these members of the Applicant’s immediate family.
Having regard to paragraph 8.3(1) of the Direction, the Tribunal finds that HMB will experience some emotional hardship should the Applicant be removed from Australia. However, it notes that the Applicant and HMB have not had a close relationship for a period of four years as a consequence of her disappointment about his criminal offending and finds that the distance that has developed between them will lessen the emotional impact the Applicant’s removal with have on HMB. The Tribunal finds that the Applicant has also had a limited relationship with his niece, AMT, following his incarceration in 2020, and that accordingly she will not be significantly impacted if he is returned to Vietnam.
The Tribunal has considered the impact on the Applicant’s father, TTB, if the Applicant were to be removed from Australia. The evidence before the Tribunal is that TTB has the right to permanently reside in Australia, however his primary place of residence is Vietnam. Whereas the Tribunal accepts that TTB is a tie the Applicant has to Australia for the purposes of paragraph 8.3(1), it gives it limited weight for reason that TTB’s primary place of residence is not Australia.
Having regard to paragraph 8.3(3) of the Direction, the Tribunal accepts that the Applicant has made some contributions to the Australian community by way of volunteer work he has performed at the Lakemba Dawah Centre and that he has established other social links, including with Mr Omar Haydar who provided a letter of support for the Applicant dated 29 September 2023,[100] and Shaykh Aiman Hamdan who provided a letter of support dated 5 October 2023.[101] However, the Tribunal has tempered the weight it has afforded to these connections in circumstances where these individuals would likely experience only disappointment if the Applicant were to be removed from Australia.
[100]Exhibit R1, G17, 135.
[101]Ibid, 136.
Relevantly to paragraph 8.3(4)(a)(i) of the Direction, the Applicant first arrived in Australia in 2006 and remained in the country for two weeks. During his formative years, the Applicant was resident in Australia between 12 December 2010 and 28 June 2011, being a period of approximately six months.[102] As the Applicant resided in Australia for a very short period of time during his formative years the Tribunal has given only limited weight to this factor in considering the strength, nature and duration of the Applicant’s ties to the Australian community.
[102]Exhibit R1, G30, 225.
Having regard to paragraph 8.3(4)(a)(ii) of the Direction, the evidence before the Tribunal is that the Applicant has not undertaken any paid employment in Australia although he has made a positive contribution to the community through his volunteer work at the Lakemba Dawah Centre.
For the stated reasons and having applied the guidance in paragraph 8.3 of the Direction, the Tribunal finds that Primary Consideration 3 weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 4 – Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of the Direction provides:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
Paragraph 8.4(1) of the Direction requires decision-makers to determine whether revocation is in the best interests of the child. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made: paragraph 8.4(2). The relevant minor child is the Applicant’s niece, AMT, born in 2014 and aged 10 years.
Having regard to the factors in paragraph 8.4(4)(a) of the Direction, the evidence before the Tribunal is that prior to his arrest in 2020, the Applicant had a close relationship with AMT, and they were ‘inseparable’. However, in the four years since the Applicant was convicted and imprisoned for his criminal offending, he has had limited contact with AMT. The Tribunal has given less weight to the Applicant’s relationship with AMT for reason that it is non-parental and that there has been long periods during which he has been absent from her life and limited meaningful contact between them.
Relevant to the factors in paragraph 8.4(4)(b), AMT is currently aged 10 years and therefore there are a number of years until she turns 18 during which the Applicant may play a positive role in her life in the future. The extent to which he will be able to do so will depend on whether he can re-establish contact with HMB and thereby have the opportunity to rebuild his previously close relationship with AMT.
In relation to the factors in paragraph 8.4(4)(c) and 8.3(4)(d), although the Applicant’s offending has resulted in his physical absence from AMT’s life since he has been in gaol and immigration detention, there is no evidence before the Tribunal to demonstrate that the Applicant’s offending has directly affected AMT. Having found that the risk of the Applicant engaging in similar criminal or other serious conduct in the future is low to moderate, the Tribunal finds that AMT may be negatively impacted in the future if the Applicant were to reoffend or engage in other serious conduct.
For the stated reasons and having applied the guidance in paragraph 8.4 of the Direction, the Tribunal finds that Primary Consideration 4 weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 5 – Expectations of the Australian Community
Paragraph 8.5 of the Direction relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. 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 to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, 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. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) …
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature …;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties
(e)…
(f) ...
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable (sic) risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The effect of paragraph 8.5 is that it imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. This consideration does not involve an inquiry into what the Australian community does or does not expect, because this is normatively expressed in the terms of the consideration: paragraph 8.5(4). Rather, the relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed community expectation’ of refusal of a visa ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences’.[103] As a normative expression, this consideration indicates the likelihood that community expectations will in most cases lead to refusal of a visa, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.[104]
[103] FYBR and Minister for Home Affairs (2019) 272 FCR 454 per Charlesworth J, [77].
[104] Minister for Immigration v HSRN [2023] FCAFC 68.
Relevantly to the expectations of the Australian community as stated in paragraph 8.4, particularly paragraph 8.4(2)(c), and in accordance with principles 5.2(2)-(5) of the Direction, the Applicant has convictions for the supply and importation of prohibited drugs. Given the seriousness and nature of this offending, the Australian community would expect that the Applicant should no longer have the privilege of holding a visa to remain permanently in Australia.
The Applicant has resided in Australia for short periods of time since 2006 and has been permanently in Australia since March 2019. However, since September 2020 he has been in prison and immigration detention, and he has therefore spent a very limited period of time residing in the community.
Having had regard to the factors in paragraph 8.4 of the Direction in relation to the expectations of the Australian community, giving them appropriate weight, taking into account the nature, seriousness and impact of the Applicant’s criminal offending, and the duration of his residency in Australia, the Tribunal finds that Primary Consideration 5 weighs against revocation of the Mandatory Visa Cancellation Decision.
OTHER CONSIDERATIONS
Paragraph 9 of the Direction sets out the Other considerations to be taken into account in making a decision under section 501(1) as follows:
In making a decision under section 501(1), 501(2) or 501CA(4), other considerations 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;
c) impact on victims;
d) impact on Australian business interests
While the Primary considerations carry particular weight, the Direction provides at paragraph 9 that ‘Other considerations’ must be taken into account by the decision-maker where relevant. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations’.
The Tribunal notes that these considerations are ‘Other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection (‘Suleiman’):[105]
Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[105] (2018) 74 AAR 545, [23].
In FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[106] Wigney J held that this analysis ‘tends to overcomplicate or over intellectualise the issue’. His Honour held that the use of the word ‘generally’ in clause 8(4) of Direction 79 (the same wording is used in paragraph 7(2) of Direction 99) ‘recognises that there may well be cases where the circumstances are such that one or more “other considerations” may be deserving of more weight than one or more primary considerations’.[107] His Honour also held that the formulation identified in Suleiman ‘is at least potentially problematic because it tends to suggest that a decision-maker cannot give greater weight to one or more of the ‘other considerations’ in any given case unless they consider that the case is somewhat unusual or out of the ordinary’.[108]
[106] [2021] FCA 775, [22].
[107] Ibid, [23].
[108] Ibid.
The ‘Other’ considerations relevant to the Applicant’s circumstances are considered in the following paragraphs.
a)Legal consequences of the decision
Paragraph 9.1 of the Direction provides:
1)Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
2)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
3)International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.

The Direction contains specific provisions relevant to non-citizens in relation to whom a protection finding has been made (paragraph 9.1.1) and to non-citizens in relation to whom no protection finding has been made (paragraph 9.1.2).
Paragraph 9.1.2 provides as follows:
9.1.2 Non-citizens not covered by a protection finding
(1) Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
(2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3) Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
Section 197C provides:
197C Relevance of Australia’s non‑refoulement obligations to removal of unlawful non‑citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
(3) Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non‑citizen to a country if:
(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.
(4) For the purposes of subsection (3), a protection finding is made for a non‑citizen with respect to a country if a record was made in relation to the non‑citizen under section 36A that the Minister is satisfied as mentioned in paragraph 36A(1)(a), (b) or (c) with respect to the country.
(5) For the purposes of subsection (3), a protection findingis also made for a non‑citizen with respect to a country if the Minister was satisfied of any of the following (however expressed and including impliedly):
(a) the non‑citizen satisfied the criterion in paragraph 36(2)(a) with respect to the country and also satisfied the criterion in subsection 36(1C);
(b) the non‑citizen satisfied the criterion in paragraph 36(2)(aa) with respect to the country;
(c) the non‑citizen:
(i) would have satisfied the criterion in paragraph 36(2)(a) with respect to the country except that subsection 36(3) applied in respect of the non‑citizen; and
(ii) satisfied the criterion in subsection 36(1C);
(d) the non‑citizen:
(i) satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and
(ii) would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non‑citizen was a non‑citizen mentioned in paragraph 36(2)(a);
(e) the non‑citizen:
(i) satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and
(ii) would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non‑citizen was a non‑citizen mentioned in paragraph 36(2)(a) and subsection 36(2C) or (3) applied in respect of the non‑citizen;
(f) the non‑citizen would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that subsection 36(2C) or (3) applied in respect of the non‑citizen.
(6) For the purposes of subsection (3), a protection findingis also made for a non‑citizen with respect to a country if:
(a) the Minister was satisfied (however expressed and including impliedly) that, because subsection 36(4), (5) or (5A) applied to the non‑citizen in relation to the country, subsection 36(3) did not apply in relation to the country; and
(b) a protection finding within the meaning of subsection (4) or (5) was made for the non‑citizen with respect to another country.
(7) For the purposes of subsection (3), a protection finding is also made for a non‑citizen with respect to a country in circumstances prescribed by the regulations.
…
There has not been a ‘protection finding’ made in relation to the Applicant as contemplated by subsection 197C(4)-(7) of the Act. Accordingly, paragraph 9.1.2 of the Direction is relevant to the Applicant’s circumstances.
If the Tribunal decides not to revoke the Mandatory Visa Cancellation Decision under section 501CA, the Applicant will be prevented by section 501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa (as prescribed by regulation 2.12A of the Migration Regulations 1994 (Cth)). The Applicant claims that if he is returned to Vietnam, he will not be able to practise his religion because Islam is ‘illegal’ in that country, however he has not raised any non-refoulement claims.
Guided by paragraph 9.1(1) of the Direction, the Tribunal has had regard to sections 189 and 198 of the Act and finds that a legal consequence of a decision not to revoke the Mandatory Visa Cancellation Decision is that the Applicant will be an unlawful non-citizen and subject to immigration detention pending his removal to Vietnam.
In circumstances where the Applicant is not the subject of a protection finding and has not raised any non-refoulement claims, the Tribunal finds that Other consideration a) does not support the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
b)Extent of impediments if removed
Paragraph 9.2 of the Direction provides:
1)    Decision-makers must 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 (in the context of what is generally available to other citizens of that country), taking into account:
a)    the non-citizen's age and health;[109]
b)    whether there are substantial language or cultural barriers; and
c)    any social, medical and/or economic support available to them in that country
[109] The word “health” in paragraph 9.2(1) of the Direction is understood to mean any aspect of a person’s physical wellbeing and includes “the overall state of a person’s fitness and condition, including underlying health issues and ongoing effects of any past injury: Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126 at [12].
Having regard to the factors in paragraph 9.2(1)(a) and (c) of the Direction, the evidence before the Tribunal is that the Applicant is aged 28 years and has good physical health but has been diagnosed with PTSD, anxiety, and depression. As a Vietnamese citizen, the Applicant will have access to the health care system in Vietnam, however it is reportedly not of the same standard or as readily accessible as that in Australia. The DFAT Country Information Report on Vietnam dated January 2022 (‘DFAT Report’) notes that the quality of healthcare in Vietnam ‘varies from place to place, and some centres are poorly funded and ill-equipped’.[110]
[110] DFAT Country Information Report Vietnam, 11 January 2022 [2.14].
Relevantly to the factors in paragraph 9.2(1)(b) of the Direction, the evidence is that the Applicant primarily lived in Vietnam for the first 20 years of his life, and accordingly he will not face any significant social or cultural barriers if he is returned. The Applicant has numerous family members in Vietnam, including his father and three adult siblings, and he will have practical and emotional support from them upon his return, including assistance in finding paid employment.
Guided by the factors in paragraph 9.2 of the Direction and for the reasons stated, the Tribunal finds that Other consideration b) does not support the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
c)Impact on victims
The Direction states in paragraph 9.3(1):
(1) Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before the Tribunal in relation to the impact on the Applicant’s victims of a decision not to revoke the Mandatory Visa Cancellation Decision. The Tribunal has therefore given Other consideration c) neutral weight.
d)Impact on Australian business interests
Paragraph 9.4(1) of the Direction provides:
(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.
The Applicant does not claim that any Australian business interests would be affected by his removal to Vietnam. Accordingly, the Tribunal has given Other consideration d) neutral weight.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration 1 weighs against revocation of the Mandatory Visa Cancellation Decision. The Applicant’s criminal offending is serious, as it involved the supply of a commercial quantity of prohibited drugs. The low to moderate risk of him committing further criminal offences, coupled with the nature and seriousness of the harm this would cause to his future victims and the community, is such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 3 weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision as the Applicant has lived in Australia for short periods of time and he has ties to HMB and AMT who are Australian citizens and reside in Australia, who will likely be emotionally impacted by his removal to Vietnam.
Primary Consideration 4 weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision as it is in the best interests of AMT for the Applicant to be permitted to remain in Australia so that he can be physically present in her life and contribute to her upbringing in the years until she reaches adulthood.
Primary Consideration 5 weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that the Applicant’s serious offending should cause him to forfeit the privilege of remaining permanently in Australia,
In regard to the relevant Other Considerations, the legal consequence of a decision not to revoke the cancellation, namely that the Applicant will be an unlawful non-citizen liable to removal as soon as reasonably practicable to Vietnam, and the limited impediments he will face on return, do not support the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
The Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked and decides that the Reviewable Decision should be affirmed.
DECISION
The Tribunal affirms the Reviewable Decision dated 23 February 2024 to refuse to revoke the Mandatory Visa Cancellation Decision.

I certify that the preceding 146 (one hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk

...................................[Sgd].....................................
Associate
Dated: 8 July 2024

Date(s) of hearing:

8 May 2024

Date final submissions received:

10 May 2024

Advocate for the Applicant:

Mr R. Turner

Solicitors for the Applicant:

Ray Turner Immigration Lawyers

Advocate for the Respondent:

Mr M. Burnham

Solicitors for the Respondent:

Sparke Helmore Lawyers

Date(s) of hearing:	8 May 2024
Date final submissions received:	10 May 2024
Advocate for the Applicant:	Mr R. Turner
Solicitors for the Applicant:	Ray Turner Immigration Lawyers
Advocate for the Respondent:	Mr M. Burnham
Solicitors for the Respondent:	Sparke Helmore Lawyers