Duong and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 5944

Duong and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5944 (16 December 2020)
Division:GENERAL DIVISION
File Number(s):2020/5909
Re:Tan Duong
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

WRITTEN REASONS
Tribunal:Senior Member B J Illingworth
Date:16 December 2020
Place:Adelaide

The decision under review is affirmed.
........................[SGND]..................................
Senior Member B J Illingworth
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – decision under review set aside/affirmed
LEGISLATION
Migration Act 1958 (Cth).
CASES
Ali v Minister for Immigration and Border Protection [2018] FCA 650.
Ayoub v Minister for Immigration and Border Protection [2015] FCA 24.
Drame v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] HCATrans 207.
FYBR v Minister for Home Affairs [2019] FCAFC 185.
Hernandez v Minister for Home Affairs [2020] FCA 415.
Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458.
Omar v Minister for Home Affairs [2019] FCA 279.
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018.
REASONS FOR DECISION
Senior Member B J Illingworth
16 December 2020
INTRODUCTION

This matter relates to an application for review filed by Mr Tan Duong (the Applicant) on 28 September 2020 for a review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Respondent) dated 21 September 2020, not to revoke a decision to cancel the Applicant’s Class BF transitional (permanent) visa (the visa) made under s 502(3A) of the Migration Act 1958 (the Act).
At the hearing, the Applicant appeared in person and was represented by migration agent Dr Haines. He was also assisted by an interpreter. The Respondent was represented by Mr Sharpe of HWL Ebsworth Lawyers who appeared by video link from Canberra.
Preliminary visa issue
At the start of the hearing the Applicant raised concern that, despite his request to the Respondent, including a Freedom of Information Act application, the Respondent had failed to identify the visa that was first granted to the Applicant permitting him to enter Australia, and to provide information and material in relation to that visa. The Applicant submitted that such information was relevant in determining whether the Applicant came to Australia as a refugee and whether he remained entitled to apply for a protection visa. Mr Sharpe advised that he was taking instructions.
On the last day of the hearing, the Respondent provided material and written submissions that, in summary, said:
The Applicant arrived in Australia on 20 August 1985 as the holder of a class of visa identified by the code K4671,[1] which applied to a class of visa in the Special Humanitarian Program for Vietnamese people and was distinct from other K class visas for refugees.
On 1 September 1994 the Applicant ceased to hold the K4671 visa and, as a result of regulation 6 of the Migration Reform (Transitional Provisions) Regulations, was deemed to be the holder of a Class BF transitional (permanent) visa, which he continued to hold until it was cancelled under subsection 501 (3A) of the Act.
As a result of the cancellation of his visa, section 501E of the Act prohibited the Applicant from applying for another visa, other than a protection visa or a visa specified in the regulations. Accordingly, the Applicant was not prohibited from applying for a protection visa, other than where section 48A prevents an application for a protection visa where a person has previously applied for and been refused a protection visa.
[1] Exhibit A, page 71.
The Applicant was given the opportunity to consider the material and provide a written response if required. The Applicant provided further written submissions. They did not assist the Tribunal.
The Tribunal accepts the Respondent’s submissions and is satisfied that the Applicant is not prohibited from applying for a protection visa.
BACKGROUND
The Applicant was born in Vietnam in 1961 and is a citizen of Vietnam. He is 59 years of age. Following his birth, his parents were unable to care for him and he was cared for by his grandmother until he was 11 years of age; he then returned to live with his parents and younger siblings. His father was in the army and his mother worked for an American company.
The Applicant commenced school in Vietnam when he was six years of age. At school he was subjected to bullying because of his small stature. He had a close male friend. When he was seven years of age the Applicant witnessed that friend being run over and killed by a motor vehicle.
The Applicant said that his father was a harsh disciplinarian and he was treated differently from his younger siblings. On one occasion his father locked him in a morgue all night. The Applicant said he attempted suicide when he was 11 years of age.
The Applicant left school when he was 14 years of age and ran away from home. He then worked on the street selling items such as glassware, books and wallets. When he was 16 years of age, he was sent to a forced labour program which enforced manual labour, including digging river and canal extensions. After six months the Applicant escaped from that labour camp and moved to a different area of Vietnam.
His parents had worked with the Americans and were perceived as being against the Vietnamese communist government. Because of the political system in Vietnam at the time, the Applicant was sent to Cambodia to assist in the war effort. His mother wanted to flee Vietnam. When the Applicant was 18 years of age, he and his family attempted to flee Vietnam but were unsuccessful.
The Applicant said he was then placed in a re-education camp where he remained for three years eight months and 15 days. The Applicant described a hard routine starting early each morning with intensive labour, digging and fixing canals. He described a poor diet three times a day and the camp community suffered from bowel and salmonella conditions.
After his release from the re-education camp, he learned that his family had left the country. To survive, he returned to reside with his grandmother. He worked as a street vendor selling items such as watches. He wrote to his parents to ask them to help him escape Vietnam.
The Applicant and two of his friends then plotted to steal a boat and escape Vietnam. That plot failed and he again renewed his request for help from his parents. Through the assistance of an aunt, the Applicant was put in contact with others who helped him escape by sea from Saigon to Malaysia. When close to Malaysia their vessel was intercepted by police. They were caught and taken to a refugee camp. When he was interviewed it was apparent from camp records that the Applicant’s parents and siblings had been in that same refugee camp in 1981. He said he was granted a refugee visa and after eight months travelled to Australia. The Applicant arrived in Australia on 20 August 1985. He was the holder of a distinct class of visa in the Special Humanitarian Program with respect to Vietnam, code K4671. He was met in Darwin by his father’s friend. He then travelled to Alice Springs where he joined his family.
Initially the Applicant was unemployed because he could not speak English. He was receiving unemployment benefits. A schoolteacher helped him learn English voluntarily and out of school hours.
In 1985 on a driving trip to Darwin, the motor vehicle in which the Applicant was travelling was involved in an accident. The Applicant suffered serious injuries including fractured neck, shoulder and lower back and was unconscious for three days. He saw a doctor for his pain. He ceased his pain medication after one to two months. He thought he could cope, and his family had recommended exercise.
The Applicant obtained employment at the Sheraton Hotel at Yallara, Ayres Rock. In 1988 the Applicant returned to Alice Springs. He was then in a relationship with J. The Applicant, J and his family moved to Melbourne. The Applicant’s family purchased a restaurant. The day the restaurant opened on 30 November 1989 was the day the Applicant’s eldest son, JD was born.
The Tribunal heard evidence from the Applicant that due to the weather in Melbourne his pain increased. He was prescribed painkillers and Valium by his treating medical practitioner. In about 1991 a friend introduced him to heroin and thereafter he became a heroin addict. He also smoked cannabis. However, the circumstances in which the Applicant commenced using heroin and developed his drug addiction became a matter of dispute to which I will refer later in this decision.
In 1993 the Applicant’s second son JD2 was born. The Applicant and J separated in about 1997. The Applicant said that while he was in prison, J came to see him and told him that she did not want to remain with him. She and the two sons moved to South Australia. The Applicant said that J was very good, and he was the one who had the problems, particularly with his drug addiction.
The Applicant said he loved working in the restaurant but when his parents retired in 2003, he did not take over the business because of his heroin addiction. He did not feel capable of running the business. His addiction affected his health and fitness. Friends did not know about his issue with drugs. Following the closure of the business, his main source of income was unemployment benefits and selling drugs.
His parents retired to Vietnam. They remained there for some years, briefly returned to Australia, but ultimately returned to Vietnam. His parents separated when in Vietnam. His mother ran a café but died in 2015. His father then returned to live in Australia with his new partner. They now reside in Queensland. The Applicant has had little to do with his father.
The Applicant met his second partner M in about 2006 or 2007. He said it was a very bad relationship. M was also a drug addict. That relationship ended in about 2016 or 2017.
Following his separation from J, the Applicant continued to see his sons who would travel to Melbourne once a year during school holidays to spend time with him. He maintained a very good friendship with J. She too would visit him. The Applicant would also travel to South Australia to see his sons.
Following the breakdown of his second relationship, the Applicant decided to move to Adelaide to be close to his sons. He said they loved him and would help him get out of his heroin addiction. He wanted to sever his relationship with his circle of friends in Melbourne who were all involved in drugs.
Since living in South Australia, the Applicant confined his personal relationships to his immediate family. Upon release from his current prison sentence, he promised himself to spend the rest of his life with his family, his children and any grandchildren. He strongly believed he would not return to heroin or cannabis upon release from jail. He continues to receive methadone each day within the prison system.
After arriving in South Australia, the Applicant lived with his eldest son. He subsequently moved into his son’s rental accommodation where the offence giving rise to the visa cancellation occurred.
Offender History
The Applicant has a significant offender history[2]. He said that his offending was because of his drug addiction.
[2] Exhibit A, pages 21 – 24.
On 17 January 1991 the Applicant was convicted in the Victorian Magistrates’ Court for his first criminal offence of cultivation of cannabis and was placed on a bond to be of good behaviour. In September 1991, he was convicted of theft of a motor vehicle and was again placed on a bond. On 29 November 1991, he was convicted of recklessly causing serious harm and received a 12-month suspended sentence of imprisonment. He breached that suspended sentence by subsequent offending for which he was sentenced on 17 July 1992, namely two counts of burglary, theft and possessing a drug of addiction. For those offences he received three months imprisonment on each offence to be served concurrently. He was dealt with for breach of the suspended sentence, which sentence was partially reinstated with three months’ imprisonment to be served. Earlier in June 1992, the Applicant had also been dealt with for the offences of attempted theft, two counts of theft, and burglary for which he received concurrent sentences of six months imprisonment on each count.
Thereafter until March 2003, the Applicant committed numerous offences including possession of a regulated weapon, possession of heroin, theft, burglary, aggravated burglary, trafficking heroin, and possession of property being proceeds of crime for which he received both suspended sentences, sentences of imprisonment and a community-based order.
On 24 December 2003, before the Victorian Magistrates’ Court, the Applicant was sentenced for 11 counts of burglary, 11 counts of theft, three counts of aggravated burglary, and attempted burglary. He was sentenced to three years’ imprisonment on each count to be served concurrently. He was also sentenced on two counts of theft to six months’ imprisonment on each count to be served concurrently.
In 2005, the Applicant received a warning letter from the Minister advising him about the risk of visa cancellation and relocation to Vietnam should he further offend.
From 2005 until 2013, the Applicant was again before the Victorian Magistrates’ Court and sentenced for offences of possession of cannabis, possession of heroin, theft, attempted theft, burglary, attempted burglary and failing to answer conditions of bail. He received sentences of imprisonment to be served by way of intensive correction order and suspended sentence.
On 17 December 2019, the Applicant appeared before the District Court of South Australia to be sentenced for trafficking in a controlled drug, cultivating a commercial quantity of a control plant (cannabis), possession of prescribed equipment and interference with electricity meter; offences which he committed whilst residing at his son JD’s rental accommodation. He was also dealt with for failure to comply with a bail agreement. He received a sentence of three years, two months and three weeks imprisonment with a non-parole period of two years, six months and 23 days. Judge Davidson in her sentencing remarks outlined the circumstances of the Applicant’s offending as follows[3]:
[3] Exhibit A, pages 25 – 26.
…on 25 October 2018, a revenue protection investigator for SA Power Networks attended at an address…. The investigator identified a meter bypass and heard fans operating from inside the premises. The police were called…
Police found that bedroom one had been converted into a grow room with eight large cannabis plants growing with a hydroponic set up, 12 light shades, 12 transformers and 11 light globes were also found in that room.
Upon searching bedroom two the police located 20 cannabis seedlings growing under light, three vacuum-sealed bags of dried cannabis material weighing 108 g, 252 g and 137 g and a further 1.55 kilo bag of dried cannabis material.
The wardrobe was found to contain several glass jars with one holding 14.1 g of dried cannabis material. Police also found a carbon filter, a light shade, transformer and a cannabis bud stripper in the same bedroom.
The third bedroom was a another grow room, containing six large cannabis plants, with 11 light globes, 11 light shades and the 11 transformers. Police located a carbon filter, a cryovac machine and two sets of scales in the pantry.
More cannabis leaf and stem material was found in the back garden and inside a shed, as well as four small cannabis plants and two medium cannabis plants growing in pots.
That evening, you were located at your son’s premises… and arrested. You confirmed that you were renting the premises from your son. When you were speaking to the police, you told them that you had established and maintained the cannabis found at the address on your own for a period of about six months. You admitted growing the plants for sale and to stealing electricity for a period of about five months.
The total amount of dried cannabis that was for sale was 511.1 g that was the subject of count 4…
…
In all, you stood to make a significant amount of money from the cannabis you were growing.[4]
[4] Exhibit A, page 28.
The Applicant in cross examination said that he hoped to make between $1,000 and $2,000 from the sale of the 511.1 g of dried cannabis. The larger 1.55 kilo bag was useless plant material. In answer to questions from the Tribunal, he said that he arranged for someone to bypass the electrical meter and that he learned about establishing a cannabis grow house, including the use of carbon filters and lights, by those whom he met in jail in Victoria.
In cross examination the Applicant was asked how he funded the grow house. He said that he asked a friend from Melbourne to lend him the money and was going to pay back that friend after the successful sale of the cannabis. He borrowed about $4,500.
In response to questions from the Tribunal the Applicant said that the dried cannabis located at his premises was from an earlier crop. He intended to take a certain quantity of the cannabis from the new crop to Victoria to sell through drug associates he knew in Victoria. The person from whom he borrowed the $4,500 was a previous drug associate from Victoria.
The Tribunal asked the Applicant to explain why, having come to South Australia to sever ties with those he knew in the drug scene in Victoria, he then obtained a loan from, and intended to sell the cannabis to, those he knew as drug associates in Victoria. His answer was initially evasive but then he said, “I don’t know what to say but from now on I promise that will not happen again, never again in life, to make family members happy.”
The Tribunal asked the Applicant about the warning he received in 2005. He said he was not thinking about the warning when he committed the offence. He said “my understanding is that such a warning is to me not that serious yet. If I had to appear in court like today, that is quite serious. But from a letter I did not”. When asked if he remembered receiving the warning letter after being sentenced to imprisonment by the Magistrates’ Court, he said “My mind at that time was thinking about getting done, reducing my pain, earning money, rather than appropriate thinking about the letter”.
When the police arrested the Applicant in October 2018, they located him at the home of his son JD. Police seized $2,000 cash which the Applicant said was his son’s money, not his. That money has still not been returned to his son.
The Applicant’s son JD gave evidence. He did not know at the time that his father had been cultivating cannabis. JD had spent much of that year overseas and, when he saw the Applicant, it was usually at his home where the Applicant came to assist by looking after his animals, cleaning and preparing meals. JD understood from speaking to the Applicant that he was cultivating cannabis for his own use to deal with his pain. He confirmed the money seized by the police was his money and not his father’s money.
LEGISLATIVE FRAMEWORK
Relevantly, s 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

Pursuant to 501(6)(a) of the Act, a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act. Section 501(7) of the Act relevantly provides that, for the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
Pursuant to s 501CA(4) of the Act, the Minister, or the Tribunal in place of 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.
ISSUES
The principal matter for determination is whether the discretion contained in s 501CA(4) of the Act should be exercised by the Tribunal, such that the mandatory visa cancellation is revoked. Pursuant to s 501CA(4)(a) of the Act, the Applicant made representations in accordance with the Respondent’s invitation. Thus, the two issues to be considered by the Tribunal are:
(a)Pursuant to s 501CA(4)(b)(i) of the Act, whether the Applicant passes the ‘character test’; or
(b)Pursuant to s 501CA(4)(b)(ii) of the Act, whether there is ‘another reason’ why the Original Decision should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant concedes that he does not pass the character test as he has been sentenced to a term of imprisonment of at least 12 months. I am satisfied that the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) for the cancellation of his visa to be revoked.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
In considering whether there is another reason why the original decision should be revoked, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act provides:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)The performance of those functions; or
(b)The exercise of those powers.
In this case, the relevant direction is Ministerial Direction No. 79 (the Direction) which was issued on 20 December 2018 and applies on and from 28 February 2019. This Direction replaces what was previously Direction No. 65.
MINISTERIAL DIRECTION NO. 79
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. They are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 8 of the Direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
The Direction further provides guidance for decision-makers on how to exercise the discretion with respect to a mandatory visa cancellation. Relevantly, at paragraph 7(1)(b) of the Direction, it states that a decision-maker must take into account the considerations in Part C in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 13(2) in Part C of the Direction provides the three Primary Considerations that the Tribunal must take into account, namely:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia; and
c)Expectations of the Australian community.
The Other Considerations which must be taken into account where relevant are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are (but not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims; and
e)Extent of impediments if removed.
The Tribunal will now address these considerations.
Primary Consideration A: Protection of the Australian community
Paragraph 13.1 of the Direction sets out the first of the Primary Considerations the Tribunal should have regard to, and relevantly provides:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
a)The nature and the seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal will address each of the considerations in paragraphs 13.1(2)(a) and 13.1(2)(b) of the Direction.
The nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that… violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)…
h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i)Where the non-citizen is in Australia, that a crime committed while the non-citizen is in immigration detention … is serious …
The Tribunal accepts that the Applicant’s life in Vietnam was difficult. Following his escape, he arrived in Australia on 20 August 1985.[5] It is not challenged, and the Tribunal accepts, that shortly after his arrival in Australia the Applicant was injured in a motor vehicle accident.
[5] Exhibit A, page 56.
As I said before, the Applicant’s evidence was that following his arrival in Melbourne with his family, and because of the weather and continuing pain from injuries suffered in the motor vehicle accident, he became addicted to heroin. However, that is to be contrasted with other evidence before the Tribunal.
In a report from Dr Jack White, psychologist dated 9 November 2020, prepared for this application[6], he reports the Applicant said he first took heroin at age 14 years. He indicated that he was a “very heavy” user of heroin. Dr White confirmed in evidence he understood the Applicant used heroin from a young age. In evidence the Applicant said he was first given heroin by elders when he was aged 14 years of age, but it made him vomit and he did not use it again until he moved to Melbourne.
[6] Exhibit F.
In a report from Dr Lim, forensic psychologist dated 4 September 2019 prepared for sentencing submissions in the Applicant’s South Australian District Criminal Court proceedings[7] she outlined his heroin use. She referred to the motor vehicle accident in 1985 and, because of the time it took for the injuries to heal and because of significant pain, a friend suggested he try heroin as a form of pain relief after he was weaned off opiate-based analgesics by his doctor. Dr Lim then reports[8]:
Mr Duong told me that he became addicted to the heroin very quickly, but this drug use did not interfere with his functioning, including his employment at the Sheraton hotel, until he moved to Melbourne in the 1990s, whereby it peaked at that point. He said that he was using this drug on a daily basis when living in Melbourne, and intermittently (“whenever I could get it”) when he was incarcerated for drug-related offences in VIC. If he had no access to it in prison, he would rely on methadone to get him through his time in custody. Occasionally, he would use both methadone and heroin at the same time.
Mr Duong reported that he has been a participant of the methadone substitution program the past 20 years. He currently picks up his dose from the Drug and Alcohol Services SA (DASSA)… on a daily basis.
Hence the report indicated the Applicant said he started using heroin when living in Alice Springs and was using heroin when he was working at the Sheridan at Ayres Rock. This was before he moved to Melbourne.
Dr Lim also reported that the Applicant said that his level of his current dependence on methadone has superseded his past dependence on heroin.
[7] Exhibit J, page 6.
[8] Ibid.
In a letter from TM, clinical nurse from DASSA dated 19 October 2020[9], she reports that the Applicant was a client from 26 July 2017 to 17 December 2019. He presented to continue his medication for methadone having transferred from Victoria to Adelaide. She said that the Applicant reported having a heroin addiction since the age of 17 – 18 years, which was when he resided in Vietnam, and that he had been on the methadone program in Victoria since 2006. The Applicant said he moved to South Australia to start a new life without drugs and alcohol and to be closer to his ex-wife and his two sons.
[9] Exhibit E.
Hence, there is a striking difference in the reported history of drug use given to Dr White, Dr Lim and DASSA from the evidence given by the Applicant to the Tribunal.
In closing submissions, the Applicant suggested that the error could be explained because the authors did not have the benefit of an interpreter when speaking to the Applicant. However, in Dr White’s report at page 10 he reported “Mr Doung was polite and cooperative throughout the assessment and did not appear to have any difficulty understanding the questions asked.”[10]
[10]Exhibit F.
The fact that the Applicant gave evidence with the benefit of an interpreter did not mean he did not have an adequate understanding of, and was unable to communicate in, the English language.
For the purpose of the hearing and to facilitate counsel for the Respondent both seeing and hearing the Applicant via videoconference during the hearing, the Applicant sat at a table and was not assisted by microphone. By the use of an interpreter, the Respondent’s counsel was able to hear answers to his questions. But on occasions when giving evidence, the Applicant answered questions in English. He understood the question and gave appropriate answers.
I do not accept the speculative submission from the Applicant that the unchallenged letter from DASSA, and the reports of Dr Lim and Dr White reporting a different history of drug abuse, are explained by a misunderstanding due to a lack of interpreter. I am satisfied that the Applicant was not frank with the Tribunal about the extent to which he had been involved in drug use and that he first used heroin after moving to Victoria. I am satisfied he was using heroin regularly before he moved to Melbourne and when residing in Alice Springs as detailed to Dr Lim.
The Tribunal does accept that the Applicant’s drug addiction led to his criminal offending. His first conviction was in Victoria in January 1991 for cultivating cannabis. Thereafter, he was before the criminal courts on a regular basis until his final Victorian conviction in 2013.
As is often the case, those who are involved in drug use often engage in other criminal activity to sustain their habit. This was the case with the Applicant. In Victoria, his offending was plainly serious and involved numerous offences of dishonesty including theft, burglary, recklessly cause serious injury, in addition to his drug offences including possessing heroin, and trafficking heroin.
Over the period of his offending in Victoria, the Applicant served a number of sentences of imprisonment and, on numerous occasions, was extended the benefit of suspended sentences of imprisonment or imprisonment to be served by way of intensive correction order. He was not deterred from further offending.
On 24 October 2003, the Applicant received concurrent sentences of 3 years’ imprisonment for numerous offences of burglary, theft, aggravated burglary and attempted burglary, together with concurrent sentences of six months for two counts of theft. In 2005, the Applicant received a written warning, from the Minister, that he faced cancellation of his visa and relocation to Vietnam should he re-offend. On his own admission, the Applicant did not give serious regard to that warning, and it did not deter him from his continued offending.
The Applicant again in closing submissions, sought to minimise the importance of the 2005 warning on the basis that the Applicant may not have understood its contents and the warning because there was no translation of the letter into the Vietnamese language. I reject again that speculative submission. The Tribunal asked the Applicant why he did not heed the warning. He explained that he did not regard it as serious and was thinking more in terms of his pain and drug addiction. He did not say he did not understand it. The Tribunal finds that he received and understood the warning and failed to give it due and proper regard.
There was a period of between 2013 and 2018 when the Applicant was not sentenced for criminal offending. However, following his arrival in South Australia, he again committed a very serious drug offence. He engaged someone to bypass the electrical meter and set about creating a cannabis grow house within his son’s rental accommodation.
Cultivating a commercial quantity of cannabis and trafficking in cannabis is very serious offending. As the Learned Sentencing Judge observed, the Applicant “stood to make a significant amount of money from the cannabis” that he was growing.[11] The Tribunal accepts that some of the cannabis was for personal use, but to bypass an electrical metre and turn bedrooms within the house into grow rooms with lighting, transformers, and carbon filters, demonstrates the Applicant’s contempt and disregard for the laws of Australia. The Applicant said that he had stopped using heroin, methylamphetamine and cocaine by this time.[12] I accept that submission. Hence, I find that the offending was not driven to feed his drug habit, but was, to a substantial extent, driven by greed to make money from a commercial cannabis crop.
[11] Exhibit A, page 28.
[12] Exhibit F, page 7.
In his evidence, the Applicant said that after his family restaurant closed and whilst living in Victoria, his income was derived from Centrelink benefits and the sale of drugs. He was sentenced for trafficking in heroin in Victoria. In South Australia, he was embarking on similar criminal conduct but with a change of drug to cannabis. He hoped to make between $1,000 and $2,000 from the sale of the 511.1 g located at his residence, which was from a previous cannabis crop, together with the sale of much of the proceeds of his commercial cultivation.
Of concern, is that the Applicant financed his grow house by a loan from a drug associates in Victoria, whom he intended to repay following the sale of his cannabis. He also intended to sell that cannabis to other drug associates in Victoria. Hence, despite the Applicant saying in evidence that he came to South Australia to, amongst other things, sever his ties with Victorian drug associates, that plainly had not occurred.

Also of concern, was the Applicant’s deception of his son JD by converting his rental house into a commercial drug house at a time when JD was, for a large part of 2018, overseas for work. That was indicative of the Applicant’s willingness to deceive generally and, in particular, a close family member for personal gain.
The Applicant’s offending was a breach of trust of the Australian community. His offending in South Australia was also a breach of JD’s trust. It is clear from his evidence that JD still understands his father was cultivating the cannabis for his own use, and to cope with pain. Better, he said, was his father’s use of cannabis to deal with his pain than using heroin.
Having regard to the lengthy recidivist nature of the Applicant’s serious offending over many years, the fact that he had continued to offend following the Minister’s warning, that he was not deterred from offending despite suspended sentences or sentences of imprisonment, that his prior offending included the trafficking of drugs which placed others in the community at risk and the commercial nature of his cannabis crop cultivation in South Australia, the Applicant has forfeited the privilege of holding a visa and remaining within Australia.
The Australian community would expect protection from those such as the Applicant, who engaged in drug offences including trafficking drugs, which so often has a devastating effect on those who then use the drug. The Australian community would also expect protection for such other offences including burglary, theft and violence committed by the Applicant and so often committed by those who offend to maintain his or her drug addiction.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction provides factors to be considered in determining the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. It relevantly states:
(1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Applicant’s offending has substantially been a consequence of his drug addiction. He had a particular addiction to heroin but also used from time to time methylamphetamine and cocaine which gave rise to a large number of criminal offences since arriving in Australia. Most recently, his drug offending (including commercial cultivation of cannabis) demonstrated that he was not motivated or determined to abstain from drug use or drug trafficking.
The fact that the Applicant was still engaged with a drug associate in Victoria to borrow money and set up his grow house, and that he intended to engage with other drug associates in Victoria to sell the product of his commercial cultivation, clearly demonstrates that he was not then sufficiently motivated to sever his ties with those in the drug industry.
I have little faith in his promise not to reoffend.
Dr Lim reported that the Applicant has been a participant of the Methadone Substitution Program for the past 20 years and currently picks up his dose from DASSA.[13] It is also reported that in Victoria he completed a number of substance rehabilitation programs through the justice system and the healthcare sector with limited success. In 2010 he underwent an inpatient detoxification program for two weeks but was prescribed methadone the entire time which made him think “what’s the point of rehab”.[14] He admitted that he used to reject all offers of individual psychological interventions/counselling for his drug use because he was “still using and didn’t want to stop”[15]. The Applicant reported that only since his move to South Australia had he felt motivated to start addressing his substance use.
[13] Exhibit J, pages 6-7.
[14] Ibid, page 7.
[15] Ibid.
Dr Lim opined that the Applicant satisfied the criteria of:
(a)Cannabis Use Disorder (severe)
(b)Opiod – heroin – Use Disorder (in remission due to maintenance therapy)
(c)Chronic Post-traumatic Stress Disorder (PTSD)
(d)Substance induced Anxiety disorder
Dr Lim also opined that the Applicant does not have an Antisocial Personality Disorder but[16]:
….does possess several antisocial traits, such as impulsivity, poor adaptive coping skills, poor emotional regulation, as well as impaired decision-making skills, which have contributed to his reported history of offending in VIC over the past few decades. In regards to the current offences, his decision to engage in the cultivation and dealing cannabis was reportedly precipitated by his ongoing addiction to this drug, his poor decision-making and associated cognitive distortions (e.g. “it’s better to grow cannabis then break into people’s houses”) to justify his offending behaviour as well as his persistent mental health difficulties for which he has historically relied on substances as an emotional coping response.
[16] Ibid, pages 9 – 10.
In discussing risk of reoffending Dr Lim wrote as follows[17]:
Mr Duong has reportedly ceased all illicit drugs with the exception of cannabis since moving to SA about three years ago. Even so, it is felt that his current reported level of cannabis remains a significant cause for concern; and, unless this problem is addressed and he is offered psychological intervention to address his unresolved PTSD and anxiety, and improve his adaptive coping strategies and his problem-solving responses to stress, it is felt that Mr Duong will remain at an elevated risk of drug related recidivism over the foreseeable future.
On a positive note, he has expressed a willingness to engage in psychological counselling with regards to his drug and mental health issues, which apparently represents a significant shift from his previous mindset with regards to rehabilitation when he was living in Victoria. In my opinion, this is therefore the optimal time for him to engage in treatment…
It is therefore recommended that Mr Duong be subjected to an extended period of assertive case management through the Department for Correctional Services (DCS) in the future, in order to support him to engage in treatment to address his criminogenic needs. This would help to reduce his risk of re-offending and, would also support him to implement his rehabilitation needs whilst maintaining against his difficulties with motivation.
[17] Ibid, page 10.
In a report from clinical nurse TM from DASSA dated 9 October 2020[18], TM reports that the Applicant had attended medical reviews for his methadone and casework appointments on three occasions and was offered ongoing counselling, which he declined. Nonetheless, he continued to attend his medical reviews. The Applicant reported abstinence from drugs and alcohol and that he had stable housing living with his son, and his mental health was stable. He was compliant with his treatment.
[18] Exhibit E.
However, there is no evidence that the Applicant had yet engaged to any meaningful extent, in recommended psychological treatment, albeit he said in his Personal Circumstances Form dated 10 June 2020 that he was going to apply for the ‘Making Change Program’.[19] Previous programs he undertook had failed. He has done nothing to satisfy the Tribunal that the risk of re-offending is mitigated to any significant degree, even though he has been recently, and on previous occasions, in enforced abstinence from drugs when imprisoned.
[19] Exhibit A, page 63.
Dr White in his report dated 9 November 2020 opined that the Applicant satisfied the following diagnosis[20]:
(a)Cannabis Use Disorder … (in remission)
(b)Opioid Use Disorder … (In remission)
(c)Substance Induced Psychotic Disorder
(d)Post -Traumatic Stress Disorder
(e)Adjustment Disorder with mixed Anxiety and Depressed mood
(f)Pain Disorder
(g)Mixed (Antisocial - Borderline) Personality Disorder
[20] Exhibit F, page 11.
Dr White in evidence said that the diagnostic opinion of Dr Lim is consistent with his diagnosis.
Dr White also opined that:[21]
The current assessment indicated that [the Applicant] was a very volatile and vulnerable individual who copes poorly under stress, and who has made poor choices due to his impaired mental health.
He continued:[22]
From my assessment, and from that provided by Dr Lim, it would appear that [the Applicant] is motivated to change his ways (both criminal and drug related behaviours).
In Australia he has the support of his children and the availability of rehabilitation programs to assist him. This would also include a pain management program that would assist them in breaking his “Cannabis self-medication” cycle.
[21] Ibid, page 17.
[22] Ibid.
However, in expressing that opinion Dr White never received an antecedent report of the Applicant which detailed his criminal offending in South Australia. He was not sent the sentencing remarks of Judge Davidson, and it was not apparent from his report or evidence that he was aware of the fact that the Applicant was using his son’s rental premises as a cannabis grow house; that the Applicant grew a previous cannabis crop and was intending to traffic the product of his cannabis cultivation to his drug associates in Victoria, or that the Applicant financed his grow house from monies lent to him by a drug associate in Victoria.
In closing submissions, that Respondent was critical of the manner in which Dr White was engaged by the Applicant to provide an opinion. In short, Dr White was provided with Dr Lim’s report, was given some explanation of the purpose of the proceedings before the Tribunal, and was requested to provide a psychological assessment supporting Dr Lim’s original assessment that appropriate assistance to Applicant could successfully address his addiction such that he could return to a normal life in the community. It was suggested that Dr White’s report would be a valuable evidentiary supplement to the Applicant’s review “for a man who has, in many respects, been failed by the country which owed him support”.
I accept that the Applicant did not deliberately intend to influence Dr White’s assessment and report, but the wording of the letter of engagement was unfortunate. Dr White is well known to the courts within South Australia and is a highly regarded practitioner. He regularly gives expert evidence before the courts. He clearly identified, under heading ‘Statement of compliance to follow Court Directives’ that he well understood the role and function of an expert witness, and I accept that his report was impartial and not influenced by the letter of instruction. However, what is of concern, as I have indicated above, was the failure of Dr White to be fully briefed with respect to the offending that gave rise to the visa cancellation.
Conclusion: Primary Consideration A
Insofar as Dr White assessed the Applicant as being motivated to change his ways in both criminal and drug related behaviours, and referenced the support he has from his children and the availability of rehabilitation programs to assist him, I give less weight to this report given the absence of important relevant material about the Applicant’s offending that was not before him.
The Applicant’s counsel in closing submission said he believed the relevant material, including the sentencing remarks of Judge Davidson, was sent to Dr White.
However, Dr White’s report under heading ‘Information Sources’ lists information relied on in preparing the report. He received, amongst other material, the report of Dr Lim dated 4 September 2019 which, at paragraph 1.1 headed ‘Preamble’, details the Applicant’s charges: that he was arrested in October 2018 at a property in South Australia, and that the report may be used in upcoming sentencing submissions[23]. Dr White also received an Offender History Report dated 15 February 2019, and, when giving evidence, produced a SA Police offender history report dated 20 May 2019, both of which predated the sentencing of the Applicant by Judge Davidson on 17 December 2019. He did not receive the SA Police material provided to Dr Lim including affidavits, record of interview and photographic evidence.
[23] Exhibit J, page 1.
Dr White’s report at paragraph 2.9 headed ‘Current Criminal Charges’, referred only to the visa cancellation proceedings before the Tribunal and that the Applicant was raising non-refoulement in his argument on appeal[24]. Dr White said in evidence that he had never heard of the term ‘non-refoulement’ and had to look up its meaning. The report did not refer to the criminal charges that gave rise to the Applicant’s visa cancellation.
[24] Exhibit F, page 9.
Importantly, the opening paragraph of Dr Lim’s report dated 4 September 2019 referred to the Applicant being charged with cultivating a commercial quantity of a controlled plant (cannabis), trafficking in a commercial quantity of a controlled drug, possessing prescribed equipment, and interfering with electricity, and that the report may be used to assist the Court during upcoming sentencing submissions.[25] In the second paragraph, Dr Lim detailed the substantial volume of material she received in relation to South Australian criminal proceedings including Magistrates’ Court Information, SA Police affidavits, record of interview, photographic evidence and Forensic Science SA Certificate of Analysis, amongst other documents.
[25] Exhibit J, page 1.
Even a cursory look at Dr Lim’s report should have informed Dr White that the Applicant had been charged with, and was likely to be dealt with, for potentially significant and serious criminal offending sometime soon after the report date.
In considering the risk of reoffending, it was necessary that Dr White had before him the Applicant’s complete criminal history and he should have made appropriate inquiry about the South Australian offending in reaching an informed opinion. I am not satisfied that this occurred and hence less weight is to be given to the opinions expressed by Dr White.
Dr Lim gave detailed consideration to the Applicant’s risk of reoffending to which I have referred, however the Applicant has, as reported by Dr Lim, previously engaged in a number of different substance rehabilitation programs in Victoria with limited success.
The letter from DASSA clinical nurse TM noted the Applicant had been a client for approximately 2 ½ years until sentenced by the District Court on 17 December 2019 and was offered ongoing counselling which he had declined.[26]
[26] Exhibit E.
There is no evidence before the Tribunal that the Applicant has engaged in any significant rehabilitation program since he was sentenced to imprisonment. The Tribunal is not satisfied that the Applicant’s recently expressed willingness to engage in counselling is genuine or motivated by his intention not to reoffend.
The Applicant has been a recidivist offender committing serious offences since 1991 and, although there was a period of time between his last appearance in a Victorian Magistrates’ Court in August 2013 and the commission of the offence in South Australia on 25 October 2018, noting that that offence was the second cannabis crop he had cultivated, the Tribunal is satisfied that the Applicant remains a high risk of re-offending of the same or similar type of serious offences, for which he has been dealt with by the courts over a long period of time. Such offences are drug or drug related offences, including drug trafficking offences which would potentially have a devastating effect on members of the community.
A number of those offences committed by the Applicant occurred after he received a warning in writing about the consequence of further offending which I take into account.
The Applicant’s criminal offending has been very serious and there is a real and substantial risk that he will commit similar offences in the future. That risk is unacceptable. Accordingly, Primary Consideration A must weigh heavily against the Applicant and the non-revocation of his visa cancellation.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2 of the Direction sets out the next Primary Consideration the Tribunal should have regard to and relevantly provides:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
In the Applicant’s Personal Circumstances Form he listed one nephew, J2, without reference to his age, nationality, or country of current residence.[27] In the report of Dr White, reference was made to the Applicant’s brothers TD, who lived in Queensland and was married with four children, BD, who lived in the United States of America with three children, and a sister TD, who lived in Melbourne with two children.[28] The Applicant is reported to have said his relationship with brother TD was okay, they last spoke 12 months ago. His relationship with BD was good and they last spoke two months ago. His relationship with his sister TD was very good and he last saw her 12 months ago.
[27] Exhibit A, page 62.
[28] Exhibit F, pages 4 – 5.
At the start of the hearing the Tribunal raised with the Applicant the need for clarification of such child or children to whom this Primary Consideration applied. No evidence was led from the Applicant.
The Tribunal questioned the Applicant about those children who resided in Australia.
The nephew J2, referred to in the Applicant’s Personal Circumstances Form, was the oldest child of brother TB in Queensland. He said his brother had three children who were 18 years of age or older and a daughter who he thought was aged nine or 10 years of age who he has never met. The Applicant described regular contact with his brother and J2 who was over 18 years of age.

His youngest brother BD and his 2 children lived overseas, and therefore those children were not residents of Australia to whom the Act applied.
As for his sister TD, she had one child over 18 years of age and a son who was 17 years of age. The Applicant has not seen them since 2016. Prior to that, he had seen his 17-year-old nephew and on occasions gave him money.
The Applicant played no parental role in in respect of that nephew. In answer to the Tribunal’s question, the Applicant said that if he were returned to Vietnam it would have no impact or effect upon that nephew. He said that there was no other child or children under the age of 18 years living in Australia with whom he has any involvement or relationship.
Conclusion Consideration B
In closing submissions, and in response to a question from the Tribunal, the Applicant said that there was no minor child in Australia to whom Primary Consideration B applied.
The Tribunal agrees with the Applicant’s submission. There is no evidence before the Tribunal that enlivened the consideration of Primary Consideration B.
Primary Consideration C: Expectations of the Australian Community
Paragraph 13.3 of the Direction sets out the third of the Primary Considerations the Tribunal should have regard to and relevantly provides:
(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.
Further, paragraph 6.3(5) and (7) of the Direction provides:
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for only a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
…
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
The Tribunal’s approach in considering this Primary Consideration was considered in the decision FYBR v Minister for Home Affairs[29]. This matter involved a visa refusal, but its principles apply equally to s 501CA mandatory visa cancellations where paragraph 13.3 of the Direction is worded in identical terms to paragraph 11.3 of the Direction. In FYBR, it was found that paragraph 11.3 of the Direction expresses a deemed community expectation, that all persons who have committed a serious criminal offence giving rise to character concerns, must expect refusal, or in this case, the revocation of that person’s visa. Hence, it is the expectation of the Australian community that the Applicant obey Australian laws. That expectation has not been met because, by his offending and being sentenced to imprisonment, he does not pass the character test pursuant to s 501(6)(a) of the Act. It is not for the Tribunal to make its own assessment of community expectations. The nature of the character test is such that the deemed expectation will arise in a most cases as it does here.
[29] [2019] FCAFC 185 (‘FYBR’).
However, as Charlesworth J said in FYBR at [76]:
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.
The weight to be given to this Primary Consideration having regard to the principles referred to in paragraph 6.3 of the Direction and in particular 6.3(5) and a 6.3(7) of the Direction are to be determined by the Tribunal in the operation of its discretion. The Applicant did not pass the character test pursuant to s 105(6)(a) of the Act, which must weigh against the revocation of his visa cancellation.
Further, the Tribunal’s approach to considering the expectations of the Australian community was discussed in Jupp and Minister for Immigration and Multicultural and Indigenous Affairs[30] where Deputy President Block said at [7] that the expectations of the Australian community should be considered through the lens of:
… middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into that Australian community, knowledge of the evidence before me.
[30] [2002] AATA 458.
Conclusion: Primary Consideration C
The Applicant’s offending was serious, and by his own admission he failed the character test. The deemed expectation of the Australian community is that the Applicant lose the privilege of holding a visa to remain in Australia.
In considering the weight to be given to this Primary Consideration, the circumstances of the Applicant’s offending, and his personal circumstances have been detailed above and I will not repeat them. But there are aspects of the Applicant’s offending and personal history that raise doubt about his genuineness and reliability and the future character concerns with respect to the Applicant.
I am not satisfied that the Applicants initial use of heroin commenced when he lived in Melbourne for the reasons I have expressed. I do accept that his addiction to drugs and particularly heroin led to his lengthy and recidivist criminal offending. By his offending he repeatedly breached the trust of the Australian community. He failed to have any or adequate regard to the written warning given to him in 2005. He was given the benefit of suspended sentences of imprisonment, bonds, and intensive correction orders yet he continued to offend. His latest offending in South Australia not only breached the trust of the Australian community but also of his family.
The Applicant has also had the benefit of various programs to assist him in overcoming his drug addiction and criminal offending without success. He previously declined the opportunity to engage in counselling until finally, in South Australia, when facing sentencing and potential imprisonment, he expressed to Dr Lim his willingness to engage in counselling, which he repeated to Dr White.
There is a lack of evidence before the Tribunal about any plan to engage in future counselling other than the suggested treatment options referred to by Dr Lim and Dr White and by the Applicant in his Personal Circumstances Form.
His offending in Victoria was motivated to fund his drug addiction. His evidence is that he came to South Australia to break ties with his drug associates in Victoria and, with the support of his family, to cease his drug abuse.
In South Australia the only drug he continued to use was cannabis which helped him to deal with his pain. However, to a significant degree, his offending in South Australia was not to enable him to deal with his pain. He obtained a loan from a Victorian drug associate to create a cannabis grow house and intended to sell some of the product of his commercial cannabis cultivation to Victorian drug associates. This raises serious doubt about the genuineness of the Applicant’s intention to sever his ties with drug associates. The fact that he converted his son’s rental property into a cannabis grow house and, amongst other offences, cultivated a commercial quantity of cannabis, must enliven ongoing concern about the Applicant’s general character. As I have also said, I have little faith in the Applicant’s promise not to reoffend.
The Applicant had a difficult life in Vietnam which engenders much sympathy. He has spent the majority of his adult life in Australia. He was first sentenced for a criminal offence in 1991, six years after arriving in Australia. Thereafter his recidivist offending included: drug trafficking and possession, violence and dishonesty including theft, burglary and aggravated burglary. After 2003 and the closure of the family restaurant, his income was the disability support pension and drug trafficking.
Although the Australian community may have afforded the Applicant a level of tolerance when he was first dealt with by the criminal courts given his antecedent history and personal circumstances at that time, that tolerance would have evaporated to a large degree given the length of time over which he thereafter offended, the serious nature of his offending, his failure to contribute to any significant degree to the Australian community since at least 2003, his failure to engage with rehabilitative programs, and ongoing decline of counselling assistance.
Hence when considering paragraph 6.3, the risk of serious reoffending is unacceptable and the harm likely to be caused to the Australian community is also very serious. The Applicant has spent much of his adult life in Australia involved in drugs and drug related offending. He has been given the benefit of various sentencing options and attended support and rehabilitation programs to little or no avail. He refused offers of counselling. His failure to contribute to the Australian community, together with the circumstances of his most recent offending, indicate this Primary Consideration must weigh heavily in favour of the Respondent and the non-revocation of the Applicant’s visa cancellation.
The Other Considerations
In deciding whether to revoke the mandatory cancellation of a visa, Other Considerations must be taken into account where relevant. These considerations, as set out in paragraph 14(1) of the Direction, include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
No evidence has been placed before the Tribunal that enlivens Other Considerations (c) or (d). The Tribunal will address the balance of the Other Considerations, where relevant, in turn.
Other Consideration (a): International non-refoulement obligations
Paragraph 14.1 of the Direction provides a list of factors to be considered in determining international non-refoulement obligations. Those factors comprise:
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude nonrevocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5)If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where, that person will be at risk of a specific type of harm.
The question before the Tribunal in considering any non-refoulement claims is a state of satisfaction as to whether there was “another reason” why the original decision should be revoked[31]. I am required to properly consider the claims being made and the factual material being relied upon by the Applicant.[32]
[31] Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28] (‘Ali’).
[32] Ayoub v Minister for Immigration and Border Protection [2015] FCA 24 at [27].
Paragraph 14.1 (1) of Direction 79 referred to above, outlines Australia’s non-refoulement obligations pursuant to international human rights treaties and the obligation “not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.”
It is accepted that the Applicant has the right to apply for a protection visa. However, despite the contents of Direction 79 paragraph 14.1 (4) the decision in Minister for Home Affairs v Omar[33] obligates the Tribunal to give consideration to such claims raised by the Applicant. In doing so, the Tribunal is compelled to meaningfully engage with the significant representations which have been made by the Applicant relating to the risk of harm. It is not sufficient to say in broad terms “I have considered all relevant matters…” and “Having given full consideration to all of these matters…”. See paragraph [43] (g) of the judgment in Omar.
[33] [2019] FCA 188.
Where raised, I am required to engage with them and make findings of fact with respect to whether the claim is established on the evidence and assess the veracity and gravity of the risk of harm proffered by the Applicant.
Hence, in so doing, it is for the Tribunal to consider whether the existence of non-refoulement obligations “is another reason” for revoking the cancellation decision.
The Applicant must establish a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
The Applicant’s written position regarding international non-refoulement obligations
In the Applicant’s letter dated 9 June 2020[34] the Applicant said:
I came to Australia on 8-20-1985 with refugees [sic] visa, on [sic] Darwin Airport. I’m living with my family in Alice Springs NT. In December 1984 me & other 52 peoples [sic] we’re defection [sic] my country, we’r [sic] we leave Vietnam by boat to Malaysia. It’s [sic] took 13 days we’r [sic] got to Malaysia, in this 53 peoples [sic]… I don’t know what it [sic] will happen to me if I coming [sic] back there, since I came to Australia I thinks [sic] I’m an Australia.
[34] Exhibit A, pages 40 – 42 at 40.
In the Personal Circumstances Form,[35] under heading ‘RETURN TO YOUR COUNTRY OF CITIZENSHIP’ the Applicant expressed his concerns or fears about what would happen to him as follows: “I’m from South Vietnam, many of my family members of the South Vietnamese Army. We escaped from Vietnam because of the threats from the north government.” He said he did not face criminal charges/convictions. Nonetheless, he wrote “I have never been back to Vietnam because there is too much uncertainty as to what might happen to me!.. [sic] if I return to Vietnam.”
He further responded to the question of other problems he might face as follows:
I do not know what problems I will face if I have to return to my country of citizenship. There are to [sic] many hardships possible persecution if I go back. It’s too scary to think about it.
[35] Ibid, page 66.
In the Applicant’s Statement of Facts, Issues and Contentions (SoFICs) dated 28 October 2020 under heading ‘non-refoulement’ at paragraph [23] he raised, amongst other things, the failure of the Minister’s delegate to consider non-refoulement. It was submitted that the Applicant was an escapee from Vietnam and that Vietnam had not altered its regime since the time of the Applicant’s escape. He was treated harshly by the Vietnamese regime from which he escaped, and there is no reason to suppose that the official attitude to the Applicant would have changed or that deportation at this point would amount to anything other than refoulement.
Further, in the SoFICs under heading ‘Strength, nature and duration of ties’ at paragraph [26], the Applicant said the delegate did not:
consider his past in relation to the trauma to which he was subjected prior to departure from Vietnam; trauma which has its foundation in his childhood, when he was subjected to cruel treatment by his father, and was further exacerbated by his incarceration by the Vietnamese Communist Regime.
Together with his SoFICs, the Applicant also filed the following with the Tribunal:[36]
1.    Human Rights Watch – The Rehab Archipelago: Forced Labour and Other Abuses in Drug Detention Centres in Southern Vietnam dated September 2011. This report relies on the testimony of 34 former detainees that were held in drug detention centres under the administration of Ho Chi Minh City and concludes with a series of recommendations for the Vietnamese Government, Vietnamese and foreign companies that have commercial relationships with drug detention centres in Vietnam and various international bodies;
2.    Human Rights Watch – Public Insecurity: Deaths in Custody and Police Brutality in Vietnam dated September 2014. This report discusses conditions in police custody generally and does not relate specifically to 06 centres. It adopts a case-based approach to the issue by reviewing individual cases of police brutality as reported by Vietnamese and foreign news agencies;
3.    Human Rights Watch – Vietnam: Drops Charges Against Boat Returnees dated May 2016, which the Applicant acknowledged in closing submissions related to people escaping Vietnam by boat at that time and was not relevant to the Tribunal’s consideration with respect to the Applicant; and
4.    An Email from Mr B Frelick, Director – Refugee and Migrant Rights Divisions dated 13 November 2020 enclosing material 1 – 3 to the Applicant. He said that the material related to recent boat returnees and he expressed the serious doubt that document related to the Applicant and those who left Vietnam in the 1980s and 1990s.
The Applicant’s oral position regarding international non-refoulement obligations
Opening submissions
[36] Exhibit G.

Of course, it will be for the Applicant to maintain his abstinence from drugs, lest he expose himself to prosecution by Vietnamese authorities. He says he is determined to remain drug free in the future. It is to be expected that the Applicant will remain a law-abiding citizen should he relocate to Vietnam and no well-founded fear of persecution or risk of harm, including imprisonment or detention, can therefore arise from the Applicant’s relocation. It is not for the Tribunal to gaze into a crystal ball and speculate what might happen should he reoffend. I am not satisfied on the evidence that the Applicant will be detained or imprisoned should he be relocated to Vietnam.
It is also relevant that the Applicant’s parents and family members, including his son, have returned to Vietnam on a number of occasions without incident. They were not detained or questioned by authorities. The Applicant’s parents retired to Vietnam and his mother ran her own café business until she died in 2015. I agree with the Respondent’s submission that this further strengthens the submission that the Applicant will not likely be questioned, detained, arrested or otherwise dealt with because of the circumstances in which he originally came to Australia or for any other reason and that he will likely enjoy the freedoms of other Vietnamese citizens.
As to evidence going to the methadone treatment that is available in Vietnam, the Tribunal agrees with the submission of the Respondent that the material submitted by the Applicant was outdated, did not have the benefit of contemporaneous information, and did not reflect how those in Vietnam, on a methadone program, are now and will likely to be dealt with in the future. The Tribunal prefers the material provided by the Respondent as being contemporaneous evidence detailing the development of the methadone program and MMT public and private treatment centres that are now available. The Tribunal is not satisfied that the Applicant holds a subjective and well-founded fear of persecution or harm should he engage in the methadone program now available to him in Vietnam.
The extent to which the Applicant enlivened a fear of harm was primarily contained in the written material to which I have refereed and included his handwritten letter and the personal information form.
The Tribunal gave the Applicant the opportunity to articulate those fears by asking the question “Why are you scared and what are you scared of?”. His answer was that he was not sure of the help available to people with drug addiction issues, or what he is eligible for in Vietnam. He has no relatives in Vietnam, he would be by himself and was not sure how he will survive, and that in Australia he has the benefit of the disability support pension. He concluded by saying, like any father, he did not want to be away from his children. The Applicant was not asked by his representative any further questions that expanded upon those stated fears.
Those fears are understandable, and I accept that they are genuinely held. But those fears are not of the type that enliven the non-refoulement obligation not to forcibly return, depart or expel the Applicant to a place where he will be at risk of harm. They are relevant to Other Consideration (e) – Extent of Impediments if Removed.
The Tribunal is not satisfied that the Applicant has established on the evidence a fear of harm or persecution now or in the future should he be relocated to Vietnam, that enlivens Australia’s non-refoulement obligations. The Tribunal agrees with the Respondent’s submission. Accordingly, the Tribunal gives no weight to this Other Consideration.
Other Consideration (b): Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction provides that decision-makers must have regard to the following:
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; and
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australian indefinitely).
The Applicant’s family ties are the members of his extended family who reside in Victoria and Queensland, his former wife J and two sons, JD and JD2, who reside in South Australia and JD’s partner, GG. Since arriving in South Australia, the Applicant has not socialised outside of his immediate family who reside there.
The Tribunal received a letter from JD dated 16 October 2020. He also gave evidence. JD was born in Victoria and had positive childhood memories. He confirmed that he came to Adelaide when aged about six or seven years of age but maintained contact with the Applicant by telephone and he saw him during school holidays. He and his brother travelled by bus to Melbourne to see the Applicant.
JD described himself as being mildly involved in the Vietnamese community, such as attending festivals. He said he had a limited understanding of the Vietnamese language.
JD said he was over the moon when his father decided to move to South Australia. He wanted to make up for earlier time lost. His father lived with him at his residence at a time when JD was busy at work with overseas deployments with the Australian Air Force. The Applicant lived with him for about 1 ½ to 2 years and tended to JD’s home and his animals, would cook food, and do housework. The Applicant subsequently moved to JD’s rental house where he generally lived alone. JD was not aware that the Applicant was growing cannabis at his home. At the relevant time JD was deployed overseas to Malaysia, Thailand, Japan, the Cocos Islands and the Northern Territory.
JD explained when he learned of the Applicant’s offending. He returned home from a family funeral. He saw his father and immediately knew something was wrong. He looked pale and distraught and broke down and explained what he had done. JD confirmed that money seized by the police from his bedroom was his own money and not the Applicant’s.
JD said that if the Applicant was permitted to remain in Australia, he would live with him or with his younger brother. He expressed the opinion that the Applicant would not reoffend and said he could see his remorse. He said the Applicant wants to get back to his life and he will not renew his old circle of friends. JD said that he and his father will be heartbroken if he is returned to Vietnam having only had the opportunity to rekindle their relationship in the last five years.
JD said that his father had broken away from his life in Melbourne and remained close with his brother and also their mother, the Applicant’s former wife J. JD did not believe the Applicant would cope if relocated to Vietnam, and said that he had been captured by the Communist Party, escaped, and that all he now knows is Australia. He has no contacts in Vietnam, and all his immediate family live in Australia. He does not have the support network in Vietnam that he has in Australia and he did not think he would survive if relocated. He has no family or friends or medical support there.
JD said that he visited his grandmother in Vietnam. She set up a coffee shop there. He said she passed away in 2015. He said the Applicant was a person who was not shown much love and, after his grandmother died, JD better understood that his grandfather used the Applicant as an outlet for his own anger. He said the Applicant sees ghosts.
JD was asked if he had been involved in the Applicant’s medical condition. He said the Applicant expressed physical pain and had psychological issues but has not had the opportunity to have psychological treatment. JD will facilitate his future medical treatment.
In cross examination JD said he was not aware that the Applicant had been engaged in a commercial cannabis operation. He subsequently understood that, because of the number of plants located, it was considered a commercial operation but that there were a lot of baby plants. He understood the Applicant’s use of cannabis was to cope with his pain and he was not told of his intentions to commercially sell the cannabis.
JD said that he was not initially aware that his father used cannabis, but that after his arrest the Applicant explained to him that he used it for pain and for insomnia. JD never saw nor smelt cannabis in his home. He said they had an agreement that when the Applicant lived with him there was to be no illicit substances in the home. He said that cannabis was not his issue, but it was the heroin that he was worried about and he specifically told his father he would not allow heroin in the house.
JD said that when the Applicant lived with him, they shared cooking and cleaning, but he did not pay rent. When he lived at the rental property, JD provided the Applicant with support in the nature of psychological, health, medical support and provision of facilities that would assist in him being comfortable in the home. He would continue to provide whatever the Applicant needed. Most of the Applicant’s belongings were at his home and he would reside with JD in the future. He also confirmed both he and his brother would provide the Applicant with as much assistance as they could if he was relocated to Vietnam.
JD was referred to his letter in which he said it was out of character for his father to commit a crime. He was asked to explain. He said that since giving up heroin he believed it was out of character for his father to offend.
The Applicant’s youngest son JD2, together with his partner GG, provided a joint letter which spoke of the Applicant’s history in Vietnam and arrival in Australia. It was acknowledged that his offender history was significant but did not adequately reflect him as an individual, a father or an Australian resident. They referred to his strengths and admirable qualities and spoke glowingly of him as a father and contributing to his sons being successful members of the Australian community.
JD2 and GG are planning a family and want the Applicant to be with them and be a grandfather to their child or children. They both advocated for the Applicant remaining in Australia as relocation to Vietnam will be harmful to his health and well-being. They referred to his PTSD, chronic pain and ageing years all of which required support and psychiatric treatment which he could access in Australia.
GG gave evidence. She was born in Australia and is currently studying her master’s degree in psychology. She first met the Applicant in October 2018. They enjoy a good relationship and have a fond friendship for each other. She described him has quietly spoken, empathetic and a genuine person.
JD2 told her about the Applicant’s history. She did not meet the Applicant when he was residing at the rental home but only when he moved back to JD’s house. This, I infer, was after the Applicant was arrested and charged for his cannabis offending.
GG said that she was disappointed for the Applicant and his sons given the Applicant’s history and other psychological disorders. If released back into the community she confirmed that the Applicant could live with JD or with her and JD2. She said they would support the Applicant in seeking treatment for his current difficulties and did not believe he would continue to grow cannabis and did not believe he would reoffend.
GG expressed the opinion that the Applicant would not receive appropriate medical care, social support and psychiatric help if relocated to Vietnam. She did not have faith in his ability to survive and cope if he was relocated.
Conclusion: Other Consideration (b)
The Applicant arrived in Australia in about 1985 aged 24 years and has continued to reside in Australia ever since. He was first convicted of a criminal offence of cultivating cannabis on 17 January 1991 and thereafter was regularly before the court for a range of serious offending to which I have referred.
Hence the Applicant’s offending did not commence immediately upon his arrival in Australia. Nonetheless, I regard the fact that approximately six years past before he was first convicted of a criminal offence as offending which occurred within a relatively short time of his arrival in Australia, and thereafter he regularly offended. I am reminded that he told Dr Lim that he was using heroin when residing in Alice Springs and working at the Sheridan Hotel, Ayers Rock.
Albeit the Applicant worked in the restaurant industry when in Alice Springs and then in Melbourne in the family restaurant business, that work ceased in 2003, and based on the evidence before the Tribunal I am not satisfied that since that time he has contributed positively or at all to the Australian community. Indeed, by his offending he has been a burden upon the community including in respect of criminal investigations and bringing him to justice, engaging in various rehabilitation and other correctional services programs, serving periods of imprisonment and by his drug trafficking placing other members of the community at risk.
The Applicant has extended family interstate with whom he maintains contact by telephone, namely his brother and sister and to a lesser extent his nieces and nephews. There is no impediment to him maintaining that telephone contact should he be relocated to Vietnam. He will also be able to maintain contact by other electronic means. He has limited contact with his father in Queensland.
The strength of the Applicant’s personal ties to Australia lie predominantly in his relationship with his two sons, GG and his ongoing friendship with his former wife J. He now has a very strong reliance upon that small family network.
Albeit the Applicant continued his relationship with his sons after his marriage broke down and when he was still living in Melbourne, that relationship has only recently been strengthened following his relocation to South Australia. Despite the love and help that was extended to him by his sons and in particular JD, he breached their trust by converting the rental property into a cannabis grow house.
Nonetheless, the Applicant has a level of support, love and affection from his family in South Australia and I accept that that it will be devastating to all concerned should he be relocated to Vietnam. I am also satisfied that he maintains a friendship with his former wife J.
Having regard to the whole of the evidence, I have decided that this Other Consideration is to be given some weight in favour of the Applicant but when balancing the relevant considerations I have decided that Other Consideration (b) weighs moderately in favour of the revocation of the Applicant’s visa cancellation.
Other Consideration (e): Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that decision-makers must have regard to the following where relevant:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
The Applicant is approximately 59 years of age and has been diagnosed with a range of psychological conditions as outlined by Dr White at paragraph 4.3 of his report and by Dr Lim at page 9 under heading ‘Opinion and Recommendations’ of her report. The Applicant receives methadone daily which will continue for the foreseeable future.
The Applicant as now expressed a willingness to engage in counselling, which he has previously declined, which if embraced, will, amongst other things, assist him in remaining drug-free long-term.
The Applicant submits that he will not receive treatment for his mental health conditions in Vietnam to the level and standard he would receive if permitted to remain in Australia. The Applicant referred to the report of Dr Lim, including at page 10 which referred to the Applicant’s cessation of all illicit drug consumption, the need for psychological intervention to address unresolved PTSD and anxiety, and the need to improve adaptive and coping strategies in response to stress. There is a reported willingness to now in engage in psychological counselling and the need for ongoing assertive case management. If he were to remain in Australia, he would have the benefit of long-term treatment for his various conditions.
It was submitted that the Applicant will also have the benefit of emotional support if he remains in Australia and referred to those family members who will provide that support, including financially and emotionally, and will help him set up a home upon his release and assist him in engaging in and maintaining appropriate treatment regimes.
The Applicant submitted that he would not receive the necessary level of treatment in Vietnam, which will place his life at risk. He submitted that the Vietnamese view mental health conditions differently. They are taboo and frowned upon.
The Applicant has no known family members residing in Vietnam, albeit in evidence he referred to an uncle with whom his parents resided when they retired. The Applicant does not know the whereabouts of that uncle who has a transport business operating between Vietnam and Cambodia. He has made no enquiry about his whereabouts.
Conclusion: Other Consideration (e)
The Applicant arrived in Australia from Vietnam when he was 25 years of age and, albeit he is now 59 years of age and has spent the majority of his life in Australia, there are no substantial language or cultural barriers that he will likely face should he relocate to Vietnam.
The Tribunal accepts that the Applicant suffers from a range of psychological conditions which, to a relevant extent, have not been fully addressed, particularly because until more recently the Applicant has declined the offer of counselling.
At paragraph 2.21 of the DFAT Country Information Report it reads[49]:
A social health insurance scheme was introduced in Vietnam in 1992, which has contributed to improved health indicators through increased access to health care services for beneficiaries, particularly the poor and vulnerable.
[49] Exhibit B, page 175.
It is further reported that in 2013 close to 70% of the population was covered by social health insurance. However, at paragraph 2.24 it is reported that[50]:
…mental health and psychosocial problems were widespread and increasing in Vietnam, and, despite some progress, the service environment and response remain largely inadequate. The lack of mental health services was particularly acute in remote provinces.
[50] Ibid.
The DFAT report also says that mental health and psychosocial services are provided through social welfare and social protection centres, and mental health hospitals. In 2011 the government introduced a program of support for community-based rehabilitation. Stigma towards mental health patients was declining, albeit people are reluctant to access mental health services due to perceived stigma.
The Tribunal accepts that the mental health treatment in Vietnam will not be to the quality and standard of treatment that the Applicant could expect to receive in Australia, nonetheless that treatment is available to him to the same level as other citizens of Vietnam, should he maintain this stated desire to engage in counselling and with mental health practitioners.

The Applicant has limited labour skills, save that for the majority of his working life in Australia he was involved in the hospitality industry which is a skill that is readily transferable to Vietnam.
The DFAT report says that support for the elderly is limited and that most of the Vietnamese elderly live off personal savings and other family members. However, the Applicant’s son JD has indicated that he and his brother will continue to provide the Applicant with as much financial support as they are able should he relocate to Vietnam.
The Tribunal accepts that the Applicant is genuinely concerned about returning to Vietnam for the reasons discussed in Other Consideration (a) and will initially find it difficult to find his way within the Vietnamese community. His separation from his family will be distressing. He has no known family contact in Vietnam, albeit he has not yet made any enquiry about the whereabouts of relatives and, in particular, his uncle. That remains a line of enquiry available to him, but I will not speculate about the likely success of that enquiry. He will need to pursue the various medical treatment options necessary to support his long-term well-being including receiving methadone and treatment for his diagnosed mental health issues. However, he has the benefit of no substantial language or cultural barriers which would otherwise cause a substantial impediment in enabling him to engage in those services, and he has the ability to establish himself and maintain basic living standards comparable to those of other citizens of Vietnam
Taking into account all of the evidence, the Tribunal is satisfied that this Other Consideration nonetheless weighs significantly in favour of the Applicant and the revocation of his visa cancellation.
There are no more Other Considerations that the Tribunal should have regard to on the available evidence.
CONCLUSION
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Based upon the Applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction. Accordingly, the Tribunal finds:
(a)Primary Consideration A weighs heavily in favour of the Respondent and the non-revocation of the Applicant’s visa cancellation;
(b)Primary Consideration B is not enlivened;
(c)Primary Consideration C weighs heavily in favour of the Respondent and the non-revocation of the Applicant’s visa cancellation.; and
(d)Other Consideration (a) is not enlivened on the evidence before the Tribunal and no weight is given to that Other Consideration. The combined weight of the Other Considerations (b) and (e) are such that none of them, alone or combined, outweigh the significant weight that the Tribunal has attributed to the Primary Considerations.
The Tribunal therefore finds that, taking into account all of the considerations in the Direction, they do not weigh in favour of the revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal does not exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.
I certify that the preceding two hundred and forty-seven (247) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth.

………………[SGND]…………………….
Administrative Assistant Legal

Dated: 16 December 2020

Date of hearing: 26 and 27 November 2020 and 4 December 2020

Representative for the Applicant: Dr Timothy Haines, Emulink Migration & Intercultural Consultancies

Representative for the Respondent: Mr Will Sharpe, HWL Ebsworth Lawyers

Date of hearing:	26 and 27 November 2020 and 4 December 2020
Representative for the Applicant:	Dr Timothy Haines, Emulink Migration & Intercultural Consultancies
Representative for the Respondent:	Mr Will Sharpe, HWL Ebsworth Lawyers