HVLJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 246

HVLJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 246 (9 February 2024)
Division:GENERAL DIVISION
File Number:2023/8691
Re:HVLJ
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member S Burford
Date of decision: 9 February 2024
Date of written reasons: 23 February 2024
Place:Perth

The decision of the Respondent dated 20 November 2023 to refuse to grant the Applicant a Bridging E (Class WE) visa is affirmed.
.........................[Sgd]........................................
Senior Member S Burford

CATCHWORDS
MIGRATION – decision of delegate of Minister to refuse to grant the Applicant a bridging visa – character test – Direction No 99 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – expectations of the Australian community – extent of impediments if removed – Applicant is a 23 year old man who arrived in Australia as a 19 year old – extent of impediments if returned to Vietnam – decision of the delegate of Minister to refuse to grant the Applicant a bridging visa is affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 5(9), 5H(1), 5J, 15, 36(2)(a), 36(2)(aa), 189, 196, 197C, 198, 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(1), 500(1)(b), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501(7)(e), 501CA, 501CA(4)(b)(i), 501F, 501E, 503
CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Buntin v Minister for Immigration Citizenship and Miulticultural Affairs [2023] FCA 1055
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
CZCV and Minister for Home Affairs [2019] AATA 91
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
JNMKv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762
Lester v the State of Western Australia [2011] WASCA 128
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1259
PNBL v Minister of Immigration and Border Protection (Migration) [2018] AATA 162
RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501(1)(8 March 2021)
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501(1) (23 January 2023) – paras
4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(2)-(5), 6, 7, 8, 8.1(1), 8.1.1, 8.1.1(d)-(e), 8.1.1(f)-(h), 8.1.1(1), 8.1.1(1)(a), 8.1.1(b), 8.1(2), 8.1(2)(a), 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(c), 8.3, 8.3(1),(2)-(3), 8.3(2), 8.3(3), 8.3(4), 8.3(4)(a)(i), 8.3(4)(a)(ii), 8.3(4)(a)(iii), 8.4, 8.5(1), 8.5(2), 8.5(2)(a)–(f), 8.5(3), 9. 9.1, 9.1(1), 9.1.2(1), 9.2, 9.2(1)(a), (b), (c), 9.3, 9.4
REASONS FOR DECISION
Senior Member S Burford
23 February 2024
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent (the Minister) dated 20 November 2023 to refuse to grant the Applicant a Bridging E (Class WE) visa (the visa) under s 501(1) of the Migration Act 1958 (Cth) (the Migration Act).
The application is made pursuant to s 500(1)(b) of the Migration Act which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501 of the Migration Act.
BACKGROUND
The Applicant is a 23-year-old citizen of Vietnam. He first arrived in Australia on 11 September 2019 on a student visa to study at Murdoch University.[1]
4.On 29 May 2023 the Applicant was convicted by the District Court of Western Australia in
Perth of Cultivate a prohibited plant with intent to sell or supply and sentenced to a term of
[1] A1, page 1.
[2] R1, G4, page 28; G5, page 42.
[3] Transcript, page 33; R1, G5, page 37.
[4] A1, page 3; R3, page 83.
imprisonment of one year and six months.[2] The Applicant’s student visa expired in March 2023 while he was serving his sentence.[3] The Applicant was released on parole on 1 August 2023.[4] As he did not hold a visa when paroled he was taken into immigration detention.
On 7 August 2023, the Applicant lodged an application for a Class XA – Protection visa (subclass 866) (Protection visa).[5] By decision dated 21 August 2023, a delegate of the Minister refused the Application for a Protection visa on the basis they were not satisfied the Applicant was a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) or s 36(2)(aa) of the Act.[6] The Applicant subsequently applied to the Tribunal for review of that decision. The decision to refuse the Applicant a Protection visa was affirmed by the Tribunal (differently constituted) on 23 October 2023.[7]
[5] R1, G3, page 23; G14, page 79.
[6] R1, G14, pages 79–87.
[7] R3; RSFIC, page 2.
The Applicant has made an application for judicial review of the Tribunal’s 23 October 2023 decision to the Federal Circuit and Family Court of Australia (FCFCoA) on 22 November 2023. According to submissions, that application is pending before the Court.[8]
[8] R1, G1, pages 1-3.
On 12 September 2023, the Applicant filed an application for a Bridging E (Class WE) visa (Bridging visa), on merits review grounds.[9] That is the visa application which is the subject of this review.
[9] R1, G13, pages 70-78.
On 3 October 2023 the Applicant was notified by the Department of Home Affairs of the Minister’s intention to refuse the Bridging visa on character grounds under s 501(1) of the Act by email to his authorised representative.[10] The Applicant was put on notice that the Department was considering whether to refuse the Bridging visa under s 501(1) of the Act on the basis that information before the Department indicated the Applicant had a substantial criminal record and did not pass the character test in s 501(7) by virtue of s 501(6)(a). The Applicant responded to that notice including by statement dated 25 October 2023.[11]
[10] R1, G7, pages 46-49.
[11] R1, G8, pages 50-53.
On 16 November 2023 the delegate decided to refuse the visa on the basis that they were not satisfied that the Applicant passed the character test under s 501(6)(a) (substantial criminal record) on the basis of s 501(7)(c) of the Act and considering that the considerations favouring non-refusal were outweighed by those favouring the exercise of the discretion to refuse the visa (the Decision).[12] The Applicant was notified of this decision on 20 November 2023 by email to his authorised representative.[13]
[12] R1, G3, pages 10-12.
[13] R1, G3.
According to the Statement of Reasons for Refusal[14] the delegate was not satisfied that the Applicant passed the character test by virtue of s 501(6)(a) of the Migration Act.

The delegate found the nature of the Applicant’s conduct was very serious and that if the Applicant remained in Australia there was, on balance, a likelihood he would reoffend. The delegate considered that any future offending could cause physical and psychological injury and financial harm to members of the Australian community. The delegate considered that the protection of the Australian community weighed significantly in favour of exercising the discretion to refuse the Bridging visa. The delegate considered that the expectations of the Australian community were that the Bridging visa would be refused and afforded significant weight to that consideration. The delegate considered the Applicant had links to the Australian community through his family members and friends and afforded some weight to this consideration in favour of not refusing the Bridging visa. The delegate also afforded weight to the legal consequence of the decision and the extent of any impediments if the Applicant is removed to Vietnam in favour of not refusing the visa. However, the delegate found that the considerations favouring non-refusal were outweighed by those favouring refusal. On the basis of these considerations, the delegate decided to exercise the discretion to refuse the Bridging visa.
[14] R1, G3, pages 15-26.
On 21 November 2023, the Applicant applied to the Tribunal for review of the delegate’s decision.[15] The Tribunal is satisfied that the application, including the Statement of Reasons for Refusal, was lodged within time, pursuant to s 500(6B) of the Migration Act.
[15] R1, G2, pages 4-9.
The Tribunal must hand down a decision on or before 12 February 2024.[16]
[16] Migration Act s 500(6L).
ISSUES
The issues before the Tribunal are whether the Applicant passes the character test as defined in s 501(6) of the Migration Act, and if he does not, whether the Tribunal should exercise the discretion in s 501(1) to refuse to grant the Bridging visa.
For the reasons below, the Tribunal has decided that the correct and preferable decision is that the decision of the delegate of the Respondent to refuse the Applicant’s Bridging visa.
THE HEARING AND THE EVIDENCE
The hearing was held on 1 February 2024 at the Tribunal’s Perth Registry. The Applicant appeared in person and was represented by Mr Jones, of Counsel, instructed by Kate Hoang from Oxford Law Group. The Respondent was represented by Mr Johnson, of Counsel, instructed by Ms Georgina Ellis, of Sparke Helmore Lawyers. All representatives appeared by MS Teams video.
At the hearing, the Applicant made submissions, gave evidence and was cross-examined. The Tribunal also took evidence, via telephone, from the following witnesses:
·Ms TTN (a friend of the Applicant’s)
·Ms TDN (the Applicant’s Aunt)
·Ms TOV (a friend who the Applicant considered to be an Aunt)
The hearing was conducted with the assistance on an accredited interpreter who was fluent in the English and Vietnamese languages. The witnesses were also assisted by the interpreter. No issues with the interpreting services were raised by the parties at the hearing.
The following documents were marked as exhibits:
·Applicant’s Bundle, comprising pages 1 to 21 (Exhibit A1).
·Section 501 G-Documents, labelled G1 to G17, comprising pages 1 to 137 (Exhibit R1).
·Respondent’s Tender Bundle, comprising pages 1 to 118 (Exhibit R2).
·Tribunal Decision Record dated 23 October 2023, relating to the Protection visa application (Exhibit R3).
The Applicant filed a Statement of Facts, Issues and Contentions (ASFIC) on 18 December 2023. The Respondent filed a Statement of Facts, Issues and Contentions (RSFIC) dated 17 January 2024.
LEGISLATIVE FRAMEWORK
Migration Act
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, in cases where the grant of the visa is being considered the exercise of a discretion about whether the visa should be refused.
Section 501(1) of the Migration Act is as follows:
(1)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.
Note: Character test is defined by subsection (6).
(Original emphasis.)
The character test is set out in s 501(6) of the Migration Act and essentially deems that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)
the person has a substantial criminal record (as defined by

subsection (7)); …
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)
the person has been sentenced to a term of imprisonment of

12 months or more; …
(Original emphasis.)
Additionally, under s 501(3A) of the Migration Act, the person must be serving a ‘sentence of imprisonment’, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Direction No 99
The Tribunal is required to form a state of satisfaction as to whether the visa should be refused, reasonably and on a correct understanding of the law.[17] By reason of s 499(2A) of the Migration Act, in doing so it must comply with written directions about the performance of its functions or the exercise of those power which are given by the Minister pursuant to s 499(1) of the Migration Act. With respect to the exercise of power under s 501 and 501CA the current written direction given by the Minister is Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 99) under s 499 of the Migration Act, which commenced operation on 3 March 2023.
[17] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Deng) (Halley J) at [119].
An objective of Direction No 99 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[18] In exercising the power under s 501(1), the Tribunal must have regard to the primary and other considerations set out in Direction No 99 where relevant to the decision.[19]
[18] Direction No 99 para 5.1(4).
[19] Direction No 99 para 6.
Paragraph 5.1 of Direction No 99 sets out ‘[o]bjectives’ including para 5.1(1) and (2) which provide that:
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
(2) Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
Paragraph 5.2 of Direction No 99 sets out principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse a visa under s 501. These principles are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on
non-citizens in the expectation that they are, and have been, law-abiding,
will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian Community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the 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. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2)[20] (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
[20] As there is no para 8.55(2) the Tribunal infers this is a reference to 8.5(2).
Informed by the principles set out in para 5.2 of Direction No 99, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding whether to exercise the discretion to refuse the visa.[21]
[21] Direction No 99 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No 99, which includes the Tribunal.
In making a decision under s 501(1), the primary considerations to be taken into account by the Tribunal are:[22]
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
[22] Direction No 99 para 8.

The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[23]
(a)       legal consequences of the decision;
(b)       extent of impediments if removed;
(c)       impact on victims; and
(d)       impact on Australian business interests.
[23] Direction No 99 para 9.
Further guidance as to how a decision-maker is to apply the considerations in

Direction No 99 can be found in para 7, which provides that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case,
[24] Migration Act s 501(7)(c).
a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[24]
On 29 May 2023 the Applicant was convicted by the District Court of Western Australia in
Perth of Cultivate a prohibited plant with intent to sell or supply and sentenced to a term of imprisonment of one year and six months.[25]
[25] R1, G4, G5.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he does not pass the character test by operation of s 501(7)(c) of the Migration Act. This was not in dispute between the parties.[26]
[26] ASFIC at [2]; RSFIC at [18].
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[27]
[27] See Migration Act s 501CA(4)(b)(i).
SHOULD THE DISCRETION TO REFUSE THE VISA BE EXERCISED?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No 99, the discretion in s 501(1) of the Migration Act to refuse the Bridging visa should be exercised.
The Applicant submitted that the Bridging visa should not be refused. It was contended that Direction No 99 had a more limited application in the Applicant’s case because the consequence of granting or refusing the visa is not that the Applicant will or will not remain in Australia, as he will remain until his application for judicial review of the refusal of the Protection visa is determined. Rather the issue is whether he should be detained or granted a visa to be in the community while that process is completed.[28] As a result, it was contended that only some aspects of Direction No 99 bear upon the Applicant’s case:
·The protection of the Australian community, which the Applicant says should not weigh in favour of refusal where the Applicant bears no risk of reoffending;
·The Applicant’s links or ties to the Australian community, which the Applicant says weigh in favour of granting the visa noting his support from his biological and adoptive aunts and offer of employment with a friend in Melbourne;
·The expectations of the Australian community which the Applicant contends would not favour refusal of the visa rather than release into the community; and
·The legal consequences of the refusal decision which the Applicant says are relevant in circumstances where the Applicant’s non-refoulement obligations are being dealt with in the Protection visa review process but where he faces the prospect of prolonged detention while that matter is determined. It was contended relying on the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (NZYQ) that it was not reasonably necessary to detain the Applicant in circumstances where he poses no risk or a very low risk of reoffending.
·Other considerations were not relevant in the Applicant’s case.
[28] Transcript, page 8.
The Respondent submitted that:
·The Applicant’s offending should be viewed as very serious and that there remains an unacceptable risk that he will reoffend. The protection of the Australian community weighed in favour of refusing the Bridging visa;
·The Applicant’s ties to Australia are not strong, noting he commenced offending shortly after arriving in Australia, arrived as an adult and did not demonstrate connections to Australian citizens or permanent residents noting that at least two of his claimed ties related to persons on temporary visas (Ms TOV and Ms TDN);
·The Applicant breached the expectation that he would be law abiding while he was in Australia by engaging in serious conduct and offending. The Australian community would expect that he not be granted a visa;
·The legal consequences of the decision did not weigh in favour of granting the visa in circumstances where the Applicant’s claims for non-refoulment were being dealt with in the Protection visa process and where he does not face a prospect of indefinite detention. NZYQ did not apply the Applicant is not subject to a protection finding and consideration that there is no real prospect of removal does not apply in his circumstances;
·There are no substantial impediments to the Applicant if removed to Vietnam where his family resides and where he lived for the first 19 years of his life; and
·While other considerations did not apply in the Applicant’s case. The Respondent submitted the discretion to refuse the visa should be exercised on that basis.
The visa
As noted above, the Applicant has been refused a Bridging visa. This is a limited stay visa which the Applicant applied for on the basis of his application for a Protection visa and the subsequent merits and judicial review process for that application. The Bridging visa would enable the Applicant to remain in the community while his application for judicial review of the refusal of the Protection visa is determined.
It follows that the consequences which flow from the refusal of the Bridging visa are, in practical terms, different to those which flow from the cancellation or refusal of a permanent visa. Importantly, as the Applicant has an application for judicial review on foot regarding the refusal of his Protection visa application, which is yet to be determined, the refusal of his Bridging visa does not in practical or legal terms mean that he will be subject to removal from Australia until that process is completed. Unlike other visa applications, which are deemed to be cancelled or refused when a visa is also cancelled or refused on character grounds under s 501, a valid protection visa application is not deemed to be refused.[29]
[29] See Migration Act s 501F.
The relevance, if any, of the limited stay nature of the Applicant’s visa on the exercise of the discretion to refuse the Bridging visa was discussed with the parties at the hearing. Both the Applicant’s and the Respondent’s representatives accepted that the practical consequence of the decision whether or not to refuse the visa would be to determine whether he is in immigration detention pending judicial review of his Protection visa refusal or whether he is permitted to enter the community to await that determination.
In this regard the Tribunal notes the Migration Act contains a number of provisions relating to detention and removal of unlawful non-citizens who do not hold a visa or whose visas have been cancelled or refused including on character grounds. The Applicant’s visa expired while he was in prison. A non-citizen who does not hold a visa must be detained under s 189 of the Migration Act. If the visa is refused the Applicant would be liable to continue to be detained under s 189. Section 198 provides that where an unlawful non-citizen falls within its terms they must be removed ‘as soon as reasonably practicable’. This includes in circumstances where they have a visa cancelled or they are in detention and do not have a valid visa application awaiting determination.
However, s 198 also provides that an officer must not remove an unlawful non-citizen where they have a made a valid Protection visa application which has not been finally determined. While the Applicant’s Protection visa has been ‘finally determined’ for the purposes of s 198 of the Migration Act, it was common ground that the Applicant would not be likely to be removed while his judicial review application was awaiting determination as a question of Federal Court practice and government policy.[30]
[30] Transcript pages 68, 77.
The Tribunal accepts that its decision has significant consequences for the Applicant and the Australian community. However, the Tribunal is also mindful of addressing and weighing the relevant primary and other considerations in Direction No 99 and that, having regard to s 198, the removal of the Applicant would not be a practical consequence of a decision not to refuse the visa. Rather, he would be detained pending final determination of his Protection visa review application, or the issuance of a permitted Bridging visa or discretionary visa. Nor would the grant of the Bridging visa enable the Applicant to remain permanently in the community. This is relevant to a number of considerations addressed in Direction No 99 and the implications of the practical consequences of the decision are addressed further in the context of those considerations. These matters are also discussed further under the consideration of the legal consequences of the decision.
Protection of the Australian Community
The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community. Direction No 99 requires decision-makers to keep in mind 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. In this respect, 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.[31]
[31] See also Direction No 99 para 8.1(1).
Paragraph 8.1(2) of Direction No 99 then provides that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date.[32] In doing so, paragraph 8.1.1(1) of Direction No 99 provides that the Tribunal must have regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. The direction also provides that certain other crimes or conduct are considered to be serious. The Tribunal notes that while the Direction expressly provides categories of conduct to be considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[33]
[32] Direction No 99 para 8.1(2).
[33] Direction No 99 para 8.1.1(1)(a) and See also Direction No 90 para 8.1(2)(a).
With respect to the nature and seriousness of the Applicant’s conduct, the Applicant conceded his conduct was serious, reflected in his custodial sentence. However, the Applicant submitted that there was no risk or alternatively a very low risk that he would re-offend.[34]
[34] ASFIC at paras [7]-[8].
With respect to the nature and seriousness of the Applicant’s conduct, the Respondent submitted that the Applicant’s conduct should be viewed as very serious for the following reasons:[35]
·The Applicant committed an offence contributing to the production, supply and distribution of drugs in Australia and has been declared a drug trafficker;[36]
·The Applicant was a trusted worker in the operation but did not own or share in the profits of the operation;[37]
·The sentence of imprisonment imposed reflects the seriousness of the Applicant’s offence, noting sentences of imprisonment are a last resort in the sentencing hierarchy and the fact the Applicant had no prior record at the time of sentencing;[38] and
·Although his offending did not fall within the prescribed factors in para 8.1.1 of Direction 99 those lists were not exhaustive.
[35] RSFIC paras [21]-[22]
[36] R2, TB3, page 108.
[37] R1, G5, page 34.
[38] Citing PNBL v Minister of Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
The circumstances of the Applicant’s offence were set out in the sentencing judge’s remarks which were before the Tribunal.[39] As a result of a police operation commencing in February 2022, a number of grow houses and persons of interest were identified, one of those was in [B Avenue]. On 9 August 2022 a Honda Accord in which the Applicant was driving with another person [his co-accused] was stopped by police reversing out of the driveway of [the house on B Avenue]. Both occupants of the car were arrested and charged. Bail was refused.
[39] R1, G5.
A search of the property at B Avenue, found it to be a grow house with 307 plants with an estimated value of over $600,000 if sold by the pound or over 1.7 million if sold by the gram. A search of the Applicant and his co-accused’s phones showed they were both involved in the cultivation of cannabis, and a number of other houses of interest were identified. The Applicant was not charged in relation to information on his phone and the sentencing judge referred to it, to show the Applicant ‘was an active participant in the count he is facing, and he was involved in a large, sophisticated operation’.[40]
[40] R1, G5, page 33.
The sentencing judge found that the Applicant’s role was to harvest the cannabis and clean up the rubbish to prepare for the next crop. He also handled large amounts of cash, 50,000, to give to other people. Initially he was paid $200 to $300 per day rising to around $1000 per day during the course of his involvement. He reported having received approximately $20,000 in total for your work. He commenced working in Melbourne (though was not charged with respect to that involvement) and was later offered similar work in Perth as a result of being ‘good at what he did’.[41]
[41] R1, G5, page 33.
In his statement to police the Applicant contented that he became involved in the cultivation of cannabis to afford his studies.
With respect to the seriousness of the offence his Honour (addressing the Applicant and his co-accused) noted:[42]
There is no victim impact statement… you both need to understand this is not a victimless crime. The whole of the community suffers when people cultivate and deal with illegal drugs.
Offences of this type are serious, and your counsel rightly concedes so. The seriousness of your offending is reflected in part by the applicable statutory maximum penalties for these offences. The maximum penalty for possession or cultivation of cannabis with intent to sell or supply is 10 years’ imprisonment, and or a fine not exceeding $20,000.
Cultivating cannabis in a residential rental house is a serious offence and has far-reaching consequences that cannot be ignored. Your actions not only put your own safety at risk, but also the safety of others who reside in the property or live nearby due to the bypassing of electricity. Moreover, your offence undermines the efforts of law enforcement agencies who work tirelessly to prevent the cultivation and distribution if illegal drugs.
[42] R1, G5, page 35.
Having regard to the circumstances of the offence, the sentencing judge did not consider it would be appropriate to suspend the sentencing.[43]
[43] R1, G5, page 36.
His Honour accepted the offending was out of character having regard the Applicant’s lack of prior convictions. He also accepted the Applicant’s actions in giving details of his activities in Melbourne showed remorse through his plea of guilty[44] and a high level of co-operation noting in particular that his undertaking to assist police was a ‘significant factor’ in mitigation.[45] However, the demonstration of remorse in pleading guilty was ‘tempered’ by a lack of insight into the seriousness of the offending and justifying the offending on the basis of needed to send money home to family and pay bills.[46]
[44].R1, G5, page 38.
[45] R1, G5, page 42
[46] R1, G5, page 38.
Having regard to the Applicant’s circumstances the Tribunal considers that the sentence of imprisonment imposed by the court for the Applicant’s offence reflected the objective seriousness of the offence.[47] This is particularly the case when having regard to the fact that he has no previous recorded convictions as reflected in the sentencing comments, and that, noting imprisonment is a sentence of last resort it was not appropriate to suspend the sentence in the Applicant’s case.[48]
[47] Direction No 99 at par 8.1.1.1(1)(c).
[48] R1, G5, page 39.
With regard to the frequency of offending or whether there is any trend of increasing seriousness and whether there was any cumulative effect of repeated offending, [49] the Applicant submitted that as there was only one offence it could not be said to be increasing in seriousness or frequency. Nor, it was submitted, was repeat offending a feature of the Applicant’s offending. The Respondent submitted that the Applicant has been involved in earlier cultivation enterprises in Melbourne, by reference to his own evidence and the sentencing remarks and that his offending extended over a number of months making it appropriate to characterise the offending as frequent.
[49] Direction No 99 at para 8.1.1(d)-(e).
The Applicant’s offending does not fall within the offences listed in 8.1.1(a) or (b). However, the Direction makes it clear that those offences are not an exhaustive list of the offences or conduct which would be considered serious or very serious, and the Tribunal considers there can be no doubt that the Applicant’s offending serious.
While the Tribunal acknowledges the Applicant accepted he had been engaged in the same activity in Melbourne as reflected in the sentencing remarks, the Tribunal did not consider that conduct contributes to the overall assessment of the Applicant’s offending as serious. Similarly, the Tribunal considers that the Applicant’s conduct did not indicate an increase in seriousness such as might impact the assessment of his offending as serious.
While the Tribunal did not regard frequency or repeat offending to be a feature of the Applicant’s conduct or offending, cultivation necessarily entails actions committed over a period of time to achieve the enterprise outcome of saleable drugs. In the Tribunal’s view it is inherent in the nature of the offence, the Applicant’s evidence regarding his involvement and the facts as found by the sentencing judge that the Applicant was engaged in conduct amounting to cultivation of illicit drugs over a period of time. In the Tribunal’s view the Applicant’s acknowledged participation in the cultivation of cannabis over a period as reflected in the sentencing remarks, contributes to an assessment of his conduct as serious as that activity required the Applicant to commit to the criminal activity on a repeated basis (albeit with respect to the one offence).
The other considerations in para 8.1.1 do not appear to apply in the Applicant’s case on the material before the Tribunal.[50]
[50] Direction No 99, paras (f)-(h).
The Tribunal considers that the Applicant was convicted of a serious drug offence. While the Tribunal notes his conduct was mitigated by an early guilty plea and assistance to authorities and weighs those factors in his favour, overall the Tribunal finds that the nature of the Applicant’s offending is serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

The Tribunal must consider the risk to the Australian community (including individuals, groups or institutions) should the Applicant commit further offences. In assessing the risk that the Applicant poses to the Australian community, the Tribunal is required to assess the nature of the harm that would be caused should the Applicant engage in further criminal or other serious conduct.[51] This consideration also requires an assessment of the likelihood of reoffending.[52] There is no statutory constraint on the way risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[53]
[51] Direction 99 para 8.1.2(2)(a).
[52] Direction 99 para 8.1.2(2)(b); Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, 389 [111] cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424, 444 [95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117, 124 [42]–[43]. See also Senior Member Dr Evans-Bonner in CZCV and Minister for Home Affairs [2019] AATA 91, [56]. Although these decisions deal with early directions the observations are relevant to consideration under Direction No 99.
[53] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J who referred to the basis for the assessment of the risk of reoffending as requiring a ‘rational and probative basis’.
In considering the need to protect the Australian community from harm, paragraph 8.1.2(1) of Direction No 99 requires the Tribunal to have regard to 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. It directs that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 99 relevantly provides that in assessing the risk that may be posed by the non-citizen to the Australian community, the Tribunal must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(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…
In cases where consideration is being given to whether to refuse to grant a visa, the Tribunal is also directed to consider 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.[54]
[54] Direction No 99, para 8.1.2(2)(c).
The Applicant acknowledged that his offending was serious but that he presented no risk of reoffending[55] noting the following factors:
[55] A1, pages 1-2; R1, G8, pages 50-53.
·The Applicant demonstrated a high level of cooperation and remorse, recognised by the sentencing judge. He plead guilty to the offence and gave assistance to authorities in identifying co-offenders, exposing himself to danger in doing so. He is remorseful and has been punished for his offence;[56]
[56] ASFIC at [8]-[12]; R1, G5, pages 33, 37, 37, 42, 51.
·This was the Applicant’s first conviction and was accepted by the sentencing judge to be ‘out of character’. This is confirmed in supporting statements of Ms TOV and Ms TDN;[57]
·The Applicant’s offending was due in part to financial hardship as a result of COVID-19 and his need to pay study fees. He no longer faces financial hardship and there is no financial incentive to engage in further offending as:[58]
o   He is not on a student visa, is not studying and does not need to pay fees;[59]
o   His family in Vietnam is not facing financial hardship arising from COVID-19;[60]
o   Ms TOV has offered to sponsor him with support for necessities;[61]
o   Ms TDN has also indicated she will provide financial support;[62] and
o   He has an offer of work as a receptionist with Ms TTN.[63]
·His offending was also the result of associating with ‘the wrong group of friends’ with whom he is no longer associated, noting that he assisted police in identifying co-offenders.[64]
·At the time of the offence the Applicant had a limited understanding of the illegal nature of drug cultivation and the dangerous impacts of cannabis. He has demonstrated a desire to educate himself about the harmful impacts of his offending including by undertaking drug education courses. This has removed this risk factor.[65]
·The delegate’s concern that the Applicant’s commitment to not reoffending was untested in the community should be given limited weight as he had been in detention and it is illogical to continue his detention on this basis. He has also behaved in a lawful and appropriate way in prison and immigration detention.
[57] ASFIC at [13]-[15]; R1, G5, page 38; R1, G9 and G10.
[58] ASFIC at [16]-18].
[59] A1, pages 2-3; R1, G8, page 52.
[60] A1, page 3; R1, G8, page 52.
[61] A1, page 4; R1, G8, page 53; R1, G9.
[62] R1, G10.
[63] A1, page 4.
[64] ASFIC, at [19]-[21]; R1, G5, page 38; A1, page 2.
[65] A1, pages 2-3; R1, G8, page 51; G11.
The Respondent submitted that:
·The seriousness of the Applicant’s offending is such that any risk is unacceptable noting that if the Applicant’s offending were to be repeated the nature of harm which would be caused would include physical and psychological harm to members of the Australian community. The types of harm which could be caused by the continued sale or supply of cannabis are outlined in the Department of Health’s National Drug Strategy framework.[66] Such offending carries broader risks to the community which are not irrelevant to the Tribunal’s considerations;[67]
·There is insufficient evidence for the Tribunal to be satisfied that the Applicant will not reoffend noting that:
oHe had a ‘medium security rating in prison’;
oHis motivation was financial and his support in Australia is uncertain and did not prevent his prior offending. His financial circumstances are arguably worse now following a period in prison and detention;
oThe Applicant claimed his offending was in part due to a lack of English skills and limited employment options, factors which are still present and pose a risk;
oHe claimed a limited understanding of the illegal nature of his activities and the threats of cannabis and claims to have attended training, but there is no evidence as to how those courses might mitigate the Applicant’s risk of future offending (noting he is not a drug user so drug abuse courses would be of limited assistance in rehabilitation for the Applicant);
oThe sentencing judge noted the Applicant had a lack of insight into this offending and had justified his actions on the basis of needing money;
oThe protective factors he relies on were not protective factors in the past; and
oRecords indicate the Applicant remains in contact with friends in other custodial facilities creating a risk of association with anti-social peers.
[66] National Drug Strategy 2017–2026 | Australian Government Department of Health and Aged Care at page 33
[67] Cf Buntin v Minister for Immigration Citizenship and Multicultural Affairs [2023] FCA 1055 (Buntin).
Nature of the harm
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[68]
[68] Direction No 99 para 8.1.2(2)(a).
As noting in the sentencing remarks ‘Cultivating cannabis in a residential rental house is a serious offence and has far-reaching consequences that cannot be ignored’.[69] His Honour noted the risk to the safety of those living near the grow house and the undermining of attempts by authorities to deal with the cultivation and distribution of illicit drugs. His Honour also quoted observations from the Western Australia Court of Appeal case[70] regarding the sentencing considerations applying in large-scale commercial cultivation of cannabis where it was observed by McLure P that:
The court has since 2001 repeatedly stated that it takes a more serious view of the threat the cannabis trade poses to society and the increased prevalence of it. The risk correlation between the use of cannabis and mental illness and progression to harder drugs is a familiar theme in sentencing materials in more recent times.
[69] R1, G5, page 35.
[70] Lester v the State of Western Australia [2011] WASCA 128 at [21].
With respect to cannabis, the Respondent drew the Tribunal’s attention to the National Drug Strategy framework which notes that:[71]
As the most widely used of the illicit drugs in Australia, cannabis carries significant burden of 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.
[71] National Drug Strategy 2017–2026 | Australian Government Department of Health and Aged Care at page 33.
As the sentencing judge noted while there is no identified victim of the Applicant’s offending, it is not a ‘victimless crime’. A similar point was made in RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[72] by McKerracher J who noted at [48]:
It may also be accepted that there is a degree of separation in the committing of certain offences between the criminal act and any potential harm. Such offences encapsulate conduct that does not necessarily require an element of harm to another person to attract criminal sanction and can be distinguished from other crimes such as those involving direct violence where the harm arises immediately upon the doing of the act. … the critical feature of these acts is that they attract criminal sanction because committing them creates a greater risk that much more serious conduct that does cause direct and significant harm could result.
This passage of his Honour’s decision was cited with approval by Colvin J in JNMKv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[73] Although the Court was considering a different type of offending in RQRP, the general principle applies with respect to offences in respect of which there is no identifiable victim or where the harm caused to the community is more general in nature.
[72] [2021] FCA 266.
[73] [2021] FCA 762 at [43]–[45].
While it might be that the Applicant’s criminal activities did not cause harm of the kind which was directly identifiable, or had no identifiable victim, that does not diminish the serious harm which may flow from the offending, in this instance the illicit drug trade in Australia, harm which the offences are designed to protect against. The Applicant’s offences attract serious criminal sanction because of the risk of harm to the community the trade in illicit drugs represents.
The Respondent made submissions with respect to the decision of the Federal Court in Buntin v Minister for Immigration Citizenship and Multicultural Affairs [2023] FCA 1055 (Buntin) contending that the decision was wrongly decided and that ‘offending in general’ will have ‘broader financial and other consequences to the justice and health systems’ which was relevant to the Tribunal’s considerations. Respectfully, even if it were open to the Tribunal to disagree with her Honour’s reasoning in Buntin, which the Tribunal considers it is not, the Tribunal does not consider the issue of the border effects of offending in general to be of particular significance in the Applicant’s case where the impacts of offending with respect to and arising from the cultivation and trade in illicit drugs are well documented, including as reflected in the sentencing judge’s remarks. The Tribunal does not consider the border impacts of general offending to add to the assessment of this consideration Applicant’s case.
The Tribunal finds the harm which would be caused to members of the Australian community were the Applicant to reoffend in a similar manner would be serious.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[74]
[74] Direction No 99 para 8.1.2(2)(b).
As noted earlier, Direction No 99 provides that in assessing likelihood of the Applicant engaging in further criminal or other serious conduct the Tribunal is to take into account information and evidence on the risk of the noncitizen re-offending and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence. In cases where consideration is being given to whether to exercise the discretion to refuse a visa, the Tribunal is also directed to consider 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.[75]
[75] Direction No 99, para 8.1.2(2)(c).
The Applicant submits he presents no risk of reoffending.
There were not records of psychological or other risk assessments related to the Applicant’s conduct or offending before the Tribunal. The Respondent pointed to the fact the Applicant was a ‘Medium’ security risk classification in the prison system, however there is no material to suggest that classification related to the risk of reoffending on release and the Tribunal infers it relates to his risks within the custodial system. As such the Tribunal does not afford that classification much weight in assessing the likelihood he would reoffend.
As noted above, the Applicant submits there is no risk he will reoffend. It was contended he has demonstrated he regrets his offending, has admitted guilt, and assisted the authorities regarding other members of the cultivation operation. The Applicant’s statements of remorse were supported by other witnesses who observed he had paid a high price for his offending and regretted it.[76] The Tribunal accepts that the Applicant is remorseful and that his remorse weighs in his favour in the assessment of the likelihood of reoffending. However, as reflected in the sentencing comments, this is tempered by the Applicant’s minimisation of the seriousness of his offence reflected in justification of that offending by reference to of financial need. His explanations as to why he will not reoffend raise similar concerns to the extent they were based on his current lack of financial need and guarantee of employment as protective factors.
[76] Transcript, page 48.
The Applicant pointed to several courses he completed in prison or detention as alerting him to the harmful effects of cannabis and improving other life-skills including his English language skills including undertaking English language courses in detention.[77] The Applicant provided evidence of having completed the following courses:[78]
·Drug and Alcohol Abuse 101 in September 2023;
·Workplace Drug Use – An HR Guide in October 2023; and
·Attention Deficit Disorders: ADD and ADHD in October 2023.
Detention records indicate that the Applicant attends ‘many activities and classes’ and refers to his desire to undertake English language study offered in detention as well as undertaking cooking and computer courses.[79] The Tribunal considers the Applicant’s attempts to use his time in detention to improve his language and job readiness skills is commendable and weighs in his favour. However, as there are no assessments linking these efforts to a reduced risk of reoffending, or indeed any professional evidence to link the content of these programs to factors which lead to the prior offending. The Tribunal is not able to place significant weight on the completion of these courses as a protective factor against further offending. However, the Tribunal accepts they demonstrate a commitment by the Applicant to self-improvement and education which weighs in his favour.
[77] A1, pages 3-4.
[78] R1, G11.
[79] A1, pages 5-18 see for example pages 9,10 and 12.
The Applicant submitted he has an offer of employment from Ms TTN at her beauty salon in Melbourne and that this will ensure he is not in a position where he would reoffend due to financial hardship or need. While the Tribunal considers this to be a protective factor against further offending, the degree to which these arrangements can be relied upon is lessened by the fact Ms TTN is herself on a Bridging visa. There was no information before the Tribunal on which to make any assessment of the prospects for her obtaining a permanent visa (she told the Tribunal she was an applicant for protection) or the length of time she may be permitted to remain in the country. In such circumstances the Tribunal places less weight on these arrangements as a protective factor providing the Applicant sufficient financial security to avoid the risk of reoffending during the period he is in the community on a Bridging visa.
The Applicant also claimed to have the promise of social and financial support from Ms TOV and Ms TDN. In the case of Ms TOV, the Applicant’s adoptive ‘aunt’, her visa status was uncertain, however she has been in Australia more than 10 years and the Tribunal accepts on that basis she is likely to remain for the foreseeable future and to be in a position to provide some support the Applicant while he is on a Bridging visa. However, Ms TOV was in Australia during the period the Applicant offended and was in contact with the Applicant prior to his offending, providing accommodation and food for him when he was a student. She told the Tribunal that after he moved to Melbourne, she no longer provided support because ‘he’s already grown up’[80] and that she considered that the Applicant was grown up now and ‘so we don’t need to worry about him’. As her relationship with and support from Ms TOV was not sufficient in the past to prevent the Applicant offending the Tribunal considers less weight can be placed on her support as a protective factor against the Applicant reoffending during the period he would be in the community on a Bridging visa. .
[80] Transcript, page 57.
Ms TDN, the Applicant’s aunt arrived after the Applicant and is also on a Bridging visa awaiting determination of her partner visa application. Again, there was insufficient evidence on which to base any finding about the prospects of her obtaining a permanent visa to remain in Australia or the length of time she may remain, noting that she told the Tribunal her husband (and sponsor) had died. As discussed with counsel while her circumstances may still entitle her to a visa, it is not clear whether that is the case on the information before the Tribunal. At present she remains on a temporary visa and while the Tribunal considered her desire to support the Applicant to be genuine the degree to which she will be able to do so remains untested and is likely to depend on her own immigration status.[81] The Tribunal accepts Ms TDN, Ms TOV and Ms TTN offer a prosocial network of support for the Applicant in the community. However, the Tribunal notes those supports were available to the Applicant when he previously offended and were not sufficient support to prevent past offending. This casts some further doubt on the capacity of these supports to act as a protective factor against reoffending.
[81] Transcript, page 49.

The Tribunal accepts the Applicant has the benefit of some additional insight into the consequences of his offending behaviour including the impact on his immigration status. The Tribunal also considers the Applicant was relatively young at the time of his offending and is likely to have benefited from additional maturity gained during his imprisonment and detention. This is likely also to provide some protection against reoffending. However, in the absence of any assessment of the Applicant’s current risks and the fact his rehabilitation is untested, the Tribunal does not consider the evidence supports a finding that the Applicant presents no risk of reoffending.
The Applicant submits that it is illogical to rely on the fact the Applicant’s rehabilitation is untested in the community as a basis to refuse the visa as he has remained in detention since conviction. The Tribunal has some sympathy for the difficulty the Applicant faces is establishing he is rehabilitated and will not reoffend without the opportunity to demonstrate that commitment in the community. However, the Tribunal does not accept that it is illogical to factor the lack of testing of his rehabilitation in the community in assessing the likelihood of reoffending. This is particularly the case where there are a lack of professional assessments of risk or rehabilitation supporting the Applicant’s claim to have been completely rehabilitated (in the sense of presenting no risk of reoffending) and the fact the Applicant is largely relying on prosocial supports which were not a protective factor against offending in the past.
In such circumstances the Tribunal considers the untested nature of his commitment to not reoffending and to the effectiveness of his claimed programmatic interventions to be relevant to assessing the likelihood of his reoffending and weighing risk and considers the lack of evidence rehabilitation and the fact his commitment is untested weigh against the Applicant in terms of assessing the likelihood he will reoffend.
The issue of the risk presented by anti-social peers was raised by the Respondent who contended that the evidence suggested the Applicant had maintained contact with contacts formed in prison and that such contacts would increase a risk of reoffending. Records from the prison system indicated that the Applicant ‘has utilised the mail service to predominantly correspond with friends in other custodial facilities’’.[82] When asked about his contact at the hearing the Applicant said he did not have contact with any of the people who had introduced him to the cannabis cultivation enterprise, however he accepted he was in contact with some Vietnamese people who he met in prison. He testified that some of them those people had grown cannabis like he had.[83] However, he said they were not his co-accused. When he was asked if he felt it was good idea to keep in touch with such people when he the was trying to ‘turn over a new leaf’ he said they were not close and ‘in prison, they can ring you, but you cannot ring them’.[84]
[82] R2, page 88.
[83] Transcript, page 30.
[84] Transcript, page 30.
Ultimately there was limited information regarding these contacts. The Tribunal has some concerns about protection contacts with others with offending histories given the limited nature of the Applicant’s prosocial network and the fact he was, on his own evidence, introduced to working in drug cultivation through connections in the community. In the Tribunal’s view anti-social peers increase the risk of reoffending in the Applicant’s circumstances. However, given the limited evidence about the identity and nature of these contact the Tribunal places limited weight on the evidence of such links in assessing the likelihood of reoffending.
Considering the evidence as a whole and having regard to the lack of evidence to support a claim to have been rehabilitated and the reliance placed on existing prosocial networks as a protective factor against reoffending where those networks have previously been insufficient to support the Applicant to maintain a prosocial lifestyle, the Tribunal considers there remains a low to moderate risk of reoffending.
As noted above, the Bridging visa is not a permanent vias. The purpose of the visa is to enable the Applicant to be in the community while he awaits the outcome of the judicial review application with respect to the Protection visa. The Tribunal considers the short stay nature of the Bridging visa does act to lessen the risk of reoffending in the Applicant’s case and that risk of reoffending would be closer to the low end of that spectrum during the likely period of the Bridging visa.
Conclusion on the protection of the Australian community
With regard to the protection of the Australian community, the Tribunal finds that the Applicant’s offending was serious. The Tribunal considers that serious harm, in particular serious financial harm, would be caused to members of the community were the Applicant to reoffend in a similar manner. While the Tribunal considers there is a low to moderate likelihood of the Applicant engaging in further criminal or other serious conduct that risk is at the lower end of that range given the limited stay nature of the Bridging visa. However, the Tribunal notes his prior serious offence was committed while the Applicant was on a limited stay visa and Australia has a low tolerance of any criminal conduct in such circumstances.[85]
[85] Direction No 99 at para 5.2(4).
On balance, the Tribunal finds that the protection of the Australian community weighs moderately in favour refusal of the Applicant’s visa.
Family violence committed by the non-citizen
Paragraph 8.2 of Direction No 99 provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
There is no evidence or information before the Tribunal to suggest that the Applicant has engaged in offending or conduct that constitutes family violence and therefore this consideration is not relevant in the Applicant’s circumstances.
The strength, nature and duration of ties to Australia
Paragraph 8.3 of Direction No 99 states that decision-makers must consider the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, permanent residents or people who have a right to remain in Australia indefinitely, when making a decision.
Paragraphs 8.3(2) and (3) of Direction No 99 direct decision-makers to consider the non-citizen’s ties to any children who are Australian citizens, permanent residents or people who have an indefinite right to remain in Australia, and the strength, duration, and nature of any family or social links to members of the Australian community who are citizens, permanent residents or people who have an indefinite right to remain in Australia.
The Applicant contended that his ties to Australia, principally through Ms TOV and Ms TDN as his biological and ‘adopted’ aunts and through an offer of employment with Ms TTN weigh in favour of granting the Applicant the visa.[86]
[86] ASFIC at [31]-[35].
The Applicant came to Australia in September 2019 when he was 19 years old.[87] Since arriving he has made one return visit to Vietnam in January 2020.[88] He came on a student visa and initially undertook study at Murdoch University and then transferred to Hilton Academy in Melbourne which was more affordable.[89] His student visa expired in March 2023 when he was in prison.
[87] R1, G16.
[88] R1, G16; Transcript, page 34.
[89] A1, page 1.
While submitted materials made reference to the Applicant having a fiancé in Australia he confirmed at the hearing that they separated when he entered prison (in August 2022) and he is currently single.[90] As the Applicant indicated he has not been in a relationship with Ms B for some time and did not refer to her at the hearing as a family member of tie to Australia the Tribunal does not give any weigh to that relationship in the context of its considerations. In any evidence there were no statements from Ms B before the Tribunal.
[90] Transcript, pages 31-32 and 38.
The Applicant claims he wishes to remain and ‘settle down’ Australia.[91] He plans to live in Melbourne, to live with Ms TDN and work from Ms TTN.[92]
[91] Transcript, page 35.
[92] A1, pages 3-4.
Paragraph 8.3(1),(2) and (3) of Direction No 99 apply to the impact of the decision on members of the Applicant’s family or social links who are Australian citizens, Australian permanent residents or who have a right to remain in Australia on a permanent basis. The Respondent submitted that as the Applicant’s aunt, Ms TDN was the holder of a Bridging visa A, those considerations for do not arise and no weight should be placed on the Applicant’s ties to Ms TDN. Further, while it appeared Ms TOV has been in Australia for an extended period, there was no evidence that Ms TOV or Ms TTN were Australian citizens, Australian permanent residents or who have a right to remain in Australia on a permanent basis either and as such links to them should not be given weight under those considerations.
The Tribunal accepts that the evidence does not establish that any of the claimed ties to Australia qualify for the consideration set out in par 8.3(1),(2) and (3). However, paragraph 8.3(4) provides that decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community having regard to:
a)the length of time the non-citizen has resided in the Australian community, noting that:
i.       considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.      more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.     less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
It is appropriate to consider the Applicant’s claimed ties in that context.
Applying the considerations in paragraph 8.3(4) the Tribunal considers that the Applicant’s ties to Australia are not strong and that limited weigh should be placed on them. The Applicant came to Australia as a young adult and spent his formative years in Vietnam[93] where his immediate family remains. Further, other than attendance at Vietnamese community events (testified to by Ms TTN) there is no evidence that the Applicant engaged positively in the community during the relatively brief period he was here prior to the conduct forming part of his cultivation offence commencing.[94] In this regard, the Tribunal notes while the sentencing comments refer to the Applicant having commenced participation in cultivation activities in Melbourne, it is not clear how long he was engaged in that activity prior to commencing at the Perth address in relationship which he was arrested, in June 2022. That was around two and a half years after he arrived in Australia. Even taking the commencement of the Applicant’s offending to be in 2022, the Tribunal considers that the Applicant commenced offending relatively soon after arriving in Australia and that he demonstrated little in the way of positive contribution to the community other than attendance at university and college and employment at a butcher in Melbourne. The Tribunal places limited weight on his contribution to the community prior to his offending on this basis.[95]
[93] Paragraph 8.3(4)(a)(i).
[94] Paragraph 8.3(4)(a)(ii).
[95] Paragraph 8.3(4)(a)(iii).
The Applicant only has one direct family link in Australia, his aunt.[96] She also indicated she has children in Australia though no details were provided about those children or the impact of a decision on them and the Tribunal joins consideration of ties to them with those of their mother, Ms TDN. While the Tribunal accepts the Applicant is close to Ms TDN she arrived in Australia around the time of his arrest (in July 2022) and while he was living in Perth and as such has had limited in person contact with him while since he has been in prison (August 2022). She did not express any concerns about the impact his return would have on her but did express a desire to support him in Australia.[97] While she wants to support the Applicant and remain in Australia herself, she is on a temporary visa and has been here a relatively short time. As such the Tribunal places limited weight in the Applicant’s ties to Ms TDN and her family.
[96] A1, page 20; R1, G10; Transcript pages 46-49.
[97] A1, page 20; Transcript pages 46-50.
Ms TOV is the Applicant’s ‘adopted’ aunt who supported him on his initial arrival as a student. The Applicant lived with her in Perth prior to moving to Melbourne and would do so again for a short period if he is in the community but subject to parole conditions (which he would be until the end of February 2024).[98] Ms TOV testified that she also has children here who sponsored her to come to Australia. No other information was provided regarding those family members and the Tribunal has considered ties to them in connection to their mother, Ms TOV. Ms TOV has expressed support for the Applicant and indicated that she will support him. She did not express any concerns about the impact his return would have on her but did express a desire to support him in Australia.
[98] Transcript, pages 54-58.A1, page 21.
The Tribunal accepts the Applicant has ties to Australia through Ms TOV and her family. However, as contact with the Applicant has been relatively limited since he moved to Melbourne in 2020 and the relationship is one of a close friend rather than family member, the Tribunal places limited weight on that relationship as a tie to Australia.
Ms TTN met the Applicant through the Vietnamese community in Melbourne and is a friend. She is the holder of a Bridging visa. She has offered the Applicant employment in her beauty salon as a receptionist.[99] She has several staff at the salon including working there herself. While Ms TTN was supportive of the Applicant remaining in Australia, she did not express any concerns regarding the impact on herself or her business should he not be granted a visa. The Tribunal accepts the Applicant has ties to Australia through Ms TTN. However, as the relationship is one of a friend and prospective employer rather than family member and Ms TTN is herself currently only in Australia on a temporary basis, the Tribunal places limited weight on that relationship as a tie to Australia.
[99] Transcript, pages 42-46; A1, page 19.
On balance, the Tribunal does not consider the Applicant’s ties to Australia to be strong and places limited weight on them. The Tribunal finds this consideration weighs neither for nor against refusing the Applicant’s visa.
Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of Direction No 99 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. The Tribunal must make a determination whether cancellation or refusal under s 501 is, or is not, in the best interests of children who are under the age of 18 at the time the decision is expected to be made. 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. Direction No 99 goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant.
There is no evidence or information before the Tribunal to suggest that the refusal of the visa under s 501 would impact the best interests of any children in Australia. The parties submitted this consideration is not relevant in the Applicant’s circumstances and the Tribunal finds it weighs neither for nor against the exercise of discretion to refuse the visa.
Expectations of the Australian community
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction No 99 provides 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 to not allow such a non-citizen to enter or remain in Australia.
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.
The Direction notes that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of particular kinds. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through conduct, in Australia or elsewhere, listed in sub-paras 8.5(2)(a)–(f). Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered ‘very seriously’ or ‘serious’.
Paragraph 8.5(3) of Direction No 99 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. In doing so, para 8.5(3) arguably further qualifies the ‘norm’ expressed in para 8.5(1), which refers to the ‘unacceptable risk’ of conduct being engaged in. This makes it clear that a ‘measureable [sic] risk’ of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending.
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.
The Applicant accepted that he had breached Australian law but contended that he had been punished for his offending and there was no risk of reoffending. As such the Applicant contended ‘the Australian community would not expect that the Applicant should continue to be detained rather than released in the community’.[100]
[100] ASFIC at [37]-[38].
The Respondent contended that the Applicant had breached the norm stipulated in paragraph 8.5(1) and in accordance with guidance in 5.2(2)-(5) of Direction No 99 the Australian public would expect that the Applicant would not be granted the visa on account of his offending. It was contended this consideration weighed heavily in favour of refusal.
While the Applicant’s offence was not of the type listed in sub-paras 8.5(2)(a)–(f), the Tribunal has found that his offence was serious and as such the Australian community would expect that the Applicant would not hold a visa. In addition, there is an expectation that non-citizens obey Australian law and that evidence to the contrary must weigh in favour of refusing them a visa. This is norm expressed in the Direction.
Although the expectations of the Australian community weigh against the Applicant, the Tribunal must decide in the exercise of its discretion the weight to be afforded this consideration. In this regard the Tribunal has regard to the principles expressed in Direction No 99, in particular with respect to the Applicant’s circumstances paras 5.2 (2) and (5) as highlighted by the Respondent, this includes the expectation that those who have engaged in criminal conduct forfeit the privilege of staying in Australia, that the government can and should refuse entry to people who engage in conduct in Australia that raises serious character concerns and that:
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

The Applicant held a limited stay visa when he committed a serious offence against Australian law and as such there is a low tolerance for his criminal behaviour. He has made little in the way of positive contributions to the community and has limited ties to Australia. While the Applicant has serviced his punishment for that offence and regrets it, the Tribunal does not accept that this equates with a community expectation that he would be granted a visa to enter the community rather than remain in detention even if there is a low risk of him reoffending. While the Applicant suggested that as the question of his ‘entry’ into Australia did not arise as he is already here, the Tribunal considers the principles are directed towards entry to the Australian community, including for those who are physically onshore but detained pending the issuing of a visa to enter the community.
Having regard to the norm stipulated in Direction No 99, the principles espoused in the Direction No 99 and the circumstances of the Applicant’s case, the Tribunal finds that the expectations of the Australian community weigh heavily in favour of the visa being refused.
Other considerations
Paragraph 9 of Direction No 99 states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims;
d)impact on Australian business interests.
Legal consequences of decision under section 501 or 501CA
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[101]
[101] Direction No 99 para 9.1.
The Tribunal is directed to ‘be mindful’ that unlawful non-citizens are liable to removal from Australia as soon as practicable, and in the meantime, detention.[102]
[102] Direction No 99 para 9.1(1).
If a person does not hold a visa, they are an unlawful non-citizen.[103] Under s 189 of the Migration Act, as an unlawful non-citizen, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[104]
[103] Migration Act s 15.
[104] 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].
As noted earlier, the Applicant does not hold a visa. The last visa he held was a student visa which expired while he was in prison. The Applicant applied for a Protection visa on 7 August 2023. The Applicant was found not to be owed protection by both the Department on 21 August 2023[105] and on review by the Tribunal, differently constituted, on 23 October 2023.[106] His application for protection is taken to be ‘finally determined’ pursuant to section 5(9) of the Migration Act.[107] However, the Applicant applied to the FCFCoA for a review of that decision on 22 November 2023.[108] The grounds for review were not disclosed to the Tribunal and the Tribunal understands the application for judicial review is awaiting consideration.[109] It was accepted by the parties that the Applicant would not be removed until the judicial review application had been determined.
[105] R1, G14.
[106] R3.
[107] For the purposes of s 189.
[108] RSFIC, page 2.
[109] R2, TB1.
As noted above, the legal and factual consequences of the decision to refuse the Applicant a Bridging visa is not that the Applicant would be subject to removal from Australia.[110] This is because he has an application for judicial review underway. The Tribunal accepts that the Applicant may, at some point in the future, be removed under s 198 once judicial review proceedings are determined and if the application for review is dismissed. However, the decision to grant or refuse him a Bridging visa would not be determinative in that regard noting however that refusal under s 501 would have implications for the Applicant’s capacity to apply for other classes of visas to remain in Australia (if the refusal of his Protection visa application is upheld).
[110] AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR at [70].
Direction No 99 provides that claims which may give rise to international non-refoulement obligations can be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider refusal of a visa under section 501 of the Migration Act. Where such claims are raised, they must be considered.[111]
[111] Direction No 99 para 9.1.2(1).
In Plaintiff M1/2021 v Minister for Home Affairs[112] (M1/2021) the High Court considered the question:
In deciding whether there was another reason to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), was the Delegate required to consider the plaintiff’s representations made in response to the invitation issued to him pursuant to s 501CA(3)(b) of the Migration Act, which raised a potential breach of Australia’s international non-refoulement obligations, where the plaintiff remained free to apply for a protection visa under the Migration Act?
[112] [2022] HCA 17 (Keifel CJ, Keane, Gordon and Steward JJ (with whom Gageler J agreed)).
The High Court found that in making determination under s 501 (in that case a mandatory cancellation case under a previous version of the direction) where the plaintiff remained free to apply for a protection visa under the Migration Act:[113]
(1) the Delegate was required to read, identify, understand and evaluate the plaintiff's representations made in response to the invitation issued to him under s 501CA(3)(b) that raised a potential breach of Australia's international non‑refoulement obligations;
(2) Australia's international non‑refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and
(3) to the extent Australia's international non‑refoulement obligations are given effect in the Migration Act, one available outcome for the Delegate was to defer assessment of whether the plaintiff was owed those non-refoulement obligations on the basis that it was open to the plaintiff to apply for a protection visa under the Migration Act.
[113] M1/2021 at [9].
The Applicant did not raise non-refoulement claims in submissions to the Tribunal. However, information regarding his claims for protection was before the Tribunal including in the decisions of delegate refusing his Protection visa application and of the Tribunal affirming that decision on review. It was accepted that the Applicant had been found not to be owed protection but noted that the decision to refuse the Applicant a Protection visa was the subject of a judicial review application and that the Protection visa process was the appropriate avenue for consideration of any issues of non-refoulement, consistent with the approach set out M1/2021 and in Direction No 99.[114]
[114] Direction No 99 at par 9.1.2(2).
The decision of the Tribunal with respect to the Applicant’s Protection visa application indicates that in that application he claimed he left Vietnam to study in Australia ‘however after many years living here he has differing political beliefs from the Vietnamese Communist government’ and believes that due to his political opinions he will be harmed.[115] The delegate of the Minister determining that application summarised the information provided by the Applicant with respect to his claims as follows:[116]
[115] R3, page 2.
[116] R3, pages 2-3.
The applicant believes the Vietnamese government is a dictatorship regime. There is no freedom in Vietnam. The Vietnamese officials are corrupted at all levels. The Vietnamese authorities are oppressing Vietnamese citizens and silence them to maintain their power.
Vietnam is a one political party system, no opposition political party is allowed. Those who criticise the Vietnamese government are subject to arrest, harassment and long term imprisonment.
In Vietnam, poor people are treated poorly. Bribery is everywhere. The authorities take land from people and resell to investors for profit. The Vietnamese judicial system is corrupt. People are unfairly sentenced and imprisoned if they oppose the authority’s decision.
The applicant believes Vietnamese authorities kidnap, arrest and silence political activists. The applicant could not do much in Vietnam. They were just a student and was afraid to be imprisoned. They wanted to go to a western country to study and find relevant support to be stronger and be a voice for their people. The applicant has an opportunity to support their people in Australia.
The applicant sees democracy, human rights and freedom of religion in Australia. Living in Australia has allowed them to learn more and freely express their opinions about the Vietnamese government.
The applicant began to learn about different human rights organisations in Australia, such as Viet Tan. They have been following bloggers who speak up against Vietnamese government’s wrong doings. The applicant has learnt of the many wrong doings that the Vietnamese government has committed which is unknown to the Vietnamese people in Vietnam. Information and media channels are controlled by the government.
The applicant has joined Viet Tan’s Facebook group. Viet Tan is a pro-democracy organisation who fight for human rights in Vietnam. The organisation is deemed a terrorist group and their members are subjected to severe punishment and arrest.
The applicant has publicly liked and shared articles from Viet Tan and other human rights group on their personal Facebook account.
They often access online information to research and learn about the Vietnamese authority’s wrong doings.
The applicant could not attend protests or activities because they study fulltime and work to support their living. They did not have time to participate in their activities as they were done during the day when they were either working or attending school.
The applicant believes they will be arrested and beaten upon returning to Vietnam because they have participated and shared articles against the Vietnamese government’s interests and their political views oppose the government. Many bloggers in Vietnam have been arrested.
In Vietnam, it is forbidden to speak up on social media against the Vietnamese government. If anyone posts or shares bad news about the State, the person will be arrested, imprisoned, tortured and beaten. The applicant is afraid the government will sentence them for smearing the Vietnamese communist party with intention to overthrow the State.
They shared information on social media because they believe it is the right thing to do.
The applicant did not know they were entitled to lodge a protection visa until they were put in immigration detention.
After a period of living in Australia, the applicant had access to uncensored information about the Vietnamese government. The applicant decided to go back to Vietnam to visit their family one last time. They were not actively sharing information online at the time when they returned to Vietnam, which could be the reason why they were not arrested at the time. However, they would be arrested if they returned now.
The delegate refused to grant the visa on the basis that the Applicant was not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed to his receiving country, there was a real risk he would suffer significant harm. The Tribunal affirmed that decision on similar grounds, finding that the Applicant did not hold anti-government opinions with respect to the authorities in Vietnam and was not satisfied that his Facebook posts had been made other than for the sole purpose of strengthening his refugee claims in Australia. The Tribunal found there was no real chance the Applicant would be harmed for any of the reasons in s 5J of the Migration and was not satisfied the Applicant had a well-founded fear of persecution. The Tribunal further found that the Applicant ‘is not and would not be perceived to be a supporter of dissidents or groups opposed to the government in Vietnam’ and that there were no substantial grounds for believing there was a real risk he would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia.[117]
[117] R3, pages 10-11.
When questioned by the Tribunal about his concerns regarding returning to Vietnam, the Applicant responded:[118]
[118] Transcript, pages 37-38.
SENIOR MEMBER: And can you tell me why it is that you don’t want to return to Vietnam.
INTERPRETER: Because there is no human right in Vietnam. And the government exploit the people. I be discriminate against if I been convicted here. I won’t be able to work or do anything in Vietnam.
SENIOR MEMBER: So, sorry, say that again. You’d be discriminated against if?
INTERPRETER: I won’t be able to work or do anything in Vietnam.
SENIOR MEMBER: Be discriminated against why?
INTERPRETER: They don’t like the fact that you in prison and they wouldn’t employ you.
SENIOR MEMBER: How would they know that you’d been in prison?
…
INTERPRETER: I think if Australia expel me to Vietnam, there will be paperwork to that effect.
SENIOR MEMBER: Is there any reason to think if you left and returned to Vietnam voluntarily, that the authorities would be creating any record that you had a prison record in Australia that would be accessible to employers in Vietnam?
INTERPRETER: I don’t know. That’s how I think, but I don’t know.
The Tribunal also asked the Applicant about the decision by the Minister and the Tribunal to refuse the Applicant’s Protection visa application:
SENIOR MEMBER: So how about you – yes. So the delegate of the department and the tribunal, separate tribunal, that considered your application for a protection visa ‑ ‑ ‑
INTERPRETER: Yes.
SENIOR MEMBER: ‑ ‑ ‑ did not accept that you faced a risk of persecution or a risk of significant harm for the reasons that you claimed in your protection visa application if you are returned to Vietnam – if you return to Vietnam. What do you say about that, those findings?
INTERPRETER: I think I’d be arrested if I return to Vietnam.
SENIOR MEMBER: And why is that?
INTERPRETER: Because I shared articles published against Vietnamese government.
SENIOR MEMBER: So the tribunal that considered your application found that you wouldn’t face a risk of attention from the authorities based on those posts and did not accept that you held political views that were adverse to the Vietnamese authorities. What would you say about those findings?
INTERPRETER: I don’t know. Yes. I’m appealing to the Federal Court.
SENIOR MEMBER: And what are you saying is wrong with that decision?
INTERPRETER: But I knew people who share articles and also put on the website articles against the government. They were arrested when they returned to Vietnam, and I don’t think that I’d be an exceptional case.
SENIOR MEMBER: So which people were arrested when they returned to Vietnam?
INTERPRETER: The bloggers and the politicians.
SENIOR MEMBER: Which people? Who were they?
INTERPRETER: Overseas.
SENIOR MEMBER: Who were these people?
INTERPRETER: Organisation of the people who involve in politics. I can’t remember their names.
SENIOR MEMBER: So people involved in politics have been arrested when they return to Vietnam?
INTERPRETER: Yes.
SENIOR MEMBER: Other than posting those posts that you made on Facebook, is there any reason to think the authorities would regard you as someone who was involved in politics?
INTERPRETER: Yes.
SENIOR MEMBER: And why is that?
INTERPRETER: Sorry?
SENIOR MEMBER: Why would they consider you someone involved in politics?
INTERPRETER: Because I put articles that reflect the policies in Vietnam.
SENIOR MEMBER: But other than the articles, is there any reason that they would – any reason they would think you’re involved in politics?
INTERPRETER: No.
The Applicant has been found not to be a person in respect of whom Australia has protection obligations under ss 36(2)(a) or (aa) or the Migration Act. While he raised before the Tribunal what appeared to be potentially a new or additional claim that he may suffer harm due to his convictions in Australia, no corroborating evidence or country information was provided to substantiate that claim. The Tribunal notes that it was submitted that the Applicant had raised this claim in the Protection visa process and the failure by the Tribunal considering that matter to consider it may amount to jurisdictional error. The Tribunal considers that matter will be resolved in the judicial review process. It was not suggested that the Tribunal should assume the Applicant was owed protection on that basis for the purposes of these proceedings and the Tribunal does not consider it would be appropriate to do so where the process of judicial review is underway and where no evidence was offered in support of the claim. To the extent the claim was previously raised it is open to the Applicant to pursue that matter through his judicial review application. To the extent it is a new claim, the Tribunal is not satisfied based on the evidence presented by the Applicant that a non-refoulment issue arises with respect to that claim.
Further, the Tribunal did not consider it would be appropriate to assume the Applicant faced harm for the other reasons claimed in his Protection visa application and before the Tribunal reviewing the refusal of that visa. Those claims have not been accepted at the primary or merits review stages of the Protection visa process. While thew refusal of the Protection visa is being challenged before the Court, it was not suggested the Tribunal should assume protection was owed in weighing the discretion to refuse the Bridging visa and the Tribunal does not consider it would be appropriate to do so in the Applicant’s case. There was no additional information before the Tribunal that suggested that findings made on that application thus far should not be accepted. If the Tribunal’s decision regarding the Protection visa application is affected by jurisdictional error the application will be reconsidered.
The Applicant submitted, and the Respondent agreed, that issues of non-refoulement should be deferred to the Protection visa application review process. The Tribunal accepted those submissions, having considered the evidence before the Tribunal and the representations made by the Applicant and noting the Applicant is fully engaged in Protection visa determination process.
However, the Applicant submitted that, applying the reasoning of the High Court in NZYQ, any detention for immigration purposes must be limited to that which is reasonably necessary to effectuate that purpose[119] and that the Applicant’s detention was not reasonably necessary. It was submitted that in NZYQ the High Court emphasised that the ability to detain a non-citizen for the purposes of deportation is an exception to the general principle that the involuntary detention of a person in custody by the State is penal or punitive in character and, in the Australian system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt. As detention for immigration purposes must be limited to which is reasonably necessary to effectuate that purpose the Tribunal should ‘pause before causing the Applicant to continue to be detained in circumstances where he poses no risk, or a very low risk, to the Australian community’.[120] The Applicant contended that the Tribunal should balance any such risk against the impact that prolonged detention will have upon the Applicant.
[119] Citing NZYQ at [41].
[120] ASFIC, page 6.

The Tribunal notes that the delegate found that the Applicant faced the prospect of indefinite detention and that if the visa was refused:[121]
he will, as an unlawful non-citizen, remain in immigration detention unless and until he can be removed to a country other than Vietnam, unless one of the exceptions in s197C(3)(c) were to apply, or unless the Minister were to intervene to grant [HVLJ] a visa under s195A or to make a residence determination under s197AB in his favour which would bring their held immigration detention to an end.
These findings were in part relied on by the Applicant in written submission contending the reasoning in NZYQ applied to the Applicant’s circumstances. However, in oral submissions the Applicant did not contend he would be subject to indefinite detention.[122] However, he maintained that NZYQ affirmed that detention is ordinarily considered punishment unless it is reasonably necessary for some other legitimate purpose.
[121] R1, G3, page 24.
[122] Transcript, pages 66-67.
The Respondent submitted that the Applicant does not face the prospect of indefinite detention and that the reasoning in NZYQ was not engaged in the Applicant’s case.[123] It was submitted that NZYQ provides that the statutory duty to remove a non-citizen will no longer be supported by ss 189 and 196 of the Act when there is no real prospect that it will be practicable to remove the non-citizen in the reasonably foreseeable future. In such circumstances the non-citizen must be released from immigration detention. A protection finding has not been made with respect to the Applicant. He has been found not to be a person in respect of whom Australia has protection obligations under s 36(2)(a) or 36(2)(aa) of the Migration Act. As the Applicant is not the subject of a protection finding, the obligation for removal will continue to apply and the Applicant would continue to be detained (under ss 189 and 196) until he is granted a Protection visa (subject to the outcome of judicial review), or he is granted another visa under s 195A, a residence determination is made under s 197AB or the Applicant is removed.[124] Where there is no protection finding, there remains a real prospect of removal and NZYQ has no bearing on the matter.[125]
[123] RSFIC, page 13.
[124] RSFIC, pages 13-14.
[125] RSFIC, pages 13-14.
As discussed with Counsel at the hearing, the Tribunal considers there is no information to suggest the Applicant would be detained indefinitely. He is not the subject of a protection finding and, subject to the outcome of his judicial review application and the matters raised by the Respondent’s submissions, he remains liable for removal. The Applicant did not hold a visa when he left prison and was subject to detention as a result. There was no dispute that the process of determining whether he should be granted a visa and allowed to enter the community is actively being considered.
In the Tribunal’s view, the Applicant falls squarely within parameters for lawful detention outlined by the High Court in NZYQ. In any event the lawfulness of his detention is not a matter for the Tribunal. The Tribunal is concerned with whether the discretion to refuse his Bridging visa should be exercised having regard to the matters set out in Direction No 99. Respectfully, the reasoning in NZYQ is of limited assistance in undertaking that exercise in the Applicant’s case other than by outlining that where processes are underway to determine if an applicant should be granted a visa to enter the community, detention of that non-citizen is not punitive. Direction No 99 guides the exercise of the discretion in an individual case. This will involve consideration of whether an applicant may be liable to be, or continue to be, detained as a consequence of the decision. However, that exercise is materially different to an assessment of whether the ongoing detention of a non-citizen is a lawful exercise of executive power.
Applying the Direction, the Tribunal has regard to the fact the Applicant is awaiting consideration of his judicial review application. The Tribunal accepts he may be detained for some time before that matter is finalised and that this will cause him some hardship. This is a factor relevant to the question of whether the discretion should be exercised and weighs in the Applicant’s favour. However, the Tribunal notes that there is no information to suggest the Applicant is suffering any medical or other issues in detention and the records indicate he has embraced opportunities to further his education in detention. While there is no evidence that his mental or physical health has suffered in detention the Tribunal acknowledges that his physical and mental health may be adversely affected if his detention is prolonged. Hardship caused by prolonged detention is a factor weighing against exercise of the discretion to refuse the visa.
The Tribunal notes that the consequences of a visa refusal or cancellation under s 501 or related provisions include:
·Unlawful status;
·The likelihood of becoming subject to detention and/or removal;[126]
·Refusal of other visa applications and cancellation of other visas;[127]
·A prohibition on applying for other visas;[128] and
·Periods of exclusion and special return criteria may apply.[129]
[126] Migration Act ss 189, 196, 197C and 198.
[127] Migration Act s 501F.
[128] Migration Act s 501E.
[129] Migration Act s 503, special return criteria (SRC) 5001.
The parties accepted that these were the intended consequences of the character refusal and cancellation provisions and as such did not weigh for or against refusal of the visa.
The practical effect of refusing the application for the Bridging visa would not be the Applicant’s removal to Vietnam as judicial review proceedings are underway. The Applicant would, however, be liable to remain in detention for an unknown and potentially prolonged period pending the outcome of that process. On that basis of the information before it the Tribunal affords this consideration slight weight against exercising the discretion to refuse the visa.
Extent of impediments if removed
Paragraph 9.2 of Direction No 99 provides that taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c) of Direction No 99, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of the basic living standards available to other citizens of Vietnam. The matters identified under sub-paragraphs 9.2(1)(a), (b) and (c) are:
·The Applicant’s age and health;
·Whether there are substantial language or cultural barriers; and
·Any social, medical and/or economic support available to the Applicant in their country.
The Applicant is a citizen of Vietnam. There is evidence he holds a valid Vietnamese passport.[130] He spent his formative years in his home country and left as a young adult for the purposes of studying in Australia. He speaks Vietnamese and is a Buddhist. His immediate family members including his parents and siblings with whom he has lived previously and with whom he remains in contact remain living in Vietnam.[131] The Tribunal considers the Applicant would not face any substantial language or cultural barriers on return to Vietnam.
[130] R1, G15.
[131] Transcript, pages 34-35.
The Applicant is a relatively young man of 23 years old. The material before the Tribunal indicates he does not suffer from any diagnosed medical or psychological conditions. While he was convicted of drug cultivation, he denied use of illicit drugs and there was no information before the Tribunal to suggest he suffered from any addiction or substance abuse issues. He did not raise any issues of impediments if he was removed to Vietnam in submissions or evidence before the Tribunal.
The Respondent submitted that the Applicant would not face any impediments if removed and would have the same access to health services, treatment and welfare services in Vietnam and would have the emotional and financial support of his family on return.[132]
[132] RSFIC, page 15; Transcript, page 36.
While the Applicant told the Tribunal he did not want to return to Vietnam because there are no human rights there and because he was concerned that he would be discrimination against and be unable to work due to his conviction in Australia, he did not offer any evidence or country information in support of that claim and the Tribunal does not accept it presents an impediment on return to Vietnam. There is no information to suggest the details of his conviction would become known to the authorities or prospective employers in Vietnam, or that if they did this it would result in discrimination amounting to an impediment.[133]
[133] Transcript, pages 35-36.
The Tribunal notes that a decision regarding the Bridging visa would not directly result in the Applicant’s removal as judicial review proceedings are underway. As such the impediments to return assume less significance than might otherwise be the case. Further, the Bridging visa is only a temporary visa and would not permit the Applicant to remain in Australia permanently. As such a decision not to exercise the discretion to refuse the visa would only provide for impediments to his return to be avoided for the period of the visa (which is linked to the judicial review process) unless a permanent visa is granted.
Having considered the extent of the impediments if the Applicant is removed to Vietnam, the Tribunal finds this consideration weighs neither for nor against exercising the discretion to refuse the visa.
Impact on victims
Paragraph 9.3 of Direction No 99 requires the Tribunal to consider the impact of the decision on members of the Australian community, including victims of the Applicant’s criminal behaviour, and the family members of the victim or victims, where information is available and the Applicant has been afforded procedural fairness.
There is no information before the Tribunal regarding the effect of a decision under s 501 with respect to the Applicant’s visa application on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), any victims of the Applicant’s offending, or any family members of victims. Consequently, the Tribunal considers this consideration is not relevant in the Applicant’s circumstances and the Tribunal affords it neutral weight.
Impact on Australian business interests
Paragraph 9.4 of Direction No 99 states:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant did not suggest that his removal from Australia would adversely impact on Australian business interests.
The Applicant testified that he had opportunities for employment in Australia with Ms TTN who offered to employ him as a receptionist at her beauty business in Victoria. However, the Applicant did not suggest that any business interests would be impacted if he were not allowed to remain in Australia.
The Tribunal considers this consideration weighs neither for nor against exercising the discretion to refuse the visa and is neutral in the Applicant’s case.
CONCLUSION
The Tribunal considers that the Applicant does not pass the character test as defined in s 501(6)(a) for the reasons set out earlier. This enlivens the discretion under s 501(1) of the Migration Act to refuse the Applicant’s Bridging visa application, taking into account the primary and other considerations set out in Direction No 99 when doing so.
Direction No 99 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account.
There has been extensive judicial consideration of how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (considering a number of Ministerial Directions preceding Direction No 99).[134] Recently, the Full Court of the Federal Court considered the operation of Direction 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[135] While the Court was considering Direction No 90, it’s observations would apply to Direction No 99. The Court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction (in this case Direction No 99) against each other and undertake an evaluation of whether, in this case, the discretion to refuse the visa should be exercised.[136]
[134] 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.
[135] [2023] FCAFC 138; see also PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1259
[136] At [35].
In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings, and according to the guidance provided by Direction No 99. The Tribunal has considered each of the primary and other relevant considerations under Direction No 99 and whether those considerations weigh in favour or against exercising the discretion to refuse the Bridging visa. The Tribunal has considered the weight to be applied to each consideration in the context of comparing and balancing all the considerations to determine whether the discretion should be exercised.
The Tribunal has found that the ‘primary considerations’ of protection of the Australian community and expectations of the Australian Community, weigh in favour of refusing the Applicant’s visa application under s 501(1) of the Migration Act. In this regard, the Tribunal concluded that the protection of the Australian community consideration weighed moderately in favour of refusing the visa, balancing the moderate to low risk of reoffending against the serious nature of the offence for which the Applicant was convicted. The Tribunal has found the expectation of the Australian community would be that the Applicant would not be granted a visa having regard to the serious nature of his offence and this finds consideration weighs heavily in favour of exercising the discretion to refuse the Bridging visa application.
With regard to the strength, nature and duration of the Applicant’s ties to Australia, the Tribunal found that the Applicant has some ties to Australia, principally through his family members here and having worked and studied in Australia. However, the Tribunal found the Applicant’s ties were not strong and places limited weight on them. The Tribunal found this consideration weighs neither for nor against exercising the discretion to refuse the Applicant’s visa.
The other primary consideration, the best interests of minor children was found not to be relevant in the Applicant’s circumstances and afforded neutral weight.
The Tribunal has had regard to the relevant other considerations listed in Direction No 99, including the legal consequences of the decision, the impediments to the Applicant’s removal and the impact on victims and Australian businesses.
As the Applicant has judicial review proceedings underway with respect to his Protection visa refusal, the Tribunal defers consideration of his non-refoulement claims to that process. Further, as this is an application for a Bridging visa in the context of ongoing judicial review, the practical and legal consequence do not include the prospect of the Applicant being removed to Vietnam until those proceedings are concluded. However, the Applicant will be liable to remain in detention pending an outcome of those proceedings and this may cause him difficulty. Accordingly, the Tribunal has found this consideration weighs slightly in favour of not exercising the discretion to refuse the Bridging visa.
The Tribunal found that while the Applicant had raised concerns about return to Vietnam, none of the issues raised amounted to impediments which were insurmountable, noting that the Applicant would not be removed as a consequence of a decision on his Bridging visa and that the visa would only enable him to remain in Australia pending the outcome of judicial review proceedings in any event. The Tribunal found this consideration weighs neither for nor against exercising the discretion to refuse the visa.
The Tribunal considered the other considerations to be neutral in the Applicant’s case.
In weighing these considerations against one another, the Tribunal finds that although there are considerations weighing in favour of not exercising the discretion to refuse the visa, these are outweighed by the primary considerations weighing in favour of the exercise of the discretion, being the protection of the Australian community and the expectation of the Australian community.
The Tribunal is of the opinion that the correct or preferable decision is to affirm the decision under review.
DECISION
The decision of the Respondent dated 20 November 2023 to refuse to grant the Applicant a Bridging E (Class WE) visa is affirmed.

I certify that the preceding 178 (one hundred and seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member S Burford

.................[Sgd]......................
Associate
Dated: 23 February 2023

Date of hearing: 1 February 2024

Applicant:

Counsel for the Applicant:

Instructed by:

In person

Mr O Jones

Ms K Hoang, Oxford Law Group

Counsel for the Respondent:

Instructed by:

Ms G Ellis, Sparke Helmore Lawyers

Mr G Johnson