Le v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2020] AATA 3130

Le and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3130 (20 August 2020)
Division:GENERAL DIVISION
File Number(s): 2020/3353
Re:The Giang Le
APPLICANT

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

DECISION
Tribunal:Mr S Evans, Member
Date:20 August 2020
Place:Sydney

The reviewable decision is set aside and substituted with a decision to revoke the mandatory cancellation of Mr Le’s Class WC Subclass 030 Bridging visa.
...............................[sgd]..... ....................................
Mr S Evans, Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – cancellation of Applicant’s Class WC Subclass 030 Bridging Visa – Applicant is a citizen of Vietnam – failure of the character test – whether there is another reason to revoke the visa cancellation – Direction No. 79 – protection of the Australian community – best interests of minor children in Australia – expectations of the Australian community – international non-refoulement obligations – strength, nature and duration of ties – extent of impediments if removed – decision under review set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 18B
Migration Act 1958 (Cth) ss 36, 65, 499, 500, 501, 501, 501CA
CASES
DKXY v Minister for Home Affairs [2019] FCA 495
FRVT and Minister for Immigration and Citizenship [2020] AATA 294
FYBR v Minister for Home Affairs [2019] FCAFC 185
Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA
REASONS FOR DECISION
Mr S Evans, Member
20 August 2020
INTRODUCTION

The Giang Le (“Mr Le”) arrived in Australia on 21 July 2010 at the age of 16 as the holder of a student visa.
On 26 July 2019, Mr Le was convicted in the District Court of NSW of two counts of “supply prohibited drug – commercial quantity” and sentenced to an aggregate term of imprisonment of four years and six months.
On 29 January 2020, Mr Le’s Class WC Subclass 030 Bridging Visa was cancelled in accordance with s501(3A) of the Migration Act 1958 (“the Act”). This decision is referred to in the Act as “the original decision”. Mr Le was invited to make representations about the mandatory cancellation of his visa and on 21 May 2020 a delegate of the Minister decided not to revoke the original decision. The decision not to revoke the mandatory cancellation of Mr Le’s visa, referred to as the “reviewable decision”, is the subject of this application for review.
The reviewable decision was made on the basis that the delegate was satisfied that Mr Le did not pass the “character test” set out in the Act, and that there was not another reason why the original decision should be revoked.
On 1 June 2020, Mr Le applied to this Tribunal for review of the delegate’s decision not to revoke the reviewable decision.
For the reasons which follow, the reviewable decision will be set aside.
LAW AND DIRECTION
Under section 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in (3A) is outlined in section 501(6) of the Act. Relevantly, section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection 7)).
For the purposes of subsection (6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
Ministerial Direction No. 79
When considering whether or not to revoke a mandatory cancellation decision under section 501CA(4), paragraph 7(1) of Ministerial Direction No. 79 (“the Direction”) sets out how the discretion is to be exercised. It states:
(1) Informed by the principles in paragraph 6.3…, a decision-maker:
...
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Part C of the Direction sets out the primary and other considerations that must be taken into account, where relevant, when deciding whether to revoke a mandatory cancellation. The primary considerations should generally be given greater weight than the other considerations. The primary considerations as set out in paragraph 13(2) of the Direction are as follows:
1.protection of the Australian community from criminal or other serious conduct;
2.the best interests of minor children in Australia; and
3.expectations of the Australian community.
The other considerations which must be taken into account where relevant are outlined at paragraph 14 of the Direction. These considerations are:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed.
ISSUES BEFORE THE TRIBUNAL
There is no question that Mr Le made the representations required by section 501CA(4)(a). Consequently, it must be determined whether the discretion to revoke the mandatory cancellation of Mr Le’s visa may be exercised.
Mr Le does not pass the character test prescribed under section 501(6)(a) of the Act as he has been sentenced to a term of imprisonment of more than 12 months, and therefore has “a substantial criminal record” as defined under s 501(7) of the Act.
Therefore, the issue for the Tribunal to determine is whether, having regard to the Direction, there is another reason why the mandatory cancellation of Mr Le’s visa should be revoked.
BACKGROUND AND EVIDENCE
Mr Le gave evidence at the hearing and appeared via audio visual link from the NSW correctional facility in which he was being held in accordance with the COVID-19 Special Measures Practice Direction given under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth). He called no witnesses and provided oral evidence under affirmation.
Mr Le was born in Germany and is a citizen of Vietnam. He migrated to Australia on 21 July 2010 at the age of 16 as the holder of a Subclass 571 (Student) (Class TU) visa. He completed his high school studies in Australia before completing a Diploma in Business Management.
He worked for six years in Australia. He tested equipment for CISCO for over one year and worked for various small companies. He states that during that time he enjoyed working, paid taxes and contributed to the Australian economy.
Mr Le married his wife Ms Vu in May 2018 having met her in 2016. He and his wife have a daughter together. He submits that he wishes to stay in Australia to support his wife and child and they have plans to be together in the future.
Prior to his incarceration, Mr Le and Ms Vu started a company selling clothes. He says that the business was new but quite successful and is still being operated online by his wife’s relatives.
Mr Le’s offending
On 26 July 2019, Mr Le was convicted in the District Court of New South Wales of two counts of supply prohibited drug – commercial quantity for which he was sentenced to an aggregate term of imprisonment of four years and six months, with a non-parole period of two years and six months. Mr Le has no other record of offending in Australia.
Mr Le pleaded guilty to the offence. He was sentenced along with three other co-offenders which include his wife, Ms Vu. In his sentencing remarks, Judge Bennett describes the four offenders as running a “sophisticated and organised” enterprise for which one co-offender was the wholesaler of the cannabis which she provided to the other offenders including Mr Le and they in turn “embarked upon transactions providing the cannabis to their clients or customers”. It was further noted that the offenders, including Mr Le, provided an extensive service for which they reaped significant reward. In sentencing, Judge Bennett remarked:
the offenders Tran, Le and Vu together ran their drug supply syndicate providing cannabis throughout the Commonwealth of Australia by sending packages via Australia Post. The offender Ha was the supplier of the cannabis to the syndicate. The operation conducted by Tran, Le and Vu came to the attention of police as a result of the police investigation into the offender Ha in December 2017. The techniques engaged in the investigation included the interception of Ha’s mobile phone service ending in the number 655. Calls were intercepted between Ha and Tran, and between Ha and Le, and these revealed that Ha regularly supplied drugs to Le. Tran’s role was to negotiate price and quantity with Ha. Tran and Ha used multiple telephone numbers for that purpose. Ha would then physically supply the cannabis to Le.
The roles take by Le and Vu were then principally to package the cannabis and distribute by way of Australia Post. Customers placed order for cannabis with the syndicate via the Dark Web … The customers paid for the product in Bitcoin…
The amount of the cannabis supplied was… 71.393 kilograms. The value on a conservative estimate is said to be around $360,000.
…
The court details the circumstances of Mr Le’s arrest on 4 April 2018 as follows:
After this supply had taken place the police stopped Le’s car, searched it and found that [co-offender] had just supplied him with cannabis weighing 4.286 kilograms.
Thus the offender [The Giang] Le was arrested. They found in his car in addition to the cannabis described items used to package cannabis and supplied by the Australia Post, there were two mobile phones, there were 33 Australia Post envelopes with pre-made recipient labels affixed to each, two boxes contained 100 carboard sheets which could be folded to make a cardboard box, and there was industrial tape and Gladwrap. There were a number of Australia Post receipts detailing lodgements of parcels and purchases of Australia Post envelopes. There was a plastic bag containing two stretch and seal boxes with plastic wrapping.
During the search Le told police that he had made cannabis oil and used the Australia Post envelopes and boxes to send it to his customers. That, it would appear on the material I have, was a misrepresentation. He was then taken to Bankstown Police Station where he participated in an electronically recorded interview. He there admitted to using the Dark Web and Australia Post to supply cannabis to customers. A review of his phone revealed a number of photographs of Australia Post receipts and ledgers which indicated the syndicate had been operating since May 2017.
Relevantly, in sentencing Ms Vu, Judge Bennett states that Ms Vu’s account of her offending supports Mr Le’s reasons which are detailed below.
In terms of moral culpability, it is said by the Crown that Ms Vu attributed her misconduct of the financial distress that she and her partner experienced at the time. She gave evidence that she did not want to get involved in her husband’s cannabis activities and the argument presented implicitly by the Crown by way of the cross-examination was that although she might not have wanted to get involved at the outset, once she participated she embraced the opportunity with some energy.
I took the evidence in another light and I find that her explanation was that throughout the process she was a reluctant participant but continued in the enterprise in the interests of her husband and the financial assistance that the misconduct would provide for the reasons he gave and which she supported in her evidence.
In relation to Mr Le, Judge Bennett said in part:
In relation to Mr Le the Crown submission is that the offences upon which he is to be sentenced, namely the supply of 71.93 kilograms of cannabis and then 35.219 kilograms of cannabis, sequences 8 and 6 respectively, are to be found, in the case of sequence 8 close to the middle range of objective seriousness, and in the case of sequence 6 between the bottom and the middle of the range of objective seriousness. The reasons advanced for that proposition are his role as receiver, distributor and his awareness of the business of the operation; he was tasked with a critical role of receiving the cannabis from Ms Ha on behalf of the syndicate; he was involved in packaging, and distribution of the cannabis to customers around the Commonwealth of Australia. He had drug ledgers relating to the syndicate on his phone as well as photos of transactions from the syndicate Wickr accounts and he was, the Crown would submit, by way of inevitable inference more than a simple distributor and packager but had a measure of insight into the overall operation in which he was participating.
Judge Bennett identifies the debt that Mr Le’s parents had accumulated to pay for his education in Australia as one of the drivers of his offending and notes Mr Le’s strong prospects of rehabilitation in his sentencing remarks:
As to his moral culpability he, with some commendable candour I might say, made clear that his offending was for financial gain. He made that assertion or representation in the course of evidence and in the course of the assessment for the sentence assessment report.
There was a discussion of his education. He is clearly a man of some ability and intelligence that could progress in this community if given the chance after he completes his custodial component.
…
The opinion offered by the psychologist I might say is helpful but it does not sit entirely comfortable with the impression I took of the offender when he gave evidence. Before he entered the witness box a witness named Davis Huynh spoke; he is the offender’s employer; he conducts an air conditioning insulation business of which he is the proprietor. He spoke well of the offender as a hard worker, responsible and cooperative and obliging to the extent that when Mr Huynh suffered the tragedy of a loss in his family, and was absent from work and not attending to his responsibilities because of the grief reaction he was suffering, the offender rose to the occasion and with other employees through their hard work and commitment saved the enterprise and allowed it to continue to prosper until Mr Huynh was available to continue in the management role that he had as the proprietor of the business.
It is also telling that after a difficult period in the business, of the 17 workers that he had employed he had to allow a number of them to leave or more correctly had to terminate their employment. One of those employees he retained was the offender because of the good record that he had achieved in the course of his employment. That work is available to him once he is released from the custodial component of the sentence that I must impose. He confirmed the information provided to the psychologist and he spoke of his contribution to his financial circumstances in this country.
His parents had borrowed altogether it would appear $70,000. It came from friends, or some of it at least came from friends in Vietnam and they were in need of funds to repay at least some part of the debt they had incurred; that explains why he engaged upon his crime. He gave evidence of his wife and the commitment he has to the relationship and the anticipated birth of their child. He said that he did not quite appreciate the significance of his wrongdoing and one might accept that in the current climate.
…
… since the experience of this prosecution and the time that he spent in Silverwater gaol he has come to learn the truth and the impact of the drug has on people and the extent to which it contributes to the development of mental illness in our community.
I accept this as strong evidence of his contrition and remorse and insight into the nature of his misconduct and the strong prospects hereafter of his rehabilitation. He did not riot seek to avoid or minimise his involvement in these offences.
I accept the observations of Justice Bennett apply to Mr Le at the time of his application to the Tribunal.
CONSIDERATION
Primary Consideration 1: Protection of the Australian Community
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that decision-makers should also give consideration to:
(a) the nature and seriousness of the non-citizen’s conduct to date; and
(b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of Mr Le’s conduct to date
Mr Le does not dispute his offending and concedes that he has broken the law and that his offending was wrong. Whilst I note that Mr Le’s crimes were not sexual or violent, they were nonetheless serious, as acknowledged by Judge Bennett in his sentencing remarks where he said in part:
There is the populist view expressed by some that cannabis is a drug of little significance without the risk of much harm. I have been engaged in the practice of law for many years; as a judge for in excess of a decade. In the course of my life as a barrister I appeared in a number of Supreme Court murder trials and related proceedings and it is the fact that cannabis is a harmful drug. It leaves people prone to schizophrenia with a risk of the development of that disease. It opens the pathway to people without necessary self-control into the drug milieu. I have not I do not think ever seen the case where somebody addicted to heroin, cocaine or methylamphetamine did not begin their life as a drug user starting out with the misuse of cannabis, it is a dangerous drug, and those who urge otherwise are misguided.
In addition to the dangers posed by the provision of harmful drugs to individuals, the Respondent notes that the supply of illicit drugs has broader implications through the effects of organised criminal activity in the community and the impact on law enforcement, judicial and corrections resources that must be directed to identifying and stopping organised crime.
It is apparent that Mr Le’s offending was serious and his aggregate sentence of four years and six months including a non-parole period of two years and six months is a significant punishment for a first-time offender and indicative of the seriousness of his criminal activities.
The risk to the Australian community should Mr Le commit further offences
I do not have the benefit of any psychological assessment as to the likelihood of Mr Le reoffending but I note of the assessment provided by Judge Bennett in sentencing based on the report of a psychologist:
There is a psychologist’s assessment made by Ann-Marie De Santa Brigida dated 21 July 2019. I have had considerable experience with material provided by this psychologist and also have had the benefit of her giving evidence in proceedings before me on occasions and she is well qualified to offer the opinions given in this report. This notes he has no prior criminal record which is the fact. He was born in 1994 and so this year is 25 years of age and he has not antecedent records in this country. In other respects, apart from this misconduct, he is to be dealt with as a person of good character.
…

The psychologist’s assessment details Mr Le’s own experience with drugs and Justice Bennett relies on it to make an assessment of Mr Le’s risk of reoffending, which he determines to be in the low to moderate range. The sentencing remarks state:
He [Mr Le] has had some experience with drugs. At 18 years of age he began using cannabis. He was smoking regularly it appears, but not other illicit use prior to coming to Australia. He stopped smoking at the age of 20 to concentrate on his work; he tried MDMA at a music festival and continued to use that infrequently on a recreational basis but he has not used that drug for some 12 months. There is no history of gambling problems. A psychological assessment was conducted; there is no clear evidence that he would have met any criteria for oppositional defiance disorder or conduct disorder during his developmental years; he was in his early twenties at the time of his offence and there is a discussion of the rate of development of the human brain particularly in males that control higher cerebral or cortical functions including any anticipation of consequences and the control of impulses and the time when this is likely to peak. It is becoming a commonly expressed proposition that young males take longer to mature to the point where they are in complete control of their impulses and their propensity to make poor decisions and at the this point of his life Mr Le, is said to be coming to the stage where he is bound to develop to the point where those challenges or difficulties might finally dissipate.
There is nothing said to me though otherwise with regard to the offender that he was acting impulsively or did not think through the consequences. His candour with regard to the motivation of committing this offence or these offences are commendable, I might say; it indicates that he went about this in an organised fashion in the sophisticated arrangement in place to make money and the reason that he did that, according to his evidence, was to remit funds to his parents who had borrowed money for his progress here in this country. They were in need of funds to repay the debt they had incurred in Vietnam in doing so and that is what he was about when he committed these crimes.
There are various discussions of the psychometric testing undertaken, the impact of being bullied in childhood that is said to have been evidenced in the results of the psychometric testing, the emergence of some depressive symptoms following the bullying in Vietnam is discussed with changes in sleep patterns and the like that are consistent with what is represented by him. The standardised tests administered are there recorded in the report and he was assessed with regards to his personality; the report provides the outcome of those exercises. The depression and anxiety scales are discussed and a risk assessment was undertaken.
In summary, the conclusion reached is that there is no indication that he would have met the criteria for oppositional defiance disorder or conduct disorder during his developmental years. A diagnosis of antisocial personality disorder is deferred and therefore there is no opinion offered. He falls into the low moderate range for recidivism and it is noted there is an absence of antisocial characteristics, significant substance abuse problems and previous criminality. He is said to have met the criteria for unspecified trauma and stress disorder arising from what he said about the experiences in Vietnam where he suffered some bullying.
[emphasis added]
Mr Le submits that there is no risk of him reoffending. He writes in his request for revocation of the mandatory cancellation dated 1 February 2020 that he is remorseful:
I would like to apologize for what I did to the community. I wrote this because I’m thinking of my daughter’s future in Australia. For the crime that I did, and now serving my time in jail… I’ve been through a lot of emotionals feeling and realised what I did was totally wrong and I admit it. I was young and did not think through about my actions could caused so many troubles that I’ve done to my family. I am hoping for a new chance and I promise I’ll make it right to this beautiful country. (T92)
[errors in original]
In a statement written in support of the revocation he reflects on his offending:
My offence was a stupid mistake, landing me in the worst moment of my life, pulling everything apart, separating my family, friends and putting my business in danger, I know now the impact of my decisions and how deeply they can effect everyone, I regret resorting to crime and once my sentence is complete I will take these life lessons with me for as long as I live.
Mr Le submits that his offending was driven by a desire to provide for his parents in Vietnam. He writes in a submission that his family encountered financial difficulty due to business failure which lead to near bankruptcy. He submits: “I felt I needed to do something drastic to help them, I needed a large sum of money quickly and had no way of doing that at the time, I felt that everything was in danger and resorted to selling cannabis which ultimately led to my downfall”.
Mr Le was asked during the hearing when he found out about his parents’ debt. He told me that he found out in 2014 whilst he was studying at college in Australia. He said he was usually late in paying school fees and when he phoned his parents for payment he found out that they had a large debt and were close to bankruptcy.
Asked why it was that he did not begin his offending until some years later in 2017, Mr Le explained that due to the cancellation of his student visa he had been required to do increasingly tenuous work whilst trying to arrange money for his parents. He told the Tribunal that he was influenced by friends who said he could gain “a fair bit” of extra money without working full time and that was how he became involved in the syndicate.
The Respondent argues that as Mr Le’s offending was driven by financial gain, the risk that he might commit further offences of a similar nature cannot be discounted. I consider that this risk exists. However, I also take into account that as this is Mr Le’s first offence and the stated motivation of his offending, being his desire to provide for his parents, the risk of reoffending has been reduced. Furthermore, I note that he has worked when able to and that he and his wife had established a legitimate business prior to being sentenced.
I take into account that in the relatively short period since his offending, Mr Le has made considerable progress in seeking to improve himself and his opportunities after release from prison.
Whilst in custody Mr Le has been active in taking courses and participating in volunteer work. He has provided certificates confirming completion for the following:
·The EQUIPS Foundation Program (November 2019);
·The Gurnang Life Challenge Program (December 2019);
·Save-a-mate alcohol and other drugs emergencies course (June 2020);
·Assessment based action in my community in the Community Based Health and First Aid Program (June 2020);
·Behaviour and Social Change in the Community Based Health and First Aid Program (June 2020);
·Community Mobilisation in the Community Based Health and First Aid Program (May 2020);
·Red Cross Red Crescent Volunteer in Action in the Community Based Health and First Aid Program (April 2020); and
·Covid-19 Awareness Response & Prevention in the Community Based Health and First Aid Program (February 2020).
He has completed the core training modules of the Community Based Health and First Aid Program and the program coordinator Anton Stavreas wrote a reference for Mr Le detailing his participation in the training and his contribution and commitment to the projects including COVID-19 emergency response activation, new arrival orientation and promotion of education and access to hygiene. He noted that Mr Le has “demonstrated a willingness to put others before himself” and has “provided support and encouragement for others to participate meaningfully”.
Conclusion as to the protection of the Australian community
Mr Le submits that he has learnt from the experience of his offending. I found him to be honest in regard to his conduct and he did not seek to minimise the extent of the harm his offending had caused. He acknowledged that his offending has harmed not only himself, his wife and his child, but it has broader consequences for his extended family and the Australian community. He appeared to the Tribunal to have a considered insight into damage caused by his offending and a desire to make good his past wrongdoing. It is also evident from the sentencing remarks that Mr Le has sought to take responsibility for his crimes soon after his arrest. He has embraced the opportunities which have been available to him in prison, and I note not only his effort in completing community based programs, but also that he began participating in them shortly after he was incarcerated.
I consider the assessment of Judge Bennett that there was nothing impulsive about Mr Le’s offending, and that he had clearly thought through the consequences as being an indicator that Mr Le’s risk to the community is able to be adequately assessed as low to moderate. I also take into consideration that Judge Bennett accepted that Mr Le’s desire to assist his parents was part of what motivated him to offend. It appears also that Mr Le does not have any underlying addiction or behavioural issues which may increase his risk of reoffending.
However, given the seriousness of his offending I consider this factor weighs against revoking the mandatory cancellation, but Mr Le’s actions subsequent to his arrest, the first time nature of the offence, the motivation of the offending and the remorse he has expressed mean I place less weight on it than I might otherwise.
Primary Consideration 2: Best interests of minor children
Clause 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Clauses 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Clause 13.2(4) of the Direction further stipulates that when considering the best interests of the child, the following factors must be considered where relevant:
a)    The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)    The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)    The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)    The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)    Whether there are other persons who already fulfil a parental role in relation to the child;
f)     Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)    Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)    Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Mr Le is the father of one child in Australia, a daughter who was born in October 2019. Ms Vu gave birth to their daughter whilst both she and Mr Le were in prison. Mr Le writes that it is the first time he had been a father and that “I want to do everything possible to see my child”. He arranged to visit his wife and child whilst they were both in prison. He writes that he loves his daughter and if his visa is cancelled then his daughter will suffer from “things that her parents are not with her”.
In a detailed submission to the Tribunal, Mr Le writes that he met his daughter once for two hours when she was two months old. He described it as “unforgettable” to hold his daughter and feed her. He writes that as Ms Vu’s visa has been cancelled, and her release from prison due shortly, it is likely that she and his daughter may be placed in immigration detention after gaol.
As a father and husband, I, myself couldn’t provide anything to support them. I’ve failed them and owed them a lot, I couldn’t give them a future while we are all in custody, this is my biggest mistake I have ever done before … Because of them, my family, I have changed myself a lot while doing my time.
Contemplating Ms Vu’s release from prison, Mr Le writes that it is “heartbreaking” to know that she may return to Vietnam with his daughter and that he will not see them until 2022 when he is released. He claims that if his daughter is sent back to Vietnam she may suffer “trauma, depression and anxiety” if people say unkind things such as that both her parents were in gaol.
He reiterates the strength of the bond that he and Ms Vu have together whilst acknowledging the dearth of communication between them. He accepts responsibility for Ms Vu’s involvement in the drug syndicate.
In his written submission Mr Le indicates that his primary concern is that Ms Vu and his daughter are afforded an opportunity to stay in Australia. He writes that he is seeking an opportunity for his family and particularly his daughter to stay in Australia.
The Respondent submits that both Mr Le and Ms Vu are citizens of Vietnam and if the cancellation is not revoked, it would be expected that they would return together with their daughter.
I accept Mr Le’s determination to raise his daughter in Australia as genuine. He indicated that that he feels it would be safer for her to be raised in Australia and also that he wishes for his daughter to have access to the opportunities afforded by living in this country.
Mr Le is a first time parent. As both he and his wife are in prison, circumstances are such that he has been separated from his wife and child since the birth of his daughter. As Ms Vu has appealed her mandatory cancellation also, I accept that it would be Ms Vu’s intention to stay in Australia and raise their daughter should she be permitted to do so. Consequently, if the mandatory cancellation is not revoked there is every chance that Mr Le will not be afforded the opportunity to be with his daughter and to support his wife and child as they seek to reintegrate after a considerable period of incarceration.
I accept also Mr Le’s stated commitment to reuniting as a family and raising his daughter as he says he intends.
I find it would be in the best interests of Mr Le’s daughter that the mandatory visa cancellation be revoked. Consequently, this consideration weighs heavily in favour of revoking the mandatory cancellation.
Primary Consideration 3: Expectations of the Australian community
Paragraph 13.3 of the Direction provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.
In YNQY v Minister for Immigration and Border Protection,[1] Mortimer J said:
76. In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[1] [2017] FCA 1466.
Since the judgement in YNQY, the Federal Court delivered its judgement in DKXY v Minister for Home Affairs.[2] After referring to the relevant paragraphs of the reasons in YNQY, one of which I have set out above, Griffiths J said:
29. These paragraphs in YNQY appear in that part of her Honour’s judgment in which she was addressing a contention that the AAT had erred by failing to make findings and/or take into account as a primary consideration the expectations of the Australian community.
30. In my respectful view, her Honour’s reasoning in [76] and [77] of YNQY would be plainly incorrect if this reasoning is read as stating that the primary consideration of expectations of the Australian community will always weigh against revocation. The Minister contended that the reasoning simply reflected the facts in YNQY and did not purport to be a construction of Direction 65 as suggesting that the expectations of the Australian community can never weigh in favour of an applicant …
31. As the applicant here pointed out, there are numerous statements in Direction No 65 which require the primary consideration of expectations of the Australian community to be assessed in the light of all the relevant circumstances which appertain to it and it has to be weighed against all other relevant considerations (while noting that the Direction requires that primary considerations be given more weight than other considerations). In an appropriate case, and depending upon all relevant circumstances, the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government’s view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction, including those which are referred to in [23] above.
(Emphasis in original.)
[2] [2019] FCA 495.

After referring to those paragraphs in Uelese v Minister for Immigration and Border Protection[3] which were relied upon by the primary Judge in YNQY to support the proposition that the primary consideration of the expectations of the Australian community will invariably weigh against revocation of a mandatory cancellation, Griffiths J continued:
33. … There is nothing in these passages from Uelese which indicates that a primary decision-maker who is bound to apply the Direction cannot also take into account any material which is before the decision-maker which is relevant to an assessment of this primary consideration. The Government’s views have to be taken into account and given “due regard”, but so must all other circumstances which are relevant in the particular case. As Robertson J pointed out in the final sentence at [64] of Uelese, cl 9.3 of the Direction ends by stating that decision-makers should have “due regard” to the Government’s views on Australian community expectations. What amounts to “due regard” will necessarily require attention to be given to all relevant circumstances in the particular case which bear upon a general assessment of Australian community expectations.
[3] (2016) 248 FCR 296.
The Full Court gave further consideration to this question in FYBR v Minister for Home Affairs.[4] In that matter, the Court considered clause 11.3 of Direction 65, the predecessor to the Direction which is in the same terms as clause 13.3 of the Direction currently in force.
[4] [2019] FCAFC 185.
In his reasons for dismissing the appeal, Charlesworth J said, in part:
[61] The proper construction of cl 11.3 turns on two questions. The first is whether or not the clause expresses an expectation deemed by the government to be held by the Australian community. The second is whether the clause gives expression to an expectation that must of its nature weigh against the grant of a visa in every case.
…
[67] To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”, in the sense explained by Mortimer J in the limited passage from YNQY upon which the Tribunal relied at [54] of its reasons (extracted at [20] above). It is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”. I do not understand the judgment of Griffiths J in DKXY to differ from that of Mortimer J in YNQY in that respect. For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.
…
[75] Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
[76] The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government’s assessment of community expectations is “generally” to be afforded greater weight than the “other considerations” listed non-exhaustively in cl 12. The word “generally” contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors arising for consideration under cl 12. There may be cases in which it is not appropriate to give the community expectations discerned under cl 11.3 any weight at all.
(emphasis added)
In agreeing that the appeal should be dismissed, Stewart J said, in part:
[90] However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker:…
[91] The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
[92] There is also an important structural consideration, which is identified in the reasons of the primary judge (at [39]–[41]) and Charlesworth J (at [73]). It is that community expectations are to be taken into consideration (as a primary consideration) with other factors to inform the decision-maker’s decision. The consequence of that is twofold. First, not every factor relevant to the decision will inform the content of community expectations and, second, the ultimate decision may differ from the community expectations.
…
[102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances. Nevertheless, an adverse character assessment is necessarily against a visa applicant, to some degree or other; no one will be awarded a visa because they are of bad character.
[103] The community expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of “what would the community expect in this case?” It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in – between the community expectation will not express or require one or the other. That is a matter for the decision-maker.
(emphasis added)
In exercising my discretion, I am also informed by the principle at paragraph 6.3(1) of the Direction that:
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.
In breaking the law and doing so over an extended period of time, Mr Le has not met the expectation referred to in the Direction. Drug related criminal offending has serious consequences for the community and it is apparent that Mr Le has come to appreciate that he contributed to this harm through his actions.
Taking into account the relevant factors which have been detailed in paragraphs 31, 32 and 33 above, I find that the expectations of the Australian community weigh in favour of non-revocation of the cancellation decision.
Whilst this consideration militates against revocation, I limit the weight afforded to it in light of Mr Le’s relative youth, this being his first offence, the period during which he was in the community and made a positive contribution through studying and working, his volunteer work subsequent to the offending and the remorse he has demonstrated through his honesty and generally compliant conduct since his arrest.
Other relevant considerations
Other consideration A: International non-refoulement obligations
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
Mr Le submits that his crimes were driven by the need to provide money for his family who were indebted to “loan sharks”. He writes that “I am really affraid [sic] when I’m going back there are bad people harming my family. Which is why I commit a crime in Australia, I am very regret for what I’ve done. And most important is I had my own family now and I’m a father of 1 kid a few month old that need me to support her”. However, Mr Le did not provide any further details or evidence as to the threats posed to his parents or by whom they were posed.
He makes no claim for protection and in any case, the Direction instructs that where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
No evidence was advanced that is relevant to this other consideration. Accordingly, this other consideration is afforded no weight.
Other consideration B: Strength, nature and duration of ties to Australia
Mr Le has presented very little evidence to the Tribunal of having meaningful ties to the Australian community which extend beyond his wife and daughter.
In making my decision, the Direction requires that I consider the following factors:
·how long the applicant has resided in Australia, including whether the applicant arrived as a young child (noting that less weight should be given where the applicant began offending soon after arriving in Australia, and more weight should be given to the time the applicant has spent contributing positively to the Australian community); and
·The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Mr Le has resided in Australia since the age of 16 during which time he has studied and worked. I note also the observations of Judge Bennett in his sentencing remarks where he recounted the reference provided by Mr Le’s former employer Mr Huynh which were quoted previously. It is apparent that Mr Huynh feels indebted to Mr Le for his compassion and hard work in his time of need.
Asked about his immediate family here in Australia, Mr Le told the Tribunal that he has an aunt and uncle in Australia. He explained that he did not “want to get other people involved” in the consequence of his offending and that he specifically did not ask them to provide a reference for this reason. He rationalised that he “has caused a lot of trouble already” and did not want his relatives to spend time being a referee for him. He was asked if he they knew he was in prison and he told the Tribunal that he did not know as he “does not contact them regularly”.
Though I note that Mr Le has connections with Ms Vu’s extended family and lived with them for a period, there are no references before the Tribunal and Mr Le did not contend he was close to anyone in Ms Vu’s family. Based on the evidence provided, I can only conclude that Mr Le does not have extensive ties to the Australian community.
Based on the totality of evidence, this consideration is afforded little weight in favour of revocation primarily on the basis of his relationship with Ms Vu and Mr Le having spent his entire adult life in Australia.
Other consideration C: Impact on Australian business interests
This part of the Direction stipulates that this consideration should only generally be given weight where non-revocation would significantly compromise the delivery of a major project or the delivery of a major service in Australia. There is no evidence from either party that this was the case in Mr Le’s circumstances and I do not consider this to be a relevant factor.
Other consideration D: Impact on victims
The Direction provides that decision-makers should take into account the impact on victims where information is available. There is no evidence before me of any victims of Mr Le’s crimes and consequently this consideration weighs neutrally.
Other consideration E: Impediments to removal
This part of the Direction requires the Tribunal to consider the extent of impediments the Applicant may face if he is repatriated to Vietnam, and the maintenance of basic living standards, in the context of what is generally available to other citizens of that country. Factors that should be taken into account are a non-citizen’s age or health, any substantial language or cultural barriers and any social or medical support available to them in that country.
Mr Le is a young man aged 26 with no health issues. He is well educated and speaks Vietnamese having lived in the country from the age of seven until he was 16 years of age.
Mr Le’s father, mother and younger brother reside in Vietnam. He told the Tribunal that he has a solid relationship with his family in Vietnam and this is evident from the support, including financial support, they provided him so that he may live and study in Australia. Mr Le’s father visited Australia and attended his son’s wedding ceremony in 2019. Mr Le had returned to Vietnam to visit his family prior to that in 2013.
Following his offending, Mr Le told his father about what he had done. He said that whilst he and his father had often argued in the past, when he visited in 2019, they enjoyed a good connection. Mr Le’s father was upset by his crimes and it was apparent that the crimes were the source of the money that he had been sending them. He said his father was emotionally supportive of him and told him “not to be worried”.
It is apparent that Mr Le would have access to the support of his family should he return to Vietnam. Whilst he would be expected to face practical and emotional hardship upon return as he re-assimilates and re-establishes himself, he would be aided by the absence of any cultural or language barriers.
The Respondent also points out that Mr Le’s studies and work experience would assist him in seeking work in Vietnam which I accept.
Mr Le would also have access to health services, treatment and welfare services in Vietnam, although the standard and ease of access may not be at the same high standard or widely available as those services that are available to the Applicant in Australia.
Overall, this factor weighs neutrally in the Tribunal’s consideration.
Conclusion as to whether there is another reason to revoke the original decision
I have considered the specific circumstances relating to Mr Le as part of my consideration whether to revoke the cancellation decision. I am now required to weigh up those considerations to determine whether there is another reason to revoke the cancellation decision.
The primary considerations relating to the protection of the Australian community and the expectations of the Australian community weigh in favour of not revoking the cancellation decision, though the protection of the Australian community is afforded significantly less weight given Mr Le is a first time offender with strong prospects of rehabilitation. I also consider that as a first time offender, Mr Le will most likely have found the experience of gaol and the risk of again being separated from his wife and daughter as very strong deterrents.
The primary consideration in relation to the best interest of minor children weighs heavily in favour of revocation.
In making my decision I have regard to the comments of Stewart J in FYBR v Minister for Home Affairs[2019] FCAFC 185 at [105]:
...Further, the best interests of minor children in Australia who may be affected by the decision is also a primary consideration ... In any particular case, that primary consideration may outweigh, or contribute with other considerations to outweigh, the consideration of the expectations of the Australian community (cl 8(3)).
Mr Le’s ties to the Australian community weigh in favour of revocation given he has lived here since the age of 16, though this consideration is afforded minimal weight.
The Tribunal therefore finds that, taking into account all of the considerations in the Direction, the considerations weigh in favour of the revocation of the mandatory cancellation of Mr Le’s visa.
On balance, I am satisfied that the discretion should be exercised in Mr Le’s favour.
DECISION
The reviewable decision is set aside and substituted with a decision to revoke the mandatory cancellation of Mr Le’s Class WC Subclass 030 Bridging visa.

I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of General

..............................[sgd]..........................................
Associate
Dated: 20 August 2020

Date(s) of hearing: 30 July 2020

Applicant: By Microsoft Teams

Solicitors for the Respondent: Mr M Palfrey

Date(s) of hearing:	30 July 2020
Applicant:	By Microsoft Teams
Solicitors for the Respondent:	Mr M Palfrey