DJKJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

DJKJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3416 (12 October 2023)
Division:GENERAL DIVISION
File Number: 2023/5515
Re:DJKJ
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:12 October 2023
Date of written reasons: 23 October 2023
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 25 July 2023 that the mandatory cancellation of the Applicant’s Class BS Subclass 801 Partner visa not be revoked is set aside; and in substitution, the cancellation of the Applicant's visa under subsection 501(3A) of the Migration Act 1958 (Cth) is revoked under subsection 501CA(4) of the Act.
.........[SGD]...............................................................
Emeritus Professor P A Fairall, Senior Member
Catchwords
MIGRATION – Migration Act section 501CA(4) – primary considerations – other considerations – whether there is another reason to revoke mandatory cancellation of applicant’s visa – Ministerial Direction No.99 – substantial criminal record – nature and seriousness of the offending –strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – extent of impediments if removed – decision set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
23 October 2023
INTRODUCTION

DJKJ (the Applicant) was born in Vietnam in 1989 and is now 34 years of age. On 5 November 2008, he arrived in Australia on an Independent ELICOS (English Language Intensive Course for Overseas Students) Sector (Subclass 570) visa. He was then 19 years old. In November 2010, he married TH, and on 1 October 2013 he was granted a Class BS Subclass 801 Partner visa (visa).
On 15 June 2018, he was arrested on drug offences relating to the supply of methylamphetamine. His offending occurred in April and May 2018. In essence, at the request of his co-offender, he sourced or attempted to source drugs from one or more suppliers, which the co-offender then supplied to a third party, who was in fact an undercover operative.[1] After his arrest, he was remanded in custody. He has been in custody since 15 June 2018.
[1] G3, 102.
On 4 September 2020, he was sentenced on a plea of guilty in the Downing Centre District Court to an aggregate sentence of seven years imprisonment with a non-parole period of four years.[2] The sentence commenced on 15 June 2018 and concludes on 14 June 2025. The non-parole period ended on 14 June 2022. The court noted that the offences committed were objectively serious, even though the drugs were not disseminated, and therefore no-one was directly harmed by the supply.
[2] G3, 93.
On 28 September 2020, a delegate of the Minister cancelled his visa on the ground that he failed the character test, by reason of the combined effect of paragraphs 501(6)(a) and (7)(c) of the Migration Act 1958 (Cth) (the Act).[3]
[3] G2, 18.
On 20 October 2020, he made representations seeking revocation of the cancellation decision. In his hand-written statement, he addressed issues relating to his offending, the best interests of minor children and the expectations of the Australian community. He also referred to submissions by his solicitor.[4]
[4] G3, 67.
On 25 July 2023, a delegate of the Respondent decided not to revoke, pursuant to subsection 501CA(4) of the Act, the mandatory cancellation of his Class BS Subclass 801 Partner visa (the reviewable decision), and he was duly notified of the delegate’s decision that day.[5]
[5] G2, 18.
In these proceedings, he seeks review of the reviewable decision, as provided for by paragraph 500(1)(ba) of the Act. His application was made on 27 July 2023, within the statutory time limit provided by subsection 500(6B) of the Act. The 84^th day for the purpose of paragraph 500(6L)(c) of the Act is therefore 17 October 2023.
The matter was heard by the Tribunal on 9 and 10 October 2023. The Applicant was represented by Ms T. Baw, of counsel, the Respondent by Mr T. Goodwin, from the Australian Government Solicitor. The Applicant gave oral evidence and submitted to cross-examination. The Tribunal also heard oral evidence from his current partner (TP), his mother, and a psychologist, Mr Chafic Awit.
The Tribunal was assisted by a Vietnamese interpreter.
MATERIALS BEFORE THE TRIBUNAL
Written submissions received:
(a)Applicant’s Statement of Facts, Issues and Contentions (ASFIC) filed on 31 August 2023.
(b)Respondent’s Statement of Facts, Issues and Contentions (RSFIC) filed on 18 September 2023.
The Applicant’s materials:
(a)Applicant’s Tender Bundle (ATB) filed on 31 August 2023.
(b)Applicant’s Additional Evidence filed on 29 September 2023.
(c)Applicant’s Additional Evidence filed on 4 October 2023.
The Respondent’s materials:
(a)Respondent’s Tender Bundle (RTB) filed on 18 September 2023.
Other:
(a)Section 501G Documents filed on 7 August 2023.
FINDING ON THE CHARACTER TEST
It is not in dispute that the Applicant does not pass the character test, having been sentenced to a term of imprisonment of 12 months or more. He therefore fails the character test by reason of the combined effect of paragraphs 501(6)(a) and (7)(c) of the Act.
I note the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (ASA) which came into force on 17 February 2023, stating that the provisions of the Act apply no differently in relation to a single sentence imposed by a court in respect of two or more offences and a sentence imposed by a court for a single offence. The effect of this provision is to abrogate the Federal Court decision in Pearson v Minster for Home Affairs [2022] FCAFC 203.
As noted by a Fact Sheet provided by the Department of Home Affairs, the ASA does not change or expand the circumstances in which aggregate sentences are considered for all relevant purposes of the Act, but simply confirms the long-held understanding that aggregate sentences can be taken into account for all relevant purposes under the Act.[6]
[6] Department of Home Affairs Information Sheet, Aggregate Sentences Act 2023 (homeaffairs.gov.au)
The Applicant was released from immigration detention on 24 December 2022 following the Pearson decision but after the passage of the legislation and some negotiations with the Department of Home Affairs, he reported back to immigration detention on 23 March 2023. In his statement he describes the elation of his release on 24 December 2022 and the crushing impact of being required to return to detention.[7] He was at home for some three months.
[7] G3, 247.
I find that the Applicant does not pass the character test.
EXERCISING THE DISCRETION UNDER SUBSECTION 501CA(4)
Section 499 of the Act provides that the Minister may give written directions to a person or body exercising powers and functions under the Act, where the directions relate to the performance of those functions or the exercise of those powers. Direction No. 99 (the Direction), enacted under section 499 and commencing on 3 March 2023, provides a range of considerations to which the Tribunal should have regard in exercising its discretion under subsection 501CA(4).
Part 1 of the Direction provides a set of principles that the Tribunal should have regard to when applying these considerations. Paragraph 5.2 of the Direction provides:
(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 noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)   Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)   The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)   Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)   With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)   Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Informed by these principles, the Tribunal must approach its statutory task by applying Part 2 of the Direction. Part 2 includes five primary considerations in section 8 and four other considerations in section 9.
The section 8 primary considerations are as follows:
·Protection of the Australian Community (PC1)
·Family violence committed by the non-citizen (PC2)
·The strength, nature, and duration of ties to Australia (PC3)
·Best interests of minor children in Australia affected by the decision (PC4)
·Expectations of the Australian community (PC5)
The section 9 other considerations are as follows:
·Legal consequences of decision under section 501 or 501CA (OC1)
·Extent of impediments if removed (OC2)
·Impact on victims (OC3)
·Impact on Australian business interests (OC4)
These considerations are not exhaustive. There may be some reason not explicitly stated in the Direction which constitutes “another reason” under paragraph 501CA(4)(b)(ii).
The Tribunal’s approach to its task of evaluation was the subject of a recent decision of the Federal Court of Australia: CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 (CRNL). The Full Court (Colvin, Stewart and Jackson JJ) allowed an appeal from a single judge upholding the Tribunal’s decision not to revoke the cancellation of a visa under subsection 501CA(4). One implication of CRNL is that the Tribunal performs its task erroneously by focussing on each consideration in isolation without properly weighing them against one another.[8]
[8] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [26]-[28].
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
I note 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.
The Applicant’s offending does not fall into this category as particularised in the Direction. Specifically, he was not convicted of violent or sexual crimes, or violent offences against women or children.
I also note that the Tribunal must have regard, cumulatively, to the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct; and the likelihood of the Applicant engaging in further criminal or other serious conduct.
The nature of the harm
The Applicant told the Tribunal that he started gambling and using methylamphetamines in 2016. He became addicted because of his marriage breakdown, which occurred in 2017. His estranged wife supports this theory. In her unsworn statement to the Tribunal, she stated:
I understand that [DJKJ] became addicted to drugs and gambling as a result of the breakdown in our marriage… I hope that [DJKJ] is given a chance to stay in Australia as his two sons need him. They have been asking when they can visit and spend time with their father. I would like my sons to have the chance to have the father's and sons’ bond through physical interaction when [DJKJD] is released from prison. Without their father, my children will experience hardship emotionally as they grow up. I believe that he will work and continue to support his children when he is released from prison.[9]
[9] G3, 160.
The sentencing court proceeded on the basis that the marital breakdown was the catalyst for his gambling and drug-taking, and that his offending was related to the indebtedness caused by his addictions. The Tribunal accepts these findings.
In relation to the nature of harm issue, the Tribunal considers that the harm caused by the Applicant’s offending is substantial. He was sentenced on two counts of supply prohibited drug >= large commercial quantity-SI. The drug concerned was methylamphetamine. His sentencing included four other sequences on the Form 1: two counts of Deal with property proceeds of crime < $100000-T2; one count of Supply prohibited drug >= commercial quantity-SI; and one count of Supply prohibited drug >indict. Quantity (not cannabis)-SI.
On this issue, the Respondent tendered extracts from a report published by the NSW Department of Premier and Cabinet relating to amphetamines (the Report).[10] The Report considers the availability of methylamphetamines, and the human consequences of addiction. It is apparent that the widespread use of these drugs is a serious social problem.
[10] Report of the Special Commission of Inquiry into crystal methamphetamine and other amphetamine type stimulants: Part A: RTB, 48-86.
The Report made 109 recommendations, which included the decriminalisation of simple possession of amphetamines. Of relevance to the present context, Recommendation 5 provides:
That the NSW Government develop and implement, as a matter of priority, a whole-of-government AOD [Alcohol and Other Drugs] policy that:
1. recognises that the use of drugs is a health and social issue
…
13. recognises the needs of priority populations, including … people with a mental health condition … and incorporates interventions designed to address the needs of each of these groups
14. includes in its design the perspective and input of people with lived experience of drug use.
In sentencing the Applicant, the Court noted that he had no previous criminal history, and there were strong subjective factors in mitigation. Her Honour found special circumstances, noting:
The Crown accepted that the offender had a strong subjective case and accepted I could find special circumstances.
The offender has presented a strong subjective case.
Having regard particularly to what has been said about him in the Corrective Services case notes, I am prepared to accept the account he gave Mr Ballardie [a forensic psychologist] about his life, the things that were happening in his life at the time of the offending and his motivation for becoming involved, that is that he sold drugs in order to feed his drug addiction and pay his debt.
I am satisfied that he was vulnerable to depression and anxiety and suffered with those conditions from the time he discovered his wife had been unfaithful. He self-medicated by using ice, and his ice use eventually took over his life and made it difficult for him to function effectively at the time of the offences.
I accept he has not used prohibited drugs in custody and is committed to his rehabilitation.
Those matters, the remorse I accept he feels, the insight into his offending he has articulated and as he has the support of his family and partner, some of whom I note are in Court today, do mean that I am satisfied he has good prospects of rehabilitation especially if he follows Mr Ballardie’s suggestions for his mental health.
I intend to find special circumstances to ensure he has extended support on his release from custody to deal with his mental health issues.
I will take into account that COVID-19 has and will make his period in custody more difficult as he is unable to see his partner and child face to- face and as I accept he is living with a real sense of unease about the prospect of COVID getting into the gaol.
I am satisfied no penalty other than imprisonment is appropriate.[11]
[11] G3, 109-110.
With respect, the sentencing judge’s comments relating to the mitigating effect of the relevant mental health factors are in line with the recommendations of the Report tendered by the Respondent.
As an aside, I note that Part B of the Report, entitled “The adequacy of our responses and options to strengthen them” makes a powerful case for adopting a health response, rather than relying solely on the criminal justice system to enforce a prohibition model.[12] On 9 October 2023, the NSW Government announced major changes to the law, implementing many of the recommendations of the Review. However, these developments in the policy framework for dealing with the serious problem of recreational use of methylamphetamines do not detract from the seriousness of the harm caused by the conduct engaged in by the Applicant, and for which he was sentenced to a seven-year term of imprisonment.
[12] See Volumes 2 and 3,
The risk of reoffending
I note the various psychological assessments, including the report by Mr N. Ballardie, Consultant Psychologist, dated 20 July 2020,[13] and referred to in her Honour’s sentencing remarks. Mr Ballardie wrote:
[13] G3, 142.
After considering the facts, his explanation of offending, and assessing and diagnosing [DJKJ], then evaluating his response to treatment and rehabilitation: in my opinion if he was to follow through on the mental health treatment plan provided in this report, his risk of reoffending should be considered low to moderate, taking into account;
1.    the police facts outlining the nature of his offending,
2.    the untreated mental conditions impacting on him during the period of his offending,
3.    his positive engagement during assessment, fair level of insight and motivation to make positive changes in his life,
4.    improvements in his mood and anxiety since having ceased consumption of ice while incarcerated,
5.    a probably causal connection between his mental conditions, external stressors, an exacerbation of his symptoms, excess drug intake, the impact on his behaviours and judgement, and offending,
6.    his consistent employment history,
7.    stated positive changes to the way he socialises and his disassociation from antisocial cohorts,
8.    his reported refraining from prohibited drugs since the index offences and expressed commitment to refrain from them in the future,
9.    his positive relationship with his parents, wife and children,
10. his willingness to undertake further vocational training and treatment for his addictions, and stated commitment to ongoing counselling.
11. his expressed remorse at having offended. (Emphasis added)[14]
[14] G3, 148-149.

The judge was satisfied, based on this psychological report, that “he has good prospects of rehabilitation especially if he follows Mr Ballardie’s suggestions for his mental health.”[15] As extracted above, her Honour referred to his exemplary behaviour in prison.[16]
[15] G3, 110.
[16] See Case reports 2020; G3, 132-133.
I also note the more recent report by Mr C. Awit, registered psychologist, dated 27 August 2023, concluding that his risk of reoffending is low. Mr Awit stated:
[The] writer is of the professional opinion that [DJKJ] is not likely to return to his former addictions whether he is in an uncontrolled environment or not. The conditions that originally led to his development of severe substance abuse and severe gambling were his underlying Anxiety and Depression condition. Despite still suffering these symptoms, the condition appears to have change [sic] over the years. The lead up to the original Anxiety and Depression symptoms felt, was the marriage breakdown, and the perception of lack of support. Since this time, [DJKJ] has gained the support of his family, including his new established family. The level of Anxiety and Depression experienced today is more closely related to the period of time spent in incarceration and the unknown question of whether he would be sent back to Vietnam or not. It is likely his Anxiety and Depression condition would reach full remission within twelve (12) months of treatment, if [DJKJ] is released back into the community. The opinion is based upon [DJKJ] having a good supportive network here, as well as ongoing treatment which is outlined below. [DJKJ] understands what led to his downfall in the past. In that time period he was able to hide his inflictions from his loved ones, but this is no longer a possibility due to his loved ones being aware of his past. This in itself, will likely be a driving factor in keeping him accountable for his actions. Furthermore, he has agreed to ongoing Psychological intervention. He reported not having any Psychological intervention to date or taking medication for a Psychological condition. The only treatment programs he has been in, has been steered towards assisting with his former addictions. However, due to his supportive network, he has seen an improvement of his Anxiety and Depression condition over the years.[17]
[17] ATB, 50-51.
The Respondent acknowledged that the Applicant is not a violent man and has shown considerable remorse for his offending. Nor was it disputed that his marital breakdown was a significant causative factor that led to his offending. The Respondent notes that the Applicant has been assessed at a low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R). This is referred to in the pre-release report prepared by Corrective Services NSW.[18]
[18] RTB, 1.
The Respondent did, however, point to certain factors suggesting that the Tribunal should be slow to find that he was unlikely to reoffend. The Respondent submitted:
33.1. First, while the applicant has engaged in rehabilitation courses at Oakdene House Foundation, including completion of courses in depression management, drug and alcohol abuse, and gambling, and undertaking counselling, these are all relatively recent, being commenced and/or completed in 2023.
33.2. Second, the applicant’s Pre-Release Report states that the applicant was deemed ineligible for therapeutic interventions in custody and as a result, has not completed any offence targeted interventions during his period of incarceration.
33.3. Third, the psychological report of Chafic Awit tendered by the applicant, assessed the applicant’s substance use disorder and gambling disorder to be in ‘sustained remission rather than full remission’, as the applicant had been residing in a controlled environment over the last five years. Where the applicant had the support of his family prior to his offending, it is not clear that the support of his family now would necessarily prevent him from further offending in an uncontrolled environment.
33.4. Fourth, the applicant states that the offending was caused by financial hardship and chronic substance abuse. His drug addiction and gambling addiction caused him to sell drugs to ‘maintain [his] habit and service [his] debt’. Over the two-month period of the applicant’s offending, the applicant was simultaneously working as a self-employed painter, a lawful means of earning money and repaying his debts. Even with an income, the applicant was committing the relevant offences. It is unclear whether if the applicant is returned to the community, he will continue offending, even where opportunities are presented to work lawfully in Australia.
These reasons are, in the Tribunal’s view, insufficient to displace the Tribunal’s confidence that he is unlikely to relapse.
I note that since 2019 the Applicant has undertaken various courses related to his rehabilitation. He completed the EQUIPS drug and alcohol rehabilitation program and the Connect program while he was in prison. As a condition of his parole, he attended the Life Choices program at Oakdene House. He pointed out that at the time he was still recovering from a stroke and seeking medical treatment from medical specialists in the community.
I also note that he was deemed ineligible for certain therapeutic interventions in custody precisely because he was deemed a low risk and did not satisfy the entry criteria. This should not be held against him.
I note in passing that the pre-release report contains spurious and factually incorrect information (including reference to a different party) and I have relied on it selectively and sparingly.
I note that the strong family ties are a protective factor, as well as an offer of future employment from a friend of TP with a digital media company.[19]
[19] ATB, 67.
Conclusion on PC1
The Applicant contends:
62. The nature of the criminal offending is serious, but the conduct if repeated and the harm likely to be caused if they were to be repeated is not so serious that revoking the mandatory cancellation is out of the question. The expert’s opinion is that his potential for future criminal activity is low. [DJKJ] has never minimised his offending behaviour and accepted full responsibility for his conduct, his model behaviour in prison, good behaviour in detention, his drug and gambling addictions are in sustained remission and he continues to pro-actively complete courses and therapies for them – showing that he is well and truly on the way to rehabilitation. Accordingly, this consideration should weigh moderately against revoking the cancellation of his visa.
The Respondent contends that the Tribunal should give this consideration significant weight against revocation.
The Tribunal is of the view that drug offending of this nature is a factor that invariably favours non-revocation of the mandatory cancellation decision. However, I accept the Applicant’s contention that his short-lived foray into the drug underworld was not so serious that revoking the mandatory cancellation is out of the question.
PRIMARY CONSIDERATION 3 – STRENGTH, NATURE AND DURATION OF TIES
I refer to paragraph 8.3 of the Direction.
The Applicant first arrived in Australia on 5 November 2008. He was then 19 years old.
In November 2010, he married TH and they had two children, sons born in 2011 and 2013. The marriage lasted until November 2017, when TH moved to Perth with their children. The marriage had broken down irretrievably. The estranged couple have maintained a cordial relationship. He has not been denied access to his two children. He said that he communicates with his oldest son almost every day, either by voice or text or WhatsApp. His relationship with his oldest son was “really close”. They talked about Kung Fu or swimming. He said his younger son was a little more difficult to talk to. He asked him about school, and they just joked around. He spoke with his younger son perhaps two or three times a week.
In 2017 he met TP and her two children, born in 2006 and 2010. TP is an Australian citizen.[20] TP fell pregnant in around December or January 2018. Their daughter was born in September 2018.[21] It is not disputed that she is the Applicant’s natural child. He was on remand for drug offences when she was born.
[20] G3, 155.
[21] The materials include birth certificates for these five children: G3, 172.
He also spoke with his partner TP every day. He felt guilt and shame for what he had put her through. He said that he lied to her by hiding his drug and gambling addiction, and that sometimes he asked her for money. Yet, she had supported him from the beginning. He said that she was the best partner. The Applicant stated, “She’s been supporting me from the first day … when she found out that, you know, I have a drug addiction and gambling addiction … she still forgave me and wait for me when I’m in custody. Yes, I say she is the best partner you can get.”
He also described a close relationship with TP’s children, his stepson[22] and his stepdaughter. He spoke to his stepson at least twice a week. They spoke about the gym and about his girlfriend. He spoke less with his stepdaughter because she was a teenager and a girl. He kept a respectful distance because she was his stepdaughter. He asks about her school. Both children provided letters of support.[23]
[22] G3, 253.
[23] ATB, 66.
His mother and father both live in Australia as permanent residents. His brother is also an Australian citizen. His parents and brother were present during these proceedings.
He described his life with TP after he was released from detention on 24 December 2022. He said that he lived with TP, but he spent time with his mother every day. He said that he stayed there until the children got back from school. He was still struggling with his health condition, having had a stroke in custody. He found it hard to move around. But he was able to fix and wash the car and look after his daughter and his brother’s daughter (his niece). She was also around at the house. He took his stepchildren to school and picked them up. He was helping his stepson with his driver’s licence.
The parties agree that the Applicant has ties to family and in particular, young children, who all have a right to remain in Australia indefinitely. I am satisfied that the negative impact on his immediate family would be profound.
I also find that he has contributed positively to society, and it cannot be said that he began offending soon after arriving in Australia. The offences in question were committed ten years after his arrival. I note that the Applicant was gainfully employed almost as soon as he arrived in Australia and has worked in various roles, but predominantly as a painter.
In terms of the strength of his social links generally, I note his statement that he used to be a volunteer badminton teacher for the youth at PCYC Cabramatta in 2011. He said that after completing his sentence, he wished to volunteer again:
to teach them to play badminton, and to share my experience to other young Australians in the community so that they can avoid drugs and prohibited substances. I sincerely wants [sic] to give back to the community for the mistake that I made in the past.
I am satisfied that this consideration weighs in favour of revocation.
PRIMARY CONSIDERATION 4 – BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
I have outlined the relationship between the Applicant and each of his children. In short, he has two children with TH, and one with TP, his current partner, as well as two stepchildren with TP.
He has two sons who live in Perth. There is no evidence to suggest that his sons are not well cared for by their mother. It is significant that he has a cordial relationship with her, and that she never denied him access by telephone to the children. As a result, he has a positive and meaningful relationship with them.
He has a daughter with his current partner. She was born in September 2018.[24] She was born with mild to moderate sensory-neural hearing loss in both ears (Bilateral SNHL) of genetic origin and uses a hearing aid.[25] The Applicant said that he spoke with her every day. She had visited him in detention. He had the “best relationship” with her. It was “always special”.
[24] The materials include birth certificates for these five children: G3, 172.
[25] G3, 177.
He also described a close relationship with TP’s children. His stepson was born in 2006 and will soon cease to be a minor.[26] His stepdaughter was born in 2010. The Tribunal notes that he said he kept a respectful distance from her because she was his stepdaughter and a teenager. Indeed, he has an appropriate and caring relationship with each of these children. Each provided a letter of support for their stepfather.[27]
[26] G3, 253.
[27] ATB, 66.
I note that he also has a positive relationship with his brother’s child.
The Respondent accepts that it is in the best interests of the Applicant’s daughter and to some extent, his youngest son, for the cancellation of the Applicant’s visa to be revoked, and that this consideration ought to be given significant weight in favour of revocation.
I consider that this primary consideration weighs in favour of revoking the mandatory cancellation.
PRIMARY CONSIDERATION 5 – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Applicant contends:
83. It is acknowledged that where a person has committed a particularly abhorrent crime or where the evidence indicated the person represents an obvious risk of serious harm, the Tribunal need not moderate the relatively adverse weight attached to the expectations of the Australian community, however, with respect this is not such a case. [DJKJ] was never involved in offending which related to physical violence upon a victim and his conduct was not within the range of conduct listed in the Direction that is viewed as very serious pursuant to para 8.1.1(1)(a) or serious pursuant to paragraph 8.1.1(1)(b).
84. As discussed above, the Applicant has spent all of his adult life in Australia and has contributed to the community by consistently being employed and volunteered, and the Australian community will afford a higher tolerance of criminal conduct for someone who has lived in the Australian community for the past 15 year.
85. [DJKJ] has now been incarcerated for over 5 years and remained drug-free and been of good behaviour throughout that substantial period. This recent behaviour would likely be looked at sympathetically by the Australian community, and which taken together with the aforementioned countervailing factors would significantly reduce the weight to be given to this consideration. Accordingly, the Tribunal should conclude that whilst this consideration weighs against the revocation, only minor weight should be given to it.
The Applicant accepts that this consideration weighs against revocation. Ms Baw argued that various subjective factors, including his vulnerability and mental health condition at the time of his offending, should be considered under this heading. I do not think that the authorities support such an approach.
The Respondent contends that this consideration should weigh heavily against revocation on the basis that the Australian community would expect that a visa holder who has repeatedly engaged in serious criminal conduct would have their visa cancelled.
I am satisfied that one of the principles which govern the framework for decision-making under the Direction is to be found in paragraph 5.2(5), which states:
With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
Although it cannot be said that the Applicant spent his formative years in Australia, he was still a young person when he arrived. It is in my view correct to say that he has lived in Australia from a very young age and that he should be accorded a somewhat higher level of tolerance.
OTHER CONSIDERATION 2 – EXTENT OF IMPEDIMENTS IF REMOVED
He appears to have had an idyllic upbringing in Vietnam, brought up by loving parents in a safe beach area. They had occasional financial stressors, but he rarely saw them argue.
He has been back to Vietnam some 10 times, keeping in contact with his family. Just before his most recent visit, his parents migrated to Australia and now live in Sydney. He has cousins remaining in Vietnam; however, he gave evidence that he had limited contact and was not close with them.[28] Mr Awit’s report expressed the opinion that the Applicant’s family support network is key to his rehabilitation prospects in respect of his anxiety and depressive disorders.[29]
[28] Transcript, 9 October 2023, 46.
[29] ATB, 50.
On 15 October 2021, he suffered a stroke which caused right-side numbness and blindness. He was admitted to hospital.[30] Physicians diagnosed him as having suffered a small medullary ischaemic stroke. He also had a paratracheal mass of unclear origin and a monocular visual impairment apparently unrelated to his medullary stroke. He was subsequently diagnosed with bilateral hypertensive uveitis (glaucoma) with granulomatous inflammation. He continues to receive treatment for this eye condition.[31] He was discharged from hospital on 9 November 2021. He has some enduring weakness on the right side of his body and some difficulty walking.
[30] G3, 228.
[31] G3, 249.
The Applicant has provided a good deal of material relating to health facilities in Vietnam to support the submission that he would not receive adequate treatment or rehabilitation in Vietnam. The Respondent disputed this. It is not necessary to make a positive finding on this point, as I accept Mr Awit’s evidence that a decisive factor in the Applicant’s continued rehabilitation is the support offered by his family. However, the evidence before the Tribunal indicated that the Applicant’s family is settled in Australia and would be unlikely to accompany him if returned to Vietnam.
The Respondent accepts that this consideration weighs in favour of revocation.
CONCLUSION
The parties agree that the following considerations have no application in this case:
·Family violence committed by the non-citizen (PC2)
·Legal consequences of decision under section 501 or 501CA (OC1)
·Impact on victims (OC3)
·Impact on Australian business interests (OC4)
The parties also agree that the following considerations weigh in favour of revoking the mandatory cancellation:
·Strength, Nature and Duration of Ties (PC3)
·Best interests of Children (PC4)
·Extent of impediments (OC2)
However, the Respondent contends that PC1 (the Protection of the Australian Community), and PC5 (Expectations of the Australian community) weigh significantly and heavily against revoking the mandatory cancellation respectively:
Having regard to the applicant’s circumstances as a whole, the correct and preferable decision is to affirm the decision under review. This is because the primary considerations of the ‘protection of the Australian community’ and the ‘expectations of the Australian community’ favour the non-revocation of the mandatory cancellation of the applicant’s visa, and outweigh all other countervailing considerations.
I do not agree with the Respondent’s contention.
The Applicant has provided overwhelming evidence that supports a finding that he is unlikely to engage in further acts of social harm, and that he has the support of a pro-social and loving family and has the capacity to provide moral and economic support for his five children. His criminal conduct occurred over a short time, and he has no other criminal convictions. His behaviour over the five years in prison and detention has been exemplary, despite the difficult circumstances arising from COVID and his own serious health problems.

Moreover, the sentencing judge identified very substantial mitigating factors in his background and the probable causes of his offending. Should he relapse in the future, he is acutely aware of the likely outcome.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 25 July 2023 that the mandatory cancellation of the Applicant’s Class BS Subclass 801 Partner visa not be revoked is set aside; and in substitution, the cancellation of the Applicant's visa under subsection 501(3A) of the Migration Act 1958 (Cth) is revoked under subsection 501CA(4) of the Act.

I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

..........[SGD]..............................................................
Associate
Dated: 23 October 2023

Dates of hearing: 9 and 10 October 2023

Counsel for the Applicant: Ms T. Baw

Solicitors for the Applicant: Legal First Solicitors Barristers

Solicitors for the Respondent: Mr T. Goodwin, Australian Government Solicitor

[2023] AATA 3416

12 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies

Dates of hearing:	9 and 10 October 2023
Counsel for the Applicant:	Ms T. Baw
Solicitors for the Applicant:	Legal First Solicitors Barristers
Solicitors for the Respondent:	Mr T. Goodwin, Australian Government Solicitor