LQFH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 2145

LQFH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2145 (4 July 2022)
Division:GENERAL DIVISION
File Number: 2021/0828
Re:LQFH
APPLICANT

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

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:4 July 2022
Place:Melbourne

The Tribunal affirms the decision under review.
.............. ..........[sgd]................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION – Mandatory visa cancellation – citizen of Vietnam – Partner (Temporary) and Partner (Residence) (Subclass 820/801) Visa – failure to pass good character test – substantial criminal record – whether another reason why the mandatory visa cancellation should be revoked – non-refoulement obligations – fear of harm – Ministerial Direction No. 90 applied – Applicant’s voluntary departure from Australia after hearing ended – Applicant’s current location unknown – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
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
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 9
Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106
Bushell v Repatriation Commission (1992) 175 CLR 408
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
CKL21 v Minister for Home Affairs [2022] FCAFC 70
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCATrans 056
GLD18 v Minister for Home Affairs [2020] FCAFC 2
Head Quarters (WA) Pty Ltd (Trustee) v Mubarakai [2016] FCA 1254
Hughes v The Queen (2017) 263 CLR 338
Holloway v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 945
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2015) 225 FCR 482
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Khalil v Minister for Home Affairs [2018] FCA 1712
Markaj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 120
Matthews v Minister for Home Affairs [2020] FCAFC 146
Maxwell v R (1996) 184 CLR 501
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Negri v Secretary, Department of Social Services [2016] FCA 879
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2055
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Sangha v Baxter [2009] NSWCCA 78
Say v Administrative Appeals Tribunal [2020] FCA 1489
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Soliman v University of Technology, Sydney (2012) 207 FCR 277
Sorby v The Commonwealth (1983) 152 CLR 281
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Thornton v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2020] FCA 1500
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Uelese v Minister for Immigration and Border Protection (2015) 151 ALD 107
Viane v Minister for Immigration and Border Protection (2018) 162 ALD 13
YKSB v Minister for Home Affairs [2020] FCAFC 224
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
4 July 2022
INTRODUCTION

The Applicant seeks review of a decision by the Respondent dated 10 February 2021, declining to revoke the mandatory cancellation of his Partner (Temporary) and Partner (Residence) (Subclass 820/801) Visa (the visa), under s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
The hearing was held by videoconference over eight days between 22 February 2022 and 3 March 2022. The Applicant was represented by Mr Eric Vuu of counsel, acting under a direct access brief. The Respondent was represented by Mr Edwin Taylor, a solicitor from Mills Oakley Lawyers.
The Tribunal adjourned the hearing on 3 March 2022 for further information to be obtained from the Applicant and under summons. The documents obtained were provided to the parties for comment on 22 April 2022. On 4 May 2022 Mr Vuu advised the Tribunal the Applicant did not wish to make any submissions in response to this material. The Respondent’s written submissions were received on 3 June 2022. The Tribunal reserved its decision on 17 June 2022.
For the following reasons the Tribunal affirms the decision under review.
BACKGROUND
The Applicant is a 34-year-old citizen of Vietnam[1] who arrived in Australia in November 2007 on a Student Visa.[2] He commenced tertiary study that was not completed.
[1] Exhibit R1, 79.
[2] Ibid 145.
After several further arrivals and departures, the Applicant re-entered Australia in late 2011 as his mother’s dependant.[3] She lodged an application for a combined Partner (Temporary) and Partner (Residence) (Subclass 820/801) Visa.[4] In July 2012 the Applicant was granted a Temporary Partner (subclass 820) visa,[5] and in December 2014 he was granted the visa cancelled in this matter.[6] The Applicant and his mother are permanent residents of Australia[7] and have travelled frequently between Australia and Vietnam.[8]
[3] Ibid 52; 111; 144.
[4] Exhibit R2, 3.
[5] Exhibit R1, 263; Exhibit R2, 9.
[6] Exhibit R2, 64.
[7] Exhibit R1, 80.
[8] Ibid 142-145; 410.
The Applicant referred in his written evidence to relatives living in Australia and overseas.[9] His mother lives in Australia, while his biological father, sister, and other relatives live in Vietnam and another country.
[9] Ibid 87.
In 2012 the Applicant obtained a Diploma of Commerce from a Sydney-based educational institute.[10] He refers to paid employment in Australia[11] and work as a volunteer, including at a church and temple.[12]
[10] Ibid 772-773.
[11] Ibid 28; 89.
[12] Ibid 118; 423.
The Applicant has not been law-abiding since arriving in Australia. The following chronology details key aspects of his history here:
(a)26 April 2013: The Applicant was found guilty of one count of Dishonestly obtain financial advantage by deception. He was released without conviction upon entering a two-year good behaviour bond.[13]
[13] Ibid 100.
(b)1 February 2014 – 21 January 2015: The Applicant asked for fees to assist two people with immigration issues, despite not being registered as a migration agent. He also used a forged document in a court proceeding, and dishonestly obtained approximately $540,000 from two other people.[14]
[14] Ibid 38-39.
(c)12 December 2014: The Applicant was granted the visa cancelled in this matter.[15]
[15] Exhibit R2, 64.
(d)8 November 2016: The Applicant was arrested and charged for the offending at paragraph 8(b) above, before being released on bail.[16]
[16] Exhibit R1, 39.
(e)October 2017: The Applicant’s citizenship application was refused.[17]
[17] Ibid 79.
(f)21 January 2018: The Applicant was intercepted by police in an unregistered vehicle, while driving with a suspended licence.[18] He falsely claimed the vehicle was his mother’s and his licence was still valid. Police noted he had two driving-related infringements during the period of his good behaviour bond.
[18] Ibid 270-271.
(g)29 January 2018: The Equity Division of the Supreme Court of New South Wales (Ward CJ) struck out the Applicant’s defence in a civil matter following no appearance. Summary judgment and indemnity costs of approximately $240,000 were entered against him and a company he controlled.[19] This related to funds he received after presenting himself as a legal practitioner specialising in migration law, who could obtain permanent residency for a Vietnamese client. A Writ For Levy of Property amounting to $240,669 was issued against him;[20]
[19] Ibid 282-295; 757.
[20] Ibid 746-747.
(h)10 May 2018: The Applicant pleaded guilty to one count of Drive motor vehicle while licence suspended-first offence.[21] He was fined $400, and his licence disqualified for three months.[22] On 12 June 2018 his appeal against this sentence was dismissed.[23]
[21] Ibid 278; 37.
[22] Ibid.
[23] Ibid 277; 280.
(i)20 August 2019: The Applicant was convicted of two counts of Dishonestly cause financial disadvantage by deception, one count of Ask fee to assist immigration when not registered migration agent, and one charge of Use forged document for public official to accept as genuine.[24] The presiding Judge described these offences as ‘really quite serious examples of offences of that nature’ and ‘well and truly deserving of a full-time custodial sentence.’[25] His Honour noted the timing of the Applicant’s plea of guilty followed a lengthy period between arrest in late 2016 and trial in early 2019, for which it was ‘not appropriate to give a substantial discount on sentence’.[26] The Applicant received a total of 30 months’ imprisonment with an effective non-parole period of 20 months.[27]
(j)10 January 2020: The Respondent advised the Applicant, who was then serving a full-time sentence of imprisonment,[28] that his visa was mandatorily cancelled on character grounds (cancellation decision).[29]
(k)13 January 2020: The Applicant acknowledged receipt of the cancellation decision[30] and made written representations asking for it to be revoked.[31]
(l)13 October 2020: The Applicant pleaded guilty to one charge of Use or possess mobile phone/part etc in place of detention and was sentenced to a further six months’ imprisonment.[32]
(m)17 November 2020: A delegate of the Respondent invited the Applicant to comment on information relevant to his revocation request,[33] namely the Applicant’s declarations on Incoming Passenger Cards.[34] The Applicant responded to this invitation on 22 November 2020.[35]
(n)21 January 2021: The Respondent wrote to the Applicant regarding his previous representations that his mother and a partner whose visa he sponsored needed his continuing support in Australia.[36] The Respondent noted that other information held by the Department suggested his mother left Australia for Vietnam in December 2020 and his partner withdrew her application and was no longer in a relationship with the Applicant. The Applicant responded to this invitation on 23 January 2021.[37]
(o)10 February 2021: A delegate of the Minister decided not to revoke the mandatory cancellation of the Applicant’s visa (non-revocation decision).[38]
(p)15 February 2021: The Applicant asked the Tribunal to review the non-revocation decision.[39]
(q)4 May 2021: The Tribunal, differently constituted, affirmed the decision under review (first hearing).
(r)28 September 2021: By consent of the parties, Katzmann J of the Federal Court quashed the first Tribunal decision and remitted the matter for rehearing, giving rise to this proceeding.[40]
[24] Ibid 36; 38; 726.
[25] Ibid 58.
[26] Ibid 40.
[27] Ibid 62.
[28] Ibid 17; 149.
[29] Ibid 209.
[30] Ibid 218.
[31] Ibid 65.
[32] Ibid 115; 444-448.
[33] Ibid 146.
[34] Ibid 130-141.
[35] Ibid 98-100.
[36] Ibid 162.
[37] Ibid 165-166.
[38] Ibid 12; 16.
[39] Ibid 4.
[40] Ibid 1-2.
POST-HEARING DEVELOPMENTS
After the hearing concluded, the Respondent advised the Tribunal that the Applicant had elected voluntary departure from Australia and a movement record was provided stating that this occurred on 29 April 2022. The Tribunal emailed Mr Vuu asking whether this was contested, and he undertook to seek instructions.
On 17 June 2022 the Tribunal convened a CMTDH where Mr Vuu stated he no longer held instructions from the Applicant and appeared as amicus curiae. Mr Vuu said he had not heard from the Applicant since ‘late April 2022’ except for an email on 9 June 2022 in response to the questions passed on from the Tribunal. Mr Vuu said he flagged an intention with the Applicant about ceasing to act at that time. He advised the Tribunal that the Applicant ‘concedes he is no longer in this country.’ When the Tribunal asked where the Applicant is located, Mr Vuu responded: ‘I cannot answer that question.’ Mr Vuu undertook to file a notice with the Tribunal confirming he ceased to act for the Applicant.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and s 500(1)(ba) of the Act confer jurisdiction upon the Tribunal to review non-revocation decisions.
Section 501(3A) of the Act, together with ss 501(6) and s 501(7) of the Act, requires 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:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection 7)); or…
Section 501(7)(c) of the Act provides that a person is taken to have a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Section 501CA(4) of the Act confers a discretionary power upon the Minister to revoke a cancellation decision if the person whose visa was cancelled makes representations in accordance with the invitation, and the Minister is satisfied the person passes the character test, or there is another reason why the original decision should be revoked.
Direction 90
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. Except for the Minister acting personally, the Direction must be applied by decision makers under the Act.[41] On 8 March 2021, the Minister signed Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[42] The Tribunal finds it is bound to apply the Direction in these reasons, based on the material currently before it.[43]
[41] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
[42] Direction, cls 2-3.
[43] Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
Direction 90 contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[44] The following principles inform decision-making:[45]
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
[44] 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].
[45] Clause 5.2 of the Direction.
Clause 6 of the Direction provides that, informed by the above principles, a decision-maker must consider cls 8 and 9 where relevant to the decision. Clause 8 of the Direction provides the following as primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constitutes family violence;
(c)The best interests of minor children in Australia;
(d)Expectations of the Australian community.
Clause 9 of the Direction identifies the following non-exhaustive list of other considerations to be taken into account where relevant:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Links to the Australian community, including:
(i)Strength, nature, and duration of ties to Australia; and
(ii)Impact on Australian business interests.
Clause 7(1) of the Direction provides that in applying the considerations, ‘information and evidence from independent and authoritative sources should be given appropriate weight.’
Clauses 7(2)-(3) of the Direction state that ‘Primary considerations should generally be given greater weight than the other considerations,’ and ‘One or more primary considerations may outweigh other primary considerations.’ This does not preclude the Tribunal giving a cl 9 consideration the equivalent or even greater weight than a primary consideration, which turns on the specific circumstances of each case.[46] The weighing process is determined by decision-makers exercising power under the Act.[47]
[46] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
[47] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57].
DOES THE APPLICANT PASS THE CHARACTER TEST?

Because of the Applicant’s convictions on 20 August 2019 and imposition of a sentence exceeding the threshold statutory period of 12 months, the Tribunal is satisfied he does not pass the character test. 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 the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ for revocation.[48] This task was elaborated upon by the Full Court of the Federal Court of Australia (FCAFC) in Viane:[49]
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
[48] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J)[ [103] (O’Bryan J).
[49] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
EVIDENCE
The Tribunal will refer to some participants in this case as follows:

Applicant’s former female partner, whose visa he sponsored in 2015 Ms JJ

Former male friend of the Applicant who claims he and the Applicant were in a romantic relationship Mr AB

A close friend of the Applicant and the Applicant’s mother, who considers the Applicant to be his ‘spiritual son’ Mr LV

A woman living interstate, for whose minor children the Applicant claims to play a ‘father figure role’ Ms CD

A person who the Applicant claims offered him a role as a Finance Manager Mr R
Applications and adjournments

In addition to the substantive application, other applications and issues raised during the hearing by the parties were as follows:
(a)Objection to Mr AB’s Statement: Mr Vuu objected to a police statement from Mr AB being taken into evidence.[50]
(b)Objection to Supplementary Tender Bundle (STB): Mr Vuu objected to a STB of documents numbering 22 pages, which was lodged by the Respondent on 21 February 2022, being taken into evidence.
(c)Application to maintain the Applicant’s anonymity; Mr Vuu submitted that a confidentiality order over the Applicant’s identity should continue.
(d)Respondent’s objection to Applicant’s response to STB: The Respondent objected to a statement from the Applicant dated 23 February 2022 being taken into evidence, claiming it breached the so-called ‘Two-Day Rule’ at s 500(6J) of the Act.
(e)Ethical issue: At the commencement of the second hearing day (23 February 2022), Mr Vuu stated he was confronted with an ethical dilemma pursuant to rule 13(c) of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW). He requested an adjournment to seek advice from the New South Wales Bar Association. The Tribunal granted an adjournment of several hours, following which Mr Vuu advised he was able to proceed.
(f)Application to excuse the translator: A replacement Vietnamese translator was provided on the fourth day of the hearing. Mr Vuu claimed the new translator had provided a statement for the current proceeding and, after confirming this, the Tribunal excused the translator from further participation. A new translator was subsequently organised.
(g)Legal Professional Privilege (LPP): On the fourth day of the hearing, Mr Vuu invoked LPP over an email in one of the annexures tendered with the Applicant’s statement.[51]
[50] Ibid 657-670.
[51] Exhibit A1.
The Tribunal gave oral reasons when resolving these issues and undertook to provide written reasons. The Tribunal respectfully adopts the comments of Bromberg J in Negri v Secretary, Department of Social Services [2016] FCA 879, which considered the extent to which it can elaborate upon oral reasons. His Honour stated at [27]:
‘...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).’
Objection to Mr AB’s statement
The basis of Mr Vuu’s objection is that Mr AB’s statement has a ‘central role in proceedings’ and was potentially ‘determinative’. He said the Applicant contests Mr AB’s allegations that he and the Applicant were in a romantic relationship, or that the Applicant engaged in criminal conduct. Mr Vuu submitted that, because of Mr AB’s unavailability for cross-examination, and the fact that his statement was unsigned / unsworn, the allegations raised were ‘hearsay’ at best. Mr Vuu properly withdrew the latter claim after it was shown Mr AB signed the statement on each page, as did the police constable who witnessed it.
Mr Vuu referred the Tribunal to Soliman[52] as authority for the proposition that no regard should be had for Mr AB’s statement:
In some circumstances it may well be the case that an administrative decision-maker may have his decision set aside where it is founded upon material from an undisclosed source. “No tribunal”, it has been said, “without grave danger of injustice”, may set aside the common law rules of evidence and “resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party”: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256 per Evatt J. Reliance upon material which cannot be tested may well constitute a denial of procedural fairness. There should, for example, be a reluctance to dispense with the rules of evidence where there is a real dispute over a matter which goes to the heart of a case…Reliance cannot be placed upon material which has no probative weight, particularly when it would be procedurally unfair to do so…
(References removed)
[52] Soliman v University of Technology, Sydney (2012) 207 FCR 277, 285 (Marshall, North and Flick JJ).
Mr Taylor said the Applicant had been in possession of Mr AB’s statement for some time, and it was reasonably foreseeable its contents would be raised in the current hearing. He said efforts were made to contact Mr AB since 2 February 2022, who ‘eventually agreed’ to provide a statement. Mr Taylor said Mr AB was subsequently uncontactable, so the Respondent decided not to submit his unsigned statement but instead to rely on an earlier signed police statement. Mr Taylor said it was not essential for Mr AB to appear and be cross-examined for the Tribunal to consider and weigh the probative value of his evidence. He said Soliman was distinguishable because of the ‘massive difference’ between the anonymous email giving rise to the legal controversy in that case, compared to Mr AB’s signed and witnessed police statement.
After reading Mr AB’s statement and hearing from both parties, the Tribunal dismissed the Applicant’s objection. The statement is directly relevant to this proceeding and both the Applicant and Mr Vuu were in possession of it for approximately 10 months. The availability of statement authors is not a prerequisite for documentary evidence to be taken into evidence, or for weight to be attributed to it, which is properly a matter for submissions. The Tribunal distinguished Soliman because there is no ‘undisclosed source’ in the present matter. Moreover, there is no suggestion the Tribunal proposed to ‘…resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party’. Unlike Soliman, there is also no suggestion the ‘material…cannot be tested’ such as to ‘constitute a denial of procedural fairness’, or to place reliance on material ‘which has no probative weight’.
The Tribunal has greater procedural flexibility than a court, is not bound by the Rules of Evidence, and may inform itself on any matter in such manner as it considers appropriate.[53] As their Honours observed in Collins: ‘subject to the obligation to observe the requirements of natural justice [the Tribunal] can inform itself as it chooses.’[54]
[53] Administrative Appeals Tribunal Act 1975 (Cth), s 33(1)(c).
[54] Collins v Ministerfor Immigration and Ethnic Affairs (1981) 36 ALR 598 (Collins) (Fox, Deane and Morling JJ).
Objection to STB
In an email late on 21 February 2022, Mr Vuu provided six pages of written submissions objecting to the Respondent’s STB being considered. He invoked s 33(2)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AATA), relating to the Tribunal’s power to give directions. Mr Vuu said the STB was served after normal working hours the previous day, and he and his client had no opportunity to properly consider it. At the commencement of the hearing on 22 February 2022, it was confirmed the Applicant had viewed the material on his mobile telephone but refused to accept a paper version from immigration detention staff. Mr Vuu said if the Tribunal was against him on the admissibility issue, then his client ‘would benefit from additional time’ to properly review the material and provide instructions.
Mr Taylor accepted that filing of the STB the previous day was ‘sub-optimal’ but said the delay arose from the Respondent’s inability to contact Mr AB, so the decision was made to file the attachments to Mr AB’s statement alone. Mr Taylor said the material consisted of a small number of emails and photographs, and the information was not ‘new’, but complemented other material already filed. Mr Taylor said an adjournment was not opposed but thought it should be for a relatively short time.
The STB consists of three photographs, 14 pages of emails relating to surrogacy negotiations, and a two-page online listing for a restaurant. Apart from the restaurant listing, there was commonality between the issues raised in the STB and other material already filed prior to the hearing. Given the STB was only filed after 6:00pm the previous day, however, the Tribunal agreed to the Applicant’s adjournment request and offered Mr Vuu a day-and-a-half until 24 February 2022 to review this material. The Tribunal adjourned the hearing to enable Mr Vuu to seek instructions, following which he advised that an adjournment until the commencement of the next hearing day was sufficient.
Anonymity
Mr Vuu submitted that the Applicant’s anonymity should be maintained, which Mr Taylor did not oppose. The Tribunal is satisfied it remains appropriate to maintain the confidentiality order applied in the first hearing, which was also maintained during the Applicant’s appeal to the Federal Court.
Respondent’s objection to Applicant’s response to STB
Mr Taylor objected to the Applicant putting on further material in response to the STB because it breached s 500(6J) of the Migration Act. After hearing from both parties, the Tribunal gave leave for the Applicant to file a response to the Respondent’s STB.[55] The Tribunal noted that the proscription in the two-day rule related to information presented in support of an applicant’s case in chief, but not to information responding to the Minister’s case.[56] The proscription under s 500(6J) also does not apply to matters raised by the Tribunal of its own initiative and the Tribunal considered it procedurally fair to allow the Applicant an opportunity to respond to respond to this recently-provided material.
[55] Khalil v Minister for Home Affairs [2018] FCA 1712, [16] (Colvin J), citing Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; (2014) 225 FCR 482 at [101].
[56] Uelese v Minister for Immigration and Border Protection (2015) 151 ALD 107, [5]; [97]-[98]; [101]-[104]; Holloway v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 945, [35]-[39] (Jackson J).
Legal Professional Privilege
The email over which Mr Vuu raised an objection is clearly privileged information because it constitutes direct communication between him and the Applicant. The question is whether privilege was waived when Mr Vuu provided the email to the Respondent and Tribunal prior to the hearing, and then tendered it into evidence.[57] Mr Vuu said he filed and tendered the email by mistake, only realising this when Mr Taylor began asking questions about it.
[57] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303.
Privilege is a right belonging to a lawyer's client. The relevant test is whether the privilege holder has acted in a way that is inconsistent with maintaining confidentiality over the privileged communication, such that it manifests an objective intention to abandon privilege. This is regardless of the privilege holder's actual intention. If disclosure of a document is inadvertent, LPP is not waived, and the appropriate course is to remedy the mistake. Federal Court authority based on a comparable set of facts to the present situation supports this reasoning.[58]
[58] Head Quarters (WA) Pty Ltd (Trustee) v Mubarakai [2016] FCA 1254 (Jagot J).
After hearing from both parties, the Tribunal accepted Mr Vuu had alerted the Tribunal to inadvertent disclosure of the document as soon as it became apparent to him. The Tribunal held that privilege was not waived and ordered the document be removed from evidence. The document has not formed any part of the Tribunal’s consideration of this matter.
Documents
The following documents were taken into evidence:
(a)Documents lodged by the Respondent numbering 1011 pages;[59]
(b)Respondent’s Tender Bundle numbering 163 pages;[60]
(c)Respondent’s Supplementary Tender Bundle numbering 21 pages;[61]
(d)Statement of the Applicant dated 19 January 2022 and a supplementary statement dated 23 February 2022 with 13 annexures;[62]
(e)Translated statement of the Applicant’s mother dated 19 January 2022, with attachments;[63]
(f)Translated statement of the Applicant’s friend dated 19 January 2022.[64]
[59] Exhibit R1.
[60] Exhibit R2.
[61] Exhibit R3.
[62] Exhibit A1.
[63] Exhibit A2.
[64] Exhibit A3.
Applicant’s evidence
The Applicant’s oral evidence exceeded three hearing days. He gave most of his evidence in English but used a Vietnamese interpreter on occasions. He adopted his statement dated 19 January 2022 as true and correct, except for one correction to paragraph six, in which the word ‘aware’ is replaced by the word ‘unaware’. He also adopted a more recent statement dated 23 February 2022 with accompanying annexures as true and correct. The Tribunal has also considered other letters and statements from the Applicant.[65] On several occasions, the Applicant invoked his privilege against self-incrimination, from which the Tribunal draws no adverse inference.[66]
[65] Exhibit R1, 165-166; 276; 417; 764-771; Exhibit R2, 10.
[66] Sorby v the Commonwealth (1983) 152 CLR 281, 288.
Names used and siblings
The Applicant said apart from his Vietnamese name, he has used three different names in Australia, but denied using another name associated with his email address.[67] The Applicant said he has one sibling, who is an older sister living overseas. When asked about a reference in a bank loan application to him also having a brother in Australia,[68] the Applicant conceded this was a lie. He said the purported brother is someone into whose account one of the Applicant’s victims deposited $130,000.[69]
[67] Exhibit R1, 859.
[68] Ibid 521.
[69] Ibid 44.
Applicant’s mother, life in Australia, and home sale
The Applicant claimed his mother, who lives in Australia, suffers Major Depressive Disorder, high blood pressure and ‘has symptoms of dementia’. When asked who diagnosed the latter, the Applicant said he discerned this himself from his mother’s memory lapses and tendency to repeat herself. When asked why he wrote to the judge in his criminal matter stating he was the only person who provided emotional support to his mother, the Applicant said it was because he is the ‘only son’. He agreed that his mother’s sister and other friends, however, have also supported her.
The Applicant said his mother would ‘suffer emotional damage’ if he was returned to Vietnam and find it hard to cope with her medical conditions. He said she panics if she does not hear his voice daily. He said his mother would remain in Australia if he was removed to Vietnam because this is her home.
Applicant’s aunt and cousin
The Applicant said his mother’s sister lives in Australia and operated a short-lived restaurant business with his mother eight years ago. He claimed to be particularly close to his aunt’s daughter who soon turns 16 and referred to photographs showing him on various outings with a young child and other people. Some of these pictures are quite dated. When asked why there was no evidence from his cousin about the closeness of their relationship, the Applicant claimed she is ‘too young to give a statement’. The Applicant said his aunt moved to Wollongong about seven months ago but claimed he does not know where she lives. The Applicant’s aunt and cousin were not called as witnesses.
Mother’s and aunt’s restaurant business
The Applicant was asked about restaurant businesses he established for his mother and aunt in 2014. He said he did not own these businesses, and his role was to facilitate ‘all necessary steps’ to establish them, such as researching a business name, liaison with a barista agent, and coordinating fit out. When asked why leases were taken out in his name,[70] the Applicant invoked ‘Vietnamese culture,’ explaining he and his relatives trusted each other, and he could better communicate in English with real estate agents, councils, and others. The Applicant was asked why an application he submitted to a bank listed him as a restaurant employee, given he denied ownership or employment there.[71] He claimed this was a mistake by the bank. When asked what happened to these restaurants, the Applicant said one closed in 2014 and the other in 2015.When asked how someone in his mother’s difficult financial circumstances in 2014 could buy property and establish restaurants, the Applicant said funds from her divorce in Vietnam started to be released by that time. He said this occurred ‘bit by bit’ throughout 2014 and 2015.
[70] Exhibit R2, 25.
[71] Ibid 75.
Mr LV
The Applicant said Mr LV is a building contractor who did some of the fit out work for the restaurants in 2014. He does not think his mother and Mr LV are in a romantic relationship but said they ‘sometimes go out once or twice a month, sometimes once or twice a week’. In response to further questions, the Applicant said he lacked a father figure on arrival in Australia and Mr LV was always the one he ‘talked it out’ with.
The Applicant said he lived with Mr LV for about two-and-a-half years prior to his sentencing in August 2019. This was because he was unable to communicate or live with his mother during this time, because she was charged with offences linked to the conduct for which he was subsequently convicted. He said the charges against his mother were dropped. There is no evidence to corroborate the Applicant’s claims about any charges against his mother or the outcome.
Genuineness of house sale and repayment of victims
Prior to being imprisoned, the Applicant said he and his mother lived in a house he owned for many years. He claimed to have tried to sell this house to repay his victims but was unsuccessful until just prior to the current hearing commencing. He referred to three sale processes. The first was in 2018 and the Applicant claimed the price offered by the purchaser was insufficient to satisfy the mortgage and an amount of $60,000 he re-drew from the mortgage account on his credit card. The Applicant was asked about a solicitor’s letter regarding an exchange of contracts to sell the property in July 2021[72] but claimed the purchaser withdrew. When asked who the purchaser was, the Applicant refused to answer. When directed to do so, he stated the failed purchaser was his mother. The Applicant said a new purchaser was subsequently found and the sale was now approaching completion. When asked who the new purchaser is, the Applicant said it is Mr LV. The Applicant was challenged about the claim that he genuinely tried to sell this house to repay victims or had done so of his own volition, because the recent sale processes were not at arm’s length, and his mother still resides at the property. The Applicant said Mr LV had not insisted on vacant possession on the date specified in the contract and his mother remains at the property while undertaking work at another of her properties before moving in. The Applicant said he will live with his mother at this other property if released.
[72] Exhibit R2, 109.

The Applicant was asked further questions about the genuineness of his intention to sell the home and several caveats taken out over it. He agreed his mother took out a caveat in June 2018, claiming it was to protect her interests. The Applicant explained she contributed to the home deposit on purchase, made mortgage payments after he was imprisoned, and he could not control what she did. When asked if his mother’s caveat was intended to frustrate the sale process by making it harder to sell and register the property to a new owner, the Applicant claimed he never discussed the caveat with her. He said she recently withdrew the caveat to enable Mr LV to buy the home, but no corroborating evidence was provided. The Applicant claimed lawyers he owed legal fees to also removed a caveat after he paid them, but there was again no corroboration of this. There was also no corroborating evidence that the sale process to Mr LV had been finalised.
The Applicant was referred to notices of sale by the Supreme Court of New South Wales for other property he owned.[73] He was asked why it was necessary for creditors to seek such orders if he genuinely intended to repay them. The Applicant insisted he ‘let the Sheriff do what they wanted to do’ and never objected to orders issued against him. The Applicant claimed he also contacted victims through his lawyer to offer an instalment repayment plan, which was refused.
[73] Exhibit R1, 750.
Debts to mother and Mr LV
The Applicant claimed he previously borrowed $470,000 from his mother but she forgave much of this in 2019 or 2020 and he now only owes her $160,000. The Applicant was taken to a promissory note relating to a further $275,000 debt he purportedly owed Mr LV in January 2018, secured against the Applicant’s house. He claimed this money was borrowed from Mr LV to pay gambling debts and Mr LV would receive the house if he defaulted. The Applicant agreed he failed to repay the note by the required date of 20 January 2022, claiming Mr LV extended the repayment date. He said there was no written evidence of this verbal arrangement. The Applicant disagreed that the promissory note arrangement with Mr LV, like his mother’s caveat over the property, was designed to frustrate the house sale process and prevent his victims being repaid.
The Applicant was asked why Mr LV referred to him in a statement to the court as his ‘son’ and ‘stepson’.[74] The Applicant said he did not know because Mr LV never married or lived with his mother. He opined the inconsistency could be due to a ‘language barrier’. In re-examination he thought it may also be because such titles are used as endearments in Vietnamese culture rather than literally reflecting blood ties. The Applicant claimed he did not know why Mr LV’s letter was from an address where the Applicant’s mother and aunt previously operated a restaurant. The Applicant was asked why Mr LV claimed in that letter to have known the Applicant for ‘more than ten years’, when the Applicant said they only met in 2014. The Applicant again did not know. He claimed to have never seen Mr LV’s letter before, despite it being addressed to the court in support of his criminal case. The Applicant agreed Mr LV visited him while he was in custody.
[74] Ibid 432.
The Applicant was asked about another letter from Mr LV dated 5 February 2018, purporting to promote Mr AB to the position of ‘Senior Financial Manager’ of the restaurant businesses the Applicant previously claimed had closed in 2014 and 2015.[75] The Applicant claimed he never saw this letter before but stated: ‘it appears to be fabricated’. He claimed to be instantly able to identify Mr LV’s signature and was certain the signature on the letter was not his. He also agreed that payslips purporting to reflect Mr AB’s salary for a pay period in February 2018 must be false because the restaurants closed four years earlier.
[75] Exhibit R2, 87.
Ms CD
The Applicant said he is close to Ms CD, who he helped escape an abusive relationship. Ms CD’s statement was taken into evidence without objection.[76] Ms CD has two children aged 11 and 3, for whom the Applicant claimed to play a ‘father figure’ role. In her statement, Ms CD referred to the Applicant as godfather to her 11-year-old child. She states this child has a ‘significant hearing disability’ and the Applicant had provided practical support akin to ‘a stepfather’. This included assistance with taking the children to school and on outings. If the Applicant was deported to Vietnam, the letter from Ms CD stated her children ‘will feel very upset and hurt,’ even though her three-year-old child is still too young to understand.
[76] Exhibit A3.
The Applicant referred to Ms CD’s eldest child having autism, which is inconsistent with her statement that only refers to the child having a hearing disability. Despite his incarceration, the Applicant said he regularly encourages the elder child on the telephone. He said Ms CD and the children visited him once in prison, but the child with autism purportedly ‘freaked out’ because of the Applicant’s white jump suit. If returned to Vietnam, the Applicant said this child would suffer ‘emotional damage and go to square one’. There was no expert evidence to corroborate this child’s medical conditions or the potential effects if the Applicant was repatriated. The Applicant said Ms CD and her two children live in Queensland. He claimed that he intended to travel to Queensland to visit them and maybe relocate there for work.
Ms JJ
The Applicant said he was previously in a longstanding relationship with Ms JJ, who he met while living in Vietnam in 2006. The Applicant said he and Ms JJ were initially friends but commenced a romantic relationship in 2015 when she came to Australia. They never married but the Applicant said they decided to have children. He claimed Ms JJ was infertile, which she discovered from a doctor in Vietnam. He claimed he was not privy to what the doctor told her, or the reason for her infertility, and relied on her advice alone. He also claimed an Australian doctor ‘confirmed the [infertility] problem with her’ but no corroborating evidence was provided from this doctor. The Applicant said he and Ms JJ did internet research about IVF and surrogacy and made plans to have a child together but claimed their relationship ‘ended badly’ because of his imprisonment and Ms JJ’s deteriorating relationship with his mother.
The Applicant was asked about the inconsistency between his oral evidence that the relationship with Ms JJ commenced in 2015, with his previous claim in a partner visa application that they committed to a shared life together in 2013.[77] The Applicant said they had an ‘on-off’ relationship, but this did not mean they had not committed to a life together. He denied the relationship with Ms JJ was contrived to secure her a visa or that he ‘lied to the Department’.
[77] Exhibit R1, 713.
The Applicant was asked about Ms JJ’s claim that they were engaged in 2005 and her family gifted them land in accordance with Vietnamese culture.[78] The Applicant said the reference to 2005 was Ms JJ’s mistake and the land she referred to was only promised by her parents if they married. When asked if money was borrowed against this land to pay the Applicant’s legal expenses and mortgage repayments,[79] the Applicant said Ms JJ sold the land after asking her parents for permission. The Applicant said the proceeds were insufficient to cover mortgage costs and his legal expenses, requiring the Applicant’s mother to make a substantial contribution to these costs.
[78] Ibid 96 [7].
[79] Ibid 96 [8]-[9].
Applicant’s sister
The Applicant said he has a sister who is married and lives overseas. He claimed she provided him with considerable financial support in the past, recalling various payments of $34,000 for his IVF costs with Ms JJ, and amounts of $50,000, $15,000, $17,000 for other purposes. When asked about his documentary claim in 2019 that his sister had breast cancer and was in financial hardship because her husband only worked part time with a low income,[80] the Applicant said their financial position had improved. When asked about his previous claim that his sister’s financial circumstances were so dire he had to pay for her children’s private education costs,[81] the Applicant said this was only $500 per month.
[80] Ibid 86.
[81] Ibid.
Mr AB
The Applicant was asked about an October 2020 statement from Mr AB that he and the Applicant were previously in a same-sex relationship. The Applicant denied he was the other person shown kissing Mr AB in photographs or that they were romantically involved. He denied Mr AB’s claim that they started dating in August 2017, were progressing plans to have a child together under an overseas surrogacy arrangement, and that Mr AB flew overseas carrying their biological material for that purpose. The Applicant explained that Mr AB was the ‘authorised main contact’ for surrogacy arrangements, but only on behalf of him and Ms JJ. He said this included tasks like making payments and receiving / responding to messages. He referred to one amount of $10,442 transferred by Mr AB to the surrogacy provider as originating from the Applicant’s sister in the United States. When asked why the Applicant’s sister would transfer this amount to Australia, rather than sending it directly to the surrogacy provider in the United States where she lived, the Applicant’s response did not assist the Tribunal. There was no evidence provided to corroborate the Applicant’s claim that this payment originated from his sister. When asked why Mr AB played an ‘authorised main contact’ role for the Applicant’s surrogacy arrangement with Ms JJ, the Applicant said it was because of his busy work commitments. He also claimed Ms JJ ‘didn’t use email much’ and was ‘lazy’. When pressed about the necessity for Mr AB to play this role, the Applicant said it was ‘common sense’ because Mr AB had an advantage with English and was better able to research online.
The Applicant was asked about travel documents showing Mr AB travelled to the United States in March 2019 and used the same address used by the Applicant and his mother on an Incoming Passenger Card upon return. It was put to the Applicant that Mr AB undertook this travel to assist with surrogacy arrangements for him and the Applicant, which the Applicant denied. When asked why Mr AB used the same address as the Applicant and his mother, the Applicant said he did not know. When asked about the cost of the surrogacy arrangement, the Applicant said it was approximately USD$150,000. He claimed that USD$96,000 of this cost was paid by his family, but he did not personally contribute. He again invoked ‘Asian culture,’ explaining that great importance is placed on expanding a family’s lineage and this financial contribution was ‘something from the heart’. The Applicant was asked why at a time of significant indebtedness, including to victims of his offending, these funds were directed to surrogacy costs instead of the victims. He said his family did not wish to provide these funds to victims.
The Applicant was referred to emails tendered by the Respondent relating to payments and other arrangements relating to surrogacy from a United States provider to him and Mr AB.[82] The Applicant said he did not believe these records were correct, including because the emails should have been addressed to him and Ms JJ rather than to him and Mr AB. It was difficult to understand this aspect of the Applicant’s evidence given his earlier claim that Mr AB was the ‘authorised main contact’ for these services. The Applicant claimed not to recall some information and said other aspects of these emails were inaccurate. For example, he could not recall the figure of $20,000 mentioned in one email and believed the discussion in another about the surrogate’s preparations was altered. The Applicant agreed the emails indicated he was a recipient of this correspondence but stated he could not locate them in his ‘email history’.
[82] Exhibit R3, 3-15.
The Applicant was taken to an email in the response he provided to the STB, purportedly from a United States attorney, in which the word ‘assistant’ is improperly used instead of the word ‘assistance’. He was then taken to submissions he provided at the first Tribunal hearing in April 2021, in which the word ‘assistant’ is similarly misused in multiple places.[83] It was put directly to the Applicant that he provided fabricated evidence in his response to Exhibit R3, which he denied. The Applicant was asked why his evidence should be preferred given his history of document fraud in the past. He responded that he used to be a liar, fraudster, and fabricator of evidence prior to being arrested, but said this changed following the salutary experience of prison and immigration detention.
[83] Exhibit R1, 766; 769.
Mr Vuu asked the Applicant directly if he is homosexual, which the Applicant denied. The Applicant agreed he resembled the other man in the photograph kissing Mr AB, but denied it was him or that they ever had a romantic relationship. The Applicant was asked about the similarity between a red t-shirt with three stripes worn by the person kissing Mr AB and a photograph of the Applicant wearing a comparable shirt in a photograph he previously agreed was from his genuine social media account.[84] The Applicant continued to deny he was the person kissing Mr AB or that another social media page in his name, which stated he was in a relationship with Mr AB, was genuine.[85] He also denied Mr AB’s claim that he used Mr AB’s identification documents to establish a bank account and apply for loans, stating he was never charged with this.
[84] Ibid 721.
[85] Ibid 722.
The Applicant said he met Mr AB while undertaking charitable work. He claimed Mr AB told him he was hungry and homeless, so the Applicant decided to provide him with food, shelter, and other support. He claimed to have given Mr AB approximately $10,000 in financial support during their association, got him a job, and organised $40,000 from his mother to buy Mr AB a Porsche SUV so Mr AB could drive himself to work. The Applicant stated he did not own a car at this time and did not use Mr AB’s car. When taken to evidence appearing to show him driving an Audi and Porsche around this time,[86] the Applicant changed his evidence to state he did drive Mr AB’s Porsche and the Audi but had only ‘borrowed them’. When asked why such an expensive car was purchased for Mr AB, the Applicant said his mother has a ‘good heart’ and wanted to help Mr AB become ‘more independent’. The Applicant said he and his mother treated Mr AB ‘like family’, wanted him to be safe, and a cheaper car ‘might have cost him his life’. The Applicant said Mr AB visited him in prison so the Applicant could continue motivating and ‘encouraging him to get back on his feet’. He claimed that when he asked Mr AB to repay some of the money, however, Mr AB stopped returning the Applicant’s calls.
[86] Ibid 987.
Study in Australia
The Applicant said he undertook university study in Australia. A Statutory Declaration from his former stepfather refers to him being a full-time student in 2014, undertaking his last year at university, and being financially supported by his parents. The Applicant did not advance any claims about his former stepfather during the hearing. A Statutory Declaration from his mother dated 13 January 2021 similarly refers to the Applicant being reliant on parental support. The Applicant was taken to a payslip dated January 2014, purporting to show he was employed by a particular company. He agreed he had seen the payslip before, and said it was produced in support of a bank loan application. When asked if he produced the payslip, the Applicant refused to answer the question, invoking his privilege against self-incrimination. When asked if he ever worked at the company in question, the Applicant said he had not. The Applicant was taken to a letter dated 19 March 2014 from the company stating he was employed full-time and paid $132,000. When asked why there was a letter from a company saying he worked for them when he did not, the Applicant invoked his privilege against self-incrimination.
The Applicant was asked to clarify conflicting information about his study achievements in Australia. He claimed to have undertaken two-and-a-half years of a Bachelor of Applied Finance at a New South Wales university but failed four of the units attempted. No evidence was provided to corroborate these study claims. The Applicant also stated he completed a Diploma in Commerce. When asked about several failed subjects on the academic transcript for this course, including two failures of an accounting pre-requisite, the Applicant claimed he was permitted to undertake an alternative subject.
The Applicant was asked about a reference in his psychiatrist’s letter dated 13 July 2019 that he completed one year of a two-year course in Graduate Migration Law. The Applicant claimed this was true. When asked what qualified him to undertake a graduate law qualification, the Applicant said he lied to the university about meeting the undergraduate pre-requisite by claiming to have a degree in ‘Applied Finance.’ Despite not being qualified to enrol he nevertheless insisted: ‘No, I didn’t lie to Dr Luong because I actually studied that course’. This claim is not corroborated by documents obtained from the university under summons and the Tribunal does not accept it.
The Applicant agreed he also falsely claimed to have worked as a migration lawyer for four years, to have a master’s degree in Business Finance, and to have completed a Graduate Certificate in Australian Migration Law.[87] When asked about a reference in a prison record to him having a Bachelor of Applied Finance,[88] the Applicant said the person who authored the record must have made a mistake.
[87] Ibid 41.
[88] Ibid, 469.
When asked about another prison record where the corrections officer noted the Applicant was an ‘accountant and financial advisor’ after university and was shown how to commit fraud by his employer,[89] the Applicant claimed the report writer ‘incorrectly copied down’ what he said.
[89] Ibid 150.
Finances
The Applicant was taken to two financial statements where his bank balance on 20 March 2014 was recorded as $46,420.65,[90] and on 3 April 2014 as $92,067.13.[91] When asked if these documents were genuine, he responded: ‘I don’t know’. He thought he did have a balance of approximately $42,000 on 20 March 2014 but could not remember if the 3 April 2014 balance was correct, believing it was ‘too large’. When asked how he accumulated these funds as a full-time student who was financially reliant on his parents, the Applicant said it came from his mother’s divorce settlement in Vietnam. When asked why his mother put these funds into his account rather than her own, the Applicant again invoked ‘Asian culture,’ explaining that mothers and sons trust each other and claimed his mother nominated him as a ‘trustee’ to purchase a house, because he could get a bank loan more easily. He said his was because mother could not ‘satisfy a bank requirement’ for a loan by demonstrating sufficiently stable employment. When asked why he was in a better position to do this as an unemployed university student who was financially reliant on his parents, the Applicant insisted he could better demonstrate an ability to make ‘stable payments’ to the bank. After several questions, the Applicant conceded he lied to the bank about having a full-time job, about his employer, about having a brother, and about possessions, like an Audi motor vehicle.[92] When asked whether his mother transferred these funds into his account because he was more likely to secure a loan with false work and asset claims, the Applicant again invoked his privilege against self-incrimination.
[90] Exhibit R2, 19.
[91] Ibid 20.
[92] Ibid, 21.
The Applicant was referred to correspondence from another bank that determined a certificate of balance he provided was false.[93] The Applicant agreed the certificate was fabricated. When referred to another bank statement,[94] the Applicant said it appeared to be a genuine statement. After being shown a bank letter to the contrary,[95] he agreed the statement was false. When asked if he had any explanation about how the statement came to exist, the Applicant invoked his privilege against self-incrimination. The Applicant agreed, however, that manufacturing fraudulent documents was a central method he employed in the past to get what he wants. He agreed this included fabricating documents from the New South Wales Government, the Department of Immigration, and the trade investment body of the New South Wales Government.
[93] Ibid 49.
[94] Ibid 51.
[95] Ibid 63.

The Applicant was asked about inconsistencies in information he gave a financial counsellor from the Salvation Army, in which he did not list a $270,000 debt purportedly owed Mr LV. The Applicant conceded he ‘lied’ to the financial counsellor and the balance sheet he prepared was ‘not truly accurate’. He said this was because he was not prepared to elaborate on his private financial information and some questions on the form had confused him. When asked if he had done any other financial counselling apart from this single session with the Salvation Army, the Applicant replied ‘No’. The Applicant was asked how the Tribunal could be confident he would not reoffend given that financial stress contributed to his past offending and, on his own evidence, he is approximately $700,000 in debt to his mother, Mr LV, his victims, and perhaps others. Moreover, he claimed to have previously hidden both his offending and gambling addiction over several years from his mother and psychiatrist. The Applicant said a fear of returning to prison was the most compelling protective factor. During re-examination the Applicant said the counselling assistance he received for his gambling addiction included strategies to help him deal with financial stressors in future. No evidence was provided, however, to corroborate the specific nature of any gambling counselling undertaken.
Family in Vietnam
The Applicant said he has an uncle, two aunts, and two cousins in Vietnam that he is close to and had visited during past trips to Vietnam. One of these aunts, who he claims is married to the Applicant’s grandfather’s brother, suffers ‘stage 5’ kidney failure.[96] The Applicant said his mother is very close to this aunt and visited her in Vietnam. When asked why he wrote to a judge in July 2019 stating he has no family in Vietnam,[97] the Applicant conceded this was false.
[96] Exhibit R1, 165-167.
[97] Ibid 417.
Offending
The Applicant agreed he dishonestly took money from vulnerable people and knew this was wrong. He contextualised his crimes as arising from financial difficulties and the ‘dark side’ of gambling. He claimed to have hidden his offending and gambling from his mother, who is the person he is closest to in Australia.[98] He claimed to have borrowed money from friends, was deep in debt, and creditors were ‘chasing’ him for repayment. He said that he continued to gamble heavily right up until being imprisoned on 22 August 2019. When asked about a letter from a Salvation Army financial counsellor stating he told them he spent ‘$0’ on gambling,[99] the Applicant said he thought the question referred to whether he gambled in the previous fortnight, which he had not. When asked why there was no reference in Dr Luong’s reports about his gambling problem, the Applicant said he failed to realise at that time gambling was an issue for him. He said this only became apparent after he undertook research in the prison library in early 2021 and completed an online gambling survey in April 2021.The Applicant also claimed Dr Luong ‘didn’t really collect the full information’. When asked if he was suggesting Dr Luong did not ask him the right questions, the Applicant responded: ‘Yes’.
[98] Ibid 166 [14].
[99] Ibid 422.
The Applicant said his most recent conviction resulted from another prisoner identifying him from media articles and coercing him to possess a mobile phone.[100] The Applicant agreed that after the mobile phone was discovered, he was charged, pleaded guilty, and received a further six-month sentence of imprisonment.
[100] Ibid 206-208; 446-447.
Rehabilitation and recidivism risk
The Applicant said he will not reoffend because he does not want to return to prison. He agreed that he currently has debts of approximately $700,000 and past financial stressors caused him to commit crimes. In terms of his ‘very heavy gambling addiction’, the Applicant referred to two counsellors he has worked with, initially claiming this consisted of twice-weekly counselling for six months. When directed to letters dated 8 November 2021 and 17 January 2022 from a Gambling Treatment Program, he agreed his attendance was more modest. The Applicant claimed he undertook additional sessions after his first appointment on 13 January 2022 but provided no evidence of this. The Applicant disagreed that the only reason he raised a gambling problem is because it might help him in the current proceeding. The Applicant also referred to other community-minded activities since his offending as a sign of his remorse and commitment to lead a law-abiding life.[101]
[101] Ibid 105; 974-1006.
The Applicant referred to a letter dated 29 November 2021 from a social worker he undertook online consultations with while in immigration detention. This letter refers to the Applicant having undertaken five sessions ‘to identify and challenge his unhelpful thought and behaviour patterns’. The social worker recommended the Applicant continue to engage with financial, gambling, and individual counselling if released to ‘ensure continuity of care into community’. The social worker was not called to give evidence.
Remorse and victim compensation
The Applicant said his conduct in dishonestly taking money from victims caused a ‘big scar’ on their lives. He agreed compensation orders were made by the court and caveats were also taken out over property he owns, including by his mother, a lawyer, and victims of his offending. When asked how much money might be available from the recent property sale to Mr LV for distribution to victims, the Applicant said he could not confirm this. When asked how much money had been received by victims, the Applicant said nothing as yet. During re-examination the Applicant agreed there would be insufficient funds from the sale of his home to repay victims. He said that if allowed to return to the community he intends ‘making honest money’ to eventually pay the victims what he owes.
Contribution to Australia
The Applicant referred to charity work he claimed to have undertaken for a Vietnamese Temple and Gospel Church. The Tribunal raised concerns about the genuineness of these letters, including because a letter from the Temple[102] referred to the Applicant undertaking 110 weeks of unpaid volunteer work in less than two years. The Applicant agreed this was a mathematical impossibility. A second letter from the Temple[103] has two pages in different fonts/styles and the date on the last page is in a different font/style to the preceding text. The purported authors of these statements were not called to give evidence.
[102] Ibid 423.
[103] Ibid 837.
Medical conditions
There are frequent references in the Applicant’s evidence to medical and psychological conditions he purportedly suffers, which the Tribunal attempted to reconcile. The Applicant claimed in oral evidence he has Major Depressive Disorder, anxiety, bipolar, gambling addiction, a back condition, and an unresolved problem with the scaphoid bone in one of his wrists. He initially claimed in response to a question from Mr Vuu that all his claimed conditions were clinically diagnosed. In documentary evidence, reference is also made to the Applicant suffering Chronic Traumatic Encephalopathy (CTE), autism, and Chronic Trauma and Personality Disorder.[104] He claimed that in relation to his ‘Major Depressive Disorder and Bipolar’, he has received treatment since 2017 from Dr Luong and was ‘recently taking’ Avanza, Aropax and Pristiq. He also claimed to take Lyrica for a painful back condition. He said that if returned to Vietnam, he could not get comparable treatment because ‘equivalent qualifications, technology, or medication’ was unavailable. He claimed to have ‘never received any treatment in Vietnam’.
[104] Ibid 90; 499; 504.
During cross-examination the Applicant changed his evidence to the effect that only Major Depressive Disorder is diagnosed. He claimed to have self-diagnosed CTE, bipolar disorder, autism, and a gambling addiction through his own research. The Applicant was asked about the claim that he never received treatment in Vietnam, given other contradictory material in evidence. He said there was one occasion when his mother took him to a Vietnamese hospital because he was stressed from intensive studying. The Applicant was asked about a mental breakdown in Vietnam referred to in Dr Luong’s letter dated 12 April 2021.[105] The Applicant said this was correct and although he required treatment, had only received ‘Panadol.’ When referred to Dr Luong’s reference to the Applicant receiving treatment in the form of pink and orange tablets for two months, the Applicant claimed this was ‘Panadol’.
[105] Ibid 933.
When asked about Dr Luong’s reference to the Applicant physically attacking fellow students at school in Vietnam, causing him to be placed in ‘rehab’ for three weeks, the Applicant said this was correct.[106] When asked what ‘rehab’ meant, the Applicant he was made to watch videos at school about proper behaviour and then had to write out 500 times that he would not repeat his objectionable conduct. When referred to his Statement of Facts, Issues and Contentions at the first Tribunal hearing about being confined in a ‘Mental Ward ICU’ in September 2003 for two weeks,[107] the Applicant conceded this claim was false. He admitted using a templated chronology from a friend who previously appeared before the Tribunal and intentionally decided to include the ‘Mental Ward ICU’ reference despite it not being part of his history: ‘I saw it there and thought it sounded good for mental illness, so I left it in’. The Applicant agreed that the significant inconsistencies in his evidence about medical conditions were such that the Tribunal could have little confidence in these claims. In re-examination the Applicant explained he did not have legal assistance or the help of an interpreter when submitting his statement to the Tribunal and used ‘Google translation’.
[106] Ibid 112.
[107] Ibid 764.
The Applicant was asked about relatively recent treatment from a social worker under the guidance of his psychiatrist. The Applicant said he did not know if he could find a psychiatrist in Vietnam who would take his conditions seriously.
Protective factors
The Applicant said prison and detention were salutary experiences that would prevent him from reoffending. He intends to live with his mother if released and take up a job with an investment company that offered him a ‘full-time position as a Marketing Manager’ commencing on 2 May 2022 in Queensland at a starting salary of $106,300. The Applicant said he was referred to this opportunity by a friend, who told him to ‘jump on a link and fill in a form’. He claimed to have received a call from the owner of the company who interviewed him and offered him the job. The Applicant said he later learned this company is a franchise sale business, and his role would be ‘organising financial information’ related to the selling of franchises. When asked the name of the franchise product sold, the Applicant stated: ‘I don’t have the name’. When asked what qualified him to be a Marketing Manager, the Applicant referred to his Diploma of Commerce. He said he never met the employer who offered him the job, but claimed they are aware of his criminal history, the fact he is in immigration detention, and were still willing to offer him the position.
The Tribunal made its own enquiries about this letter of offer. No email address, landline or fax numbers are provided, and only a mobile number listed in the text of the letter. I directed a Tribunal officer to call this number to see if the owner was willing to give evidence, but the calls went unanswered. The Tribunal also looked up the ‘HQ’ and ‘Office’ addresses on the letter using Google Maps and shared this information with the parties during the hearing using a ‘share screen’ function. The purported ‘HQ’ is a nondescript suburban house in Queensland, with an overgrown garden and fallen bins. The latter address is for a prominent shopping centre in NSW rather than in Queensland. There is no reference in the store directory to the company that purportedly offered the Applicant this job. When asked to respond, the Applicant insisted the job offer is genuine.
The Applicant was taken to another job offer he previously relied upon dated 10 March 2021.[108] He said a mutual friend recommended him for the role of ‘Financial Manager’ and he subsequently spoke with the employer who made him a job offer. I again directed a Tribunal officer to call this number to see if the owner was willing to give evidence, which he was. This information is discussed later.
[108] Ibid 957.
Fears of harm
The Applicant said threats were made against him in prison after he was identified by an inmate from media articles. He claimed that his uncle in Vietnam was subsequently threatened and harmed. The Applicant said he fears harm in both Australia and Vietnam, because the reach of Vietnamese gangs extends to powerful affiliates here. When asked why gangs needed to threaten and harm his relatives in Vietnam if their affiliates can harm him in Australia, the Applicant claimed it was hard for gang affiliates here to ‘follow instructions’ and at least in Australia he had some protection.
The Applicant was challenged about the material he provided to corroborate threats made against him by gang members and a violent incident against his uncle in Vietnam.[109] The former includes a video published on YouTube in which gang members publicly threaten to kill the Applicant, claim that 500 of their number are waiting for him, and they possess numerous weapons imported from Cambodia to harm him. The Applicant agreed he did not report a YouTube video of a sword-wielding gang member, who he claimed to know, despite threats to kill him. An issue raised with the Applicant was the open recording on a mobile telephone of the purported gang attack on his uncle, which contrasted with his uncle’s claim that the attack was ‘secretly’ recorded. The Tribunal notes that a translation of the uncle’s purported statement to Vietnamese police states the incident was recorded by an anti-theft camera in his house, whereas the footage provided by the Applicant was taken by someone on a mobile recording device in close proximity of those carrying out the attack.
[109] Ibid 926-927.
It was put to the Applicant that armed gang members would not readily allow someone to openly record their violent attack on a mobile phone, which he did not accept. It was also put to him it was hard to believe undisguised gang members would publicly threaten to kill him and brag about illegal acts like weapon smuggling. The Applicant said: ‘they can do anything in Vietnam,’ claiming that gangs controlled the authorities. In response to a question from Mr Vuu, the Applicant said he had not faked the video or accompanying media article, but agreed he translated some of the material himself.[110] When asked why he did not provide a statement from the uncle who was attacked, or call him to give evidence, the Applicant said he did not think this was necessary. It was put directly to the Applicant by Mr Taylor that his evidence about the gang attack was concocted, which the Applicant denied.
[110] Ibid 929.
The Applicant said no place was safe for him in Vietnam. He was asked to reconcile this claim with past requests for voluntary return. He said that without a release date from detention, he had asked for voluntary removal with the intention of transiting through Vietnam to a safer country. He said that as a citizen and passport holder of Vietnam, and given his financial circumstances, he could afford to live in any Asian country he chose. He had not made any specific plans about this yet and considered it a ‘last resort’. When asked whether his fears of harm were greater in Australia than Vietnam, the Applicant said he could not ‘balance it out’ and had the ‘same fear’ in both countries.
Evidence of Applicant’s mother
The Applicant’s mother gave oral evidence during the hearing and adopted her statement dated 19 January 2022 as true and accurate. The Tribunal has also considered her earlier statements and Statutory Declarations.[111]
[111] Ibid 93-95; 167-168; 835-836; Exhibit R2, 11.
The witness said she loves the Applicant and wants him to remain in Australia. Despite several attempts to elicit when they last spoke, she equivocated, eventually stating: ‘around six days ago’. The witness referred to hard times after her marriage broke down in Vietnam and said that she subsequently made a concerted effort to build up ‘lots of business assets’ during the last decade. This includes multiple trading, real estate and mortgage businesses, ownership of several houses, and large tracts of land. She said the land and houses are in the process of being sold to fund other investments in Australia. The witness said she will return to Vietnam ‘in five months to finalise this’ and estimated receiving approximately $11 million (AUD) from these transactions. No evidence was provided to corroborate these claims. When asked about the inconsistency between this evidence and her witness statement that she has ‘no residential properties in Vietnam’,[112] the witness claimed this is because she has now ‘sold them all’. The witness said she has no plans to live in Vietnam but if the Applicant is repatriated, she advised: ‘maybe I’ll be moving back.’ She considers, however, that Australia is a ‘much better environment’ for him.
[112] Exhibit A2, 3 [26].
The witness said she purchased an 18-bedroom hotel three years ago, which has not opened or operated since. She wants the Applicant to manage this business upon his release.[113] She intends to register the business in his name, hire local employees, and has plans to construct a third floor. She does not trust anyone but the Applicant to manage the hotel and intends selling it if he is not permitted to remain in Australia, with concomitant loss of employment opportunities. When asked about the Applicant’s intention to seek employment in Queensland and the absence of any reference in his evidence to her hotel plans, the witness said she would not permit him to relocate interstate and insisted he would live with her so she could ‘re-educate’ him.
[113] Exhibit A2.
The witness said she was not in Australia during the first Tribunal hearing because of business commitments overseas, which included visiting a sick relative. She has lived with the Applicant for many years in a house he legally owns, but she claims to be the equitable owner of: ‘I’m not the registered owner, but the money comes from me’. She said that in 2021 she contracted to purchase the house from the Applicant ‘but could not get a loan’ and subsequently recovered her deposit of approximately $100,000. When asked why she did not determine her ability to complete the sale before paying a $100,000 deposit, the witness said she had not sold her properties in Vietnam yet. When asked if she ever made mortgage repayments on this home during the Applicant’s imprisonment and detention, she replied with a question: ‘If not me, then who?’ When asked how much she paid overall, the witness stated: ‘Generally I don’t count, I just pay...’ Notwithstanding her explanations, the Tribunal remains unable to understand why the Applicant’s mother contracted to purchase a home she already claims to be the equitable owner of.
The witness said Mr LV, who is a friend from her ‘hometown’ in Vietnam, subsequently purchased the house instead. They go out together on occasions and are close. She said Mr LV allowed her to remain in the house beyond the contracted vacant possession date, so she can complete work at another house she owns nearby. The witness claimed she would not receive any of the proceeds of the sale to Mr LV. She stated several times that she does not care about the money and only the Applicant would receive the proceeds. When asked to confirm if the Applicant had already received these funds, the witness responded: ‘I don’t know his business, whatever he does with the money is his business – I don’t care’.

Section 5 of the Act defines ‘non-refoulement obligations’ non-exhaustively as including Australia’s obligations as a party to the Conventions, Protocols and Covenants listed at cl 9.1(1) of the Direction and ‘any obligations accorded by customary international law that are of a similar kind to those mentioned’ in those treaties. As held in Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 at 35 [103]: ‘the term “non-refoulement obligations” is not confined to the protection obligations to which s 36(2) refers’.
The Tribunal must give active intellectual consideration to the Applicant’s clearly articulated representations about risk of harm, regardless of characterisation.[186] The Tribunal’s engagement with such claims, however, relates to whether there is ‘another reason’ for revocation under s 501CA of the Act, rather than the analysis undertaken for Protection Visa applications.[187]
[186] YKSB v Minister for Home Affairs [2020] FCAFC 224, 5; Minister for Home Affairs v Omar (2019) 272 FCR 589, [34]–[44] (‘Omar’).
[187] Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, [27]–[28]; Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28].
As held in GLD18 v Minister for Home Affairs:[188]
The predictive exercise involved in forming a state of satisfaction as to the well-foundedness of a visa applicant’s expressed fear of returning to her or his country of nationality was described by the Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [32]–[38]. Included in that exercise is, as the Court said at [37], an assessment and determination of what might happen to a visa applicant if she or he were returned to her or his country of nationality at the point in time the review decision is made, and what might happen in the near future thereafter…
[188] [2020] FCAFC 2 at [77] (Allsop CJ, Mortimer and Snaden JJ).
Since the hearing concluded, the High Court has handed down judgment in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17. The plurality of Kiefel CJ, Keane, Gordon and Steward JJ detailed the decisionmaker’s task when deciding if there is ‘another reason’ pursuant to s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of a non-citizen’s visa. This includes (footnotes omitted):
[24] …there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman [(1995) 57 FCR 451 at 495], the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. 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] It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. 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.
The Applicant submitted that members of his family in Vietnam were ‘threatened and physically injured in a gruesome attack, and that equally violent threats have been levelled against the Applicant himself, should he be returned to Vietnam’.[189] As stated earlier, this conflicts with his past claims to the Court about having no family members in Vietnam. The Applicant claimed the harm to his relative and the threats levelled against him arise from his conduct in Australia, and that the risks confronting him ‘must be given significant weight by the Tribunal’. The evidence of the Applicant’s mother about these threats and incidents against her relatives in Vietnam was vague and she was uncertain whether her ‘brother or sister’ in Vietnam told her about it. She did not ‘know much’ about any fear of harm the Applicant may have in Australia.
[189] ASFIC, 15-16 [70]-[72].
It is not contested in this matter that the Applicant was entitled to apply for a Protection Visa but had not yet done so. In closing submissions, Mr Vuu said there is credible evidence about the Applicant being confronted by the threat of harm if returned to Vietnam and some of the scepticism raised about the videoed attack on the Applicant’s uncle could be explained. This included the attackers fearing immediate arrest as the reason for leaving their weapons behind when departing the scene of the attack.
Mr Taylor submitted that the Applicant’s claims about threats in Vietnam and inability of police to protect him were implausible. Moreover, the Applicant’s past willingness to countenance voluntary return to Vietnam, suggested he was not in genuine fear. Mr Taylor also submitted the Applicant’s claimed fear of harm in Australia is speculative at best, and he has not been harmed in custodial settings.
Mr Taylor subsequently advised the Tribunal after the hearing ended that the Applicant voluntarily departed Australia on 29 April 2022. An unchallenged movement record was provided to this effect.
Tribunal findings: International non-refoulement obligations
Given the Applicant’s voluntary departure from Australia, it is no longer possible for Australia to breach its non-refoulement obligations by forcibly returning, deporting, or expelling him to a place where he ‘will be at risk of a specific type of harm’. It is not known where he is currently located or what his intentions are in the event of a favourable decision in this matter. The Applicant’s oral evidence was that as a citizen and passport holder of Vietnam, and given his financial circumstances, he can choose to transit Vietnam and live in any Asian country he chooses.
Given the significant inconsistencies in the Applicant’s evidence, nature of his past dishonesty offending, extent of his family interests in Vietnam, and voluntary departure from Australia after the hearing ended, the Tribunal was unpersuaded by his earlier representations about fearing harm if removed. This includes purported harm from gang members or being able to access required healthcare, most notably because the Applicant said he had the travel documents and resources to live anywhere in Asia. Given that the Applicant’s current location is unknown, and his future intentions are unclear, the Tribunal is unable to make a reliable finding about his claims. Moreover, it was open to him at the time of the hearing to apply for a Protection Visa and have his claims conclusively assessed but he chose not to do so.
The Tribunal finds this consideration is not enlivened and carries neutral weight.
Tribunal consideration: Extent of impediments if removed
Clause 9.2 (1) of the Direction provides:
(1) 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), taking 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.
Age, language, cultural barriers
The Applicant is currently 34 years of age. He speaks Vietnamese fluently and English very well. He has been a frequent return visitor to Vietnam and has relatives living there, contrary to his past claims. No submissions were made in relation to cultural impediments. The Applicant’s oral evidence is that as a citizen and passport holder of Vietnam, and given his financial situation, he can live in any Asian country he chooses. He expressed an intention to transit Vietnam and live elsewhere in Asia if removed.
Health
The Applicant referred to multiple medical and psychological conditions, including a scaphoid fracture of his left wrist,[190] autism, major depressive disorder, ‘paranoid’ (sic), ‘psychotics symptoms’ (sic), and sleep disturbance.[191] A prison record refers to the Applicant claiming to suffer ‘CTE’, which the report author noted is:
…known to be a neurodegenerative disorder, caused by exposure to multiple head injuries. His explanation for how this was acquired related to his previous position as goal keeper in “American soccer.”[192]
[190] Exhibit R1, 109-110.
[191] Ibid 90.
[192] Ibid 499.
The Applicant’s evidence includes claims about a back condition, which he did not meaningfully advance during the hearing. The Tribunal has considered:
(a)Medical records from a general practitioner dated 25 May 2016 regarding a ‘chronic lumbar spinal back pain with (L) sciatica’, stating the Applicant was unfit ‘indefinitely’.[193]
(b)An imaging report dated 4 June 2016, which concludes that the Applicant has ‘mild to moderate left subarticular zone narrowing at L5/S1 with potential irritation of the left descending S1 nerve [and] mild bilateral subarticular zone narrowing at L4/5 and on the right at L5/S1’.[194]
(c)A referral of the Applicant for specialist review on 16 May 2017 regarding lower back pain.[195] There is reference to a cortisone injection being recommended by the Applicant’s general practitioner, which the Applicant ‘resisted.’[196]
(d)A letter from a general practitioner dated 11 July 2019, stating the Applicant had experienced a ‘chronic lumbar spinal back issue for at least three years’ and ‘further scan investigation’ was being conducted at that time.[197] No expert evidence is available regarding the outcome of that investigation or to confirm the status of any back condition.
[193] Ibid 783.
[194] Ibid 780-782.
[195] Ibid 783.
[196] Ibid.
[197] Ibid 414-415.
It is submitted by the Applicant that he will be ‘confronted with difficulties receiving adequate medical treatment for his clinically diagnosed mental health issues and prescription medications he takes to treat them’.[198] In relation to psychological conditions, the Tribunal has considered correspondence from consultant psychiatrist Dr Thomas Luong. It is submitted that by virtue of Dr Luong’s ‘experience having travelled to Vietnam; and his knowledge about the treatment of mental health conditions’, the Applicant ‘will not receive the kind of psychiatric treatments of Australian-standard if he were to return to Vietnam’.[199] This is purportedly founded on Dr Luong’s knowledge about psychiatric training in Vietnam and prevalence of fake psychotropic medication.[200] Dr Luong was not called as a witness, but the Tribunal has considered several letters from him that include:
(a)Letter dated 13 July 2019, prepared in the context of the Applicant’s 2019 court appearance.[201] Dr Luong noted at the time the Applicant told him he ceased taking an antipsychotic medication ‘some months earlier’, and reported a significant list of symptoms. He diagnosed the Applicant with Major Depressive Disorder and prescribed a condition-specific medication.
(b)Letter dated 22 January 2020, prepared at the request of the Applicant’s mother, who is also under Dr Luong’s care.[202]
(c)Letter from Dr Luong dated 19 July 2020 to the Applicant’s then lawyer, recommending the Applicant for early release from prison.[203] Dr Luong stated in this letter he last worked in corrections approximately 20 years earlier, and stated that after: ‘talking with my colleagues working there, I believe the situation (mental health priority for inmates) has not changed much’.[204]
(d)Letter dated 12 April 2021 from Dr Luong, which stated he had seen the Applicant ten times between 6 December 2017 and 24 July 2019.[205] Dr Luong stated that his knowledge about psychiatric care in Vietnam arises predominantly from meeting ‘some psychiatrists from Vietnam’ approximately 17 years ago.[206] Dr Luong also refers to a personal visit he undertook to Vietnam in 2015-16 to see high school friends, some of whom he claimed suffered from ‘unrecognised, undiagnosed, and untreated Major Depressive Disorder’.[207] Dr Luong said he recommended medication that these friends should take (Aropax), but claimed the pink tablets they purchased ‘achieved not an iota of change in their mental state’. He claimed that ‘these pink Canadian-made Aropax are fake medications and fake medications are rampant in third world countries, Vietnam included’.[208] Dr Luong states that on return to Australia he purchased Aropax and sent it to Vietnam for these patients, who purportedly ‘made remarkable improvements’.
[198] ASFIC, 16 [74].
[199] Ibid 16 [75].
[200] Exhibit R1, 937-938.
[201] Ibid 111-114.
[202] Ibid 119-120.
[203] Ibid 785.
[204] Ibid 786.
[205] Ibid 933-938.
[206] Ibid 937.
[207] Ibid 938.
[208] Ibid.
The Tribunal has considered the Applicant’s medical records from the International Health and Medical Services (IHMS), which provides primary and mental health care services within the Australian immigration detention network.[209] This refers to certain medications the Applicant was taking in early 2021, and a record stating he was eager to depart Australia, would cover all costs for his departure to Vietnam, and had medical issues that he ‘wishes to attend to in Vietnam….’[210]
[209] Ibid 736-740.
[210] Ibid 739-740.
Mr Taylor submitted that the Applicant is educated, spent his formative years in Vietnam, has a past employment history to draw upon, and there is no evidence he would be unable to access treatment for any health needs. The Country Information Report for Vietnam, dated January 2022, and a recent Tribunal decision are referred to in support of this contention.[211]
[211] RSFIC, 20 [111]; Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2055.
Tribunal findings: Extent of impediments if removed
There is no evidence to reliably support a finding that Dr Luong, as an Australian psychiatrist, has any expertise relating to the training of Vietnamese psychiatrists, or the genuineness of medication in other countries. Much of the commentary about this in Dr Luong’s letters has an air of hearsay and some of the information on which his opinions are based is dated and therefore unlikely to reflect contemporary practice in Vietnam. This is reinforced by the DFAT Report. Moreover, the basis on which Dr Luong provided medical services and sent medication to citizens in a foreign country remains unclear.
The Applicant is a frequent international traveller and stated during the hearing he does not intend living in Vietnam if removed but has the resources to reside in any Asian country he chooses. If he did choose to live in Vietnam, there is no evidence he could not afford required treatment for any physical or psychological conditions, or that he would be treated differently to other Vietnamese citizens. As discussed earlier, the Applicant voluntarily departed Australia on 29 April 2022. The extent of impediments confronting him is therefore unclear and turns on where he currently lives, which is unknown.
Given the Applicant’s decade-long stay in Australia, there is likely to be a period of adaptation in whatever location he chooses to re-establish himself. On balance, this consideration weighs somewhat in favour of revocation.
Tribunal consideration: Impact on victims
Clause 9.3 (1) of the Direction states:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Tribunal findings: Impact on victims
There is no evidence from victims within the meaning of the Direction about a decision in this matter. This consideration is therefore not enlivened and carries neutral weight.
Tribunal consideration: Links to the Australian community
Clause 9.4 provides that a decision-maker must have regard to cls 9.4.1 to 9.4.2 of the Direction, which includes consideration of the strength, nature, and duration of any ties the non-citizen has to the Australian community and the impact on Australian business interests if the non-citizen is not allowed to remain in Australia.
There is no evidence that Australian business interests are enlivened within the meaning of the Direction, sufficient to displace the presumption that weight is only placed on this consideration where a non-revocation decision ‘would significantly compromise the delivery of a major project, or delivery of an important service in Australia’. The Tribunal finds this consideration is not enlivened and carries neutral weight.
Tribunal consideration: The strength, nature, and duration of ties to Australia
Clause 9.4.1 of the Direction provides:
(1)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.
(2)Where consideration is being given to 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 noncitizen 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.
Tribunal consideration: Strength, nature, and duration of ties
The Applicant has lived in Australia for approximately 13 years. His strongest links are to his mother, Mr LV, his cousin, Ms CD, and Ms CD’s children in Queensland. It is submitted that if the Applicant is returned to Vietnam, his mother will be impeded in facilitating her ‘treatment for “entrenched” mental health conditions,’ with ‘daily living’, and would lack emotional support, because ‘no relative other than her son could take care of her medical condition’.[212] It is further submitted that if his mother ‘is forced to return to Vietnam with him’ the limitations Dr Luong highlighted about psychiatric treatment in Vietnam ‘would apply with the same force to her’.[213] These claims must be considered, however, in light of news that the Applicant has voluntarily left Australia.
[212] ASFIC 17 [76(a)-(b)].
[213] Ibid [77].
Reference was made during the hearing to the Applicant’s ‘co-workers and friends,’ and community-minded activities in Australia. This includes charitable work in a Buddhist Temple. The Tribunal has considered a letter from the General Manager of a Buddhist Temple dated 1 July 2019, referring to the Applicant’s volunteer work since 2017.[214] As noted earlier, a further letter dated 13 April 2021 has a different font for each of the two pages and the date on the second page is different to the font on that page, which enlivens concerns about its veracity.[215]
[214] Ibid 118.
[215] Ibid 837-838.

The Tribunal has also considered a letter from a Pastor at a Church dated 2 April 2021, referring positively to the Applicant’s contributions to their faith community.[216] The author states that in May 2013 the Church was ‘short in volunteer staff’ and the Applicant performed ‘incredible’ volunteer works for approximately four years. This purports to include the provision of 2784 hours of volunteer work, creation of a ‘Special Choir’, and ‘fundraising campaign for homeless, domestic violence victims, women in need of shelter/accommodation, and funding for the young generation who want to advance study in Australia’. The author states that during the Applicant’s ‘church program contribution, the church member (sic) increased to 28,000 members’. The Applicant’s efforts in several other areas are noted, including ‘assisting vulnerable people (mainly disabled people, women) new migrant Koreans, Vietnamese, and the coaching of our young group (children)’. It is further claimed the Applicant has continued his volunteer works in this organisation through video calls and mentoring from detention. The claims contained in this letter were not meaningfully advanced by the Applicant during the hearing and the author of this letter was not called as a witness. There is no evidence from any direct beneficiaries of the Applicant’s claimed volunteering, or the basis on which the Applicant’s efforts contributed to an increased membership of 28,000 parishioners.
[216] Ibid 803-804.
In closing submissions, Mr Vuu stated that the Applicant had ‘tried his best’ to repay the victims of his offending from the proceeds of the sale of his house, for which there was no corroborating evidence. Mr Vuu also submitted the Applicant ‘owes a lot of money to a lot of people’ and that the ‘best place for him to repay these debts is Australia’.
Tribunal findings: Strength, nature, and duration of ties
The Applicant’s claims he is the only person who provides emotional support to his mother, who finds it hard to deal with her medical and psychological conditions without him. This is not accepted. He conceded that others, like Mr LV, continue to support her and, until a purported falling out last year, so did his mother’s sister. The Applicant and his mother clearly have a close relationship, but her evidence is that she manages extensive business interests in Australia and Vietnam, travels frequently and independently, and has extended considerable assistance to the Applicant in the past to deal with the consequences of his conduct. It is accepted the Applicant’s mother, Mr LV, and Ms CD would be saddened and suffer emotional hardship if he was repatriated. His mother’s oral evidence during the hearing, however, is that she may relocate overseas to join the Applicant if he is removed.
Considering the inconsistencies in the Applicant’s letters of support about volunteering at a Buddhist Temple and church, coupled with an inability to cross-examine the authors of these letters, the Tribunal places little weight on these claims. The Tribunal accepts he has made other community-minded contributions that were referred to earlier, and on which appropriate weight has been placed.
The Tribunal accepts the Applicant has some close family and other links in Australia, who would be saddened by an adverse decision. There is no evidence, however, that those close to him could not visit him or otherwise maintain their relationship by telephone or video calls. That said, this is a poor alternative to the close contact previously enjoyed.
On balance, the Tribunal finds this consideration weighs moderately at best in favour of revocation.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ to revoke the visa cancellation, the Tribunal has applied the Direction to the specific circumstances of this case. The Tribunal sees no reason to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations than other considerations.
The Applicant has engaged in serious offending and other conduct, including while imprisoned. Prior to being imprisoned he took advantage of vulnerable people who were unfamiliar with Australia’s migration system by pretending to be someone he was not. His dishonesty continues to the present day, as shown by some of his evidence during the hearing. This enlivens concerns about the extent to which his overall evidence can be relied upon. The Applicant represents at least a moderate risk of reoffending, and the Australian community would expect he should not hold a visa.
The Applicant invoked relationships with three minor children within the meaning of the Direction, which the Tribunal found to be somewhat over-stated. He is not the biological father of any of the minor children and others fulfil the primary parental role.
Since the hearing ended, the Applicant has voluntarily left Australia. It is not known where he currently resides, but his evidence during the hearing is that he has the requisite travel documents and financial resources to live in any Asian country he chooses.
In terms of the strength of the Applicant’s ties to Australia, the Tribunal accepts he is close to his mother, Mr LV, Ms CD, Ms CD’s children, and perhaps others. That said, his claims about the extent of his mother’s reliance on him were overly elaborate and exaggerated. It is nevertheless accepted the Applicant’s mother, Mr LV, Ms CD, and potentially Ms JJ would be saddened by the Applicant’s decision to voluntarily depart Australia.
Having weighed all 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 considerations ‘Protection of the Australian community,’ and ‘Expectations of the Australian community,’ considerably outweigh the primary consideration ‘Best interests of minor children in Australia’ and the other countervailing considerations.
DECISION
It follows that the Tribunal affirms the reviewable decision.

I certify that the preceding two hundred and fourteen (214) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

……………[sgd]…………………….
Associate
Dated: 4 July 2022

Dates of hearing: 22 February 2022 – 3 March 2022

Advocate for the Applicant:
Mr Eric Vuu (on a direct access basis)

Advocate for the Respondent: Mr Edwin Taylor

Solicitors for the Respondent: Mills Oakley Lawyers

Applicant’s former female partner, whose visa he sponsored in 2015	Ms JJ
Former male friend of the Applicant who claims he and the Applicant were in a romantic relationship	Mr AB
A close friend of the Applicant and the Applicant’s mother, who considers the Applicant to be his ‘spiritual son’	Mr LV
A woman living interstate, for whose minor children the Applicant claims to play a ‘father figure role’	Ms CD
A person who the Applicant claims offered him a role as a Finance Manager	Mr R

Dates of hearing:	22 February 2022 – 3 March 2022
Advocate for the Applicant:	Mr Eric Vuu (on a direct access basis)
Advocate for the Respondent:	Mr Edwin Taylor
Solicitors for the Respondent:	Mills Oakley Lawyers