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

Doan and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 52 (30 January 2025)
Applicant/s:  Huu Tri Doan
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/9775
Tribunal:Senior Member G McCarthy
Place:Perth
Date:30 January 2025

Decision: The decision under review is affirmed.

.........[sgnd]...............................................................
Senior Member G McCarthy
CATCHWORDS
MIGRATION – review of decision not to revoke mandatory cancellation of visa under section 501CA(4) of Migration Act 1958 – applicant accepts he does not pass character test: substantial criminal record – whether another reason to revoke cancellation – consideration of Direction No. 110 – Tribunal not satisfied another reason to revoke – decision not to revoke cancellation of visa confirmed
LEGISLATION
Migration Act1958 (Cth) ss 501, 501CA
CASES
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs ]2023] FCAFC 138
Dalzell and Minister for Immigration and Multicultural Affairs [2024] ARTA 17
EGH19 v Minister for Home Affairs (No 2) [2021] FCA 903
Khaled Ayache and Minister for immigration and Border Protection [2018] AATA 186
Frugtniet v ASIC [2019] HCA 16
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hoang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4139
HSRN and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 4377
Khalil v Minister for Home Affairs [2019] FCAFC 151
Manebona and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 3321
SCJD and Minister for Home Affairs [2018] AATA 4020
Uelese v Minister for Immigration and Border Protection54 [2015] FCA 358
YNQY and Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
“DFAT Country Information Report Vietnam” dated 11 January 2022
Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA (dated 22 December 2014)
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (dated 7 June 2024)
REASONS FOR DECISION
Senior Member G McCarthy
30 January 2025

By application dated 26 November 2024, Mr Huu Tri Doan (Mr Doan) applied for review of a decision of the delegate of the Minister dated 19 November 2024 not to revoke the mandatory cancellation of Mr Doan’s visa.[1] The cancellation occurred, by operation of law, on 20 January 2024 under s 501(3A) of the Migration Act, 1958 (Cth) (the Act) consequent on Mr Doan’s conviction and sentence to two terms of imprisonment arising from him being found guilty of two prohibited drug charges. Mr Doan was convicted and sentenced on 22 November 2023 in the District Court of South Australia (the Court). The details of those convictions are recorded on an Australian Criminal Intelligence Commission check results report as follows:
(a)Cultivate large commercial quantity of controlled plant. Convicted and sentenced to 3 years 4 months and 24 days imprisonment.
(b)Traffic in large commercial quantity of controlled drug. Convicted and sentenced to 3 years, 9 months and 18 days imprisonment.[2]
[1] A Class BB Subclass 155 Five year Residential Return visa.
[2] Exhibit R1, section 501G documents, page 31, G6, Attachment A.
The controlled plant, referring to the first charge, and the controlled drug, referring to the second charge, was cannabis. The Court, per Muscat J, ordered the terms of imprisonment be served concurrently, meaning the head sentence was 3 years, 9 months and 18 days imprisonment.
Mr Doan was arrested on 1 April 2022 when found hiding inside one of the properties where cannabis plants were being commercially cultivated. Mr Doan was refused bail and remained in custody from that date until sentenced on 22 November 2023. Muscat J fixed a non-parole period of one year and 11 months, with the sentence to commence from 1 April 2022.[3]
[3] Exhibit R1, section 501G documents, page 34, G6, Attachment B.
On 24 July 2024, the Parole Board of South Australia ordered that on 22 August 2024 Mr Doan could be conditionally released on parole with his parole to expire on 18 January 2026.[4] Consequent on the earlier cancellation of his visa on 20 January 2024 and his release on parole, on 22 August 2024 Mr Doan was transferred to the Yongah Hill Immigration Detention Centre in Western Australia (Yongah Hill) where he continues to be detained.
[4] Exhibit R1, section 501G documents, page 60, G6, Attachment H.
On 16 February 2024, following cancellation of his visa, Mr Doan made representations for why the cancellation of his visa should be revoked in accordance with an invitation to do so under s 501CA(3)(b) of the Act. Section 501CA relevantly provides:
Cancellation of visa--revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non - disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(3A) The notice under subsection (3) must be given in the prescribed way.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(5) If the Minister revokes the original decision, the original decision is taken not to have been made.
The internal-review delegate had two questions to consider, under s 501CA(4)(b) of the Act, for the purpose of deciding whether to revoke the cancellation.
The first was whether Mr Doan passed the character test prescribed under s 501(6) of the Act. In SCJD and Minister for Home Affairs (SCJD),[5] the Administrative Appeals Tribunal (the AAT), per SM Cameron, noted that a person does not pass the character test if they have a substantial criminal record (as defined in s 501(7)). Under s 501(7)(c) a person has a substantial criminal record where the person has been sentenced to a term of imprisonment of 12 months or more; or under s 501(7)(d) where a person has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.
[5] [2018] AATA 4020 at [39].
In this case, each term was for more than 12 months and the total exceeded seven years. Accordingly, the delegate found Mr Doan did not pass the character test.
The second question, given the answer to the first, was whether there was ‘another reason’ ‒ that is, a reason other than Mr Doan passing the character test ‒ that warranted revocation of the visa cancellation. In addressing this question, the delegate was required to apply any direction issued under section 499 of the Act. In this case, Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, dated 7 June 2024 (Direction 110) was in force. Having applied Direction 110, the delegate concluded:
94. On balance, I find that the factors that weigh against revocation of the cancellation decision outweigh the factors in favour of revocation. Therefore, I am not satisfied that there is another reason for why the decision to cancel Mr DOAN’s Class BB Subclass 155 Five Year Resident Return [visa] should be revoked. It follows that the condition under s 501CA(4)(b)(ii) of the Act is not met.[6]
95. Since I am not satisfied that Mr DOAN passes the character test, nor am I satisfied that there is another reason why the cancellation decision should be revoked, my power under s 501CA(4) to revoke the cancellation decision is not enlivened and Mr DOAN’s visa remains cancelled.
[6] Ex R1, 21ff.
On review, the Tribunal’s function is to hear the matter afresh and to decide what it considers to be the correct or preferable decision on the evidence before it.[7]
[7] See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51].
BACKGROUND FACTS
Mr Doan was born in Vietnam, on 7 March 1971.[8] He states he met his future wife, Thanh Thao Nguyen (Thanh), in 1995. They married on 29 August 2000 in Vietnam. His wife, from whom he has been separated since 2020 but not divorced, is an Australian citizen.
[8] Exhibit R1, section 501G documents, page 91, G6, Attachment O.
Mr Doan came to Australia on 28 September 2001, aged 30, and has resided here ever since. He was granted a permanent Class BC Subclass 100 (Spouse) visa on 7 January 2003.
Mr Doan has two children from his marriage. He has a daughter, Cindy Doan, born on 11 September 2002 and a son, Anthony Doan, born on 27 April 2007. He also has a step-son, Harry Doan, born on 30 March 1998. Harry grew up with Mr Doan, Thanh, Cindy and Anthony. On the evidence, which I accept, Harry grew up and was treated as a child of the marriage. He did not find out Mr Doan was not his biological father until 2020.
Mr Doan and his wife and their two children (at the time) first lived in a house owned by Thanh’s parents in Ballajura, Western Australia. Ballajura is a suburb in Perth. From 2005, they lived in a house they bought at Bennett Springs, Western Australia, with the assistance of a loan (subject to a mortgage on the property) from the Westpac Bank. Bennett Springs is another suburb in Perth. Mr Doan gave evidence, which I accept, that he and his wife brought up their children in a loving and supportive manner. Each of the children gave written evidence, which I accept, that their father supported them through school and sporting activities in a loving and caring manner.
From 2005 until around 2013, Mr Doan ran a sewing business with Thanh, which operated under the name TT Sportswear. The business was properly run and provided an income for Mr Doan and his family.[9]
[9] Statutory declaration of Mr Doan dated 6 January 2025 at [29]-[30].
The sewing business ceased around 2013. From 2013 to 2018 (or so), Mr Doan set up a billiard hall for billiards, snooker and pool. It had seven or eight tables and people paid to play. Mr Doan stated the business generated an income of about $400 gross a day from which he then paid rent and tax. Mr Doan used remaining money to support his family and his domestic expenses. Mr Doan gave oral evidence that the billiard table business closed in 2017 and that he was unemployed from then.
In or around 2020, Mr Doan’s life unravelled. He discovered his then wife had a serious gambling problem. Mr Doan gave evidence that his wife forged his signature on some loan documents to borrow $93,000 from Westpac[10] which, I presume, she then lost through gambling. He stated he does not know the exact amount his wife “gambled away”.[11]
[10] Statutory declaration of Mr Doan dated 6 January 2025 at [37].
[11] Statutory declaration of Mr Doan dated 6 January 2025 at [38].
Mr Doan stated that when he discovered what his wife had done, he felt “totally betrayed”. He states that all the effort of working hard to pay off their home “was ruined”.[12]
[12] Statutory declaration of Mr Doan dated 6 January 2025 at [39].
The mortgage on their house in Bennett Springs fell into arrears. Westpac took possession of it and sold it in 2021. Mr Doan states, and I accept, that he does not have any documents relating to the sale. He does not know whether the proceeds of sale covered the amount owed to the bank and he is not aware of any demands from Westpac to cover any shortfall.[13]
[13] Statutory declaration of Mr Doan dated 6 January 2025 at [42]-[44].
Mr Doan states he did not want to continue living with his wife and did not want to stay “anywhere near her or her family”.[14] In 2020 he moved to Adelaide.[15] Why he moved to Adelaide was not really explained. Counsel for Mr Doan could only offer that Mr Doan was running away from financial problems and the problems with his wife. At hearing, Mr Doan said he did not know anybody in Adelaide except a friend, Thanh Dao Nguyen (Dao), who later engaged Mr Doan to participate in the above-mentioned criminal offences. Mr Doan said, and I accept, that once in Adelaide he rented a room in a house at a cost of $200 per week and obtained work as a handyman, painter and/or labourer for which he was paid $100 a day.[16]
[14] Statutory declaration of Mr Doan dated 6 January 2025 at [38].
[15] Statutory declaration of Mr Doan dated 6 January 2025 at [39].
[16] Statutory declaration of Mr Doan dated 6 January 2025 at [56]-[57].
Mr Doan’s claim about his wife’s gambling problem leading to her forging his signature on loan documents and their financial ruin was difficult to reconcile with his evidence that once in Adelaide, between 2020 and 2022, he sent her money totalling about $1,000, especially where it would seem he had very little financial means to support himself. It was also difficult to reconcile with his evidence to the Tribunal and earlier to the Court that he engaged in the above-mentioned criminal offences to obtain money to pay off his wife’s credit card debts, especially where, as he said in his oral evidence at the hearing in this proceeding, the debts were on his credit card that his wife had fraudulently used. However, whatever may be the case, I accept as did the Court that Mr Doan engaged in the above-mentioned criminal offences for the purpose of financial gain.
Mr Doan first worked for Dao as a driver because Dao did not have a driver licence. The Court’s sentencing remarks record that Mr Doan became aware that Dao was involved in looking after cannabis plants being cultivated inside a property and that Mr Doan agreed to participate in that illegal activity for which he would be offered a modest cash sum once all of the plants were harvested. The Court records Mr Doan knew what he was doing was illegal and Mr Doan acknowledged that to be so in this proceeding. That knowledge was supported by a report from a forensic psychologist, Dr Lim, dated 20 April 2023 which was before the Court for the purpose of sentence. The report records Mr Doan was suffering from a chronic adjustment disorder with depressed mood in the lead up to and around the time of him committing the offences, likely associated with his marital problems arising from his wife’s severe gambling addiction, but his decision to involve himself in the offending “appeared to be primarily motivated by financial gain”. Dr Lim also records Mr Doan “appeared to be fully cognisant of the unlawfulness of his offending conduct at the time.”
Dr Lim also records:
[Mr Doan’s] risk of re-offending is likely to become elevated if his psychosocial circumstances, such as financial stress, unstable housing, and interpersonal relationship conflicts, remain unstable upon his completion of his prison sentence, as this may trigger the return of his reactive depressive symptoms. In turn, his judgement and decision-making skills may become compromised. It is therefore suggested that a psychosocial assessment be conducted .. just before he is released into the wider community.
I was not taken to any evidence that a psychosocial assessment was conducted, although at hearing he was asked whether he had done any courses or programs to help prevent him from reoffending. Mr Doan said he did not attend such courses because of his limited ability to speak the English language.
Turning to his family circumstances, Mr Doan said he has good relationships with his children, but that needs to be understood in the context of other evidence. Mr Doan said he knew Harry lives with his girlfriend in the Perth suburb of Darch, but does not know the address. He knows that his daughter, Cindy, lives with his wife but does not know where.[17]
[17] Statutory declaration of Mr Doan dated 6 January 2025 at [61] -and [63].
Cindy spoke positively about her relationship with her father during her childhood, but said the last time she saw her father was around 2020 before he moved to Adelaide and that he never came back to visit them in Perth.[18] She said she knew her father had been in prison, but did not know for what offence and had no contact with him when he was in prison.[19] She said she currently speaks with Mr Doan “on the telephone maybe once or twice each week”,[20] meaning while he is presently at Yongah Hill. However, on the evidence, she has not visited him.
[18] Statutory declaration of Cindy Doan declared 3 January 2025 at [20].
[19] Statutory declaration of Cindy Doan declared 3 January 2025 at [21].
[20] Statutory declaration of Cindy Doan declared 3 January 2025 at [22]-[23].
Anthony also described a happy childhood with his father, but likewise said the last time he saw Mr Doan was around 2020, when Anthony was about 13, before Mr Doan moved to Adelaide.[21] He said that after Mr Doan moved to Adelaide “he would call me occasionally and especially for events such as birthdays and Christmas.”[22] Anthony likewise stated he had no contact with his father when he was in prison and only recently found out that he was in prison.[23] Anthony likewise stated “we now speak to each other around 1-2 times/week”[24] meaning while he is presently at Yongah Hill. However, on the evidence, he too has not visited him. Anthony said he will be very upset if his father is forced to leave Australia permanently. He said he would like to have another adult to talk to other than his mother and “I look forward to the telephone calls that we are now having.”[25] He said he would like his father’s support because his mother is opposed to him taking 2025 as a gap year.[26]
[21] Statutory declaration of Anthony Doan declared 3 January 2025 at [16]-[20].
[22] Statutory declaration of Anthony Doan declared 3 January 2025 at [21].
[23] Statutory declaration of Anthony Doan declared 3 January 2025 at [25]-[26].
[24] Statutory declaration of Anthony Doan declared 3 January 2025 at [24].
[25] Statutory declaration of Anthony Doan declared 3 January 2025 at [27].
[26] Statutory declaration of Anthony Doan declared 3 January 2025 at [28].
Harry, who is older than his siblings, recognised in 2020 that his parents’ marriage was deteriorating and knew his parents were separating permanently when Mr Doan moved to Adelaide. He said he was very conflicted and angry that his parents did not tell him until 2020 that Mr Doan was not his biological father.
Harry likewise described a positive relationship with his father during his childhood, but rarely talked to him after he moved to Adelaide.[27] Harry said the last time he saw Mr Doan “was at an end of year dinner, this was while he was in Adelaide, and he came back to Perth to visit us.”[28] When this occurred and why (apparently) Mr Doan did not see his other children was not explained.
[27] Statutory declaration of Harry Doan declared 5 January 2025 at [20].
[28] Statutory declaration of Harry Doan declared 5 January 2025 at [24].
Harry likewise stated “Since he has been in detention, we speak on the phone perhaps 2 or 3 times each week”[29] meaning while he is presently at Yongah Hill. However, on the evidence, Harry too has not visited Mr Doan.
[29] Statutory declaration of Harry Doan declared 5 January 2025 at [23].

Harry said that if Mr Doan is allowed to stay in Australia he was prepared to look after him and “return the commitment and sacrifices he has made for our family over the years.”[30] Harry said he is “very concerned about the effect that [Mr Doan’s] absence will have on Cindy and Anthony. He is, after all their father.”[31] Harry stated that if his father went back to Vietnam “there would be a huge emotional and mental impact on me, the separation will lead to feeling loss, loneliness and emotional instability for me.”[32]
[30] Statutory declaration of Harry Doan declared 5 January 2025 at [29].
[31] Statutory declaration of Harry Doan declared 5 January 2025 at [36].
[32] Statutory declaration of Harry Doan declared 5 January 2025 at [41].
THE CHARACTER TEST: SECTION 501CA(4)(b)(i)
Mr Doan accepted he does not pass the character test.[33] Having regard to his convictions and sentence and the definition of “substantial criminal record” in s 501(7) of the Act, that acceptance was plainly right. I find accordingly.
[33] Applicant’s statement of facts and contentions dated 6 January 2025 at [1].
ANOTHER REASON: SECTION 501CA(4)(b)(ii)
Whether there is another reason for why the cancellation of Mr Doan’s visa should be revoked requires consideration of Direction 110.
In SCJD, SM Cameron noted the application of Ministerial directions as follows:
Under section 499(1) of the Act the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act such as the Tribunal must comply with such direction (section 499(2A) of the Act).[34]
[34] [2018] AATA 4020 at [8].
In Khaled Ayache and Minister for immigration and Border Protection (Ayache), the AAT per DP Forgie, noted that a direction given under section 499 is not a legislative instrument. Rather, it is “the Minister’s statement of the Government’s views.”[35] However, as DP Forgie, added:
To the extent that those views are consistent with the law, which in this case is s 501, s 499 of the Migration Act requires the Tribunal, among others, to comply with [in that case] Direction No 65. There is no question about that.[36]
[35] [2018] AATA 186 at [62].
[36] [2018] AATA 186 at [62].
In this case I must comply with Direction 110 for the purpose of determining whether there is another reason for why the cancellation of Mr Doan’s visa should be revoked.
The starting point is the eight principles in paragraph 5.2 of Direction 110:
5.2. Principles
The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 50 IC A. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2. (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 noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
Direction 110 then moves, in Part 2, to the topic: “Making a decision”. Paragraphs 6, 7, 8 and 9 in Part 2 state:
6. Making a decision
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
7. Taking the relevant considerations into account
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
8. Primary considerations
In making a decision under section 501(1), 501(2) or 501CA(4), the following are 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;
(5) expectations of the Australian community.
9. Other considerations
(1) In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interests
In Manebona and Minister for Immigration, Citizenship and Multicultural Affairs, SM Manetta commented on the operational Direction 110 as follows:
The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in subparagraphs numbered (1) to (8). I set out some of the salient features of these principles.
First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, the safety of the Australian community is the highest priority of the Australian Government. Accordingly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia, and the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct may, however, be afforded to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may prove insufficient justification (to warrant not cancelling the visa, not refusing the visa, or revoking a mandatory cancellation), and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.[37]
[37] [2024] AATA 3321 at [25]-[27].
I agree with and adopt those statements.
In CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (CRNL),[38] cited by M Gallager in Dalzell and Minister for Immigration and Multicultural Affairs (Dalzell),[39] a Full Court of the Federal Court commented on an earlier direction, Direction No. 90. It found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction against each other and undertake an evaluation of whether there was ‘another reason’ for why the cancellation should be revoked.[40] In Dalzell, M Gallagher commented that the Court’s observations apply equally to Direction 110.[41] I agree.
[38] ]2023] FCAFC 138.
[39] [2024] ARTA 17 at [134]-[135].
[40] ]2023] FCAFC 138 at [139].
[41] [2024] ARTA 17 at [158].
Paragraphs 8.1 - 8.5 set out factors to which decision-makers (and for present purposes the Tribunal) should have regard when applying the primary considerations.
Paragraph 8.1(1) states, among other things, decision-makers “should keep in mind that the safety of the Australian community is the highest priority of the Australian Government.” Paragraph 8.1(2) states decision-makers should also give consideration to “the nature and seriousness of the non-citizen’s conduct to date; and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.”
Paragraph 8.1.1 provides details, when considering “the nature and seriousness of the conduct”.
Paragraph 8.1.1(a) opens with the words “without limiting the range of conduct that may be considered very serious”, and then notes “types of crimes or conduct [that] are viewed very seriously by the Australian Government and the Australian community”. The types listed are crimes of a violent or sexual nature. They are not applicable in this case, and there is no suggestion Mr Doan’s crimes should be considered “very serious” for the purpose of Direction110.
Paragraph 8.1.1(b) likewise opens with the words “without limiting the range of conduct that may be considered serious”, and then describes “types of crimes or conduct [that] are considered by the Australian Government and the Australian community to be serious”. The four types listed are not applicable in this case.
Counsel for Mr Doan properly accepted, by reason of the words “without limiting the range” in paragraph 8.1.1 (b), that conduct not listed could be serious. He accepted too that conduct resulting in imprisonment for 12 months or more is serious, but submitted there is a “spectrum of what is serious”. He made comparisons with terrorism and serial killing to submit Mr Doan’s offences are at the lower end of serious offences. He relied on the short term of imprisonment Mr Doan received, and the shorter term he served, in comparison to what a person might receive for a terrorism offence. He submitted the total sentence for the two offences of a little more than seven years imprisonment is “a long way from life” that might be imposed for a terrorism offence.
Counsel for the Minister submitted Mr Doan’s crimes should be viewed as serious. She drew on the observations of SM Cameron in SCJD regarding drug offences:
1. The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person’s drug dependency. There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
1. In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.
1. There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.[42]
In SCJD, the drugs trafficked were amphetamines and heroin, which some regard as more dangerous, and so the trafficking more serious, because of the high risks of addiction and consequential crimes committed by addicts to fund their addiction. In answer, counsel for the Minister relied on a decision of the AAT in Hoang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Hoang) in which SM Evans-Bonner considered an application for review of a decision not to revoke the cancellation of the applicant’s visa in the context of cultivation and possession of cannabis offences. In Hoang, the AAT noted the above-mentioned observations of the AAT in SCJD about the harmful effects of illicit drugs on the community. It also noted the Court’s comments, when sentencing Mr Hoang, about the harmful effects of cannabis on the community.[43] In Hoang, the applicant was sentenced to an effective term of three years and three months imprisonment for the trafficking and cultivation of cannabis offences which is materially the same as the sentence imposed on Mr Doan. In Hoang, the AAT concluded the offences should be regarded as serious.[44]
[43] [2021] AATA 4139 at [45].
[44] [2021] AATA 4139 at [49] and [54].
I accept counsel for Mr Doan’s submission that the offences in this case are not at a level of seriousness comparable with terrorism or serial killing, but in my view they should still be regarded as serious. Not to so regard would, in my view, be inconsistent with the sentences and non-parole period imposed by the Court and with the large commercial quantities of cannabis involved. In my view, that Mr Doan’s crimes were serious and put at risk the safety of the Australian community counts against revocation of the cancellation of his visa.
I accept however that in the context of serious offences, Mr Doan’s offences were at the lower end. For this reason, I do not regard the offences as decisive, in the sense that “simply because” of the nature of the offences (to refer to paragraph 8.5 of Direction 110 mentioned below regarding expectations of the Australian community), Mr Doan should expect not to continue to hold a visa. Other primary considerations, and other considerations including the kinds listed in paragraph 9 of Direction 110 where relevant, should be weighed in the balance when deciding whether to revoke.
Paragraph 8.1.2 of Direction 110 addresses the risk to the Australian community should Mr Doan reoffend or engage in other serious conduct.
Counsel for Mr Doan acknowledged it could not be said there is no risk of Mr Doan reoffending. He referred to EGH19 v Minister for Home Affairs (No 2) in which the Federal Court, per Griffiths J, said with reliance on the opinion of an expert witness in that case “there is simply no category of “nil risk” on standardised risk measures and that it is never possible to rule out the possibility of further offending.”[45] Counsel for Mr Doan submitted, however, that the risk is low. He relied on Mr Doan’s acknowledgement of his crimes, his contrition, the statistical improbability of him re-offending at his age and a “Risk of Reoffending” profile used by the Department of Corrections (SA) which scored his risk of reoffending at 1 out of 20, with 20 being the highest risk.
[45] [2021] FCA 903 at [29].
Counsel for the Minister submitted Mr Doan presents “a real and not insignificant risk of reoffending”,[46] having regard to the crimes occurring in the context of financial hardship which is likely to continue were he to return to the community, but at hearing accepted the risk to be low.
[46] Minister’s statement of facts and contentions dated 13 January 2024 at [41].
I accept the risk to be low, but consider it nevertheless to be real. Mr Doan has been detained in prison and subsequently at Yongah Hill for nearly 3 years as a consequence of his crimes for which he hoped to make a modest amount of money, some $200, that was never paid. The consequence for him of his crimes has been significant. I accept his contrition. Were he to be released into the community, especially at his age and with his background, which does not involve any other offences save for a drink driving offence in 2016, I think he would be reluctant to reoffend, having suffered such consequences. This counts in favour of revocation.
On the other hand, Mr Doan committed the offences purely for financial gain in circumstances of him being unemployed and with limited means of paying his daily living expenses, however frugal his lifestyle. Mr Doan’s circumstances have not materially changed. I refer to the report from Dr Lim, relied on by Mr Doan, in which she comments that the risk of Mr Doan re-offending “is likely to become elevated” if his psychosocial circumstances, such as financial stress and unstable housing, remain unstable upon completion of his prison sentence.
True, Mr Doan has an offer of full-time employment as a kitchen hand in a Vietnamese restaurant and claims to have an offer of accommodation were he to return to live in Perth, but I have concerns about the weight I should place on those offers for the reasons set out below.

In my view, the evidence suggests Mr Doan’s existing and future financial circumstances are likely to be materially the same as they were prior to him committing the offences. Where the offences were committed purely for financial gain, and where he “appeared to be fully cognisant of the unlawfulness of his offending at the time,”[47] yet was willing to commit the offences, I feel obliged to conclude the risk of him re-offending for financial gain may be low but is nevertheless real.
[47] Report of Dr Lim, forensic psychologist, dated 20 April 2023.
The real risk of re-offending ways against revocation, but not heavily where I consider the risk to be low.
The second primary consideration in paragraph 8 of Direction 110 is whether Mr Doan engaged in family violence. There is no suggestion he did so, or would do so or has a violent tendency. This consideration, which would have counted heavily against revocation, is not relevant and I put it aside.
The third primary consideration is the strength, nature and duration of Mr Doan’s ties to Australia. Paragraph 8.3 details this consideration as follows:
8.3. The strength, nature and duration of ties to Australia
(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
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.
Counsel for Mr Doan focused on the 20 years or so from when Mr Doan arrived in Australia, age 30. He noted the successful sewing business run by him and his wife followed by him running the billiard hall. He relied on the happy childhood Mr Doan provided to his three children and his active involvement in their lives in the context of their schooling and sporting activities. He submitted Mr Doan worked hard and contributed to his community, until everything unravelled around 2020 consequent on his wife’s gambling problem.
Regarding Mr Doan’s immediate family members, and relevantly his children, counsel relied on their evidence of a happy relationship with their father when they were children which they would like to renew even though it is four years since they have seen him. He relied on their evidence, which I accept, that they would be upset if he were forced to return to Vietnam.
Regarding employment, were Mr Doan to remain in Australia, the Tribunal received evidence in the form of a letter to Mr Doan entitled “Formal Job Offer” from Mr Nguyen, the manager of a Vietnamese restaurant in Perth, offering Mr Doan permanent, full-time employment as a kitchen hand in the restaurant. There were no details regarding Mr Doan’s proposed wages or what his work would entail. Mr Nguyen gave oral evidence. He stated he knew Mr Doan had been in prison but did not know why.
I was unable to place material weight on this evidence. Employment as a kitchen hand is heavily dependent on performance. In 2017, Mr Doan closed his billiard hall and was unemployed for several years afterwards. I expect opportunities to work as a kitchen hand in a restaurant during those years would have been readily available which suggests Mr Doan could have obtained work as a kitchen hand but chose not to. Mr Doan is now 54 years old. In all, I accept he has the offer, but I am concerned about his willingness to work as a reliable kitchen hand in the longer term and, therefore, the willingness of his prospective employer to continue his employment in the longer term were his performance to wane.
My concerns about him working as a kitchen hand were compounded by his evidence at hearing. When asked about what would happen if he again needed money, he said he would visit Centrelink and ask them to help him find employment and that his friends have offered or would offer him employment opportunities. He made no mention of the offer as a kitchen hand.
Regarding accommodation, Counsel for Mr Doan referred to Mr Doan’s statutory declaration in which he states he has a friend, Mr Thai, who knows the owner of a property in Marangaroo, WA, Mr Nguyen,[48] and that his friend says Mr Doan will be able to rent a room in Mr Nguyen’s property.[49] In the absence of any direct evidence from the owner as to whether this information is true or, if it is, the rent arrangements including the amount of the rent payable or the term for which Mr Doan could rent the room, it is difficult to place much weight on this evidence. Nevertheless, I accept that if Mr Doan is able to return to Perth, he will likely find accommodation of some kind somewhere.
[48] I presumed this person is no relation of the manager of the restaurant who has offered Mr Doan employment as a kitchen hand.
[49] Exhibit A1, document 1 at [67]-[69], page 6.
Counsel for the Minister acknowledged Mr Doan’s children would likely be upset if Mr Doan were compulsorily returned to Vietnam, but noted they have not seen their father since he went to Adelaide in 2020 and that his ability to provide emotional support for them since then has been limited. Counsel submitted the impact of him being absent and separated from his children since 2020, by his own choice, has already been felt and experienced.
Counsel for the Minister acknowledged the evidence that Mr Doan’s children have been talking with their father 1-2 times per week since he was transferred to Yongah Hill, but noted that if Mr Doan was deported to Vietnam his children would continue to be able to talk to him by telephone in the same way they do now.
Counsel for the Minister submitted, for these reasons, that if Mr Doan was deported the impact on his children would not be significant and that this factor weighed lightly in favour of revocation.
In my view, the evidence suggests the impact of the decision to revoke Mr Doan’s visa on his immediate family members in Australia will not be significant.
Mr Doan has no wish to see his wife, and there is no evidence to suggest she or her family wish to see him. Muscat J’s sentencing remarks included that notwithstanding his wife having a serious gambling addiction and that the marriage was falling apart, she informed Mr Doan “of her intention to seek a divorce”. Why she had that intention was not explained.
Evidence of a meaningful and/or positive relationship with his children is equivocal. Harry says he “rarely talked to [his father] after he moved to Adelaide” in 2020.[50] Harry says he last saw his father when he came back to Perth for an end of year dinner, but this evidence is uncertain: why he would visit Harry, but not his naturally born children, is not explained. His daughter, Cindy, says she last saw her father before he moved to Adelaide and that he never came back to visit his children in Perth. His son, Anthony, likewise says the last time he saw Mr Doan was “around 2020 before he moved to Adelaide” and that after he did so, Mr Doan called Anthony “occasionally and especially for events such as birthdays and Christmas”.[51]
[50] Statutory declaration of Harry Doan made 5 January 2025 at [20].
[51] Statutory declaration of Anthony Doan made 3 January 2025 at [21].
The children state they miss their father[52] and would be very upset if he was forced to leave Australia[53] and that being (again) with their father would provide them with “essential emotional support” which they “currently lack”. Whilst I accept their evidence, it needs to be tempered by the facts.
[52] Statutory declaration of Cindy Doan made 3 January 2025 at [24].
[53] Statutory declaration of Anthony Doan made 3 January 2025 at [27].
Whilst I accept Mr Doan wanted to “get away” from his wife, from their arguments about money and from the problems she had caused,[54] there was no evidence to explain his choice to go to Adelaide, approximately 2,000 km away from his children. There is no evidence to suggest he went there to take up employment or to explain why he chose Adelaide and, on his evidence, he knew only one person in Adelaide. To choose to put so much distance between himself and his children for no apparent or stated reason is not consistent with an important relationship with them.
[54] Statutory declaration of Huu Doan made 6 January 2025 at [52].
I also take into account that after Mr Doan was transferred from prison in South Australia to Yongah Hill, approximately 100 km from Perth where his children live, they have spoken weekly or so with him on the telephone but have never come to see him. Where Mr Doan’s visa has been cancelled, they have not seen Mr Doan since 2020 and he faces the prospect of deportation to Vietnam, his children not visiting him when he has been residing relatively close to them since 22 August 2024 is not consistent with a positive relationship with their father or a wish for a positive relationship to be renewed.
More broadly, there was no evidence of Mr Doan having friendships with anyone else living in Australia or community ties to any aspect of the Australian community. I accept he contributed positively to the Australian community, in the context of running his sewing and billiard room businesses, but he was unemployed from 2017. There was no evidence as to whether he sought or tried to engage in further work.
I take into account that Mr Doan arrived in Australia age 30, not as a young child.
At hearing, Mr Doan gave oral evidence that he returned to Vietnam “16-17 times” whilst living in Australia. Allowing for the Covid-years where international travel was problematic if not impossible and Mr Doan being in prison or in detention since 1 April 2022, Mr Doan’s evidence suggests he returned to Vietnam approximately annually. At hearing, Mr Doan said when he returned to Vietnam he stayed in his parents’ house and was visiting them.
The absence of any evidence to suggest community ties to Australia and his frequent return trips to Vietnam notwithstanding his frugal means, suggests that whilst he prefers to live in Australia his community ties are more to Vietnam than Australia.
In my view, the strength, nature and duration of Mr Doan’s ties to Australia weigh lightly in favour revocation.
The fourth primary consideration in paragraph 8 is the best interests of minor children in Australia.
Counsel for Mr Doan submitted this consideration weighs in favour of revocation. He relied on the circumstances of Anthony who is a minor, aged 17, but who turns 18 on 27 April 2025. In his statutory declaration, Anthony refers to his positive childhood experiences with Mr Doan and that he would be very upset if Mr Doan were forced to leave Australia permanently. He states his mother is opposed to him having a ‘gap year’ in 2025 and he would like his father’s support. As I understood it, Anthony was referring to wanting his father’s support for him to have a gap year.
Again, consideration of what would be in Anthony’s best interests, as a minor, needs to be tempered by the facts. By his own choice, Mr Doan went to Adelaide in 2020 when Anthony was about 13 years old and has not seen his son since. Subsequent to going to Adelaide, Mr Doan called Anthony only “occasionally” especially for events such as birthdays and Christmas.[55] Anthony states that now that Mr Doan is at Yongah Hill, they speak to each other by telephone 1-2 times per week, but Anthony has not visited him despite him being there since 22 August 2024 and Yongah Hill being approximately 100kms from Perth where Anthony lives. Anthony’s communication with his father is by telephone, and he will continue to be able to communicate with his father in that way, were he to be in Vietnam rather than Australia.
[55] Exhibit A1, statutory declaration of Anthony Doan declared 5 January 2025 at [21].
In my view, consideration of what is in the best interests of minor children, namely Anthony, weighs lightly in favour of revocation.
The fifth primary consideration is the expectations of the Australian community. Paragraph 8.5 details this consideration as follows:
8.5. 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.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
acts of family violence; or
causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
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;
commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
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
worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
Paragraph 8.5(1) is a revision of paragraph 13.3 of an earlier Minister’s direction, Direction No. 65, which commenced on 22 December 2014 and was revoked on 28 February 2019. In Direction No. 65, there were three primary considerations when deciding whether to revoke the mandatory cancellation of a non-citizen’s visa. They mirrored the first, fourth and fifth primary considerations in Direction 110 quoted above.
Paragraph 13.3 of Direction No. 65, detailing the primary consideration, expectations of the Australian community, stated:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In Ayache,[56] DP Forgie noted the observations of the Federal Court, per Mortimer J (as she then was) in YNQY and Minister for Immigration and Border Protection (YNQY) on how paragraph 13.3 should be understood. Her Honour said:
In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]- [66]). (emphasis added)[57]
[56] [2018] AATA 310 at [60].
[57] [2017] FCA 1466 at [76]-[77]].
DP Forgie notes that Mortimer J’s reference to Uelese is a reference to the case Uelese v Minister for Immigration and Border Protection, in which the Federal Court, per Robertson J, said:
In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. … The paragraph ends by stating that decision-makers should have due regard to the Government’s views in this respect. … In my opinion it is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community and for the Tribunal to act on that statement.[58]
[58] [2016] FCA 348 at [64]-[65].
That position of principle has not changed.
In FYBR v Minister for Home Affairs (FYBR), Charlesworth J sitting as a member of a Full Court of the Federal Court said:
… cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government’s assessment of community expectations is “generally” to be afforded greater weight than the “other considerations” listed non-exhaustively in cl 12. The word “generally” contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors arising for consideration under cl 12. There may be cases in which it is not appropriate to give the community expectations discerned under cl 11.3 any weight at all.[59]
[59] [2019] FCAFC 185 at [75]-[76].

Counsel for Mr Doan relied on Stewart J’s explanation of community expectations in FYBR at paragraph 101. Paragraphs 100 and 101 read as follows:
101. To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
(c)non-citizens will obey Australian laws when in Australia;
(d)it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;
(e)in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.
102. Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.” This limited expression of “community expectations” by the Government is, one would expect, quite uncontroversial which is an attractive feature given the heterogeneity of views in this area.
In HSRN and Minister for Immigration, Citizenship and Multicultural Affairs (HSRN), the AAT, per DP Cowdroy AO KC, commented on paragraph 8.4(1) in an earlier direction, Direction No. 90, that dealt with expectations of the Australian community. DP Cowdroy said:
44. Paragraph 8.4(1) of the Direction provides that:
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 not to allow such a non-citizen to enter or remain in Australia.
...
46. The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
47. This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
48. This consideration has been the subject of extensive judicial discussion and is ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J). That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to Direction 90.[60]
[60] [2022] AATA 4377 at [46]-[48].
Paragraph 8.5(1) in Direction 110 has been recast from the analogous paragraph 13.3 in Direction No. 65, but is identical to paragraph 8.4(1) in Direction No. 90 considered by DP Cowdroy in HSRN. I therefore regard DP Cowdroy’s observations to be directly applicable to paragraph 8.5(1) in Direction 110. Also, the principles regarding the application of the provision regarding expectations of the community remains the same: the Tribunal must “act” on the Government’s view as to the expectation of the Australian community, in particular that “as a norm” the Government will not allow a non-citizen to remain in Australia who has engaged in serious conduct in breach of the expectation that non-citizens will obey Australian laws while in Australia.
Paragraph 8.5(2) in Direction 110 goes on to note that in some cases it may be appropriate not to revoke mandatory cancellation of a visa “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” but, as mentioned, I accept counsel for Mr Doan’s submission that Mr Doan’s conduct is not so serious as to be “decisive” on whether his visa should be cancelled. Cancellation is the norm from which I must begin, but other considerations, with priority to the other primary considerations, must all be weighed in the balance when deciding whether there is another reason why the cancellation of Mr Doan’s visa should be revoked.
Paragraph 6 provides that in making a decision, a decision-maker “must take into account the considerations identified in sections 8 and 9, where relevant to the decision”. I have addressed above my views about the weight that should be given to the primary considerations.
I turn to the three non-exhaustive “other considerations” in paragraph 9: legal consequences of the decision, extent of impediments if Mr Doan is removed to Vietnam; and the impact of the decision on Australian business interests. Details concerning these three other considerations are provided in paragraphs 9.1 (including 9.1.1 and 9.1.2 concerning non-citizens covered or not by a protection finding), 9.2 and 9.3, respectively.
Regarding legal consequences, counsel for Mr Doan acknowledged Mr Doan is not covered by a protection finding and did not raise any claim arising from him not being covered by a protection finding, for example a claim arising from Australia’s non-refoulement obligations.[61]
[61] Applicant's statement of facts and contentions dated 6 January 2025 at [9].
In discharge of the Minister’s model litigant obligation, counsel for the Minister raised some possible legal consequences. She noted a reference in an Australian Government publication relied on by Mr Doan entitled “DFAT Country Information Report Vietnam” dated 11 January 2022 (the DFAT Report) that crimes under Vietnamese law committed outside Vietnam may be punishable under Vietnamese law, but that sources within Vietnam say these provisions “may only apply theoretically”. The Report notes DFAT “is not aware of cases of double jeopardy in practice.”[62]
[62] Minister’s statement of facts and contentions dated 6 January 2025 at [52].
I accept the Minister’s position regarding non-refoulement and double jeopardy. Nothing has been raised by Mr Doan, and I give little weight to adverse legal consequences of this kind that are no more than a possibility arising from the DFAT Report published in 2022.
Counsel for the Minister also noted Harry’s concern that Mr Doan “will not have access to come back to Perth due to legal reasons.” Whilst not relied on by Mr Doan, perhaps because it is implicit, I acknowledge that a legal consequence of a decision not to revoke is that Mr Doan would be indefinitely excluded from Australia by operation of the Special Return Criterion in clause 500(1(c) of Schedule 5 to the Migration Regulations 1994 (Cth). I accept that is a consideration which needs to be taken into account, but it is an intended consequence of the cancellation of Mr Doan’s visa by operation of law. As counsel for the Minister pointed out, this question was recently considered by this Tribunal, per M Gallagher, in Dalzell.[63] I agree with M Gallagher’s conclusion that this consideration needs to be taken into account but it weighs neither for nor against revocation of the cancellation decision: it is simply an inherent and intended aspect of the decision.
[63] [2024] ARTA 17 at [134]-[135].
Regarding extent of impediments if Mr Doan is removed to Vietnam, paragraph 9.2 of Direction 110 provides that decision-makers “must consider the extent of any impediments 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 the non-citizen’s age and health; whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to them in that country.
At hearing, Mr Doan said that if he had to go back to Vietnam he would struggle to find work because he is old. He said younger people get work because they have qualifications. Mr Doan said that on 3 January 2025 he called his two brothers and three sisters in Vietnam to ask if he could stay with them if he had to go back. One of his sisters said he could stay with her for a couple of weeks but not long-term. The others said they did not have room in their houses for him to stay and that he would need to find his own place to live. He said “they are poor people who live in countryside of Vietnam”.[64]
[64] Statutory declaration of Huu Doan declared 6 January 2025 at [75].
Notwithstanding Mr Doan’s evidence about the limited assistance his family would be able to provide if he were returned to Vietnam, the relationships with his family appear to be meaningful. As mentioned above, Mr Doan chose to return to Vietnam 16-17 times since coming to Australia and stayed with his parents when doing so.
Judge Muscat’s sentencing remarks record Mr Doan being born in Vietnam as one of his parents’ six children. Judge Muscat stated:
You described a happy, close-knit family, enjoying a comfortable, middle-class upbringing in Vietnam.
I accept Mr Doan will have difficulty finding work and accommodation, were he deported to Vietnam, having regard to his age and it being 20 years since he lived in Vietnam. However, as counsel for Mr Doan acknowledged, Mr Doan has skills as a tailor, having run his own sewing business, and has a certificate in accounting although he says he has not practised as an accountant. Counsel acknowledged as “possibly correct” that Mr Doan’s skills were more likely to enable Mr Doan to get a job in the sewing and tailoring industry in Vietnam than in Australia. At hearing, Mr Doan said that his father although elderly (80 years old) may be able to help him find a job.
In my view with his skills as a tailor, his fluency in the Vietnamese language, his familiarity with Vietnam consequent on his frequent visits back to his family and the prospect his father and siblings will assist him to find employment and accommodation even if they cannot themselves accommodate him in the longer term suggests Mr Doan’s difficulties in finding work and accommodation in Vietnam would not be materially worse than they will be in Australia, in particular in Perth.
No evidence was put forward as to why Mr Doan would be impeded in establishing himself and maintaining basic living standards, in the context of what is available to other citizens of Vietnam, having regard to his skill as a tailor, his command of the language and support from his family. True, his age may be an impediment but that is equally true in Australia and for others in his circumstances and of his age in Vietnam.
Counsel for Mr Doan relied upon the DFAT Report, which states there is a compulsory insurance scheme (pension scheme) that covers workers in the formal sector, but not those working in the informal sector, and that 76% of all workers are in the informal sector. Counsel submitted that, by reason of his age and lack of skills, Mr Doan was therefore unlikely to be able to access any pension scheme. The DFAT Report adds that some groups among the poor without other means of support may receive official payments or loans to assist with living expenses and practical assistance such as food, healthcare or vocational training, but goes on to say the amount received would be unlikely to sustain them without other means of support.[65]
[65] DFAT Country Information Report Vietnam report dated 11 January 2022, [2.6]-[2.9].
I accept the comments in the DFAT Report upon which counsel for Mr Doan relied, as a statistical comment about minimal government support for the aged and the poor, but I am not persuaded this is a material concerned for Mr Doan. Having regard to his skills as a tailor, the high employment rate in the informal sector and the likely assistance Mr Doan will receive from his family in Vietnam, I do not think the limited support from government will be a material impediment for him.
In my view, there are no material impediments, if Mr Doan is removed to Vietnam, that should be weighed in favour of revocation.
Regarding the third consideration, impact on Australian business interests, neither party made any submission. There is no evidence there would be any such impact. I do not regard this consideration to be relevant.
APPLICATION OF THE DIRECTION
I now turn to applying Direction 110 for the purpose of determining whether there is another reason for why the cancellation of Mr Doan’s visa should be revoked.
Paragraph 8.1(1) requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. That is, self-evidently, an important statement, and I note it reinforces the principle in paragraph 5.2(2) to the same effect. The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
I am to have particular regard to the principle that remaining in Australia is a privilege that Australia confers on non-citizens like Mr Doan in the expectation that they be law-abiding, respect Australian institutions and not cause or threaten harm to individuals or the Australian community.
Decision-makers are required to give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: paragraph 8.1(2).
I turn now to weighing the considerations arising under Direction 110. The Direction explicitly makes protection of the Australian community the highest priority of the Australian Government. This priority is to be given greater weight generally than other primary considerations.
The weighing exercise required me to address carefully the precise circumstances of the individual case. Counsel for the Minister relied on the observations of the Court in CRNL regarding consideration of the relevant matters. The Court said:
34 … As explained above (at [27]-[28]), in order to meet the requirements of the Direction, the Tribunal had to undertake a process of balancing the different considerations, or evaluating them against and in comparison to each other, in order to arrive at a decision whether there is “another reason” to revoke the cancellation.
35. The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.[66]
[66] [2023] FCAFC 138 at [34]-[35].
When weighing the different considerations, I gave greater weight to the primary considerations where relevant.
Where I regard Mr Doan’s crimes as serious, albeit at the low end of serious crimes, I gave greatest weight to the protection of the Australian community which was put at risk by Mr Doan’s crimes and, having regarded those crimes are serious, I had regard to the norm that Mr Doan should not be allowed to remain in Australia. The first and fifth primary considerations weighed heavily against revocation. I also weighed in the balance against revocation, albeit lightly, the low but nevertheless real risk of him reoffending.
In favour of revocation, I weighed in the balance the many considerations dealt with above but regarded them as lightly weighted for the reasons given.
Individually and/or collectively, I was not persuaded the considerations in favour of revoking the cancellation outweighed the seriousness of Mr Doan’s crimes as reflected in his term of imprisonment and the risk (albeit low) of him reoffending. Having evaluated the competing considerations, I was not persuaded there is another reason why the cancellation of Mr Doan’s visa should be revoked.
DECISION
Where Mr Doan does not pass the character test and I am not satisfied there is another reason for why the cancellation of Mr Doan’s visa should be revoked, the power to revoke the cancellation is not enlivened. I therefore affirm the decision under review with the result that Mr Doan’s visa remains cancelled.
I certify that the preceding 124 (one hundred and twenty-four)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
G McCarthy
[sgnd]
……………………………..
Associate
Date: 30 January 2025
Date of hearing:  20 January 2025
Advocate for the Applicant:      Paul Cutler
Advocate for the Respondent:  Madisen Scott
Australian Government Solicitor