Mai and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 3417

Mai and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3417 (23 October 2023)
Division:GENERAL DIVISION
File Number: 2023/5700
Re:Quang Huy Mai
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A.A. Nikolic AM CSC
Date:23 October 2023
Place:Melbourne

The Tribunal affirms the reviewable decision.
..................................[sgd]......................................
Senior Member A.A. Nikolic AM CSC
CATCHWORDS
MIGRATION – Mandatory visa cancellation – citizen of Vietnam – Class BS Subclass 801 Partner (Residence) Visa – failure to pass good character test – 2017 conviction for cultivate cannabis – principal offender – theft of electricity – possess methylamphetamine – deal with proceeds of crime – mandatory cancellation revoked – formal warning issued – repeat convictions in 2021 – whether another reason why mandatory visa cancellation should be revoked – Ministerial Direction No. 99 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Drugs, Poisons and Controlled Substances Act 1981 (Vic)
Migration Act 1958 (Cth)
CASES
AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 559
Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
DPP v Quang Mai [2021] VCC 632
DPP v Mai [2017] VCC 863
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs [2020] HCATrans 056
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Le v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3130
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Marzano v Minister for Immigration and Border Protection [2016] FCA 1180
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 144 ALR 567
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs (2022) 96 ALJR 737
Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Suleiman v Minister for Immigration and Border Protection (2018)74 AAR 545
Tauariki and Minister for Immigration and Citizenship [2013] AATA 475
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
SECONDARY MATERIALS
Australian Criminal Intelligence Commission, Illicit Drug Data Report 2019-20
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Sentencing Advisory Council, ‘Imprisonment’ < Andrews and James Bonta, The Level of Service Inventory–Revised (Multi-Health Systems Inc. 1995)
REASONS FOR DECISION
Senior Member A.A. Nikolic AM CSC
23 October 2023

Mr Mai (“the Applicant”) has appealed from a decision of the Respondent not to revoke the mandatory cancellation of his Class BS Subclass 801 Partner (Residence) Visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”).[1]
[1] Exhibit R1, 1-8.
The hearing was held in person at the Tribunal’s Melbourne Registry on 11, 12 and 13 October 2023. The Applicant was represented by Ms Shakti Nambiar of counsel, instructed by JT Lawyers. The Respondent was represented by Ms Samantha Liddy, a solicitor from Sparke Helmore Lawyers.
For the following reasons, the Tribunal affirms the reviewable decision.
FACTS
The following background facts are disclosed by the evidence:
(a)The Applicant is 36 years old and was born in Vietnam.[2] His formative years until approximately the age of 25 were spent there and included completion of high school, diploma studies in information technology, and two years working with an uncle in the Czech Republic. His parents, a sister with two children, and approximately 90 other relatives continue to live in Vietnam.[3]
[2] Ibid 192.
[3] Ibid 76.
(b)The Applicant is married to a girl he grew up with in Vietnam, who the Tribunal will refer to as “Ms AL”. Ms AL moved to Australia in 2008 at the age of 21 with her father and younger sister.[4]
[4] Exhibit A2, 1 [3].
(c)In 2011, the Applicant and Ms AL were married in Vietnam in a traditional ceremony.[5] Ms AL returned to Australia without the Applicant to sponsor his migration.
[5] Exhibit R1, 131 (second paragraph).
(d)The Applicant arrived in Australia on 11 March 2012 when almost 25 years of age.[6] He and Ms AL have two Australian-born children who are 9 and 11 years old.[7]
[6] Ibid 217.
[7] Ibid 164-165.
(e)The Applicant’s crimes in Australia centre on cannabis cultivation as follows:
(i)On 12 November 2016 police found a sophisticated hydroponic setup in a house the Applicant shared with Ms AL and their two children (“2016 cultivation offence”). The electricity meter in the home had been bypassed. Three grams of crystal methamphetamine (“ice”) was discovered. On 26 June 2017, the Applicant was convicted for cultivating cannabis, theft relating to the electricity bypass, possessing ice, and dealing with property suspected of being the proceeds of crime.[8] He received a total effective sentence of 2 years and 5 months’ imprisonment, with a non-parole period of 16 months.[9]
[8] Ibid 285-287.
[9] Ibid 52-60; DPP v Mai [2017] VCC 863.
(ii)On 18 August 2017, the Applicant’s visa was mandatorily cancelled (“first cancellation decision”).
(iii)On 28 September 2017, after considering the Applicant’s representations,[10] the first cancellation decision was revoked, and the following warning given:[11]
‘Please note: this decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you.’
(Emphasis in original).
(f)On 24 September 2020, following the execution of a search warrant, the Applicant was again arrested at the home he shared with Ms AL and their two children. A ‘sophisticated hydroponic set up’ was discovered in a bedroom and two hidden rooms, as well as a bypass of the electricity meter (“2020 cultivation offence”). A bag containing ice was also seized.
(g)On 14 May 2021, the Applicant was convicted and sentenced in the County Court of Victoria for cultivating cannabis, possessing ice, and theft.[12] His total effective sentence was 3 years and 5 months’ imprisonment, with a non-parole period of 2 years and 3 months.
(h)On 23 June 2021, the Applicant’s visa was again mandatorily cancelled (“second cancellation decision”).[13] He was invited to make representations to have the cancellation decision revoked, and he did so.[14]
(i)On 3 August 2023, the Applicant was advised that the Minister had decided not to revoke the second cancellation decision (“non-revocation decision”).[15]
[10] Exhibit R1, 254-277.
[11] Ibid 278-279.
[12] Ibid 29-51; DPP v Quang Mai [2021] VCC 632.
[13] Ibid 218-224.
[14] Ibid 63-209.
[15] Ibid 9-12.
The Tribunal must decide this application within 84 days of the Applicant being properly notified of the non-revocation decision.[16] This falls on 26 October 2023, which is 8 working days after the hearing.
[16] Section 500(6L) of the Act.
LEGISLATIVE FRAMEWORK
Section 500(1)(ba) of the Act, read in conjunction with s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), establishes the Tribunal’s jurisdiction to review non-revocation decisions.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a visa granted to a non-citizen if the Minister is satisfied the person does not pass the character test. The ‘character test’ is defined in s 501(6) of the Act and a person does not pass it if they have a ‘substantial criminal record’ within the meaning of s 501(7).
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record, including if they have been sentenced to a term of imprisonment of 12 months or more.[17]
[17] The Act, s 501(7)(c).
Under s 501CA(3) of the Act the Minister must provide notice of the cancellation decision as soon as practicable, and invite the affected person to respond.
Section 501CA(4) of the Act provides:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The word ‘may’ in s 501CA(4) of the Act has been interpreted to mean ‘must’.[18] This means a decision-maker is required to revoke the cancellation decision if satisfied one of the requirements in s 501CA(4)(b) applies.
ISSUES
[18] Marzano v Minister for Immigration and Border Protection [2016] FCA 1180, 13 [48] (Moshinsky J), as affirmed in Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548.
Character test and issue to be resolved
The Applicant received a custodial term of more than 12 months for the 2020 cultivation offence, which means he has a substantial criminal record and fails the character test.[19] It follows that the statutory power to revoke the cancellation decision can only be enlivened by the Tribunal’s satisfaction that there is ‘another reason’ to do so.[20]
[19] Pursuant to ss 501(6)(a) and 501(7)(c) of the Act.
[20] The Act, s 501CA(4)(b)(ii); Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, 1-2 [3]-[5] (Katzmann J), 11 [24] (Derrington J), 39 [103] (O’Bryan J).
Another reason?
The Full Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[21] reflected with approval upon the approach taken in Viane,[22] about how ‘another reason’ is determined. Their Honours summarised characteristics about the statutory power conferred by s 501CA(4) of the Act:[23]
‘(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.’
[21] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294 (Burley, Colvin and Jackson JJ) (“Bettencourt”).
[22] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, 545-6 [64] (Colvin J).
[23] Bettencourt (n 21) 302 [27].
More recently, in Plaintiff M1/2021 v Minister for Home Affairs, the plurality of the High Court stated how representations made under s 501CA(4) of the Act should be approached:[24]
‘23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations … the 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.’
(Citations omitted).
[24] (2022) 96 ALJR 497, 508-9 [23]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ) (“Plaintiff M1/2021”).
DIRECTION 99
In considering whether to exercise the discretion in s 501CA(4)(b)(ii) of the Act, the Tribunal must comply with a ministerial direction made under s 499(1) of the Act, known as ‘Ministerial Direction 99’ (“the Direction”).[25] The Tribunal ‘stands in the shoes of the original decision-maker’ and makes ‘the correct or preferable decision’[26] based on currently available evidence rather than what was before an earlier decision-maker.[27]
[25] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, 4 [4] (Rares, O’Callaghan and Jackson JJ); Nathanson v Minister for Home Affairs (2022) 96 ALJR 737, 742 [4] (“Nathanson”).
[26] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 314-5 [96]-[98] (Hayne and Heydon JJ); Nathanson (n 25).
[27] AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175, 9 [25] (Wigney, Abraham and Rofe JJ); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, 3-4 [10]-[11] (Logan, Perry, and Beach JJ); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250, 271 [51].
The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)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.
(5)With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)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 8.55(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.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to cls 8 and 9, where relevant. Clause 8 of the Direction identifies the following primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The strength, nature, and duration of ties to Australia;
(d)The best interests of minor children in Australia;
(e)Expectations of the Australian community.
Clause 9 of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.

Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations’. This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[28]
[28] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, 551 [23], 552 [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’. The weighing process, however, is left to individual decision-makers.[29]
[29] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, 473 [57].
Ms Nambiar stated during opening submissions that cl 8.2 of the Direction (Family violence), cl 9.1 (Legal consequences of the decision), cl 9.3 (Impact on victims), and cl 9.4 (Impact on business interests) are not relevant in this proceeding. Ms Liddy concurred. Having considered the available evidence, the Tribunal agrees and does not consider these aspects of the Direction further.
EVIDENCE
Documentary evidence
The following documents were tendered into evidence:
(a)Applicant’s 11-page statement dated 20 September 2023 and a two-page supplementary statement dated 6 October 2023;[30]
(b)Six-page statement of Ms AL dated 21 September 2023 and a two-page supplementary statement dated 6 October 2023;[31]
(c)Two-page letter dated 15 July 2023 from a friend who has offered the Applicant employment, and who the Tribunal will refer to as Mr VT;[32]
(d)Two-page letter dated 13 September 2023 from another friend;[33]
(e)Undated letter from another friend;[34]
(f)Ten-page report of consultant psychologist Mr Tim Watson-Munro dated 20 July 2021, relating to Ms AL, accompanied by a Statutory Declaration dated 21 September 2023 and email instructions from Mrs Joey Tam dated 15 July 2021;[35]
(g)G-documents[36] numbering 287 pages;[37] and
(h)Supplementary G-documents numbering 260 pages.[38]
[30] Exhibit A1.
[31] Exhibit A2.
[32] Exhibit A3.
[33] Exhibit A4.
[34] Exhibit A5.
[35] Exhibit A6.
[36] G documents are so named because they are provided under s 501G of the Migration Act. They consist of relevant documents held by the Respondent relevant to the visa decision. Many of these documents usually accompany the Minister’s written notice regarding a visa cancellation, refusal, or non-revocation.
[37] Exhibit R1.
[38] Exhibit R2.
The statements of the Applicant and Ms AL were prepared with the assistance of their solicitor and translated into English from instructions given in Vietnamese. Copies of their original Vietnamese statements were provided to the Tribunal.
Oral testimony
The Applicant, Ms AL, and Mr VT were the only witnesses called to give oral testimony during the hearing. All were assisted by an interpreter in the Vietnamese language.
The Applicant adopted his statement dated 20 September 2023 and a supplementary statement dated 6 October as true and correct. His oral evidence centred on several themes, including that: his risk of reoffending is low; that he has strong ties to the Australian community; that the best interests of his children weigh strongly in favour of revocation; that Ms AL and the children intend to remain in Australia; and that he will be unable to provide financially for them if deported. Key aspects of the evidence provided by the Applicant, Ms AL, and Mr VT are summarised under the relevant primary and other considerations.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Tribunal consideration: The nature and seriousness of the conduct
Under cl 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)   crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)    causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)   crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The sentencing remarks of the County Court of Victoria regarding the Applicant’s 2017 convictions are summarised as follows:[39]
(a)At the time of sentencing, the Applicant was ‘in the process of seeking permanent residence’ in Australia.[40]
(b)The 2016 cultivation offence related to conduct occurring during a six-month period between 12 May and 12 November 2016. The amount of cannabis seized was 118 cannabis plants weighing 35.5 kg.
(c)The quantum of the electricity theft was $11,668 and the proceeds of crime seized was $7,080. The ice found weighed 3 g, which the Court accepted was for personal use. The maximum penalties for these crimes are 25 years for the cultivation charge, 10 years for theft, 2 years for dealing with proceeds of crime, and 1 year for possessing a drug of dependence.
(d)The cannabis crop was cultivated in a house that the Applicant shared with Ms AL and their two children. The house had a CCTV system enabling the observation of outside movement on the Applicant’s mobile telephone.
(e)His Honour stated the Applicant’s culpability was ‘marked by the … duration, and yield of [his] offending’, which was ‘approximately 10 kilograms over commercial quantity by weight’.[41] The Applicant was the ‘principal in the operation’ and ‘motivated by … significant financial reward’.[42] The Court noted the Applicant and Ms AL had ‘worked little over the time of the charged period’ and the Applicant’s drug use and gambling debts contextualised his crimes. His Honour considered those factors and found they were not mitigatory, and noted that the Applicant chose to resolve his difficulties ‘over a prolonged period of time by resorting to planned and sophisticated criminal conduct’.[43]
(f)The Applicant was considered to have ‘reasonable’ prospects of rehabilitation, but this assessment was conditional on him overcoming ‘gambling and drug usage’.[44]
[39] Exhibit R1, 52-70.
[40] Ibid 57 [24].
[41] Ibid 55 [13].
[42] Ibid 55 [14].
[43] Ibid 56 [19]
[44] Ibid 58 [28].
The sentencing remarks of the County Court of Victoria regarding the 2020 cultivation offence are summarised as follows:[45]
[45] Ibid 29-51.
(a)A sophisticated hydroponic setup was discovered in a bedroom and two hidden rooms behind false walls in a garage, in a house the Applicant shared with Ms AL and their two children. There was again a bypass of the electricity supply. The Applicant accepted he was the principal of the cannabis enterprise, which he commenced about four months prior to arrest.
(b)The amount of cannabis seized was 78 plants weighing over 28 kg. The crop cultivated was with a ‘view to sale’, which meant that a higher maximum sentence applied pursuant to s 72B(b) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).[46] Judge Tinney stated: ‘Amazingly, this is the second time you have cultivated cannabis in the family home’.[47] His Honour went on to say:
[46] Ibid 30 [2].
[47] Ibid 33 [21].
‘I was informed that you began a handyman business in November 2019 and at one point, went to a job to ‘clean up’ a house in Melton where you were given the hydroponic equipment to store. Why you would have been asked to attend such a set-up, why you would have been given the equipment and why you would have taken it to store remains entirely unclear.
…
There is a strong reference from your wife which I take into account in your favour, although it must be said, she was living in the house with the cultivation set up, both in this instance and back in 2016. That is also quite incredible.[48]
[48] Ibid 33 [23]-[25].
(c)It was accepted that the ice seized was for the Applicant’s personal use rather than for trafficking.
(d)His Honour referred to hydroponic cultivation of cannabis as a ‘serious and prevalent crime’, irrespective of the quantity involved.[49] The Applicant was again noted to be ‘the principal’ and not ‘some poorly paid underling’. Judge Tinney stated:
[49] Ibid 47 [89].
‘You must have considered the risks and the possible financial rewards. You hoped that you would not be caught. You knew it was a serious crime to do what you did. I am satisfied of that beyond reasonable doubt … You knew it may well jeopardise your liberty as well as your ability to remain in this country.
Monetary reward is at the heart of virtually every cultivation, whether by a crop sitter or a principal offender or anything between. You were in this for sizeable enough monetary reward. There is no other explanation for this style of offending given the nature of the set up.
Was it need, or greed, or perhaps a bit of each?
…
Financial need is, in my view, not a matter of great mitigatory weight here. You must have been expending some money to cultivate the plants, as well as to use the drug ice. You had a roof over your head and a car in the drive, albeit a quite old one. Financial need is very often relied upon in this domain and it cannot be allowed to excuse the commission of a serious crime. It is a context. I suppose it can distinguish you from someone acting out of unmistakable greed with the trappings of extravagance and a rich lifestyle as the backdrop. That is not the sort of person I am dealing with as your wife’s letter makes plain. So I certainly do not find that you were flush with funds or motivated purely by greed.
However, there would be so many other options open before turning to a serious and calculated crime. Something surely your wife was trying to impress upon you.
There is no significant reduction in your culpability in this case. Your culpability is actually quite high given that you and you alone are responsible for all that we see in the photographs.
As I have said in countless other cases, I say now in yours; this crop and its ultimate success has been interrupted by the execution of the warrant by the police on this day in question. This was obviously an elaborate, planned, criminal activity. There is nothing spontaneous in your major crime, being the cultivation of cannabis’.[50]
(Emphasis added).
[50] Ibid 42-43.
Ms Nambiar submitted that because the quantity of cannabis discovered in the 2020 cultivation offence was less than the quantity in 2016, this reflected a ‘decrease in severity’ of offending, such that cl 8.1.1(1)(d) of the Direction (‘trend of increasing seriousness’) was not apposite. She said the Applicant ‘reoffended just once’ and only because of the ‘extraordinary circumstances of the COVID Pandemic’. While conceding his crimes were serious, Ms Nambiar said they were ‘not at the upper end of seriousness’.
Tribunal findings: The nature and seriousness of the conduct
The Applicant’s criminal history in Australia is limited to his 2017 and 2021 convictions. There is no evidence of any offending in Vietnam or other countries. The Applicant has been compliant and well regarded during his time in custodial settings.[51]
[51] Ibid 194-209.
Cultivation of a commercial quantity of drugs is an indictable offence carrying a maximum sentence of 25 years’ imprisonment.[52] A simpliciter cultivation charge is punishable by a 15-year maximum.[53] The Applicant’s sentences for both cultivation offences and his other crimes were well below the available maximums. Nevertheless, imprisonment is a sentence of last resort and the most severe sanction under Victorian law.[54] The courts have resorted to sentences of imprisonment on both occasions and the second sentence imposed in 2021 is longer than the first.
[52] Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 72A.
[53] Ibid s 72B(b).
[54] See for example: Sentencing Advisory Council, ‘Imprisonment’ <
The Tribunal does not accept that the Applicant’s crimes are a ‘low-level example of a serious offence’.[55] Both cultivations were of significant quantity and intended for sale and profit. The Applicant’s conduct was not impulsive, short-lived, or isolated, but planned, prolonged, and repeated. He was the principal on both occasions. The Tribunal also does not accept ‘there is no trend of increasing seriousness’.[56] The commission of a second cultivation offence 2 years after being released from prison for the first offence and following a revocation decision and formal warning from the Respondent,[57] renders the 2020 cultivation offence more serious.[58] Despite being aware his visa status may be reconsidered on character grounds if he reoffended, the Applicant cultivated another cannabis crop.
[55] Applicant’s Statement of Facts, Issues, and Contentions dated 21 September 2023, 8 [35] (”ASFIC”).
[56] Ibid 8 [35.b.].
[57] The Direction, cl 8.1.1(1)(g).
[58] Ibid cl 8.1.1(1)(d).
In terms of ‘other conduct’,[59] the Applicant’s cultivation of illicit drugs in homes he shared with Ms AL and their children is one example. His addiction to ice is another. His purchase and use of ice occurred far more frequently than the two findings of guilt in his criminal history for possession.
[59] Ibid cl 8.1.1(1).
The cumulative impact of the Applicant’s past crimes, including because of the police, court, and corrections resources needed to address them, is noteworthy.[60] Clause 8.1.1(1)(a) of the Direction is not exhaustive about what conduct can be regarded as very serious. The Applicant’s repeat offending in 2020, despite imprisonment for like offending, visa cancellation and a formal warning, coupled with the other conduct detailed above, is considered very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[60] Ibid cl 8.1.1(1)(e).
Clause 8.1.2(1) of the Direction provides:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Clause 8.1.2(2) of the Direction states that in assessing the risk non-citizens pose to the Australian community, decision-makers must take into account, 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:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
This aspect of the Direction requires the Tribunal to assess the risk posed if the Applicant reoffends, taking into consideration the nature of any harm and its probability. The courts have held that past actions are legitimate predictors of future behaviour, and any assessment of risk encompasses future possibility.[61] This was explored by Mortimer J, as her Honour then was, in Murphy v Minister for Home Affairs:[62]
‘That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’
[61] Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 144 ALR 567, 578-579; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133, 26-7 [81]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, 18-9 [63].
[62] [2018] FCA 1924, 12 [37].
The Applicant did not adduce expert evidence predictive of his recidivism risk, which would have been relevant.[63] There are two prison records dated 5 May 2023 and 4 August 2023 containing a Level of Service/Risk, Need, Responsivity (“LS/RNR”) assessment. This is an internationally validated actuarial tool used in custodial settings to assess an offender’s recidivism risk and identify their criminogenic needs.[64] The Applicant’s LS/RNR assessment states he is a ‘Low’ risk of reoffending.[65] Four Risk/Need Profile assessments are in the ‘Low’ range, two are rated as ‘Medium’, and two as ‘High’ (‘Companions’ and ‘Leisure/Recreation’). Ms Nambiar stated that the Applicant ‘recognises he needs to address [contact with adverse peers] as an element of his life’.
[63] Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595, 618 [72] (Mortimer J).
[64] Don Andrews and James Bonta, The Level of Service Inventory–Revised (Multi-Health Systems Inc. 1995).
[65] Exhibit R2, 248-250.

Several factors were invoked in support of the contention that the Applicant constitutes a ‘low’ recidivism risk, and this primary consideration should be accorded ‘little weight’:
(a)The Applicant’s 2 years of good behaviour after being released from prison in 2018 indicates his capacity to reform, with ‘only one relapse into drug use in 2020’.
(b)The Applicant’s 2020 cultivation offence was contextualised by ‘unique [and] extraordinary conditions’ arising from the COVID Pandemic.
(c)The Applicant is remorseful, was compliant in custody, cut off ties with adverse peers, has positive prospects of rehabilitation, and will benefit from the protective effect of Ms AL, their children, parole conditions, and pro-social influences.
Ms Nambiar said the Applicant now represents a ‘tolerable risk’ to the community and his circumstances, if released, will be different because both he and Ms AL will work, and they no longer have his mother-in-law’s illness to contend with. Ms Nambiar submitted that even if there is another serious family illness this will not result in the ‘same sense of despair and desperation’. She stated that the Applicant has no wish to repeat the adverse impact that his past offending has caused to Ms AL and their children.
Ms Liddy submitted that the Applicant constitutes an ‘unacceptable’ risk of recidivism. This is because of his failure to seize the second chance granted to him by the 2017 revocation decision, disregard of a formal waring, and comparable nature of protective factors. It was submitted that this primary consideration ‘weighs heavily’ against him.
The evidence relating to the reasons for the Applicant’s offending traverse drug and gambling addictions, financial need, the influence of adverse peers, and greed.[66] Ms AL claimed during counselling with a Vietnamese psychologist in 2017 that ‘greediness and the easy life style had blinded both her and her husband’s judgment’.[67] In oral evidence Ms AL said this referred solely to the Applicant’s cultivation activities to pay gambling debts.
[66] Exhibit R1, 131 (last paragraph); 132; 136 [4]; 145.
[67] Ibid 145 (bottom of fifth dot point); 147 (third dot point).
The Applicant’s current evidence about the causes of his offending bifurcates, but centres on financial need rather than greed. He explained that during a period of unemployment in 2016 and while in the thrall of a gambling addiction he ‘met a few people who introduced [him] to the business of cannabis cultivation’.[68] He referred to a growing gambling debt, ice addiction and other pressures. He recalled gambling on poker machines up to three times a week during 2015 and 2016 and estimated losing around $50,000.
[68] Exhibit A1, 4 [27].
The Applicant said Ms AL was aware of his gambling losses and cannabis cultivation, and unsuccessfully tried to deter him. When asked by Ms Liddy why he did not listen to her, he replied: ‘I was not strong enough to control my mind against addiction’. In terms of rehabilitation, the Applicant said he undertook a drug and gambling course delivered in Vietnamese after release from prison in 2018 as a condition of parole. He recalled meeting with a drug counsellor over a four-week period, assisted by an interpreter. When asked if he undertook any rehabilitation on better handling financial stressors, the Applicant responded: ‘Yes – a little bit – I remember I’ve done counselling once regarding this topic’. When asked what he learned about dealing with financial pressures, the Applicant replied: ‘Think of your family and contact people seeking advice and counselling to overcome the crisis’. He said his parole officer also gave him a telephone number to contact if he experienced financial stress. When asked why he did not follow this advice instead of cultivating cannabis again, the Applicant claimed: ‘the situation changed quickly during the Pandemic’ and he ‘didn’t have enough time’ to recall it.
The Applicant claimed he ‘stopped gambling and the other bad things [he] used to do’ after his first arrest in 2016. When challenged by Ms Liddy that a quantity of ice was discovered during a search warrant for the second cultivation offence in 2020, the Applicant claimed he only smoked ice once in 2020 and the quantity seized by police was very small. He contrasted this with his addiction in 2016 when he smoked ice every two days. The Applicant contextualised his use of ice on both occasions as helping him stay awake while harvesting cannabis. He said prolonged contact with cannabis made him sleepy and coffee did not work. He claimed not to have smoked ice inside the house but elsewhere on the property after the children were asleep. Ms AL stated in her oral evidence she had a ‘feeling’ the Applicant was using drugs because he ‘associated with friends who used that substance’.
Ms AL expressed regret during counselling with a psychologist in 2017 about not objecting ‘more strongly’ to the Applicant’s actions.’[69] She undertook to do ‘everything in her capacity to stop [him] reoffending ever again.’[70] Ms AL is also recorded as stating she would never ‘become involved again in any illegal activity’.[71] Mr Watson-Munro noted in his 2021 report that Ms AL ‘was aware of both drug crops but did not articulate her husband’s wrongdoing’.[72] Ms AL’s current evidence is that the Applicant assured her both cultivations were ‘temporary’ and she trusted him. She was unaware who he owed money to in 2016 but stated: ‘I knew he did gambling’. Ms AL has variously estimated the Applicant lost up to $100,000 from gambling,[73] which significantly exceeded his estimate. She recalled being ‘very nervous’ after discovering he was growing cannabis again in 2020 because of the ‘experience last time’ and fears he would be imprisoned again. When asked what she would do if the Applicant decided to grow cannabis again in the future, Ms AL responded: ‘I would not allow it to happen’. When asked how she would stop it, she said her children would be older by then and stated: ‘It would be my children and not me’ who would intervene. When pressed by Ms Liddy that she has twice asked the Applicant to stop cannabis cultivations without success, Ms AL responded: ‘I cannot think there would be a third time. It was too big a lesson for both of us’. When pressed, she said if there was a third time, she would end their relationship and report the cultivation to police.
[69] Exhibit R1, 147 (first paragraph).
[70] Ibid 148.
[71] Ibid 148.
[72] Ibid 131 (fourth paragraph); 145 (fourth dot point).
[73] Ibid 132 (first paragraph).
The Applicant contextualised the 2020 cultivation offence as resulting from the COVID Pandemic. He said this impacted his landscaping business and by March 2020 he had stopped work. He felt cultural pressure to earn income as the man of the house but a lack of English language skills impeded his access to Government support. The Applicant said he discussed COVID assistance measures with friends and, after speaking with his accountant, accessed fortnightly JobKeeper payments of about $1,500 starting in June 2020. He claimed that the benefit received was restricted because his landscaping business had operated for less than 12 months. The ASFIC states that the couple were receiving Centrelink, Family Tax Benefit (“FTB”), and JobKeeper payments during this time,[74] but the Applicant was unsure what payments Ms AL received beyond FTB. He claimed the payments were insufficient for a family of four, which ‘compounded his isolation and depression’.[75] There is a dearth of independent evidence to corroborate the amount or duration of payments received, or about the Applicant’s financial situation. The Applicant claimed that in or about June 2020 while receiving JobKeeper: ‘We nearly decided to stop doing a bad thing, but … the bad news about [his] mother-in-law’ caused him to continue the cultivation. The chronology of his mother-in-law’s illness is later discussed.
[74] ASFIC (n 55) 3 [11], [14].
[75] Ibid 3 [12].
The Applicant recalled financial pressures in 2020 such as falling behind with bills and rent.[76] He claimed that he borrowed money from Ms AL’s sister but agreed the rent situation never worsened to a point where formal notices were sent, or eviction contemplated. There is no corroborating evidence from Ms AL’s sister despite both the Applicant and Ms AL stating they are close to her. The Applicant also referred to costs arising from his mother-in-law’s cancer treatment in Australia as an additional pressure. Ms AL was reportedly unable to work between 2018 and 2020 because of caring responsibilities for her mother and children. Ms AL said the treatment was eventually deemed successful and they were told by Australian doctors in early 2020 that her mother’s cancer ‘was almost cured and had very little chance of reoccurring.’ Her mother returned to Vietnam in March 2020. The Applicant claimed he had a ‘feeling’ in June 2020, however, that the cancer had returned because of symptoms his mother-in-law described. He agreed it was not until September or October 2020, however, after his mother-in-law was admitted to hospital in Vietnam, that expert confirmation was received about the cancer’s return. A Vietnamese hospital record dated 6 October 2020 about this was provided by Ms AL. The Applicant claimed this ‘distressed situation pushed [him] into offending’ because medical treatment in Vietnam is ‘very costly and more expensive than in Australia’. The Applicant said his mother-in-law never recovered and died on 3 March 2021.
[76] Exhibit R1, 77.
The Applicant said it was in the context of these pressures that he met a ‘friend during a landscaping job’ in 2020 who suggested he grow cannabis. The Applicant decided to do so, and this friend set up the electrical bypass in his home. Although he claimed to have cut ties with an adverse peer group after the 2016 cultivation offence, the Applicant agreed that after release from prison in 2018 he became associated ‘with different … bad people [who] told him] to do a bad thing’. The Applicant recalled starting the cannabis enterprise in ‘mid-May 2020’ purportedly to ‘only grow one crop’. He said that he cut ties with these adverse influences after his 2020 arrest and ‘does not plan to have contact with them’.[77]
[77] Exhibit A1, 8 [50].
Judge Tinney stated the following regarding the Applicant’s claimed financial motive:
‘Your reduced financial circumstances are relied upon with struggles to support your family, and a sick mother in law who required some assistance. It is, I am afraid, not much of an excuse to offend in this way. You claimed financial need on the last occasion you cultivated drugs, on that occasion pointing to drug use and gambling. The fact is virtually everyone who cultivates cannabis in a sophisticated hydroponic set up is doing so in the hope of some financial gain.’[78]
[78] Exhibit R1, 34-5 [28]-[29].
The Applicant described his crimes as the worst mistake in his life and recalled serving 16 months of his 29-month sentence for the 2016 cultivation offence before release on parole. He referred to ‘staying out of trouble for two years from March 2018 to May 2020’, which included factory work, starting a landscaping and handyman business, and ‘turning around a difficult financial situation’. When asked by Ms Liddy which of his two prison sentences taught him that cultivating cannabis was the ‘worst mistake in his life’, the Applicant said he knew this after the first conviction in 2017 but claimed the 2020 cultivation offence resulted from inescapable circumstances. The Applicant agreed with Ms Liddy that the 2017 revocation decision was a second chance he failed to take advantage of.
The Applicant said if given another opportunity to remain in Australia he will not take drugs or reoffend because he wants to be ‘a good role model’ for his children. He said they are older now, better understand the difference between right and wrong, and he does not want to disappoint them. He claims to have ‘learned a lot about the consequences of drugs and cultivation’.[79] Ms Nambiar asked the Applicant for his view about the effect of drugs on society. The Applicant responded that illicit drugs affect a ‘person’s nerve system, cause them to become confused so they don’t know reality and can do something stupid’. He has also learned that drugs can cause a person to ‘lose quality time with their family’.
[79] Exhibit A1, 7 [48]; 8 [49].
The Applicant said the risk of future financial pressure is alleviated by both he and Ms AL intending to work. During his imprisonment Ms AL worked, supported the family, and saved a considerable amount ‘for a future investment’.[80] The Applicant said his financial contribution will further improve their circumstances, and living costs are reduced because his wife’s Vietnamese cousin lives with them and contributes. There is no corroborating evidence from this cousin, who was not called as a witness.
[80] Ibid 8 [52].
Heavy emphasis has consistently been placed on the protective effect of Ms AL’s future influence. In 2017, for example, the following was submitted by the Applicant’s lawyer:
‘If the applicant cannot overcome his habits or reoffends, [Ms AL] has stated she will have no other choice but to end her relationship with him. Her children's safety is her utmost priority. She is unwilling to be with the applicant if the children are at risk again as they are still recovering from the psychological damage the [sic] from the night of the attempted theft. In hindsight, she is fully aware of the unsurmountable risk the applicant had put them in and acknowledges that even working hard on the farm, facing financial hardship, earning honest money and sleeping well at night were much better than living in fear and anxiety every minute of her day’.
In Tauariki and Minister for Immigration and Citizenship [2013] AATA 475, the Tribunal allowed him to remain in Australia because of strong representations from his partner who stated she would terminate her relationship with him if he ever reoffended. Furthermore, there were also children who really loved him and were of a relatively young age. On that basis, the decision to revoke the Visa was set aside and substituted.
We submit that the view of the Honourable Judge Meredith and the strong representation from his wife must be taken into consideration when assessing the mitigating factors to the risk to the Australian community.[81]
[81] Exhibit R1, 273.
The Court noted during sentencing in 2017 that the Applicant’s rehabilitative prospects ‘appear reasonable given [his] family support and lack of prior offending’, but this was conditioned by his ability to overcome ‘gambling and drug usage’.[82] After the Applicant reoffended, Judge Tinney stated the following during sentencing in 2021:
‘It is pretty startling that you are back before this court in relation to a sophisticated cannabis cultivation and relying on many of the same matters in mitigation a second time. Judge Meredith took into account in your favour your past good behaviour. Well, that is no longer available to you.[83]
…
Neither being sent to prison in the past, nor the pleas of your wife, or the known risks of compromising your ability to remain in this country have stopped you from this calculated and serious offending. That is a bit disturbing.
I can only view your prospects in a quite guarded fashion. I am prepared to accept that they do exist and I prepared [sic] to assess them as being reasonable’.[84]
[82] Ibid 58 [28].
[83] Ibid 35 [30].
[84] Ibid 39 [45]-[46].
Judge Tinney further noted it was the Applicant who placed himself in a position where deportation was again possible:[85]
‘Your counsel made submissions as to deportation … He placed strong reliance on these matters, saying that the burden is especially heavy for you given that you have lived in Australia for nine years and that your wife and children are Australian citizens who intend to remain in this country. The problem is that those very same matters were raised on your behalf before Judge Meredith … Quite evidently, he was right to entertain those doubts. Your visa was cancelled, you exercised your rights and succeeded in having that decision revoked. I was told by your counsel that you will take similar steps, in the event that your visa is again cancelled.[86]
…
I give some weight to each aspect of the deportation submission made to me by your counsel. However, I cannot let the increased burden and the risk of actual deportation dominate my task. Your wife spoke of the possibility of separation if you ignored her advice and offended. You have previously been told of those risks when you were last sentenced. Your visa was actually cancelled and you then succeeded in having that decision reversed. You must have known how fortunate you were to remain in this country. You must have known how this would likely play out if you reoffended and were caught.’[87]
[85] Ibid 38 [42].
[86] Ibid 39 [47].
[87] Ibid 41 [54].
In terms of remorse, Judge Tinney stated:
‘A guilty plea is often enough indicative of some remorse. That is not always the position. This cultivation took place in a property where you were actually living … This is your second serious cultivation in the space of five years. How many times can you seriously offend and then claim remorse in the aftermath, I wonder?
However, having examined all of the material including the references and letters which speak of your present attitude to your offending, I am prepared to find the presence of some actual remorse in this case.’[88]
[88] Ibid 36 [34]-[35].
The Applicant’s remorse during this hearing again centred on the impact on Ms AL and their children. He expressed regret for not seizing the ‘second chance’ given in 2017 and stated: ‘I don’t know why I did it again’. The Applicant said he would not make the same mistake a third time because he ‘might lose [his] family forever’. He plans to ‘keep a strong mind and not be influenced by bad people’.
The Applicant said there is nothing preventing him from recommencing employment if released. He intends working with a close friend, Mr VT, who stated in a handwritten letter that his ‘cabinets maker [sic] … business is getting more stable, so [he] can offer [the Applicant a full-time job after he finish his prison period [sic].’[89] In oral evidence, Mr VT said the relationship with the Applicant centred on their mutual interest in table tennis, which they played at a club and the Applicant’s home. Mr VT considers the Applicant a good man who works hard to support his family. Mr VT said he currently has one employee, ‘more contracts and jobs coming in’, and expects to pay the Applicant about $250 daily. Mr VT said he was unaware of the Applicant’s imprisonment when they first met in 2018 but later became aware of this. He did not know about the 2020 cultivation offence until the Applicant unexpectedly stopped contacting him, causing Mr VT to approach Ms AL. Mr VT said he has no problem hiring the Applicant despite his criminal history and stated: ‘During COVID everyone had difficulty – I saw he’s responsible for his work’. He said the Applicant is a ‘good man who has changed’.
[89] Ibid 125.
While noting the distinction between cannabis use and cultivation, Ms Nambiar said the ‘use of cannabis is generally regarded as presenting a lesser risk of harm to the community than other prohibited drugs such as heroin, cocaine, and methamphetamine’.[90] Moreover, she said the Applicant’s gambling ceased after his arrest in 2016 and he received some AOD counselling for his ice addiction. Apart from using ice on one occasion in 2020 it was submitted he had otherwise remained abstinent. Ms Nambiar said the 2020 reoffending arose from ‘extreme financial and emotional stress’ caused by COVID and the serious illness suffered by the Applicant’s mother-in-law, who he regarded as a ‘mother figure’. She submitted that the Applicant ‘seriously considered stopping’ the cannabis enterprise when JobKeeper payments started, but news in September 2020 that his mother-in-law was ‘extremely unwell’ again caused him to continue.
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[90] ASFIC (n 55) 9 [37].

Cultivation of cannabis is an integral part of the illicit drug trade and often a pathway to more serious drugs. When used intensively or for prolonged periods, mental health conditions like schizophrenia and paranoia can result.[91] The community impact of cannabis use is frequently reflected upon by courts and tribunals. For example, Judge Bennett, then of the District Court of New South Wales, has noted: [92]
“There is the populist view … that cannabis is a drug of little significance without the risk of much harm. I have been engaged in the practice of law for many years; as a judge for in excess of a decade. In the course of my life as a barrister I appeared in a number of Supreme Court murder trials and related proceedings and it is the fact that cannabis is a harmful drug. It leaves people prone to schizophrenia with a risk of the development of that disease. It opens the pathway to people without necessary self-control into the drug milieu. I have not … ever seen the case where somebody addicted to heroin, cocaine or methylamphetamine did not begin their life as a drug user starting out with the misuse of cannabis, it is a dangerous drug, and those who urge otherwise are misguided.”
[91] Australian Criminal Intelligence Commission, Illicit Drug Data Report 2019-20 < As cited in Le v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3130, 10 [31].
If police had not intervened to stop the Applicant’s crimes, significant community harm could have resulted. This includes adverse mental and physical impacts on drug users, or incidental consequences for those close to them. It would also add to the corrosive societal impacts resulting from illicit drug production, trafficking, and the link between such offending and other crimes.
Despite the Applicant’s rehabilitative prospects being assessed during sentencing in 2017 as ‘reasonable’, this was conditional on him overcoming gambling and drug use. The Applicant reoffended and used ice again. He did so despite being on notice about the adverse visa consequences of further crimes. The Tribunal considers the Applicant to be highly suggestible, as shown by the influence that adverse peers have exerted on him. He referred to ‘the bad group of friends are somehow very persuasive’. His intention to avoid the influence of adverse peers in future is aspirational at best.
The Tribunal does not accept that a unique confluence of events during the COVID Pandemic, and an illness suffered by the Applicant’s mother-in-law, caused circumstances so ‘extraordinary’ that the Applicant was left with no choice but to cultivate another cannabis crop. The Pandemic impacted the entire population and as Judge Tinney stated:
‘Your counsel points to financial need. Your previous barrister in 2017 made the same submission, though there was a different cause for that need then. There was some suggestion placed before me of your failing business amidst the COVID-19 pandemic and then the “turning off” of the JobKeeper payment. When one examines the chronology and the amendment made to the submissions about the date of the JobKeeper payments, the turning off of the JobKeeper payment cannot have been instrumental in your decision. You in fact received what were the generous JobKeeper payments at the rate of $1,500 per fortnight in June and July. According to your interview, you had at the time of your arrest in September, been cultivating for about four months. So suspension of the JobKeeper payments cannot be the explanation for your decision to cultivate …
Financial need is, in my view, not a matter of great mitigatory weight here. You must have been expending some money to cultivate the plants, as well as to use the drug ice. You had a roof over your head and a car in the drive, albeit a quite old one. Financial need is very often relied upon in this domain and it cannot be allowed to excuse the commission of a serious crime.’[93]
[93] Exhibit R1, 42-3 [62]-[63].
The Applicant’s current expressions of remorse are diminished by the repeat nature of his offending. The 2020 cultivation offence commenced approximately two months after the COVID Pandemic started, and after the Applicant’s mother-in-law had returned to Vietnam following what appeared to be successful cancer treatment. Little weight is placed on the Applicant’s purported premonition that her cancer had returned in June 2020 as an excuse to continue offending. There was no expert confirmation of her medical conditions until October 2020. Several aspects of the Applicant’s justification for his offending came across as self-serving and unpersuasive. This includes purported consideration being given to stopping the cannabis cultivation in June 2020 while receiving JobKeeper. It was only police intervention, however, that ultimately stopped both cultivations.
There is no expert evidence about the Applicant’s recidivism risk. Nor does the evidence persuasively establish he has fully addressed his rehabilitative needs relating to drug and gambling addiction or dealing with financial pressures. The Tribunal also found his evidence about smoking ice for only three months in 2016 to stay awake for cannabis cultivation to be unpersuasive. In a report prepared by a Vietnamese psychologist in 2017, the following is attributed to Ms AL about the Applicant’s drug use:
‘[Ms AL] reported she felt even more fearful and regretful when her husband started using ice approximately a year ago. He could not sleep at night and often spent times gambling. [Ms AL] believed that the use of ice and gambling habit had further blinded his judgment. He was in deeper trouble due to increased debts from gambling and ice.’[94]
[94] Ibid 145.
In contrast to the Applicant’s claims that he only ever relapsed into ice use once during the 2020 cannabis cultivation, Ms AL told psychologist Mr Watson-Munro in 2021 that during the Applicant’s first custodial sentence he ‘detoxified and on his release was on track for a time, receiving treatment for ice use and gambling. She conceded however that there were occasional relapses’.[95] Mr Watson-Munro recorded the following:
‘As a further relevant consideration, she claims that her husband developed an addiction to crystal methylamphetamines (ice). This addiction caused him to stay awake at night and it was essentially in this context, that he would then go out gambling’.
[95] Ibid 132.
The Tribunal places less weight on the protective factors invoked by the Applicant in circumstances where past stable accommodation, employment, support from Ms AL, a formal warning from immigration authorities, and the interests of his children were all insufficient to prevent him from using illicit drugs and committing crimes. When asked during the hearing about the reference in revocation submissions to Ms AL possibly ending their relationship if he grew another cannabis crop,[96] the Applicant responded: ‘She didn’t threaten to divorce me’. During her oral evidence Ms AL denied ever threatening this. The Tribunal observed that Ms AL is a quietly spoken and trusting person who came across as acquiescent to the Applicant’s preferences. She told a psychologist in 2017 that the Applicant told her to ‘keep silent’ regarding the cannabis cultivation, which she did.[97] Any objection Ms AL may have expressed to the Applicant in the past about drug cultivation or drug use was ineffective. Her current claim that she will end her relationship with the Applicant or report him to police in the event of a third cultivation offence is unpersuasive. This includes because of her past failure to influence his conduct and repeated references to being unable to live without him. Moreover, if the Applicant was genuinely motivated by the interests of Ms AL, their children, and valued the privilege of living in Australia, he would not have cultivated a second cannabis crop or used ice again.
[96] Ibid 273.
[97] Ibid 145.
In terms of rehabilitation, the Tribunal has considered references to the Applicant undergoing some study in custodial settings,[98] which is to his credit. Any insight or self-directed rehabilitative progress achieved in custody, however, is untested in the community where he has twice succumbed to financial pressures, addiction, and the influence of negative peers. His rehabilitative claims are diminished by the repeat nature of his crimes relatively soon after release from prison in 2018. In any event, decisions should not be delayed for rehabilitation to be undertaken.[99]
[98] Ibid 198.
[99] The Direction, cl 8.1.2(2)(b)(ii).
Notwithstanding the Applicant’s assurances, the Tribunal remains concerned that a relapse into gambling or drug addiction, or re-emergence of financial pressures, or recurrence of his sense of isolation or depression, has the potential to cause him to believe he has no choice but to commit further crimes. The Tribunal’s concerns are only exacerbated by the repeat nature of his offending, use of ice in 2020, limited but unsuccessful offence-specific rehabilitation, and absence of clinical evidence regarding risk. There is a real rather than remote possibility of reoffending if he is again exposed to past circumstantial factors.
In the absence of independent expert assessment, the Applicant’s self-analysis that his recidivism risk is tolerably ‘low [and] should be accorded little weight’[100] is not accepted. The 2017 convictions, revocation of the first cancellation decision, and formal warning from the Respondent, put the Applicant on notice about the potentially dire consequences of further crimes. He reoffended. The Applicant is highly suggestible on these facts, and his conduct reflects a disregard for the law, welfare of the community and the interests of his family.
[100] ASFIC (n 55) 11 [41].
When the very serious nature of the Applicant’s offending and other conduct is coupled with a real risk of reoffending, and the serious consequences arising from any repeat offending, this primary consideration weighs heavily against revocation.
Family violence committed by the non-citizen
The evidence does not disclose any family violence committed by the Applicant within the meaning of the Direction. This primary consideration therefore carries neutral weight.
The strength, nature, and duration of ties to Australia
Clause 8.3 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) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a. The length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
Tribunal consideration: Strength, nature, and duration of ties
Documentary submissions lodged by the Applicant’s lawyer in May 2023 place heavy emphasis on this primary consideration as follows:[101]
(a)The Applicant’s wife and children are citizens and well settled in Australia. Ms AL works to support the family and has missed the Applicant’s contribution in the home. A report prepared by psychologist Mr Watson-Munro dated 20 July 2021 regarding Ms AL has been considered.[102]
(b)A non-revocation decision ‘would mean a potential … family breakup’, from which it is inferred Ms AL and the children will remain in Australia. Use of the word ‘potential’ raises ambiguity. During oral evidence further ambiguity was noted, but both Ms AL and the Applicant said it was likely Ms AL will remain here with the children. This is despite Ms AL concurrently stating:
‘I try my best every day in the hope we’ll be together. I do not think I can live far apart from him for a long time. I cannot tell about my feelings because right now I’m confused’.
(c)It was previously submitted in documentary materials that Ms AL’s sister lives with her and this sister’s interests are invoked as a relevant consideration. During oral evidence Ms AL clarified that she remains close to her sister, who has moved out and now lives with her own family. A cousin from Vietnam lives with Ms AL instead and contributes to costs. No statements were provided from either Ms AL’s sister or cousin attesting to the nature and significance of their relationship with the Applicant.
(d)Mr VT, a friend of the Applicant since 2018, thinks highly of the Applicant and has offered him employment if released. The Tribunal has considered two letters from Mr VT dated 8 November 2022 and 15 July 2023,[103] stating they met socially through a common interest in table tennis. Mr VT refers to the Applicant as ‘very remorseful’ and ‘will never do anything else illegal’.
[101] Exhibit R1, 85-89.
[102] Ibid 128-137.
[103] Ibid 124-127.
The Applicant’s oral submissions centred on the adverse financial, practical, and emotional hardship his removal would cause Ms AL and their children. The children’s best interests are considered here and under cl 8.4 of the Direction.
The Applicant’s stated his closest relationships are with Ms AL and their two children who are Australian citizens. Ms AL works as a cleaner, has been employed since the Applicant’s arrest in 2020, financially supports the family, and has made savings from her wages. She feels optimistic about an intended investment in a ‘paper company’ but said if the Applicant remains in Australia, his contribution will improve the family’s finances. Ms Nambiar highlighted problems that Ms AL experiences in concurrently working and coping with the children’s needs. It was submitted a non-revocation decision would cause her mental health ‘symptoms to increase’.
In his report dated 20 July 2021, psychologist Mr Watson-Munro referred to Ms AL suffering anxiety and sleeplessness referrable to the Applicant’s visa circumstances. She was then ‘on no medication beyond Panadol … and occasionally, pills to assist with sleep. Her health is unremarkable’.[104] In the event of a non-revocation decision, Mr Watson-Munro considered Ms AL’s need for treatment would increase because of emotional hardship. Mr Watson-Munro was not called to give evidence and his assessment is now over 2 years old.
[104] Ibid 133.
Another report in evidence dated 4 July 2017 refers to Ms AL undergoing five assessment and therapeutic sessions with a Vietnamese psychologist in the context of the Applicant’s first arrest.[105] The Tribunal has considered this information, but less weight is placed on the report given it was completed over six years ago.
[105] Ibid 144-149.
The Applicant referred to employment in Australia as a factory worker, handyman, and landscaper.[106] Judge Tinney stated during sentencing in 2021 that the Applicant’s employment history consisted of ‘menial work’.[107] Ms AL has described his employment as ‘not stable and inconsistent’.[108] In his most recent statement the Applicant referred to difficulty finding stable work because of poor English, which led to ‘sporadic’ work.[109] There is little independent corroboration of the Applicant’s past work[110] and he stated during the hearing he was last employed before the COVID Pandemic in early 2020.
[106] Ibid 78.
[107] Ibid 56 [18].
[108] Ibid 113.
[109] Exhibit A1, 3 [16]; [23].
[110] Exhibit R1, 78.
In terms of positive contributions, the Applicant claims to have completed 90 hours of community work at a temple during parole in 2018,[111] engaged with his ethnic community, his children’s school, and undertook some volunteering. There is no independent corroboration from the organisations he claims to have interacted with. When asked what school his children attend, the Applicant could not recall.
[111] Ibid 79.
Tribunal findings: Strength, nature, and duration of ties
The Applicant’s formative years and early adulthood were spent predominantly in Vietnam. He arrived in Australia about a decade ago at almost 25 years of age and his criminal offending began about 4 years later in May 2016 when he was 29. It cannot be said, however, that his offending commenced ‘soon after arriving in Australia’.[112]
[112] The Direction, cl 8.3(4)(a)(iii).
The Applicant’s Australian ties centre largely on Ms AL, his children, a few friends who provided statements, and possibly Ms AL’s sister and cousin who did not provide statements. It is not possible on these facts to reliably establish how close the Applicant may be to Ms AL’s sister and cousin, or whether they fall within the meaning of cl 8.3 of the Direction, or the nature and extent of any effect on them arising from a non-revocation decision.
It is accepted that Ms AL, the children, and friends who have written statements would experience adverse emotional impacts and be saddened by a non-revocation decision. This will likely be most profound in Ms AL’s case who may require support and treatment to cope. Ms AL stated several times she is unable to live without the Applicant and cannot envisage being separated from him for too long. In the event of a non-revocation decision, she would be confronted by a difficult but ultimately personal choice about whether to return to Vietnam or stay in Australia with the children. The former means the family stays together but the children’s lives are disrupted. It is noteworthy in this regard that Ms AL returned to Vietnam with the children for a month-long holiday in 2022 and stayed at the Applicant’s parents’ house. That said, a permanent relocation would be entirely different. If Ms AL remains in Australia with the children, the family will live separately and likely only see each other during infrequent visits. The Applicant’s financial, practical, and emotional contributions could only be made from a distance and his bond with the children will likely diminish.
Beyond immediate family, the Applicant’s personal connection to prosocial peers in the Australian community is relatively limited. Some weight is placed on his claims regarding positive contributions and social links, although the ties he invokes to his ethnic community and the children’s school are uncorroborated. He could not recall what school his children attend. His past employment is sporadic and there is a dearth of information from employers or work colleagues except from Mr VT.
The Applicant resided outside of Australia for the first 25 years of his life. Notwithstanding law-abiding periods, a significant part of his 11 years here has been spent offending, on remand, imprisoned, under some sort of conditional liberty, or having his visa to remain in Australia under review. His contribution to the Australian community is limited and there is a low tolerance of criminal conduct by people like him who have only been participating in, and contributing to, the community for a relatively limited time.[113] On balance, this consideration weighs moderately at best in favour of revocation.
[113] Ibid cl 5.2(4).
Best interests of minor children in Australia

Clause 8.4 of the Direction requires decision-makers to determine, where relevant, whether revocation is in the best interests of minor children in Australia. This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided. If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that they differ. The interests of the Applicant’s two children, who are currently 9 and 11 years of age, do not differ and are considered together.
Tribunal consideration: Best interests of minor children
The Applicant has referred to the relationship with his children as follows:
‘When I started having kids, my two boys became my utmost priority. I love them very much and everything I do, I do with the aim of improving their lives. I worked very hard to try and provide a good life for them. I have and will continue to make sacrifices for them. It upsets me very much to think that my mistakes and my family’s financial hardship have put my sons into a difficult situation as they grow up.
I am extremely close to my boys and consider myself a very loving dad. Each day before I was imprisoned, even if I was busy, I would make sure to walk with them to school, bathe them, and play games and sports with them in the evenings. I often took them out on the weekend, to swimming lessons and football practice. I also took part in many activities at their school – for example, I would participate in competitions between the kids and their parents that were held on Fathers’ Day, and would donate money or food as prizes for events held by their school. In 2019, as part of a collection drive organised by their school, I went to restaurants in Sunshine North to collect food that would otherwise be wasted so that the kids could learn about recycling and not wasting food.
While I have been in prison, my wife and my sons come to visit me almost monthly. I also call them every single day to make sure they are okay, and to hear how my family is doing. During periods of lockdown in the prison, when I was not able to make or receive phone calls, I would write my wife and sons letters from prison to tell them how much I love and miss them and how much I hope that I will be able to live with them under the same roof and we can be a happy family once again.
I know that my sons love me very much and I feel the responsibility to be a good role model for them. My elder son often tells me how much he wants to go on holiday together as a complete family and I aspire to fulfill his dream, a dream that seems so attainable for a normal family but so hard for us in our circumstances.
The most difficult thing for me is thinking that I cannot provide for my family and my kids if I have to leave them alone here in Australia. This thought kills me everyday. We have been a family for so many years, if I am separated from them forever without any prospect of reuniting with them permanently then there would be no purpose to my life anymore, it would lose all its meaning and I would fall into utter despair not knowing what else to do.’[114]
[114] Exhibit A1, 2 [11]-[15].
The Applicant stated during oral evidence it is ‘very unlikely’ Ms AL and the children will accompany him to Vietnam if he is deported. He said the children were born here and ‘deserve a life in Australia’. He accepted this was a difficult personal decision that he and Ms AL would have to make. In the Applicant’s 2017 revocation submissions it was similarly claimed on his behalf:
‘If the applicant were to return to Vietnam, his wife has stated she would not follow him as prospects and the quality of life in Australia are much better for her children’s upbringing. Not only would the sponsor be forced to continue to raise the two children alone, she would also lose a partner. Due to her financial hardship, it is unlikely she and the children will regularly travel to Vietnam to visit their father. We acknowledge the prevalence of other means of contact such as Skype, but submit that such arrangements are not a perfect substitute to maintain contact and develop foundation relationship.
Given the applicant’s relationship with his two children, the likely positive parental role he will play in their future and the negative effect of the separation, we submit the interests of the children would be adversely affected if the applicant’s visa were to be cancelled’.[115]
[115] Exhibit R1, 275.
The Applicant agreed that Ms AL has been able to care and provide for their children during the approximately three-and-a-half years he has spent imprisoned. She was assisted by her mother, younger sister, a woman who lived with Ms AL for a time, and more recently a cousin from Vietnam. The Applicant wants to alleviate the burden on Ms AL by resuming a prominent parental role. While agreeing he can continue to communicate with his children by telephone from Vietnam, he said this is a poor alternative to physical presence. He has seen the children during monthly visits in prison, which could not occur if he was in Vietnam. He agreed, however, there would be more flexibility for telephone and video calls from Vietnam because he would no longer be subject to prison restrictions.
Ms AL stated in 2017 revocation submissions she fears the children will grow up without a father.[116] She expresses an intention to remain in Australia until the children are adults because their ‘prospects and quality of life’ are better here, and they would have difficulty adapting to life in Vietnam:
’38. I think that if our sons were told that Quang Huy could not come back home, they would want to follow him to Vietnam. But I cannot let this happen. Both our sons … consider themselves Australian, speak English and speak very little Vietnamese … They have gone to school … and have built their life here with us and their friendship groups. They have not lived in Vietnam at all and I don’t want them to go back as the education, quality of living and opportunities they have here will not be afforded to them in Vietnam.
39. Also, because they don’t speak Vietnamese, they would need to go to an international school in Vietnam, which we could not afford. My husband has not lived in Vietnam since 2012. I had not lived in Vietnam since 2008 and I now have no immediate family there. We have not had a job or worked in Vietnam for over a decade. Without any emotional support or the funds to relocate, and with the prospect of unemployment in Vietnam for a long period of time, I don’t think it is possible to uproot our family and move our young children to Vietnam.
40. Even though I know I must stay in Australia, I don’t know how I will raise our children on my own without his support. It will be impossible for my husband to send me and our sons any money if he goes to Vietnam. His level of education is very low. If he gets a job, it will a labouring job. And the pay is very low for that kind of work. This is one of my worries about him going back to Vietnam and not being around for us. At the moment it’s very difficult for me to manage working and childcare with two young children. I am young now and can work, even though it is difficult. But I know that their needs will change as they get older and they will need even more money and time from me. I am really in dire straits, and I am worried it will only get harder and harder for me.
41. In addition to the financial problems, I think it will really cause my children hardship not to have their father physically around, since they are so close to him. They do so many things with their father every day when he is at home. He plays games with them, rubs their backs, tickles them until they’re all laughing together, and puts them to bed every night. I am very worried about the separation between my children and their father. For them to maintain their connection with their father, I have to take them to Vietnam to see him at least once or twice a year, every single year till they are adults and can go on their own. I don’t know how I will afford to do that.
42. As for myself, I’m 36 years old. I have known him over 30 years. I’m worried about the long distance that will be between us, even though I have hope. It makes me very upset to think about having to spend close to a decade without him, until my children are adults. I’m so worried about how this will affect our marriage, even though we have such a strong bond from having known each other all our lives. I feel I have to choose between my love and my children’s needs and I can’t choose to take my children away from Australia. All I know is that this must work. I really want Quang Huy to stay here.’
[116] Ibid 147.
In oral evidence Ms AL recalled past uncertainty about whether she would return to Vietnam with the Applicant but had now decided against this. She invoked practical issues like language, claiming her 11-year-old child only speaks ‘some Vietnamese’ while the youngest child speaks ‘very little’ Vietnamese. This contrasts with the claim in her statement that the children ‘don’t speak Vietnamese’ at all. The Applicant has also submitted that when the younger child speaks, he does so ‘partially in English and [the Applicant is] able to understand him’,[117] which suggests Vietnamese is the prominent language spoken. The Tribunal notes that both Ms AL and the Applicant speak very little English and gave their evidence entirely through an interpreter. Ms AL further explained the older child has only lived in Vietnam for six months as an infant, where he was cared for by her mother, and she has only returned once with the children in 2022, during which they lived for a month at the Applicant’s parents’ house. This again contrasts with the claim in her statement that the children ‘have not lived in Vietnam at all’. Ms AL said the children would ‘find it difficult’ to attend a Vietnamese school and placing them in an international school is unaffordable.
[117] Exhibit A1, 2 [9].
Ms AL stated during oral evidence she was concerned that large amounts of cannabis were grown in the home their children lived in and expressed this to the Applicant. She recalled him also being ‘worried’ and said he ‘tried [his] best’ to limit the children’s exposure. Ms Liddy put to Ms AL that her reference to the Applicant as a ‘perfect dad’ was contradicted by such conduct. Ms AL said she does not defend the Applicant’s drug activities, but his other conduct showed he was the ‘perfect husband and dad’. In closing submissions Ms Nambiar submitted there is an absence of expert evidence about any adverse effect on children of a cannabis crop grown in a residential premises they occupy.
During cross-examination Ms Liddy asked the Applicant about an aggravated burglary in 2016, which occurred at approximately 3.00 am while Ms AL and the children were sleeping but the Applicant was reportedly gambling at a club.[118] The Applicant said he detected the burglary on his mobile telephone, which was linked to a security system, and rushed home. When asked if Ms AL and the children were aware someone was breaking in, he replied: ‘No’. He also claimed the intruders did not have weapons. When asked by Ms Liddy why he thought the burglary occurred, the Applicant responded: ‘because I was cultivating cannabis’. Later, during re-examination, however, the Applicant clarified this was only a ‘guess’. Aspects of the Applicant’s narrative regarding this burglary conflicted with Ms AL’s recollections. She recalled the intruders broke through ‘two layers of doors’ into her house and announced they were police. She recalled them holding ‘a long object’, entering her bedroom, pushing her onto the bed, and one stated: ‘stand still or I’ll kill you’. When asked by Ms Liddy if she knew what the intruders wanted, she responded: ‘I thought they were burglars’. Ms AL previously told psychologists, however, that one of the intruders ‘tried to break into one of the plant rooms’, that ‘since the plants were brought into the house, she had not slept well and was feeling restless all the time, and she fears the ‘psychological impact on her sons’ from the burglary.[119] More recently in 2021 she told Mr Watson-Munro her fears from the burglary continue, for which he recommended ‘involvement with a Mental Health Practitioner’.[120]
[118] Exhibit R1, 146.
[119] Ibid 146-147.
[120] Ibid 136 [5].
The Applicant insisted neither Ms AL, his mother-in-law, or the children could access the cannabis grow rooms because he had the only key, and it was well-hidden. He agreed that a bedroom containing cannabis plants in 2020 was next door to the room his children slept in, and that ice was found when both search warrants were executed. The Applicant’s claim that his children ‘were not directly exposed to his offending behaviour’[121] rests on uncorroborated claims years later. It is variously claimed in the evidence he smoked ice at the homes of others and the children were not ‘exposed … to any drugs’. In his oral evidence the Applicant said he smoked ice on the property after putting the children to bed at 9.00 or 10.00 pm and then went to bed at 3.00 am or later. He claimed to have only smoked ice every two days for about three months during the 2016 cultivation offence and said use of the drug affected him for about 4-5 hours by making him feel ‘very confusing [sic]’ and unable to concentrate. This aspect of his evidence was difficult to understand given an earlier claim that he smoked ice to stay awake and alert during harvesting because prolonged proximity to cannabis plants made him feel sleepy. The actual extent of his drug use is difficult to establish, including because of the claims previously made by Ms AL to psychologists.
[121] ASFIC (n 55) 15 [55].
In terms of known views of the children, the Tribunal has considered letters and pictures stating they love their father and miss him.[122] In oral evidence Ms AL said the children were too young to require an explanation when the Applicant was imprisoned in 2017. In terms of his arrest after the 2020 cultivation offence, she told them he was involved in a car crash and fought with another person, which resulted in police ‘taking him away’. Ms AL said this narrative was preferable to the truth because children are vulnerable and easily hurt – including if they ‘tell other children at school’ about what occurred.
[122] Exhibit R1, 159-163; 179-191.
Recently Ms AL recalled asking the children: ‘What if Dad has to go back to Vietnam’. They reportedly replied: ‘No way’ and said they want to live with him in Vietnam. At 9 and 11 years of age, however, their lack of maturity and inability to fully consider relevant circumstances impacts the weight given to their views. Whatever is decided will ultimately be a difficult but personal choice. This does not appear fully settled given Ms AL’s evidence that she loves the Applicant and cannot live without him. Ms AL also does not think the children can maintain a strong bond with the Applicant if he is deported and said she will try ‘by any means to keep the bond between them’. She said this includes visits to Vietnam, which may not be ‘very often’ because of cost.
Tribunal findings: Best interests of minor children
It is noteworthy that the prospect of deportation and the children being raised without a father were insufficient to prevent the Applicant from reoffending approximately 2 years after being released from prison for the first cultivation offence. As noted above, the Tribunal has concerns about some of his prior conduct involving the children. This includes bypassing electricity connections in two homes they lived in, which possibly constitutes a safety hazard. He also cultivated cannabis crops inside the premises and possessed/smoked ice on the property. The Applicant’s claims about taking steps to ensure the children were kept separate from the cannabis crop and not exposed to his ice use are little to the point. The presence of these drugs in a residential property occupied by minor children is concerning, irrespective of precautions taken. The Applicant’s capacity to perform parental functions could only have been compromised during the hours he was affected by ice. In the absence of evidence to establish the precise circumstances of the aggravated robbery, however, no weight is placed on this in terms of possible adverse impacts on the children.
There have been approximately three-and-a-half years of absence and/or limited meaningful contact between the Applicant and his children during his time in custodial settings. During this time Ms AL, assisted by others, has played the predominant parental role. The Tribunal accepts that the Applicant regrets the impact of his crimes and aspires to be a better role model. There are between 7 and 9 years before the children reach adulthood. The Applicant’s ability to play a positive parental role, however, continues to be conditioned by the extent to which he can avoid relapsing into drug or gambling addictions, better dealing with financial pressure, and resisting the influence of adverse peers. As expressed earlier, the Tribunal is unpersuaded by his ability to do so.
It is accepted that if the Applicant is deported and Ms AL decides to remain in Australia with the children, they will lose his direct emotional, practical, and financial support. That said, Ms AL has supported her family during the Applicant’s incarcerations, receives taxpayer-funded benefits, has some superannuation and other savings, and is supported by a sister who lives nearby and a cousin from Vietnam who currently lives with her and shares costs. The Applicant can communicate with the children as he has done during his imprisonment via telephone calls and occasional visits. It is accepted this is a poor alternative to the positive influence a loving and present father can have. As the children get older, they may also more keenly feel the absence of a close relationship with the Applicant, which has the potential to cause continuing adverse emotional impacts.
The children are relatively young at 9 and 11 years of age, still at primary school, and have dealt with the Applicant’s absence for about 4 years now. The Tribunal accepts there are adverse consequences irrespective of what decision is made about their future. Relocating the children to Vietnam would maintain a physical bond with the Applicant and enable co-parenting but requires the children to adapt to a new education system and social environment in Vietnam. They would have to leave behind friends, teachers, and others they have grown close to in Australia. Without seeking to diminish the disruptive impact, pre-teenage children may adapt more readily to such a change, including if assisted by relatives in Vietnam. Notwithstanding the explanations given, the Tribunal finds the evidence about the children’s inability or very limited ability to speak Vietnamese overstated. If the choice is made for the children to remain in Australia on the other hand, this would adversely impact their bond with the Applicant, likely diminish his ability to contribute financially to their needs, and maintain single-parent pressures on Ms AL.
The best interests of the children are served by revocation, and, on balance, this primary consideration carries moderate weight.
Expectations of the Australian community
Clause 8.5(1) of the Direction identifies the expectations of the Australian community:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Clause 8.5(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Clause 8.5(3) provides that community expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. As per cl 8.5(4), this consideration is ‘about the expectations of the Australian community as a whole’, and decision-makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in a particular case.
Tribunal consideration: Expectations of the Australian community

Clause 8.5(4) of the Direction correlates with the reasoning in FYBR v Minister for Home Affairs (‘FYBR’).[123] Notwithstanding the different pathways in judicial reasoning, the plurality held that this primary consideration ‘expresses an expectation deemed by the Government to be held by the Australian community and that it is not the role of the decision-maker to undertake an assessment of what the community expectations are in each case’.[124] The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[125]
[123] (2019) 272 FCR 454, 471–2 [66] (Charlesworth J), 476 [91] (Stewart J) (“FYBR”). The High Court refused an application for special leave to appeal from the orders in FYBR: FYBR v Minister for Home Affairs and Anor [2020] HCATrans 56.
[124] Ibid 470 [61] (Charlesworth J).
[125] Ibid 473 [75]–[76] (Charlesworth J).
The Applicant submitted in the context of his 2017 revocation submissions that ‘if the Australian community was fully aware of the facts of the case, many would agree to give the applicant a second chance’. It is uncontroversial that he received a second chance through the 2017 revocation decision. The way that community expectations are considered under the Direction since then has changed. Ms Nambiar submitted that ‘little weight’ should be accorded to this primary consideration because the 2020 cultivation offence was motivated by ‘a sense of desperation that crystallised in the extraordinary circumstances of the lockdowns in 2020, which prevented him from working to alleviate his family’s need [and the] prospect of [his mother-in-law’s] serious illness’.[126]
[126] ASFIC (n 55) 16 [63].
The Respondent submitted that this primary consideration weighs heavily against revocation. This is because of the very serious nature of the Applicant’s crimes and the harm caused by any reoffending.
Tribunal findings: Expectations of the Australian community
The Applicant’s conduct for a significant portion of his time in Australia has breached the expectation that non-citizens will obey Australian laws. Concerns are only heightened by the repeat nature of his crimes after being given a second chance in 2017 to live a law-abiding and productive life. Having regard for the norm stipulated at cl 8.5(1) of the Direction and principles at cl 5.2(2)-(4) of the Direction, the community would have a low tolerance for the Applicant’s repeated crimes. This is not a case where a higher level of tolerance would be extended because he has lived here for most of his life or from a young age. Notwithstanding the Applicant’s individual circumstances, some of which moderate the weight given to this primary consideration,[127] the Applicant should expect to forfeit the privilege of remaining in Australia.[128] On balance this primary consideration weighs heavily against revocation.
[127] Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 559, 19 [75]-[78] (Bromberg J).
[128] The Direction, cl 5.2(1)-(4).
OTHER CONSIDERATIONS
The parties submitted that the only other consideration relevant to the specific circumstances of this case is Extent of impediments if removed.[129] The Tribunal agrees.
[129] ASFIC (n 55) 17 [66]; Respondent’s Statement of Facts, Issues and Contentions dated 4 October 2023, 13 [52].
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.
Tribunal consideration: Extent of impediments if removed
The Applicant spent about the first 25 years of his life in Vietnam. He stated that he has no diagnosed conditions, is not receiving any counselling, and does not take any prescription medication.[130] He confirmed during oral evidence there is nothing precluding his immediate return to work if released. The Applicant’s primary concerns relate to the wellbeing of Ms AL and their children and the hardship he would experience resettling in Vietnam ‘due to long-term absence, lack of employment skills and friends, [and] low education’.[131] The following was submitted on the Applicant’s behalf:[132]
‘Mr Mai has not lived in Vietnam for more than a decade, and will not be able to earn a meaningful living, because of his low level of education and the fact that his skills and experience relate only to manual labour. He will also experience significant emotional distress arising from his inability to provide for his family in Australia.
Further, while his elderly parents and his sister live in Vietnam, due to his long absence, he no longer has any close friends or a social circle who he can rely on to support him through his separation from his family in Australia. He does not wish to burden his parents and sister, and believes it would cause hardship to them if they were required to assist him financially while he resettled in Vietnam’.
[130] Exhibit R1, 79.
[131] Ibid 80.
[132] ASFIC (n 55) 17 [68]-[69].
In oral evidence the Applicant said his parents are elderly and his sister has her own family to care for. He stated: ‘Even temporarily my parents can’t help me in any way’. This was contradicted by Ms AL’s evidence, who travelled to Vietnam with her children in 2022 and stayed for a month at the Applicant’s parents’ home. She maintains contact with family members in Vietnam and said they are aware of the Applicant’s situation. She said his parents could provide some practical support such as temporary accommodation while the Applicant re-establishes himself.
The Applicant last visited Vietnam in 2015.[133] He agreed that he could find employment but said earnings would be much lower by comparison with Australia. This meant he could not financially support Ms AL and the children if they remain here. No evidence was advanced about the Applicant being treated differently to other Vietnamese citizens if returned.
[133] Exhibit A1, 9 [61]; Exhibit R1, 217.
Tribunal findings: Extent of impediments if removed
The Applicant is 36 years old and in good health. No substantial language or cultural barriers are invoked nor disclosed by the evidence.
The Applicant has worked in labour-intensive roles in Australia and there is no evidence his skills are not transferrable to Vietnam. His reference to being unable to earn a comparable wage in Vietnam or financially support his family in Australia is not the applicable test. The Direction requires consideration of an applicant’s ability to establish themselves and maintain basic living standards ‘in the context of what is generally available to other citizens of that country’. In any event, Ms AL has cared for the children during the Applicant’s two periods of incarceration, managed to work, and set aside approximately savings. This does not suggest reliance on the Applicant’s financial contribution, although Ms AL stated if he was deported, the savings ‘will go very quickly’. The Tribunal inferred that some of the savings earned by Ms AL would be used to assist the Applicant’s resettlement in Vietnam.
There is no evidence that if he needed it, the Applicant would not have the same entitlement to healthcare and other support services available to other Vietnamese citizens who meet required prerequisites. The evidence also does not persuasively establish that he is unable to rely on at least some measure of practical and emotional support from his parents, sibling, or perhaps some of the other 90 relatives he refers to in Vietnam.
On balance this consideration weighs slightly in favour of revocation.
Additional considerations
No additional considerations were advanced by the parties and the Tribunal has not identified any ‘other considerations’ under the non-exhaustive list at cl 9(1) of the Direction.
CONCLUSION
The Applicant does not pass the character test. In determining whether there is another reason to revoke the cancellation decision, the Tribunal has applied the Direction to the specific circumstances of this case. The Tribunal sees no reason, on these facts, to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations than the other considerations.
A significant portion of the Applicant’s time in Australia has been spent offending, in custody, or under some sort of conditional liberty. He received a second chance through the 2017 revocation decision but reoffended about 2 years after release from prison after the first cultivation offence. This is despite visa revocation and a formal warning from immigration authorities, which put him on notice about the consequences of further crimes.
The Applicant twice cultivated cannabis in houses occupied by Ms AL and their young children. He smoked ice on multiple occasions on the family property and preferred the counsel of adverse peers to Ms AL. His offending was not impulsive, short-lived, or isolated, but planned, prolonged, and repeated. He was the principal of both cultivations. The totality of the Applicant’s conduct reflects a repeated disregard for the law, welfare of the community, and interests of his family.
Commercial cultivation of cannabis is an integral part of the illicit drug trade and often a pathway to more serious drugs. When used intensively or for prolonged periods, mental health conditions like schizophrenia and paranoia can result. If police had not intervened, the crops cultivated by the Applicant could have caused significant harm to the community. This includes to users, their families, and through the corrosive societal impacts caused by illicit drug production, trafficking, and the link with other crimes.
The Applicant’s rehabilitative claims are unpersuasive and there is no expert evidence to establish he has meaningfully addressed the causes of past addictions or problems in dealing lawfully with financial pressures. Any self-directed rehabilitative progress in custodial settings is untested in the community where the Applicant has been unable to resist the influence of adverse peers.
This is not a case where a higher level of tolerance would be extended to the Applicant because he has lived here for most of his life or from a young age. Notwithstanding positive features of his case and the assurances he gave about living a law-abiding life, the Tribunal remains concerned about the comparable nature of protective factors that failed to prevent repeat offending. Factors underlying his future risk include a recurrence of financial pressure or serious family illness, relapse into drug or gambling addictions, reassociation with adverse peers, or return of the Applicant’s sense of isolation or depression. Comparable reoffending would expose the community to a risk of harm that is real rather than remote. The Applicant should expect to forfeit the privilege of remaining in Australia.
The best interests of the Applicant’s children, which cannot be differentiated, are served by revocation. In the event of a non-revocation decision, he and Ms AL would face a very difficult but ultimately personal choice about where she and the children will live. There are adverse emotional, practical, and financial consequences irrespective of the choice made.
After more than a decade in Australia the Applicant’s ties are relatively limited and centre predominantly on Ms AL, their children, and a small number of friends. If he were repatriated to Vietnam, he is still relatively young, in good health, and faces no substantial language or cultural barriers. He aspires to an immediate return to work when released. His primary concerns relate to Ms AL and their children if they remain in Australia, and the hardship he will experience if required to resettle in Vietnam. The Applicant has worked predominantly in labour-intensive roles in Australia and there is no evidence his skills are not transferrable to Vietnam. It is accepted he is unlikely to make a comparable income, although this is not the test in the Direction. There is no evidence that if he requires it, the Applicant will not have the same entitlement to healthcare or other support services available to Vietnamese citizens that meet required prerequisites. Notwithstanding the claim that he could not receive any support from family in Vietnam, this is not persuasively established.
Having weighed the relevant considerations individually and cumulatively, there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because Protection of the Australian community and Expectations of the Australian community carry heavy weight against revocation. This considerably outweighs the moderate weight given to Strength, nature, and duration of ties, Best interests of minor children, and the slight weight given to Extent of impediments.
DECISION
It follows that the Tribunal affirms the reviewable decision.

I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for the decision herein of Senior Member A.A. Nikolic AM CSC

................[sgd]........................................................
Associate
Dated: 23 October 2023

Date of hearing: 11, 12, and 13 October 2023

Counsel for the Applicant:
Ms Shakti Nambiar

Solicitors for the Applicant: JT Lawyers

Advocate for the Respondent:

Solicitors for the Respondent:

Ms Samantha Liddy

Sparke Helmore Lawyers

Date of hearing:	11, 12, and 13 October 2023
Counsel for the Applicant:	Ms Shakti Nambiar
Solicitors for the Applicant:	JT Lawyers
Advocate for the Respondent: Solicitors for the Respondent:	Ms Samantha Liddy Sparke Helmore Lawyers