Mai and Minister for Home Affairs (Migration)

Mai and Minister for Home Affairs (Migration) [2019] AATA 5310 (11 December 2019)
Division:GENERAL DIVISION
File Number: 2019/5253
Re:The Long Mai
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:11 December 2019
Place:Melbourne

The decision under review is affirmed.
.......[sgd].................................................................
The Hon. Matthew Groom, Senior Member
Catchwords
MIGRATION – mandatory cancellation of temporary visa under section 501CA – offence of aggravated burglary-offensive weapon and recklessly cause serious injury – whether mandatory cancellation should be revoked – Ministerial Direction 79 – primary considerations – other considerations – decision affirmed
Legislation
Migration Act 1958
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 79 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
11 December 2019
INTRODUCTION

This is an expedited review of a decision made by a delegate of the respondent under section 501CA(4) of the Migration Act 1958 (the “Act”) not to revoke a mandatory cancellation of the applicant’s Class WE Subclass 050 Bridging E (General) visa (the “visa”).
The hearing in this matter was conducted on 6 and 7 November 2019. The applicant was represented by Mr Guy Gilbert SC of counsel. The respondent was represented by Mr Christopher Orchard, a lawyer with Sparke Helmore Lawyers.
On 15 November 2019 the Tribunal made the decision to affirm the decision under review. Set out below are the written reasons for the Tribunal’s decision.
BACKGROUND
The following background information was not in contention between the parties and is accepted by the Tribunal.
General background
The applicant is a 40-year-old citizen of Vietnam who arrived in Australia on 26 January 2011 as the holder of a Student (Class TU) (Subclass 573) visa.
The applicant was raised in Hung Yen Province in Vietnam and his parents and two brothers still reside there.
The applicant was educated to Year 12 and completed a Diploma of Geography in 2000. He then worked professionally in Vietnam utilising his qualification for approximately 10 years.
The applicant married his first wife, Ms Dao, in Vietnam in 2003. His first daughter, QM, was born in Vietnam in July 2004 and his second daughter, DM, was also born in Vietnam in August 2010.
The applicant initially came to Australia on a student visa with the intention of studying English. He continued with his studies for about a year. It was at about this time that Ms Dao and his children joined him here in Australia. They remained together until approximately 2011 and then subsequently separated and divorced.
After discontinuing with his studies the applicant commenced working as a chicken boner in Thomastown, Victoria. The applicant subsequently obtained work in Werribee, Victoria as a handyman on a farm.
The applicant met his current wife, Ms Huang, in 2014 and they were married just prior to the applicant’s arrest in 2016. They have two children, a son, LM, who was born in May 2016 and a daughter, RM, who was born in July 2018.
Criminal history
On 14 September 2016, the applicant was convicted in the County Court of Victoria of aggravated burglary-offensive weapon and recklessly cause serious injury and was sentenced to a total effective sentence of four years imprisonment, with a two and a half year non-parole period. The details of the applicant’s criminal record are set out in his National Police Certificate.
Cancellation decision
On 4 May 2018, the applicant’s visa was mandatorily cancelled under section 501(3A) of the Act on the basis that he fails the character test as a result of having a substantial criminal record within the meaning of section 501(6)(a) of the Act.
On 10 July 2018, the applicant made representations seeking revocation of the cancellation decision.
On 22 August 2019, the delegate of the respondent made a decision under section 501CA(4) of the Act not to revoke the mandatory cancellation.
The applicant was notified of the delegate’s decision by email dated 23 August 2019.
On 27 August 2019, the applicant applied to the Tribunal for a review of the decision. That application is the matter currently before this Tribunal.
ISSUE
The applicant accepts the accuracy of his criminal record as set out in the National Police Certificate and concedes that he does not pass the character test under section 501(6)(a) of the Act as a result of having a substantial criminal record. The Tribunal is satisfied in this regard.
Therefore, the issue before the Tribunal is whether there is “another reason” to revoke the cancellation decision, having regard to all the relevant considerations, including those set out in Part C of Direction No. 79, which was made under section 499 of the Act on 20 December 2018 (the “Direction”).
CONTENTIONS AND CONSIDERATION
The Preamble to the Direction specifies a number of principles which provide a framework within which decision-makers should approach their specific task:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In deciding whether to revoke the mandatory cancellation of the applicant’s visa paragraph 13(2) of the Direction provides that the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
The Direction provides that the primary consideration should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations. However, it is now well-established that the Tribunal, in exercising its discretion, can give equal or greater weight to any consideration.[1]
Primary Considerations
[1] Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303.
The protection of the Australian community from criminal or other serious conduct
Paragraph 13.1(1) of the Direction states:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non‑citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) of the Direction states that decision-makers should give consideration to:
(a) The nature and seriousness of the non-citizen’s conduct to date; and
(b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In considering the risk to the Australian community, the Direction provides that the Tribunal must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
As described earlier in these reasons, the applicant has been convicted of two offences, namely aggravated burglary-offensive weapon and recklessly cause serious injury.
Both convictions arise out of a single incident. The following details in relation to the offending are taken substantially from the remarks of the sentencing Judge and relate to matters which were not in dispute between the parties and which the Tribunal accepts as being an accurate description of what occurred.
As previously described, the applicant and Ms Dao were married in 2003 and have two children from that marriage. They separated in 2011. After the separation the applicant maintained contact with Ms Dao and regularly had access to their two children.
In 2013 Ms Dao commenced a relationship with her now husband, Mr Toohey. In that year Mr Toohey and Ms Dao purchased a house in Taylors Lakes. Ms Dao and the children lived in that house. Sometimes Mr Toohey would stay at the house but he remained living at his Brunswick apartment as his principal address.
In May 2014 Ms Dao and Mr Toohey married. During this period there were amicable arrangements between the applicant, Mr Toohey and Ms Dao for the applicant to regularly see his children and on occasion look after them at the Taylors Lakes house.
On Friday, 8 August 2014, the applicant and Ms Dao made an arrangement for the applicant to attend the Taylors Lakes house to see the children. At approximately 10:13 pm Ms Dao called the applicant asking his whereabouts as he had not arrived at the house. Ms Dao had already put the children to bed. Ms Dao then left the house about five minutes before the applicant arrived, but rang shortly after leaving the house to confirm that the applicant had arrived at the Taylors Lakes house. Ms Dao drove straight to Mr Toohey’s apartment in Brunswick with the intention that the applicant would stay the night at the Taylors Lakes house and look after the children. The sentencing Judge notes that this was not an unusual occurrence.
At about 1 am the following morning, Mr Toohey woke up to use the bathroom. He noticed that the light was on in the lounge room. He suspected that someone was in the apartment. It was then that the applicant appeared in the bedroom doorway and announced his appearance by saying “I’m here”. The applicant had come through the unlocked front door of the unit unannounced. That constituted the aggravated burglary charge.
The applicant yelled at Ms Dao, accusing her of leaving the kids at home alone and was holding a boning knife in his hand and waving it around erratically while yelling and screaming.
Mr Toohey told the applicant to keep calm and get out. He held his hands in the air motioning for the applicant to leave through the door. Mr Toohey grabbed a doona for protection. He moved closer to the applicant who continued to waive the knife around in a threatening manner. Mr Toohey then realised that he had been stabbed in the right arm. The sentencing Judge described the blood loss as being immediate and substantial.
After an ambulance was called the applicant then grabbed a belt and wrapped it around Mr Toohey’s arm in an attempt to stem the blood loss. Mr Toohey was subsequently sent to hospital and received treatment including surgery to repair the wound, the artery and the damaged tendons in his arm. He was discharged without complication the next day.
After having provided assistance to the victim the applicant fled the scene prior to the police and the ambulance arriving.
In the course of the hearing there was a contention between the parties in respect of the extent to which the applicant acknowledged his crime and accepted responsibility for it.
While it would be clearly inappropriate for the Tribunal to look behind the convictions in any way, that should not be seen as denying the right of the applicant to present to the Tribunal the broader circumstances that gave rise to those convictions.[2]
[2] Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 358.
The respondent contended that in giving his evidence the applicant sought to “recast” his offending as being of a materially less serious nature that in fact it was and that, in doing so, he had demonstrated a lack of insight, refused to accept full responsibility for his offending and demonstrated a lack of genuine remorse. In particular, the respondent contended that in giving his evidence the applicant had sought to describe the incident as merely an “argument” and also that he had only taken the knife to the Brunswick apartment for his own protection rather than for some other more malignant purpose.
Counsel for the applicant rejected the respondent’s characterisation of the applicant’s evidence contending that at all times the applicant had accepted the essential elements of his crimes and that the applicant’s explanation for having the knife, namely as a means of protecting himself, had been consistent over time, and was not inconsistent with the description of the incident by the Sentencing Judge in his sentencing remarks.
The Tribunal accepts the contentions put by counsel for the applicant in this regard. The Tribunal is satisfied that in giving his evidence the applicant did not suggest that he had not committed the offences nor did he suggest that he had not committed the acts that form the basis of the offences. The Tribunal accepts that the applicant may be fairly described as having emphasised aspects that could be considered to be more advantageous to him, for example, that he had not actually intended to injure Mr Toohey, but that is not the same as having recast the nature of his offending in a material way to suggest that it was less serious, as contended by the respondent. The applicant told the Tribunal that his intention on that night was to “have it out” with Ms Dao due to her having left the children, but that he had no intention of causing the type of injury that he subsequently inflicted on Mr Toohey. He did describe the incident as constituting an “argument”, however, he conceded that he was angry at the time of the incident and that he had been the aggressor and that his actions were “unprovoked”. He made it clear to the Tribunal that he accepts that he alone is responsible for the injury to Mr Toohey.
The applicant did not dispute that he had entered the apartment holding a knife uninvited. That was the basis of the aggravated burglary charge. He also did not dispute that by entering the apartment armed with a knife, in an angry state and behaving in the manner in which he did, he had behaved in a manner that was reckless and with the potential to cause the injury that subsequently occurred. This conduct formed the basis of the recklessly causing serious injury conviction.
The Tribunal accepts the applicant’s evidence that in taking the knife he did so for protection rather than with an actual intent to cause the injury that was subsequently inflicted upon Mr Toohey.
The Tribunal does not consider the applicant’s description of his offending in this respect to be in any material respect inconsistent with the description of the incident provided by the sentencing Judge in his sentencing remarks, nor inconsistent with the elements of the charges for which he was convicted.
More broadly, the applicant does not contest the respondent’s contention that the nature of his offending is serious. The Tribunal finds that the applicant’s offending is very serious. There is no question in the mind of the Tribunal that the incident would have been extremely frightening for both Ms Dao and Mr Toohey. Further, as noted by the sentencing Judge in his remarks, the injury inflicted upon Mr Toohey, while ultimately not life-threatening, could easily have been so. The fact that Mr Toohey was able to have the injury attended to so quickly and effectively was more good fortune rather than a reflection of the seriousness of the incident.
Further, the Tribunal finds that the applicant’s offending was of a violent nature, and the fact that it occurred in a domestic setting involving his former wife and the mother of his children further exacerbates its level of seriousness.
In addition, the seriousness of the offending is further reinforced by the description of the offending in the remarks of the sentencing Judge who described the offending as “intrinsically serious”. It is also further reinforced by the significant sentence that the applicant received which, while towards the lower end of what was possible for the charges brought against him, was nonetheless a significant term of imprisonment, in particular, for a first time offender.
There is also no question in the mind of the Tribunal that should the applicant reoffend again in a similar manner it would result in very significant physical and psychological harm to members of the Australian community, potentially including close family members of the applicant.
The Tribunal now turns to its assessment of the risk of the applicant reoffending.
Counsel for the applicant contends that the applicant poses a low risk of reoffending. The arguments presented on behalf of the applicant in support of that conclusion may be summarised as follows:
(a)the applicant had no prior offences and did not subsequently offend while in the community during the period after the incident and before being taken into custody or subsequently while on bail;
(b)there are no substance abuse or mental health issues which affect the prospect of reoffending;
(c)the applicant entered a plea of guilty at an early stage in the proceedings;
(d)the applicant was granted bail shortly after his arrest and until his sentencing hearing which reflects an assessed low risk of reoffending;
(e)the applicant has demonstrated genuine remorse for his offending and a recognition of the wrongfulness of his conduct;
(f)the applicant has undergone significant personal change during his imprisonment and as a consequence he is now more mature and better understands the nature of his offending and the consequences it has had for himself and for others;
(g)while in prison the applicant has demonstrated a commitment to rehabilitation including by undertaking relevant courses such as the Men’s Behaviour Change Program;
(h)the applicant has maintained good behaviour while in prison and detention and has taken steps to prepare himself for future employment, including by maintaining employment while in custody and also in undertaking a number of work-related units through TAFE including certificates in: kitchen operations, food processing, cleaning operations, construction, construction pathways, horticulture and community services;
(i)the applicant’s experience in prison and detention now acts as a disincentive for any repeat of such conduct;
(j)the applicant has the benefit of the strong support of his wife as a stabilising factor in his life;
(k)the applicant has positive plans for the future including his intention to take up employment on release and also to support his family;
(l)the applicant has the benefit of broader communal and social support networks to assist in his reintegration back into the community;
(m)the applicant has a clear understanding that if he were granted the opportunity to be released back into the community and then reoffend it will almost certainly result in him being deported from Australia and also have a significant adverse impact on his wife and family;
(n)the report of Consultant Psychologist, Mr Tim Watson-Munro, dated 4 October 2019 concludes that the risk of the applicant reoffending is low and this was reinforced in Mr Watson-Munro’s evidence at the hearing;
(o)there are various assessments contained within the prison records which suggest that the applicant’s risk of reoffending is low; and
(p)the observations by the sentencing Judge that the applicant’s guilty plea was a clear acknowledgement by the applicant that he accepts responsibility for his criminal behaviour, which demonstrates remorse. In addition, the observation by the sentencing Judge that the applicant displayed some empathy towards his victim by attending to his wound and ringing the ambulance to attend the address again demonstrating remorse for the offending. Further, the assessment made by the sentencing Judge that the applicant has a “good prospect of rehabilitation” given the applicant’s previous good record, education, display of empathy to the victim and his family support and responsibilities in Australia.

The respondent contends that the risk of the applicant reoffending is somewhat greater than low. The respondent relies on a number of factors which it asserts in support of this contention including that:
(a)the applicant’s offending was clear-headed, emotionally driven and occurred while sober and not suffering from mental illness, which should be accepted as greatly increasing the risk of reoffending;
(b)the applicant has had no counselling for his offending;
(c)the applicant has sought to recast his offending in a less serious light, and that this demonstrates a lack of insight into his offending, a refusal to take full responsibility for his offending and is not consistent with genuine remorse;
(d)the applicant absconded following the offence which is further evidence of his lack of acceptance of responsibility and remorse and also shows a disregard for the law;
(e)the applicant mislead the Tribunal in relation to his state of awareness that he was wanted by the police during the period following the offence and prior to his arrest and this also demonstrates a lack of insight, acceptance of responsibility and remorse for his offending; and
(f)the assessment by Mr Watson-Munro that the risk of the applicant reoffending is low should be afforded less weight given that Mr Watson-Munro’s report does not make reference to the fact that the applicant absconded after the incident and also does not take account of the fact that, as the respondent contends, the applicant has sought to recast his offending in a less serious light, has demonstrated a limited insight, not taken full responsibility, not demonstrated genuine remorse and has not been truthful with the Tribunal in relation to certain aspects of his evidence.
Further, the respondent contends that given the serious nature of the applicant’s offending, the Australian community should not have to accept any risk of the applicant reoffending and that any risk is an unacceptable risk of harm to the community.
As previously stated, the Tribunal does not accept that in his evidence the applicant sought to recast his offending in a way which would suggest a lack of insight, acceptance of responsibility or remorse. The Tribunal therefore rejects the respondent’s contention in this regard.
The Tribunal accepts that the applicant did knowingly and intentionally avoid police following the offence for a period of approximately 18 months and that this showed an inclination to act in self-interest as well as a significant disregard for the law. This mitigates, to some degree, the applicant’s apparent sense of remorse for his offending at the time. Although, the Tribunal notes that the applicant did subsequently plead guilty to the offences and has otherwise consistently demonstrated remorse. The Tribunal has taken this into account in its assessment of future risk of reoffending.
Through the course of the hearing there was a considerable discourse between the parties in relation to the extent to which the applicant, as well as his wife Ms Huang, had been truthful in their evidence to the Tribunal in relation to their state of mind during the period the applicant had avoided police.
In the course of cross-examination the lawyer for the respondent put various questions to the applicant and Ms Huang regarding their state of mind during this period. In questioning, the lawyer for the respondent asked the applicant whether he had told his wife that he was “on the run” from police or “being chased” by police. He asked Ms Huang similar questions. The lawyer for the respondent also asked the applicant and Ms Huang whether they had ever discussed the fact that the applicant “was on the run” or “being chased” and whether they had discussed plans for how and when the applicant might hand himself into police.
The lawyer for the respondent contended that both the applicant and Ms Huang denied that they had been aware that the applicant was “on the run” or that “police were chasing” him, and that in doing so they had not been truthful with the Tribunal. He also contended that they had both denied that they had discussed that he was “on the run” or being “chased by police” or that they had made plans as to when and how he would hand himself in. Further the lawyer for the respondent contended that this is further evidence of the applicant’s lack of insight, acceptance of responsibility and remorse for his offending.
The lawyer for the respondent also contended that when he pressed the applicant on these questions, and pointed out the inconsistency in his and his wife’s answers to the questions with the previous statement that was made by Ms Huang on 12 September 2016, the applicant conceded the inconsistency and, in effect, had also conceded that he had been previously lying to the Tribunal in the course of the hearing.
Counsel for the applicant submitted that the Tribunal should exercise caution in making any adverse findings against the applicant or Ms Huang in this regard and submitted that the applicant’s subsequent answers to the lawyer for the respondent which the lawyer for the respondent had cited as concessions were at best equivocal and that the Tribunal should not make a finding that the applicant had conceded that he had misled the Tribunal in any way.
The Tribunal accepts counsel for the applicant’s contentions in this regard. In considering this issue the Tribunal has been very mindful of the difficulty that can sometimes present when giving evidence with genuine language barriers through an interpreter. Despite the best efforts of all parties, on a review of the evidence the Tribunal is satisfied that there were several occasions in the cross examination of both the applicant and Ms Huang where there appeared to be genuine confusion about the exact question being put or the answer being given. This was despite questions being rephrased or repeated multiple times.
In the case of the applicant himself, the evidence he gave on these issues was certainly inconsistent which only further reinforces the Tribunal’s concerns in this regard. There were a number of occasions where the lawyer for the respondent put questions based on a premise that the applicant was “on the run” from police where the premise to the question was not challenged by the applicant. At other points in his evidence the applicant appeared to reject questions being put by the lawyer for the respondent on the basis that he was not sure or certain that police were “after” him.
At some points during Ms Huang’s evidence, the Tribunal was left with the impression that questions about whether the applicant “was on the run” or being “chased” may have been interpreted by her in a literal sense and rejected on that basis. At one point in her evidence she states that she does not “understand the term running away from police”. She told the Tribunal that she understood that he had offended and would need to go to the police for that but did not know that the police “were chasing him”. In addition, as with the applicant, Ms Huang’s answers on this line of questioning were also inconsistent. For example, at one point during her evidence Ms Huang agreed that she had a plan with her husband that he would hand himself in once the baby was born. This again raises concerns for the Tribunal for the same reasons as with the applicant.
There is no doubt in the mind of the Tribunal that both the applicant and Ms Huang were aware that the applicant was wanted by police, that they had discussed it and that they had made plans as to how and when he would “give himself into police”. However, given the difficulties that both the applicant and Ms Huang had in relation to this line of questioning the Tribunal is not satisfied that either the applicant or Ms Huang intended to deliberately mislead the Tribunal in relation to their evidence. Nor does the Tribunal accept, in the case of the applicant, that he conceded as much to the Tribunal.
The Tribunal also does not accept the lawyer for the respondent’s contention that the manner of giving this evidence materially undermines the contention that the applicant has genuine insight to his offending, accepts responsibility for it and is genuine in his remorse.
In the view of the Tribunal the applicant’s acknowledgement of his offending, acceptance of responsibility for his offending and expressions of remorse have, following his arrest, been numerous and consistent and the Tribunal accepts that they are genuine.
In the course of his oral evidence before the Tribunal the applicant expressed his remorse and regret for his offending behaviour and acknowledged the impact it had on the victim, his family and also himself. The Tribunal accepts these acknowledgements as being genuine.
In his statutory declaration made on 2 October 2019 the applicant stated:
I am extremely remorseful about my prior actions. It is not reflective of my character generally. I entered the house of my ex-wife [Ms Dao] and partner [Mr Toohey] and genuinely did not intend to hurt anyone. I was angry and I should not have brought the knife to their house. I continue to regret the actions I took on the day.
In his statutory declaration made on 31 May 2018 the applicant stated:
I want to say that I am horrified at my actions. I have regretted every single day my actions on that day. I am doing everything I can to better myself. I have taken a behaviour course and have made enquiries about taking new courses where available. I have been doing whatever I can to help control my anger. I have since August 2014, met my current wife [Ms Huang]. We have a son [LM] and are expecting a second child in July 2018. We have certainly had struggles, but I found myself much more careful in controlling my temper and being able to argue and resolve issues in a calm and rational manner. I love my family with all my heart and it is always on my mind that I cannot revert to the person I was in August 2014.
I know that I can be a much better person than I was. I am ashamed of how I acted in injuring Mr Toohey. I acknowledge that although the injury itself was an accident, I made the wrong decision to confront them in the heat of the moment. I realise I should manage my anger and especially not make rash decisions until I have calmed down. I know that violence is never the way to solve a problem. I have never again argued while holding anything in my hand since. A person can never expect that an accident won’t happen so I must never expect an argument holding a dangerous item will not result in tragedy. I will do everything I can to be a good, respectable and loving father to my children and husband to my wife.
The Tribunal rejects the lawyer for the respondent’s contention that the report and evidence of Mr Watson-Munro should be given less weight for the reasons cited above.
In relation to the absence of any reference to the applicant absconding in Mr Watson-Munro’s report, the Tribunal accepts the evidence of Mr Watson-Munro that it does not in any material way alter his conclusion that the risk of the applicant reoffending is low, on the basis that while it might be relevant to the applicant’s state of mind at the time he absconded, it is not a material factor in assessing risk of reoffending in the present.
The Tribunal has already addressed the other factors raised by the lawyer for the respondent in this context, namely the suggestion that the applicant had sought to recast his offending, which the Tribunal rejects, and the nature of the evidence the applicant gave to the Tribunal in respect of his period of absconding, which again the Tribunal rejects for the reasons already set out.
The Tribunal otherwise accepts the report from Mr Watson-Munro together with his oral evidence and has taken it into account in reaching its conclusion in respect of the risk of the applicant reoffending. In particular, the Tribunal accepts the factors Mr Watson-Munro identified as forming the basis for his assessment, including that:
(a)the applicant had no prior offences and has not offended since the incident;
(b)there is no evidence of juvenile delinquency or past history to suggest an antisocial disposition;
(c)the applicant appears to have no substance abuse issues and no major psychological problems;
(d)the applicant appeared to him to express genuine remorse and accept responsibility for his conduct;
(e)the incident occurred in a very specific set of circumstances;
(f)the applicant will have the benefit of the structure and support of his wife if released back into the community and has positive plans for the future including employment;
(g)the applicant has demonstrated positive behaviours while in custody in taking steps to undertake courses both to rehabilitate himself and better understand his offending as well as undertaking work-related courses to prepare him for the future; and
(h)the applicant acknowledges the significant impact his incarceration has had on his family and is motivated to avoid such a circumstance repeating.
Having considered all of the evidence, the Tribunal makes the following findings in relation to risk:
(a)other than the offences that gave rise to the cancellation of the applicant’s visa the applicant has not offended in any way;
(b)in committing the offence the applicant had not intended to injure the victim. Although the Tribunal does accept, as was accepted by the Court, that the applicant knowingly entered his victim’s apartment in an angry state and armed with a knife and in doing so acted recklessly. The Tribunal accepts the applicant’s evidence that he took the knife to the apartment for protection;
(c)the applicant does not suffer from any substance abuse issues or other major psychological conditions that would give rise to a heightened level of risk of reoffending;
(d)the applicant has expressed genuine remorse for his offending and accepts responsibility for it;
(e)there are a number of independent sources that have assessed the risk of the applicant reoffending as low, including the report of Mr Watson-Munro, the court and prison records and the observations of the sentencing Judge as described in the counsel for the applicant’s contentions set out above;
(f)the applicant has gained additional insight into his offending through his time in custody, has taken the opportunity to reflect on his offending and has taken practical steps to rehabilitate himself including by undertaking the Men’s Behaviour Change Program;
(g)the applicant recognises the significant adverse impact his offending and his subsequent incarceration has had on himself personally but also for his family and is motivated for those reasons not to reoffend;
(h)the applicant understands that if he were to be released back into the community and reoffend then it would have very significant adverse impact for him personally and his family and is motivated not to reoffend to that reason;
(i)the applicant has maintained good behaviour while in prison including maintaining consistent employment and has undertaken a number of work skills related courses to improve his future employment prospects;
(j)the applicant will have the benefit of the support of his wife and family as well as other friends if released back into the community;
(k)the applicant has maintained a positive outlook for the future including plans to take up employment if released and also to play a positive role in supporting his family. the Tribunal acknowledges the specific offer of employment as a farm hand made to the applicant by Mr Nhat Thong Ngyuen in the event that the applicant is released back into the community.
For these reasons, the Tribunal finds that the risk of the applicant reoffending again is low. However, the Tribunal is also mindful of the evidence of Mr Watson-Munro where he stated that notwithstanding his assessment that the risk of the applicant reoffending is low, he believed that there was “more work for the applicant to do” to ensure that he was well placed to mitigate the risk of reoffending. In particular, Mr Watson-Munro stated that he believed the applicant required ongoing counselling.
The Tribunal is also mindful of the fact that while the incident in question occurred in a very specific set of circumstances it is quite possible that a similar set of circumstances could occur again in the future. The Tribunal also acknowledges the emotionally driven nature of the offending. While the Tribunal accepts that the applicant has not reoffended while back in the community, it is not satisfied that the applicant has been fully tested in the context of a repeat of these or similar circumstances. For these reasons, the Tribunal is not satisfied that the risk of the applicant reoffending again in a similar manner in such circumstances can be considered to be so low as to be described as trivial. This raises concern in the mind of the Tribunal given the very serious nature of the applicant’s offending. The Tribunal is particularly mindful of the fact that the offending was physically violent, that it occurred in a domestic setting and that it resulted in injuries to the victim that while not ultimately life-threating, could easily have been life threatening, as was acknowledged by the sentencing Judge.
In this context, the Tribunal is mindful of the principle set out in paragraph 6.3 (4) of the Direction which states that:
In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing visa.
Having regard to this principle and all of the broader circumstances of this case, in particular the very serious nature of the applicant’s offending, the risk of harm to the Australian community should such conduct be repeated, and the Tribunal’s conclusion that the risk of the applicant reoffending again in a similar manner while low, is not trivial, the Tribunal is satisfied that the risk of harm posed by the applicant to the Australian community is unacceptable.
For these reasons, the Tribunal finds that the protection of the Australian community consideration weighs heavily against revoking the mandatory cancellation of the applicant’s visa.
The best interests of minor children in Australia
The applicant has two daughters from his first marriage, QM aged 15 and DM aged nine. The applicant has two further children from his second marriage, a son, LM, aged three and a daughter, RM, aged one.
The applicant’s two older children live with their mother and her current husband (who was the victim of the applicant’s offending). The evidence before the Tribunal was that the applicant’s former wife and current husband have assumed full parental responsibility for the children. The oldest of the two, QM, was diagnosed with Turner’s syndrome (a genetic condition affecting appearance and stature) when she was three years old. The applicant told the Tribunal that he last saw his two eldest children approximately two months ago and had been seeing them every two to three months while in custody.
The evidence before the Tribunal was that the applicant had maintained shared custody of the two older children after his separation from his former wife but prior to the offence. As was referred to earlier in these reasons, the applicant had spent a period of approximately 18 months on the run from police. In the course of his evidence the applicant told the Tribunal that he had seen the children on six or seven occasions during this period and had also provided his ex-wife with some monetary support. This is contested by the respondent. The Tribunal remains sceptical about the applicant’s evidence in this regard given its apparent inconsistency with the fact that the applicant’s former wife made contact with police to advise them of his whereabouts. The Tribunal certainly does not accept that the applicant’s former wife was motivated in doing so out of jealousy. However, the Tribunal does accept that the applicant attempted to see the children during this period. In any case, even if the applicant’s evidence is accepted, the extent of his engagement with his children during this period was very limited and the Tribunal is satisfied that it can be fairly described as neglectful and not consistent with someone giving priority to their parental responsibilities.

The applicant told the Tribunal that, notwithstanding his limited exposure to his two older children over recent years, he has maintained a strong connection to them. He told the Tribunal about the particular health needs of his eldest daughter and described in some detail how he would spend time with her, such as going shopping and playing in the park. He told the Tribunal that his daughter’s health needs were one of the reasons he migrated to Australia. He told the Tribunal that the children had also spent some time back in Vietnam with their grandparents. The applicant stated that he wished to play a more positive role in the lives of his two older children. Mr Watson-Munro described the applicant’s limited contact with his older children during his period of absconding as demonstrating at that time a “poor capacity” for parenting, although he told the Tribunal that he was of the view that the applicant was capable of resuming a parenting relationship with the children in the future.
Evidence in relation to the two older children was otherwise quite limited. There was no evidence from the children themselves or the applicant’s former wife. It was also not clear whether there were any court orders that would limit the applicant’s capacity to see the children, although the applicant himself denied that there were any such orders in place.
The Tribunal is satisfied that a decision not to revoke the visa cancellation will have a material adverse impact on the two older children given the difficulty they will face in maintaining or further developing their relationship with their father if he was forced to leave Australia. The Tribunal forms this view even allowing for the capacity of the children to maintain contact with their father via the telephone or internet.
The applicant’s two younger children live with the applicant’s current wife. The youngest was born while the applicant was in prison. The applicant told the Tribunal that again he had a very strong love and affection for his two younger children. He spoke about having played an important role in LM’s life prior to his incarceration. He also told the Tribunal that the children have visited him regularly while in custody, approximately once every one or two weeks.
Ms Huang referenced the bond that the applicant has with their eldest child, LM, in particular. She stated that LM always asks for “dad” and is very excited when he sees him. Ms Huang stated that the applicant was a good father who cares very deeply for his children.
The submissions made on behalf of the applicant referenced the negative impact the applicant’s current separation has had on the two youngest children, and the difficulties that the applicant’s current wife has in seeking to raise them without the applicant being physically present, particularly given her mental health concerns. In his report Mr Watson-Munro made particular note of Ms Huang’s anxiety associated with these proceedings and the uncertainty regarding her husband’s future. He stated his view that Ms Huang is currently experiencing a depressive disorder with features of an anxiety disorder. In assessing this consideration, the Tribunal has been particularly mindful of the evidence that Ms Huang suffers from severe depression, and that her mental health condition is likely to be exacerbated in the event that she is separated from her husband as a consequence of him being forced to return to Vietnam.
Both the applicant and Ms Huang stated that it was unlikely if he were to return to Vietnam that Ms Huang would relocate with him, and that it was her intention not to do so and for the children to remain here in Australia with her. Ms Huang stated that she had made her life here in Australia and that she did not wish the children to return to Vietnam due to concerns that they would be adversely impacted from a health perspective. The applicant’s submissions noted that if Ms Huang were to relocate to Vietnam, which she stated she does not intend to do, then it was likely to have a significant adverse impact on her financially. This is because she would be denied the benefit of certain government payments that she is entitled to in Australia, and that she did not consider her employment prospects in Vietnam to be good.
The Tribunal is satisfied that if the applicant is unsuccessful in the present matter, the likely outcome would be for Ms Huang and the applicant’s two younger children to remain here in Australia. Ms Huang told the Tribunal of her concern about the children growing up without their father being present and her concerns about her capacity to raise them on her own. She told the Tribunal that she was concerned about them not having a father figure and also the potential financial consequences they would suffer should the applicant be forced to return to Vietnam and they remain in Australia.
In the course of her evidence Ms Huang told the Tribunal that as she was no longer a Vietnamese citizen, that she may be constrained in some way from relocating to Vietnam, or even potentially travelling to Vietnam. The Tribunal is not satisfied, based on the evidence before it, that Ms Huang is not able to return to or visit Vietnam. However, the Tribunal does accept that Ms Huang’s capacity to travel to Vietnam and visit her husband, should he relocate there and she remain in Australia with the children, is likely to be very limited from a purely financial perspective. This again will have a significant impact on the capacity for the children to maintain a relationship with their father and also for him to support his wife in her efforts to raise the children.
The Tribunal is satisfied that a decision not to revoke the mandatory cancellation of the applicant’s visa would have a material adverse impact on the applicant’s two younger children. This is particularly so in a circumstance where the applicant’s current wife elects not to relocate with the children to Vietnam. The Tribunal forms this view even allowing for their capacity to maintain some level of contact via the telephone or internet. The Tribunal accepts that the impact on the children would be emotional and financial, given that in a scenario where the applicant is forced to return to Vietnam it is likely that his financial position would be less secure than if he were to remain here in Australia. The Tribunal also acknowledges that in the absence of broader family support in Australia these impacts will be exacerbated.
The Tribunal is also satisfied that in the event that Ms Huang were to relocate to Vietnam together with her husband and the children, that this will also have an adverse impact on the children given the disruption to their lives and the likelihood that the family’s financial position is likely to be less secure in Vietnam than if they were to remain in Australia.
The Tribunal recognises that the applicant has a genuine love and affection for all of his children and accepts the potential for the applicant to continue to play a positive role in the lives of all of the children as they grow up. Clearly, in respect of the two older children this is likely to be more limited. In respect of the two younger children it has the potential to be very significant.
There was some evidence before the Tribunal of research in relation to the negative effect single parenthood can have on a child’s well-being, including a heightened risk of juvenile delinquency and difficulties in functioning and adjustment. The Tribunal certainly accepts that the potential for material adverse impact on the applicant’s two younger children growing up in Australia without their father present and that it has the potential to impact on their social and emotional development and wellbeing.
The submissions on behalf of the applicant also referenced the potential for the applicant to be a positive role model in his children’s lives as an example of the importance of behaving appropriately and not engaging in violence. The Tribunal accepts this to a limited degree although much will depend on the future conduct of the applicant of which the Tribunal cannot be certain.
The Tribunal accepts that the applicant’s offending is very likely to have had a negative impact on his children to some degree. The applicant’s two oldest children in particular are likely to have been impacted given that his offending involved their stepfather, occurred in front of their mother and also due to the sudden and extended separation from him that they experienced.
The Tribunal also accepts that, due to the fact that the applicant has not been able to maintain a normal relationship with the two younger children during the period he has been in custody, it is very likely they have been impacted from that circumstance.
For these reasons, the Tribunal is satisfied that it is in the best interests of all four of the applicant’s minor children for the mandatory cancellation of the applicant’s visa to be revoked. This is particularly so in respect of the applicant’s two younger children.
Accordingly, the best interests of minor children in Australia consideration weighs heavily in favour of revoking the mandatory cancellation of the applicant’s visa.
Expectations of the Australian community
13.3 (1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision‑makers should have due regard to the Government’s views in this respect.
The Tribunal acknowledges the frequently cited decision in YNQY v Minister for Immigration and Border Protection[3] as well as the more recent Full Federal Court decision in FYBR v Minister for Home Affairs[4]. What can be gleaned from the case law is that in applying the expectations of the Australian community consideration:
(a)It is not for the Tribunal to make an assessment for itself as to the expectations of the Australian community in any particular case, but rather the task of the Tribunal is to have due regard to the Government’s stated views regarding the expectations of the Australian community as set out in the relevant clause in the Direction.
(b)In determining what the Government’s stated views are, regard should be had to the words set out in paragraph 13.3 (1) itself (or its equivalent provision in paragraph 11.3 (1) or 9.3 (1) whichever is relevant to the case before the Tribunal).
(c)In determining the weight to be given to the consideration, the Tribunal must be mindful of the fact that it is a primary consideration. The Tribunal should also have regard to the nature of the offences that have been committed, the risk the applicant poses to the Australian community and other factors relevant to any character concerns that exist with respect to the applicant.
(d)Ultimately, the weight to be given to the consideration and whether it should outweigh other relevant considerations is a matter for the decision-maker to determine in the exercise of their discretion. In this sense, while generally the consideration is likely to weigh against the applicant, in some circumstances it may not be “decisively so” and there may well be circumstances that could exist where the consideration does not weigh against the applicant at all.
[3] [2017] FCA 1466.
[4] [2019] FCAFC 185.
In applying this consideration, the Tribunal has had due regard to:
(a)the Government’s stated views in relation to the expectations of the Australian community as set out in paragraph 13.3(1) of the Direction;
(b)the principle set out in paragraph 6.3 (5) which provides that:
Australia has a low tolerance of any criminal or other serious conduct by people 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 other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(c)the principle set out in paragraph 6.3 (6) which provides that:
Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
The Tribunal has also had regard to other factors relevant to its assessment and weighing of the consideration and notes in particular:
(a)the Tribunal’s findings in relation to the applicant’s acceptance of responsibility for his offending and expressions of remorse;
(b)other than the offending that gave rise to the mandatory cancellation decision, the applicant has not been convicted of any other offence of any kind;
(c)the Tribunal’s findings in respect of factors that mitigate the risk of the applicant reoffending as set out earlier in these reasons and also its finding that, despite these mitigating factors, the risk of harm the applicant continues to pose to the Australian community is unacceptable;
(d)the statements in support of the applicant from the applicant’s wife attesting to his otherwise good character as well as other representations made by acquaintances of the applicant to the same effect that were included in the materials before the Tribunal and also at the hearing.
However, given that the applicant’s offending was particularly serious and violent, that his offending occurred shortly after his arrival in Australia and while on a temporary visa, and that he continues to represent an unacceptable risk of harm to the Australian community, the Tribunal finds that the Australian community expectations consideration weighs heavily against revoking the mandatory cancellation of the applicant’s visa.
Other Considerations
Non-refoulement obligations
There was no evidence before the Tribunal of any non-refoulement obligations owed to the applicant and therefore this consideration weighed neither for nor against revoking the mandatory cancellation of the visa.
Strength, nature and duration of ties
In assessing this consideration the Tribunal has had regard to the principle set out in paragraph 6.3 (5) of the Direction which states that:
Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time.
The Tribunal has also had regard to paragraph 14.2 (1) (i) which states that:
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, 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, including the effect of non-revocation on the non-citizens immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The applicant has lived in Australia for approximately eight years having first arrived here in 2011 at 31 years of age. His current wife and all four of his children reside in Australia.
The applicant is supported in his application by his current wife, Ms Huang, who provided a statement and also gave evidence to the Tribunal. Ms Huang told the Tribunal that they continue to be very committed to one another. She told the Tribunal that she visits the applicant regularly together with the children and maintains almost daily telephone contact.
Ms Huang told the Tribunal that a decision not to revoke the mandatory cancellation of the applicant’s visa would cause extreme hardship for her and on their children. Ms Huang told the Tribunal that in the event that the applicant is forced to return to Vietnam, it is not her intention to relocate to Vietnam with him. Rather, her intention is to stay in Australia with the children. She stated that she is now established here in Australia and has made a life for herself, and also that she would be concerned about exposing the children to adverse health consequences in Vietnam. Ms Huang stated that a decision forcing the applicant to return to Vietnam would have the practical effect of breaking up the family and that this would cause significant emotional stress for her, the children and the applicant. She told the Tribunal that she was uncertain regarding her entitlement to relocate or travel back to Vietnam. She also told the Tribunal that in any case, her financial constraints would make travelling back to Vietnam to visit very difficult.
The applicant’s submissions noted that a decision not to revoke the cancellation would have significant adverse financial consequences for the family in that it is unlikely that the applicant would be as financially secure in Vietnam, and therefore the applicant would have a more limited capacity to support the family than if he were to be released back into the community here in Australia.
Both in his report and in his oral evidence Mr Watson-Munro referenced the particularly significant impact a decision not to revoke the applicant’s visa cancellation would have for Ms Huang. He specifically referenced the potential impact in the context of her ongoing mental health concerns. Mr Watson-Munro confirmed that Ms Huang has a history of depression and an inability to work by virtue of her single mother status, and a lack of broader family support in Australia. Mr Watson-Munro noted in his report:
Should this Appeal fail, this will have dramatic consequences for his wife and children. Ms Huang is suffering a Depressive Disorder, which has been diagnosed as Post Natal Depression. She was prescribed anti-depressant medication but ceased taking this when her daughter reached the age of 3months. She describes a somewhat tragic history in the context of previously marrying a Taiwanese man, relocating to Taiwan and then being abandoned by him and his family following the birth of their daughter who is now 12. She has not seen the child since about one month after the delivery. In this context her dependence on [the applicant] is all the greater. It is clear that should he be deported, she will experience a severe escalation in the intensity of her symptoms.
The applicant has a limited employment history although he was working as a trainee butcher and chicken boner prior to his offence. Other than his wife and children he has no other immediate family here in Australia. The applicant’s grandmother, parents, sibling and extended family all live in Vietnam.
There was limited evidence of any involvement the applicant has had in the broader community. There were some statements of support from other witnesses who have known the applicant for only a short period of time and most of that time while he has been in custody.
The lawyer for the respondent also submitted that the applicant himself cannot be said to have any permanency in Australia by virtue of his previous temporary visa status, and that this is also relevant in assessing the applicant’s strength, nature and duration of ties. The Tribunal accepts this submission and notes in particular that the applicant was on temporary visa when he committed the offence.

The lawyer for the respondent also submitted that less weight should be given to this consideration given that the applicant commenced offending within three years of having first arrived in Australia. Again, the Tribunal accepts this submission.
The Tribunal is satisfied that the applicant’s broader ties to the Australian community through employment and community contribution have been somewhat constrained given the extent of the time that he spent in custody.
The Tribunal is satisfied that a decision to not revoke the mandatory cancellation of the applicant’s visa would have a significant adverse impact on the applicant’s wife. In particular, the Tribunal accepts that any such decision is likely to exacerbate Ms Huang’s mental health conditions, make her care for the children more difficult and adversely impact her financially. The Tribunal also accepts that in the event that Ms Huang chose to relocate to Vietnam with the children, she would also be adversely impacted because of the interruption to her life, the fact that her life opportunities are likely to be more limited in Vietnam than in Australia and also the fact that their financial position is likely to be less secure.
For these reasons, the Tribunal finds that the strength, nature and duration of ties consideration weighs heavily in favour of revoking the mandatory cancellation of the applicant’s visa.
Impact on Australian business interests
There was no evidence before the Tribunal that Australian business interests would be impacted if the cancellation of the applicant’s visa is not revoked. Therefore, this consideration weighs neither for nor against revoking the mandatory cancellation of the visa.
Impact on victims
There was no specific evidence before the Tribunal as to the impact a revocation of the cancellation of the applicant’s visa would have on his victims and therefore this consideration weighs neither for nor against revoking the mandatory cancellation of the visa.
Extent of impediments if removed
It was conceded in submissions on behalf of the applicant that there were no particular cultural or language impediments that the applicant himself was likely to suffer if returned to Vietnam having regard to the fact that he grew up in Vietnam, lived there for a significant period of his life, speaks the language, has extended family in Vietnam and is of relatively young age and in good health.
Counsel for the applicant did, however, submit that the applicant is likely to suffer significantly as a consequence of being separated from his wife and children should they not relocate back to Vietnam with him. It was also submitted that in those circumstances the applicant’s wife and children are unlikely to visit, at least on a regular basis, due to financial constraints and also Ms Huang’s concerns for her children’s health.
In addition, the applicant’s submissions stated that the applicant may have difficulty securing employment in Vietnam because of the period of time he has been out of the country and difficulties he previously had in obtaining employment in Vietnam. It was submitted that this may impact on the applicant’s capacity to be able to meet his own living expenses and also limit his capacity to be able to support his broader family. The applicant told the Tribunal that he has a qualification in geography. He stated that while he had previously worked in Vietnam he had progressively found obtaining employment there more difficult.
The Tribunal is satisfied that the applicant is a relatively young, healthy and intelligent person. While the Tribunal accepts that the applicant may have some difficulty obtaining employment initially, the Tribunal is not satisfied that the applicant would have difficulty obtaining some form of employment in Vietnam over the medium to longer term. The Tribunal is not satisfied that there is any reason to conclude that the applicant would not be able to enjoy a standard of living or access services in Vietnam commensurate with other citizens of Vietnam.
The Tribunal accepts that while generally the applicant is unlikely to experience any significant impediments from a language or cultural perspective, if returned to Vietnam, he would be impacted emotionally in the event that he is separated from his family due to the lack of emotional support from his family in transitioning back into life in Vietnam, and also because of the emotional concern he would feel for his family back in Australia. This impact is likely to be further exacerbated due to the additional strain his wife would be under in seeking to raise the children without the day to day support of her husband.
For these reasons, the Tribunal is satisfied that the extent of impediments if returned consideration weighs slightly in favour of revoking the cancellation of the applicant’s visa.
CONCLUSION
The Tribunal is satisfied that the applicant does not pass the character test as set out in section 501(6)(a) of the Act. Therefore, the Tribunal is required to exercise the discretion in section 501(1) of the Act in accordance with the Direction.
In undertaking the weighing exercise in respect of each of the relevant considerations, the Tribunal acknowledges the significant impact a decision not to revoke the applicant’s visa would have on the applicant’s four children, in particular his two youngest, and that their best interests would be served by revoking the cancellation decision. The Tribunal acknowledges that this is a primary consideration and that it must weigh heavily in favour of revocation for the reasons set out.
The Tribunal also acknowledges, for the reasons set out, that the other considerations of strength, nature and duration of ties and the extent of impediments on return also weigh in favour of revocation. The Tribunal has had particular regard to the significant consequences a decision not to revoke the mandatory cancellation would have on the applicant’s wife, Ms Huang. For the reasons set out, the Tribunal is satisfied this consideration must weigh heavily in favour of revocation.
Notwithstanding these countervailing findings, given the very serious nature of the applicant’s offending and the ongoing unacceptable risk of harm to the Australian community, the protection of the Australian community consideration weighs heavily against revocation. Similarly, for the reasons set out, the expectations of the Australian community consideration also weighs heavily against revocation.
The Tribunal has also been mindful of the fact that the applicant, when committing the offence that gave rise to cancellation of his visa, was on a temporary visa. Consistent with the principles set out in the Direction, Australia has a low tolerance of any criminal or other serious conduct committed by those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
Having weighed up all of the considerations, the Tribunal is satisfied that the overall balance falls slightly in favour of a decision to not revoke the mandatory cancellation of the applicant’s visa.
DECISION
The decision under review is affirmed.

135.

I certify that the preceding 134 (one hundred and thirty-four) paragraphs are a true copy of the written reasons for the decision herein of The Hon. Matthew Groom, Senior Member

....[sgd]................................................................
Associate
Dated: 11 December 2019

Dates of hearing: 6 & 7 November 2019

Counsel for the Applicant: Guy Gilbert SC

Solicitors for the Applicant:
Lena Hung and Associates

Advocate for the Respondent: Chris Orchard

Solicitors for the Respondent: Sparke Helmore Lawyers

[2019] AATA 5310

11 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Dates of hearing:	6 & 7 November 2019
Counsel for the Applicant:	Guy Gilbert SC
Solicitors for the Applicant:	Lena Hung and Associates
Advocate for the Respondent:	Chris Orchard
Solicitors for the Respondent:	Sparke Helmore Lawyers