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

Chu and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 99 (17 February 2025)
Applicant:Quang Linh Chu
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/9915

Tribunal:Senior Member A. Nikolic
Place:Melbourne
Date:17 February 2025

Decision:The Tribunal affirms the decision under review.

...................[SGD].....................................................
Senior Member A. Nikolic
Catchwords
MIGRATION – mandatory visa cancellation – citizen of Vietnam – Class WC (Subclass 030) Bridging C Visa – cultivate commercial quantity of narcotic plant – 20 months’ imprisonment – substantial criminal record – where Applicant does not pass the character test – non-revocation decision – protection visa application refused in 2020 – whether another reason to revoke visa cancellation – Ministerial Direction no. 110 applied – decision affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Regulations 1994 (Cth)
Cases
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Brownlie v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 436
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416
CTK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211
DOB18 v Minister for Home Affairs [2018] FCA 1523
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCATrans 056
Hughes v The Queen (2017) 263 CLR 338
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Matthews v Minister for Home Affairs [2020] FCAFC 146
Maxwell v R (1996)184 CLR 501
McKay v R [2000] FCA 155
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 (2021) 285 FCR 540
Minister for Immigration and Citizenship v Obele [2010] FCA 1445
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Murphy v Minister for Home Affairs [2018] FCA 1924
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 365
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582
Spruill v Minister for Immigration and Citizenship [2012] FCA 1401
Sundrampillai v Minister for Immigration, Local Government and Ethnic Affairs (1992) 29 ALD 479
Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
YKSB v Minister for Home Affairs [2020] FCAFC 224
Secondary Materials
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (together ‘the Refugee Convention’).
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’)
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (‘CAT’)
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)
Sentencing Advisory Council (Vic), ‘Imprisonment’ (Web Page, updated 7 May 2024) align="center">Statement of Reasons
INTRODUCTION

The Applicant is a 52-year-old citizen of Vietnam[1] who is currently in immigration detention.[2] He has asked the Tribunal to review the Respondent’s decision not to revoke the mandatory cancellation of his Class WC (Subclass 030) Bridging C Visa (BVC).[3] The decision to cancel the BVC was made on 8 May 2024,[4] about a month after the Applicant was convicted for cultivating a commercial quantity of cannabis.[5]
[1] Exhibit R1, 90, 270.
[2] Ibid 4.
[3] Ibid 12.
[4] Ibid 208-215.
[5] Ibid 36-47.
Between May and October 2024, the Applicant made representations to have the visa cancellation decision revoked.[6] On 26 November 2024, a delegate of the Respondent declined to do so (non-revocation decision).[7]
[6] Ibid 50-206.
[7] Ibid 15.
The hearing was held in the Tribunal’s Melbourne Registry on 5 and 6 February 2025. The Applicant was represented by Mr Stephen John from ASM Migration Services. The Respondent was represented by Mr Ben Nam from Clayton Utz.
For the following reasons the Tribunal affirms the reviewable decision.
LEGISLATIVE FRAMEWORK
Section 13 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) and s 500(1)(ba) of the Migration Act 1958 (Cth) (the Act) are the sources of the Tribunal’s jurisdiction to hear this review application.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), requires the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and a person does not pass it if they have a ‘substantial criminal record’ as defined by s 501(7). This includes if they have been sentenced to a term of imprisonment of 12 months or more.
Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and invite the affected person to make representations about revocation. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act confers a discretionary power on the Minister to revoke the original decision if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person either passes the character test, or there is another reason why the original decision should be revoked.
Sections 49-50 of the ART Act provide that the procedure of the Tribunal is within the discretion of the Tribunal, which must act with as little formality and technicality as a proper consideration of the matters before it permits. Section 52 of the ART Act states that the Tribunal ‘is not bound by the rules of evidence but may inform itself on any matter in such manner as it considers appropriate’.
The Tribunal must decide this application within 84 days of the Applicant being properly notified of the non-revocation decision,[8] which is by 18 February 2025, or seven working days after the hearing concludes.
[8] Pursuant to s 500(6L) of the Act.
ISSUE
The Applicant’s sentence to a term of imprisonment exceeding 12 months means he has a substantial criminal record and does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision. The remaining issue under s 501CA(4)(b)(ii) of the Act is whether there is ‘another reason’ for revocation based on the case advanced by the Applicant and his representative. The Tribunal is required to read, identify, understand and evaluate the Applicant’s clearly articulated representations or those obviously arising from the evidence.[9]
[9] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (‘Plaintiff M1/2021’), [22]; [25]; [27]; [36] (Kiefel CJ, Keane, Gordon, and Steward JJ).
DIRECTION 110
In making its decision, the Tribunal must comply with a ministerial direction under s 499(1) of the Act, known as ‘Ministerial Direction 110’ (‘the Direction’).[10] The Direction contains ‘mandatory and aspirational considerations’ guiding the exercise of statutory power.[11]
[10] The Act, s 499(2A); CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416, 417–8 [4] (Rares, O’Callaghan and Jackson JJ); Direction No. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (commenced 21 June 2024) (the Direction).
[11] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, [45].
Clause 5.1(1) of the Direction sets out several objectives, the first of which is to ‘… regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’.
The following principles at cl 5.2 of the Direction provide a framework within which decision‑makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measureable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the
non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the
non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision‑maker must have regard to primary and other considerations where relevant to the decision.
Clause 8 of the Direction identifies the following primary considerations:
(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.
Clause 9(1) of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed; and
(c)Impact on Australian business interests.
Clause 7(1) provides that when applying primary and other considerations, appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that ‘Protection of the Australian community’ is ‘generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.’
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’.
The weight given to an Applicant’s claims and the individual and cumulative weighing process is a matter for individual decision-makers.[12]
EVIDENCE
[12] Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160, [23] (Perram, Colvin and Abraham JJ); Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582, [23] (Mortimer J, as Her Honour then was).
Statement of Facts, Issues, and Contentions
A Statement of Facts, Issues, and Contentions (‘SFIC’)[13] is routinely lodged by parties during the pre-hearing phase. The Tribunal has considered the Applicant’s SFIC dated 10 January 2025 and the Respondent’s SFIC dated 24 January 2025.
[13] A SFIC is routinely lodged by parties during the pre-hearing phase and is comparable to a pleadings document in a court proceeding. It serves to identify / narrow the issues in dispute and helps ensure both sides are aware of and have an opportunity to answer each other’s case.
Documentary evidence
Documents were tendered into evidence during the hearing as follows:
(a)Documents filed by the Respondent numbering 281 pages;[14]
(b)Supplementary documents filed by the Respondent numbering 11 pages;[15]
(c)Tribunal decision dated 15 January 2025 affirming the Respondent’s rejection of the Applicant’s 2020 Protection Visa application;[16] and
(d)Journal article filed by the Applicant titled: ‘The Psychosocial Impact of Detention and Deportation on U.S. Migrant Children and Families’.[17]
[14] Exhibit R1.
[15] Exhibit R2.
[16] Exhibit R3.
[17] Exhibit A1.
Oral testimony
The Applicant and his wife, who the Tribunal will refer to as ‘Ms AA’, gave oral testimony with the assistance of an interpreter in the Vietnamese language. The Applicant’s two adult stepchildren and consultant psychologist Mr Tim Watson-Munro were also called as witnesses. Mr John confirmed, in response to a question from the Tribunal, that he had discussed the Applicant’s privilege against self-incrimination with him.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
(1)   When considering protection of the Australian community, decision-makers should keep in mind that safety of the Australian community is the highest priority of the Australian Government. To that end, 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.
Under cl 8.1.1(1) of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(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 and/or sexual 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 impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has reoffended 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).
(i)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Tribunal consideration: The nature and seriousness of the conduct

The Applicant does not dispute his criminal history as set out in a report from the Australian Criminal Intelligence Commission.[18] He was legally represented when pleading guilty to cultivating a commercial quantity of cannabis.[19] The facts on which his sentence was based were ‘canvassed extensively’ at a sentence indication hearing on 18 December 2023.[20] The Court noted his plea was ‘belated’.[21] The Court held that the Applicant played an active role in two episodes of cultivation amounting to 82.7 kg of cannabis.[22] The Court also found that dealing in such large quantities of illicit drugs can result in considerable profits, which requires a significant term of imprisonment to deter others.[23]
[18] Exhibit R1, 35-36, 91 [Second paragraph].
[19] Ibid 37.
[20] Ibid 38 [5].
[21] Ibid 42 [26].
[22] Ibid, 40 [16], 41 [18]-[19], [20].
[23] Ibid 44 [40].
In oral testimony the Applicant said friends he trusted involved him in the cannabis enterprise by promising ‘a lot of good things’ which ‘excited’ him. He referred to ‘contacts’ and future ‘work opportunities’. The Applicant claimed:
(a)Prior to involvement in this crime he made up to $5,000 monthly as a handyman and only $400 in total from the cannabis enterprise. This consisted of two $200 payments for transporting plants: ‘I told police and my lawyer I only transported the cannabis and don’t know why the judge found I cultivated’. During questioning by Mr John during re-examination, however, the Applicant accepted he ‘did something illegal’ and now understands ‘transporting is part of the whole process’.
(b)The Applicant claimed he was ‘totally unaware’ of the activities of co-offenders.
(c)The Applicant claimed he did not initially realise his involvement was illegal and ‘stopped doing it straight away’ when realising it was. When asked to elaborate upon when this occurred, he said it was when police raided the grow house. This conflicted with his later evidence when he said he was aware his involvement was illegal but ‘agreed to do it … for a short time … because [he] was desperate for money’. The Tribunal considers this aspect of his evidence sits uneasily with the claim that he only earned $400 in total from the cannabis enterprise whereas prior to that he earned up to $5,000 a month as a handyman.
(d)The Applicant distinguished between growing and transporting cannabis, insisting he just did the latter. He initially claimed not to have watered any plants before changing his evidence to say he did so ‘one time’ but was only present in the grow house ‘for one hour’. When challenged that electronic surveillance had recorded his active involvement in cultivation,[24] the Applicant responded: ‘my duty was only transporting but later on I realised this is a growing cannabis business’. The Applicant was asked about the Court’s reference to a recorded conversation he had with a co-offender in October 2019 as follows:
16. There are two episodes of offending…The first is best summarised by reference to a telephone call between Minh Pham and Linh Chu on 8 October 2019. In that call Minh Pham asks Mr Chu if everything is okay. Mr Chu responds that 'It's done but what is the temperature?' At Minh Pham's side 'temperature' was a code for 'price.' Minh Pham said that 'It wasn't done yet' and Mr Chu stated that 'It is now done so that Mr Pham should ring to find out what the temperature', that is the price, will be.' Minh Pham asked, 'How much is it all up, is it all okay now?' to which Mr Chu responded, 'He has not weighed it but will do so after bagging. It is not quite 60 pieces.'
17. '60 pieces', it is accepted for the purposes of these proceedings was code for 'pounds', meaning 60 pounds or the equivalent thereof, being approximately 27 kg of cannabis.[25]
(e)The Applicant claimed his reference to ‘it’s done’ in the conversation above only related to handyman work at the co-offender’s house and not to cannabis. When challenged that the Court found this conversation was about the price and weight of cannabis, the Applicant claimed his comments were ‘hard to interpret’ but insisted it was about fixing a house. When asked if the reference to ‘60 pieces’ related to cannabis, the Applicant responded: ‘Yes I think so’.
(f)The Applicant agreed he was legally represented at his criminal proceeding. He claimed, however, that he was ‘pressured’ to plead guilty to cultivation. He said the case ‘was dragging on too long’ and police told him he ‘could get bail and mitigation’ by pleading guilty.
[24] Ibid 41 [19]
[25] Ibid 40 [16].
The Applicant was sentenced to 20 months’ imprisonment with a non-parole period of 12 months.[26] He concedes his crime was ‘serious and harmful’ to the community,[27] but refers to his sentence being ‘well short of the maximum penalty of life imprisonment’[28] and less than his two co-offenders received.[29]
[26] Ibid 46 [53].
[27] ASFIC, 4 [5].
[28] Exhibit R1, 92 [2(a)].
[29] ASFIC, 4 [6].
In addition to the Applicant’s criminal history, ‘other conduct to date’ may be relevant to the Tribunal’s consideration, despite not leading to charges or convictions.[30] The Applicant first came to Australia in June 2018 on a Visitor Visa, which does not bestow work rights. In oral testimony, and after the Tribunal confirmed with Mr John that he had discussed the Applicant’s privilege against self-incrimination with him, the Applicant said he worked on a farm and as a handyman earning up to $5,000 monthly in cash without declaring this income or paying tax. He knew this breached his visa conditions but claimed he did so because of ‘survival’. He also stated during cross-examination that while on bail prior to sentencing for the cultivation offence he did handyman work for friends who paid him. During re-examination, however, he changed this evidence by claiming ‘it wasn’t work for money – I just helped my friends’.
[30] Pursuant to cl 8.1.1(1) of the Direction.
The Respondent contends the Applicant’s offending is serious, but concedes it is not frequent, repeated, or increasingly serious.[31]
[31] RSFIC, 7 [29.(b)-(c)].
Tribunal findings: The nature and seriousness of the conduct
Clause 8.1.1(1) of the Direction does not limit the range of conduct that may be considered very serious or serious. Findings about this turn on the specific circumstances of each case.[32] The Applicant’s conduct is serious because:
(a)He cultivated three times the commercial quantity of cannabis. This could have caused harm to the community and reflects a disregard for Australian law and community interests. Where aspects of the Applicant’s evidence are inconsistent with the sentencing remarks, the Tribunal prefers the latter. Aspects of his evidence, such as the purported meaning of a conversation with a co-offender, were unpersuasive. The Tribunal accepts electronic surveillance showed the Applicant was ‘actively involved in cannabis cultivation’.[33] He was legally represented[34] and it is impermissible to impugn the essential basis of a conviction.[35] His plea of guilty constitutes admission to and acceptance of all elements of his offence.[36]
(b)Custodial dispositions are a last resort and the most severe sanction available.[37] A 20‑month sentence for a first-time offender is considerable, regardless of where it sits in the context of a statutory maximum or by comparison with co-offenders.
(c)The Applicant’s offending is not frequent, but it was also not isolated, impulsive, brief, nor the product of immaturity. He was in his late 40s and could have ceased offending after the first episode of cultivation but did not. Had the police not acted, there is no evidence the Applicant would have ended his involvement.
(d)In terms of other conduct, based on the Applicant’s evidence after being informed about his privilege against self‑incrimination, the Tribunal is satisfied he engaged in work for cash payments soon after arriving in Australia without declaring this income or paying tax. This is despite knowing employment was prohibited by his visa.
[32] McKay v R [2000] FCA 155, [14] (Spender J).
[33] Exhibit R1, 41 [19].
[34] Ibid 37.
[35] Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354, 358; Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 244–245 [45]-[46]; HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, [95] (Bromberg J).
[36] Maxwell v R (1996) 184 CLR 501, 510.
[37] See for example: Sentencing Advisory Council (Vic), ‘Imprisonment’ (Web Page, updated 7 May 2024) <
The Applicant’s criminal conviction is serious. His visa misconduct only adds to this, but the totality of his offending and other conduct does not rise to the level of ‘very serious’.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction provides:
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.
Clause 8.1.2(2) of the Direction states that in assessing the risk the non-citizen poses to the Australian community, decision-makers must take into account, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the noncitizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(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.
Authorities
This aspect of the Direction requires an assessment of the risk an applicant poses to the community should they reoffend, taking into consideration the nature of any harm and its probability. Justice Kerr has referred to this as a ‘future-focused assessment’[38] where evidence of past offending ‘is not, of itself, significantly probative’ of the committing of another offence.[39]
[38] CTK17 v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211 [90] (Kerr J). See also Minister for Immigration and Citizenship v Obele [2010] FCA 1445, [59] (Katzmann J); Murphy v Minister for Home Affairs [2018] FCA 1924, [37] (Mortimer J); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 (2021) 285 FCR 540, 561 [81]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, [63].
[39] Hughes v The Queen (2017) 263 CLR 338, 392 [154] (Nettle J).
In Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595, Mortimer J, as Her Honour then was, reasoned at [78] that:
… [t]he nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.
In Guo,[40] the High Court held that past actions can be legitimate predictors of future behaviour. The majority observed, however, that past events ‘are not a certain guide’ and, depending on circumstances, the probability of an event occurring could be so low as to be ‘safely disregarded’, or at the other extreme ‘may border on certainty’.[41] The majority also observed there are several factors arising in making such evaluations, and that it is ‘ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events’.[42]
[40] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574 (‘Guo’).
[41] Ibid 574-5.
[42] Ibid 575.
Motivation
The Applicant concedes his crime was ‘… harmful for the community’.[43] He contextualises his conduct as helping trusted friends[44] and invokes financial pressures from a bank debt in Vietnam and another debt to ‘gangs’.[45] He claims to have evaded these by working overseas in Japan and Korea until 2017. He claims the bank in Vietnam is waiting to have him arrested and the gang will come looking for him.[46] The Applicant also referred to loans of around AUD1,000-2,000 from friends in Vietnam. No corroboration of these Vietnamese debts is provided, such as financial documents or statements. In addition to the Vietnamese debts, the Applicant has claimed he and Ms AA have debts in Australia:
… in 2022, we tried to borrow money from friends and banks to buy a house, so that our children would have a house to live in. If I am to be deported back to Viet Nam, there will be no one to support and help my wife and children, my wife and children do not have money to pay, the bank will confiscate the house and the children will not have a house to live in, their spirit of studying will be severely affected, and at that time, we do not know what will happen next.[47]
[43] ASFIC, 4 [5].
[44] Exhibit R1, 75 (first paragraph).
[45] Ibid 74; 98 [36].
[46] Ibid 70, 74.
[47] Ibid 76.
In oral testimony the Applicant claimed he borrowed $15,000 and Ms AA borrowed $40,000 from friends in Australia. He also claimed Ms AA and her eldest daughter have taken out a $500,000 home mortgage from an Australian bank. Again, there is little independent corroboration of these claims.
The Applicant agreed he was previously desperate for money but claimed he now only needs ‘enough to take care of [him]self and [his] family’. He has promised Ms AA he will not reoffend and is confident about handling future financial pressures by working as a handyman or starting his own business.
Remorse and rehabilitation
The Applicant submitted that his plea of guilty is a ‘testament’ to his ‘genuine remorse’.[48] In oral evidence, however, he claimed to have been pressured to plead guilty and initially stated he does not know why the Court found him guilty of cultivation because his involvement in the cannabis enterprise centred on transporting plants.
[48] Ibid 93 [9].
The Court assessed the Applicant’s rehabilitative prospects as ‘reasonable’.[49] He submitted that his conduct during a period of bail from 30 August 2021 until sentencing in 2024 reflects an intention to lead a law-abiding life.[50] In documentary evidence the Applicant responded ‘N/A’ to a question that asked about courses or programs undertaken to help avoid reoffending.[51] When asked during the hearing if he has any rehabilitative needs the Applicant was unable to identify any. In oral testimony the Applicant said he asked for assistance with insomnia three times while in custody but has not sought rehabilitation or other support.
[49] Ibid 44 [38].
[50] Ibid 92; ASFIC, 3.(d).
[51] Exhibit R1, 68.
Evidence about rehabilitation and risk is available in a report dated 20 September 2024 by consultant psychologist Mr Tim Watson-Munro.[52] This was commissioned by the Applicant’s lawyer. Mr Watson-Munro gave oral testimony, which is summarised as follows:
[52] Ibid 118-132.
(a)Mr Watson-Munro assessed the Applicant via a telehealth consultation and was assisted by an interpreter. No psychometric testing was undertaken because the accuracy of results could be impaired if undertaken through an interpreter. Mr Watson‑Munro also spoke with Ms AA on 24 July 2024.
(b)Mr Watson-Munro assessed the Applicant’s presentation as ‘psychologically troubled’ and reflective of ‘unresolved psychological symptoms referable to depression and anxiety, arising from him being in significant debt to people … making threats against him’.[53] Mr Watson-Munro stated in oral evidence, however, that he did not ‘formally diagnose him with a depressive disorder’.
[53] Ibid 124.
(c)Mr Watson-Munro opined that the Applicant may have been psychologically vulnerable to adverse peer influence at the time of his offending due to anxiety and adjustment issues. He recorded the Applicant’s claims regarding debt and motivation for his offending as follows:
Mr Chu … reported high levels of depression and anxiety over the years, arising from significant debts, which accumulated to approximately $100,000 over a 10 year period. He stated that his life was in danger and although his creditors were evidently offshore, there was nonetheless pressure for him to repay the money. Attendant to this, he fears that if he is deported to Vietnam, his life will once again be in danger.
Mr Chu stated that his financial position was further compromised by his self-employment failing. To this end, he borrowed money to keep afloat but nonetheless, appears to have been drowning in debt. It was in this context that he became involved in his index offending. Mr Chu that when in Vietnam he was facing the prospect of bankruptcy, in addition to experiencing constant anxiety and fear referable to his safety because of the money which he owed.
…
Mr Chu stated that as a consequence of his deteriorating financial position, his debt escalated and consequently, it would appear that a vicious cycle was developing referable to his anxiety and depression impacting upon his mood, leading to a state of vulnerability, with this dynamic being relevant to his involvement in the index offending. Mr Chu stated that it was because of these dynamics and his belief that there was no other way to pay out his debt that he offended.[54]
(d)Mr Watson-Munro said the Applicant only told him about a AUD100,000 debt in Vietnam following the collapse of a roof tiling business and ‘escalating pressures to pay from 2012 until 2014’. He said the Applicant did not mention a bank debt in Vietnam, nor that he and his wife borrowed about $500,000 from an Australian bank to purchase a home.
(e)When referred to aspects of the Applicant’s evidence that conflicted with the Court’s sentencing remarks, Mr Watson-Munro said this could reflect ‘limited insight and obfuscation’. Mr Watson-Munro said he was unaware the Applicant’s past employment in Australia breached his Visitor Visa conditions.
(f)The Applicant has not yet undertaken any treatment, which Mr Watson-Munro said requires the following:
In terms of treatment considerations, I believe that Mr Chu would benefit from a combination of Cognitive Behaviour Therapy (CBT) and supportive and motivational psychotherapy. The CBT will assist him in terms of providing him with skills to effectively deal with his anxiety and to improve upon his low self-esteem. He would also benefit from supportive and motivational psychotherapy to deal with his depression and anxiety. Clearly, if he is not permitted to remain in Australia, there will be a significant escalation in his symptomology.[55]
(g)Mr Watson-Munro considers the Applicant would benefit from treatment and noted his willingness to do so if permitted to remain in Australia. Mr Watson‑Munro affirmed his assessment that ‘with continuing support, supervision and treatment and a maintenance of the protective factors …, the risk of Mr Chu reoffending is now trending towards low’. During cross-examination Mr Watson‑Munro said he could not assess the Applicant’s risk as low and thought it was ‘somewhere between moderate and low’. Mr Watson-Munro believes the Applicant has better insight because of the salutary effects of arrest, imprisonment, and reduced vulnerability to adverse peers because of the protective effect of his marriage.
[54] Ibid 121-122, 125 [3].
[55] Ibid 126 [6].
Protective factors

In terms of protective factors, the Applicant wants to assist Ms AA in expanding her business, returning to work as a handyman, or opening his own business.[56] He also relies on continuing support from Ms AA and her children. Mr John emphasised that the Applicant’s situation is now contextually different to when he offended because he was then newly arrived and alone in a new country. He said the Applicant has learned a salutary lesson from time in custody and is incentivised by the prospect of a new life in Australia. Mr John said at 52 years of age and after two previous failed relationships, this incentive only adds to the Applicant’s commitment to lead a law-abiding life.
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[56] Ibid 62.
Harm
The Applicant has undermined Australian laws relating to illicit drug production by cultivating more than three times what was then a commercial quantity of cannabis. Although police ended the illicit drug enterprise it had the potential to cause significant harm. This includes physical and/or psychological harm to users of illicit drugs. Cannabis has addictive properties and can be a pathway to harder drugs.[57] Families and broader society bear these costs, which include harm resulting from addiction, the nexus between addiction and other crimes,[58] and involvement of police, courts, and the broader law enforcement network.
[57] Australian Institute of Health and Welfare 'Alcohol, tobacco & other drugs in Australia, Cannabis’ - (Web page) < align="left">[58] Exhibit R2, 4.

Insight, remorse and rehabilitation

The Applicant claimed in a statement dated 11 September 2024 that while doing handyman work, he was asked ‘one night … to drive a van that contained marijuana’, that police followed him, ‘raided the house … the landlord said [he] rented … to store cannabis’, and ‘accused [him] of growing cannabis’.[59] This is an incomplete account of his involvement. Aspects of his evidence about the cannabis enterprise came across as self-serving, unpersuasive, and cut across his claims about insight and contrition. This includes that he helped friends who abused his trust, saw no way out of his debts other than committing crime, only received $400 in total from two episodes of transporting cannabis, was ‘totally unaware’ of his co‑offender’s activities, and was pressured to plead guilty.

[59] Exhibit R1, 74.

The Applicant was raised in reasonably stable circumstances in Vietnam, completed secondary school, and qualified as a welder and electrician.[60] This enabled him to find employment in Vietnam, Japan, and Korea. It is concerning that instead of addressing financial pressures through employment, he instead participated in a drug enterprise soon after arrival in Australia as purportedly the only way ‘to pay out his debt’.[61]

[60] Ibid 44 [35].

[61] Ibid 125 [3].

The Applicant is yet to undertake Mr Watson-Munro’s treatment recommendations.[62] Given his longstanding financial problems, the Tribunal considers he also has a compelling need for rehabilitation relevant to managing financial stressors. That said, decisions should not be delayed for rehabilitation to be completed.[63]

[62] Ibid.

[63] The Direction, cl 8.1.2(2)(b)(ii).

Risk

The Tribunal accepts Mr Watson-Munro’s conditional assessment about the Applicant’s recidivism risk. There is little apparent change, however, in respect of the decade-long debts he has incurred. He appears to have only added to financial pressures while living in Australia. The Applicant’s conduct while under ‘strict conditions’[64] of bail is noted but this is a contextually different situation to when committing his crime or that is likely to confront him after an extended period in custody. There is little persuasive evidence about how the Applicant might alleviate financial pressures as an incentive for future offending.

[64] Exhibit R1, 44 [38].

Consistent with Mr Watson-Munro’s assessment, the Applicant’s recidivism risk is somewhere between moderate to low. When the serious nature of his crime is coupled with a moderate to low recidivism risk, which may cause serious harm to the community, this primary consideration weighs substantially against revocation.

Family violence committed by the non-citizen

There is no evidence regarding family violence within the meaning of the Direction. This primary consideration therefore carries neutral weight.

The strength, nature, and duration of ties to Australia

Clause 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)   Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)    how long the non-citizen has resided in Australia, including whether the non‑citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community

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

Tribunal consideration: Strength, nature, and duration of ties in Australia

The Applicant arrived in Australia in June 2018 at the age of 45 and has lived here for approximately six and a half years. His involvement in the cannabis enterprise occurred in October 2019, relatively soon after arrival. He has spent most of his residence in Australia working illegally, on remand, bail, or in custodial settings.

Apart from Ms AA and her children, the Applicant has no other relatives in Australia.[65] After spending about a year on remand following his arrest, he started dating Ms AA in 2022[66] while on bail. Ms AA’s evidence is she was aware of the Applicant’s offending, bail status, and yet to be finalised criminal matter when their relationship began. Ms AA purchased a house with her eldest daughter in 2022 before the Applicant commenced living with her in early 2023 and their marriage in early 2024.[67] Their marriage occurred just prior to the Applicant’s sentencing on 5 April 2024 and with full knowledge of the uncertainties then confronting him. The Applicant has stated that if allowed to remain in Australia he will be a good citizen, ‘open a business and pay taxes to the government to contribute to the country's economic development’.[68]

[65] Ibid 67.

[66] Ibid 62; 102.

[67] Ibid133.

[68] Ibid 76 (last paragraph).

Ms AA runs a small business by herself [69] and has three children from a former relationship. Two of the children are now adults and the youngest turns 17 in March 2025. The oldest child was born in Vietnam and two younger children were born in Australia.[70] Ms AA and her children are Australian citizens.[71] Ms AA submitted that the Applicant’s imprisonment has affected her ‘mental health significantly’[72] although there is no expert diagnosis regarding any condition she suffers. Supportive statements from Ms AA and the three children refer fondly to time they spent with the Applicant while he was on bail, subsequent custodial visits, and regular telephone conversations.[73] The Applicant aspires to help Ms AA expand her business[74] and to start a business of his own.[75] He worries about Ms AA’s mental health, ability to run her business, and to pay the mortgage if he is removed.[76] He is also concerned she and the children will lose the future benefit of his support. The Applicant claims to have made some financial contribution to Ms AA, but his involvement centres predominantly on practical tasks such as ‘fixing things’, helping around the house, and ‘transporting children’. He claimed that ‘about two months’ prior to imprisonment he received ‘help’ from unnamed friends that enabled him to pay ‘a little bit towards [Ms AA’s] mortgage’. There is no independent corroboration of this. The Applicant said Ms AA owes around $500,000 on her mortgage, has successfully sought a reduction in her bank interest from 8.6% to 6.1% in the past, recently changed to a different bank, and has managed to pay down approximately $27,000 of the mortgage principal since 2022. This casts doubt on his claim that Ms AA does not have money to pay for the mortgage in his absence.[77]

[69] Ibid 139.

[70] Ibid 109-113,116.

[71] Ibid 111.

[72] Ibid 100 [ix].

[73] Ibid 99-117.

[74] Ibid 62.

[75] Ibid 76 (final paragraph).

[76] Ibid 76; 119.

[77] Ibid 76 (second paragraph).

Ms AA gave oral testimony with the assistance of an interpreter in the Vietnamese language. She adopted her Statutory Declaration dated 24 May 2023 as true and correct.[78] Ms AA said she loves the Applicant and that he understands her and the children. She said the children listen to him, particularly her son, who is about to commence Year 12 studies. Ms AA said she previously ended an abusive relationship with the children’s biological father, and they have since lacked a father figure. She wants the Applicant to remain in Australia and assume that role. If the Applicant is repatriated to Vietnam, she intends maintaining contact with him electronically and visiting with her children once or twice a year. Ms AA said she could ‘probably not live with him right now’ because of her son’s studies and her business commitments. When asked if this could occur after her son’s studies conclude, Ms AA responded: ‘Definitely. If he has to go back, I will find a way to go to Vietnam with him.’ Ms AA said she may find it difficult to focus on her business if the Applicant is removed. When asked during re-examination if she could afford to close it, Ms AA replied: ‘Yes if we don’t have a strong spirit.’

[78] Ibid 99-100.

Ms AA said she does not financially depend on the Applicant but values his help around the house, which frees her up to focus on her business. Ms AA is confident the Applicant could find work and contribute financially if allowed to remain in Australia. In the meantime, she will support him and has no reason to think he will reoffend. Ms AA said she has a mother and three siblings in Vietnam who she visited most recently in May 2023. She said they could not help the Applicant if he was repatriated because of their own obligations.

Ms AA’s eldest daughter adopted her statement dated 13 October 2024 as true and correct.[79] She is an adult who works and studies. She has previously visited Vietnam to see family members, most recently in 2024, and will have no difficulty staying in touch with the Applicant ‘electronically’ and visiting him if repatriated. Financial considerations may impact how often. She part-owns the house purchased with Ms AA in 2022 and contributes up to $800 fortnightly towards the mortgage. The witness said she is not financially reliant on the Applicant and will continue her contribution to household expenses if he is removed. If he is allowed to remain in Australia, she expects he will be a father figure and role model, particularly for her younger brother.

[79] Ibid 106-107.

Ms AA’s youngest daughter adopted her statement dated 13 October 2024 as true and correct.[80] She is an adult, works part time, and contributes to family expenses. She expects to commence full time work at the end of 2025. The witness can stay in touch with the Applicant ‘electronically’ but feels visiting may be difficult due to cost. The witness said she is not financially reliant on the Applicant, but he helps around the house and makes them feel like a family. They will continue to support him if he can remain in Australia. The witness said she has monthly contact with her biological father who provides ‘pocket money’, but the Tribunal inferred from her evidence that this contact is not substantial.

[80] Ibid 115.

The Applicant claimed during oral testimony he has ‘a lot of good friends’ in Australia. When asked why there were no statements from them, he responded: ‘I didn’t think about it.’ He claims to have become acquainted with these friends through his association with Ms AA.

Mr Watson-Munro noted from his consultation with Ms AA that she came to Australia in 2002 with her former husband, who she divorced in 2007.[81] Her mother and two siblings still live in Vietnam. Mr Watson-Munro stated the following about Ms AA’s circumstances:[82]

She reported that she has suffered significant depression for some period of time, which is reflected in sleep disturbance, anhedonia, a sense of pessimism and low self-esteem. She is worried about the future and the impact upon her and the family should Mr Chu be required to leave Australia.
[Ms AA] stated that she remains highly supportive of her husband. She attempts to visit him on a weekly basis but currently this is generally on a fortnightly basis. She reported that she is immersed in her business and that her capacity to focus on self-employment to an extent has been impacted by her mood state.
[Ms AA] stated that she is an Australian citizen and she would not be able to return to Vietnam, in the context of her strong ties to the Australian community, in addition to having three children here, including two adult daughters and a son who is at school.
[Ms AA] evidently has had no treatment for her depression. Inevitably, there will be a further escalation in the intensity of her symptoms should Mr Chu be deported. She stated that she constantly ruminates about this possibility, which in turn is impacting upon her sleep and her capacity to focus during the day. She stated that her sleep has been assisted to an extent by herbal remedies. She is not however on any psychotropic medication.
…
Opinion:
Discussions with his wife confirm that she would not be able to return to Vietnam, in the setting of her citizenship and her strong ties to the Australian community. Mr Chu is worried about his partner’s mental health and fears that should he be deported, she will suffer a significant escalation in the intensity of her symptoms. She is not currently having treatment but evidently is accessing over the counter herbal remedies to assist with her sleep.
[81] Ibid 123; 99 [2 i, iv].
[82] Ibid 123-124, 126.

Mr Watson-Munro said he has not diagnosed Ms AA with any mental health condition.

In terms of cl 8.3(2)(b) of the Direction, there is no other statement before the Tribunal from prosocial friends, work colleagues, or others the Applicant may have formed a relationship with while living in Australia.

Aboriginality

Even if an applicant makes no submissions about Aboriginality, nor advances any connection to the Australian Aboriginal community, this is no longer the end of the matter. Justice Feutrill held in Brownlie that neither the absence of an express representation nor materials disavowing the relevance of this consideration are determinative.[83] The applicant in Brownlie was born in Wales and expressly stated he did not identify as an Aboriginal or Torres Strait Islander person. No claims about Aboriginality were advanced by the Applicant or his barrister during the hearing. His Honour noted at [80] of Brownlie:
There is no reference to indigenous heritage or identification as Aboriginal person. Indeed, under Citizenship Details ‘No’ is circled in hand writing in response to the question ‘Do you identify as Aboriginal or Torres Strait Islander? Similarly, in the applicant’s application in the Tribunal for review of a decision ‘No’ is written in a box under the question: ‘Are you of Aboriginal or Torres Strait Islander origin?
[83] Brownlie vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 436 (‘Brownlie’).
In quashing the Tribunal’s decision, however, His Honour held that decision-makers are required to search for a connection to Aboriginality that may be ‘unarticulated but manifest from the materials before the Tribunal’.[84] The Tribunal is obliged to follow His Honour’s decision in Brownlie, which requires review of the evidence to identify any conflict between the Applicant’s express non-identification as Aboriginal and contrary unarticulated representations or ‘integers’.[85] His Honour held that failing to do so is sufficiently material to constitute jurisdictional error.
[84] Ibid [101].
[85] Ibid [50], [54], [102].
The Applicant responded ‘No’ to a question asking if he is of Aboriginal or of Torres Strait Islander origin.[86] Neither the Applicant nor his lawyer advanced any Aboriginality claims during the hearing.
[86] Exhibit R1, 3; 59.
Tribunal findings: Strength, nature, and duration of ties in Australia
The Tribunal finds that:
(a)The Applicant aspires to a permanent life in Australia with Ms AA and her children. She does not currently intend accompanying him to Vietnam in the event of a non‑revocation decision because of her family and business interests. This would be an undoubtedly difficult but ultimately personal decision with a significant emotional impact. Ms AA states, however, that she ‘will find a way to go to Vietnam with him’ in future. She has travelled to Vietnam multiple times since 2019[87] and there is no evidence she could not visit the Applicant or live permanently with him overseas. It therefore appears that any impact arising from non‑revocation would be of a temporary nature until Ms AA feels better placed to join the Applicant in Vietnam. This may nevertheless result in adverse emotional and financial effects because of the impact on her life in Australia.
(b)The Tribunal accepts that in the event of non-revocation, Ms AA’s children would likely experience adverse emotional, practical, and perhaps financial effects. Two are already adults and the youngest is approaching adulthood in about a year. The Applicant’s role in their lives has been relatively brief and contextualised by a long period of absence since imprisonment. The statements from the children are general and aspirational in nature. The Tribunal accepts they want the Applicant to stay in Australia, but they are not financially reliant on him and, as adults, could choose to visit or live with him. It is accepted financial constraints may impact how often and communicating by telephone or video calls, as has been the case during much of their relationship, is a poor alternative to continuing contact in Australia.
(c)There is a potential financial effect, albeit speculative, through the lost opportunity for the Applicant to contribute to Ms AA’s household through employment. That said, Ms AA and her children are not currently reliant on this. Ms AA has successfully managed to operate her business and pay her mortgage, which predates her relationship with the Applicant since 2023. It is noteworthy Ms AA was aware of the Applicant’s circumstances when their relationship commenced, and they decided to marry just prior to his sentencing and imprisonment in 2024. She was also aware of his uncertain visa circumstances when deciding in early 2024 to extend the lease on her business premises for a further three years.[88]
(d)The Applicant arrived in Australia on 3 June 2018 when approximately 45 years of age and has not departed. His offending occurred within 16 months of arrival. Less weight is therefore given to this primary consideration.
(e)There are no statements from the friends the Applicant refers to. It is unlikely on current evidence that the effect on any friends rises any higher than sadness.
(f)The Applicant asserts he has been ‘a caring person’ in Australia, by ‘providing selfless care … [as a] … husband and father … [which] … weighs heavily in his favour’.[89] Some weight is placed on his past contribution to Ms AA’s family and perhaps through association with prosocial friends, although his time with Ms AA and her children in the community was limited and evidence about friends is sparse. Little weight is placed on his contribution through employment because it was knowingly undertaken in breach of his visa conditions. His undertaking to open a business and pay taxes if allowed to remain in Australia is aspirational at best.
(g)The Tribunal was unable to identify other integers or references in the materials that may raise an unarticulated case to the effect that the Applicant identifies as an Aboriginal Australian with ties to the Australian Aboriginal community.
[87] Ibid 102-105.
[88] Ibid 140-206.
[89] Ibid 97 [34].

The Applicant’s connection to the Australian community, on current evidence, is not particularly long or strong and is limited to Ms AA and her three children. This consideration weighs no more than moderately at best in favour of revocation.
Best interests of minor children in Australia affected by the decision
Clause 8.4 of the Direction requires decision-makers to determine whether the best interests of minor children in Australia are served by grant or refusal of the visa.[90] It is generally for an Applicant to ‘identify the personal facts and circumstances relevant to the decision’,[91] including the existence of any minor children whose best interests may be affected by the decision. This primary consideration applies only if the child is, or would be, under 18 years old at the time the application is decided. If there are two or more relevant children, the best interests of each affected by the decision should be given individual consideration, to the extent their interests differ. In considering the best interests of the child, the following factors must be considered where relevant:[92]
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.
[90] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [180], citing Spruill v Minister for Immigration and Citizenship [2012] FCA 1401, [18]; RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 365, [44].
[91] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2, [23]; Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203, 221 [61].
[92] The Direction, cl 8.4(4).
Tribunal consideration: Best interests of minor children in Australia
The Applicant invokes the interests of a stepson about to turn 17.[93] He claims to have become a friend, father figure and intends guiding him towards adulthood.[94] They attend the gym together and practise martial arts. His stepson visited him in immigration detention on three occasions and they speak frequently by telephone.
[93] Exhibit R1, 52, 63.
[94] Ibid 64.
The Tribunal has considered a statement from the Applicant’s stepson dated 13 October 2024.[95] The Tribunal has also considered Ms AA’s evidence relating to her son commencing Year 12 in 2025 and that this is a key factor preventing her from immediately accompanying the Applicant to Vietnam if removed.
[95] Ibid 112.
Submissions on behalf of the Applicant invoke principles of family unity found in the United Nations Convention on the Rights of the Child (opened for signature 20 November 1989, 1577 UNTS 3, entered into force 2 September 1990) (the CROC). Australia is a signatory and has agreed to act in a manner consistent with the CROC by recognising the best interests of children in Australia who are under 18 years of age. Reference is made in the Applicant’s documentary submissions to Article 3 of the CROC as follows:
Article 3 of the CROC states:
21. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
22. In the present case, the applicant is a stepfather, but he is very caring and loving stepfather who cater for all the basic needs of the children and provide love, emotional support which is fundamental pillar of children’s growth.
23. The children's best interests would not be served if the applicant were to be removed from Australia. There are no allegations of any family violence towards any member of the family. If the applicant is forced to cease living in Australia, alternative communication methods such as telephone or video calling would not be practical. They have been recognised by the Tribunal as “not [offering] a practical solution that would be in the best interest of the children and their development”.[96]
[96] Ibid 95.
Tribunal findings: Best interests of minor children in Australia
In respect of the Applicant’s references to the CROC, the best interests of the child are already a primary consideration in the Direction consistent with Article 3. The views of the Applicant’s stepson have also been heard, pursuant to Article 12. It is also noteworthy that Australian courts have held that Article 9 ‘does not impinge upon the right of a State to deport the parent of a child’.[97]
[97] Sundrampillai v Minister for Immigration, Local Government and Ethnic Affairs (1992) 29 ALD 479, 485 (French J, as His Honour then was); Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409, 432 (Carr J); Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 288-289 (Mason CJ and Deane J).
The duration of the Applicant’s relationship with his stepson is limited and contextualised by a long period of absence. The Tribunal nevertheless accepts they have formed a close bond, but Ms AA remains the primary caregiver. The Applicant’s desire to play a paternal role is aspirational and comes very late in this child’s development. In important respects, the Applicant has not been an entirely positive role model. He has two failed relationships overseas and does not communicate with these former partners or his two biological children. In Vietnam he borrowed money that has not been repaid. He has made poor choices in Australia in breach of his work conditions and involved himself in a drug crime soon after arriving. For the reasons elaborated upon earlier the Applicant is yet to persuasively ameliorate his recidivism risk. This background raises doubts about the extent to which he can currently play the positive parental role he aspires to.
The Tribunal has considered the article lodged by the Applicant titled: ‘The Psychosocial Impact of Detention and Deportation on U.S. Migrant Children and Families’.[98] No reference was made to it during the hearing. It is also somewhat dated, in an American context, and the examples of family separation resulting from detention and deportation are not comparable to the Applicant’s circumstances. For example, of the children whose interests the Applicant invokes, two are adults and one is a year from adulthood. They have not abruptly lost a caregiver or their home environment. Ms AA and her children were aware of the Applicant’s circumstances when the Applicant commenced living with them in 2023 and when he and Ms AA decided to marry just prior to sentencing. The 17-year-old stepson has completed almost all his childhood without the Applicant in his life. The Tribunal does not accept the children’s sense of security is rooted in his relationship with the Applicant, which is relatively recent, absent financial reliance, and contextualised by long absence.
[98] Kalina Brabeck, Cristina Hunter and M. Brinton Lykes, 'The Psychosocial Impact of Detention and Deportation on U.S. Migrant Children and Families' (2014) 84(5) American Journal of Orthopsychiatry 496‑505.
On balance, revocation is in the best interests of the Applicant’s stepson, providing the Applicant can remain law-abiding. On the best reading of the evidence, this primary consideration only weighs slightly in favour of revocation.
Expectations of the Australian community
Clause 8.5(1) of the Direction identifies the expectations of the Australian community:
(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.
Clause 8.5(2) of the Direction states:
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)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
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, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)worker exploitation.
Clause 8.5(3) of the Direction provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Clause 8.5(4) of the Direction provides that this consideration is ‘about the expectations of the Australian community as a whole’, and decision-makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in a particular case. This correlates with the reasoning in FYBR[99] where the plurality held that this primary consideration is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government. The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[100] The High Court refused an application for special leave to appeal from the orders in FYBR.[101]
[99] FYBRv Minister for Home Affairs (2019) 272 FCR 454, 471–2 [66] (Charlesworth J), 476 [91] (Stewart J) (‘FYBR’).
[100] Ibid 473 [75]-[76] (Charlesworth J).
[101] FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
The High Court has more recently held in Ismail at [52] regarding this primary consideration in an earlier Direction (Direction 90):[102]
Paragraph 8.4(4) is to be understood as directing the decision‑maker not to attempt to infer what the expectations of the Australian community would be “in the particular case” (that is, with the knowledge of the delegate about the applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)-(3) are the relevant norm described as the expectations of the Australian community. That norm, as applicable by reference to the terms of para 8(1)-(3), is then to be weighed with other relevant matters as required by paras 6 and 7 of Direction 90. The delegate’s reasoning accords with these requirements.
[102] [2024] HCA 2.
Tribunal consideration: Expectations of the Australian community
The following submissions are advanced on the Applicant’s behalf regarding this primary consideration:
… The applicant accepts that the expectations of the Australian community will generally weigh against an applicant. However, it is contended that the lesser role played by the applicant in the offences, his overall lack of criminal conduct in his life, and his low risk of re‑offending, and where there is an Australian citizen partner and his stepchildren who will be deprived of the applicant’s presence in the event of removal, this factor should not weigh heavily against the applicant.[103]
[103] Exhibit R1, 96 [27].
The Respondent contends that the Tribunal should not infer the expectations of the Australian community based on the Applicant’s personal circumstances, citing recent authorities including Ismail.[104]
[104] RSFIC, 14-15 [70]-[71].
Tribunal findings: Expectations of the Australian community
Relatively soon after arriving on a limited stay visa, the Applicant breached the community’s reasonable expectation that non-citizens will abide by the law, respect important institutions, and not engage in conduct that harms others. The principles at cls 5.2(1)-(5) of the Direction are apposite to his circumstances. Having regard for the norm described as the expectations of the Australian community, little tolerance would be extended to him, including because he has only been participating in and contributing to the Australian community for a short time.[105] He should expect to forfeit the privilege of staying in Australia.
[105] The Direction, cl 5.2(5).
This primary consideration weighs substantially against revocation.
OTHER CONSIDERATIONS
Impact on business interests
In terms of cl 9.3, there is scant evidence of any impact on Australian business interests in the event of non-revocation, nor are submissions advanced in this regard.[106] The Applicant has made a general and aspirational submission that if allowed to remain in Australia he intends to assist Ms AA with her small business, perhaps return to work as a handyman, or start his own business. It is noteworthy that Ms AA has run her business successfully for years prior to meeting the Applicant. The Tribunal finds this consideration is not relevant and gives it neutral weight.
[106] Exhibit R1, 98 [35].
Legal consequences of the decision
Clause 9.1 of the Direction states:
9.1 Legal consequences of decision under section 501 or 501CA
(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 noncitizen.
(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.
9.1.1 Non-citizens 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.
9.1.2 Non-citizens not covered by a protection finding
(1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3) Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
Tribunal consideration: Legal consequences of the decision

Section 5 of the Act defines ‘non-refoulement obligations’ non-exhaustively as including Australia’s obligations as a party to certain Conventions, Protocols and Covenants, and ‘any obligations accorded by customary international law … of a similar kind to those mentioned’ in those treaties.[107] As held in Ibrahim v Minister for Home Affairs, non-refoulement obligations are ‘not confined to the protection obligations to which s 36(2) refers’.[108] Legal consequences can be quite broad and encompass factors such as likelihood of detention, removal, and the refusal or cancellation of other visas.
[107] For example, Australia is a signatory to 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 (‘CAT’), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (‘ICCPR’).
[108] (2019) 270 FCR 12, 35 [103].
The Tribunal is obligated to give active intellectual consideration to the Applicant’s clearly articulated representations about risk of harm, regardless of characterisation.[109] This is in the context of ‘another reason’ for revocation under s 501CA(4) of the Act, where claims are not required to meet predetermined benchmarks and can be less categorical than the more comprehensive protection visa assessment process under s 36A.[110] Active intellectual consideration of the Applicant’s claims requires the Tribunal to:
… bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate.[111]
[109] YKSB v Minister for Home Affairs [2020] FCAFC 224, [5]; Minister for Home Affairs v Omar (2019) 272 FCR 589, 602-10 [34]-[44].
[110] The Direction cl 9.1.2(2); Plaintiff M1/2021, 605 [39]; Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, 521 [27]-[28]; Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28] (‘Ali’).
[111] Plaintiff M1/2021, 598-599 [24].
The Applicant’s visa history is relevant to the Tribunal’s consideration of legal consequences. The following chronology is not disputed:
(a)3 June 2018: Applicant arrived in Australia on a Visitor Visa;
(b)10 November 2019: Applicant applied for a Protection Visa (‘PV’);
(c)7 March 2020: Applicant was granted a BVC in conjunction with his PV application;
(d)16 June 2020: The PV application was refused by a delegate of the Minister;[112]
(e)18 June 2020: Applicant asked the Tribunal to review the PV refusal;
(f)3 April 2024: The Applicant lodged a Partner Visa application and a BVC was granted in conjunction with this application;
(g)8 May 2024:
(i)The BVC associated with the PV application was mandatorily cancelled;
(ii)The BVC associated with the Partner Visa application was cancelled pursuant to s 501F(3) of the Act;
(iii)The Partner Visa application was refused pursuant to s 501F(2) of the Act;
(h)15 January 2025: The Tribunal affirmed the Respondent’s 2020 refusal of the Applicant’s PV application.[113]
[112] Exhibit R1, 277-278.
[113] Exhibit R3.
The Applicant’s claims centre on arrest and ‘harsh punishments’ for non-payment of loans in Vietnam:
International non-refoulement obligations – direction 110 par 9.1(2)
30. The applicant fears that he will be chased and punished by the loan mafia from whom he took loan and has not repaid. Applicant also fear arrest by the Vietnamese authorities for defaulted on loans. While the applicant has not claim for refugee status, it does raise the possibility that he will face harsh punishments upon return to Vietnam, which would give rise to international nonrefoulement obligations. Pursuant to the International Covenant on Civil and Political Rights. This may also cause impediments to the applicant if removed to Vietnam.
Non-citizens covered by a protection finding – Direction 110 par 9.1.1
31. The applicant is not covered by a protection finding. However, applicant has raised concerns and provided details that would be a possible protection claim.
Non-citizens not covered by a protection finding
32. Applicant is not covered by a protection finding however the applicant has stated that he will be persecuted and incarcerated by the authorities for defaulted loans and loan mafia will hurt him. This gives rise to the possibility of Australian protection obligation towards the applicant. [114]
[114] Exhibit R1, 97 [30]-[32].
In response to a question in his revocation application asking if he faces any criminal charges in Vietnam, the Applicant responded: ‘No’.[115] The Applicant’s oral testimony about debts in Vietnam is summarised as follows:
(i)He claimed to have borrowed the equivalent of AUD100,000 from a Vietnamese bank as a business loan, but defaulted, following which the bank sold his house. The Applicant claimed about AUD80,000 was recovered from the house sale and applied to the loan balance, but he still owes AUD20,000 and the bank will demand repayment if he returns. The Applicant said failure to repay may lead to arrest. When asked how he knows this, the Applicant responded: ‘I know Vietnamese Government policy – whatever is owed has to be paid back’. There is no mention in the Applicant’s 2019 Protection Visa application of any bank loan. His claims instead centred on borrowings of around AUD250,000 from ‘loan sharks in Vietnam’.[116]
(j)The Applicant claimed in the current hearing that he borrowed the equivalent of AUD100,000 from ‘gangsters’ in Vietnam and repaid AUD70,000 of this by working in other Asian countries. He said the gangsters considered his payments as interest rather than principal and he still owes the entire AUD100,000. During his almost seven years in Australia the Applicant said he has made no further payments to the gangsters and they have not contacted him. He claimed, however, that unnamed friends in Vietnam told him the gang was still looking for him. There are no statements from these friends in evidence. The Tribunal notes there is no mention in the Applicant’s 2019 Protection Visa application of any repayments made to gangsters while working overseas. Moreover, the loan he currently claims to have taken out with the gangsters is only around AUD100,000, whereas in the Protection Visa application he said it was AUD250,000.[117] When asked if he told the lawyer then representing him about a AUD250,000 debt to gangsters, the Applicant responded: ‘I can’t remember’ and insisted his current evidence about debts is correct. The Applicant said if allowed to stay in Australia, he intends repaying the debts he owes in Vietnam.
[115] Ibid 71.
[116] Ibid 275.
[117] Ibid.
In response to questions about inconsistencies in his evidence about debts, the Applicant claimed he gave his lawyer for the PV application accurate information about debts in Vietnam, but his instructions were not correctly conveyed in the application. This claim rests on the Applicant’s assertions alone. The Applicant also claimed his ex-wife in Vietnam has personal knowledge of these debts. When asked why there is no statement from her, he said they have not spoken since their relationship ended.
In oral testimony the Applicant said that after three years working overseas in Korea, he returned to Vietnam in 2017 for about a year. He chose to live in Saigon in the south instead of his hometown in the north because he wanted to avoid coming to the attention of creditors. A year later he successfully applied for a Visitor Visa for Australia. The Applicant accepted that his ability to live and work in north and south Vietnam, Japan, Korea, and Australia reflects someone who can adapt to new environments. He also agreed during oral testimony that his ‘main concern is family in Australia’ rather than a fear of gangs in Vietnam.
The delegate who refused the Applicant’s protection claims in 2020 noted that authorities in Vietnam are willing to protect those who have borrowed from loan sharks:
Country information indicates that loan sharks charging illegal rates of interest are a widespread problem in Vietnam, but authorities have demonstrated a willingness to tackle their activities …
However, credible sources assess that individuals targeted for unpaid debts are able to obtain protection from the police, who are active at the provincial, district and local levels and are subject to government authority …

The above country information demonstrates that whilst the Vietnamese government is unable to prevent debts being incurred in the first place or protect borrowers from illegally high repayments, the authorities appear to be making inroads in arresting perpetrators when they attempt to enforce payment of debts through violence.
[118] Ibid 275-76.
Therefore, as provided by s 36(2B)(b) of the Act, I am satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm on their return.[118]
In considering the Applicant’s appeal after refusal of his PV application, the Migration Jurisdictional Area of this Tribunal found on 15 January 2025[119] that:
(a)The Applicant was afforded an opportunity in November 2024 to provide further evidence and present arguments at a hearing scheduled for 7 January 2025, but the Applicant’s representative asked the Tribunal to ‘make a decision on the papers without holding a hearing’ and without further submission of evidence.
(b)The Applicant provided ‘very little detail’ and his claims were ‘very general in nature’, including if he ever sought police help regarding the purported gangsters.
(c)There is not a real chance the Applicant faces serious harm in Vietnam due to owing money to a loan shark and he does not satisfy s 36(2)(a) of the Act.
(d)There are not substantial grounds for believing there is a real risk the Applicant will face significant harm, as defined in s 36(2A) of the Act, if returned to Vietnam and therefore he is not a person in respect to whom Australia has protection obligations under s 36(2)(a) of the Act.
[119] Exhibit R3.
The Tribunal as presently constituted is not bound by these findings and there is no doctrine of stare decisis or equivalent to judicial comity in the Tribunal.
The Respondent submitted that the Applicant’s claims in the present matter are materially similar to those previously rejected. It was further submitted that the Applicant is barred from a further Protection Visa application while in the migration zone pursuant to s 48A of the Act unless the Minister chooses to lift this bar under s 48B of the Act. There is no evidence before the Tribunal that the Minister intends doing so.
Tribunal findings: Legal consequences of the decision
Aspects of the Applicant’s evidence about debts and fears are inconsistent, uncorroborated, and unpersuasive. There are no bank documents or other reliable evidence about this. The bank debt he now invokes was not even raised in his Protection Visa application and the Tribunal considers it unlikely at best that his lawyer submitted this form with claims that were inconsistent with the Applicant’s instructions. The Applicant’s evidence at the current hearing not only differs with his past protection claims but also the history taken by Mr Watson-Munro. While it is accepted financial and other legal consequences may result from debt default, as it would in Australia, the Tribunal rejects the premise that, without more, the Applicant’s inconsistent claims about avoiding creditors enlivens Australia’s international protection obligations. Even if the Applicant’s evidence about debts to gangsters in Vietnam is accepted, which the Tribunal does not, he has not explained why authorities in Vietnam could not protect him from loan sharks. He has also not explained why he could not live safely in a different part of Vietnam as he did after returning from work overseas in 2017.
The Applicant generally invokes the 1966 International Covenant on Civil and Political Rights without explaining why it is relevant to his circumstances.[120] This includes what rights or freedoms have been violated and how he may have been denied recourse to available remedies from judicial, administrative, legislative, or other competent authorities. The Tribunal does not accept on current evidence that any of the Applicant’s rights or freedoms have been violated.
[120] Exhibit R1, 97 [30].
The fears of harm advanced by the Applicant are not well founded on reliable information and the Tribunal is not satisfied there is a real chance of him experiencing such harm. Even if he were detected on return to Vietnam and arrested by authorities for non‑payment of debts, it is speculative at best about what might follow. He has not established that he is confronted by a real risk of significant harm as a necessary and foreseeable consequence of removal such as to enliven Australia’s non‑refoulement obligations.
Given the agreed visa chronology, revocation in the present matter would result in the Applicant’s release from detention and restoration of the BVC associated with his 2019 PV application. It would also reinstate consideration of the Partner Visa application he made in April 2024.[121] Non-revocation results in the Applicant remaining in immigration detention pending removal. He has judicial appeal rights regarding the Tribunal’s January 2025 decision to affirm the refusal of his PV application and, in the event of a non‑revocation decision, would also have judicial review rights in the present matter. He is barred, however, from making any further application for a Protection Visa. The Applicant may also choose to apply for an exercise of a non-compellable ministerial discretion, or explore the possibility of third-country relocation, or seek voluntary removal, noting there is no evidence about any such possibility. Future events remain uncertain[122] and the Tribunal need not speculate. The reasoning in Ali is respectfully adopted in this regard:[123]
The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4) ...
[121] Pursuant to s 501F(4) of the Act.
[122] BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199.
[123] Ali [33].
In DOB18 at [35], Griffiths J reflected favourably on the reasoning in Ali and similarly cautioned against speculating about the course of future decision-making:[124]
… Justice Flick’s reasoning in Ali was adopted and applied by Logan J in Greene at [19] and by Farrell J in Turay at [40] … Contrary to the applicant’s submissions, I do not consider that the reasoning in this trio of cases is plainly wrong. Indeed, I consider that it is plainly correct. In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making ...
[124] DOB18 v Minister for Home Affairs [2018] FCA 1523 (‘DOB18’).
The Applicant is not a person for whom Australia has protection obligations. This consideration is not enlivened and carries neutral weight.
Extent of impediments if removed
Clause 9.2 (1) 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;

b) Whether there are substantial language or cultural barriers; and

c) Any social, medical and/or economic support available to them in that country.
Tribunal consideration: Extent of impediments if removed
The Applicant holds a Vietnamese passport.[125] In revocation submissions dated May 2024, he stated that he has no diagnosed medical or psychological conditions.[126] This was confirmed during his oral testimony. In terms of family overseas he has a mother and two siblings in Vietnam, while two other siblings live in a European country.[127] He refers to an ex-wife and 27-year-old son in Vietnam from his first marriage, with whom he claims to have no contact. The Applicant’s divorce from this ex-wife was only finalised in early 2024,[128] proximate to his marriage to Ms AA. The Applicant also referred to work in Japan and fathering another child with a woman he met while living there. He said that child would now be 15 years of age, but he has no contact with that child or former partner.
[125] Exhibit R1 90.
[126] Ibid 70.
[127] Ibid 67.
[128] Ibid 267.
The Applicant was educated in Vietnam, completed military national service obligations, worked in farming, undertook training in mechanical engineering, married, fathered a child, and ran his own business.[129] He worked in Japan for about five years and, in or about 2014, worked in Korea for about three years before returning to Vietnam. He claims that he lived in Southern Vietnam (Saigon) and did not return to his home in the north (Hanoi) because of debts owed.[130]
[129] Ibid 73.
[130] Ibid 74.
The Applicant has expressed the following concerns about repatriation to Vietnam:
If I am sent back to Vietnam, I don't know what will happen to me. I would have no place to go, no home, no wife and children, they have all despised me. The bank would come for me and I will have to go to jail. The mafia will come to my house and hunt me down or maybe kill me because of the money I owed them. As for my wife, her mental and physical health will be affected, directly affecting [her business] and caused consequences later on, not having enough money to pay for daily expenses.
There is one more thing that is extremely important and will affect my current family and wife and children. That is, in 2022, we tried to borrow money from friends and banks to buy a house, so that our children would have a house to live in. If I am to be deported back to Viet Nam, there will be no one to support and help my wife and children, my wife and children do not have money to pay, the bank will confiscate the house and the children will not have a house to live in, their spirit of studying will be severely affected, and at that time, we do not know what will happen next.[131]
[131] Ibid 76.
In more recent submissions, the following is advanced on the Applicant’s behalf:
33. … In short, he will suffer community prejudice if he is to return to Vietnam as a convicted drug offender.
34. The applicant lived in the community after the offence when he was granted bail and has followed all the bail conditions. The fact that he had been caring person for Australian citizens and had been providing selfless care weighs heavily in his favour and more weight should be given to time he spent contributing positively to the Australian community being a husband and a father.[132]
[132] Ibid 97 [33]-[34].
In oral testimony the Applicant said he would have problems with employment if returned to Vietnam and does not believe he could return to work in Japan or Korea because of the passage of time. Although he has family and friends in Vietnam, he claimed to have no contact with them because he ‘let them down’ by committing drug-related crime in Australia. He said this would result in ‘prejudice’. When asked by Mr Nam if he could choose not to disclose his Australian offence, he responded: ‘I still hide that fact to people’. The Applicant accepts that his ability to live and work in north and south Vietnam, Japan, Korea, and Australia reflects someone who can adapt to new environments. He also agreed that his current ‘main concern is family in Australia’ rather than a fear of gangs in Vietnam.
Tribunal findings: Extent of impediments if removed

The Applicant is 52 years of age and has no diagnosed conditions. The symptoms referred to by Mr Watson-Munro do not require complex management and there is no evidence that treatment or therapy referable to depression / anxiety / self-esteem is unavailable, unaffordable, or would be withheld in Vietnam if he were repatriated. No weight is placed on the prospect that the Applicant faces arrest, imprisonment, or other arbitrary treatment in Vietnam because of debts as a foreseeable consequence of a non-revocation decision, such that this constitutes an impediment to removal. The Tribunal found these claims, which rely on the Applicant alone, to be unpersuasive.
No substantial language or cultural barriers are disclosed. The Applicant was born, raised, educated, worked, and ran a business in Vietnam prior to arrival in Australia in mid-2018. He has some immediate family there. On his own evidence he also has over 30 years’ experience in electrical and welding trades,[133] and considerable work experience in multiple overseas countries. This demonstrates proven capacity to re-establish himself across international borders and to relocate internally in Vietnam as he did in 2017. The Tribunal is unpersuaded that the Applicant could not re-establish a life for himself in Vietnam or one of the other countries he has lived and worked in.
[133] Ibid 76 (final paragraph).
The Tribunal accepts there is a likely adverse emotional impact from non-revocation on the Applicant, Ms AA, her children, and possibly other supportive friends in Australia, although Ms AA’s evidence is she will find a way to join the Applicant in Vietnam if he is removed.
The Tribunal accepts the Applicant will be confronted by a measure of emotional, practical, and financial hardship if repatriated. If he were to divulge his crime in Australia, he may also be subjected to some general prejudice. The Tribunal is unpersuaded, however, that the impediments confronting him in maintaining basic living standards in the context of what is available to other Vietnamese citizens are substantial. He has lived in Australia for a relatively short time and his vocational, business, and adaptation skills have been largely developed outside of Australia into his mid-40s. He may also be able to leverage past work, social, business, and perhaps family links in Vietnam to assist his transition. On current evidence, this consideration weighs no more than slightly in favour of revocation.
Additional considerations
No other considerations are advanced by the parties, and none are discernible.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ why the visa cancellation should be revoked, the Tribunal has applied the Direction to the specific circumstances of his case. The Tribunal sees no reason to depart from the guidance in the Direction to generally give greater weight to the Protection of the Australian community, over the other primary considerations, as the highest priority of the Australian Government.
The Applicant’s drug cultivation is serious and reflects a disregard for Australian law and community interests. Had this not been curtailed by police, serious harm could have resulted to the Australian community. This includes because of addiction or from the nexus between addiction and other crimes.
The Tribunal is unpersuaded the Applicant constitutes an acceptable recidivism risk as he claims. He has unmet rehabilitative needs and aspects of his evidence continue to minimise or externalise responsibility for his offending. This diminishes the persuasiveness of his claims about insight, contrition, and overcoming past motivators for his offending.
The Applicant’s connection to the Australian community on current facts is not particularly long, strong, and centres predominantly on Ms AA and her three children. The time the Applicant has spent with them is relatively brief and their plans largely aspirational. The Applicant has made a very limited positive contribution to the community. Any law-abiding behaviour while in the community on bail must also be considered in the context of his stay in Australia being predominantly spent breaching visa conditions, offending, under conditional liberty, or in custodial settings. Little tolerance would be extended to him considering the principles at cl 5.2 of the Direction.
In terms of non-refoulement, the Applicant’s claims about loans in Vietnam are inconsistent, uncorroborated, and unpersuasive. The Tribunal is not satisfied there is a real chance of him experiencing significant harm.
The Tribunal is unpersuaded that any impediments confronting the Applicant if repatriated are insurmountable. He has demonstrated a consistent ability to adapt to life in multiple countries. The Tribunal considers he can maintain basic living standards in the context of what is available to other Vietnamese citizens.
Having weighed the relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the primary consideration, Protection of the Australian community, which is generally given greater weight than the other primary considerations, coupled with Expectations of the Australian community, considerably outweigh the combined weight given to the countervailing primary and other considerations.
DECISION
It follows that the Tribunal affirms the reviewable decision.

126. I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic

................[sgd]........................................................
Associate
Dated: 17 February 2025

Dates of hearing: 5 & 6 February 2025

Counsel for the Applicant:

Solicitors for the Applicant:

Mr Stephen John

ASM Migration Services

Advocate for the Respondent:

Solicitors for the Respondent:

Mr Ben Nam

Clayton Utz