HRZN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 1035

HRZN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1035 (14 April 2021)
Division:General Division
File Number: 2019/7548
Re:HRZN
APPLICANT

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

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:14 April 2021
Date of written reasons: 22 April 2021
Place:Melbourne

The Tribunal affirms the decision of the respondent dated 14 November 2019 not to revoke the mandatory cancellation of the applicant’s Class BB Subclass 155 Five Year Resident Return (Permanent) visa.
...............................[SGD].........................................
The Hon. Matthew Groom, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – other considerations – consideration of Australia’s international non-refoulement obligations – extend of impediments if removed – primary consideration of protection of the Australian community outweighs other considerations – decision affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Schuster-McFadyen v Minister for Immigration and Citizenship, Re (2011) 124 ALD 68
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Amon. J, Foreign Policy Magazine, ‘Why The Vietnamese Don’t Want To Go To Rehab’, 27 May 2010
DFAT Country Information Report For Vietnam, 13 December 2019
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
Human Rights Watch, ‘The Rehab Archipelago - Forced Labour And Other Abuses In Drug Centres In Southern Vietnam’, September 2011
National Drug Research Institute, Curtin University, ‘Quantifying The Social Costs Of Pharmaceutical Opioid Misuse & Illicit Opioid Use To Australia In 2015/16, Chapter 7: Cost Of Crime Related To Heroin Use’, page 108, February 2020
Pearshouse. R, Human Rights Watch, ‘Vietnamese Drug Dealers Make A Break For Freedom’, 25 October 2016
Smith. P, Johns Hopkins Medicine, ‘Johns Hopkins Physicians Take On Hepatitis B Epidemic In Vietnam’, 6 June 2020.
Yen, H. World Health Organisation, ‘WHO Call For Increased Investment In Hepatitis Elimination’, 1 August 2019
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
22 April 2021
INTRODUCTION

This matter involves a review of a decision of a delegate of the respondent dated 14 November 2019 to not revoke the mandatory cancellation of the applicant’s Class BB Subclass 155 Five Year Resident Return (Permanent) visa (the “visa”).
The applicant’s visa was cancelled on 7 December 2017 under section 501(3A) of the Migration Act 1958 (Cth) (the “Act”). The applicant was invited to make representations to a delegate of the respondent in respect of his visa cancellation and did so. On 14 November 2019 the delegate made the decision to not revoke the mandatory cancellation of the applicant’s visa. The applicant then sought review of that decision.
This matter is a “remitted” proceeding. The matter was previously considered by the Administrative Appeals Tribunal (differently constituted) and a decision made on 7 February 2020 to affirm the decision under review. On 15 July 2020 the Federal Court made orders quashing that previous decision and remitting the matter back to the Tribunal for reconsideration.
On 14 April 2021 the Tribunal decided to affirm the decision under review. These are the written reasons for that decision.
BACKGROUND
The applicant is a 48 year-old citizen of Vietnam who first arrived in Australia on 4 July 1980. He was born in south Vietnam in 1973. When he was approximately seven years of age the applicant together with his uncle and brother left Vietnam and travelled to Australia on a small fishing boat. The applicant was picked up by sea freighter just off the Australian coast and delivered to the port of Adelaide in South Australia.
The applicant was granted his visa after arriving in Australia.
The applicant’s parents and sisters remained behind in Vietnam. One of the applicant’s sisters subsequently migrated to Australia and currently resides here together with the applicant’s older brother. The applicant’s parents are both since deceased. The applicant’s other brother and sister continue to reside in Vietnam.
Following his arrival in Australia the applicant initially lived with his uncle in South Australia before being fostered by the coach of a local soccer club, Mr V, together with his wife. The applicant resided with Mr V and his wife for approximately 2 years before moving to Melbourne where he initially lived with members of his wider family and then subsequently with friends.
The applicant had no formal schooling in Vietnam. He attended school while living in South Australia completing year 10 at approximately 15 years of age.
While living in Melbourne with friends the applicant began to be exposed to alcohol and drugs including heroin which he claims was the trigger that subsequently led to his criminal offending.
In approximately 1999 the applicant began a relationship with Ms D. They subsequently had two children together. The applicant claims that this period was a period of relative stability in his life. During this time the applicant was employed for a period as a cabinetmaker.
In approximately 2003 the applicant’s relationship with Ms D broke down and in around 2007 he returned to live in South Australia. The applicant maintained contact with his children during this period and on occasion paid for them to travel to South Australia to see him.
In 2012 Ms D died from an overdose of drugs and the applicant returned to Victoria to care for his children.
The only time the applicant has returned to Vietnam was in around 2013 when he took his children to Vietnam for a holiday and to visit family.
The applicant developed carpal tunnel syndrome and following his return to Australia from Vietnam he underwent carpal tunnel syndrome surgery on both of his hands.
The applicant has an extensive criminal history which is detailed further on in these reasons.
The applicant concedes that he has had an issue with drugs for the bulk of his adult life. He claims his drug use is what led to his criminal offending.
On 17 June 2013 the Department notified the applicant of its intention to consider cancellation of the applicant’s visa. On 16 September 2013 the Department advised the applicant that it had decided not to cancel his visa but issued a warning that his visa would be reconsidered for cancellation if he committed further offences. The applicant subsequently reoffended on multiple occasions.
The applicant’s two children are now both at or over the age of 18. They are both Australian citizens.
ISSUES
Having regard to the applicant’s offending history the Tribunal is satisfied that he has a substantial criminal record for the purpose of section 501(7) of the Act and, for that reason, does not pass the character test for the purpose of section 501CA(4)(b)(i) of the Act. This point is conceded by the applicant.
Accordingly, the issue to be determined by the Tribunal is whether it is satisfied that there is another reason why the cancellation of the applicant’s visa should be revoked in accordance with section 501CA(4)(b)(ii) of the Act.
Section 499 of the Act provides the Minister with the power to make and give directions to individuals exercising powers under the Act. A person exercising such power (including the Tribunal) must comply with such direction.
On 20 December 2018, the then Minister issued Direction No. 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA - in accordance with section 499 of the Act (the “Direction”). The Direction came into effect on 28 February 2019.
The Tribunal accepts that the Direction is consistent with the Act and the Tribunal has therefore applied the Direction in making its decision in this matter.
Paragraph 6.1(1) of the Direction states that “[t]he objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”.
Paragraph 6.2 of the Direction sets out general guidance for decision-makers as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about the future.
(3)The principles provide a framework within which decision-makers should approach this task of deciding whether to refusal or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
The Principles referred to are set out in paragraph 6.3 of the Direction 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 should 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 7(1)(b) of the Direction requires that a decision-maker, informed by the principles in paragraph 6.3, 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 8 of the Direction provides that:
(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. Separating the considerations for visa holders and visa Applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.
(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 consideration should generally be given greater weight than other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
While the Direction provides that primary considerations should generally be given more weight, it is now well-established that the Tribunal, in exercising its discretion, can give equal or greater weight to any consideration.[1]
CONSIDERATION
[1] Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303.
Primary considerations
Paragraph 13(2) of the Direction provides that in deciding whether to revoke the mandatory cancellation of the non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
The protection of the Australian community
Paragraph 13.1 of the Direction provides that:
(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 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.
Nature and seriousness of the conduct
Paragraph 13.1.1 the Direction provides that:
(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, without limiting the range of offences that may be considered serious, 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)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)Whether the non-citizen has 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 was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
The applicant has an extensive criminal history dating back to 1994 when the applicant was 21 years of age. The applicant’s criminal history is set out in the National Police Certificate included in the Tribunal’s materials. The applicant did not seek to challenge the accuracy of the National Police Certificate and it was conceded by counsel acting on behalf the applicant that the applicant’s criminal history includes serious offending.
The applicant’s most recent offending involved two counts of trafficking in a controlled drug in a prescribed area to which he was sentenced to 2 years, nine months and 18 days imprisonment with a non-parole period of one year and nine months. In committing the offence the applicant undertook a series of drug transactions in which he sold 0.23 g of heroin to an undercover police agent and couriered the drugs on behalf of his co-accused. The applicant accepted that he had committed the offence.
In sentencing comments the Sentencing Judge noted that the applicant had operated as a courier in the drug trafficking, that the offending was serious and that the applicant’s prospects of rehabilitation were poor. Her Honour stated:
The role of the courier in the drug trade is an extremely important one and both general and personal deterrence are important considerations in sentencing.
Were it not for your pleas, I would have sentenced you to four years imprisonment.
… Given your history, the seriousness of this offending and the importance of both general and personal deterrence, there is no good reason to suspend the sentence. Your history of offending, particularly as regards breaching bail and community-based orders, show your prospects for rehabilitation are poor. There is a risk of reoffending and non-compliance with home detention orders such as it is not appropriate that you serve your sentence on home detention.
The applicant otherwise has an extensive criminal history which involves approximately 200 offences between 1994 and 2018. The applicant’s offences include multiple thefts, motor vehicle thefts, burglary, larceny, drug possession and forging prescriptions for drugs. The applicant also conceded in cross-examination that he had been convicted of a number of offences that were violent offences including common assault on a person other than a family member, assault with a weapon, carry offensive weapon, reckless conduct, endanger serious injury and recklessly cause injury. The applicant conceded that he had been convicted of multiple driving related offences including driving under the influence, driving while disqualified, careless driving and unlicensed driving. The applicant’s offending also involves multiple offences of dishonesty and also of breach of bail and various other breach of court order offences.

In addition, the applicant conceded that his offending included offences against police including resist police or person assisting police.
The respondent contended that the applicant’s criminal history must be viewed as being very serious. Counsel on behalf the applicant did not dispute that the applicant’s criminal history involved serious offending.
Having considered all the evidence before it the Tribunal is satisfied that the applicant’s criminal history involves very serious offending and, when considered as a whole, must be considered to be very serious. The Tribunal accepts the respondent’s contention that the applicant has engaged in offending involving violence which under paragraph 13.1.1(1)(a) of the Direction must be viewed as very serious, regardless of the sentence imposed.
In addition, the Tribunal is satisfied that the applicant has engaged in sustained serious offending over an extended period of time and accepts the respondent’s contention that the level of seriousness of the applicant’s offending has increased over time. In this respect the Tribunal is satisfied that the applicant’s more recent offending of trafficking in a prescribed drug is particularly serious as reflected by the significant term of imprisonment imposed on the applicant in respect of the offending. The Tribunal also notes that the applicant has been sentenced to significant terms of imprisonment on more than one occasion. The Tribunal is satisfied that the sentences that the applicant has received in respect of his offending reflect the objective seriousness of the offending involved.
The Tribunal also accepts the contention put by the respondent that the applicant’s offending involves offending against government officials, namely police, and should be viewed as being serious for this reason also consistent with paragraph 13.1.1(1)(c) of the Direction.
In addition, the Tribunal accepts the respondent’s contention that the sheer cumulative impact of the applicant’s offending over an extended period of time of itself should be viewed as being very serious noting that the applicant committed approximately 200 offences between 1994 and 2018.
For these reasons, the Tribunal is satisfied that the applicant’s criminal offending history is very serious.
The Tribunal is satisfied that if conduct consistent with the applicant’s offending history were to be repeated it has the potential to cause very serious physical and psychological harm to members of the Australian community.
In relation to the applicant’s drug trafficking offending the Tribunal accepts the contention put by the respondent that conduct of that kind can destroy lives as well as having very serious adverse consequences for families and the community as a whole. The Tribunal is also satisfied that offending of this kind has serious costs and consequences for government and the broader community. The respondent’s Statement of Facts, Issues and Contentions included a reference to a report entitled “Quantifying the Social Costs of Pharmaceutical Opioid Misuse & Illicit Opioid use to Australia in 2015/16” published by the National Drug Research Institute in February 2020. The report concludes in the Executive Summary:
The extra-medical use of opioids places considerable social and economic costs on Australia. In particular, the number of premature deaths result in substantial tangible and intangible costs in addition to the impact on family and friends.
The report estimates that the total cost of crime related to opioid use in Australia in 2015/2016 amounted to approximately $5.63 billion including approximately $936 million directly attributable to the costs associated with police, the courts, legal services, prisons and victims of crime compensation.
In addition, the Tribunal is satisfied that the potential consequences for innocent members of the Australian community if the applicant were to engage again in any of the examples of his previous violent offending or more serious driving offending are also very serious, with the potential to cause significant physical and psychological damage to individuals as well as flow-on consequences for family, friends and the broader community.
The applicant contends that his criminal offending is very substantially connected to his drug abuse. In evidence, the applicant conceded that he has been a substantial user of drugs for much of his adult life including having had a very significant heroin addiction. The applicant told the Tribunal that drug addiction has a very significant impact on a person’s capacity to make sensible and rational judgements. The applicant told the Tribunal that he considers himself to be physically free of drug addiction although he acknowledged that he requires ongoing effort to completely free himself of the temptation of drugs from a mind perspective. He told the Tribunal that he has been free of heroin for approximately four years while in custody and has been free of the use of methadone for approximately 12 months. He told the Tribunal that during his time in custody he has been offered drugs on multiple occasions but has not accepted them.
The applicant told the Tribunal that he has undertaken counselling and mental health sessions as well as various other programs to assist in his rehabilitation efforts. The applicant told the Tribunal that he has found the counselling and other support services to be helpful in his rehabilitation efforts and that the experience he has had in his most recent time in custody has been different in that respect to his previous attempts at rehabilitation.
The applicant also made clear to the Tribunal that he considers the counselling he has had to be very helpful in him coming to terms with what objectively can be said to have been a difficult early life. There was evidence before the Tribunal of the difficult living circumstances of the applicant’s family in Vietnam. The applicant was born during the tail end of the Vietnam war, his family had very limited means and they had lived in very basic circumstances. The family were not able to send the applicant to school. The applicant was born in south Vietnam and they faced a threat to their physical safety as well as economic prospects as a consequence of the presence of North Vietnamese forces in the area they were living in.
The applicant left Vietnam in a small fishing boat with his uncle and older brother. After arriving in Adelaide in 1980 at approximately 7 years of age the applicant then lived with his uncle. The applicant told the Tribunal that he had been physically abused by his uncle and found his early life in South Australia very difficult because of the social isolation and racism he experienced. The applicant was subsequently fostered by his soccer coach and his wife and had a period of relative stability. The applicant later moved to Victoria and lived with relatives and subsequently with friends. The applicant stated that this period was also extremely difficult for him. His living arrangements were unstable and he gave evidence that he had experienced considerable racism. The applicant stated that it was at this time that the applicant first commenced using drugs. He subsequently dropped out of school. He also commenced engaging in criminal activity and had periods of imprisonment. He had sporadic employment and had periods of homelessness.
The applicant met Ms D while living in Victoria and they had two children. The applicant described the period of his relationship with Ms D as again being one of comparative stability. The applicant’s relationship with Ms D broke down in around 2003 and despite making an effort to maintain regular contact with his children he felt a strong sense of isolation because of the separation. In 2007 he moved back to South Australia. Again, the applicant described having a period of comparative stability at this time including engaging in some employment although ultimately he resorted to drug use and again reoffended. Ms D subsequently died of an overdose of drugs and the applicant moved back to Melbourne to help care for the children.
The applicant also described having issues with carpal tunnel syndrome at this time and after returning from a visit to Vietnam with his two children the applicant underwent surgery in connection with his condition. While the surgery itself was relatively successful the applicant’s recovery from the surgery did not go well and has had an ongoing impact on the applicant including limiting his ability to undertake heavy lifting or repetitive manual labour or to write for lengthy periods. The applicant stated that as a consequence of ongoing pain he experienced following the surgery he resorted again to drug use. The Tribunal accepts the applicant’s evidence with respect to his difficult early life and accepts that it is likely to have contributed to his early take-up of drugs and his ongoing drug addiction.
The applicant also acknowledged that the process of rehabilitating from drug addiction is extremely difficult and conceded that he had not done what was necessary in the past to remain drug free. The applicant told the Tribunal that he very much regrets not having done what was necessary to remain free from drugs in the past and that he recognises the harm his addiction and associated criminal activity has caused. The applicant reiterated his commitment to do what is necessary to maintain his abstinence on this occasion. The applicant stated that he will be assisted in undertaking further counselling in his ongoing effort to maintain abstinence. The applicant stated that he recognises that if released back into the community it will be his final chance. He stated that he recognises the significant pain he has caused his children and that if he was forced to return to Vietnam it would cause even further pain for them. He stated that the thought of returning to Vietnam fills him with dread given the significant threats and challenges he believes he would be forced to face if he were to return there. The applicant also stated that he has positive plans for the future if released back into the community including finding a job, living a normal life and spending time with his kids and watching them grow up.
It was submitted on behalf of the applicant that as a consequence of the steps the applicant has undertaken towards rehabilitation during his most recent period in custody, that the risk of him relapsing back into drug use is extremely low and that consequently his risk of reoffending again in a similar manner to his previous offending is also extremely low to non-existent, and that he therefore poses no risk to the Australian community or at least the level of risk is not unacceptable.
It was submitted on behalf of the applicant that he has now developed greater insight into his offending and has genuine regret and remorse for his offending, the impact it has had on victims as well as his family and in particular his two children. The applicant has also expressed regret for not having successfully undertaken drug rehabilitation in the past when, on a number of occasions, he has had the opportunity to do so.
The applicant maintains that the risk he presents if released is further mitigated by the significant support he has from family and friends as well as the strong incentive he has to remain free from drugs and to not reoffend given the very significant consequences that would flow for him if he were to reoffend again in a similar manner.
The respondent contends that the applicant’s abstinence from drugs has only occurred in a custodial setting and is yet to be tested in the community. In addition, the respondent contends that the confidence that can be placed in the applicant’s statements of commitment to not relapse back into drug use and reoffend is lessened to a significant degree by the fact that on a number of previous occasions he has made such commitments and yet has relapsed and reoffended. The respondent contends that the risk of the applicant relapsing back into drug use and reoffending is very high and that given the very serious consequences that would potentially flow to innocent members of the Australian community if the applicant were to do so, that the risk of the applicant reoffending again in a similar manner is an unacceptable one.
The Tribunal accepts that the applicant’s criminal offending has been strongly linked to his drug use. The Tribunal accepts that the applicant commenced using drugs at a relatively young age and has been addicted to drugs, and in particular heroin, for much of his adult life. The Tribunal accepts that the applicant has not used heroin for approximately four years during his time in custody and has been off the methadone program for approximately 12 months.
The Tribunal accepts that during the applicant’s current period in custody he has made a very genuine effort towards rehabilitation from drug addiction. The Tribunal accepts that the counselling and mental health services that the applicant has undertaken while in custody have been of benefit in his rehabilitation and have helped him better understand the impact his early life experiences have had on his drug use and how to better manage those emotions. The Tribunal accepts that this factor is different to the applicant’s previous efforts at rehabilitation where his access to counselling was more limited. The Tribunal accepts the applicant’s stated commitment to continue with ongoing counselling if released back into the community and his positive plans for the future. The Tribunal also accepts that the applicant has undertaken other programs to assist in his potential employment opportunities if released back into the community including cooking classes and a TAFE course in coffee preparation and food safety. The Tribunal materials included documentary evidence of the applicant’s successful engagement with the methadone program. The materials also included a certificate of attendance at a Smart Recovery Australia program focused on the self-management of addictive behaviours and a certificate of participation in a course focused on mindfulness and effective stress management.
The Tribunal also acknowledges the evidence of the applicant’s children and friends that they believe the applicant has demonstrated a significant change in attitude and approach towards drugs and towards his rehabilitation during his most recent period in custody and their belief that the applicant will not reoffend.
The Tribunal also acknowledges the applicant’s stated commitment to not reoffend and the existence of positive personal characteristics that he has demonstrated in the past, including a capacity to apply himself to a task and successfully achieve outcomes. The applicant’s prior success at soccer and also to some degree at school are reflective of such characteristics.
Notwithstanding the applicant’s efforts at rehabilitation it is clear that the applicant has had a significant number of prior opportunities to rehabilitate and remain free from drugs and not reoffend and yet has failed to do so. The Tribunal accepts that on a number of occasions the applicant has made representations to the courts as well as previously to the Minister that he would remain free from drugs and not reoffend and that in doing so the applicant cited the support of family and friends and his strong incentives not to reoffend in a manner not dissimilar to the representations that he made to this Tribunal. Despite these previous representations the applicant reoffended.
A number of representations were made by the applicant’s family, including his two adult children as well as other friends and colleagues, that they are strongly supportive of the applicant and will do what they can to help support him in his efforts to remain free from drugs. The Tribunal accepts that such representations were very genuine. However, the applicant had the benefit of such support on previous occasions and yet relapsed and reoffended. For this reason, while offers of support from family and friends and colleagues can operate to some extent as a protective factor the Tribunal is satisfied that, in the circumstances of the applicant, the effectiveness of such factors is limited.
Similarly, the Tribunal accepts the respondent’s contention that while the applicant has clear incentives not to relapse and reoffend he had clear incentives previously and yet despite those incentives he relapsed back into drugs and reoffended. This is particularly so in the case of his desire not to adversely impact his children. It is clear from the evidence before the Tribunal that despite clearly understanding the potential adverse impact his relapse back into drug use and offending would have for his children on previous occasions the applicant nonetheless did so. In the same way, despite the very significant risk of the applicant having his visa cancelled and being forced to return to Vietnam if he reoffended the applicant did so. In this context it is significant that the applicant previously received a warning from the Department of exactly that potential outcome. While recognising that such incentives to not reoffend can operate to some degree as factors mitigating the risk of the applicant reoffending, the Tribunal is satisfied that the reliance that can be placed on such factors in the applicant’s circumstances is limited.
Having had regard to all of the circumstances of the applicant’s case, on the basis that the applicant’s latest abstinence has not yet been tested in the community and given the extent of his previous drug use history together with his own acknowledgement of the need for him to remain vigilant in his efforts to maintain his abstinence from drugs, the Tribunal is satisfied that there still remains a genuine risk of relapse back into serious drug use. The Tribunal is satisfied that the risk is not minimal or trivial. Rather, the risk is real and significant.
The Tribunal is also satisfied that in the event the applicant relapses back into drug use his risk of engaging in offending conduct similar to his previous offending, including drug related offending, violent offending and other serious offending, is extremely high.
Given the serious consequences such offending could potentially have for innocent members of the Australian community the Tribunal is satisfied that the risk to the Australian community is an unacceptable one.
Accordingly, the Tribunal is satisfied that the protection of the Australian community consideration weighs very heavily against a revocation of the mandatory cancellation of the applicant’s visa.
The best interests of minor children in Australia
Given that the applicant’s two children are both of age, counsel for the applicant did not press the best interests of minor children consideration.
Accordingly, this consideration is given neutral weight.
Expectations of the Australian community
Paragraph 13.3(1) of the Direction provides that:
(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.
The Tribunal has approached this consideration consistent with the reasoning in YNQY v Minister for Immigration and Border Protection[2] (“YNQY”) as well as the Full Federal Court decision in FYBR v Minister for Home Affairs (“FYBR”).[3]
[2] [2017] FCA 1466.
[3] [2019] FCAFC 185.
In applying this consideration, the Tribunal has had due regard to the Government’s stated views as set out in the Direction including those described in paragraph 13.3(1) referred to above as well as the general principles set out in paragraph 6.3 of the Direction.

Having regard to the applicant’s significant history of criminal offending committed over an extended period of time, the very serious nature of some of the applicant’s offending and the assessed unacceptable risk of the applicant reoffending, the Tribunal is satisfied that this consideration weighs against the revocation of the mandatory cancellation of the applicant’s visa. However, in considering the weighting to be given to this consideration the Tribunal has been mindful of a number of broader circumstances of the applicant’s case including:
(a)The very substantial period of time the applicant has lived in Australia;
(b)The efforts he has made to rehabilitate during his current period in custody;
(c)The difficult circumstances of his early life that the Tribunal accepts have contributed to his drug addiction;
(d)The applicant’s ongoing health issues including his hepatitis B and D condition and the ongoing physical difficulties he continues to experience as a consequence of carpal tunnel syndrome post-surgery complications;
(e)The significant impediments the applicant is likely to face if required to return to Vietnam; and
(f)The impact the applicant’s removal from Australia would have for the applicant’s family and in particular his two adult children.
Notwithstanding these mitigating broader circumstances, given the clear and sustained manner in which the applicant has breached the trust and expectations of the Australian community through his serious criminal offending the Tribunal is satisfied that this consideration weighs heavily against the revocation of the mandatory cancellation of the applicant’s visa.
Other considerations
International non-refoulement obligations
It was submitted on behalf of the applicant that the applicant is owed international non-refoulement obligations due to the risk the applicant would likely face on his return to Vietnam. The applicant has claimed a fear of persecution or other serious harm including arbitrary detention, torture or other cruel, inhuman or degrading treatment as a consequence of the applicant being an imputed drug user or person recovering from drug addiction. Non-refoulement obligations in respect of such fears may be owed under the International Covenant on Civil and Political Rights and its Second Optional Protocol (the “ICCPR”); the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (the “Refugees Convention”); and the Convention against Torture and Other Cruel, Inhumane Degrading Treatment or Punishment (the “CAT”). Australia has also incorporated obligations of that kind into Australian domestic law through the provisions of the Act.
Counsel for the applicant relied on a series of reports in support of these contentions including the most recent DFAT Country Information Report for Vietnam dated 13 December 2019; a Foreign Policy article entitled “Why the Vietnamese don’t want to go to rehab” published in May 2010; a Human Rights Watch report dated September 2011 entitled “The Rehab Archipelago - forced labour and other abuses in drug centres in Southern Vietnam”; and a further Human Rights Watch report entitled “Vietnamese drug dealers make a break for freedom” dated October 2016.
In his evidence to the Tribunal the applicant stated that the thought of returning to Vietnam fills him with dread. He told the Tribunal he did not know how he would survive in Vietnam. He stated that he understood that people in Vietnam who are drug users or thought to be drug users are locked up, chained and forced to do hard labour. The applicant told the Tribunal that he understands the conditions in such facilities are worse than prisons and that he is scared of being held in such a facility. It was put on behalf of the applicant that as a consequence of the risk of him being held in such a facility he was at risk of physical violence or other cruel or degrading treatment at the hands of the Vietnamese authorities.
Having regard to the evidence before it the Tribunal accepts that there remains an ongoing practice in Vietnam of addressing broad community and government concerns relating to drug use and drug addiction through various measures which include the use of dedicated drug treatment centres. While the circumstances and conditions of such centres would appear to vary, the Tribunal accepts that the conditions in some dedicated drug treatment centres in Vietnam are harsh and involve, at some level, forced labour for little or no monetary compensation. The Tribunal also accepts that there are examples of drug treatment centres in Vietnam that engage in the abuse of detainees and in some cases hold people against their will.
The latest DFAT Country Information Report for Vietnam dated 13 December 2019 states as follows:
2.28 Compulsory treatment centres for people who use drugs, known as “06 centres”, have operated in Vietnam since the late 1980s. Drug users in 06 centres are forced to cease using drugs, while voluntary patients are able to access treatment. According to unofficial data, 30,000 drug users were sent to 06 centres from January to April 2018.
2.29 In-country sources in Vietnam report that drug users typically spend 12 months in 06 centres, though some remained for up to 4 years for post-treatment management. Limited information is available about the living and working conditions in 06 centres, as no external monitoring is permitted by authorities. In-country sources report, however, that conditions in 06 centres are worse than those in prison. Evidence indicates that compulsory detention for drug users in Vietnam is frequently ineffective, forced labour is used as a form of “treatment”, post-release services are limited, and the stigma of being an 06 centre inmate often impedes reintegration into communities in terms of employment and accessing healthcare. In addition to the 06 centres, treatment is also provided through community or home-based programs including methadone clinics for heroin users in some districts and communes, which require co-payment by the user.
2.30 The 2013 “Decision on Drug Rehabilitation Renovation Plan for 2013-2020” focused on: diversifying drug dependence treatment models; increasing community-based involuntary treatment centres; and reducing the number of people in compulsory rehabilitation 06 centres. UNDOC reported that, as of 2018, there were six remaining compulsory treatment 06 centres in Vietnam; 75 mixed facilities with compulsory and voluntary treatment; 18 facilities offering methadone and voluntary treatment; 2 shelters and treatment facilities for homes drug users; and 18 social centres for non-drug purposes.
The Foreign Policy article included in the Tribunal materials notes a story involving around 600 drug addicts fleeing a state-run drug treatment centre. The article states:
Why were hundreds of patients fleeing treatment? Because in Vietnam, “treatment” looks a lot more like forced labour, complete with beatings and years of involuntary detention. Like neighbouring Cambodia, China, Laos, Malaysia and Thailand, the government of Vietnam has adopted a “get-tough” approach to drug treatment rather than evidence-based treatment. In Vietnam, more than 100 government-run facilities detain between 35,000 to 45,000 people for extra judicial sentences of up to 4 years.
Vietnamese in these treatment centres are engaged in what the government calls “therapeutic labour”: long hours at menial jobs for below-market wages-whatever’s left, that is, after the centres deduct the cost of their meagre food and Spartan lodging. Those who fail to meet work quotas are beaten. Patients who violate centre rules can be locked in solitary confinement.
The September 2011 Human Rights Watch report provides an overview of drug treatment centres in Vietnam and makes various claims that such centres operate more like forced labour camps and that people are sometimes held against their will.
While the Tribunal accepts that compulsory drug centres continue to operate in Vietnam and in some instances involve harsh and degrading conditions, in assessing the applicant’s claims in this respect the immediate question to be determined is whether the Tribunal is satisfied that there is a real chance or risk of the applicant personally being detained in such a centre and being subjected to such treatment.
The applicant’s personal circumstances are important in this assessment. The applicant is not presently a drug user. On his own evidence the applicant has not used illicit drugs for approximately 4 years and has been free of the methadone program for approximately 12 months. There is no evidence of the applicant having committed a drug offence in Vietnam or having otherwise been a subject of interest by Vietnamese authorities in relation to drug use, including historical drug use.
The Tribunal accepts that sentencing comments in respect of the applicant’s criminal offending, including his drug offending, are on the public record in Australia, however there is no independent evidence before the Tribunal that Vietnamese authorities are aware of such comments nor is there any independent evidence that they are likely to become aware of such comments in the future, nor is there any independent evidence that in the event they were to become aware of such comments that it is likely the Vietnamese authorities would seek to have the applicant detained on his return to Vietnam in a drug treatment centre, or in any other manner, due to his historical drug use in Australia.
The Tribunal also notes that the applicant himself felt sufficiently comfortable to travel to Vietnam in 2013 despite his prior drug use and drug related convictions in Australia. The applicant also stated on his personal circumstances form completed in July 2013:
I do not have concerns about being sent to South Vietnam. My main concerns which scary me [sic] and frighten me is that I am the sole parent of my 2 children who live with me all the time. They are of a young age and I rely on me [sic] for support, guidance and love as their mother passed away in 2012. They have emotional/psychological issues as a result of their mother dying and have counsellor. My children really need me and I need them.
In his more recent personal circumstances form completed in December 2017 in response to a question regarding any fears or concerns the applicant has on returning to Vietnam the applicant simply states “fled Vietnam” but makes no mention of a concern he now claims to have regarding his potential to be held in a drug treatment centre.
Counsel for the applicant referred the Tribunal to the September 2011 Human Rights Watch report in support of his contention that the applicant is at risk of detention in Vietnam on the basis of his historical drug use in Australia due to the practice of drug treatment centres in Vietnam being used for post-rehabilitation treatment. More specifically, counsel referred the Tribunal to what was described in the report as the Ho Chi Minh City pilot project which involved the use of drug treatment centres as a path of treatment and post-rehabilitation recovery for drug addicts. The report references legislative amendments adopted by the National Assembly of Vietnam in response to the pilot project. The report notes disagreement between Ho Chi Minh City authorities and some members of the National Assembly as well as the media as to the success of the pilot project. The report goes on to state as follows:
Despite the debate, Ho Chi Minh city authorities ultimately prevailed and the National Assembly agreed that the approximately 6000 people detained at that time for “post rehabilitation management” could continue to be detained beyond the project’s end date.
More significantly, the National Assembly amended the Drugs Law to allow 1 to 2 years of “post rehabilitation management” at the national level. According to the implementing decree (2009), the additional period of up to 2 years “post rehabilitation management” can take place either at home (under the supervision of the commune-level People’s Committee) or in a drug detention centre. Thus, according to current law, a person can spend up to 4 years in Vietnam’s drug detention centres.
Similar to the Ho Chi Minh City pilot project, people are to be detained if deemed to be at “high risk of relapse” i.e., if they fall into any of the following categories:
1Have been addicted to drugs for five years or more (or, for injection drug users, for two years or more);
2Have already been detained in compulsory drug detention centres three times or more;
3Have been warned more than three times or punished by isolation [in a disciplinary room] more than twice for violating the internal rules of drug detention centres; or
4Have no occupation, and unstable occupation, or no specific place of residence.
The Tribunal rejects the contention put by counsel for the applicant that the reference above is one which could reasonably be said to apply to the applicant on the basis of his historical drug use in Australia. The Tribunal also rejects the contention put by counsel for the applicant that the reference in point 4 above could reasonably be said to apply to the applicant or likely would apply to the applicant at some point in the future because he is at risk of being without a specific place of residence or without an occupation or stable occupation in Vietnam. First, in the Tribunal’s view, caution should be exercised in placing too great a weight on the precise wording of the report given that it is a third party report that purports to summarise the position in Vietnam and is not an official statement of policy or the law in Vietnam. However, in any case, having carefully considered the references in the report the Tribunal is satisfied that the description in the report of those at risk of being detained due to being at “high risk of relapse” is not a reference to someone in the circumstances of the applicant, that is a person who engaged in historical drug use in another country, who has committed no drug related offence in Vietnam, has not come to the attention of Vietnamese authorities as a consequence of drug use and who has been free of illicit drug use for approximately 4 years. Rather, it is a reference to those who are or have been detained in such facilities previously or who are otherwise known to Vietnamese authorities due to their more recent drug related activities in Vietnam. More specifically, the Tribunal does not accept that the reference in point 4 above to those having no occupation, an unstable occupation, or no specific place of residence is intended to suggest that anyone in those circumstances is at risk of being held in a drug detention centre for post-rehabilitation treatment regardless of whether or not they have a current or recent issue with drug use in Vietnam. There is no explicit mention of such a risk in the DFAT report and on the whole of the evidence before it the Tribunal is not satisfied that such a risk is a real or substantive one.
Further, while the Tribunal accepts that if the applicant were to engage in illegal drug use in Vietnam at some point in the future then he would be at some genuine risk of being detained in a drug treatment centre, they are not his present circumstances, and the Tribunal is not satisfied that Australia’s international non-refoulement obligations can be said to be presently triggered due to a risk of the applicant choosing of his own volition to engage in conduct which is illegal in both Vietnam and Australia at some point in the future.
For these reasons, the Tribunal is not satisfied that the applicant’s stated fear of persecution or other serious harm as a consequence of being detained in a drug treatment centre in Vietnam is a well-founded fear or that there is a real risk of him facing such persecution or harm.
It was also put on behalf of the applicant that people associated with drug use in Vietnam can suffer stigma and discrimination which can impact on access to employment and health care and other services. The most authoritative independent evidence on this point was a reference in the DFAT Country Information Report where it is stated at 2.29 quoted above that “post release services are limited, and the stigma of being a 06 centre inmate often impedes reintegration into communities in terms of employment and accessing healthcare”. This reference is of course a reference to those who have previously been held in a drug treatment centre. As addressed above, that is not the applicant’s present circumstance nor does the Tribunal consider there to be a real risk of it occurring based on the applicant’s circumstances. However, the Tribunal accepts that in Vietnam a level of stigma is likely to attach to those who are or who have previously engaged in drug use even in circumstances where they have not been held in a drug treatment centre and that such stigma has the potential to make accessing employment opportunities, health services or other government services more difficult. However, the Tribunal is not satisfied on the evidence before it that the applicant’s historical drug use in Australia is likely to be well known in Vietnam in a way that would cause him to be subject to such stigma to a substantive degree. In any case, even if it were to become well known, the Tribunal is not satisfied that the harm the applicant is likely to suffer as a consequence would rise to a sufficiently serious level of harm that would trigger Australia’s international non-refoulement obligations. The Tribunal has dealt with the potential impact of such stigma further in the section below dealing with impediments on return.
In the applicant’s written materials claims were previously made of the applicant having a fear of serious harm on a return to Vietnam due to the applicant’s circumstances in leaving Vietnam as a seven year old and due also to what was described as uncertainty regarding potential outstanding charges. The applicant also made reference to this harm in his personal circumstances form as referenced earlier when he noted that he had “fled” Vietnam. These claims were not substantively pressed in the course of the hearing. In any case the Tribunal does not accept that there is a reasonable basis for having a well-founded fear of harm as a consequence of the manner in which the applicant departed Vietnam as a child. On the basis of the information in the DFAT Country Information Report the Tribunal is satisfied that while there are laws that make it a criminal offence to “flee abroad or defecting to stay overseas with a view to opposing the people’s administration” there is no evidence that supports the applicant being at a real or substantive risk of prosecution for such an offence or for any other offence in connection with the manner in which he initially left the country. This conclusion is further reinforced by the DFAT Country Information Report where it concludes that “DFAT is unaware of any cases where these provisions have been used against failed asylum seekers returned from Australia”.
The applicant’s written submissions also make reference to the applicant fearing harm on return to Vietnam as a consequence of limited family support or government support. The Tribunal is not satisfied that these claims of harm rise to a level that would trigger Australia’s international non-refoulement obligations. The Tribunal has dealt with these concerns in the section addressing impediments on return.
The applicant’s written submissions also made reference to the applicant fearing serious harm as a consequence of him being denied access to treatment for his Hepatitis B and D conditions. Again, these claims were not substantively pressed in the hearing on the basis of any convention-based harm but rather were more substantively dealt with by counsel for the applicant in impediments on return. Based on the evidence before it the Tribunal is satisfied that there is no convention-based harm in the form of denial of access to health care that the applicant is likely to suffer on his return to Vietnam. The Tribunal does however accept that the applicant is likely to face some difficulty in accessing treatment for his health conditions generally and including his Hepatitis B and D conditions. These issues have been considered in more detail in the section dealing with impediments on return.

For these reasons, the Tribunal is satisfied that the applicant is not owed international non-refoulement obligations and this consideration is given neutral weight.
Strength, nature and duration of ties
Paragraph 14.2 of the Direction provides that:
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to the time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, 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 Australia indefinitely).
The applicant has lived in Australia for the majority of his life having first arrived here in 1980 as a seven year old. The Tribunal accepts that as a consequence of the considerable period of time the applicant has lived in Australia he has developed ties to Australia including through family and, in particular his two adult children, Ms J and Mr J, his wider family as well as other friends and colleagues.
Both of the applicant’s adult children gave evidence to the Tribunal. The applicant’s daughter Ms J gave evidence that she has a close relationship with her father and maintains regular contact speaking to him by phone every 2 or 3 days. Ms J told the Tribunal that the uncertainty regarding her father’s future is very difficult and that she would be devasted if he were required to return to Vietnam. Ms J stated that she respected her father and that he has played an important role in her life in instilling values including the importance of being true to yourself.
Ms J told the Tribunal of the important role that her father played in her life following the death of her mother and that she felt that if the applicant was forced to return to Vietnam it would be like losing a parent all over again. She stated that the thought of not seeing him again feels her with dread and expressed serious concerns she felt about his prospects of surviving if he were to return to Vietnam. Ms J stated that she believed that her father had genuinely changed during his most recent time in custody and believed that he would maintain his abstinence from drugs if released into the community.
The applicant’s son, Mr J, gave evidence that he also has a strong and loving relationship with his father. He stated that he maintained regular contact with his father and tries to call at least once a week. Mr J stated that the applicant had been a good father to him, he was someone that he looked up to and that he has taught him to never give up and be the best person he can be. Mr J told the Tribunal that his father had played a very active role supporting him in soccer and effectively became an assistant coach of the team. Mr J stated that the applicant had played an important role in the life of the broader family and was always looking for ways to help out. Mr J also spoke of his concerns for his father if he were to return to Vietnam stating that his family in Australia were all that he had. Mr J stated that he believed if his father was forced to return to Vietnam it would be similar to the experience he had when he lost his mother as it would be as though he is leaving their lives. Mr J stated that the applicant is scared of the consequences he would suffer if forced to return to Vietnam including the potential to lose contact with his children . Mr J stated that he would do what he could to assist his father in re-establishing himself in the community. Mr J stated that he still needs his father because of the special role he plays in his life.
The Tribunal also heard from the applicant’s family friend Ms DN who spoke of getting to know the applicant through the applicant’s wider family and his children whom Ms DN has become quite close to. Ms DN told the Tribunal that the applicant was like a role model to her and someone she had always looked up to. She described the applicant as assuming an uncle-like role in her life and that he had been a strong source of support through difficult times in her life. Ms DN also reinforced the strong bond the applicant has with each of his children. She described the applicant as being a dedicated, loving and generous father and spoke of her concern for the devastation that she believed Ms J and Mr J would feel if their father was forced to return to Vietnam. Ms DN, who is a nurse, told the Tribunal that she had noticed a significant change in the applicant and that she believed he had made good progress in his rehabilitation.
The Tribunal also received evidence from the applicant’s former foster father and life-long friend Mr V. Mr V told the Tribunal of how impressive and talented the applicant was as a young man and soccer player when he first got to know him. He described the applicant as being bright and happy with a passion for soccer. He described the applicant at that time as being a caring, loving and friendly person who was also extremely hardworking and loyal. Mr V conceded to the Tribunal that following the applicant’s initial move to Victoria he had lost touch with him and that his contact since that time had been more sporadic although he had caught up with him from time to time. Mr V told the Tribunal that he believed that the applicant had now learnt his lesson and was genuinely committed to staying off drugs and not reoffending. Mr V told the Tribunal that he would do what he could to assist the applicant if released into the community including potentially assisting in securing employment. Mr V also told the Tribunal that he would do his best to assist the applicant if he were forced to go back to Vietnam including again endeavouring to assist in securing employment. Mr V told the Tribunal that he has been a long-time employee of an international company with some presence in Vietnam.
The Tribunal accepts that each of the applicant’s children have a genuinely close bond with their father. They both presented to the Tribunal as very impressive witnesses who have clearly done well so far in their lives. This is unquestionably to some extent a credit to the applicant. However, given the considerable period of separation he has had from them due to periods of incarceration as well as a period living in another state, it is also no doubt a reflection of the support provided to them by other members of their family and friends as well as their own personal resilience. The Tribunal is satisfied that despite periods of separation as a consequence of drug addiction and incarceration, the applicant loves his children and has a genuine desire to play an ongoing and constructive role in their lives. The Tribunal is satisfied that in the event the applicant were forced to relocate back to Vietnam it would devastate both of his children and have a significant adverse impact on their lives. The Tribunal accepts that such an outcome would limit, very significantly, the future in-person contact the children are likely to have with their father. This consideration is a significant factor in the Tribunal’s overall assessment of this matter.
The Tribunal also accepts that the applicant has ties to wider family and friends in Australia and that, to varying degrees, they would also feel an adverse impact as a consequence of the applicant being forced to relocate back to Vietnam. Such an outcome is likely to particularly impact the applicant’s cousin, Ms K, who has helped provide parental type support for the applicant’s now adult children while the applicant has been incarcerated. The Tribunal accepts that the applicant’s brother and sister located in Australia will also be adversely impacted.
The Tribunal was impressed with both Ms DN and Mr V as witnesses. Again the Tribunal accepts that they have developed a genuine fondness for the applicant and would be disappointed by a decision requiring him to relocate back to Vietnam although the weight to be given to that impact is less given their acknowledgment that their connection to the applicant in more recent years has been more sporadic.
While there was evidence that the applicant had at various times had employment and participated in sporting and community events in Australia that evidence was limited and is heavily tempered by the significant adverse impact of the applicant’s offending.
For these reasons, and predominantly due to the impact on the applicant’s two adult children, this consideration weighs significantly in favour of a revocation of the mandatory cancellation of the applicant’s visa.
Impact of Australian business interests
There was no evidence before the Tribunal that Australian business interests would be impacted in the sense contemplated by the Direction if the cancellation of the applicant’s visa is not revoked. Accordingly, this consideration is given neutral weight.
Impact on victims
There was no specific evidence before the Tribunal of the impact a decision either way would have for any of the victims of the applicant’s offending. Accordingly, this consideration is given neutral weight.
Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that:
(1)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 48 years of age.
The Tribunal accepts that the applicant suffers from a number of health complaints. The Tribunal accepts on the basis of the IHMS health records that the applicant suffers from Hepatitis B and D. The applicant is currently taking ongoing anti-viral medication in the management of the condition. The applicant’s evidence was that he had been told by the doctor that he would require anti-viral medication for the rest of his life or adverse symptoms would spread through his body.
While there was limited independent medical evidence before the Tribunal in respect of the applicant’s precise condition, on the basis of the applicant’s evidence together with the IHMS records the Tribunal accepts that the applicant’s condition is chronic and that in the absence of anti-viral medication on an ongoing basis there is a risk the applicant will suffer a worsening of his present condition including cirrhosis, joint pain and potentially liver failure or cancer with the possibility of an earlier than expected death.
The applicant has also had post-surgery complications following carpal tunnel syndrome surgery on both hands. In his evidence the applicant complained of numbness in his fingers when cold and difficulty lifting heavy objects. The applicant has also complained of poor circulation in his hands and fingers, particularly when cold. The applicant gave evidence that he had previously been recommended for follow up surgery but that it had not eventuated.
The Tribunal accepts that the applicant has had post-surgery complications in relation to this condition and that in the absence of further surgery the applicant is likely to continue to suffer the adverse symptoms he has described. The Tribunal accepts that the symptoms the applicant suffers in this respect are likely to limit to some degree his capacity to undertake more physically onerous or repetitive manual labour however it does not accept that he would not be able to undertake any form of manual labour.
In addition, the Tribunal accepts that the applicant has clearly benefited from access to counselling and mental health sessions in the ongoing management of his rehabilitation from drug use during his time in custody and that he would no doubt benefit significantly in that effort from ongoing access to support of that kind. The Tribunal accepts that in the absence of such support the applicant will be at a higher risk of relapse back into drug use however ultimately that is a matter within the applicant’s control.
Counsel for the applicant conceded at the hearing that anti-viral medication and other treatment of the applicant’s condition is available in Vietnam however he contended that the applicant is not likely to be able to access the medication or other effective treatment due to the applicant not having any financial means to pay for such treatment. It was put that the applicant has no current financial means and is likely to face very significant impediments in securing employment due to his limited knowledge of the country, his lack of meaningful family support in Vietnam, his lack of consistent employment record, the impact of his health conditions including his post-surgery complications from carpal tunnel syndrome, the stigma the applicant claims he will suffer due to his history of drug use and the difficulty likely to be faced by a returnee in securing employment generally. The applicant’s materials included a number of articles on this point including an article published by the World Health Organisation entitled “WHO call for increased investment in hepatitis elimination” dated August 2019 and also an article entitled “Johns Hopkins Physicians Take on Hepatitis B Epidemic in Vietnam” published in June 2020. The WHO article states in part:
Hepatitis can be prevented and treated. Hepatitis B vaccine is highly effective when the first dose is given to babies within 24 hours of birth and followed up with three further doses. People living with chronic hepatitis be can be treated with highly effective medicines to stop the disease from progressing and reduce the risk of developing into liver cancer. People with hepatitis C can now be cured within three months by taking new oral medicines called direct acting antivirals. However, many people with hepatitis do not know they are infected and thus do not seek treatment. In Vietnam, only around 10% of people living with HBV and HCV have been diagnosed and only around 30% of those diagnosed receive treatment.
The Johns Hopkins article quotes Johns Hopkins hepatologist Doan Dao as stating that:
..a lack of access to both health care and health education has helped the virus to take hold in Vietnam.
The applicant also contends that he will also be unable to afford access to surgery or other necessary treatment in respect of his post carpal tunnel surgery complications which will continue to impact him and adversely affect his capacity to secure employment in Vietnam. Further, the applicant contends that he will be unable to afford or otherwise secure access to counselling or other mental health services in the ongoing management of his rehabilitation from drug addiction and that this could adversely affect his efforts in ongoing rehabilitation. In addition, it was contended on behalf of the applicant that the applicant would have poorer access to healthcare and broader government services generally due to the stigma that operates in Vietnam against people who have a history as drug users.
The respondent contends that the applicant is likely to be able to secure anti-viral medication and other necessary treatment for his hepatitis condition and also healthcare more generally at a level that equates to that available to the population of Vietnam generally as a consequence of the public access health system now in operation in Vietnam. The respondent referred the Tribunal to the DFAT Country Information Report in relation to health care in Vietnam and the introduction of a social health insurance scheme. The report relevantly states:
at 2.20 …Health outcomes are generally improved in recent decades in line with Vietnam’s considerable economic growth. The transition from a centrally controlled to a market economy, however, led to a reduction in state expenditure on healthcare and introduction of user fees for both public health facilities and private practice. This has resulted in growing disparities in health outcomes between higher and lower social economic groups, urban and rural areas, and the majority Kihn people and ethnic minority groups.
at 2.21 A social health insurance scheme was introduced in Vietnam in 1992, which has contributed to improved health indicators through increased access to healthcare services for beneficiaries, particularly the poor and vulnerable. Participation in the scheme is compulsory for some groups (such as formal sector workers, who are fully subsidised by the social security agency and/or the government) and voluntary for others (such as informal workers, who are required to make full or partial premium payments). In 2013, close to 70% of the total population was covered by social health insurance. Of these participants, most came from compulsory groups, while just over 21% of participants were from voluntary groups. Enrolment has remained low among persons whose participation is voluntary. As a result, households face financial risks of high out-of-pocket payments for healthcare.
at 2.22 Social health insurance participants have a health insurance card that must be renewed annually for continued coverage. Participants can register with public or private health facilities from options provided by the government. Since 2010, participants have been required to make a co-payment of up to 20% of health expenses (this does not apply to pensioners, the poor, ethnic minorities and children under six years of age, who are fully subsidised by the government). If participants choose to be treated in other facilities, a higher co-payment (at least 40%) is required, except in emergency cases. Any costly, technologically advanced treatment has a ceiling on the maximum benefit the treatment of each episode; ceiling defined as the total minimum salary over 40 months.
The respondent also contends that the applicant’s employment prospects are not as hopeless as contended on behalf of the applicant and that he is likely to be able to secure some level of employment in the medium to longer term and have some financial capacity.
The Tribunal is not satisfied on the basis of the evidence before it that the applicant is likely to have access to anti-viral medication or other treatment in the management of his hepatitis condition that he currently has access to in Australia. The Tribunal does not accept that it is likely he would be able to secure treatment of that kind through the social health insurance scheme. The Tribunal is satisfied that the applicant currently has no financial means with which to pay for such treatment and that on a return to Vietnam there is a real risk that the applicant will not have such means for the foreseeable future. While there was evidence from the applicant’s daughter that she may be able to assist in some way financially she is young, with limited means herself and will have her own financial obligations to meet. The same can be said for the applicant’s son although he did not specifically address the issue in his evidence.
While the Tribunal accepts that the applicant will have some challenges in securing employment on a return to Vietnam, at least in the short term, it is not satisfied that his employment prospects over the medium to longer term are as hopeless as contended on behalf of the applicant. The Tribunal accepts that the applicant will have some challenges by virtue of his ad hoc employment history in Australia, lack of familiarity with Vietnam and his lack of substantive family support in Vietnam. The applicant’s direct evidence was that he has a brother and sister who currently reside in Vietnam. The applicant told the Tribunal that his family in Vietnam are not well off and have their own struggles at present and that he did not believe they could help him in re-establishing himself in Vietnam. On the basis of the applicant’s evidence the Tribunal accepts that the applicant is not able to rely on his family in Vietnam to assist him in any transition.

The Tribunal accepts that while the applicant understands basic Vietnamese, given the length of time he has lived in Australia he is no longer fluent in the language. While the Tribunal is satisfied that his language will improve over time it accepts that in the short to medium term he will have some degree of language barrier which will adversely impact his employment prospects to a degree, as well as make accessing government or other support services in Vietnam more difficult. This is counter-balanced to a degree by his good English language skills which are likely to present some employment opportunities requiring such skills.
The Tribunal accepts that the applicant’s post-surgery complications will limit his capacity to undertake more onerous physical employment. However, as indicated earlier, the Tribunal is satisfied that the applicant is not without some capacity to undertake physical tasks however it does accept that his capacity to undertake heavy lifting or engage in repetitive manual tasks, including writing for lengthy periods, is likely to be significantly impacted in the absence of further treatment.
The applicant presented as a person of reasonable intelligence which is consistent with evidence of some success at school although it is acknowledged that his schooling has been interrupted. There was also evidence before the Tribunal of the capacity of the applicant to apply himself in a focused way and to demonstrate some resilience. His early success in soccer is an example of that characteristic.
The materials before the Tribunal suggest that the Vietnamese economy has been performing comparatively well over recent years. The DFAT Country Information Report notes that the World Bank has described Vietnam as “one of the most dynamic emerging countries in East Asia” and that Vietnam has “one of the world’s fastest growing economies”. Further, the report notes that Vietnam’s poverty rate declined from 20.8 per cent in 2010 to 9.8 per cent in 2016. The report also notes that the World Bank reported in 2018 that Vietnam’s employment rates were high and unemployment rates were very low by global standards although job quality was also low with only 10 per cent of jobs in professional or managerial occupations. The Tribunal accepts that Vietnam’s economic performance has been impacted to some degree by the Covid-19 pandemic, however, given the strength of the economy leading into the pandemic the Tribunal is satisfied that the economic future for Vietnam remains broadly positive.
The applicant also contends that his employment prospects in Vietnam are likely to be adversely impacted because of the stigma associated with people with a history of drug use. The Tribunal accepts that drug use and drug addiction is viewed very negatively in Vietnam and that a stigma can attach to a person who is known to have engaged in drug use which in turn can negatively impact a person’s employment prospects as well as access to other government services to some degree. However, there was no evidence before the Tribunal that the applicant’s historical drug use in Australia is well known in Vietnam. While the Tribunal accepts that there remains a risk that the applicant’s drug history might become known at a future point amongst a very localised group of people who know the applicant or his family personally, the Tribunal is satisfied that any stigma the applicant might suffer as a consequence is likely to be limited given that he has not engaged in any drug offending in Vietnam, his prior history of drug use in Australia is now aged to some degree, and, in the view of the Tribunal, there is no reasonable basis to expect that the applicant’s drug use history in Australia is likely to become widely known in Vietnam. Accordingly, while the Tribunal accepts there is a risk the applicant’s employment prospects or access to other government services may be adversely impacted to some degree by stigma associated with the applicant’s historical drug use, the Tribunal is not satisfied the impact is likely to be material.
Having considered all of the evidence on the applicant’s employment prospects, the Tribunal is satisfied that while the applicant is likely to have some immediate impediments in obtaining employment in the short term, given that he is still of a working age, has demonstrated reasonable intelligence, good English language skills and other positive personal characteristics as well as the broadly positive outlook for the Vietnamese economy, the Tribunal is satisfied that the applicant’s medium to long term employment prospects are reasonable. The Tribunal accepts that the quality of employment accessible to the applicant is likely to be lower than would be the case in Australia however, the Tribunal is satisfied the applicant is likely to have sufficient financial means to secure reliable accommodation and maintain a basic standard of living comparable to other citizens of Vietnam over the medium to longer term. Notwithstanding this the Tribunal accepts that the applicant’s financial means to pay for health services are still likely to be constrained.
For these reasons, the Tribunal is satisfied that the applicant is not likely to have access to anti-viral medication or other treatment of his hepatitis condition on his return to Vietnam and that there is a real risk of the applicant suffering significant adverse consequences as set out above. This consideration has weighed very significantly in the Tribunal’s overall assessment of this matter.
The Tribunal also accepts that the applicant is unlikely to be able to secure access to the same level of counselling and mental health services that he currently has access to in Australia. This is due to the limited nature of the Vietnamese social health insurance scheme and the applicant’s lack of financial capacity to meet the costs of such services as well as the more limited availability generally of such services in Vietnam. The DFAT Country Information Report notes:
A 2018 joint UNICEF, the Ministry of Labour-Invalids and Social Affairs (MOLISA), and ODI study of Mental Health and Psychosocial Well-being among Children and Young People in selected provinces and cities in Vietnam reinforced that mental health and psychosocial problems were widespread and increasing in Vietnam, and, despite some progress, the service environment and response remained largely inadequate. The lack of mental health services was particularly acute in remote provinces and services often focused on severe mental health disorders.
The Tribunal accepts that in the absence of the type of counselling and mental health services the applicant has had the benefit of while in custody in Australia, the applicant is likely to find the challenges of avoiding relapse back into drugs are more difficult. Ultimately however the avoidance of a relapse back into drug use is a matter which is within the control of the applicant.
The Tribunal also accepts that given the limited nature of the Vietnamese social health insurance scheme together with the applicant’s limited financial capacity, there is a real risk that the applicant will not be able to access follow up treatment in respect of his post-surgery complications from his carpal tunnel syndrome surgery. Accordingly, it is likely that the applicant will need to live with the symptoms he complains of in relation to this condition including numbness in his fingers and hands and difficulty with lifting heavy objects or undertaking repetitive tasks.
In addition, the Tribunal accepts that in the event the applicant is required to return to Vietnam he will need to undertake his transition back into life in Vietnam without the in-person support of his family and friends in Australia. As indicated above, while the Tribunal accepts that the applicant has some family living in Vietnam it is satisfied that they will have a very limited capacity to assist him. However, the Tribunal is satisfied that in the short term the applicant would have the benefit of various formal programs of support to assist him as a returnee to re-establish himself in Vietnam. For example, as noted in the DFAT Country Information Report:
A number of formal programs support the reintegration of returnees, including with the support of foreign governments. The International Organisation for Migration provides financial assistance for education or income-generating activities or in-kind goods.
For these reasons, and in particular having regard to the difficulty the applicant is likely to have accessing medication and other treatment for his health conditions and also to assist in his ongoing rehabilitation from drug use, this consideration weighs heavily in favour of revocation of the cancellation of the applicant’s visa.
CONCLUSION
The Tribunal is satisfied that the applicant does not pass the character test as set out in section 501(6)(a) by reason of his substantial criminal record. Therefore, the Tribunal is required to consider whether or not to exercise the discretion in section 501CA(4)(b)(ii) of the Act to revoke the cancellation of the applicant’s visa for “another reason”.
The Tribunal is satisfied that the applicant’s criminal offending is very serious both in terms of some individual offences but also in terms of its overall cumulative impact. The applicant’s offending has including drug trafficking with significant adverse impacts on individuals, families as well as the broader community. The offending has also included serious driving offences, violent offending and offences against police together with multiple breaches of bail and other court orders. There is no question in the mind of the Tribunal that if the applicant were to engage in further offending of the same or similar nature it has the potential to cause significant harm to members of the Australian community both from a physical and psychological perspective. For the reasons set out earlier, while recognising the positive efforts the applicant has made towards rehabilitation the Tribunal is satisfied that the risk of the applicant relapsing back into drug use is real and not minimal or trivial, and the risk of him reoffending again if he does relapse back into drug use is extremely high. The Tribunal is satisfied that the risk to the Australian community is unacceptable and that, therefore, the protection of the Australian community consideration weighs very heavily against revocation of the mandatory cancellation of the applicant’s visa.
The Tribunal is also satisfied that in light of the extent and seriousness of the applicant’s offending, the expectations of the Australian community consideration weighs heavily against the applicant notwithstanding some mitigating considerations.
For the reasons set out above, the Tribunal is satisfied that the expectations of minor children and international non-refoulement considerations weigh neutrally in this matter.
The Tribunal recognises the significant ties the applicant has developed to Australia by virtue of the length of time he has lived in Australia and also through his family and broader social connections. The Tribunal recognises in particular the significant adverse impact a decision not to revoke the cancellation of the applicant’s visa would have for his two adult children. The effect of such a decision will be to deny them the opportunity to have their father’s presence in their lives in Australia. This consideration has been particularly significant in the Tribunal’s overall weighing of this matter.
The Tribunal also recognises the significant impediments the applicant is likely to face on a return to Vietnam. The Tribunal accepts that the applicant’s family in Vietnam are not in a position to provide meaningful assistance to the applicant in any transition. He has been out of the country for a very significant period of time and, at least in the short term, will have some level of language barrier in Vietnam. The Tribunal accepts that he will find securing employment challenging in the short term although it considers his medium to long term employment prospects to be reasonable given his relative intelligence, English skills, other positive personal characteristics and the Tribunal’s view that the broader outlook for the Vietnamese economy remains positive. The Tribunal is satisfied that in the medium to longer term the applicant will be able to maintain basic living standards that are comparable to the general population of Vietnam. In the short term he will have the benefit of programs of support for the reintegration of returnees. The Tribunal is satisfied that the applicant is unlikely to be able to access the anti-viral and other medical treatment he currently has access to in Australia in the ongoing management of his hepatitis B and D conditions, nor is he likely to be able to undertake follow up treatment for his post carpal tunnel surgery complications, nor the counselling and mental health services he currently has access to in the ongoing management of his rehabilitation from drug use. The Tribunal acknowledges that as a consequence the applicant is at a real risk of suffering significant adverse consequences from his lack of access to such treatments in Vietnam as outlined earlier. These considerations have been very significant in the Tribunal’s overall weighing of this matter.
Notwithstanding these considerations, in the Tribunal’s view, given the very serious consequences that could flow to members of the Australian community if the applicant were to reoffend again in the same or similar manner and the unacceptable risk of that occurring, the protection of the Australian community consideration is the determinative consideration in the circumstances of this case.
For these reasons, the Tribunal is satisfied that the decision under review should be affirmed.
DECISION
The Tribunal affirms the decision of the respondent dated 14 November 2019 not to revoke the mandatory cancellation of the applicant’s Class BB Subclass 155 Five Year Resident Return (Permanent) visa.

I certify that the preceding 146 (one hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of the Hon. Matthew Groom, Senior Member

..............................[SGD]..........................................
Associate
Dated: 22 April 2021

Date(s) of hearing: 31 March 2021 & 1 April 2021

Counsel for the Applicant: A. Healer

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Advocate for the Respondent: C. Orchard

Solicitors for the Respondent: Sparke Helmore

Date(s) of hearing:	31 March 2021 & 1 April 2021
Counsel for the Applicant:	A. Healer
Solicitors for the Applicant:	Carina Ford Immigration Lawyers
Advocate for the Respondent:	C. Orchard
Solicitors for the Respondent:	Sparke Helmore