HSNR and Minister for Immigration and Citizenship (Migration)

[2025] ARTA 884

HSNR and Minister for Immigration and Citizenship (Migration) [2025] ARTA 884 (3 July 2025)

Applicant:HSNR 

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:                2025/3134

Tribunal:  Senior Member N. Burns     

Place:Melbourne

Date:3 July 2025

Decision:The Tribunal affirms the decision under review.

..................................[SGD].....................................

Senior Member N Burns

Catchwords

MIGRATION – refusal of Applicant’s permanent Subclass 866 (Protection) visa – character test – substantial criminal record – Direction 110 – protection of the Australian community – decision under review affirmed

Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment Act 2024 (Cth)
Migration Amendment (Removal and Other Measures) act 2024 (Cth)

Cases
AJL20 v Commonwealth of Australia [2020] FCA 1305
Ali v Minister for Immigration and Border Protection [2018] FCA 650
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
FYBR v Minister for Home Affairs [2019] 272 FCR 454
GNRK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 250
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
TCXM v MIMA [2025] FCA 540
Vu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1783
YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40

Secondary Materials

Direction no 110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation under s 501CA (dated 7 June 2024)

Statement of Reasons

1. On 14 April 2025 the Applicant lodged a review with the Administrative Review Tribunal (the Tribunal) of a decision made by a delegate of the Minister for Immigration and Citizenship (the Respondent) on 10 April 2025 to refuse the grant the Applicant a Class XA (Subclass 866) Protection visa pursuant to s 501(1) of the Migration Act 1958 (Cth) (the Act).

2. The issues for the Tribunal to determine on review are whether the Applicant passes the character test, and, if not, whether the refusal of her visa should be set aside.

   BACKGROUND

3. The Applicant is a 36-year-old woman born in Haiphong, Vietnam. She first came to Australia from Vietnam in June 2009 holding a student visa aged 19.  She returned to Vietnam and Australia several times until the last time she came to Australia on 15 May 2018.  The Applicant has primarily resided in Australia for the last 16 years. 

4. The Applicant has been married twice.  She married her first husband in Vietnam in 2010.  Their son – [child V] – was born in Vietnam on 16 April 2011.  Presently he lives with the Applicant’s mother in Vietnam.  The Applicant and her first husband divorced in September 2011. 

5. The Applicant married her second husband in Australia in 2012.  She applied for a Partner (Subclass 801) visa which was granted on 3 December 2019.  They divorced in December 2021.

6. The material[1] before the Tribunal sets out the Applicant’s criminal history.  It shows the Applicant was arrested on 27 August 2020 and taken into custody. On 7 April 2022 the Applicant, after pleading guilty, was convicted in the New South Wales (NSW) District Court  of ‘Knowingly take part-cultivate greater than or equal to a large commercial quantity of a prohibited plant’, and ‘Take part supply prohibited drug greater than or equal to a large commercial quantity’. 

   [1] Including a National Criminal history check by the Australian Criminal Intelligence Commission (ACIC) on 4 February 2025; Hearing Book (HB) pp 39-41.

7. The Applicant received a five years and six months aggregate prison sentence commencing on 27 August 2020.[2] 

   [2] HB pp 39-41.

8. On 26 July 2022 the Applicant’s Partner visa was mandatorily cancelled under s 501(3A) of the Act on the basis that she had ‘a substantial criminal record’ within the meaning of s 501(6)(a) of the Act and was serving a sentence for imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.  On 13 March 2024 the Minister decided not to revoke the cancellation of her Partner visa.  The Applicant sought a review of that decision with the then Administrative Appeals Tribunal (AAT) (differently constituted) who affirmed the decision not to revoke the mandatory cancellation of her Partner visa on 5 June 2024.[3]

   [3] Vu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1783 (5 June 2024). HB pp 100-169.

9. The Applicant was granted parole on 26 October 2023, her earliest eligibility date (EED), and transferred from prison to Villawood Immigration Detention Centre.

10. On 8 July 2024 the Applicant lodged a Protection (Subclass 866) visa application, which was refused by a delegate of the Minister for Immigration and Citizenship on 17 July 2024.  On review of that decision the (differently constituted) Tribunal found the Applicant was owed protection obligations under s 36(2)(aa) of the Act in a decision dated 18 November 2024 (‘the protection finding’).

11. The delegate in this case sent the Applicant a notice of intention to consider refusal of her protection visa application under s 501(1) of the Act on 11 February 2025[4], because she did not pass the character test.  In response the Applicant’s representative provided to the delegate several submissions (including in relation to the sentencing remarks;[5] the Direction;[6] and on the issues of danger to the Australian community;[7]) a statutory declaration from the Applicant dated 7 February 2025;[8] and supporting documents including evidence of program completion by the Applicant whilst in custody, psychological reports, and several character references.[9] 

    [4] HB pp 194-198.

    [5] HB pp 201-206.

    [6] HB pp 207-225.

    [7] HB pp 226-238.

    [8] HB pp 239-265.

    [9] HB pp 266-392.

12. On 10 April 2025 the Applicant’s protection visa application was refused because she did not satisfy s 501(1) of the Act. She was released from detention on that day holding a Bridging visa R (Removal Pending)(BVR) class 070 visa. The BVR permits the Applicant to stay in Australia in the community subject to several conditions, including reporting as directed to the Department. The Applicant moved in with her friend, Ms [HH], and began working part time at a café owned by that friend, in Bankstown, NSW.

13. As noted, on 14 April 2025 the Applicant sought a review of the delegate’s decision to refuse to grant her a protection visa on character grounds: the subject of this review.  She continues to hold a BVR.

14. The Tribunal held a Case Management Telephone Directions Hearing (CMTDH) on 6 May 2025 with the Applicant’s representative Mr Nicholas Poynder (ASM Migration Service Pty Ltd) and Ms Meaghan Préfontaine, Australian government solicitor representing the Respondent in attendance.  The Tribunal issued the parties a written Direction on 8 May 2025 which set out documents to be lodged by certain dates as agreed at the CMTDH. 

15. On 29 May 2025 the Applicant’s representative provided to the Tribunal a Statement of Facts, Issues and Contentions (SOFIC) dated 28 May 2025.  The SOFIC included a detailed chronology of events.  Also provided was the following material:

    ·A letter from Ms [HH], the Applicant’s friend and employer in Australia, dated 22 May 2025

    ·A letter from Ms [VV], the Applicant’s second cousin in Australia, dated 22 May 2025

    ·A mental health assessment report of the Applicant from psychologist Ji Fang Zhou dated 26 May 2025

    ·A letter from Ammar Abbas, Community Corrections Officer (and the Applicant’s parole officer), Bankstown District Office, dated 23 May 2025

    ·A copy of the Applicant’s parole order as of 23 May 2025

    ·A July 2024 report prepared by the Asylum Seekers Resource Centre (ASRC) titled: ‘Cruelty By Design: The health crisis in offshore detention’

    ·An October 2009 briefing by Professor David Nutt, Eve Saville Lecture 2009, Centre for Crime and Justice Studies titled: ‘Estimating drug harms: a risky business?’

    ·Report No 65, NSW Parliament, Legislative Council, Portfolio Committee No 1 – Premier and Finance titled: ‘Impact of the regulatory framework for cannabis in New South Wales’, First report, dated 31 October 2024

    ·ACT Government Health, Review of the operation of the Drugs of Dependence (Personal Cannabis Use) Amendment Act 2019

16. On 3 June 2025 the Respondent provided to the Tribunal their SOFIC dated 3 June 2025.[10] 

    [10] HB pp 1050-1063.

17. On 11 June 2025 the Applicant’s representative provided further documents to the Tribunal, as follows:

    ·A psychological assessment of the Applicant by Tim Watson-Munro, Consultant Psychologist dated 10 June 2025

    ·A psychological assessment of the Applicant by Tim Watson-Munro, Consultant Psychologist dated 23 April 2024

    ·A copy of Tim Watson-Munro’s curriculum vitae (CV)

    ·A copy of the Department of Foreign Affairs and Trade (DFAT) country information report on Vietnam dated 19 February 2025

18. On 13 June 2025 the Respondent provided a hearing bundle (HB) comprising 1172 pages to the Tribunal (as well as to the Applicant).  The HB contained the material both parties had provided to the Tribunal as well as the material before the Department (‘G – Documents’).  

19. Both parties attended a hearing via video link on 16 June 2025.  Witness evidence was provided by the Applicant, Ms [VV], and Consultant Psychologist Tim Watson-Munro.  A third witness proposed by the Applicant – her friend Ms [TD] – was unable to be reached by telephone: the Applicant’s representative requested the Tribunal take into account her letter of support, dated 5 February 2025.[11]   

    [11] HB pp 370-371.

20. Prior to the hearing the Respondent had requested the Applicant’s employer, Ms [HH] be available for cross examination. However, at hearing, the Applicant’s representative advised Ms [HH] did not wish to give oral evidence and asked the Tribunal to rely on her letters provided earlier.[12]

    [12] Dated 6 February 2025 (HB pp 372-373) and dated 22 May 2025 (HB pp 1043-1044).

21. The Applicant and Ms [VV] were assisted at hearing by an interpreter in the Vietnamese and English languages.

    LEGISLATIVE FRAMEWORK

22. Under subsection 501(1) of the Act, ‘the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test’.

23. Subparagraph 501(6)(a) of the Act provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record,’ which is defined in subsection 501(7) of the Act and includes having been sentenced to a term of imprisonment of 12 months or more: subsection 501(7)(c). 

24. It is not in dispute that the Applicant has ‘a substantial criminal record’ as per subsection 501(7)(c). The material before the Tribunal includes a copy of her Australian Criminal Intelligence Commission (ACIC) report issued on 4 February 2025, among others.  This material shows she was sentenced to a custodial sentence of five years and six months in respect of the offences set out earlier (paragraph 6), as noted.  The parties agree and the Tribunal finds that the Applicant does not pass the character test.  

25. The Tribunal has gone on to determine whether to exercise its discretion in subsection 501(1) of the Act to refuse to grant the Applicant a protection (Subclass 866) visa. 

26. In doing so, the Tribunal must comply with Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’), by having regard to the primary and other considerations contained in Part 2, considered below. Section 499 is the basis for directions under the Act.

27. Paragraph 6 of the Direction provides that decision makers be informed by the principles in paragraph 5.2 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 safety of the Australian Community is the highest priority of the Australian Government.

    (3)  Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4)  The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (5)  Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (6)  With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    (7)  Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

    (8)  The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[13]

    [13] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) paragraph 5.2.

28. Informed by these principles, the Direction also sets out matters to be considered in deciding to refuse a visa application, or to revoke (or not) the cancellation of a visa, identifying primary considerations and other considerations.  Paragraph 7 of the Direction states as follows:

    (1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (2) The primary consideration … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

    (3) One or more primary considerations may outweigh other primary considerations.

29. Paragraph 9 of the Direction states that the Direction does not limit the matters the Tribunal can consider.

30. The primary considerations that must be taken into account by the Tribunal are set out in paragraph 8 of the Direction as follows:

    (1)Protection of the Australian community from criminal or other serious conduct;

    (2)  Whether the conduct engaged in constituted family violence;

    (3)  The strength, nature and duration of ties to Australia;

    (4)  The best interests of minor children in Australia; and

    (5)  Expectations of the Australian community.

31. The Tribunal must also take into account other considerations (paragraph 9 of the Direction).  These include:

    a)Legal consequences of the decision;

    b)Extent of impediments if removed; and

    c)Impact on Australian business interests.

32. In weighing up these considerations in the Applicant’s case, the Tribunal has taken into account the documentary material lodged by the parties, the oral evidence of the Applicant, Ms [VV], and the expert witness evidence of Consultant Psychologist Tim Watson-Munro.  The Tribunal has also considered the parties’ written and oral submissions, the character references, and other supporting documents provided, where relevant. 

    PRIMARY CONSIDERATIONS

    The protection of the Australian community

33. The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and 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.[14]

    [14] Paragraph 8.1(1).

34. The Tribunal is directed to have particular regard to the principle that entering or 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.[15]

    [15] Paragraph 8.1.(1).

35. Paragraph 8.1(2) of the Direction requires decision-makers to:

    a)consider 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 Applicant’s conduct to date

36. This primary consideration involves taking into account the nature and seriousness of the Applicant’s 2019 offending.  As noted, she was sentenced to five years and six months imprisonment with a NPP of three years and two months for knowingly taking part in the cultivation of a large commercial quantity of a prohibited plant, being cannabis, and knowingly taking part in the supply of a prohibited drug, being a large commercial quantity of cannabis leaf (being 427 kilograms). 

37. The Applicant also had charges for ‘Take part manufacture of a prohibited drug (methamphetamine) (small quantity) and ‘Deal with property proceeds of crime’ taken into account in determining her sentence for the above convictions.  The Respondent[16] argues these ‘taken into account’ charges are not relevant considerations and therefore should not be considered by the Tribunal: Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468. The Tribunal accepts that is the case and has not considered these charges further.

    [16] SOFIC paragraph 7, HB p 1052.

38. The Respondent argues the Tribunal should affirm the decision to refuse to grant the Applicant a protection visa on character grounds for several reasons.  These include due to the seriousness of her criminal offending and the possibility of future harm to the Australian community should the Applicant offend again in a similar way or engage in other serious conduct.  The Respondent’s specific contentions in these respects as set out in the SOFIC (and reiterated in her oral submissions at hearing) include as follows (in summary):

    ·The Applicant’s crime is very serious and involved setting up a large drug growing facility for the purposes of supplying commercial quantities of illicit drugs to the Australian community.

    ·The sentencing judge found the Applicant’s personal involvement including in the establishment of the entire cannabis operation was ‘significant’ and ‘fundamental’, finding she was a ‘high echelon’ in the ‘relatively sophisticated’ operation.

    ·The harms caused by cannabis are well documented.  Reference is made to GNRK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 250 where the Member in that case commented on the harm which flows from the circulation and use of cannabis in the community, which is well recognised. Short term and long-term effects of cannabis use on users are listed, including mental health conditions.

    ·The sentencing judge formed the view that the Applicant’s offences fell into the mid-range of objective seriousness.

    ·The fact the Applicant was sentenced to a significant term of imprisonment should be viewed as a reflection of the objective seriousness of the offences involved.  Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy, and where a Court has sentenced an offender to a term of custodial imprisonment, this should be viewed as a reflection of the objective seriousness of the offences involved.

1. At hearing during cross examination the Applicant that her role in the operation was significant. She described her past offenses as ‘serious wrong doings’.  The Applicant agreed she felt indebted to her former best friend and co-offender and stated that her lack of knowledge about possible consequences led her to act the way she did. 

2. As well, the Applicant said she did not fully understand the harmful effects of drugs – especially cannabis – on individuals and the Australian community.  However, through completing several courses[17] in prison and whilst in immigration detention she now has a better understanding, including of addiction, and its negative impact on an individual’s health and decision making.  The Applicant added that drug users tend to commit offenses easily and addiction can lead to family break ups. 

   [17] For example: High Intensity Program Unit (HIPU) and SMART Recovery programs.

3. In his SOFIC, the Applicant’s representative noted the criminal conduct regarding the cannabis plantation took place over a period of four months: from November 2019 to April 2020. Whilst described by the sentencing judge as ‘in the mid-range of objective seriousness for an offence of this nature’, the representative notes that the index charges of cultivation and supply of a commercial quantity of cannabis are themselves very serious, carrying a maximum penalties of 20 years imprisonment with a standard non parole period of ten years for the cultivation offence.[18]

   [18] HB 781.

4. The representative contends that the approach of Australian courts to offences involving the production and supply of commercial quantities of drugs when sentencing is to disregard the relative harm which may be caused by the particular drug in question and focus on the act of production and supply.[19] This approach is reflected in a March 2015 report by the Victorian Sentencing Advisory Council – Major Drug Offences – Current Sentencing Practices[20] in which it is noted, among other things, that there is no distinction between different types of drugs with respect to Victorian drug trafficking offenses.  

   [19] For example: R v Bimahendali (1999) 109 A Crim R 355, Wood CJ at [13] (Sully and Simpson JJ agreeing at [33]) NSW Court of Appeal.

   [20] At [3.12]-[3.13]; HB p 782.

5. The representative notes such an approach was also reflected in the sentencing judge’s comments[21] in the Applicant’s case as follows:

   I am conscious that people in our society have different views about cannabis and whether the government should be looking at legalising it or reducing the seriousness of the offences around cannabis? That debate, or course, has no role to play in this sentencing exercise.  I must enforce the laws of parliament which reflect the seriousness in which they still regard this matter, maximum of 20 years and a standard non parole of ten.

   [21] HB p 63.

6. The representative asserts that the crimes of cultivation and supply of cannabis are very serious offences because parliament says so; not because they are likely to cause serious harm to the community. 

7. These sentiments were reiterated by the representative in his oral submissions at hearing.  He argued, among other things, that the manufacture and distribution of cannabis is just as serious (regarding sentencing) as heroin, which is the reason why the Applicant received a ‘hefty’ sentence even though it was her first offense of that type. He accepted the offenses to be very serious because government sees them as such.  However, he noted recent case law that it is not up to the Tribunal to punish a person. 

8. In considering the nature and seriousness of the criminal offending or other conduct to date the Direction provides several non-exhaustive examples of crimes or conduct that may be considered ‘very serious’, or ‘serious’ by the Australian Government and Australian community.[22] Serious conduct includes any conduct that forms the basis for finding that a non-citizen does not pass an aspect of the character test,[23] and consideration of the sentence imposed by the courts for a crime or crimes:[24] which are relevant considerations in this case.

   [22] Paragraph 8.1.1(1).

   [23] Paragraph 8.1.1(b)(iii).

   [24] Paragraph 8.1.1(1)(c).

9. The Applicant’s offending involved the cultivation and supply of a large commercial quantity of a prohibited drug, cannabis.  As set out in the sentencing comments,[25] the sentencing judge at the District Court of NSW (Judge Pickering) found (among other things) that:

   ·There was no doubt the Applicant’s involvement was significant as ‘she negotiated the price of the land, purchased the land, was involved in the purchase of the greenhouse and equipment’ and ‘clearly played a very significant role in its operation’.

   ·Although she was not doing the farming (and others were involved) she ‘was at a high echelon’.  Further the judge stated that ‘…the offender is very close to the top of whatever operation was there’. 

   ·Her involvement was ‘particularly significant and must point towards a more serious example of this offence’.  She is in the ‘mid-range of objective seriousness for an offense of this nature’.

   [25] HB pp 57-73.

10. The seriousness of the Applicant’s offending was reflected in the imposition of a custodial sentence of five years and six months. Although well below the maximum penalty for the offenses, the Tribunal considers the sentence significant. The representative argues that such a ‘hefty’ sentence for cultivation and supply of cannabis is because such offences are considered by parliament to be very serious offences, not because they are likely to cause serious harm to the community.  It is not up to the Tribunal to question the intention of parliament, nor to go behind the sentencing and/or impugn the decision on which the conviction was based, including making its own assessment as to harms cannabis may cause relative to other drugs (and alcohol and tobacco, as submitted by the Applicant’s representative) in considering the nature and seriousness of the Applicant’s conduct to date.[26] 

    [26] HZCP v MIBP [2018] FCA 1803 at [41]-[95].

11. The length of the Applicant’s custodial sentence for the cultivation and supply of a large quantify of cannabis is not in dispute, nor her role in the operation, for which the sentencing judge describe is in the ‘mid-range for objective seriousness for an offense of this nature’, as noted.   

12. The offense in terms of cultivation and supply of a commercial quantity of a prohibited drug – in this case cannabis – had the potential to lead to harm to members of the Australian community (discussed in more detail below).  The Applicant in her evidence acknowledges as such. 

13. Taking into account these considerations, the Tribunal is satisfied the Applicant’s conduct was ‘serious’ pursuant to paragraph 8.1.1(b) of the Direction. 

14. The Direction sets out other factors to be considered in assessing the nature and seriousness of the conduct as follows (in summary):

    ·The impact on any victims of the offending;

    ·The frequency of offending and/or whether there is any trend of increasing seriousness;

    ·The cumulative effect of repeated offending;

    ·Whether the non-citizen has provided false or misleading information to the Department;

    ·Whether the non-citizen has re-offended since being formally warned or since otherwise being made aware in writing of the consequences of further offending in terms of their immigration status;

    ·Where the offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.[27] 

    [27] Paragraph 8.1.1(d)-(i).

15. In this case there are no victim impact statements before the Tribunal.  Nonetheless, the fact the drugs were not distributed into the community, does not lessen the seriousness of the conduct.[28]

    [28] Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FC 468 at [64]-[67].

16. There is no other known criminal offending in Australia or any other country and this was the Applicant’s first custodial sentence. The Tribunal is satisfied there is no indication of a trend of increasing seriousness in relation to the Applicant’s offending.  She has been in the community since 10 April 2025 with no further offending and an apparent commitment to a pro social lifestyle, which his positive although the Tribunal notes this has only been for a relatively short period of time.

17. There is no indication that the Applicant has provided false or misleading information to the Department, or that she has offended after being formally warned, or since otherwise been made aware about the consequences of further offending in respect of her migration status.

    Risk to the Australian community

18. Paragraph 8.1.2 of the Direction requires decision makers to bear in mind the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.  Further, some conduct and the harm that would be caused, if repeated, is so serious that any risk that may be repeated is unacceptable. 

19. In assessing the risk that may be posed to the Australian community the Direction sets out the following factors decision makers must have regard to, cumulatively, at paragraph 8.1.2:

    a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    i.       information and evidence on the risk of the non­citizen re-offending; and

    ii.      evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken) …

20. Therefore, the Tribunal is required to have regard – on a cumulative basis – to the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal conduct, and the likelihood of her doing so.

21. There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[29]

    [29] BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; and Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.

22. The Respondent argues the nature of the harm to individuals and the Australian community should the Applicant commit similar offences includes serious physical and psychological injury including possible death.  The Respondent also contends that:

    ·Whilst accepting the Applicant presents as a low risk of reoffending, it is nevertheless real and continuing, given her psychological and financial issues said to be part of the reason for the offending, which remain.

    ·The Applicant has only been in the community for a very short period and her rehabilitation is yet to be meaningfully tested.

    ·Even a low risk is unacceptable, as found by the delegate who having found the Applicant’s risk of reoffending was ‘low’, went on to conclude that nonetheless her risk of reoffending was unacceptable, given the seriousness of the harm that may eventuate. 

23. The Respondent concluded therefore that if the Tribunal accepts the Applicant presents a low risk of reoffending, given the seriousness of her offending, the great harm that could come to countless members of the community if she returns to large scale illicit drug production, it should find this primary consideration weighs strongly against granting the visa.

24. The Applicant’s representative disagreed with these submissions, arguing there is little evidence the consumption of cannabis is so deleterious that ‘any’ risk is unacceptable.   He contends the Respondent is obliged to identify with some specificity the harm to the Australian community which is so serious that even a ’low’ risk of reoffending is unacceptable.  He argues further that this ought to involve more than generic references to the ‘danger’ represented by the consumption of cannabis or reference to judicial notice, as emphasised by the Victorian Court of Appeal in R v Pidoto (2006) 165 A Crim R 6 (Maxwell, P, Callaway, Buchanan, Vincent and Eames, JJA) at [6] and [61].

25. To support his contentions in this regard, the representative refers to various reports about the risks and/or impact of cannabis use, particularly compared to other illicit drugs (and alcohol and tobacco).  For example:

    ·An August 2024 review of the relevant legislation by the ACT Government does not identify any significant dangers caused by the decriminalisation of cannabis for personal use since 2019.

    ·Whilst the NSW First Report on the ‘Impact of the regulatory framework for cannabis in New South Wales’ in October 2024 received evidence about some negative health impacts associated with cannabis use, including an increased risk of schizophrenia or psychosis (particularly for heavy users) the report found it ‘is small  relative to the overall population’.[30] Some psychiatric and addiction medicine experts quoted in the NSW First Report[31] noted the risk was very minimal, and in the case of Canada and the US – here cannabis use is largely legalised – there has not been any marked increase in psychosis related presentation to hospitals.

    ·A 2009 study in the UK by Professor David Nutt (‘Estimating drug harms:  a risky business?’) which suggests, among other things, that the process of drug classification has become highly politicised and suggests the danger posited by soft drugs such as cannabis arise more from moral panic than any objective evidence of serious harm.

    [30] Paragraph 2.15 of the report.

    [31] Including the Chair of Addiction Psychiatry, Royal Australian and New Zealand College of Psychiatrists, NW Branch and Professor Nicolas Lintzeris, Conjoint Professor in Addiction Medicine, Faculty of Medicine and Health, University of Sydney; HB pp 784, 785.

26. These observations taken from such reports were reiterated in the representative’s submissions at hearing around the following key points:

    ·The risk of legalising cannabis is small relative to the overall population.

    ·The risk of schizophrenia is tiny.

    ·Overall cannabis use does not lead to major health problems.

    ·Cannabis falls within the lowest category of drug harm.

    ·According to Australia’s National Drug Strategy 2017 – 2026[32] alcohol was associated with over 5000 deaths and 150,000 hospitalisations every year,[33] far higher than compared with cannabis associated deaths and hospitalisations.   

    ·Cannabis is widely used and easy to obtain in Australia.[34]

    ·Almost a quarter of the population in Australia accept personal use (of cannabis) is  acceptable.

    [32] HB p 715.

    [33] HB p 748.

    [34] HB p 582.

27. Although not contending cannabis does not have harmful effects, the representative argues that such empirical evidence shows the harmful effects are less than alcohol and tobacco, for example.  Moreover, there is a lack of empirical evidence to underscore the Respondent’s claim that any risk of the Applicant reoffending is unacceptable, he adds.  If she did reoffend, the representative argued it would not make a ‘jot’ of difference to the amount of cannabis in Australia and what people perceive (about cannabis), which is not that harmful.

28. The representative contends further that when the courts say that the manufacture and distribution of cannabis is a very serious offence it does not mean reoffending will result in serious damage to the community.  Whilst he is not saying there is no ill effects from cannabis, the empirical evidence indicates that compared to other drugs, and alcohol and tobacco, cannabis is comparatively harmless, he argues.     

29. The representative submits further that in consideration of this part of the Direction pertaining to the risk of reoffending and protection of the Australian community it does not necessarily mean any risk of the Applicant reoffending is unacceptable.  The Tribunal ought to accept the Applicant’s risk of reoffending is low given expert evidence and given the nature of her offending, and not find that any risk of reoffending is unacceptable.   

30. Therefore, according to the representative, the only relevant risk is whether the Applicant could again become involved in the production and supply of cannabis, which the representative contends the likelihood is so low in the Applicant’s case that such a risk would be acceptable. 

31. Given the Tribunal has found, for reasons set out earlier, that the offences of cultivation and supply of a large commercial quantity of an illicit drug (including cannabis) to be serious, it is satisfied the nature of the potential harm to the Australian community if the Applicant  commits further offenses or engages in other serious conduct would be serious.  If this eventuated, such conduct could involve physical and psychological harm to members of the community.   

32. In GNRK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 250 the Member noted the ‘well recognised’ harm which flows from the circulation and use of cannabis in the community including short term and long-term effects was set out, including physical dependence and mental health conditions including depression.

33. In the section on cannabis in Australia’s National Drug Strategy 2017 – 2026[35] it states:

    As the most widely used of the illicit drugs in Australia, cannabis carries a significant burden or disease.  The use of cannabis can result in various health impacts, including mental illness, respiratory illness, and cognitive defects.  In particular, cannabis dependence among young adults is correlated with, and probably contributes to, mental disorders such as psychosis.[36]

    [35] HB pp 715-770.

    [36] At p 33; HB p 750.

34. The Tribunal considers the potential harm to the Australian community as a result of the cultivation and supply of a large commercial quantity of illicit drugs - including cannabis - is serious, even if less so than other some other illicit drugs, tobacco and alcohol in terms of overall health burdens.  At the time of the Tribunal’s decision the cultivation and supply of commercial quantity of cannabis remains prohibited. 

35. For these reasons the Tribunal finds the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal conduct or other serious conduct is likely to be considerable.  

36. The Tribunal has gone on to consider the likelihood of further reoffending in the Applicant’s case[37].  In doing so it has had regard to risk assessments undertaken and evidence of rehabilitation and overall prospects to lead a pro social lifestyle, among other things, considered below. 

    Risk assessment

    [37] Paragraph 8.1.2(2)(b)(i).

37. The Applicant was assessed as at a Low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R) risk assessment tool administered by Forensic Psychologist Bradley Jones on 22 November 2021.[38]

    [38] Set out in a report from Forensic Psychologist, Bradley Jones dated 8 February 2022; HB pp 299-306.

38. Mr Watson-Munro in his reports following consultation with the Applicant (via telehealth most recently on 3 June 2025 and 6 June 2025) concurs with the low risk assessment in the Applicant’s case after reading Mr Jones report and the report of psychologist Mr Zhou, among others.  In his oral evidence to the Tribunal at hearing Mr Watson-Munro clarified  he had not administered the LSI-R but relied on the earlier test and his clinical assessment of the Applicant’s current position.  He said she was assessed as low risk in 2022 and in the absence of any further criminal history, combined with her strong attempts at rehabilitation through programs and efforts in the community, she remains low risk.   

1. With the passage of time, commencement of her rehabilitation long before she was released into the community, Mr Watson-Munro’s evidence was that the Applicant is on a positive trajectory overall in terms of rehabilitation. 

2. During cross examination Mr Watson-Munro explained the LSI-R is a standard test used by NSW Corrections to assess a persons’ risk of reoffending in the community, looking at various static and dynamic risk factors, as well as that individual’s current level of functioning. He confirmed ‘low’ risk – as in the Applicant’s case – is the lowest LSI-R category: once someone offends they cannot be assessed as below that category. He accepted the Respondent’s assertion however, that the Applicant’s risk is not infallibly low.  Following re-examination by the Applicant’s representative Mr Watson-Munro explained that using the LSR-I nobody as assessed can be described as infallibly low risk if they have prior (criminal) history.

3. Mr Watson-Munro agreed that the Applicant has only been in the community for a brief period of time (around two months).  However he noted this is only one aspect of rehabilitation, which began when she was arrested and led to her reflecting upon her behaviour.  Whilst brief she has taken positive steps in the community to reinforce her desire to live a positive life he added, reflected by securing accommodation and employment, with positive future aspirations.  

   Antecedent risks: financial pressure and mental health issues

4. The Tribunal notes the 2019 offending took place in the context of the Applicant being under financial and other stress. 

5. The Respondent contends that whilst the Applicant presents as a low risk of reoffending, it is nevertheless real and continuing, given her psychological and financial issues said to be part of the reason for the offending, which remain.

6. In the sentencing comments the Judge noted there was no mental health issues of any significance in the Applicant’s case outside feeling depressed and anxious about being in custody, but ‘noting about an underlying mental health issue that was linked to this offending’.[39]

   [39] Sentencing comments p 9; HB p 65.

7. The material before the Tribunal shows whilst in custody the Applicant received trauma counselling from psychologist Timothy Wardeiner related to her childhood trauma. The Applicant states in her statutory declaration (7 February 2025)[40] this included in relation to her parents’ divorce, and the physical and emotional abuse she received from her first husband. She states she gained insight to the circumstances of her offending, and strategies to manage her anxiety and insomnia, practices which she claims significantly improved her wellbeing and mental health. The Applicant states she also met with psychiatrist David Leinert who prescribed her medication for depression and anxiety; mental health counsellor Fatemech Mazraei; and drug and alcohol counsellor Ellen Callaghan whilst in custody.

   [40] HB p 255.

8. In his 8 February 2022 report psychologist Bradley Jones[41] states at that time the Applicant had no history of mental health issues and no history of receiving mental health treatment with the caveat that subsequent to her arrest, there were symptoms of anxiety apparent. However formal testing utilising the Depression Anxiety Stress Scales (DASS) noted severe levels of depression, extremely severe levels of anxiety and severe levels of stress.  Mr Jones states the Applicant was not suffering from any psychological or psychiatric disorders.

   [41] HB pp 299-311.

9. More recently the Applicant undertook a mental health assessment with psychologist Ji Fang Zhou over three sessions from 15 to 23 May 2025.  According to his report dated 26 May 2025 Mr Zhou had regard to Mr Jones’ assessment report dated 8 February 2022 and Tim Watson-Munro’s report dated 23 April 2024.  Mr Zhou’s main points pertaining to the Applicant’s psychological history and current presentation in his report were as follows:

   ·The Applicant presents with anxiety, depression and trauma issues.  She reported significant emotional distress related to current stressors and a history of parental separation, domestic violence, stranger violence and incarceration.

   ·During sessions, the Applicant expressed deep remorse for her involvement in criminal offenses that led to imprisonment.  She acknowledged her actions were serious, illegal and harmful – not only to society but to her own life and wellbeing of her family.

   ·She was reportedly in a vulnerable position at the time of offending – young, isolated from family and emotionally dependent on someone she trusted (the co-offender).

   ·She reports significant reflection and personal growth through being imprisoned and detained.  She reports she has distanced herself from her co-offender. 

   ·The Applicant has taken several steps to rebuild her life and pursue a positive path forward including engaging in psychological treatment and working to reestablish a stable lifestyle.

   ·She reports experiencing long standing depression and anxiety, and attachment issues.  

   ·The results of psychometric testing administered indicate significant mood and anxiety symptoms consistent with a mood and/or anxiety disorder and presence of significant unresolved trauma from domestic violence.

   ·Her diagnosis was post-traumatic stress disorder (PTSD) and persistent Depression Disorder with intermittent major depressive episodes. Significant anxiety symptoms were present however an anxiety disorder diagnosis was not given, because her severe worries are proportional and focused on her serious stressors rather than excessive and generalised. Mr Zhou states: ‘The anxiety symptoms can be understood as a function of her current stressors, as well as being associated with her diagnosable condition of unresolved trauma and long-term depression’.

   ·Having engaged well with the assessment and being willing to engage in psychological therapy to address mental health issues, having some social support in Australia, and her plans for future if she stays in Australia including work with her family to repay debts, are positive indicators for psychological resilience, treatment and recovery. Mr Zhou states: ‘Therefore her prognosis is fair, given she receives the necessary psychosocial support’. (In his oral evidence Mr Watson Munro said he would not use that descriptor: instead he would say the Applicant’s prognosis is ‘positive’.)

   ·A multimodal intervention approach was recommended, which includes a combination of psychological therapy, pharmacological treatment, government services and social support.

10. In his 10 June 2025 report, Mr Watson Munro concluded the Applicant’s likely risk of reoffending remained low (as noted) due to the following factors:

    ·The Applicant has reflected upon her past offending behaviour and is highly motivated not to reoffend in the future.

    ·There has been no offending since her release into the community on 10 April 2025.

    ·She has undertaken a number of programs whist in custody and immigration detention.

    ·Protective factors in the community referable to her current part time employment, stable accommodation and a strong motivation to move forward with her life.

    ·There is no history of substance use.

    ·Beyond the index offending, the Applicant has no prior forensic history.  She is galvanised by her ongoing fear about a potential deportation to Vietnam and being exposed to possible psychological and physical danger.

    ·It is apparent the Applicant has learnt from her mistakes and with the effluxion of time, has matured.

11. Mr Watson-Munro states further that the Applicant continues to live with high levels of depression and anxiety, arising from her fear that she may be returned to Vietnam where she has reported ongoing stressors related to threats made by her first husband and loan sharks there.

12. During cross examination at hearing Mr Watson-Munro agreed with the Respondent that one of the identified risk factors at the time of the index offending was the Applicant’s psychological vulnerability.  However, he thinks she is more psychologically robust now, having matured, undertaken treatment, and showing a strong commitment not to reoffend.  Mr Watson-Munro added that the Applicant has some support in the community and there are other protective factors, including the fact she does not use substances, has employment and structure and support around her. He acknowledged she remains somewhat vulnerable to financial pressure, particularly given a debt of around AUD137,000 her mother in Vietnam has accrued to pay her legal fees.  Nonetheless given the realisation of the consequences of her offending, coupled with the positive steps she has taken since that time, he opined that the Applicant is far less vulnerable to those kinds of pressures in the future.

13. The Respondent noted Mr Zhou’s prognosis appears contingent on the Applicant adhering to the recommendations including undertaking cognitive behaviour therapy. Mr Watson-Munro said he does not think the progress the Applicant has made to date necessarily falls away if she does not have treatment, however with treatment her progress will be further strengthened.  Whilst useful for the Applicant to continue treatment, he does not suggest without it she would fall back into criminal behaviour. 

14. Mr Watson-Munro reiterated that in his view, the Applicant is in a far less psychologically vulnerable position than when she became involved in criminal activities. Whilst there are present day stressors – including the situation in Vietnam and uncertain situation in Australia – Mr Watson-Munro’s view is that she is not sufficiently vulnerable that she would fall into further crime.

15. When asked about risk factors preceding the Applicant’s criminal offending during cross examination, Mr Watson-Munro agreed that her financial duress at the time was a relevant risk factor but there were others: she was also naïve and involved with a man she trusted who led her to criminal offending whom she had a sense of indebtedness to at the time.  He added that the Applicant is no longer in contact with her co-offender, and whilst she presently feels a sense of obligation to her mother – including financially due to the significant debts incurred – it does not necessarily follow that she would choose to reoffend. Instead, she hopes to be able to work full time with a view to help repay the debt. 

16. During cross examination at hearing, the Applicant agreed she experienced financial pressure at the time of her offending, noting her nail salons were unsuccessful.  She agreed that this was one of the contributing factors to her offending, but not solely.  Other factors, as noted (and revealed through discussion with counsellors and others in custody) was her sense of indebtedness to her co-offender who she trusted completely and likened to a brother. She also felt stress and pressure, including to be a position to sponsor her son to Australia. 

17. At hearing, the Applicant confirmed she currently takes anti-depression medication.  She met with counsellors in prison and wants to get further mental health treatment noting she had an appointment later in the week to see a psychologist. 

    Prison behaviour and rehabilitation efforts

18. In determining the likelihood of the Applicant engaging in further criminal or serious conduct the Tribunal has considered evidence of rehabilitation achieved at the time of its decision, giving weight to the time spent in the community since the Applicant’s most recent offense.[42]

    [42] Paragraph 8.1.2(2)(b)(ii).

19. The Applicant has been in the community since 10 April 2025, having been first taken into custody on 27 August 2020.  She has undertaken several courses and programs in prison and immigration detention including relating to improving her physical and mental health; knowledge about addiction and substance abuse; vocational training (e.g. barista, food handling), and several English/literacy courses.[43]  Further, she was regularly employed in prison and given positions of responsibility (for example in the textiles area, and as a ‘Buy up’ clerk). 

    [43] HB pp 266-284.

20. There is  no evidence in the material before the Tribunal of any prison incidents involving the Applicant.

21. In his letter dated 23 May 2025, the Applicant’s parole officer, Mr Abbas, notes the Applicant demonstrated a consistent and commendable commitment to rehabilitation and community integration since the inception of her order; has complied with parole conditions; has actively engaged in intervention programs as part of her rehabilitation; described her participation as regular and has shown ‘a high level of engagement and insight’; that her engagement with supervision has been notably positive; and that third parties involved in her case including community support workers and program facilitators have consistently provided feedback highlighting her respectful attitude, reliability and commitment to making sustained progress.  Mr Abbas concludes by stating the Applicant’s ‘conduct to date reflects a sincere commitment to rehabilitation, responsibility, and the intention to make meaningful, lasting changes to her life’.   

22. Mr Watson-Munro concurred with those observations, noting in the decades of experience in the criminal justice system he has rarely seen such a positive report concerning rehabilitation from a Community Corrections Officer.

23. The Judge in his sentencing remarks noted the Applicant’s genuine remorse, stating that he ‘thinks it makes it easier to be confident in her prospect of rehabilitation and her risk of reoffending being lower, because she is realistic about why she was involved’.[44] The Judge imposed a NPP of three years and two months, after finding special circumstances: in particular in relation to her age and prospects for rehabilitation[45].

    [44] Sentencing comments p 7; HB p 63.

    [45] Sentencing comments p 16; HB p 72.

24. Psychologists Mr Zhou and Mr Watson-Munro also spoke of the Applicant’s remorse – which they considered was genuine - as did many of her friends and relatives in their letters of support. 

25. At hearing during cross examination, the Applicant said she is confident she will not reoffend.  She has increased her understanding of the effects of drugs, and consequences of offending whilst undertaking programs in prison and detention and has ceased all communication with her co-offender.  After talking with experts in prison and detention she now knows where to get help if she experiences emotional or financial difficulties in the future: for example from her parole officer, lawyer and/or psychologist. Her main goal is to live her life in freedom with her son (and mother) and be a responsible person.

    Protective and pro social factors

26. There are some protective factors in the Applicant’s case, including having several relatives and friends in Australia who are supportive.  In particular her second cousin[46]  Ms [VV] whom she has lived with in the past, and Ms [HH] her friend and employer who she presently lives with.

    [46] At hearing the Applicant said Ms [VV] is her father’s cousin, who she refers to as ‘aunt’.

27. As noted, the material before the Tribunal includes several letters of support from relatives and friends in Australia[47] who describe their relationship with the Applicant, her remorse, and efforts to better herself. 

    [47] HB pp 351-385.

28. At hearing, the Applicant said presently she works two days a week at the café, earning AUD240 a week.  She hopes to start full time work, once the Tribunal hearing behind her and she has gained more skills and experience, although acknowledged that is up to Ms [HH] who needs to make arrangements with the other workers (and whose second café recently closed down).  She said she has received AUD1,700 government benefits already and has applied to Centrelink.

29. The Applicant said Ms [HH] has indicated she can stay living with and working for her for as long as she wants. 

30. In her letter dated 22 May 2025,[48] Ms [HH] confirmed the Applicant lives with her and works in her café in Bankstown two days a week.  She states that she intends to offer the Applicant full-time employment when she is ready.

    [48] HB pp 1043-1044.

31. The Applicant accepted during cross examination that on her current earnings it will be very difficult to pay off her debts and she is presently experiencing financial difficulties. 

32. If the Applicant reoffends in a similar way, the Tribunal considers that the nature of the harm to individuals or the Australian community would be serious.  As noted, drugs can be very harmful to members of the Australian community, including cannabis which remains prohibited. 

33. In assessing the risk that may be posed by the non-citizen to the Australian community decision makers must also have regard to paragraph 8.1.2(2)(c) of the Direction which states as follows:

    (c) where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.   

34. As noted, this is a review of a decision to refuse to grant the Applicant a protection visa on character grounds, which is a permanent visa. 

35. With respect to the likelihood of the Applicant engaging in further criminal or serious conduct, the Tribunal considers this risk to be low.  As noted, her risk assessment administered by Forensic Psychologist Bradley Jones in 2022 was low, results which Psychologist Mr Zhou and Consultant Psychologist Mr Watson-Munro concurred with following more recent interaction with the Applicant.  Mr Watson-Munro emphasised in his evidence to the Tribunal that the Applicant is remorseful, and highly motivated not to reoffend.  She is also less psychologically vulnerable than when the index offending occurred. 

36. Further, the material before the Tribunal does not indicate any concerns about the Applicant’s prison behaviour.  Instead, it reflects she worked during her time in custody and held positions of responsibility and trust.  She was released on parole at the EED and according to her parole officer has demonstrated a strong commitment to rehabilitation and leading a pro social life.  Further, she undertook programs in prison (and more recently in immigration detention) designed to address a range of criminogenic factors, as well as improve vocational training and literacy. Although she has no history of substance abuse, she also undertook some programs to increase her awareness about effects of drugs to individuals and members of the Australian community.

37. The Tribunal also accepts the Applicant has taken steps to improve her psychological vulnerability and has severed contact with her co-offender.  It accepts based on the expert evidence of Mr Watson Munro, as well as the other psychologists, they are confident in her prospects for continued rehabilitation and remaining offense free.  

38. The Applicant has been in the community for little more than two months, however, has several protective factors as discussed including in relation to work, accommodation, and support of relatives and friends.   

39. The Tribunal notes the offending took place in the context of the Applicant being under financial stress, and some mental health issues (although largely undiagnosed at that stage). She has undertaken some programs to address these underlying issues in prison and indicated she wishes to do so in the community. However she is presently under significant financial stress in large part due to debts her mother has incurred in Vietnam, which she feels responsible.

40. These and other factors as discussed, including the Applicant’s acknowledgement of the potential harmful effects of her offending, weigh somewhat in favour of not refusing her protection visa under character grounds.  However, overall, the Tribunal considers the offences involving the cultivation and supply of a large commercial quantity of the illicit drug, cannabis, for which the Applicant was convicted and received a significant custodial sentence, to be serious.  The Tribunal considers the Applicant is at low risk of reoffending, however continuing. 

1. Given the seriousness of the potential harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct, and taking into account the Government’s view that the Australian community’s tolerance of any risk of future harm becomes lower as the seriousness of the potential harm increases and noting the harm that would be caused by the distribution of large amounts of drugs if repeated (even cannabis), the Tribunal considers even an appreciable risk is unacceptable.  It notes in this regard even a low risk of offending is unacceptable if the gravity of the harm that might eventuate is sufficiently serious: Main v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 446 at [30].

2. Having had regard to the nature and seriousness of the Applicant’s conduct (which the Tribunal has assessed as serious) and the risk of her reoffending (which the Tribunal has assessed as low however unacceptable), the Tribunal concludes this consideration weighs moderately in favour of refusing to grant the Applicant’s visa.

   Family violence committed by the non-citizen

3. Whether the conduct engaged in constituted family violence is a primary consideration: paragraph 8.1 of the Direction.

4. In this case there is no evidence of any family violence committed by the Applicant, as agreed by the parties.  The Tribunal gives this primary consideration neutral weight.

   Strength, nature and duration of ties to Australia

5. The Tribunal must also consider the strength, nature and duration of the Applicant’s ties to Australia as set out in paragraph 8.3 of the Direction.  At paragraph 8.3(1), this requires considering any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. 

   Immediate family

6. The Tribunal finds the Applicant has no immediate family in Australia. She is divorced from her second husband in Australia (in December 2021) and has not indicated she has had any contact with him since being incarcerated, or since being in the community. (In the Sentencing Assessment Report dated 15 March 2022 it states she has not had contact with him since the end of 2020).[49]  Further, she has given no indication that she wishes to contact him or reunite. 

   [49] HB p 77.

7. The Applicant’s son lives with her mother in Vietnam.  Her brother and father also reside in Vietnam, although she has little contact with her father.

   Other family and social ties in Australia

8. The Applicant’s representative submits that the Applicant arrived in 2009, aged 19 and apart from one year in Vietnam in 2011, has resided continuously in Australia for around 16 years.  She has some family ties to Australia, including her estranged second husband and a number of cousins.

9. The Respondent accepts the Applicant has provided evidence in respect of these matters,  to be considered by the Tribunal.  This includes the Applicant arriving in Australia aged 19; having 13 extended family members here; being gainfully employed in Australia in the past; and currently employed two days a week at a café. The Respondent concedes this consideration should be assigned some (but not significant) weight in the Applicant’s favour.

10. The material before the Tribunal includes several letters of support from the Applicant’s family and friends in Australia attesting to the nature of their relationship, as noted earlier.

11. The Tribunal accepts the Applicant first arrived in Australia in 2009 aged 19, where she has resided primarily for the past 16 years, which is a significant period of time. She was in custody and/or immigration detention for almost five of those years. 

12. Further, the Tribunal accepts the Applicant is currently employed two days a week, with the possibility of full-time work in the future (although at the time of hearing this had not eventuated) and has had some other work history in Australia including owning nail salons.

13. The Tribunal accepts the Applicant has made some donations to charitable causes whilst being in Australia.[50]

    [50] HB pp 285, 286.

14. It also accepts she has several friends and 13 extended family members in Australia, some of whom she is very close to including her second cousin Ms [VV] and friend Ms [HH] who she presently resides with, as evidenced by their letters of support and in Ms [VV]’s case, oral evidence. It accepts this includes several minor children whom she is close to. Accordingly, the Tribunal gives this consideration some limited weight against refusing the visa.

    Best interests of minor children in Australia affected by the decision

15. Paragraph 8.4 of the Direction requires the Tribunal to determine whether cancellation or refusal under s 501 of the Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made.

16. The Applicant’s only child, now 14, remains in Vietnam with his maternal grandmother. As her only child is not in Australia, paragraph 8.4 of the Direction is not applicable.

17. The Applicant’s representative[51] submits the Applicant has close relationships with three  minor children in Australia as follows:

    ·Her cousin’s infant son, [M];

    ·Her friend [LD]’s 12-year-old daughter; and

    ·Her friend [LD]’s niece.

    [51] SOFIC; HB p 787.

18. However the material before the Tribunal does not include information about [LD]’s niece.  It does include information from the Applicant’s friend Ms [TD] who refers to her niece who has the same name [LD]’s 12-year-old daughter and the Tribunal has proceeded on the basis that they are the same person (considered below). 

19. The representative also states the Applicant has been close to the families of her father’s cousin’s two adult sons, including four minor children.

20. The Respondent accepts the Applicant has ties to these minor children in Australia (and some extended family members) but describes them as ‘non parental relationships’ and/or ‘non parental connections’. She submits there is no evidence demonstrating the relationships have strengthened since the Applicant has been in the community.

21. The Tribunal has considered whether it is in the best interests of these minor children for the Applicant’s protection visa to be set aside.  The Direction states that where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.[52] The Direction sets out factors that must be considered where relevant in considering the best interests of the child.[53]

    Cousin’s infant son [M]

    [52] Paragraph 8.4.

    [53] Paragraph 8.3(4)(a)-(h).

22. The Applicant’s cousin, Ms [VB] states she has a son – ‘[M]’ (born in June 2023) – in a letter dated 5 February 2025.[54]  She states she moved to Australia in May 2019; was close to the Applicant before she was imprisoned; and has maintained contact since.  Her husband – Mr [HT] – in his letter dated 7 February 2025,[55] states the Applicant and his wife were close before she was incarcerated; they kept in touch afterwards; and he, his wife and son [M] have visited the Applicant in immigration detention where it was clear the Applicant had a deep affection for [M].   

    [54] HB pp 360 & 361.

    [55] HB pp 358 & 359.

23. The Tribunal accepts the Applicant has affection for her cousin’s two-year-old son, [M].  It notes he was born when she was in prison and therefore contact has been limited, even accepting he may have visited her whilst in immigration detention. It is unclear whether the Applicant has had contact with [M] since she has been released from detention, or if she would continue to (and to what extent) if her protection visa refusal is set aside.  However, given the Tribunal accepts the Applicant and [M]’s mother are friends, and they had a close relationship in the past, considers they may resume a relationship if the Applicant stays in Australia, which may involve the Applicant’s relationship with [M] developing further. The Tribunal is not satisfied the Applicant has a parental role given he has parents, and the Tribunal notes there is no indication the Applicant could not maintain contact with [M] in other ways if unable to remain in Australia. Therefore, whilst the Tribunal accepts the Applicant’s relationship with [M] is positive and it is in [M]’s best interests if the Applicant’s visa is not refused and she is able to stay in Australia, it considers the likely negative effect of any separation on [M] limited.

    Friend’s 12-year-old daughter, [C]  

24. In a letter dated 5 February 2025,[56] the Applicant’s friend of eight years, Ms [TD] refers to having a niece called [C], who was born in 2012 and whom the Applicant ‘loves’.  She states the Applicant sometimes took care of [C], for example, she picked her up and dropped her off when she was busy at work.  She states her niece often visited the Applicant’s house during school holidays and since her arrest Ms [TD] and her niece miss the Applicant daily, as their lives lack the support and encouragement she used to provide.  Ms [TD] states further that whilst they moved to Melbourne two years after the Applicant was arrested they continue to stay in touch.

    [56] HB pp 370 & 371.

25. In the differently constituted Tribunal decision record[57] affirming the cancellation of the Applicant’s Partner visa, reference is made to a letter of support provided by the Applicant’s friend, Ms [LD], dated 5 April 2024, which referred to the relationship the Applicant has with Ms [LD]’s then 11-year-old daughter, [C].  According to that decision record, Ms [LD] stated in her letter that the Applicant had taken on the role of a second mother, showering her daughter with affection, care and attention, and she described their friendship as beautiful. 

    [57] HB pp 153 & 154.

26. The Tribunal accepts the Applicant has had a close relationship in the past with [C], the daughter of her friend Ms [LD], and the niece of her friend Ms [TD], now aged around 12.  It accepts this included a caring role prior to the Applicant being incarcerated.  It is unclear whether the Applicant has had contact with [C] since she has been released from detention, or if she would continue to (and to what extent) if her protection visa refusal is set aside.  Nonetheless, the Tribunal is satisfied it is in [C]’s best interests if the Applicant’s visa is not refused and she is able to stay in Australia, although only in a limited way given the representative’s submission that [C] has a mother, and also an aunt (Ms [TD]) who appears to have a parental role to some extent. The Tribunal also notes there is no indication the Applicant could not maintain contact with [C] in other ways if unable to remain in Australia. For these reasons, the Tribunal considers the likely negative effect of any separation on [C] limited.

    Four minor children of the Applicant’s father’s cousin

27. The representative submits the Applicant has also been close to the families of her father’s cousin’s two adult sons, including four minor children. In her February 2025 statutory declaration, the Applicant refers to being close to the families of her father’s cousins’ two adult sons.

28. At hearing Ms [VV] confirmed she is the Applicant’s father’s cousin, and that the Applicant had lived with her in Australia after she first arrived, and for a short time after being released from immigration detention.  In a letter dated 5 February 2025, Ms [VV] states the Applicant is very close to her family; that she took care of her when she first came to Australia; when the Applicant lived with her family she helped in many ways including ‘taking care of my grandchildren’; and because she always takes time to play with them, in return her grandchildren adore the Applicant. 

29. In a more recent letter dated 22 May 2025,[58] Ms [VV] describes the relationship between the Applicant, her and her family as very close and affectionate. She states she has loved and cared for the Applicant as if she were her own daughter.  She states further that they kept in touch whilst the Applicant was in prison and immigration detention, and after released from detention the Applicant visited her in hospital when she was unwell, and at home, reconnecting with her and her young children.  She described the relationship as warm with them like in the past.

    [58] HB pp 1048 & 1049.

30. The Tribunal accepts the Applicant has lived with her father’s cousin, Ms [VV] in the past in Australia, and was close to her grandchildren. Whilst their ages remain unclear, the Tribunal has proceeded on the basis that four of these grandchildren are minor, as submitted by the representative. It accepts the Applicant was close to these children when she lived in the community before her arrest.  It is unclear whether the Applicant has had contact with them since she has been released from detention, although given Ms [VV]’s evidence that she lived with her initially after being released from detention, the Tribunal considers this likely. The Tribunal also notes there is no indication the Applicant could not maintain contact with these children in other ways if unable to remain in Australia. The Tribunal is satisfied it is in the best interests of the four minor grandchildren of the Applicant’s father’s cousin if the Applicant’s visa is not refused and she is able to stay in Australia, although only in a limited way, given it does not accept she is likely to play a parental role in the future and they appear to have at least one parent, and one grandparent.

31. Accordingly, the Tribunal accepts the Applicant has relationships with a total of seven minor children in Australia as set out above and accepts these minor children may be affected to some degree if the Applicant’s protection visa is refused and she has to leave Australia, but not in any significant way.  This consideration weighs marginally against visa refusal.

32. The Tribunal notes in the delegate’s decision record to refuse the Applicant a protection visa under character grounds there is reference to four of the Applicant’s nieces.[59]  However, no information or submissions has been provided to the Tribunal about these nieces.

    [59] HB p 31.

    Expectations of the Australian Community

33. Paragraph 8.5(1) of the Direction states that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.

34. Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.   This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence. 

35. Paragraph 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

36. The expectations of the Australian community as a whole are to be considered, and the Direction directs that decision makers should proceed on the basis of the Government’s views (as articulated above, without independently assessing the community’s expectations in the particular case: paragraph 8.5(4) of the Direction.  It is not for the Tribunal itself to determine such expectations.[60]

    [60] FYBR v Minister for Home Affairs[2019] FCAFC 185 at [66]- [67], [91], [101] and [104].

37. This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.[61]

    [61] Paragraph 8.5(1).

38. In this case, the Respondent argues the Applicant has committed serious drug offences, and presents a risk, albeit low, of recidivism.  The Australian community’s expectations that non-citizens like the Applicant obey the law have been breached and paragraph 8.5(1) provides that Australian community, as a norm, expects the Government not to allow such a non-citizen to remain in Australia, she contends further.

39. The Respondent refers to FYBR v Minister for Home Affairs [2019] FCAFC 185[62] wherein the Full Federal Court found that it is not for the decision maker to make his or her own assessment of the community expectations, rather the provisions of the applicable Direction should be deemed to represent the expectations of the Australian community.

    [62] Affirmed in Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCFA 68 at [32] – [35]] per Moshinksy, Steward and Jackman JJ. 

40. The Applicant’s representative concedes this factor will weigh against the Applicant, however, argues it ought not to weigh heavily against the Applicant given the other factors. 

41. During cross examination the Applicant was asked by the Respondent what she thinks the Australian community expects with respect to large scale cannabis production.  She noted before she went to prison she did not think much about drugs or addiction, yet after reflecting in prison, and undertaking relevant programs, she agrees the Australian community expect society to be safe, healthy, and without addicts.   

42. The Federal Court of Australia has held that the assessment of community circumstances is not a matter of evidence and does not turn on the personal circumstances of the individual non-citizen. The Court held that a decision maker can take into account the personal circumstances of an individual insofar as they are relevant to another primary consideration or one of the other considerations and adjust the relative weight to be given to each of the considerations accordingly.[63]

    [63] RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876 [56].

43. Given this, combined with the seriousness of the offending, the Tribunal considers that the Australian community would expect the Applicant’s visa to be refused. It finds this consideration weighs in moderate favour of refusing the visa.

    OTHER CONSIDERATOINS

    Legal consequences of the decision

44. The Tribunal is required to consider the legal consequences of a decision on a non-citizen of a protection visa refusal pursuant to paragraph 9.1 of the Direction. This includes having regard to Australia’s non refoulement obligations in respect of unlawful non-citizens.

45. With respect to this consideration the Respondent submits as follows:

    ·As a result of the Applicant’s protection finding, she will not be removed from Australia to Vietnam regardless of the Tribunal’s decision.  

    ·The Applicant was granted a BVR on 10 April 2025 which does not impose the restrictive conditions (e.g. electronic monitoring, curfew) that were the subject of the High Court’s decision in YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40.

    ·If the Tribunal refuses to grant the visa the Applicant would continue to hold the BVR and be required to continue to comply with its conditions until such time that her removal from Australia is practical.  Given she would remain in the community unless she breaches the BVR conditions the Tribunal should attach limited weight in favour (of setting aside the decision) because irrespective of the Tribunal’s decision, the Applicant would remain in the community.

    ·A further legal consequence is that s 48A of the Act would operate to prevent the Applicant from applying for another protection visa unless the Minister personally exercise their powers under s 48B to disapply s 48A in her case.

46. The legal consequence of a decision to set aside the decision under review is the grant of a protection visa (if other relevant criteria are met).  The Applicant will then be a permanent resident of Australia in the manner she was before her Partner visa was cancelled.  She will not be subject to removal to a third country as contended the representative (and discussed further below), nor required to comply with BVR conditions.

1. The range of potential legal consequences of a decision to refuse the Applicant’s protection visa under s 501 and related provisions include:

   ·the likelihood of becoming an unlawful non-citizen subject to detention and/or removal;[64]

   ·refusal of other visa applications and cancellation of other visas;[65]

   ·a prohibition on applying for other visas;[66] and

   ·periods of exclusion and special return criteria may apply[67].

   [64]  Migration Act 1958 (Cth) ss 189, 196, 197C, 198.

   [65] Ibid s 501F.

   [66] Ibid s 501E.

   [67] Ibid s 503, special return criteria 5001.

2. Usually, if a visa is refused, its former holder becomes an unlawful non-citizen immediately after cancellation. Under s 189 of the Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198 if they become an unlawful non-citizen.[68]

   [68] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the Applicant’s detention had at all times been lawful at [112]-[122].

3. The Direction provides that non-citizens subject to a protection finding must remain in immigration detention as required by s 189 unless and until they are granted another visa or they can be removed to a country other than a country by reference to which the protection finding was made.[69]

   [69] 9.1.1(2).

4. In this case, because the Applicant is subject to ‘a protection finding’ which has not been set aside, she is unable to be returned to Vietnam: s 197C(3). The parties accept that is the case, and that the Applicant’s removal to Vietnam is not required nor authorised under s 198 of the Act and the exceptions under s 197C(3)(c) do not presently apply to the Applicant.

5. The Applicant has already been granted a BVR and released from immigration detention.  She will therefore not become unlawful as a result of the decision.  The Tribunal finds the Applicant will remain in the community following its decision, either as the holder of a BVR or as the holder of a protection visa. 

6. As long as the Applicant is the subject of a protection finding, she cannot be removed to Vietnam regardless of whether she is the holder of a BVR or the holder of a protection visa. 

7. The High Court in NZYQ v MICMA[70] found that the Applicant in that case cannot be detained where there is ‘no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future at the time of the Tribunal’s decision’.[71] 

   [70] [2023] HCA 37.

   [71] At [54].

8. The Applicant’s representative contends in the short term it is likely the Applicant will remain in Australia on a BVR, the conditions of which are onerous.  For example, stringent reporting conditions, including monitoring, reporting and a requirement the Applicant assist with her own removal from Australia if called upon. He notes severe penalties for breaching BVR conditions including imprisonment and heavy fines. 

9. The representative argues further that in the Applicant’s case there is a very real chance she may be removed to another country: most likely Nauru.  That is because recently the Australian Government entered into an agreement with Nauru to issue 30-year visas to three people who had failed the character test but were released from long term detention as a result of the High Court’s decision in NZYQ v MICMA.[72]  Whilst an attempt to remove one man was temporarily put on hold by the High Court (pending a determination of the lawfulness of the legislation) the representative noted statements made by a spokesperson for the Respondent in February 2025 to the effect that the Australian Government was confident in the laws passed to give increased powers to send people without a valid visa to a third country for resettlement.

   [72] Refugee Council alarmed by Australian’s new deal to exile people to Nauru’, Refugee Council of Australia, 17 February 2025; SOFIC’ HB p 789.

10. The representative noted the mechanisms to remove people to Nauru on a thirty-year visa are set out in: TCXM and Minister for Immigration [2025] FCA 540.

11. The representative submits that ‘one can only imagine’[73] the effect of sending a 36-year-old single Vietnamese female such as the Applicant to Nauru, who has a history of trauma from her experiences in Vietnam, and has been diagnosed with severe levels of depression, anxiety and stress (according to the report from psychologist Bradley Jones). The representative also notes the small size of Nauru (21 square kilometres) and population size (approximately 13,000).  At hearing, he argued doing so would be a ‘death sentence’.

    [73] SOFIC para 38; HB p 789.

12. Further, the representative refers to a July 2024 report by Asylum Seeker Resource Centre (ASRC) titled ‘Cruelty by Design’ in which Nauru is described as ‘hell’ and the ‘island of despair’.[74]  The representative highlights in the report it states the Australian Government has set aside $604 million for offshore management in Nauru for 2024/2025, and that its caseworkers have observed severe mental and physical health issues there due to inadequate medical support and mental health care, family separation and uncertainty about the future, among other things.

    [74] Copy at HB pp 999-1030.

13. The representative argues that as long as the Applicant remains in Australia on a BVR or removed to Nauru on a 30-year visa, she is unlikely ever to be reunited with her son, who will not be eligible to join her in Australia.  He notes the situation in relation to Nauru is unknown.  Therefore, in practical terms the only way she can be reunited with her son is for the decision to refuse her a protection visa be set aside.    

14. The Respondent contends such arguments are not anchored in the matters that the Direction (particularly paragraph 9.1) require the decision maker to consider, nor do they assist the Tribunal to analyse any legal consequences by reference to paragraph 9.1.1 of the Direction – which is the relevant consideration.  She contends the submissions pertaining to the Applicant’s potential ‘banishment’ to Nauru are premised upon what the authorities variously describe as impermissible ‘[s]peculation about future executive action’.[75]

    [75] NBMZ v Minister for Immigration and Border Protection 220 FCR 1 at [123] (Buchanan J); Ali v Minister for Immigration and Border Protection [2018] FCA 650.

15. The Respondent argues in any event, even if the Tribunal considers these contentions relevant in the context of considering the legal consequences of its decision, the substance of the consequences complained of is simply an aspect of the practical outworking of holding a BVR. 

16. As noted the Applicant was granted a BVR on 10 April 2025 which is subject to several conditions.[76] The Tribunal accepts some of the conditions are onerous and/or restrictive as contended by the Applicant’s representative, for example requiring the Applicant to report to the Department daily (via telephone).  However not overly so: there is no curfew condition or requirements to wear a monitoring device. 

    [76] HB pp 497-500.

17. Additional conditions require the Applicant to assist with, report for and facilitate her own removal from Australia, which the Tribunal accepts may be stressful.

18. The Tribunal agrees the failure to comply with any of the BVR conditions could have serious consequences for the Applicant, including that she can be convicted of a criminal offence as a result (ss 76B, 76C, 76DAA, 76DAB and 76 DAC) for which a court must impose a minimum sentence of one year imprisonment: s 76DA.

19. The Tribunal has considered the submission by the Applicant’s representative about likely removal to Nauru in the Applicant’s case.  It notes it must make an assessment as to the legal effect of refusing the Applicant’s protection visa application at the time of its decision.  The amending legislation relating to removal to a safe third country – the Migration Amendment Act 2024, passed on 29 November 2024 came into operation on 5 December 2024. It provides (in s 76AAA) for a person’s BVR to cease if:

    ·that person has permission to enter and reside in a foreign country;

    ·that foreign country is a party to third country reception arrangements with Australia and;

    ·the person:

    odoes not have a protection visa application on foot that has not been finally determined; or

    othe person cannot be removed to that country because of a protection finding in relation to that country; or

    othe person is under 18. 

20. Given the amending Acts have commenced, paving the way for arrangements with third party countries, the Tribunal has proceeded on the basis that there is a chance – that is more than speculative - the Applicant may be removed to Nauru in the reasonably foreseeable future if the Australian government entered into an arrangement with the government of Nauru (or another third country), pursuant to s 76AAA, which would be a legal consequence of the Tribunal’s decision to refuse to grant the Applicant a protection visa. Section 198AHB of the Act allows a non-citizen to be removed to a foreign country that it a party to a third country reception arrangement.

21. The Tribunal accepts removal to Nauru, a country where the Applicant knows no one, away from her support networks and employment, is likely to be difficult.  It accepts based on the earlier evidence that she has experienced some mental health issues including anxiety and depression, which could be exacerbated if removed to Nauru. It accepts continued separation from her son (in Vietnam) and limited prospects of being reunited with him is likely to add to her anxiety and stress.  Although there is no submission or indication she would not be able to access medication she currently takes (Fluoxetine and Olanzapine) to help manage her symptoms.  The Tribunal accepts she would be able to access required medication to help manage her mental health symptoms if removed to Nauru.     

22. If the Applicant is not removed to a third country, she will remain on a BVR indefinitely.  BVR holders are able to access Medicare and Centrelink and at hearing the Applicant indicated she had already applied for Centrelink. BVR holders are also permitted to work, within the certain conditions (largely security related).  Nonetheless, the Tribunal accepts the Applicant’s opportunities for employment would be greater if she is the holder of a permanent visa.

23. A further consequence of the decision to refuse to grant the Applicant a protection visa relates to significant restrictions on her ability to apply for other visas.  Unless the Minister considers it is in the public interest to lift the bar under s 48B, she will not be able to apply for another protection visa whilst in the migration zone.  As well, an application for any visa other than a protection visa would be subject to s 501e – the Applicant could not make an application in the migration zone for any other visa than a BVR as prescribed by cl 2.212AA of the Regulations

24. For these reasons, the Tribunal considers that the legal consequences of the decision (‘Other Consideration’) – whether or not the Applicant is removed to a third country or remains in the Australia as the holder of a BVR – weighs moderately against visa refusal. 

    Extent of impediments if removed

25. Paragraph 9.2(1) of the Direction provides that decision makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, which in the Applicant’s case is Vietnam.  The Direction states in doing so decision makers should take into account the Applicant’s age and health; whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to them in that country.

26. The Respondent contends this is not a relevant consideration in the Applicant’s case because she has a protection finding (which has not been set aside) and therefore cannot be removed to Vietnam.    

27. The Applicant is a 36-year-old single woman with some mental health problems, as referred to earlier in these reasons.

28. The Applicant’s representative identifies several impediments if the Applicant is removed to Nauru where she has no family, friends, support, limited employment opportunities, and may face language and cultural barriers.  It would be detrimental to her mental health and she would be away from her son, and difficult for him to visit.  However, the Tribunal notes  paragraph 9.2 of the Direction refers to consideration of impediments the non-citizen may face if removed from Australia to their home country [Tribunal emphasis].  It is not relevant to consider potential impediments to the Applicant if removed from Australia to Nauru.

29. For these reasons the Tribunal gives this consideration neutral weight.

    Impact on Australian business interests

30. The Direction indicates that this factor is generally only given weight where decision would significantly compromise the delivery of a major project or important service in Australia. There is no indication that this applies in the Applicant’s case. Accordingly, the Tribunal considers that this carries no weight.

    CONCLUSION

31. The Tribunal finds the Applicant does not pass the character test because of her substantial criminal record.  The Tribunal therefore has determined whether the Applicant’s protection visa should be refused, weighing up the relevant considerations set out in the Direction.

32. There has been extensive judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Ministerial Directions (considering a number of Ministerial Directions preceding the Direction).[77]

    [77] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.

33. The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (‘CRNL’) states that ‘[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together’.[78]

    [78] [2023] FCAFC 138, [28].

34. Paragraph 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed, as set out earlier.

35. In considering whether or not the Applicant’s protection visa should be refused, the Tribunal has had regard to the primary and other considerations in the Direction, the guiding principles, and the evidence and material before it.  As noted, the guiding principles state the safety of the Australian community is the highest priority.

36. The Tribunal has given moderate weight to the legal consequences (paragraph 9.1) as a consideration in favour of not refusing the protection visa in the Applicant’s case.  Further, it gives some weight to the strength, nature and duration of her ties to Australia (paragraph 8.3); and marginal weight to the best interests of minor children in Australia (paragraph 8.4).

37. However, weighed against these considerations, the Tribunal has given moderate weight in favour of refusing the visa application with respect to the first primary consideration – protection of the Australian community, even though the risk of reoffending (paragraph 8.1.2(2)) is assessed as low, noting its finding that the risk is unacceptable. 

38. The Tribunal has also placed moderate weight in favour of refusing the visa application with respect to the fifth primary consideration - on the expectation of the Australian community (paragraph 8.5). Paragraph 5.2 of the Direction states the safety of the Australian community is the highest priority. 

39. As noted, greater weight must generally be given to the protection of the Australian community than other primary considerations.[79]  Greater weight will also generally be given to primary considerations. In examining what this requires, the Full Court in CRNL states that this means greater weight will be given unless there is some reason why that general approach should not be adopted.[80] 

    [79] Direction 110, paragraph  8.1(1).

    [80] Ibid [27].

40. Having weighed up the factors, the Tribunal considers that the refusal to grant the Applicant a Subclass 866 visa should not be set aside.

    DECISION

41. The Tribunal affirms the decision under review.

204.     I certify that the preceding two hundred and three (203) paragraphs are a true copy of the written reasons for the decision herein of Senior Member N. Burns

................[sgd]........................................................

Associate

Dated: 3 July 2025

Date of hearing:  17 June 2025            

Solicitors for the Applicant:  Stephen John, ASM Migration Services   

Counsel for the Applicant:  Nicholas Poynder                

Solicitors for the Respondent:  Meaghan Prefontaine, AGS