Lo and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1034

Lo and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1034 (17 July 2025)
Applicant:Thi Kim Loan Lo
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3425
Tribunal:General Member K Thornton
Place:Melbourne
Date:17 July 2025

Decision:The Tribunal affirms the decision under review.

.................[SGD]...................
General Member K Thornton
Catchwords
MIGRATION – Non-revocation under s 501CA(4) of the Migration Act 1958 (Cth) of the mandatory cancellation of Applicant’s Class BS (subclass 801) Partner visa – where the Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation – trafficking a large commercial quantity of a drug of dependence – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs (2019) 272 FCR 454
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 [63]
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Siale v Minister for Immigration and Citizenship [2025] FCA 608
Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
INTRODUCTION

The Applicant seeks review of a decision made by the delegate of the Respondent not to revoke the mandatory cancellation of her Class BS (subclass 801) Partner visa under s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’).
For the following reasons, the Tribunal affirms the decision under review.
RELEVANT LEGISLATION
Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) provides that, for the purposes of this section, a person does not pass the character test if the person has a ‘substantial criminal record’ (as defined by s 501(7)). Section 501(7)(c) provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person. Section 501CA(4) provides that 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.
Section 500(1)(ba) provides that an application may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
DIRECTION 110
Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about: (a) the performance of those functions; or (b) the exercise of those powers. Section 499(2A) provides that a person or body must comply with a direction under s 499(1).
Such a direction has been given under s 499 of the Act, namely Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction 110’). The purpose of Direction 110 is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act.[1]
[1] Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, 5.1(4) (‘Direction 110’).
Principles
Paragraph 5.2 of Direction 110 contains the principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under s 501, or whether to revoke a mandatory cancellation under s 501CA. Those principles are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 110 provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7 provides guidance in taking the relevant considerations into account. It states:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 contains the primary considerations which are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
Paragraph 9(1) contains the other considerations. That paragraph provides that the other considerations must also be taken into account, where relevant, in accordance with their provisions. The other considerations include (but are not limited to):
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interests.
PERSONAL BACKGROUND
Visa history and cancellation
The Applicant was born in Vietnam in 1990 and is currently 35 years of age. She arrived in Australia on a Student visa on 21 August 2009 as a 19-year-old.[2]
[2] Exhibit R1, 87, 421[3].
On 22 July 2014 the Applicant was granted a Class BS (subclass 801) Partner visa.[3]
[3] Ibid 79.
On 27 February 2017 the Applicant was arrested in relation to a Victoria Police operation named Operation Sea Dragon which focused on the drug trafficking activities of a large number of people.[4]
[4] Ibid 64 [109], 58 [81].
On 26 November 2019 the Applicant was sentenced in the County Court of Victoria on one charge of Trafficking in a drug of dependence in not less than a large commercial quantity.[5] She was sentenced to 13 years’ imprisonment, with a non-parole period of eight years.[6]
[5] Ibid 77.
[6] Ibid.
On 26 June 2020 the Applicant’s Class BS (subclass 801) Partner visa was cancelled under s 501(3A) of the Act on the basis she had a ‘substantial criminal record’ according to that definition.[7]
[7] Ibid 79.
On 24 July 2020 the Applicant made representations to the Department seeking revocation of the cancellation decision.[8]
[8] Ibid 23.
The Applicant’s legal representative subsequently filed further material with the Department on multiple occasions between this date and the date of the non-revocation decision.[9]
[9] Ibid 298-343.
On 24 April 2025 a delegate of the Respondent decided under s 501CA(4) not to revoke the cancellation decision.[10]
[10] Ibid 20.
On 28 April 2025 the Applicant was notified of this decision via her legal representative.[11]
[11] Ibid 17.
On 7 May 2025 the Applicant applied to the Tribunal for review of the decision.[12]
[12] Ibid 1.
Tribunal hearing
On 9 and 10 July 2025 the Tribunal conducted an in person hearing at the Tribunal’s Melbourne Registry. The Applicant was represented by Mr Willem Drent of counsel, instructed by Mr George Botros from Blue Rock Law. The Respondent was represented by Mr Jesse Slankard from Sparke Helmore Lawyers.
Documentary evidence
The Tribunal received into evidence a combined Hearing Book lodged 4 July 2025 comprising 522 pages of material.
Oral evidence
The Applicant gave oral evidence and was cross-examined. She was assisted by a Vietnamese interpreter. Prior to giving evidence, the Applicant was informed about her privilege against self-incrimination. She indicated that she understood this privilege.
The Applicant also called evidence from the following witnesses:
(a)Ms Jodie Macartney (a prison support worker);
(b)Ms Hanna Dickenson (friend and former inmate). Ms Dickenson was also advised of her privilege against self-incrimination. She also indicated she understood this privilege prior to giving her evidence; and
(c)Ms Susan Dickenson (Ms Hanna Dickenson’s mother).
The evidence of each of these witnesses will be considered in the Tribunal’s reasons below.
Circumstances of the Applicant’s offending
It is now convenient to set out the relevant circumstances of the Applicant’s offending. This will be followed by a review of the Applicant’s personal history.
The circumstances of the Applicant’s offending are set out in the County Court sentencing remarks and two key documents that were relied upon by the court, namely the Summary of Prosecution Opening upon Plea and the Summary of Involvement and Role.[13]
[13] Exhibit R1, 59 [86], 463-501 (Summary of Prosecution Opening upon Plea), 456-62 (Summary of Involvement and Role).
The Applicant pleaded guilty to one charge of Trafficking in a drug of dependence, namely, fluoroamphetamine and methylamphetamine, in a quantity not less than a large commercial quantity.[14]
[14] Exhibit R1, 58 [80].
Victoria Police commenced Operation Sea Dragon in August 2016.[15] Those who were charged were involved in different ways and at different levels of seriousness. The main offenders involved in the drug trafficking activities were:[16]
·Chinh Tuong Khiem;
·Huong Nguyen;
·Tien Dat Nguyen (also known as TD Nguyen);
·Tuan Van Pham; and
·Yuk Piu Lok and others.
[15] Ibid 463 [1].
[16] Ibid 464-5.
The sentencing judge accepted that the Applicant and her co-accused TD Nguyen were the most serious of the offenders who were charged.[17] The sentencing judge summarised the Applicant’s offending as follows:[18]
The prosecution case against you includes all of your involvement together with various other co-offenders in the negotiation and purchase of fluoroamphetamine from an uncharged offender, name Lok, in Sydney. It was moved down to Melbourne by you, using Ms Nguyen to assist you, on 10 November and 11 December 2016. The total amount of fluoroamphetamine covered by the charge was 25.88 kilograms.
The charge also encompasses your involvement, together with other offenders, in the negotiation, purchase and transport from Sydney to Melbourne of a precursor substance by the name of 1-chloro-1-phenyl-2-methylamino-propane in a quantity of four kilograms.
The charge covers your involvement together with your co-offenders in the use of that product and the manufacture and sale of amphetamines.
[17] Ibid 58 [82],
[18] Ibid 59 [83]-[85].
Trafficking of fluoroamphetamine
The sentencing judge noted that the Applicant was directly involved in the negotiation and purchase of the fluoroamphetamine in Sydney between October and December 2016.[19] Co-accused Pham informed the Applicant that he had customers to purchase the fluoroamphetamine every week. The Applicant discussed this with Lok, and, over a period of weeks, the Applicant and Lok negotiated for the Applicant to purchase the product from him.[20]
[19] Ibid 59 [87].
[20] Ibid 59-60 [88].
In November 2016, the Applicant spoke with TD Nguyen and two others about the proposed purchase of the fluoroamphetamine and its transport to Melbourne. On or about 9 November, the Applicant approached a friend (Ms Huong Nguyen) to travel with her to Sydney to collect the fluoroamphetamine. The Applicant made those arrangements and booked the airline tickets using false names.[21]
[21] Ibid 60 [89]-[91].
The Applicant then went to Sydney, collected the product and then accompanied Ms Nguyen and returned to Melbourne by bus. The Applicant arranged for another co-offender Khiem to meet her at the bus station and pick her up, which he did. He drove her back to her apartment with the product. The Applicant offered Ms Nguyen $500 per kilogram for her role in assisting her.[22]
[22] Ibid 60 [92].
After the product had been brought back to Melbourne, Pham attempted to prepare the product for sale by refining it in some way to make it more palatable. The sentencing judge accepted that the Applicant assisted in this and was complicit in this activity. Discussions took place between the Applicant and Pham about the terms on which he might refine and resell the product. Further discussions took place about the yield, and the profit margin that might be made.[23] The sentencing judge noted that the Applicant agreed to purchase the product at somewhere between $5,000 and $7,000 and were planning on selling it somewhere in the range of $15,000 to $18,000.[24]
[23] Ibid 61 [94].
[24] Ibid 61 [95].
The second shipment was organised to take place on 10 and 11 December 2016. The Applicant again requested Ms Nguyen to convey the drugs from Sydney to Melbourne on her behalf. The Applicant provided instructions, booked her tickets and made the arrangements. The Applicant arranged for Khiem to meet Ms Nguyen in Sydney, to take her to a hotel and remain there for the afternoon. On the Applicant’s instructions, Khiem collected the product, held it for some time, then delivered it to Ms Nguyen, so she could get on the bus with it and travel back to Melbourne alone and deliver it to the Applicant.[25] The Applicant’s counsel conceded at the Plea hearing that it was an aggravating feature of the Applicant’s conduct to involve Ms Nguyen in the offending. The sentencing judge accepted that the Applicant regretted involving Ms Nguyen.[26] The sentencing judge noted that Ms Nguyen had no prior convictions or any previous involvement in drug trafficking or drug abuse. The sentencing judge noted that Ms Nguyen was a naïve and vulnerable person and took into account as an aggravating feature the Applicant’s conduct in involving Ms Nguyen in her offending. The sentencing judge stated that without the Applicant’s involvement, Ms Nguyen would never have been charged.[27]
[25] Ibid 62 [97].
[26] Ibid 62 [98].
[27] Ibid 62 [99].
When Ms Nguyen did arrive in Melbourne, she was immediately arrested by police on 11 December 2016. She was questioned and remanded in custody for nearly seven months until she was bailed. The suitcase she was carrying was found to contain 14 and a half kilograms of fluoroamphetamine.[28]
[28] Ibid 62 [100].
Trafficking of 1-chloro-1-phenyl-2-methylamino-propane (‘chloro’)
This offending concerned the Applicant’s involvement in the negotiation and purchase of chloro from Lok in Sydney. The Applicant contacted Lok and discussed purchasing 50 kilograms of chloro at a price of $3,000 per kilogram.[29]
[29] Ibid 63 [101].
Over the ensuing days, the Applicant had discussions with TD Nguyen about the chloro. The Applicant travelled to Sydney on 15 December, again using false details. The following day she had discussions with another co-accused about the purchase of the chloro and confirmed that the product was in Sydney, and that TD Nguyen and others needed to come to Sydney. On 17 December, TD Nguyen and others arrived in Sydney. They met with the Applicant at the hotel, and with Lok, arrangements were made in relation to what was believed to be seven kilograms of chloro.[30] One kilogram of that substance was to remain in Sydney, two kilograms was found by police when they raided TD Nguyen’s room in Sydney, and the remaining four kilograms was transported to Melbourne by TD Nguyen and another co-accused bringing it down at the Applicant’s request. It is that four kilograms of chloro which is encompassed in the trafficking charge.[31]
[30] Ibid 63 [102]-[103].
[31] Ibid 63 [104]-[105].
Involvement in the manufacture of methylamphetamine
When the chloro arrived in Melbourne, it was distributed amongst various co-accused who were engaged in the manufacturing of methylamphetamine. TD Nguyen, with the Applicant’s knowledge, was encouraging others to be involved in using the chloro to manufacture methylamphetamine. The sentencing judge noted that the Applicant directly engaged with Pham, encouraged him and was complicit with him in the manufacture of methylamphetamine and sale of that product.[32]
[32] Ibid 63 [106]-[107].
Following TD Nguyen’s arrest on 28 January 2017, the Applicant was directly engaged with others in the manufacturing of methylamphetamine by encouraging them to do so and in the process of sale and distribution of that product through others including Pham. Like most of the other co-accused, the Applicant was arrested on 27 February 2017.[33]
[33] Ibid 64 [108]-[109].
Admissions and plea of guilty
The sentencing judge noted that during the Applicant’s police interview, she initially denied any involvement, but as police revealed what their investigations had discovered, she began to make admissions.[34] It was noted that the Applicant made ‘significant admissions’ regarding her own involvement in the trafficking of the fluoroamphetamine from Sydney to Melbourne. She also admitted that she had organised for Ms Nguyen to make two trips to transport the substance from Sydney to Melbourne.[35]
[34] Ibid 64 [109].
[35] Ibid 64 [110].

The Applicant also made a witness statement which was to assist in the investigation of Lok and the prosecution of Pham. The sentencing judge noted that the prosecution did not intend to rely on the Applicant as a witness but in any event the Applicant was entitled to the full benefit of her cooperation in relation to the making of that statement and her willingness to give evidence.[36]
[36] Ibid 64 [111]-[113].
The sentencing judge accepted that the Applicant’s admissions during her record of interview and her cooperation with authorities by making a statement, represent ‘substantial confirmation’ of the Applicant’s genuine remorse and desire to rehabilitate.[37]
[37] Ibid 65 [114].
The Applicant also indicated an intention to plead guilty at the committal stage, and after a committal which only involved questioning the informant, and acceptance of the hand-up brief.[38] The sentencing judge accepted that this was ‘very significant’ because had the matter proceeded to trial, ‘it would have been long, complex and expensive.’[39] The sentencing judge accepted that the Applicant’s early plea facilitated the course of justice, and beyond that, was further evidence of the depth of her remorse.[40] It was accepted that there was strong evidence of real remorse on the Applicant’s part, and her remorse is consistent with her desire to change her life and to rehabilitate. The sentencing judge noted that such remorse should be given significant weight and may justify a merciful sentence.[41]
[38] Ibid 74 [151].
[39] Ibid 74 [151].
[40] Ibid.
[41] Ibid 74 [152].
The Applicant’s personal history
The Applicant was born in Vietnam. She was raised by her parents, and later her grandmother. Her grandmother passed away while she was young. The Applicant has two younger brothers who remain in Vietnam.[42] She completed her secondary schooling in Vietnam.[43] She moved to Australia in 2009 on a Student visa, aged 19.
[42] Ibid 107.
[43] Ibid 225.
She studied English and hairdressing in Australia. She also completed some part-time sales work in a shopping centre.[44] She resided in various suburbs across Melbourne.
[44] Ibid.
The Applicant met her first partner, Mr Hung Le, in 2010. They were married on 20 August 2012.[45] They had two daughters, Child A (born in March 2013) and Child B (born in March 2014).[46]
[45] Ibid 382 [18].
[46] Ibid 149, 151.
Her relationship with Mr Le ended about six months prior to the birth of their second daughter Child B.[47] The relationship was marred by extreme violence, domestic and family violence, threats, intimidation and from time-to-time involved police and medical intervention.[48]
[47] Ibid 383 [21].
[48] Ibid 68 [127].
The Applicant then commenced a relationship with TD Nguyen (her co-accused). The sentencing judge accepted that the Applicant was also a victim of domestic violence in that relationship, and that the violence was sometimes perpetrated in the presence of her children, in which the police became involved.[49]
[49] Ibid 69 [130].
The sentencing judge took into account the nature of those relationships and that history in assessing the context in which the Applicant offended and effect of that context on her psychological wellbeing, her levels of stress and her capacity to exercise clear and proper judgment about her conduct.[50]
[50] Ibid 69 [132].
On 4 December 2015, the Applicant commenced a relationship with Mr Chinh Tuong Khiem (another co-accused).[51] The couple had one son, Child C, who was born in 2017 whilst the Applicant was in prison.[52] Child C remained with the Applicant whilst she was in gaol for the first three years of his life.[53] During this period, Child C was taken out of prison on the weekends where he was cared for by Mr Khiem’s sister.[54] The sentencing judge accepted that the Applicant giving birth whilst incarcerated and then having to be apart from the child on weekends was a circumstance of extreme hardship.[55]
[51] Ibid 102.
[52] Ibid 65 [116].
[53] Ibid 229.
[54] Ibid 65 [117].
[55] Ibid 65 [116].
The child now resides with Mr Khiem’s sister and Mr Khiem on a full-time basis.[56]
[56] Ibid 386 [41].
The Applicant and Mr Khiem are currently separated.[57] The couple separated in about February 2021 following Mr Khiem’s release from prison. The couple no longer communicate, and any communication regarding Child C is through Mr Khiem’s sister.[58]
[57] Ibid 383 [24].
[58] Ibid 384-5 [30].
The Applicant’s daughters reside with their father, Mr Le. The Applicant’s parents are currently in Australia on extended visas assisting with the children whilst the Applicant remains incarcerated.[59]
[59] Ibid 231.
ISSUES TO BE DETERMINED
Having set out the relevant background and circumstances of the offending, the Tribunal will now set out the issues it needs to determine as part of this review.
First issue: Does the Applicant pass the character test?
The first issue the Tribunal needs to determine is whether the Applicant passes the character test. On 26 November 2019, the Applicant was sentenced to a term of imprisonment of 12 months or more. This means she has a ‘substantial criminal record’ according to the definition in s 501(7) of the Act. A person who has a ‘substantial criminal record’ does not pass the character test according to s 501(6)(a) of the Act. The Applicant admits that she does not pass the character test.[60]
[60] Ibid 390 [57].
The Tribunal therefore finds that the Applicant does not pass the character test. Consequently, she cannot rely on s 501CA(4)(b)(i) as a basis to revoke the cancellation of her visa.
Second issue: Is there another reason why the cancellation decision should be revoked?
The remaining issue to be determined is whether there is ‘another reason’ why the cancellation decision should be revoked under s 501CA(4)(b)(ii) of the Act.
In order to determine this issue, the Tribunal is required to undertake an assessment of the representations put forward by the Applicant.[61] The Tribunal is required to read, identify, understand and evaluate the representations and must bring its mind to bear upon the facts stated in them or the arguments and opinions put forward and appreciate who is making them.[62] The weight to be afforded to the representations is a matter for the decision-maker.[63]
[61] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, 589 [22] (‘Plaintiff M1/2021’).
[62] Ibid [24].
[63] Ibid.
The Tribunal will apply the terms of Direction 110 in making its assessment of whether there is another reason why the cancellation decision should be revoked.
PRIMARY CONSIDERATIONS
Primary consideration 1: Protection of the Australian community
Paragraph 8.1 of Direction 110 states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, 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, decision-makers should 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.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal has had regard to the matters set out at paragraph 8.1(1). The Tribunal has kept in mind that the safety of the Australian community is the highest priority of the Australian Government. The Tribunal has had 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.
The Tribunal has also given consideration to the matters identified at paragraph 8.1(2) of Direction 110, which are dealt with below.
The nature and seriousness of the conduct
Paragraph 8.1.1(1) of Direction 110 sets out the factors that decision-makers must have regard to when considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date.
The Direction identifies certain conduct which may be considered very serious or serious by the Australian Government and the Australian community.[64] The crimes or conduct identified in those paragraphs are not an exhaustive list. The Direction also identifies other factors that decision-makers must have regard to which include the sentence imposed, the impact of the offending on victims, the frequency of the non-citizen’s offending and/or whether there is any increasing trend of seriousness, and the cumulative effect of repeated offending.[65]
[64] Direction 110, 8.1.1(1)(1)(a) and (b).
[65] Ibid 8.1.1(1)(c)-(i).
The Applicant contends that her offending is serious.[66] She submits that her offending was not violent in nature.[67] It is submitted that notwithstanding the sentence imposed, the Applicant recognises the seriousness of her offending and admits that her behaviour for financial gain cannot be justified.[68] The Applicant submits that the non-violent nature of her offending and her lowered sentence means that the seriousness of the Applicant’s drug offences should be considered on the lower end of the spectrum.[69] It is submitted that this factor should be attributed limited or moderate weight against revocation.[70]
[66] Exhibit R1, 390 [61].
[67] Ibid 391 [62].
[68] Ibid 391 [63].
[69] Ibid 392 [67].
[70] Ibid 394 [75].
The Respondent on the other hand contends that the Applicant’s offending is very serious.[71] The Respondent notes that the Applicant was arrested as part of a major Victoria Police operation and that the Applicant was regarded as one of the most serious offenders.[72] The Applicant had a direct role in the negotiation, purchase and transportation of a large quantity of drugs and actively involved and encouraged the participation of others in the scheme.[73] The Respondent disagreed with the Applicant’s assertion that the Applicant’s offending placed it at the ‘lower end of the spectrum’, stating that the Applicant’s mitigating factors were plainly taken into account by the sentencing judge, who nevertheless sentenced the Applicant to 13 years’ imprisonment with a non-parole period of eight years.[74] The Respondent submits that this is consistent with a finding that the Applicant’s offending was very serious.[75]
[71] Ibid 428 [31(a)].
[72] Ibid.
[73] Ibid.
[74] Ibid 429 [33].
[75] Ibid.
The Tribunal considers that the Applicant’s offending can appropriately be described as very serious. The Applicant was involved in the negotiation and purchase of 25.88kg of fluoroamphetamine. The Applicant moved the drug down from Sydney to Melbourne, and enlisted the assistance of Ms Nguyen in this offending.[76] The sentencing judge took into account as an aggravating factor of the Applicant’s conduct that she implicated Ms Nguyen (who was a friend of the Applicant), knowing that Ms Nguyen had a certain naivety and vulnerability.[77] The sentencing judge also noted that Ms Nguyen had no prior convictions, and no previous involvement with drug trafficking or drug abuse. His Honour remarked that:[78]
Without your involvement, Ms Nguyen would never have been charged. She would never have been in this court and you have seen what she has gone through as a result of her criminal conduct at your request.
[76] Ibid 59 [84].
[77] Ibid 67 [123].
[78] Ibid 62 [99].
His Honour did note that the Applicant was aware that involving Ms Nguyen was an aggravating feature and that she regretted having done so.[79] Ms Nguyen was arrested by police on 11 December 2016 and remanded into custody where she remained for seven months prior to being bailed.[80]
[79] Ibid 62 [98].
[80] Ibid 62 [100].
Despite the arrest of Ms Nguyen, the Applicant persisted with her drug trafficking activities. She was involved in the negotiation and purchase of ‘chloro’ from a person named Lok.[81] The Applicant then had discussions with TD Nguyen and others about how the drug should be distributed.[82] At the Applicant’s request, four kilograms of that substance was brought down from Sydney to Melbourne by TD Nguyen and a co-accused.[83] TD Nguyen was, with the Applicant’s knowledge, encouraging others to be involved in the manufacture and sale of that product.[84]
[81] Ibid 63 [101].
[82] Ibid 63 [103]
[83] Ibid 63 [104].
[84] Ibid 63 [107].
TD Nguyen was arrested by police on 28 January 2017. After his arrest, the Applicant was then directly involved with others in the manufacturing of methylamphetamine by encouraging them to do so and in the process of the sale and distribution of that product.[85]
[85] Ibid 64 [108].
The Tribunal notes that the Applicant was arrested on 27 February 2017. The Applicant admitted under cross-examination that after the arrest of TD Nguyen she effectively went into hiding to avoid being arrested herself. Despite this, the Applicant was able to maintain direct engagement in the manufacture, sale and distribution of methylamphetamine.[86]
[86] Ibid.
The Tribunal notes that despite the arrest of Ms Nguyen and TD Nguyen the Applicant made the deliberate decision to continue with her drug trafficking activities. She would have been alert to the fact that Victoria Police were investigating the activities of others closely related to her, but nonetheless persisted in those activities. The Respondent put to the Applicant during cross-examination that after the arrest of TD Nguyen, the Applicant’s position was elevated to a position where she was directing the activities of others. The Applicant denied this and said that everyone involved was acting independently of each other. The Tribunal finds that this is at odds with the sentencing judge’s findings that the acquisition of the fluoroamphetamine and chloro was ‘largely driven’ by the Applicant.[87] The sentencing judge stated:[88]
It was you who were negotiating with Lok. It was you who requested others to assist you and to provide funds but, I accept, as submitted by your counsel, that you were not doing this alone and you were not at all times in control or in a position to direct.
[87] Ibid 68 [127].
[88] Ibid 68 [126].
His Honour also accepted that this was not a case where the group of offenders and their activities could properly be described as a ‘syndicate’.[89] His Honour took into account that the Applicant’s previous relationships and experiences of family violence provide the context in which the offending took place, and the effect of that on her psychological wellbeing, levels of stress and her capacity to exercise clear and proper judgment about her conduct.[90] His Honour noted however that it could not be said that the Applicant was acting under any legal duress. His Honour stated that the Applicant’s counsel on the Plea accepted that the Applicant was acting independently:[91]
She [the Applicant’s counsel] accepted in fact that the evidence revealed that frequently, you were acting independently and even when you and Mr Nguyen were at odds with one another completely, you seemed to be in full flight in your activities, particularly, in relation to the organisation of the fluoroamphetamine and the negotiations with Mr Lok. It was you who was negotiating a lot, not T.D. Nguyen.
[89] Ibid 68 [125].
[90] Ibid 69 [132].
[91] Ibid 69 [131].
His Honour did accept that the Applicant was genuinely ashamed and remorseful for her activities. It was also accepted that she cooperated with authorities and offered to assist them by giving evidence against her co-offenders.[92] His Honour took into account the objective gravity of the Applicant’s offending:[93]
I accept on authority that the objective gravity of your offending must take into account a number of factors, including the vast quantity of drugs involved in this case, the period of time over which your offending occurred, namely, several months, the level of your involvement, which was high level, the nature of your role, which was crucial and fundamental, indeed, you were the negotiator. It seems to me on the evidence that in some cases once a request, such as a request by Pham, was made to you, you then were the instigator of what then unfolded, certainly in terms of the fluoroamphetamine. Of course, I take those matters into account and those matters dictate that you must be sentenced on the basis that, objectively, this is a very serious example of this kind of offending.
[92] Ibid 69 [133].
[93] Ibid 70 [135].
His Honour also took into account the following factors in mitigation:[94]
[94] Ibid 73-5 [148]-[155].
·The Applicant’s lack of prior convictions;
·Her tragic personal history which included her childhood in Vietnam and her previous relationships;
·An absence of drug addiction or abuse;
·Cooperation with the authorities, including an offer to give evidence against her co-accused, after initially denying the offending;
·Plea of guilty entered at the Committal stage, after a Committal which involved cross-examining the informant only. It was accepted that the Applicant’s early plea facilitated the course of justice and avoided a long, complex and expensive trial;
·Evidence of real remorse;
·Additional hardship by reason of her separation from two young children and the circumstances of her having to give birth whilst in custody;
·The prospects of deportation which were described by her counsel on the Plea as a ‘terrible prospect’; and
·Her ‘excellent’ prospects for rehabilitation.
Having weighed all those matters, His Honour determined that the appropriate sentence in all the circumstances was a term of imprisonment of 13 years with a non-parole period of eight years.[95] The Tribunal has had regard to the sentence imposed on the Applicant (paragraph 8.1.1(1)(c)). The Tribunal considers that with all the above mitigating factors taken into account, the sentence imposed was appropriately stern given the objective seriousness of the offending conduct.
[95] Ibid 75 [156].
The Tribunal has also had regard to His Honour’s concluding remarks:[96]
Ms Lo, you know what a terrible crime it was you committed. Drugs destroy people's lives. They destroy families, they destroy children. In so many ways people frequently die, as a result of drug overdoses, and gaols are full of people who are there because they have become drug addicts. You knew people who were drug addicts. Your first husband was one but you did not stop to think about these things when you were engaged in these activities. I know you have thought a lot about them since.
It is by reason of this terrible crime that you will now spend more years in gaol, in what are circumstances of unusual hardship. I accept and acknowledge that you are now truly repentant and you want to change your life, and although it will be difficult for you because you will probably have to rebuild your life in Vietnam, I expect that you can and will do this well…
[96] Ibid 75-6 [162]-[163].
The Tribunal has considered the impact of the Applicant’s offending. As noted by the sentencing judge, drugs destroy lives. The Applicant knew people who were drug addicts including her first husband who was the father to her two daughters. The impact of trafficking drugs cannot be understated, and the sentencing judge was aware of this impact. The Tribunal agrees that the Applicant’s conduct had very grave consequences. The Tribunal has had regard to the impact of the Applicant’s offending when considering the nature and seriousness of her conduct (paragraph 8.1.1(1)(d)).

The Tribunal notes that the Applicant did have some minor prior convictions prior to being sentenced on the Trafficking charge. The Tribunal however does not consider that the Applicant’s conduct could be described as frequent. Certainly, the Applicant’s conduct did increase in seriousness however as those earlier offences resulted in convictions and fines being imposed, and her most recent offending resulted in a substantial prison sentence (paragraphs 8.1.1(1)(e) and (f)).
The factors identified in paragraphs 8.1.1(1)(g), (h) and (i) are not relevant to the Applicant’s circumstances and have not been taken into account.
On the basis of the matters outlined above, the Tribunal concludes that the nature and seriousness of the Applicant’s conduct is very serious. This weighs heavily against revoking the cancellation decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should 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.
The Direction provides that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk it may be repeated may be unacceptable.[97]
[97] Direction 110, 8.1.2(1).
In making an assessment of the risk that may be posed by the non-citizen to the Australian community, decision-makers should have regard to, cumulatively, the following factors:
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 non-citizen reoffending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Applicant notes in written submissions that she has taken full responsibility for her actions. It is submitted she has shown consistent efforts towards rehabilitation and had begun engaging in prison education programs since being remanded in 2017.[98] The Applicant notes that the sentencing judge described her prospects of rehabilitation as ‘excellent’. The Applicant was also assessed by forensic psychologist Dr Aaron Cunningham who described her risk as ‘low’ and stated that her risk was connected to her association with criminal peers, and that ceasing contact with them would reduce her risk of reoffending.[99]
[98] Exhibit R1, 394 [89].
[99] Ibid 394-5 [77]-[78].
The Tribunal has had regard to the programs and courses the Applicant has completed. These include:
·Various Corrections Victoria Offender Services programs completed in June 2017;[100]
[100] Ibid 202-5.
·Australian Vietnamese Women’s Association Inc. Drug & Alcohol Education Program dated 1 September 2017;[101]
[101] Ibid 206.
·Tuning into Respectful Relationships (through Anglicare Victoria) and Tuning into Kids (through Relationships Australia) programs in 2017 and 2019;[102]
[102] Ibid 207-8.
·Multicultural Centre for Women’s Health Education Program dated 9 September 2022;[103]
[103] Ibid 209.
·Various courses and partial completion of subjects from Box Hill Institute including:
oCertificate I in Textiles Clothing and Footwear (partial completion);[104]
oCertificate II in Information, Digital Media and Technology (partial completion);[105]
oCertificate II in Kitchen Operations (partial completion);[106]
oCertificate II in Cleaning Operations (partial completion);[107]
oCertificate II in Horticulture (currently enrolled);[108]
oCertificate III in Spoken and Written English (partial completion);[109]
oCertificate III in Retail obtained 9 July 2021 (completed).[110]
·Living with Mum/Fun with Mum program;[111] and
·Engagement in the Living Free from Violence program since March 2025.[112]
[104] Ibid 213.
[105] Ibid 212.
[106] Ibid 214.
[107] Ibid 215.
[108] Ibid 363 [7].
[109] Ibid 216.
[110] Ibid 217.
[111] Ibid 201, 359.
[112] Ibid 418.
The Tribunal also notes that the Applicant is currently employed as a horticulture billet in prison. Senior Prison Officer Young described the Applicant as a ‘trusted employee who works diligently and completes work with little supervision.’[113]
[113] Ibid 201.
It is submitted on behalf of the Applicant that she does not have any current addictive behaviours or substance abuse issues and has never been a drug user.[114] This submission is accepted by the Tribunal.
[114] Ibid 399 [104].
The Applicant also submits that she will not reoffend, and that arguably the Australian community would have a higher tolerance to any future risk of harm, given that the Applicant has obtained additional certificates and employment skills in custody and has employment opportunities available to her after her time in custody.[115] It is ultimately submitted by the Applicant that paragraph 8.1.2 weighs in favour of revocation.[116]
[115] Ibid 399 [105].
[116] Ibid 399 [107].
The Respondent submits that if the Applicant were to reoffend, the nature of the harm that may be caused includes physical and psychological harm from the widespread effect of drug use and distribution on the community.[117] It is also submitted that it would have broader financial and other consequences on the justice and health systems.[118]
[117] Ibid 430 [35].
[118] Ibid.
The Respondent acknowledges the Applicant’s efforts toward rehabilitating herself by completing programs and maintaining employment whilst in custody. The Respondent also acknowledges the sentencing judge’s conclusions on the Applicant’s prospects for rehabilitation which were described as ‘excellent.’ The sentencing judge’s findings are supported by the psychological assessments conducted by Dr Cunningham.[119] The Respondent reiterates Dr Cunningham’s findings that the Applicant’s risk remains connected to her association with criminal peers, and that ceasing association with those peers reduces her risk of reoffending.[120] The Respondent notes that the Applicant is still in contact with her ex-husband (Mr Le) and former partner (Mr Khiem) who have criminal backgrounds. The Applicant submitted to the Tribunal that she would only remain in contact to discuss any matters related to the care of the children only. The Respondent submits that her ability to limit contact in this way, and her commitment to lead a prosocial lifestyle outside of the custodial environment is untested.[121] However, the Respondent accepts that the Applicant presents as a low risk of reoffending, but submits that having regard to the scale of the Applicant’s offending and the harm that could ensue if it were repeated, is unacceptable.[122] The Respondent therefore submits that this primary consideration weighs very heavily against revocation.[123]
[119] Ibid 430 [36]-[37].
[120] Ibid 430 [38].
[121] Ibid 431-1 [38]-[39].
[122] Ibid 431 [39].
[123] Ibid 431 [40].
The Tribunal has had regard to the matters identified at paragraph 8.1.2(1). The Tribunal considers that the seriousness of the potential harm that could be caused if the conduct were to be repeated is so serious, that any risk it could be repeated is unacceptable.
In assessing the risk to the Australian community, the Tribunal has had regard to the nature of the harm, and the likelihood of the Applicant engaging in further criminal or other serious conduct.
In regard to the nature of the harm, the Tribunal considers that if the conduct were to be repeated, it would cause serious harm to the Australian community. The harm that drugs do to the community was noted by the sentencing judge when he commented that drugs destroy lives.[124] The Tribunal accepts that the Applicant is remorseful and appreciates the wrongfulness of her actions. However, the Tribunal has had regard to the sheer scale and objective gravity of the Applicant’s offending. Accordingly, the Tribunal considers that the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct to be so serious that any risk it may be repeated is unacceptable.
[124] Ibid 75 [162].
In regard to the likelihood of the Applicant engaging in further criminal or other serious conduct, the Tribunal has had regard to the information and evidence on the Applicant’s risk, and the evidence of rehabilitation achieved by the time of the Tribunal’s decision.
In particular, the Tribunal has had regard to two psychological reports prepared by Dr Cunningham dated 28 September 2018[125] and 30 July 2024.[126] The 28 September report was prepared for the purposes of the Applicant’s plea hearing, following an assessment on 27 September 2018. In that report, Dr Cunningham made the following observations:
[125] Ibid 224-8.
[126] Ibid 229-33.
·She was raised by her mother and father with two young brothers. She described her parents as kind people who regularly attended the temple for religious service;[127]
·She had a relationship with Hung Le which was violent and that Mr Le used drugs. She had two children with Mr Le. Her second relationship with Dat Nguyen (TD Nguyen) continued for one year. He was also a drug user. She was kidnapped by him during a period of separation;[128]
·She reported (at that time) a current relationship with Chinh Khiem. She reported that the relationship was ‘good’ and that he does not use drugs. She gave birth to the couple’s child whilst in gaol;[129]
·She reported to Dr Cunningham that she previously had panic attacks in the community in the context of abusive relationships and separation from her family. She reported she was hospitalised at a local hospital on one occasion. She said she has improved since her most recent relationship;[130]
·She reported she was deeply remorseful and regretful of her offence behaviour. She said she was trying to make enough money to help Dat Nguyen pay his legal fees. She was upset that she had gotten Mr Khiem involved in the offences;[131]
·Dr Cunningham observed that she does not present with a mental illness or as intellectually disabled;[132]
·She reported to him a stable childhood with no indication of abuse or trauma;[133]
·She said she initially engaged in the offending to help Dat Nguyen with her legal fees and that she is attempting to pay for Mr Khiem’s legal fees as well. In this regard, Dr Cunningham stated that she appears to have prioritised the wishes and needs of partners over that of herself and her children;[134] and
·He stated that the Applicant presents with protective factors that may reduce her risk. In his opinion, her risk in the community is connected to her association with criminal peers, and ceasing association with these peers would reduce her risk of reoffending.[135]
[127] Ibid 224.
[128] Ibid 225.
[129] Ibid.
[130] Ibid 226.
[131] Ibid.
[132] Ibid.
[133] Ibid.
[134] Ibid.
[135] Ibid 226-7.
The July 2024 report was prepared by Dr Cunningham for the purposes of her visa revocation application. Dr Cunningham assessed the Applicant on 30 July 2024.[136] In this report Dr Cunningham opined that the Applicant’s mental state had ‘improved’ from the time of his prior assessment. He stated that her progress in gaol and psychological resilience has been ‘remarkable.’[137]
[136] Ibid 229.
[137] Ibid 230.
Dr Cunningham said in his opinion the Applicant understood the seriousness of her offending, and that her understanding of the effect of her behaviour on others demonstrates significant remorse, maturity and understanding of the consequences of her actions.[138]
[138] Ibid.
He stated that she presents with limited risk factors for offending, noting that she is no longer associated with drug-using peers. Her regular visitation with her children has established an emotional bond that is central to her prospects for rehabilitation. He stated that she does not want to further jeopardise the relationship with her children by reoffending.[139]
[139] Ibid.
Further, in his opinion, she does not present with overt risk factors of reoffending such as mental illness, drug abuse or personality disorder. Dr Cunningham stated that the Applicant will have a significant positive impact on the lives of her children. He stated that the current emotional connection would effectively be broken if the Applicant is deported to Vietnam.[140] He stated that deportation would be a significant destabilising factor in the mental health of the Applicant, her ex-husband and her children. In his opinion, the Applicant does not present as a significant risk or threat to the Australian community.[141]
[140] Ibid 231.
[141] Ibid 232.
The Tribunal has also had regard to the witness statement of Ms Jodie Macartney who is a support worker with Prison Network.[142] Ms Macartney also gave oral evidence to the Tribunal. In her written statement, she said she has known the Applicant for more than 12 months through her engagement with in-prison programs. She stated that the Applicant has attended the Fun with Mum program since 2022 on 62 occasions. She stated that she also meets the Applicant on a fortnightly to monthly basis to discuss matters such as wellbeing, goals for the future, parenting, grief and trauma. Ms Macartney has observed the Applicant to be respectful, reflective and motivated to change.[143] She said that in her view the Applicant does not pose a risk to the community, and that, on the contrary, the Applicant is working diligently to become a responsible, contributing member of society and a caring mother to her children.[144]
[142] Ibid 359-61.
[143] Ibid 359-60 [3]-[4].
[144] Ibid 360 [7].
Ms Macartney gave oral evidence to the Tribunal that she would remain engaged with the Applicant post-release for as long as she required the support. She said that the support can range from assistance to reintegrate into society, support in areas of housing and emotional support and connection. During cross-examination, she said that she is currently assisting five to six women post release, and that she would be willing to support the Applicant for as long as she requires it.
The Tribunal has considered the information and evidence on risk and the evidence of rehabilitation. The Tribunal accepts Dr Cunningham’s findings that the Applicant’s risk of reoffending is low. The Tribunal also accepts that the Applicant has availed herself of every opportunity to rehabilitate herself in prison and has engaged positively in programs and visits with her children. The Tribunal accepts Dr Cunningham’s finding that she is motivated to be a supportive and stable mother to her children in the community.[145]
[145] Ibid 232.
The Respondent pointed out however that there are some inconsistencies between the matters reported to Dr Cunningham by the Applicant and other material. The Respondent also noted Dr Cunningham’s opinion that her risk is connected with her association with criminal peers and that ceasing association with these peers would reduce her risk. The Tribunal has considered whether these inconsistencies affect the Applicant’s credit or her level of risk. For the following reasons, the Tribunal does not consider the inconsistencies do either.
For example, there is a significant disconnect between the Applicant’s report to Dr Cunningham about her childhood and what she has said in other material. Dr Cunningham stated that the Applicant ‘reported a stable childhood with no indication of abuse or trauma.’[146] In her written statement to the Tribunal she repeated what was said in the sentencing remarks that she arrived in Australia as a ‘traumatised teenager’ after enduring a ‘horrific childhood’.[147] In another statement she stated that she suffered ‘a very difficult and traumatic childhood in Vietnam.’[148]
[146] Ibid 226.
[147] Ibid 364 [11]. In the sentencing remarks, His Honour stated that the Applicant came to Australia ‘as a teenager, having suffered a very difficult, if not traumatic childhood in Vietnam’ (at 66 [119]).
[148] Ibid 92.
When cross-examined on this point, the Applicant said that she did endure a difficult childhood which was marred by the death of her grandmother, who was her primary caregiver, at age 10. She said her childhood was difficult and that she may not have adequately conveyed to Dr Cunningham the correct situation with her childhood. She said there may have been language barriers present. The Tribunal has considered this and accepts the Applicant’s explanation for this inconsistency. The Applicant was emotional when describing her childhood and the passing of her grandmother to the Tribunal. It is accepted that she may have encountered difficulties and hardships and that her experience of childhood is how she perceived it. The Tribunal considers that this inconsistency does not diminish the Applicant’s credit. The Tribunal accepts the sentencing judge’s findings as to what she experienced in childhood. The Tribunal does not seek to impugn or question these findings.[149]
[149] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 [63].
In another example, in the subsequent report, she told Dr Cunningham that she will live with her ex-husband (Mr Le) and her daughters.[150] She also stated in her most recent written statement to the Tribunal dated 4 June 2025 that upon her release, she hopes to reside with her ex-mother-in-law (which is where her daughters reside).[151]
[150] Exhibit R1, 230.
[151] Ibid 363 [8]; 103.
However, the Applicant told the Tribunal in oral evidence that she plans to reside elsewhere if she is released into the community. She said that her friend Ms Hanna Dickenson has offered her a room at her house should she be released. Ms Hanna Dickenson and her mother (Ms Susan Dickenson) both wrote statements in support of the Applicant and gave oral evidence to the Tribunal confirming the offer of accommodation.
Ms Hanna Dickenson said she met the Applicant five years ago when they were inmates in prison together. Ms Hanna Dickenson said she was sentenced to 18 months gaol with a three-year ‘good behaviour bond’ for fraud against Centrelink. She said she has now reformed her life, obtained full-time employment and has purchased a house which she resides in with her mother. She said the Applicant is like a sister to her and the pair are close. Ms Susan Dickenson said that she has also had opportunities to observe the Applicant and said she was an importance source of support for her daughter whilst she was incarcerated. She said she is aware that the Applicant has invested so much effort into her rehabilitation and has become a better person. She said she understands the importance of second chances, as she has observed her own daughter turn her life around.
The Respondent noted during closing submissions that Ms Hanna Dickenson has a criminal history, and Dr Cunningham opined that the Applicant’s risk was tied to her associating with criminal peers. The Applicant was asked during cross-examination as to whether she had planned to live with the children ‘full-time’ if released, and she said she plans to in the future. She told the Tribunal that she needs assistance to get on her feet and get established with employment and other supports before she can live full-time with the children. The Tribunal accepts the Applicant’s explanation in this regard. Although Ms Hanna Dickenson does have criminal priors, the Tribunal considers that the pair can support each other and negotiate the practical and emotional challenges that one must encounter when released into the community. The Tribunal does not regard the Applicant’s risk to be elevated because she proposes to live with Ms Hanna Dickenson upon her release.
Conclusion on primary consideration one

In conclusion, the Tribunal considers that the nature and seriousness of the Applicant’s conduct to be very serious. The Tribunal has had regard to the objective gravity of the offending, scale and drugs involved, its protracted nature and the Applicant’s role in the offending.
The Tribunal does consider the Applicant’s risk of reoffending to be low. However, the nature of the harm that would be caused if the Applicant reoffended is so serious that any risk she may reoffend is unacceptable. This primary consideration is therefore given very heavy weight against revocation.
The Tribunal notes that primary consideration one is generally to be given greater weight than the other primary considerations.[152] The Tribunal considers that this is an appropriate case where primary consideration one should be given greater weight. The sentencing judge noted the devastating impact that drugs have on the community. The Tribunal agrees with those remarks. The community needs to be protected from further drug trafficking behaviour even if that risk is low. Any risk that it may be repeated is unacceptable and the Tribunal makes this finding.
[152] Direction 110, 7(2).
Primary consideration 2: Family violence committed by the non-citizen
This primary consideration applies in circumstances where the non-citizen has been convicted, found guilty or had charges proven that involve family violence.
The Applicant has some prior convictions for offences that occurred in the context of a previous domestic relationship that had since ended. There are no further details regarding these offences, other than the Applicant’s oral evidence to the Tribunal regarding the circumstances in which they occurred. She told the Tribunal that after the relationship with TD Nguyen had ended, she was a victim of a kidnapping by him. She said that the relationship was tumultuous, and she observed that he had caused substantial damage to her property. In retaliation, she admitted to damaging his car and personal belongings which resulted in the criminal charges.
The Respondent submits that in this context, this primary consideration should be given little weight in the balancing exercise. The Applicant submits it should be attributed no weight. Intentionally damaging or destroying property is an example of family violence behaviour according to the definition in Direction 110.[153] The Applicant’s behaviour clearly meets this definition. The Direction also notes however that the Government’s concerns in regard to family violence are proportionate to the seriousness of the offending engaged in.
[153] Ibid 4(1).
In the Applicant’s case, she was convicted and fined for those offences in the Melbourne Magistrates’ Court. There is no evidence the conduct was repeated or frequent, in fact, the Applicant’s evidence was that it involved a single event. There is no evidence to dispute the Applicants’ version of events. The Tribunal has decided to attribute very limited weight to this primary consideration against the Applicant.
Primary consideration 3: The strength, nature and duration of ties to Australia
Paragraph 8.3(1) of Direction 110 provides that decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(2) provides that where consideration is being given whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant submits this primary consideration weighs significantly in favour of revocation.[154] It is submitted that the Applicant has spent a significant portion of her adult life in Australia having arrived here as a 19-year-old. As a consequence, it is argued that the Applicant has significant ties to Australia which include her three Australian-born children, her ex-husband and former partners, as well as other family members and friends that reside here.
[154] Exhibit R1, 402 [124].
Mr Le has provided a written statement that states co-parenting the children has been stressful without the Applicant’s support. The Applicant also filed recent medical material which indicates that her ex-mother-in-law (Mr Le’s mother) is undergoing treatment for lung cancer. This is no doubt causing significant distress to Mr Le, the Applicant and her family and the Tribunal has taken this into account.
The Respondent accepts that this primary consideration weighs in the Applicant’s favour but submits that it does not outweigh the countervailing primary considerations.[155] The Respondent acknowledges that while the Applicant has lived in Australia for approximately 16 years (which weighs in her favour), it is submitted that this is tempered by the fact that she spent her formative years in Vietnam.[156] The Respondent also acknowledges the variety of social and familial ties to Australia, but submits beyond that the Applicant has declared limited employment in Australia, and there is otherwise little to suggest she has made any positive contributions to the Australian community.[157]
[155] Ibid 432 [49].
[156] Ibid 432 [47].
[157] Ibid 432 [48].
The Tribunal notes that the Applicant arrived in Australia as a 19-year-old in August 2009. It is also noted that she began offending in October 2016 and has spent over half her time in Australia either on remand or in gaol. The Tribunal acknowledges that her parents are currently in Australia taking care of her three minor children. The Tribunal was advised that her parents are on ‘long-term visas’ and have a right to remain in Australia for the time being. Her children are Australian citizens.
The Tribunal also acknowledges the many character references and letters of support. The Applicant gave evidence that she has also attended regularly with the Buddhist chaplain in prison, who also wrote a letter in support of the Applicant.[158]
[158] Ibid 222.
This primary consideration was recently considered by Her Honour Justice Derrington in Siale v Minister for Immigration and Citizenship.[159] Her Honour held that paragraph 8.3 of Direction 110 directs the decision-maker’s consideration of a non-citizen’s ties to Australia in two ways:[160]
First, it directs attention to the impact of a non-citizen’s removal on immediate family members who are Australian or who have an indefinite right to remain in Australia. Secondly, it directs attention to the impact on the non-citizen of the loss of any other ties to the Australian community. This two-pronged interpretation is evident from the text and structure of paragraph 8.3. Paragraph 8.3(1) refers specifically to “any impact of the decision on the non-citizen’s immediate family members.” By contrast, paragraph 8.3(2) directs a decision-maker to consider the strength of the ties that the non-citizen has to the Australian community, having particular regard to the length of time the non-citizen has resided in Australia, including whether he or she arrived as a young child, and considering when the non-citizen’s offending began.
(Emphasis in original).
[159] Siale v Minister for Immigration and Citizenship [2025] FCA 608.
[160] Ibid [52].
It was held that paragraph 8.3(2) of the Direction ‘requires an assessment of the strength, duration and nature of any family or social links from the perspective of the non-citizen.’[161] Paragraphs 8.3(1) and (2) of Direction 110 are dealt with below.
[161] Ibid [61].
Impact of the decision on the Applicant’s immediate family members in Australia
The Applicant’s three minor children would be impacted by a non-revocation decision. They are Australian citizens and have been considered under paragraph 8.3(1). The Applicant’s parents are currently in Australia but are not Australian citizens or permanent residents and do not have a right to remain in Australia indefinitely.
The Tribunal has before it the psychological report of Dr Cunningham in which he observed the impact that a non-revocation decision would have on the children. He stated that in his opinion ‘the psychological health of Ms Lo’s children would best be served by both their mother and father being present in their lives.’[162] In his opinion:[163]
The current emotional connection with her children would effectively be broken if Ms Lo is deported to Vietnam. This would likely be a significant destabilising factor on the mental health of Ms Lo and her children.
[162] Exhibit R1, 231.
[163] Ibid.
Mr Le was also interviewed by Dr Cunningham. Mr Le said that his daughters would benefit from female support and guidance and that he is lost with regard to raising the children, especially as they become teenagers.[164]
[164] Ibid 232.
In regard to her youngest child (Child C), Senior Prison Officer Young wrote that Ms Lo was engaged with her son when he lived with her in custody pursuant to the Living with Mum program.[165] The Applicant and her ex-partner made the decision for Child C to leave the prison environment as they considered it was not conducive to his well-being or development.[166] Child C’s father (Mr Khiem) wrote that he believes every child should have both parents in their lives especially while they are still dependent. He wrote that Child C needs his mum to stay in Australia, to be part of his life, to have a mother’s love, and to see him grow.[167]
[165] Ibid 201.
[166] Ibid 362 [3].
[167] Ibid 178.
The Tribunal has taken into account the impact of the decision on the Applicant’s three minor children. The Tribunal considers that each of the three children would be significantly impacted by a non-revocation decision. The Tribunal acknowledges that a non-revocation decision would impact Child A and Child B significantly as these children are young females entering their teenage years. The Tribunal accepts that a non-revocation decision would impact them significantly and has taken this into account. The Tribunal also accepts that a non-revocation decision would impact Child C, being the Applicant’s youngest son. The Tribunal acknowledges that Child C would be differently impacted as he actually resided with the Applicant for three years in custody so has had a different experience to Child A and B. Child A and B were also raised by the Applicant in their formative years, but in an environment outside of prison.
In conclusion, the Tribunal considers that the three minor children would be significantly impacted by a non-revocation decision and gives this strong weight in favour of revoking the cancellation decision.
Strength, nature and duration of any other ties the Applicant has to the Australian community
The Tribunal has had regard to the strength, nature and duration of other ties the Applicant has to the Australian community. The Applicant began her offending approximately seven years after arriving in Australia. The Tribunal accepts that prior to her offending, she was contributing positively to the Australian community by engaging in study and work.
The Tribunal acknowledges that the Applicant’s parents are currently in Australia looking after the Applicant’s three minor children. It is accepted that the Applicant has strong ties to her parents and that they are in Australia from Vietnam, having left their two adult sons to care for the Applicant’s children.
The Tribunal also acknowledges the Applicant’s other familial ties to Australia including her ex-husband (Mr Le) and her former partner Mr Khiem. The Tribunal considers that the Applicant has strong ties to each of them as they are the fathers of her children. The Applicant described Mr Le as her best friend, and she also communicates as required with Mr Khiem to discuss the care of Child C. The Applicant also has close ties to Mr Khiem’s sister who (along with Mr Khiem) currently has full-time care of Child C and has done so from an early age.
The Tribunal also acknowledges the Applicant’s connections to other family members including her ex-mother-in-law (Ms Gam Thi Tran), Mr Khiem’s mother (Ms Tuyet Nguyen), and her ex-sister-in-law (Ms Mai Hoang Le). It is accepted that despite the fact she is no longer in a relationship with Mr Le or Mr Khiem, the Applicant retains strong ties to them.
The Applicant also has two cousins who are Vietnamese nationals but are currently residing in Australia.
In addition to these family members, the Applicant has established ties with friends including My Bui, Van Tuyen Dinh and Dong Thi Doan.[168] Each wrote letters of support for the Applicant and the Tribunal has had regard to the Applicant’s connection with each of these friends.
[168] Ibid 267, 419, 420.
The Tribunal has also had regard to the connections the Applicant has made in prison and her close ties she has formed with Ms Hanna Dickenson, and her mother Ms Susan Dickenson. Ms Hanna Dickenson has offered the Applicant a place to stay if she is released into the community. She describes the Applicant as a ‘sister’ and says the pair are close. The Tribunal has had regard to the strength, nature and duration of these relationships and considers them an important aspect of the Applicant’s ties to the community.
Conclusion on primary consideration three
Having considered all these matters, the Tribunal is of the view that this primary consideration weighs strongly in favour of revoking the cancellation decision. However, the Tribunal is of the view that primary consideration one outweighs this primary consideration. The Tribunal notes that paragraph 7(2) of Direction 110 provides that primary consideration one is generally to be given greater weight than other primary considerations. The Tribunal has already considered that primary consideration one is to be given greater weight and applies that here. The Tribunal considers that the Applicant had strong ties to the Australian community (being her children, partners, family and friends) but continued to offend regardless. The Tribunal accepts that these ties will now act as a protective factor in the Applicant’s rehabilitation but considers that primary consideration one should outweigh this primary consideration and the Tribunal makes this finding.
Primary consideration 4: Best interests of minor children in Australia affected by the decision
Paragraph 8.4(1) of Direction 110 provides that decision-makers must make a determination about whether cancellation or refusal under s 501, or non-revocation under s 501CA, is, or is not, in the best interests of a child affected by the decision.
This consideration only applies if the child is, or would be, under 18 years old at the time the decision is made.[169] 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.[170]
[169] Direction 110, 8.4(2).
[170] Ibid 8.4(3).
Paragraph 8.4(4) provides that in considering the best interests of the child, the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
There are three minor children in Australia that will be impacted by a decision to not revoke the mandatory cancellation of the Applicant’s visa. They are her two daughters (Child A and Child B) and her son (Child C). The best interests of each of the children have been considered separately below.
Child A
Child A is the Applicant’s eldest daughter. She is currently 12 years of age. She resides with her biological father. The Applicant’s ex-mother-in-law assists in the day-to-day care of Child A, as does the Applicant’s parents who are currently in Australia and have been assisting with the care of the children whilst the Applicant is incarcerated.
The Tribunal will now consider the factors identified at paragraph 8.4(4) of Direction 110 as they apply to Child A.
Paragraph 8.4(4)(a): Child A is the biological daughter of the Applicant. Her father is Mr Le. The relationship is parental in nature. The Applicant gave evidence that Child A visits the Applicant in prison every week. They also catch up via weekly Zoom calls.[171] Child A was almost four years old when her mother was arrested. The Applicant has remained in custody since, which means that the Applicant has been physically separated from Child A for the past eight years. The Tribunal observes Dr Cunningham’s opinion that the Applicant has a significant emotional connection with her children and takes this into account.[172] The Tribunal notes the important paternal relationship between the Applicant and Child A and gives this significant weight in the Applicant’s favour despite the lengthy period of separation.
[171] Exhibit R1, 229.
[172] Ibid 231.
Paragraph 8.4(4)(b): Child A is currently 12 years of age. The Applicant told the Tribunal she has been eligible for release from prison since December 2024. There was no evidence before the Tribunal which indicates that the Applicant has applied for parole, or whether that would likely occur in the near future. However, the Tribunal does accept that the Applicant has served her non-parole period and is eligible for release according to the prisoner records provided by the Applicant.[173] The Tribunal accepts that the Applicant is able to play a positive role in Child A’s future. The Tribunal accepts the Applicant’s submission that these next few years in her teenage daughter’s life are important, and Child A still has some years left before she turns 18, in which the Applicant can play an important parental role. This is given significant weight in the Applicant’s favour.
[173] Ibid 294.
Paragraph 8.4(4)(c): The Tribunal has considered the impact of the Applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on Child A. The Tribunal considers that Child A would have been negatively impacted by the Applicant’s offending from October 2016 and her arrest on 27 February 2017 which resulted in her continued incarceration since that time. Of course, any future conduct which might again result in the Applicant’s arrest would also impact Child A and the Tribunal has taken this into account and gives it little weight in the Applicant’s favour.

Paragraph 8.4(4)(d): The Tribunal has taken into account the likely effect that separation would have on Child A. The Tribunal accepts Dr Cunningham’s opinion that:[174]
…the psychological health of Ms Lo’s children would best be served by both their mother and father being present in their lives. The current emotional connection with her children would effectively be broken if Ms Lo is deported to Vietnam. This would likely be a significant destabilising factor on the mental health of Ms Lo and her children.
[174] Ibid 231.
Dr Cunningham considered that:
…deportation would be a significant destabilising factor in the mental health of Ms Lo, her ex-husband and her three children. She has a significant emotional connection with her children. Her daughters are approaching teenage years and would be greatly assisted by the presence of Ms Lo.
The Tribunal has taken Dr Cunningham’s opinion into account and considers that separation of the Applicant from Child A would have a significant, detrimental impact on Child A. The Tribunal attributes this significant weight in the Applicant’s favour.
Paragraph 8.4(4)(e): Child A currently resides with her father and has other family members in her life that fulfill a parental role (such as the Applicant’s ex-mother-in-law and the Applicant’s parents). The Tribunal accepts that Child A would benefit from having her mother in her life and gives this strong weight in the Applicant’s favour.
Paragraph 8.4(4)(f): The Applicant has provided hand-written letters and drawings from her children.[175] She has also provided photographs of her and the children both in prison and prior to her arrest.[176] The letters and drawings portray a close and loving bond between Child A and the Applicant. The Tribunal accepts the Applicant’s submission that her children are too young to give oral and written evidence to the Tribunal.[177] Child A’s father has provided a letter in support of the Applicant and stated that the love and affection the children have for their mother cannot be replicated.[178] The Tribunal gives this factor strong weight in the Applicant’s favour.
[175] Ibid 234-49.
[176] Ibid 250-66.
[177] Ibid 403 [127], 406 [140].
[178] Ibid 321.
Paragraph 8.4(4)(g) and (h): There is no evidence that Child A has been or is at risk of family violence or has suffered or experienced any physical or emotional trauma from the Applicant’s conduct. These factors are not relevant to the Tribunal’s consideration.
Weighing up the factors in this primary consideration, the Tribunal finds that it would be in Child A’s best interests for the cancellation decision to be revoked.
Child B
Child B is the Applicant’s youngest daughter. She is currently 11 years of age. She resides with her biological father. The Applicant’s ex-mother-in-law assists in her day-to-day care, as does the Applicant’s parents who are currently in Australia and have been assisting with the care of the children whilst the Applicant is incarcerated.
The Tribunal will now consider the factors identified at paragraph 8.4(4) of Direction 110 as they apply to Child B.
Paragraph 8.4(4)(a): Child B is the biological daughter of the Applicant and the second of two children she has with Mr Le. The relationship between Child B and the Applicant is parental in nature. Child B visits the Applicant in prison weekly and also participates in Zoom calls.[179] Child B was almost three years of age when the Applicant was arrested. The Applicant has remained in custody for the past eight years which means that the Applicant has been separated from Child B for most of her childhood. The Tribunal has taken into account Dr Cunningham’s opinion that the Applicant has a significant emotional connection with her children.[180] The Tribunal gives this factor significant weight in the Applicant’s favour because the relationship is parental, despite the years of separation.
[179] Ibid 229.
[180] Ibid 231.
Paragraph 8.4(4)(b): Child B is currently 11 years of age. The Tribunal accepts that there are still many more significant years in Child B’s life prior to her turning 18, in which the Applicant could play a positive role. The Tribunal gives this factor significant weight in the Applicant’s favour.
Paragraph 8.4(4)(c): The Tribunal has considered the impact of the Applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on Child B. The Tribunal considers that Child B would have been negatively impacted by the Applicant’s offending from October 2016 and her arrest on 27 February 2017 which resulted in her continued incarceration since that time. Of course, any future conduct which might again result in the Applicant’s arrest would also impact Child B and the Tribunal has taken this into account and gives it little weight in the Applicant’s favour.
Paragraph 8.4(4)(d): The Tribunal has taken into account the likely effect that separation would have on Child B. The Tribunal has had regard to the comments of Dr Cunningham in his reports and finds that the comments and opinions that the Tribunal has considered apply to Child A also apply equally to Child B. The Tribunal attributes this factor significant weight in favour of the Applicant.
Paragraph 8.4(4)(e): Child B currently resides with her father and other family members such as the Applicant’s ex-mother-in-law and the Applicant’s parents. The Tribunal accepts that Child B would benefit from having her mother in her life and gives this strong weight in the Applicant’s favour.
Paragraph 8.4(4)(f): The Applicant has provided hand-written letters, drawings and photographs of her children. The Tribunal accepts Child B has a close and loving bond with the Applicant. The Tribunal has taken into account the letter of support from Child B’s father which speaks about the love and affection the children have for their mother. The Tribunal gives this strong weight in the Applicant’s favour.
Paragraph 8.4(4)(g) and (h): There is no evidence that Child B has been or is at risk of family violence or has suffered or experienced any physical or emotional trauma from the Applicant’s conduct. These factors are not relevant to the Tribunal’s consideration.
Weighing up these factors, the Tribunal finds that it would be in Child B’s best interests for the cancellation decision to be revoked.
Child C
Child C is the Applicant’s youngest child. He is currently seven years of age. Child C is the biological child of the Applicant and Mr Khiem. Mr Khiem and his sister currently have full-time care of Child C. Child C was born whilst the Applicant was incarcerated and spent his first three years living with the Applicant in prison.
The Tribunal will now consider the factors identified at paragraph 8.4(4) of the Direction as they apply to Child C.
Paragraph 8.4(4)(a): Child C is the biological child of the Applicant and Mr Khiem. The relationship between the Applicant and Child C is parental in nature. Child C resided with the Applicant for his first three years of life. Ultimately, the Applicant and Mr Khiem determined that the custodial environment was not conducive to his wellbeing or development.[181] Child C now lives with Mr Khiem and his sister. Whilst in prison, Child C was cared for on weekends by Mr Khiem’s sister. The Tribunal considers that the relationship between Child C and the Applicant is close and loving despite the difficult circumstances. The Tribunal gives this factor significant weight in the Applicant’s favour.
[181] Ibid 362 [3].
Paragraph 8.4(4)(b): At seven years of age, Child C is still a very young child. Although there has not been any information or evidence regarding a possible parole date, the Tribunal considers that if the Applicant were released into the community and considering the length of time until Child C turns 18, the Tribunal accepts that the Applicant is likely to play a positive role in his future. The Tribunal gives this significant weight in the Applicant’s favour.
Paragraph 8.4(4)(c): The Tribunal considers that the Applicant’s conduct would have had a significant impact on Child C. Child C was born whilst the Applicant was incarcerated and spent his first three years living with the Applicant in prison. He was also cared for by Mr Khiem’s sister on weekend visits. Child C now lives with Mr Khiem and his sister full time. Child C has not spent time with his mother outside of the prison environment. The Tribunal considers that the Applicant’s prior conduct has deprived Child C of the opportunity to spend his early childhood years with his mother outside of prison. Of course, any future conduct would also result in future separation. The Tribunal has attributed this factor very limited weight in the Applicant’s favour.
Paragraph 8.4(4)(d): The Tribunal notes that Child C spent the first three years of his life in prison with the Applicant. Since that time, the Applicant has had weekly visits with Child C in prison. The Tribunal accepts the evidence of Dr Cunningham that any future separation would have a detrimental impact on Child C’s wellbeing. This factor weighs in the Applicant’s favour.
Paragraph 8.4(4)(e): Child C currently resides with his father and Mr Khiem’s sister on a full-time basis. She had also taken care of Child C when he was allowed to leave prison on the weekends. The Tribunal also notes that the Applicant’s parents are currently in Australia and assisting with the care of the Applicant’s children whilst she is incarcerated. The Tribunal considers that Mr Khiem and his sister currently fulfill a parental role in Child C’s life but accepts that Child C would benefit from having his mother in his life on a full-time basis and gives this strong weight in the Applicant’s favour.
Paragraph 8.4(4)(f): The Applicant has provided hand-written letters and drawings from each of her children. Mr Khiem has written a letter in support of the Applicant and stated that Child C needs his mother to stay in Australia and to be a part of his life.[182] The Tribunal considers that this factor weighs significantly in the Applicant’s favour.
[182] Ibid 178.
Paragraphs 8.4(4)(g) and (h): There is no evidence that Child C has been exposed to family violence or suffered physical or emotional trauma arising from the Applicant’s conduct. These factors are not relevant to the Tribunal’s consideration.
The Applicant submits that this primary consideration weighs heavily and significantly in favour of revocation.[183] The Respondent also accepts that this consideration weighs in the Applicant’s favour, but submits that it is not outweighed by the countervailing primary considerations, having regard to the fact that the parental role can be fulfilled by other family members as has been the case during the Applicant’s incarceration, and that contact can be maintained by electronic and other means.[184]
[183] Ibid 409 [153].
[184] Ibid 433 [52].
Conclusion on primary consideration four
The Tribunal considers that this primary consideration weighs strongly in favour of revoking the cancellation decision. However, the Tribunal considers that primary consideration one outweighs this primary consideration. The Tribunal notes that the children do have other people in their life who already fulfill a parental role, though it is accepted that the Applicant fulfills a vital role in their life as their mother, especially for her two daughters. Unfortunately, the Applicant has been incarcerated for most of their lives by reason of committing serious drug offending. In those circumstances, primary consideration one (the protection of the Australian community) outweighs this primary consideration.
Primary consideration 5: Expectations of the Australian community
Paragraph 8.5 deals with the expectations of the Australian community. It states:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. 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.
(2) In addition, 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. In particular, 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 the following kind:
a) acts of family violence; or
b) causing a person to enter into, or being party to (other than being a victim                    of), a forced marriage;
c) commission of serious crimes against women, children or other vulnerable        members of the community such as the elderly or disabled; in this context,   'serious crimes' include crimes of a violent or sexual nature, as well as other   serious crimes against the elderly or other vulnerable persons in the form of   fraud, extortion, financial abuse/material exploitation or neglect;
d) commission of crimes against government representatives or officials due                    to the position they hold, or in the performance of their duties; or
e) involvement or reasonably suspected involvement in human trafficking or          people smuggling, or in crimes that are of serious international concern   including, but not limited to, war crimes, crimes against humanity and   slavery; or
f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The Tribunal has considered the expectations of the Australian community as set out in Direction 110. The Tribunal must proceed on the basis that the Australian community’s views are as articulated by the Government in the Direction, without independently assessing the community’s expectation in a particular case.[185]
[185] FYBR v Minister for Home Affairs (2019) 272 FCR 454 [73]-[75] and [103]-[104].
This primary consideration provides that non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect the person to not continue to hold a visa. These expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The Applicant accepts that she has been convicted and sentenced for a serious drug offence and is serving a substantial prison sentence. It is submitted that while the offence is serious, it is not of the kind outlined in paragraph 8.5(2) and should not carry the same weight as offences of a violent, sexual or malicious nature.[186]
[186] Exhibit R1, 411 [162].
The Respondent submits that the Australian community would expect that the Applicant should not continue to hold a visa on account of her serious criminal offending, the risk of further offending and infliction of harm.[187] It is submitted that this primary consideration weighs very heavily against revocation, even if the Tribunal concludes that the Applicant does not pose a measurable risk of causing physical harm to the Australian community.[188]
[187] Ibid 434 [58].
[188] Ibid 434 [59].
The Tribunal considers that this is a case where non-revocation is appropriate because of the nature of the character concerns. The Applicant engaged in very serious conduct in breach of the community’s expectations. The Tribunal accepts that she has, as a consequence, been sentenced to a significant term of imprisonment. The Tribunal also accepts that the Applicant has expressed genuine remorse for her conduct and has availed herself of every opportunity to rehabilitate.
However, the Tribunal must proceed on the basis of the community’s expectations as articulated in the Direction. The conduct engaged in by the Applicant was very serious. Drug trafficking causes significant harm to the community. Its seriousness is reflected in the fact it carries a maximum penalty of life imprisonment. It is one of the most serious offences on the criminal calendar. The Tribunal notes that the community’s expectations as articulated in the Direction apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community. The Tribunal has already accepted that the Applicant is of a low risk of reoffending but must apply the norm as articulated in the Direction.
Conclusion on primary consideration five
The Australian community would expect that the Applicant should not continue to hold a visa. As such, the Tribunal attributes this primary consideration very heavy weight against revoking the cancellation decision. It outweighs the primary considerations in favour of revocation because of the serious nature of the Applicant’s offending.
OTHER CONSIDERATIONS
Other consideration 1: Legal consequences of the decision
Paragraph 9.1 provides that decision-makers should be mindful that unlawful non-citizens are, in accordance with s 198, liable for removal from Australia as soon as reasonably practicable in the circumstances specified in that section. This other consideration then considers non-citizens who are covered by a protection finding (as defined in s 197C of the Act), and those who are not.
The Applicant is not covered by a protection finding. She has not made a valid application for a protection visa. The Applicant’s representative argues in written submissions that Ms Lo may seek asylum under the complementary protection criteria. It is argued that Ms Lo may face discrimination and/or shame by the wider community in Vietnam as a convicted drug offender and that she may encounter significant hardship which may threaten her capacity to subsist.[189] It is submitted that there may be a ‘potential’ for non-refoulment obligations to be engaged and as a consequence this other consideration weighs moderately in favour of revocation.[190]
[189] Ibid 413 [171].
[190] Ibid 423 [171]-[172].
In reply, the Respondent submits it is open to the Applicant to apply for a protection visa. Where non-refoulment claims are raised, consideration of these claims may be deferred. The Respondent relies on the majority reasoning in Plaintiff M1/2021 which provides that where an applicant, in response to an invitation, makes representations that raise potential non-refoulement issues, it is open for the decision-maker to defer assessment of those non-refoulment obligations on the basis that it is open for the applicant to apply for a protection visa under the Act.[191]
[191] Ibid 436 [65] citing Plaintiff M1/2021 at [9].
In this case, the Applicant has raised potential non-refoulement issues on the basis that she may face discrimination which would threaten her capacity to subsist because she has a conviction for drug offending. The Applicant has also raised further non-refoulment obligations under the extent of impediments other consideration. The Applicant has submitted that she will likely face severe economic hardship that will threaten her capacity to subsist.[192] The Respondent submits that the Applicant’s claims in this regard are general in nature, lack detail and are not supported by corroborating evidence.[193] The Respondent submits that in any event it is open to the Applicant to apply for a protection visa, and as such the Tribunal may defer assessment of any potential non-refoulment obligations pursuant to the High Court’s reasoning in Plaintiff M1/2021.[194]
[192] Exhibit R1, 413 [173].
[193] Ibid 436 [64].
[194] Ibid.

The Applicant will be subject to the intended legal consequences of a non-revocation decision, that is, she will be liable for removal from Australia as soon as is reasonably practicable and will be subject to a period in immigration detention under ss 189 and 198 of the Act.[195]
[195] Ibid 436 [65].
Conclusion on other consideration one
The Tribunal has considered the potential non-refoulment obligations raised by the Applicant in her written submissions. The Tribunal has decided that consideration of these obligations should be deferred until a protection visa application is made and the non-refoulement obligations can be considered under that process. The Tribunal otherwise acknowledges and has had regard to the Applicant’s concerns with regards to potential discrimination and economic hardship she alleges she may face upon return to Vietnam. The Tribunal has also had regard to the intended legal consequences that a non-revocation decision would have on the Applicant. Considering these matters, the Tribunal has decided to attribute this other consideration moderate weight in the Applicant’s favour.
Consistent with paragraph 7(2) of Direction 110, the Tribunal has given greater weight to primary consideration one. The weight attributed to primary consideration one outweighs this other consideration.
Other consideration 2: Extent of impediments if removed
Paragraph 9.2 provides that decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country).
Decision-makers must take into account:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
The Applicant has raised under this other consideration that if she is returned to Vietnam, she will likely face significant economic hardship that threatens her capacity to subsist.[196] The Applicant submits she will not be able to rely on her parents and brothers for financial assistance and long-term residence, as she does not want to continue to burden her family as they have already sacrificed so much.[197] It is submitted that the impediments that the Applicant faces in establishing herself and maintaining basic living standards in that context is much more onerous than that of what is generally available to other citizens in Vietnam. Accordingly, it is submitted that this other consideration weighs moderately in the Applicant’s favour.[198]
[196] Ibid 413 [173].
[197] Ibid 413 [176].
[198] Ibid 414 [177]-[178].
The Respondent notes that the Applicant is 35 years old and has not declared any physical or mental health conditions.[199] She lived in Vietnam until the age of 19. It is submitted on behalf of the Respondent that she is unlikely to face any substantial language or cultural barriers. She would also have access to the same social, medical and economic support available to citizens of that country.[200]
[199] Ibid 437 [68].
[200] Ibid.
The Tribunal has had regard to the impediments raised by the Applicant. The Tribunal has considered that any claims of economic hardship (as raised in regard to any potential non-refoulment obligations) can be properly deferred until the Applicant makes a valid Protection visa application. To the extent they are raised an as impediment under this other consideration, the Tribunal notes that there is no evidence that the Applicant won’t have access to the same social, medical and economic support that is generally available to citizens of Vietnam even if she does have a prior conviction. The Applicant’s parents are from Vietnam, as are her brothers who still reside there. Although her parents are currently resident in Australia to assist with looking after the children, the Applicant notes in her written submissions that once the Applicant is released, her parents are planning to return to Vietnam.[201]
[201] Ibid 413 [176].
The Tribunal notes that there is no evidence that the Applicant suffers from any physical or mental health conditions. Dr Cunningham noted that the Applicant did not report any medical illness, or any drug or alcohol abuse issues.[202] Dr Cunningham also noted that the Applicant does not present with a mental illness.[203]
[202] Ibid 225.
[203] Ibid 226.
In those circumstances, considering her age, absence of any reported physical or mental health conditions, and the fact she is unlikely to encounter any substantial language or cultural barriers, the Tribunal considers that the extent of impediments she is likely to face would be minimal. There is no evidence to suggest that she would not be able to access the same social, medical and/or economic support that is available to citizens of that country. The Tribunal has had regard to the initial practical impediments she may face upon return. It is accepted that she has spent her adult years in Australia and has three Australian-born children who reside here. The Tribunal has taken this into account.
Conclusion on other consideration two
On balance the Tribunal has decided to attribute this other consideration moderate weight in the Applicant’s favour. Consistent with paragraph 7(2) of Direction 110, the Tribunal has given greater weight to primary consideration one. The weight attributed to primary consideration one outweighs this other consideration.
Other consideration 3: Impact on Australian business interests
Paragraph 9.3(1) provides that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia.
There are no known impacts on Australian business interests to consider under this other consideration, nor has the Applicant raised any. It is given neutral weight in the balancing exercise.
CONCLUSION
The Tribunal has considered the Applicant’s representations, and the considerations and factors set out in Direction 110. The Tribunal is required to carry out an evaluative exercise of weighing and balancing the various considerations in order to determine whether it is satisfied that there is ‘another reason’ to revoke the cancellation decision.[204]
[204] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 [27]-[28].
The Tribunal has had regard to the principles in paragraph 5.2 of the Direction. The Tribunal notes paragraph 5.2(2) which provides that the safety of the Australian community is the highest priority of the Australian Government. The Applicant moved to Australia at the age of 19 in August 2009 and commenced her offending in October 2016. She has not spent her formative years in Australia. The Tribunal accepts that she did contribute positively to the Australian community prior to her offending. The community’s tolerance for any criminal or other serious conduct may therefore be higher given she has spent some time contributing positively to the Australian community.[205] The Tribunal notes however that she has spent more than half her time in Australia either on remand or in prison for serious drug offending. She engaged in trafficking in a large commercial quantity of a drug of dependence which carries a maximum penalty of life imprisonment. The sentencing judge accepted she played a leading role in that offence. She had the protective factors of her two children residing with her prior to the commission of the offence but nonetheless continued to offend. She persisted with the offending even after her friend Ms Nguyen and former partner TD Nguyen were arrested. The Tribunal acknowledges the context in which she committed her offending, but the sentencing judge accepted (as does the Tribunal) that she was in ‘full flight’ of her activities.[206]
[205] Direction 110, 5.2(6).
[206] Exhibit R1, 69 [131].
The Tribunal also acknowledges the hard work the Applicant has engaged in to rehabilitate herself. The Tribunal also accepts that a non-revocation decision would have a significant impact on the Applicant’s children and her former partners. The Tribunal has attributed strong weight to primary considerations three and four which are in the Applicant’s favour. However, the Tribunal has also had regard to the principle that in some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing a visa, or revoking a mandatory cancellation.[207] The Tribunal has determined that even though the Applicant is a low risk of reoffending, the harm that would be caused if she did reoffend is so serious that any risk the offending may be repeated is unacceptable.
[207] Direction 110, 5.2(7).
In this case, the Tribunal has attributed very heavy weight to primary considerations one and five. The Tribunal has given greater weight to primary consideration one in accordance with the terms of the Direction. In those circumstances, the Tribunal considers that primary consideration one and five outweigh primary considerations three and four. The Tribunal notes that primary consideration two is only given very limited weight against the Applicant given the circumstances of that prior offending. The Tribunal has considered the principles in relation to family violence as contained in the Direction.[208] Although the Applicant’s prior offences are regarded as family violence according to the definition in the Direction, the Tribunal has decided to attribute little weight to it given the context in which it occurred. The Tribunal has also had regard to the other considerations in the Applicant’s favour. It is noted that primary considerations should generally be given greater weight than the other considerations.[209]
[208] Ibid 5.2(8).
[209] Ibid 7(2).
In conclusion the Tribunal considers that primary consideration one and five outweigh primary considerations three and four. Primary considerations one and five also outweigh the other considerations. The Tribunal has given greater weight to primary consideration one as it is permitted to do under the Direction.
For the reasons outlined above, the Tribunal is not satisfied that there is another reason under s 501CA(4)(b)(ii) to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
The Tribunal affirms the decision under review.

Dates of hearing: 9 and 10 July 2025

Counsel for the Applicant: Mr William Drent

Solicitors for the Applicant: Blue Rock Law (Melb) Pty Ltd

Advocate for the Respondent: Mr Jesse Slankard

Solicitors for the Respondent: Sparke Helmore Lawyers

Dates of hearing:	9 and 10 July 2025
Counsel for the Applicant:	Mr William Drent
Solicitors for the Applicant:	Blue Rock Law (Melb) Pty Ltd
Advocate for the Respondent:	Mr Jesse Slankard
Solicitors for the Respondent:	Sparke Helmore Lawyers