Dang and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 2131

Dang and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2131 (28 June 2024)
Division:GENERAL DIVISION
File Number: 2024/2236
Re:Anh Tuan Dang
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member

Date: 28 June 2024
Place:Melbourne

The Tribunal affirms the decision under review.
…................[sgd].....................................................
Dr Stewart Fenwick, Senior Member
Catchwords
MIGRATION – mandatory visa cancellation – citizen of Vietnam – Class BS Subclass 100 Partner (Permanent) visa – single instance of offending – failure to pass character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 110 applied – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCAFC 185
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Secondary Materials
Department of Foreign Affairs and Trade, Country Information Report Vietnam (11 January 2022)
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
28 June 2024
BACKGROUND

Mr Dang applied on 14 April 2024 for review of a decision of a delegate of the Respondent dated 9 April 2024 not to revoke the mandatory cancellation of his Class BC Subclass 100 Partner (Permanent) visa. Mandatory cancellation arises under s 502(3A) of the Migration Act 1958 (Cth) (the Act) where the Minister is satisfied a person does not ‘pass the character test’.
The Applicant has been determined to fail the character test due to his conviction on 23 July 2021 for cultivating a commercial quantity of cannabis and theft of electricity. Mr Dang was sentenced to a total of three years and four months in prison for his offending.
Mr Dang was born in Vietnam and lived there until just under the age of 37 years, when he came to Australia with his second wife, an Australian citizen. At that time, he had a young child from his first marriage, who later came to live with Mr Dang and who was residing with his father at the time of the offending that led to his conviction. The offending conduct took place in 2020 at the family home.
Mr Dang’s visa was cancelled in mid-2021 and he made representations about revocation under s 501CA of the Act. When considering revocation of a mandatory cancellation decision, decision-makers must comply with directions given by the Minister (s 499 of the Act). The Applicant’s original submissions were made in respect of Direction No. 90, and the decision under review was made under Direction No. 99, which came into effect in January 2023. Prior to the hearing of this matter a further direction was made, being Direction No. 110 (the Direction), which came into effect on 21 June 2024.
The Applicant was self-represented before the Tribunal and lodged a Statement of Facts, Issues and Contentions (SFIC), dated 21 May 2024, and a statement in support from a friend, Mr Cong Minh Khoa, dated 13 June 2024 (Exhibit A1). Mr Dang identified one witness who was unable to be contacted during the hearing. He was assisted by an interpreter in the Vietnamese language.
The Respondent lodged documents under s 500(6F) of the Act (G) and Supplementary G documents (SG), a SFIC dated 20 May 2024, and an Amended SFIC (RSFIC) dated 17 June 2024.
The RSFIC was lodged to address the newly established Direction 110, and a copy of this direction was provided to Mr Dang. At the first day of the hearing, the Respondent indicated that it had not received a copy of Exhibit A1 more than two business days prior to the hearing, as required by s 500(6J) of the Act. It appears this was due to an administrative oversight within the Tribunal. Accordingly, additional time was scheduled to permit Mr Dang to rely upon this statement.
LEGISLATION
Cancellation of a visa on character grounds arises under s 501 of the Act. Cancellation is mandatory where a person has a substantial criminal record and is serving a full-time custodial sentence of imprisonment (s 501(3A)). There are several ways a person is deemed to fail the character test, including as in this instance by having been sentenced to a term of imprisonment of 12 months or more (s 501(6)(a) and s 501(7)(c)).
Such mandatory cancellation may be revoked following representations from a person, in cases where they are determined to pass the character test, or ‘there is another reason why the original decision should be revoked’ (s 501CA(4)(b)(ii)). Direction No. 110 is the current guidance which must be taken into account in considering revocation. As the statutory question is broadly stated, decision-makers are not confined to only the considerations in the Direction.
In addition to the specific considerations and factors arising under them, which will be addressed below, decision-making is also guided by principles stated in the Direction. These are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a 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.
ISSUES
I must first consider whether Mr Dang fails the character test. There is no dispute in this matter that this is the case, and I am satisfied from considering the national criminal history record lodged (G2/A) that the Applicant has been sentenced to a term of imprisonment in excess of 12 months.
Accordingly, I must now consider whether there is another reason to revoke the mandatory cancellation of his visa on character grounds.
PRIMARY CONSIDERATIONS
Protection of the Australian community
Direction 110 provides that I must keep in mind that the safety of the Australian community is ‘the highest priority of the Australian Government’ (8.1(1)). In addition to having regard to the fact that remaining in Australia is considered a privilege granted in the expectation that non-citizens be law-abiding, I must also consider two specific factors which I address separately below.
I will address evidence and provide findings in respect of each sub-consideration and then provide an overall finding on this primary consideration.
The nature and seriousness of the conduct
Mr Dang plead guilty to the charges arising from his offending and was sentenced in the County Court on 23 July 2021 (G2/B). I summarise briefly from the remarks of the sentencing judge:
(a)Police discovered a hydroponic cannabis operation in multiple rooms in Mr Dang’s residence after attending in response to a noise complaint;
(b)121 plants were found with total sized and harvested product weighing over 96 kg and electricity to the value of over $13,000 had also been used in the operation;
(c)Mr Dang admitted at interview to engaging in the cultivation due to financial difficulties, that he knew it was illegal, that it was for personal consumption and sale, and that he obtained help from people to establish the operation;
(d)the Applicant was not employed at the time of the offending due to COVID restrictions and had borrowed $200,000 from a university friend in Vietnam to help retain his residence after separating from his ex-wife;
(e)Mr Dang also borrowed from a person who proposed the cannabis operation, and offered to purchase it once grown;
(f)the property was sold following Mr Dang’s arrest and the proceeds restrained and then likely subject to forfeiture;
(g)the judge took into account that the debt remained unpaid, that at the time of sentencing the Applicant understood the seriousness of his actions and the impact of his behaviour on his son, showed remorse and – accordingly – had ‘very good prospects of rehabilitation’;
(h)the judge also took into account that Mr Dang was not a ‘mere’ crop sitter and went to considerable effort to set up the operation, took a calculated risk, but was somewhat naïve and perhaps did not fully appreciate the seriousness of his crime; and
(i)powerful mitigating factors identified include his full admission, guilty pleas and prospects for rehabilitation, but general deterrence was a significant consideration because of the real damage caused to society by the illegal drug trade.
The Applicant’s original submissions (G2/I) note that Mr Dang has no prior record of criminal behaviour, and his offending – as noted by the sentencing judge – came in the context of difficult personal circumstances [21], [23]. It is also submitted that the nature of his offending is serious [24].
The Respondent also submits that the offending should be considered serious, and that offending leading to a custodial sentence should be treated as particularly serious (RSFIC [28], [29]).
There is no limit to the range of crimes that might be considered very serious but those identified specifically in the Direction are all crimes of violence, sexual crimes or family violence (8.1.1(1)(a)). Given the fact that the offending relates to illicit drugs (albeit not conventionally considered ‘hard’ drugs) and the volume of product produced, I consider it reasonable to find that Mr Dang should be considered to have committed a serious crime (the scope of which is also not limited on the face of the Direction (8.1.1(1)(b))).
On one view, the sentence of over three years imprisonment is not substantial when considered solely in the context of the primary charge, which carries a maximum penalty of 25 years imprisonment (G2/B [1]). However, I am required to consider the sentence imposed (8.1.1(1)(c)) and I consider that Mr Dang received a relatively strong penalty noting in particular that he was a first-time offender.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Mr Dang has declared in writing as follows (G2/N):
(a)he took responsibility for his actions and is very sorry for the offending, he has learned a lot from his mistakes, knows that his decisions affect his child, and will never again put himself in a situation where he will offend [11];
(b)context does not excuse his actions, but he was unemployed, supporting his son and meeting mortgage payments – which he had to stop – and then came under pressure from his lenders so attempted to sell his home, but was unable to do so [12];
(c)he learned about the dangers of drugs from people he met in prison, he also maintained a good record while in prison, and undertook courses for personal development [14]-[15];
(d)he feels regret for what he has put his child through [18]; and
(e)that he plans to live with a friend if returned to the community and will seek employment based on previous work experience as a driving instructor, in a shop or as a handyman installing flooring [26].
In a subsequent written statement (G2/U) Mr Dang states that in addition to vocational training, he has undertaken Buddhist meditation regularly with a monk and this helps him to understand how to ‘maintain and act upon the right values and morals’. He also states that if his visa is returned, he intends to ‘seek professional support and continue [his] rehabilitation’.
Mr Dang further states that he has an offer of financial support from his ‘niece’ (later confirmed in evidence to be a relative of his ex-wife). The Applicant’s SFIC refers to this person who is said to have also offered accommodation if Mr Dang returns to the community.
At the hearing, Mr Dang stated that he had attended primary, secondary and tertiary schooling in Vietnam but only completed two of four years in an IT course. His work experience in Vietnam included as a driving instructor and he had opened a gaming store. When he arrived in Australia he worked part-time in a tobacco shop, and also learned to install flooring.
The Applicant stated that he had undertaken a four-day program on drug and alcohol management in prison. He had also attended one or two sessions of a program dealing with, as I understood the evidence, drugs or drug offending while in immigration detention. Mr Dang also gave evidence consistent with his written statement about his awareness of the significance of his offending. His other training activities had comprised ‘all those offered’, including English language and as a barista.
I summarise additional relevant material:
(a)a pre-sentence report by Dr Aaron Cunningham, psychologist, dated 20 April 2021 (G2/O), records that Mr Dang offended because he was desperate and worried for his safety, and that he has protective factors that may reduce his risk and improve prospects for rehabilitation which include his level of education and understanding of his wrongdoing;
(b)a number of certificates (G2/Q and V) demonstrate that Mr Dang has undertaken a range of vocational training courses including traffic management and kitchen operations, and that he is proficient in badminton and chess;
(c)one document is titled ‘PRHR/RRHR – Individual Completion Notification’, dated in October 2023, which indicates that Mr Dang undertook a Related Harm Reduction program (G2/Q, 201);
(d)medical records for Mr Dang’s time in immigration detention show that he participated in one uncompleted drug and alcohol counselling session in May 2024 (SG, 2);
(e)a letter of employment dated in late 2023 has been provided demonstrating an offer of fulltime work as a kitchenhand in a restaurant (G2/W); and
(f)the letter of support by Mr Cong (Exhibit A1) states that they were on the same football team and the Applicant is a very good person.
The Applicant’s original submissions (G2/I) make reference to Mr Dang’s acknowledgment of his offending, and to the nature and circumstances of the offending highlighted in the sentencing remarks [20], [22]. It is contended that his offending was isolated and out of character, the likelihood of reoffending is very low, and that he is an acceptable risk to the community [23]-[24].
In his SFIC, Mr Dang states that he commits to ‘comply with all laws, regulations and conditions’ of the Department of Home Affairs, and the risk to the community is sufficiently low and outweighed by many compelling reasons in favour of revocation.
The Respondent submits that any future reoffending of a similar nature would cause substantial harm to the Australian community (RSFIC [31]). Submissions acknowledge at length Mr Dang’s own expressions of remorse and the finding to this effect by the sentencing judge [33]-[34]. However, it is contended the Applicant has not adequately addressed his own drug use, nor engaged in programs relevant to coping with financial stress [36]-[37]. For these reasons, there remains a risk he will reoffend [38].
The Respondent correctly identifies as a separate consideration the nature of the harm that might arise from further criminal or other serious conduct (8.1.2(2) a)). I consider that in circumstances of a criminal record confined to only one instance of offending, this is practically the only possible guide to any future misconduct. It follows that I must find that any similar offending would cause a risk of harm to the Australian community in the same way that Mr Dang’s previous drug cultivation was considered by the sentencing judge to be harmful.
There is no formal risk assessment about the likelihood of future offending, other than the observations of Mr Cunningham that Mr Dang had a number of protective factors in his favour. The evidence overall indicates that the sentencing judge’s relative optimism about the Applicant’s prospects for rehabilitation have been vindicated. He has undertaken a wide range of courses and taken what appear to be many opportunities to improve himself and his chances of gainful employment.
In addition to this, Mr Dang has provided adequate evidence of an immediate support network were he to return to the community, offering tangible and practical support.
I accept to some limited extent the Respondent’s contention as to the limited substantive drug related rehabilitation. However, I accept that Mr Dang has undertaken the requisite harm reduction training, and has sought further counselling. He has done so despite not having any demonstrable historical issue of addiction or drug abuse.
These factors, taken together with Mr Dang’s evident remorse and drive to improve himself and be a good father, show that he has undergone relevant rehabilitation and has feasible supports in the community that will further protect against a return to criminal offending. While there must remain some risk of reoffending, it appears in all the circumstances to be minimal and acceptable.
Summary
The Respondent contended in writing that this primary consideration weighs against revocation. Submissions at the hearing were to the effect that considerable weight be given to this consideration reflecting, I understand, the emphasis placed on community safety arising in the Direction.
This consideration involves a degree of both historical and forward-looking assessment. I have found that Mr Dang’s offending was of a serious kind. I have also found that there is a minimal but acceptable level of risk of future offending.
Accordingly, bearing in mind the principles underpinning this primary consideration, I find that this consideration weighs against revocation.
Family violence committed by the non-citizen

I am satisfied that in Mr Dang’s circumstances this consideration is not engaged and accordingly I find that it weighs neutrally.
The strength, nature and duration of ties to Australia
This part of the Direction requires consideration of ‘any impact’ the decision about revocation will have on a non-citizen’s immediate family members in Australia, and the strength, nature and duration of any other ties to the Australian community (8.3(1)-(2)). The subjects of this consideration must be Australian citizens, residents, or have the right to remain in Australia permanently.
Mr Dang’s evidence at the hearing was consistent with his statutory declaration to the effect that he has no family in Australia, but a number of close friends who are like family (G2/N [22]). In addition to evidence given about his employment history in Australia, Mr Dang also stated that he had been a member of a football club since his arrival. Mr Dang further identified the friends who had provided statements in support as being Australian citizens, and that he had known them since he arrived in Australia.
I summarise, briefly, the personal contacts identified in evidence and the materials lodged:
(a)the niece of his former second wife;
(b)a couple who manage a restaurant, the husband being a former brother-in-law, and the wife being the person who is offering Mr Dang employment; and
(c)Mr Cong.
During the hearing, unsuccessful attempts were made to contact the individual offering employment but they were unavailable. Mr Dang advised at the resumed hearing that his brother-in-law would be available having returned from overseas. I determined that this individual could not be contacted for evidence on the basis that there was no written material concerning his likely evidence, thereby breaching the ‘two-day’ rule.
It is contended in the Applicant’s original submissions that despite having no nuclear family in Australia, his strong circle of friends have ‘stuck by him’ (G2/I [65]). I also note Mr Dang’s recent statement nominating individuals, identified above, as being supportive of him (G2/U 224).
The Respondent’s submissions note that Mr Dang has spent approximately eight years in Australia and offended after four years (RSFIC [48]). It is further contended he has made a limited contribution through employment, but that his ties are not particularly strong, and accordingly, this consideration be afforded limited weight in favour of revocation [49], [52]-[53].
Due to Mr Dang’s circumstances my decision will have no impact on family members as such. I do accept, however, that Mr Dang has a small circle of Australian-citizen friends, and had other social links in the form of football club membership.
It is clear that Mr Dang arrived in Australia as a mature adult and worked as a part-time employee in at least two different businesses. I consider that outside time in prison and detention he made a positive contribution to Australia; this being a period of around four years.
In summary, I give some weight in favour of revocation to these four years and some weight to Mr Dang’s friendships and social engagement generally, and overall I find that this consideration carries some limited weight in favour of revocation.
Best interests of minor children in Australia affected by the decision
Mr Dang gave evidence at the hearing consistent with material lodged in this matter. In short, he has a child presently aged 13 years old, and he previously had care of this child in Australia. Mr Dang confirmed in evidence that the mother of the child instigated a legal proceeding in Australia while the Applicant was in prison, resulting in this child moving overseas to live with the mother.
No other written or oral evidence indicates the presence of a minor child in Australia whose interests would be affected by the decision (8.4(1)). I note that the decision under review took into account the interests of Mr Dang’s child under this consideration, and I will return to this issue below as a further consideration.
I am satisfied that there are no minor children in Australia affected by this decision, and accordingly find that this consideration weighs neutrally.
Expectations of the Australian community
This consideration expresses in a normative manner the expectation of the Australian community that, where a non-citizen has engaged in serious conduct in breach of the overarching expectation that they obey Australian laws, the Government should not allow such persons to remain here (8.5(1)).
In the Applicant’s written submissions (G2/I) reference is made to authorities said to support the view that a decision-maker must make an assessment of the appropriateness of non-revocation in the particular circumstances arising in an applicant’s case, or upon its weighting (FYBR v Minister for Home Affairs [2019] FCAFC 185, [97]-[98] (FYBR); DKXY v Minister for Home Affairs [2019] FCA 495, [31]) [33]-[35]. In short, it is contended that a balance is to be struck between Mr Dang’s criminal conduct and factors arising under the other considerations, and community expectation also involves compassion for the Applicant’s circumstances [38]-[40].
The Respondent contends, simply, that this consideration is to be applied normatively and as Mr Dang’s criminal offending is serious, it weighs against revocation (RSFIC [61]-[62]).
The High Court of Australia addressed the issue of accounting for an applicant’s circumstances in Ismail v minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 (with reference to a previous version of the Direction). The Court held that a decision-maker is ‘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)’ [52]. That is, the Court stresses the norm is to be weighed with other relevant considerations as specified in the Direction (that is, as part of the overall evaluation of weight of and between specified considerations).
Accordingly, I find that Mr Dang’s offending has breached the community expectation articulated in this consideration through offending that I have found to be serious. Therefore, I find that this consideration weighs against revocation.
OTHER CONSIDERATIONS
Legal consequences of decision under section 501 or 501CA
Non-citizens not covered by protection finding
This consideration restates aspects of the Act concerning the detention of unlawful non-citizens pending their removal as soon as reasonably practicable (9.1(1)). These provisions are set in the context of Australia’s obligations not to forcibly return a person to a place where they are at risk of harm (non-refoulment obligations) (including as expressed in the Act as ‘protection obligations’), arising under various international human rights conventions (9.1(2)).
It is now well established that a decision-maker must read and evaluate any representations made about non-refoulement, but it is open to defer assessment of whether a person is owed such obligations where a protection visa application can be made (Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17).
In statements and written submissions, it has been contended that the Applicant:
(a)fears for his safety and well-being if returned to Vietnam (G2/E, 58);
(b)fears he will be ‘denied the right to subsist and could be targeted by authorities as a person convicted of drug-related offences’ (G2/I [49]);
(c)could face a ‘deprivation of life or liberty … on the basis that he may be exposed to further detention for the crimes that he committed in Australia, or even the death penalty’ (G2/I [43], G2/N [29]); and
(d)‘would likely be exposed to constant supervision and harassment from the authorities’ if authorities are alerted to his criminal record (G2/I [56]).
At the hearing Mr Dang gave evidence that if returned to Vietnam his only concern is about his child, specifically that the Applicant’s return would have an impact upon the child’s visa status in Australia. When redirected to consider the implications for himself, Mr Dang stated that because he still bears the debts there would be a risk to his life. I asked the Applicant to clarify if this was a reference to the debt to his friend from university and he responded that this person is no longer a friend, and he had ‘heard there were some threats from him’. Mr Dang stated this person had conveyed this to his older sister. He also stated in evidence his intention to repay his loans.
Mr Dang stated that he had heard people in Vietnam can be subject to discrimination if it becomes known they are a ‘bad person’. He was also asked how authorities might come to learn of his criminal record, and he replied that he did not know exactly, but heard that returnees are interviewed at the airport.
At the resumed hearing Mr Dang confirmed that he broadly understood the nature of a Protection Visa application and that it may be open to him to make an application should this decision not be in his favour.
It has been submitted for Mr Dang that he will be exposed to deprivation of life or liberty and faces the real prospect of indefinite detention in the face of a non-revocation decision, and that non-refoulement obligations are engaged (G2/I [43], [47], [59]).
The Respondent contends that it is open for Mr Dang to apply for a protection visa and the best course in his circumstances is to defer consideration of non-refoulement obligations (RSFIC [65], [67]). In the alternative, it is contended that there is no evidence the Vietnamese authorities would come to know of the Applicant’s criminal record, as the Department of Foreign Affairs and Trade (DFAT) Country Information Report for Vietnam does not support the view that Mr Dang will be at harm [71]-[72].
I brought to the attention of the parties that there was a more recent version of the DFAT analysis on Vietnam (dated 11 January 2022) than that lodged with the Tribunal. This report indicates that there are harsh penalties arising from drug-related crime, and that double jeopardy does not arise in practice [4.5], [5.8], [5.11]. I note that there is an indication that there is a risk of violence and retaliation prevalent in some cases of moneylending [3.102-3.107].
At the resumed hearing the Respondent submitted that the evidence did not support a view that Mr Dang would be at risk from ‘loan sharks’ and had, in any event, expressed his intention to repay the loans.
I consider that Mr Dang has raised a plausible claim that he may be at risk of a quite specific kind, on the basis that he has a large outstanding debt to a person in Vietnam. I note that it was only at the hearing that he articulated this, nonetheless it reflects his circumstances and is consistent with country information.
On this basis, I consider that the most reasonable course is to defer consideration of non-refoulement obligations as Mr Dang is in a position to apply for a protection visa. This would allow for a more detailed and thorough consideration of this claim, as well as exploration of his additional claims relating to his criminal record (the Direction, 9.1.2(2)).
I accept that in the case of non-revocation of the mandatory cancellation decision, the Applicant will remain in immigration detention. However, as a result of the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, such detention will not be indefinite and, accordingly, I find that this consideration weighs neutrally.
Extent of impediments if removed
This consideration involves taking account of any impediments a person may face if removed to their home country in the specific context of establishing themselves and maintaining ‘basic living standards’ (in the context of what is generally available to other citizens of that country)’ ( 9.2(1)).
Mr Dang has declared in writing that (G2/N) it would be difficult to build a new life in Vietnam, he does not have qualifications or skills to help him find a job, and available work would pay low wages, noting he still has debts [30]. He declared further that he does not have anyone to support him and his three sisters have their own families and cannot afford to help. However, the Applicant has also stated in writing that if returned to Vietnam he will struggle but would have the option to reside with his parents (G2/U, 225).
I refer to and rely upon evidence summarised above in respect of Mr Dang’s prior life in Vietnam, and his educational and work experience. At the hearing, Mr Dang confirmed that his parents and three sisters continue to reside in or near his home province in Vietnam. He also stated that he has uncles and a large number of cousins. The Applicant stated that he maintains regular contact with his immediate family.
Mr Dang stated in evidence that he uses prescribed medicine for an issue related to or resulting from spicy food and that the condition is ‘OK’.
It was submitted for the Applicant that he would suffer significant impediments if returned to Vietnam, being specifically contended that he would have no financial support and nowhere to live (G2/I [67]). Key barriers are stated to include his limited qualifications and work experience, and contentions raised in respect of risk of harm on return (non-refoulement obligations) are also relied upon under this consideration [68]-[69].
The Respondent contends that Mr Dang has a support network in Vietnam and, contrary to the submissions made by the Applicant about work history, is unlikely to face any difficulty gaining employment (RSFIC [79]-[81]). The Respondent accepts that some emotional hardship may arise from return to Vietnam, but that this be afforded very limited weight [82]. It is submitted that very limited weight in favour of revocation be given to this consideration [83].
In oral submissions, the Respondent identified Mr Dang’s evidence about his ongoing relationship with his family, and his health condition as not altering the weighting contended for in respect of this consideration.
I consider that on the basis of the evidence as a whole, Mr Dang is unlikely to face any substantive hardship should he return to Vietnam, in the context of a basic standard of living. He was born and grew to adulthood in Vietnam and will not face any linguistic or cultural barriers. I consider the evidence amply demonstrates that he has sufficient education and work experience to maintain a basic standard of living. I also consider the evidence to demonstrate that there is a likelihood of him receiving direct and indirect support from his immediate family.
I do accept that it follows from the issue of ongoing indebtedness that Mr Dang may face some challenges in re-establishing himself. He may face some emotional distress about having to return, and this may be compounded by the stress of seeking to address his debts while seeking and maintaining employment.
Accordingly, I find that this consideration weighs slightly in favour of revocation.
Impact on Australian business interests
I do not consider that the evidence in this matter raises issues concerning impact on Australian business interests, and I note it would generally only be given weight where a decision would significantly compromise delivery of a major project or important service.
I therefore find this consideration weighs neutrally.
Further consideration
I noted above evidence given by Mr Dang about his concerns as to the implications of a decision about revocation on his child. The Applicant also made this concern clear in his declaration (G2/N) where he states that his son would be ‘deprived of a life and education in Australia that [they are] entitled to as a permanent resident’ [32]-[33]. This information is accompanied by other concerns such as that Mr Dang’s child would be forced to leave Australia and live with their mother in Hong Kong; as seen from other evidence, these circumstances have already arisen.
I also note that Mr Dang has stated that he has plans to arrange for his son to return to Australia in order to pursue education and to have better opportunities (G2/Y4). I also note the undated correspondence from the Applicant’s child stating that they have no one with them and wish their father to ‘come home’ (G2/T1).
With respect to the child’s visa status I note the decision under review records them as holding a Class AH Subclass 101 Child Visa, and that they hold a permanent visa (G2 [76], [84]).
At the resumed hearing, the Respondent submitted that there is insufficient information about the child’s circumstances to base proper evaluation of this issue. While this submission in its fullest form relates to a particular set of circumstances, nonetheless, I do consider it reasonable to include some additional consideration of the consequences of a decision for the Applicant’s child, particularly given the emphasis put on the relationship between father and child in the decision under review.
Should Mr Dang be permitted to remain in Australia, it may well be that his child would be in a position to return and resume their previous life here. I accept that there is some speculation involved arising not only from the child’s visa status and any associated conditions, but also due to the lack of clarity around the scope of the legal procedures which led to the child’s departure to live with their mother in Hong Kong.
However, given the overall circumstances of the relationship between Mr Dang and his child arising from the evidence as a whole, I consider that some slight weight in favour of revocation should be afforded to this other consideration.
CONCLUSION
Of the primary considerations I have found that Protection of the Australian community and Expectations of the Australian community weigh against revocation. I have found that The strength, nature and duration of ties to Australia weighs carries some limited weight in favour of revocation, and that the other primary considerations weigh neutrally.
Of the other considerations I have found that Extent of impediments if removed weighs slightly in favour of revocation, and the other considerations weigh neutrally. I have found that slight weight in favour of revocation should be afforded to the impact of this decision on the interests of Mr Dang’s son.
The Direction provides that Protection of the Australian community is generally to be given greater weight than the other primary considerations, and that these considerations also generally be given greater weight than other considerations.
In Mr Dang’s circumstances, the evidence and my findings do not raise any countervailing considerations that are strong enough to overturn the generally greater weight I must afford to the first primary consideration, when combined with the fact that he has breached the overarching community expectation by his criminal offending.
For this reason, I find that there is not another reason that the mandatory cancellation decision should be revoked.
FINDING
For the reasons given above the Tribunal decides that the decision under review is affirmed.

I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

..............[SGD]..............
Associate
Dated: 28 June 2024

Date(s) of hearing:

19 and 24 June 2024

Solicitor for the Respondent:

Ms Emma Letcher-Boldt

Solicitors for the Respondent:

Clayton Utz

Date(s) of hearing:	19 and 24 June 2024
Solicitor for the Respondent:	Ms Emma Letcher-Boldt
Solicitors for the Respondent:	Clayton Utz