LPDT and Minister for Immigration and Multicultural Affairs - [2024] ARTA 6

LPDT and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 6 (19 December 2024)
MatterType:  Migration
CitationNumber:                 New
Applicant:LPDT
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2021/2590

Tribunal:Senior Member A. Nikolic
Place:Melbourne
Date:19 December 2024

Decision:The Tribunal affirms the decision under review.

...................[SGD].....................................................
Senior Member A. Nikolic
Catchwords
MIGRATION – mandatory visa cancellation – citizen of Vietnam – Class BS (Subclass 801) Spouse Visa – where Applicant first entered Australia on false passport and under false name – multiple false identities – conspiracy to import / export marketable quantity of border controlled drugs or plants – traffick drug of dependence – deal with property suspected of being proceeds of crime – other dishonesty offending – failure to pass good character test – substantial criminal record – non-revocation decision – Federal Court of Australia dismissed judicial review application – dismissal of appeal by Full Court of the Federal Court of Australia – High Court of Australia overturns decision of Full Court – application remitted – whether another reason to revoke the mandatory cancellation – Ministerial Direction no. 110 applied – protection visa application refused and pending Federal Court appeal – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Regulations 1994 (Cth)
Cases
Al-Kateb v Godwin (2004) 219 CLR 562
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Brownlie v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 436
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
CTK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
DOB18 v Minister for Home Affairs [2018] FCA 1523
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 056
Hughes v The Queen (2017) 263 CLR 338
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
LPDT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2224
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 810
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 1
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610
Matthews v Minister for Home Affairs [2020] FCAFC 146
McKay v R [2000] FCA 155
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Multicultural Affairs v Huynh (2004) 80 ALD 501
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 (2021) 285 FCR 540
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160
NZYQ v Minister for Immigration, Citizenship & Multicultural Affairs [2023] HCA 37
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
YKSB v Minister for Home Affairs [2020] FCAFC 224
Secondary Materials
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (together “the Refugee Convention”).
International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976) (“ICCPR”)
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (“CAT”)
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
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)
Sentencing Advisory Council (Vic), ‘Imprisonment’ (Web Page, updated 7 May 2024) align="center">Statement of Reasons
INTRODUCTION

This matter has been remitted to the Tribunal for re-hearing by the High Court of Australia (“HCA”) and has an extensive procedural history.
In May 2019, while the Applicant was serving a sentence of full-time imprisonment, the Respondent cancelled his Class BS Subclass 801 (Spouse) visa as required under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).[1] The Applicant was invited to make representations to have the cancellation decision revoked and did so through his lawyer.[2] His application under s 501CA(4) of the Act to revoke the cancellation decision was unsuccessful (‘the non-revocation decision’).[3]
[1] Exhibit R1, 233–8.
[2] Ibid 52–224.
[3] Ibid 16–34.
On 23 April 2021, the Applicant asked the Tribunal to review the non-revocation decision.[4]
[4] Ibid 8–15.
On 7 July 2021, a differently constituted Tribunal affirmed the non-revocation decision.[5]
[5] LPDT and Minister for Immigration, Citizenship, Mirant Services and Multicultural Affairs (Migration) [2021] AATA 2224.
The Applicant appealed and on 14 July 2022 the Federal Court of Australia dismissed the application.[6]
[6] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 810.
The Applicant again appealed and on 3 May 2023 the Full Court of the Federal Court of Australia also dismissed the application.[7]
[7] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 1.
The Applicant was granted special leave to appeal by the HCA. On 10 April 2024, the Court allowed his appeal,[8] which gives rise to the current proceeding.
[8] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610.
The remitted hearing was held in the Tribunal’s Melbourne Registry on 6, 7, and 8 November 2024. The Applicant was represented by Mr John Maloney of counsel instructed by Ms Isabel Owen, a solicitor from Clothier Anderson Immigration Lawyers. The Respondent was represented by Mr Alexander Zhang, a solicitor from Clayton Utz.
For the following reasons the Tribunal affirms the reviewable decision
BACKGROUND
The Applicant is 59 years old and a citizen of the Socialist Republic of Vietnam. He married while living there, fathered two children, but separated from his wife in 1996.[9] The Applicant refers to studies in planning and business management and employment with the Vietnamese Government.[10] In about 1996 or 1997 he claims to have ‘transferred to a private company in the import/export industry specialising in procurement’.[11]
[9] Exhibit A1, 1–2 [8]–[9].
[10] Exhibit R1 379 [2].
[11] Ibid.
The year of the Applicant’s first arrival in Australia is unclear. A sentencing court was told by the Applicant’s solicitor in 2011 that he first arrived in Australia in August 1988 under a false identity.[12] The Applicant currently asserts he first arrived here in 1997 on a Cambodian passport obtained in a false identity.[13] He explains this occurred after the head of a company he worked for in Vietnam was arrested on drug trafficking charges,[14] causing the Applicant to immediately flee to Cambodia to avoid arrest.[15] The Applicant claims this decision was motivated by fear his employer would falsely implicate him in illicit drug activities despite the Applicant being unaware of the contents of ‘sealed boxes’ he delivered ‘to various places’.[16]
[12] Ibid 48 [24].
[13] Applicant’s Statement of Facts, Issues, and Contentions (‘ASFIC’), 2 [5].
[14] Exhibit A1, 2 [5].
[15] Ibid.
[16] Ibid 2 [11]–[15].
The Applicant accepts that since arriving in Australia he has used false identities.[17] In addition to the fraudulent Cambodian passport mentioned above, he obtained Australian and Vietnamese passports in two different names then used all three passports for international travel between 1997 and 2009.[18] This includes for holiday and/or business purposes to Cambodia, Vietnam, the United States of America (‘USA’), Canada, South Korea, and Hong Kong.[19] It is noteworthy the Applicant has returned to Vietnam on multiple occasions despite professing fear of arrest and a death sentence. One of these visits was in 2005 for a traditional Vietnamese wedding to his current wife.[20]
[17] Exhibit R1, 67, 81, 93, 102 (paragraph 2), 379–80, 388–9 [5], 392–5, 443(2), 578, 676-9; Exhibit R2, 100 [560].
[18] Exhibit R1, 677 [5]; Exhibit R2, 14 [Q. 43–45], 54 [39]; Exhibit R3.
[19] Exhibit A3.
[20] Exhibit R1, 91 [6]; Exhibit A1, 3 [26].
The Applicant is first officially recorded as arriving in Australia in 2006 using a Vietnamese passport under the identity in which his visa was cancelled in the present matter. According to Departmental records he has departed Australia four times under this passport for periods of between one and 3 months.[21]
[21] Exhibit R1, 232–3.
Between November 2011 and August 2017, the Applicant was convicted of multiple drug and dishonesty offences during three court appearances.[22] These each resulted in sentences of imprisonment as follows:
(a)November 2011: The Applicant was convicted of conspiring to import a marketable quantity of heroin and two counts of attempting to possess a marketable quantity of heroin. He was also convicted of making false or misleading statements when he obtained an Australian passport, applied for an Australian visa, and in a statutory declaration (“false declaration offences”). He was sentenced to a total period of 7 years and 6 months imprisonment for the drug and false declaration offences, with a non-parole period of 5 years.
(b)June 2013: The Applicant’s false declaration offences were successfully appealed and transferred to the Magistrates’ Court for reconsideration.[23] He was subsequently convicted of making a false statement, including in a statutory declaration and to an officer. He received a sentence of 6 months imprisonment on each charge to be served concurrently, resulting in a total effective sentence of 6 months.
(c)August 2017: Within months of completing parole the Applicant engaged in further drug-related offending. In August 2017 he was convicted on two counts of trafficking a drug of dependence and dealing with property suspected of being proceeds of crime. The trafficking charges involved heroin and crystal methamphetamine. The Applicant was sentenced to 54 months’ imprisonment for the first trafficking offence, 48 months’ imprisonment for the second (of which 42 months was concurrent), and 6 months imprisonment for the proceeds of crime offence (of which 4 months was concurrent). The total effective sentence awarded was 5 years imprisonment with a non-parole period of 3 years and 2 months.
[22] Ibid 35–6.
[23] Ibid 590–1.
Procedural history
In January 2023, the Applicant lodged an application for a Protection Visa.[24] This was refused on 23 October 2023.[25] He appealed the refusal decision to this Tribunal[26] but on 6 June 2024 his appeal was dismissed by the Migration and Refugee Division (‘MRD’).[27] Mr Maloney has advised the Tribunal that this decision is currently the subject of judicial appeal.
[24] Exhibit R2, 1–45.
[25] Ibid 112–31.
[26] Ibid 132–7.
[27] Ibid 236–57.
Just prior to closing submissions on the afternoon of the final hearing day, Mr Maloney sought an adjournment so that arrangements could be made for the Applicant’s ex-wife and daughter in Vietnam to give evidence. His request arose from questions during cross-examination about why the Applicant’s family members in Vietnam did not give oral testimony. Mr Maloney submitted that the evidence of the Applicant’s ex-wife and daughter could address doubts about the veracity of documents he currently relies upon. The Tribunal denied the adjournment request, which would have required reopening the evidence after the parties’ respective cases had concluded. The Tribunal noted it was open to the Applicant since hearing dates and scheduling orders were decided over five months earlier to call any witnesses. The Tribunal also noted the Applicant’s evidence that he separated from his former wife almost 30 years ago when their children were quite young and to have had limited contact with them since. Given the very brief documentary evidence from the Applicant’s ex-wife and children in this proceeding,[28] it was unclear how supplementing it with oral testimony would add much. As for concerns about how identity documents currently relied on by the Applicant might be received, these were matters for submissions. Finally, given the significant listings currently before the Tribunal, it was unlikely a resumed hearing could be scheduled any earlier than February 2025. Extended delay is undesirable given the Applicant has remained in detention for some years as his various appeals have been addressed.
[28] Ibid 84–5, 166.
LEGISLATIVE FRAMEWORK
Section 13 of the Administrative Review Tribunal Act 2024 (Cth) (‘the ART Act’) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and a person does not pass it if they have a ‘substantial criminal record’ as defined by s 501(7). This includes if they have been sentenced to a term of imprisonment of 12 months or more: s 501(7).
Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and invite the affected person to make revocation representations. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act confers a discretionary power upon the Minister to revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
Subsections 49 - 50 of the ART Act provide that the procedure of the Tribunal is within the discretion of the Tribunal and the Tribunal must act with as little formality and technicality as a proper consideration of the matters before it permit. Section 52 of the ART Act states that the Tribunal ‘is not bound by the rules of evidence but may inform itself on any matter in such manner as it considers appropriate’.
ISSUE
The Applicant has a substantial criminal record and does not pass the character test, including because of his 2017 convictions and 5-year sentence of imprisonment. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision. The remaining issue under s 501CA(4)(b)(ii) of the Act is whether there is ‘another reason’ for revocation.[29] The Tribunal ‘stand[s] in the shoes of the original decision-maker’ but considers the available evidence ‘at the time of [its] decision’.[30]
[29] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, 191–2 [3]–[5] (Katzmann J), 198 [24] (Derrington J), 219 [103] (O’Bryan J).
[30] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 (‘Nathanson’); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324–5 [134].
In Plaintiff M1/2021, a majority of the High Court relevantly said (citations omitted):[31]
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. …The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations…the weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25. …What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
[31] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (‘Plaintiff M1/2021’), [22]-[27] (Kiefel CJ, Keane, Gordon, and Steward JJ).
As the Full Court of the Federal Court of Australia has held:
23. …Since Plaintiff M1/2021 it can no longer be said that the Minister in deciding whether to exercise the power conferred by s 501CA(4) is required to form the necessary state of satisfaction by considering the representations made to the Minister. Provided the Minister reads, identifies, understands and evaluates the substantial and clearly expressed claims in the representations, it is a matter for the Minister as to what, if any, weight is given to those claims and whether a matter is brought to bear in making the decision: see ECE21 v Minister for Home Affairs [2023] FCAFC 52; (2023) 297 FCR 422 at [6]-[9]. The requirement to consider those representations (and the materials they rely upon) does not go any further.[32]
[32] Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160, [23] (Perram, Colvin and Abraham JJ).
DIRECTION 110

In making its decision, the Tribunal must comply with a ministerial direction under s 499(1) of the Act, known as ‘Ministerial Direction 110’ (‘the Direction’).[33] The Direction contains ‘mandatory and aspirational considerations’ guiding the exercise of statutory power.[34]
[33] The Act (n 16) s 499(2A); CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416, 417–8 [4] (Rares, O’Callaghan and Jackson JJ); Nathanson (n 30), 540 [4]; Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (commenced 21 June 2024) (‘The Direction’).
[34] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, [45].
Clause 5.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’.
The following principles at cl 5.2 of the Direction provide a framework within which
decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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 noncitizen poses a measurable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the
non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the
non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision.
Clause 8 of the Direction identifies the following primary considerations:
(1) Protection of the Australian community from criminal or other serious conduct;
(2) Whether the conduct engaged in constituted family violence;
(3) The strength, nature, and duration of ties to Australia;
(4) The best interests of minor children in Australia; and
(5) Expectations of the Australian community.
Clause 9(1) of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed; and
(c)Impact on Australian business interests.
Clause 7(1) provides that when applying primary and other considerations, appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that the primary consideration ‘Protection of the Australian community’ is ‘generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.’
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’.
The individual and cumulative weighing process is a matter for individual decision-makers.[35]
EVIDENCE
[35] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, [28], [37]–[38] (Colvin, Stewart and Jackson JJ); Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) FCR 582, 587 [23] (Mortimer J, as her Honour then was); Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, 551 [23], 522 [28] (Colvin J); Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, 473 [57].
Statement of Facts, Issues, and Contentions
A Statement of Facts, Issues, and Contentions (‘SFIC’) is routinely lodged by parties prior to a hearing and is comparable to a pleadings document. The Tribunal has considered an undated SFIC from the Applicant numbering 28 paragraphs and submissions dated 18 October 2024 replying to the Respondent’s SFIC dated 21 August 2024.
Documentary evidence
Over 3,000 pages of documents were tendered into evidence as follows:
(a)Remittal bundle lodged by the Respondent numbering 1,601 pages;[36]
[36] Exhibit R1.
(b)Supplementary documents lodged by the Respondent numbering 721 pages;[37]
[37] Exhibit R2.
(c)Email from the Applicant’s lawyer at the Asylum Seeker Resource Centre (‘ASRC’) dated 18 April 2023, covering a one-page document referring to the Applicant’s travel and employment history, and 9 pages of submissions summarising claims relating to his Protection Visa application;[38]
[38] Exhibit R3.
(d)Statements of the Applicant dated 5 August 2024 numbering 16 pages, and 17 October 2024 numbering 2 pages;[39]
[39] Collectively Exhibit A1.
(e)Two-page Statutory Declaration dated 5 August 2024 from a friend of the Applicant who claims to have known him for about 17 years;[40]
(f)Four-page Statutory Declaration dated 5 August 2024 from a friend the Applicant was imprisoned with in about 2018;[41]
(g)Three-page report dated 18 October 2024 from the Australian Vietnamese Women’s Association (‘AVWA’), covering a two-page undated Client Recovery Plan;[42]
(h)Two-page Statutory Declaration dated 5 August 2024 from a friend of the Applicant who is willing to offer him work in a kitchen renovation business;[43]
(i)Three-page Statutory Declaration dated 5 August 2024 from a friend the Applicant was imprisoned with about 10 years ago;[44]
(j)Undated 2-page statement of a company director offering to employ the Applicant, covering an ATO Business Activity Statement for the period July to September 2024;[45]
(k)Country Report for Vietnam dated 11 January 2022 from the Department of Foreign Affairs and Trade (‘DFAT’);[46]
(l)IHMS[47] summary reports dated 30 October 2023 and 29 April 2024, covering IHMS clinical records dated between 15 August and 10 September 2024, and an IHMS Special Needs Assessment dated 16 December 2022;[48] and
(m)Report of the Royal Commission into the Casino Operator and Licence dated October 2021 by the Hon. Ray Finkelstein AO QC.[49]
[40] Exhibit A2.
[41] Exhibit A3.
[42] Exhibit A4.
[43] Exhibit A5.
[44] Exhibit A6.
[45] Exhibit A7
[46] Exhibit A8.
[47] International Health and Medical Services (“IHMS”) provides primary and mental health care services within the Australian immigration detention network.
[48] Exhibit A9.
[49] Exhibit A10.
Applicant’s evidence
The Applicant’s documentary evidence includes multiple statements and transcripts.[50] At the commencement of his oral testimony he adopted two statements dated 5 August 2024 and 17 October 2024 as true and correct. Questioning of the Applicant was undertaken with the assistance of an interpreter in the Vietnamese language over all three hearing days. The Tribunal confirmed that the Applicant had discussed his privilege against self-incrimination with his barrister and is satisfied he understands this. He was reminded of this right by the Tribunal on each subsequent hearing day. Key aspects of the Applicant’s oral testimony are now summarised.
[50] Exhibit R1, 62–80, 90–2; Exhibit R2, 51–8, 71–6, 90–111, 159–160, 214–16.
Life prior to arrival in Australia
The Applicant referred to growing up with his parents and five other siblings in Vietnam. He later recalled another sister died about 30 years ago. The Applicant discussed the work undertaken by his siblings and said one of his brothers now lives in the USA.
In terms of education and work in Vietnam, the Applicant said he finished secondary school to Year 12, attended a vocational college ‘like a TAFE’, and from 1987–1990 was employed by a state-owned company that ‘bought, sold, and exported things’. He also ran a restaurant and ‘bought and sold things’ himself. The Applicant married and his wife had two children before they separated in 1996.
When asked by Mr Maloney about the reasons for his departure from Vietnam, the Applicant said he was ‘involved in a criminal case about drugs’, had an arrest warrant issued by Vietnamese police,[51] and immediately fled Vietnam because ‘if arrested [he] may have to suffer capital punishment’. He explained that the employer he worked for was involved in drug trafficking. The Applicant recalled delivering ‘sealed boxes’ as part of his administrative role but claimed to have been unaware of any ‘drug dealings’ and ‘never questioned’ what was in the boxes.[52] The Applicant said the employer received ‘capital punishment’ in 1997 after the Applicant’s departure from Vietnam.
[51] Exhibit R2, 144.
[52] Exhibit A1, 2[12], [14]; Exhibit R1, 379 [3].
The Applicant recalled using a different name to obtain a Cambodian visa, which he said was ‘to avoid chase and arrest by Vietnamese police’. He then used another identity to secure documents enabling him to enter and remain in Australia.
During cross-examination, the Applicant was taken by Mr Zhang to a translated statement dated 12 May 2020, which was lodged with revocation submissions filed by his previous lawyer. In this statement the Applicant submitted he fled Vietnam with a sister for a ‘better life’ because of poverty and the ‘brutal and ruthless policies of the Vietnamese government’.[53] He initially claimed the name of the sister in this statement was a mistake because it was the name of his current wife that was erroneously entered. In response to further questions, however, the Applicant said this statement contained a ‘set-up name with a set-up background’, which he established ‘around 2004 or 2005’ by ‘making up the personal details’. He said the claim in this statement that his parents died when he was 14 ‘is a lie’. The Applicant agreed he was not truthful with the lawyer who lodged this statement and other materials on his behalf, because it was based on a fictional narrative. He again invoked ‘the chase of police in Vietnam’ as the reason for doing so.
[53] Ibid 90 [1].
Identity claims and life after arrival in Australia
The Applicant said he came to Australia using a Cambodian passport with a false identity, before obtaining an Australian passport in another false identity. He subsequently established a third false identity in a Vietnamese passport that he used in Australia for ‘more than 20 years’. He insisted the latter contains a ‘lawful name’ because the passport was issued by a Vietnamese Embassy. Similarly, when Mr Zhang referred to the Applicant’s use of a fraudulent Australian passport, he responded: ‘I have to correct you – it’s not fraudulent – it’s a real Australian passport’ that was procured in around 1999 or 2000. The Tribunal inferred the Applicant was attempting to distinguish between the false identities in these passports and their purported legitimacy as documents issued by Vietnamese and Australian authorities.
The Applicant was asked about a reference to a previous identity he used being linked to his current wife in the context of a Centrelink claim.[54] He responded: ‘I do not remember.’
[54] Exhibit R1, 680 [21], [25].
The Applicant contends that the name in his Vietnamese passport, which he has used for more than two decades, is not his real name. He relies on photographs of a Vietnamese identification card and driver’s licence that were obtained relatively recently from family members in Vietnam. These photographs were taken by his previous legal representative in immigration detention.[55] The Applicant said the driver’s licence refers to an identifying skin-related feature on his face, which he still has, and the Vietnamese address is the same as that shown on an arrest warrant from Vietnamese authorities. The Applicant claimed both documents were issued in his real name prior to departing Vietnam in 1997.
[55] Exhibit R2, 147–8.
During cross-examination, the Applicant was taken to a finding by a Document Examiner regarding the Vietnamese identification card, which states:[56]
It is my opinion that it is a legitimately manufactured Vietnamese national identity card; however because of the low value security of the document it is not possible to determine whether its condition is due to wear and tear or due to fraudulent alteration.
The result is inconclusive.[57]
[56] Ibid 157.
[57] Ibid 158.
Mr Zhang put to the Applicant that this finding suggests the possibility that the card may have been fraudulently altered. He asked whether the Applicant or someone on his behalf altered the card’s contents, to which the Applicant responded: ‘I confirm 100% no.’ Mr Zhang referred to the Applicant’s history and asked why the Tribunal should believe him. The Applicant said: ‘I got convictions for document fraud, but I confirm this document is true.’
It was put to the Applicant by Mr Zhang that after arriving safely in Australia he was taking a very significant risk by repeatedly returning to Vietnam. The Applicant said he had ‘already given an explanation for that conduct’. When pressed by Mr Zhang about the unreasonableness of taking such risks, the Applicant said he was ‘sure the police would be unable to identify [him]’ because his return visits were under false identities.
The Applicant said he has seen his siblings during multiple return visits to Vietnam since 1997 and contacted them after being released from his most recent imprisonment in December 2022, to ‘look for evidence’ about the identity he currently claims is real. During oral testimony he claimed to have had no contact with a brother living in the USA since that brother moved there. Mr Zhang referred the Applicant to a Statutory Declaration dated 17 February 2023 in which he claimed to communicate with a ‘brother in America on a regular basis’.[58] The Applicant said this was a mistake that ‘may have come from [his] lack of English proficiency’. The Tribunal noted, however, that this Statutory Declaration was taken with the assistance of an interpreter.[59] The Applicant explained that the person he intended to refer to in the USA was his wife’s brother and therefore his ‘brother-in-law’ who knows a lot about his family in Vietnam and provides updates. When asked if he still gets on well with this brother-in-law, the Applicant said their contact is infrequent. He then stated they had stopped communicating. When asked to explain this change in position, the Applicant gave a somewhat elaborate narrative that when not in contact with his ex-wife in Vietnam, he contacted this brother-in-law in the USA to get ‘family updates’. But about a year ago when he resumed contact with his ex-wife to get photographs and other documents to support his current identity claims, she told him the local police still ‘often’ harass her about the Applicant’s whereabouts. So, to avoid causing his ex-wife difficulties, the Applicant still has ‘a way to get in touch with the brother-in-law’ in the USA to seek family updates.
[58] Exhibit R2, 57 [72].
[59] Ibid 58 [79].
The Applicant was referred to a Statutory Declaration in which he claimed to have ‘stopped contacting [his] family in Vietnam because of [a Vietnamese] arrest warrant’.[60] He said that this changed when his previous lawyer at the ASRC asked him to get ‘identity evidence’, which meant he ‘had to contact family’ in Vietnam.[61] He could not recall when the lawyer asked him to do so, but his enquiries with family in late 2023 produced the materials he relies upon for his current identity claims. After refusal of his Protection Visa, he also reached out to family in April 2024, including his ‘ex-wife via Facebook Messenger’ to see what other information might be available.[62] He referred to letters and birth certificates sent by his adult children in Vietnam, and letters from two older sisters and an older brother.[63]
[60] Ibid 73[18]–[20].
[61] Ibid.
[62] Ibid 159.
[63] Ibid 84, 87, 162, 165. 168-9, 170, 172.
The Applicant claims not to have a close relationship with his siblings, seldom speaks with them, and estimates this occurs only once or twice a year. When asked if his siblings know about his circumstances in Australia, the Applicant responded: ‘I think they know.’ He stated: ‘I only contact them when I need help with some documents…when it’s really necessary.’ He could not recall when their last telephone contact was. The Applicant said their last physical contact was during his wedding in Vietnam in 2005 when his parents and ‘all siblings’ attended. He claimed to have stayed in Vietnam for 2–3 weeks for this wedding.
The Applicant was referred by Mr Zhang to the 2019 report of consultant psychologist Mr Watson-Munro, in which the following is stated:
[The Applicant] stated that he has had no physical contact with his siblings for many years and even on one occasion, when he evidently returned to Vietnam referable to his marriage, he did not see his family because he was worried that he would be followed by the Police. He added “I avoided everything”. This evidently included his parents.[64]
[64] Exhibit R1, 105 (paragraph 2).
When asked to explain the inconsistency between his oral testimony about parents and siblings attending his wedding in 2005, and Mr Watson-Munro’s report that they did not, the Applicant initially claimed the consultation with Mr Watson-Munro was conducted ‘without an interpreter’. When referred to Mr Watson-Munro’s reference to ‘the assistance of a competent interpreter’[65] being provided, the Applicant insisted there was no interpreter and claimed he had to use ‘an English–Vietnamese dictionary’ to understand and to be understood. When put to the Applicant it was unlikely an experienced psychologist would refer to the involvement of an interpreter when that was not the case, the Applicant’s evidence changed. He instead claimed to have been ‘mostly focussed’ on expressing his ‘feelings and fears’ to Mr Watson-Munro to ‘help…get the visa back’, ‘may not have concentrated enough’ during their discussion, may not have ‘prepared well for the answer’. He also stated that he and Mr Watson-Munro ‘may not be on the same page’. Mr Zhang put to the Applicant that his family’s attendance at the 2005 wedding suggested he was not genuinely worried about arrest. The Applicant said there were ‘many things impacting on [his] memory’ at the time of his consultation with Mr Watson-Munro. But now that he has the ‘latest report [sic], that’s the truth’ and he is telling it from his ‘understanding’.
[65] Ibid 102 (paragraph 1).

The Applicant was taken by Mr Maloney to two photographs in evidence.[66] He identified the first as a photograph of him with his first wife and their two young children. The second is of a larger group including the Applicant, his parents, and other family members. The Applicant recalled that his Vietnamese daughter stayed with him in Australia for 4 years and studied at a prominent university until he was arrested for the drug offences leading to his 2011 convictions. When asked what degree she studied, the Applicant claimed not to know. When challenged he claimed they ‘weren’t close’, ‘rarely talked’, and never discussed her undergraduate course. The Applicant said his daughter did not get on with his wife in Australia. so he arranged for his daughter ‘to stay in one house’ while he and his wife stayed in another. The Applicant said his daughter ‘was upset and angry that [he] didn’t continue the relationship with her mum’. When asked by Mr Zhang why his daughter decided to stay with him in Australia if that was the case, the Applicant responded: ‘She had to come to stay with me because she didn’t have any contacts or support for food and accommodation.’ Later in his evidence the Applicant said his daughter concurrently worked while studying at university and rented a room out, which defrayed costs.
[66] Exhibit R2, 179, 199.
While living in Australia the Applicant and his partner had a son in February 2003 who is now an adult. The Applicant agrees the father’s name entered on his son’s birth certificate is a false identity.[67] The Applicant married his current partner in Vietnam 2005 and their Australian marriage certificate is in another false identity.[68] He agrees that he applied for a prospective spouse visa on 10 February 2006 in that false name while present in Ho Chi Minh City.[69] His current wife sponsored that visa. When asked how long he spent in Vietnam given his wedding was in 2005 and the application for a prospective spouse visa was in 2006, the Applicant could not recall. When asked if his current wife knows about his history and use of multiple identities, the Applicant responded: ‘I think she knows.’ When asked if she knows about the Vietnamese arrest warrant the Applicant responded: ‘I think maybe, but she doesn’t know clearly’.
[67] Exhibit R1, 97.
[68] Exhibit R2, 93.
[69] Exhibit R1, 680 [28].
The Applicant was granted permanent residency in Australia under a false identity on 25 September 2008.[70] When asked about any work in Australia the Applicant said he worked as a ‘freelancer’ in his wife’s shop for a time and later undertook a brief period of work for a Vietnamese friend. This is his only employment here. When asked if there were any other activities to financially sustain himself, he responded: ‘It has been a long time – I don’t remember.’ When asked how he supported himself, the Applicant responded: ‘I don’t remember exactly.’ When further pressed, he claimed to have money from ‘when [he] was still in Vietnam’ and from his wife’s shop in Australia. When asked what happened when the shop closed, the Applicant said he used money from gambling and borrowed. The Applicant claims to have current savings of approximately $10,000.
[70] Ibid 48 [21], 233, 682 [37].
Return visits to Vietnam
The Applicant accepts he has returned to Vietnam multiple times since 1997. His evidence is that he applied for and received a Vietnamese passport from the Vietnamese Embassy in Cambodia in approximately 2004 or 2005 and, when that passport expired, he applied for and received a replacement passport in 2014 from the Vietnamese Embassy in Canberra.[71] When asked how the Vietnamese Embassy in Cambodia issued him a passport not in his real name, the Applicant responded: ‘I faked some documents. I set up the background information and details.’ He said that during this time the Vietnamese Government was trying to make it simpler for Vietnamese citizens in Cambodia to obtain national identity documents.[72] When asked by Mr Zhang about the documents thathad to be provided to Vietnamese consular officials for a passport, the Applicant said he used ‘third parties offering a service’ to produce these and a ‘CV’. When asked if he took the ‘forged Cambodian passport’[73] to Vietnamese authorities as part of this application process, the Applicant responded: ‘No’.
[71] Exhibit R2, 149.
[72] Ibid 54 [38]–[39].
[73] Ibid [39].
The Applicant explained there were several purposes for his return visits to Vietnam. This included seeing his ageing parents, getting married, and ‘making some money’. In terms of the latter the Applicant referred to business activities involving used cars, real estate, and import/export. He claimed to have ‘connected people in Vietnam with people in Cambodia’ for which he ‘received commissions’. When asked why he returned to Vietnam to marry if genuinely fearing for his life, the Applicant said he ‘organised the wedding in the tradition and culture of Vietnam’ and could not afford to invite his and his wife’s relatives to an Australian wedding. He said a ‘traditional’ Vietnam wedding in the ‘presence of family is a must’. He also accepted that he travelled to Vietnam at times with his wife and child.[74]
[74] Exhibit R1, 680 [24].
When asked by Mr Maloney if he was afraid of getting caught during return visits to Vietnam, the Applicant said he was, but claimed to have exclusively used land crossings from Cambodia where he could bribe border guards and avoid being fingerprinted.[75] He could not recall if he entered Vietnam in this way on every visit to Cambodia. Mr Zhang put to the Applicant that he returned so frequently to Vietnam because he was not genuinely concerned about being arrested and his real name is the one under which his visa was cancelled in the present matter. The Applicant responded: ‘It’s not true.’
[75] Exhibit R2, 55 [49], 75 [35].
Offending
When asked by Mr Maloney about his 2011 drug convictions, the Applicant said these arose from a ‘gambling debt’. He claimed to be addicted to gambling and ‘someone’ in the casino offered him loans. When he could not repay, threats were purportedly made[76] and his creditors ‘instructed [him] to do the wrong thing to repay the debt’. When asked if he reported these threats to police, the Applicant said he did not because of fear. He said that non-compliance with instructions from the ‘drug cartel’ would result in immediate consequences, whereas according to his ‘calculation’ there was a 50% probability he would be arrested if he reported these matters to Australian police. The Tribunal inferred the latter assessment related to Australian police discovering his false identities.
[76] Exhibit A1, 5 [32].
When asked by Mr Zhang about the circumstances of his 2011 convictions, the Applicant responded: ‘I do not remember everything really…I only remember I carried out the things by someone who gave me such requests. I don’t remember who.’ When asked by Mr Zhang why the Tribunal should believe his real name is different to the one the Court sentenced him in, the Applicant said he kept his real name ‘secret’ at that time and accepted that he appeared in courts under a false name.
When asked by Mr Maloney what caused him to commit further crimes leading to his 2017 convictions, the Applicant said ‘the main reason’ was because his ‘income was not enough for [his and his son’s] expenses’. He recalled pressure from rent, private school fees, and ‘learning equipment’. When asked if he could have placed his son in a public school and reduced expenditure, the Applicant said he ‘wanted the best school environment’ for his son. The private school was close to their house, and he did not want to disrupt his son’s education by moving him to another school. The Applicant claimed he also relapsed into gambling, resulting in another debt. He committed further drug offences within months of completing parole from his 2011 convictions, which he said was a ‘big mistake’. When put by Mr Zhang that previous imprisonment did not serve as an effective deterrent, the Applicant disagreed: ‘That’s not true – it was an effective deterrent.’ When asked why he committed more drug crimes, the Applicant said he ‘had to commit’ further crimes because of his financial circumstances.
Drug use
The Applicant initially said he is: ‘a person who doesn’t know how to use drugs’. His documents contain no reference to past drug use and psychologist Mr Watson-Munro noted the Applicant’s denial about ‘using illicit drugs or abusing alcohol’.[77] In other evidence, however, the Applicant is reported to have told a co-offender in a heroin importation scheme that one item would contain ‘a small amount of heroin…to satisfy [the Applicant’s] own personal use’.[78] In an assessment conducted by rehabilitation service Caraniche to determine the Applicant’s eligibility to attend a drug and alcohol program, a relationship was noted between his ‘substance use and offending’.[79] In an Outline of Submissions for the County Court of Victoria, prepared by the Applicant’s then solicitor ahead of sentencing in 2017, it was stated the Applicant ‘began using methamphetamine’ after feeling ‘anxious’ about family finances, but has ‘completed courses in relation to drug use’ since arrest.[80] In submissions from the Applicant’s lawyers in 2019, reference is also made to the ‘influence of drugs’ leading ‘to the commitment of the offence’.[81]
[77] Exhibit R1, 111 [4].
[78] Ibid 660 [24], 687 [18].
[79] Ibid 897.
[80] Ibid 474.
[81] Ibid 94.
Because of the above inconsistencies the Tribunal asked the Applicant if he used illicit drugs while residing in Australia. The Applicant responded: ‘I can assure you definitely no’. When asked if he was claiming that his previous lawyer’s submissions to the Court were inconsistent with his instructions, the Applicant responded: ‘No – that’s not what I meant’. When asked to elaborate he stated: ‘I didn’t use meth and heroin – I just trialled and tested it in order to understand…what I was going to sell to my customers’. The Applicant sought to distinguish his use of ice and heroin for quality-control purposes from other ‘use’, such as addiction. He gave the inapt example of a person who sells ‘protein powder to gymnasts’ needing to be satisfied of ‘product quality’, which he said is ‘most important’. The Applicant claimed he misunderstood the Tribunal’s question as relating to whether he was addicted to ice and heroin. When put to him there was no basis to infer such a distinction from the question asked, he apologised for misunderstanding the question.
When asked about a report dated 20 September 2022 referring to the Applicant in the context of 8 tablets and drug paraphernalia being found in a room,[82] the Applicant responded: ‘I don’t remember.’
[82] Exhibit R2, 305.
Rehabilitation, courses, and Buddhism
The Applicant referred to courses undertaken while imprisoned, including ‘about drugs [and] to help no longer being addicted to gambling’. He said the latter was only two hours long, but he has recently commenced counselling and group sessions with the AVWA after being referred by a friend.[83] He said these are run by ‘professionals’ who do ‘things scientifically’. Group members share stories about gambling and are given ‘real life lessons to work on’. The counsellor from the AVWA has also offered the Applicant ‘advice and teaching’ about ‘how to control the desire for gambling’ such that he considers himself no longer addicted. He said the counselling sessions, which have been undertaken since 30 July 2024, are in Vietnamese and he has ‘absorbed [the counsellor’s] teaching completely’. The Applicant is confident he won’t relapse into gambling, including because the AVWA counsellor will provide forms to exclude himself from gambling venues. He also intends continuing with counselling if released and wants to ‘share his experiences from real life’, and ‘instruct newcomers so they understand the consequences of gambling’. The Applicant said AVWA could also offer him ‘help with money and in the community’. If confronted with future financial problems, he intends asking for help.
[83] Exhibit A4.
The Applicant was asked about the reference at paragraph 49 of his statement about strategies he applied after his 2011 convictions to overcome gambling addiction, including by looking for ‘other forms of entertainment’ and surrounding himself ‘with positive and supportive people’. Yet in his oral evidence he referred to gambling-related debts as a continuing problem in the drug offending leading to his 2017 convictions. The Applicant claimed: ‘both of these are true’, explaining that he only undertook a ‘short course’ during imprisonment but has now ‘received advice from an expert’ that has given him ‘a thorough understanding of the problem’. During further questioning from Mr Maloney in
re-examination, the Applicant further explained that while he was able to avoid a relapse into gambling for some time after release from the sentence following his 2011 convictions, he relapsed into gambling and built up more debt.
The Applicant said he has ‘learned a lot of things’ from courses about the ‘impact of drugs’ and had witnessed addicts suffering in prison. He feels ‘guilty in making the problem they’re suffering from’. The Applicant said he has completed training in ‘cooking and hospitality’, which gives him ‘confidence to work in a restaurant or run a food outlet by [him]self’. He has also improved his English skills and undertaken a course on ‘how to use the computer’.
The Applicant referred to visits by Buddhist monks while imprisoned and receiving instruction about meditation. He has since ‘learned a lot about Buddhism through the internet’, including about principles like ‘karma’.
Recidivism risk
There is no expert evidence regarding the Applicant’s recidivism risk. Mr Watson-Munro’s 2019 report relates predominantly to the Applicant’s mental state and support needs. No reference is made to recidivism risk.
The Applicant claimed in oral testimony he is ‘not a risk to the community’. He expressed confidence that he will not ‘violate the laws like before’, including because he no longer has a gambling addiction or the financial pressures that contextualised his past crimes. This includes because his son is now an adult and ‘looks after himself’. Additionally, his accommodation costs will be ‘minimal–zero’ and, because he is ‘approaching 60’, the Applicant said he no longer has financial needs relating to ‘fashion, parties, and drinking’.
In terms of protective factors, the Applicant said he formed close friendships during imprisonment and named two former prisoners, now released, with whom he speaks regularly. Both were convicted of drug offences unrelated to the Applicant’s. He intends living with one of these former prisoners.[84] When asked if he considers it in his interests to associate with former drug offenders upon release, the Applicant said he considers these two men a ‘good example’ and can learn from them because they lead law-abiding lives. The Applicant said he intends to commence employment ‘immediately’ upon release and said he has no physical or mental health issues preventing this. He referred to offers of employment from two business owners that he immediately intends following up.[85]
[84] This person’s statement is Exhibit A3.
[85] See Exhibit A5 and Exhibit A7.
Family relations in Australia
The Applicant said his current wife was sentenced to a 10-year term of imprisonment in Australia, which he believes is for heroin importation from Vietnam. This is unrelated to his crimes.[86] He believes her sentence commenced around 2015 and she was released on probation about two years ago. He does not know where she lives, cannot recall when they last spoke, and said she is currently prohibited from contacting him as a condition of release. The Applicant believes this condition ends sometime in 2025. When asked by Mr Zhang if his wife in Australia previously withdrew her spousal sponsorship of him as indicated in a Commonwealth DPP Summary of Facts dated 4 October 2011,[87] the Applicant said this was ‘not correct’ and claimed the person referred to is not his wife. He claimed not to know, however, who the visa sponsorship withdrawal refers to.
[86] Exhibit R1, 104 (paragraph 1), 106 (paragraph 3); 383.
[87] Ibid 679 [17].
When asked about the relationship with his son in Australia the Applicant said his ‘son is not close to [him]’ because the Applicant ‘didn’t have much time to look after him when growing up’. He also invoked language barriers because his son speaks English and ‘doesn’t know much Vietnamese’ whereas the Applicant’s English is ‘not good’. The Applicant said conversation between them is ‘not comfortable’.
Future intentions if released in Australia
The Applicant intends finding work and wants to ‘do good things’ such as charitable work at a Buddhist Temple and sharing his experiences in an ‘anti-gambling group’ so that others don’t repeat his mistakes. He said there is no medical or psychological condition preventing his immediate employment. He also intends resuming the relationship with his wife and attempting to restore the relationship with his son.
Health
The Applicant said he has suffered Type II diabetes for over 35 years and requires daily insulin injections. He also referred to suffering ‘severe asthma’, carries a Ventolin puffer, and experiences ‘pain in the bones and joints’. He recalled periods of stress in custodial settings and poor sleep, but has no diagnosed mental health conditions.
Prospect of removal from Australia
The Applicant claimed that when committing the drug crimes leading to his 2011 convictions, he ‘didn’t know anything’ about possible deportation and had not been warned by the Respondent about this. He also claimed to be unaware that these drug crimes could have resulted in removal from Australia but concedes he was aware of this in the context of crimes leading to his 2017 convictions.
The Applicant said he fears arrest, imprisonment, and ‘may receive the death penalty’ if returned to Vietnam despite this resulting from him being wrongly implicated in drug offending. He claims to have been first informed about the arrest warrant in Vietnam from ‘friends – someone close to me’ in 1997. Other evidence from the Applicant’s Protection Visa application, however, refers to the arrest warrant first being located on 15 April 2021.[88]
[88] Exhibit R1, 984 [16.1].
The Applicant said that based on his research Vietnamese arrest warrants never expire. He characterised Vietnamese prisons as ‘terrible’. Even if allowed to reside in the community he does not have a house in Vietnam and will ‘suffer discrimination and stigma’ if people discover his drug-offender status. The Applicant said he is ‘sure’ that food and medicines in Vietnamese prisons are unsuitable for his diabetes. He also asserted that the quality of medications is incomparable to Australia, and he can’t afford them.
The Applicant was asked during cross-examination why he believes he will be convicted in Vietnam if all he did was deliver boxes without knowing the contents. The Applicant said police must have had ‘suspicions’ to issue an arrest warrant and believes that when his employer was arrested in 1997, he ‘put the blame’ on the Applicant. When challenged that he was speculating about what occurred after his employer’s arrest, the Applicant responded inter alia: ‘From what I know about Vietnamese police the only thing I can do is flee or else they will persecute me.’ He referred to a report commissioned by his former lawyer in Australia from a Vietnamese law firm, in which an opinion was sought based on generic questions that did not identify the Applicant or his circumstances.[89] The Applicant said his evidence is not based on this opinion, but on his own research, including with ‘friends who live in Vietnam and legal friends in Australia’. Based on this research he agrees with the Vietnamese lawyer’s opinion. The Applicant thinks he will be held responsible for his former employer’s ‘wrongdoing’ even if he did not know what was occurring. He also fears Vietnamese authorities might become aware of his offending in Australia because of a 2013 journal article referring to some of his offences.[90]
[89] Ibid 411–7.
[90] Ibid 225–6.

Having weighed the relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the primary consideration Protection of the Australian community, which is given greater weight than the other primary considerations, coupled with Expectations of the Australian community, considerably outweigh the combined weight given to the countervailing primary and other considerations.
DECISION
It follows that the Tribunal affirms the reviewable decision.

185. I certify that the preceding one hundred and eighty-four (184) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic

................[sgd]........................................................
Associate
Dated: 19 December 2024

Date of hearing: 6, 7 & 8 November 2024

Counsel for the Applicant:

Solicitors for the Applicant:

Mr John Maloney

Clothier Anderson Immigration Lawyers

Advocate for the Respondent:

Solicitors for the Respondent:

Mr Alexander Zhang

Clayton Utz