Ngo and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 286

Ngo and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 286 (31 March 2025)
Applicant:The An Ngo
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/0228

Tribunal:Senior Member A. Nikolic
Place:Melbourne
Date:31 March 2025

Decision:The Tribunal affirms the decision under review.

...................[SGD].....................................................
Senior Member A. Nikolic
Catchwords
MIGRATION – mandatory visa cancellation – citizen of Vietnam – Class WC (Subclass 030) Bridging C Visa – traffick drug of dependence in a commercial quantity – knowingly deal with proceeds of crime – substantial criminal record – Applicant does not pass character test – non-revocation decision – whether another reason to revoke visa cancellation – Ministerial Direction no. 110 applied – decision affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Crimes Act 1958 (Vic)
Drugs, Poisons and Controlled Substances Act 1981 (Vic)
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Regulations 1994 (Cth)
Cases
Ali v Minister for Immigration and Border Protection [2018] FCA 650
BNY23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 14 BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199
Brownlie v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 436
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 056
Hughes v The Queen (2017) 263 CLR 338
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 417 ALR 36
JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 370
McKay v R [2000] FCA 155
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160
NRFX vMinister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 187
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 365
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582
Sundrampillai v Minister for Immigration, Local Government and Ethnic Affairs (1992) 29 ALD 479
Spruill v Minister for Immigration and Citizenship [2012] FCA 1401
Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409
WVJB v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 320
Secondary Materials
Australian Institute of Health and Welfare, ‘Alcohol, tobacco & other drugs in Australia, Cannabis’, (25 February 2025), < cannabis> (AIHW Report)
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)
Brabeck, Kalina et al, 'The Psychosocial Impact of Detention and Deportation on U.S. Migrant Children and Families' (2014) 84(5) American Journal of Orthopsychiatry 496
Sentencing Advisory Council (Vic), ‘Imprisonment’ (Web Page, updated 7 May 2024) align="center">Statement of Reasons
INTRODUCTION

Mr The An Ngo (the Applicant) is a 31-year-old citizen of the Socialist Republic of Vietnam (Vietnam). He has asked the Tribunal to review the Respondent’s decision not to revoke the cancellation of his Class WC (Subclass 030) Bridging C Visa (BVC).[1] The cancellation decision was made on 15 December 2023,[2] soon after the Applicant was convicted of trafficking a commercial quantity of drugs and knowingly dealing with the proceeds of crime.[3] As a consequence of the cancellation decision, a Partner Visa application from the Applicant was also refused by operation of law.[4]
[1] Exhibit R1, 1, 13.
[2] Ibid 102.
[3] Ibid 40.
[4] Ibid 157.
The hearing was held on 18 and 19 March 2025. The Applicant was represented by Mr Stephen John, a solicitor from ASM Migration Services. The Respondent was represented by Ms Sophia Xian, a solicitor from Clayton Utz. The Tribunal gave leave, at the Applicant’s request, to conduct the hearing by video link.
For the following reasons the Tribunal affirms the reviewable decision
LEGAL CONTEXT
The Tribunal’s jurisdiction is enlivened by s 500(1)(ba) of the Migration Act 1958 (Cth) (the Act) and s 13 of the Administrative Review Tribunal Act 2024 (Cth).
Section 501(3A) of the Act requires the Minister to cancel a person’s visa if satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.[5] The ‘character test’ is defined in s 501(6) of the Act and a person does not pass it if they have a ‘substantial criminal record’ as defined by s 501(7). This includes if they have been sentenced to a term of imprisonment of 12 months or more.
[5] The Minister may delegate this power under s 496(1) of the Act.
Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and invite the affected person to make representations. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act confers a discretionary power on the Minister to revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person either passes the character test, or there is another reason why the original decision should be revoked.
Subsections 49 - 50 of the ART Act provide that the Tribunal’s procedure is within its discretion and review applications are to be considered with as little formality and technicality as a proper consideration of relevant matters permits. Section 52 of the ART Act states that the Tribunal ‘is not bound by the rules of evidence but may inform itself on any matter in such manner as it considers appropriate’.
This application must be decided within 84 days of the Applicant being notified of the non-revocation decision.[6] This is by 2 April 2025, which is nine working days after the hearing.
[6] The Act, s 500(6L).
ISSUE
The Applicant has been sentenced to more than 12 months imprisonment. This constitutes a substantial criminal record and means he does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision. The remaining issue under s 501CA(4)(b)(ii) of the Act is whether there is ‘another reason’ for revocation. The Tribunal must read, identify, understand, and evaluate the Applicant’s clearly articulated representations or those arising from the evidence.[7]
[7] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (‘Plaintiff M1/2021’), [22]; [25]; [27]; [36] (Kiefel CJ, Keane, Gordon, and Steward JJ).
DIRECTION 110
In making its decision, the Tribunal must comply with a ministerial direction under s 499(1) of the Act, known as ‘Ministerial Direction 110’ (‘the Direction’).[8] Clause 5.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’. The Direction’s purpose is set out at cl 5.1(4) of the Direction, which is to ‘guide decision-makers in performing functions or exercising powers’ under ss 501 and 501CA for the Act. The Direction imposes ‘mandatory and aspirational considerations for use in the exercise of’ statutory power.[9]
[8] The Act, s 499(2A); CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416, 417–8 [4] (Rares, O’Callaghan and Jackson JJ); Direction No. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (commenced 21 June 2024) (the Direction).
[9] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, [22] (Farrell, Perry and Derrington JJ).
The following principles at cl 5.2 of the Direction provide a framework within which
decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the
non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the
non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to primary and other considerations where relevant to the decision.
Clause 8 of the Direction identifies the following primary considerations:
(1)Protection of the Australian community from criminal or other serious conduct;
(2)Whether the conduct engaged in constituted family violence;
(3)The strength, nature, and duration of ties to Australia;
(4)The best interests of minor children in Australia; and
(5)Expectations of the Australian community.
Clause 9(1) of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed; and
(c)Impact on Australian business interests.
Clause 7(1) provides that when applying primary and other considerations, appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that ‘Protection of the Australian community’ is ‘generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.’
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’.
The weight given to an Applicant’s claims and the individual and cumulative weighing process is a matter for individual decision-makers.[10]
EVIDENCE
[10] Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160, [23] (Perram, Colvin and Abraham JJ); Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582, 587 [23] (Mortimer J, as her Honour then was).
Statement of Facts, Issues, and Contentions
A Statement of Facts, Issues, and Contentions (‘SFIC’) is routinely lodged by parties during the pre-hearing phase.[11] The Tribunal has considered the Applicant’s SFIC dated 20 February 2025 and the Respondent’s SFIC dated 6 March 2025.
[11] A SFIC is comparable to a pleadings document in a judicial proceeding, serving to identify / narrow issues in dispute and helping ensure both sides are aware of and have an opportunity to answer each other’s case.
Documentary evidence
The following were tendered into evidence:
(a)Hearing Book numbering 406 pages filed by the Respondent;[12]
[12] Exhibit R1.
(b)Tender bundle of documents produced under summons numbering 103 pages filed by the Respondent;[13]
[13] Exhibit R2.
(c)Applicant’s two-page undated statement;[14]
(d)Four pages of undated letters from the Applicant’s eldest stepchild;[15]
(e)One-page letter dated 3 February 2025 from the Applicant’s friend;[16]
(f)One-page letter dated 5 February 2025 another friend of the Applicant;[17]
(g)Two-page letter dated 7 February 2025 from another friend of the Applicant;[18]
(h)Two-page letter dated 8 February 2025 from another friend of the Applicant;[19]
(i)Two-page letter dated 9 February 2025 from another friend of the Applicant;[20]
(j)Two-page letter dated 10 February 2025 from the Applicant’s cousin;[21] and
(k)Journal article filed by the Applicant titled: ‘The Psychosocial Impact of Detention and Deportation on U.S. Migrant Children and Families’.[22]
[14] Exhibit A1.
[15] Exhibit A2.
[16] Exhibit A3.
[17] Exhibit A4.
[18] Exhibit A5.
[19] Exhibit A6.
[20] Exhibit A7.
[21] Exhibit A8
[22] Exhibit A9; Kalina Brabeck et al, 'The Psychosocial Impact of Detention and Deportation on U.S. Migrant Children and Families' (2014) 84(5) American Journal of Orthopsychiatry 496‑505.
Oral testimony
The Applicant and his wife, who the Tribunal will refer to as ‘Ms AA’, were called as witnesses. Psychologist Mr Tim Watson-Munro was called as an expert witness. Notwithstanding the Applicant’s claims about previous tertiary and vocational studies in Australia, completion of an Advanced Diploma in Business Administration,[23] and appointment as a translator for other inmates in prison, he chose to give oral testimony exclusively through an interpreter.[24] Ms AA, who stated that she has completed Year 12 studies in Australia,[25] similarly chose to give her evidence through an interpreter. In response to a question from the Tribunal at the commencement of the hearing, Mr John confirmed the Applicant was aware of his privilege against self-incrimination.
PRIMARY CONSIDERATIONS
[23] Exhibit R1, 81, 185 [18]; Exhibit A1. 1 (paragraphs 3).
[24] Exhibit R2, 72.
[25] ExhibitR1, 325.
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 safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by
non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)   Decision-makers should also give consideration to:
a)    the nature and seriousness of the non-citizen’s conduct to date; and
b)    the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Under cl 8.1.1(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 and/or sexual 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 impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)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).
(i)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The nature and seriousness of the conduct: Tribunal consideration

The Applicant does not dispute the accuracy of his criminal history as set out in a December 2023 report from the Australian Criminal Intelligence Commission.[26] He was legally represented when pleading guilty to trafficking a commercial quantity of drugs and dealing with proceeds of crime.[27] A younger brother and close female friend were his co-offenders.[28] The Applicant was sentenced to one year and eight months’ imprisonment for trafficking and four months’ for dealing with the proceeds of crime. Two months of the latter sentence was cumulative upon the former, resulting in a total effective sentence of 22 months’ imprisonment. The non-parole period imposed was 14 months. The Applicant remains imprisoned to the present day.
[26] Ibid 40-41.
[27] Ibid 42.
[28] Ibid 43 [3].
The Applicant concedes his crimes were ‘serious’ and ‘harmful to the community’.[29] He stated during oral testimony that he knew his conduct was illegal and accepts the Court’s findings. He points out, however, that his sentence was ‘well short of the maximum penalty’.[30] The Tribunal has considered the County Court’s reasons for sentence dated 8 November 2023.[31] His Honour Judge Mullaly found that ‘very large sums of cash’ were transacted and the offending represented ‘serious criminality’.[32] Police discovered 24.74 kilograms of ‘ready to sell’ cannabis in bags and jars within a storage unit the Applicant and his brother visited 26 times between March and October 2021. Further searches of cars and premises found more cannabis, bringing the total to 27.1 kilograms. Cash was also found or admitted to by the Applicant and his co-offenders totalling over $200,000.
[29] Respondent’s SFIC, 8 [20]; Applicant’s SFIC, 5 [3].
[30] Applicant’s SFIC, 4 [2.(a)].
[31] Exhibit R1, 43-54.
[32] Ibid 43 [6], 44 [7], 44 [9].
The nature and seriousness of the conduct: Tribunal findings
Use of the term ‘without limiting the range of conduct’ in cls 8.1.1(1)(a) and (b) of the Direction highlights their non-exhaustive nature. The Tribunal is not bound by the views of the Australian Government or community[33] and judgements about the seriousness of drug-related offending turn on the specific circumstances of each case.[34] On balance, the Applicant’s conduct is serious because:
(a)He trafficked a commercial quantity of cannabis and dealt with significant sums of money knowing it was the proceeds of crime. Such conduct reflects a disregard for Australian law and community interests.
(b)Custodial dispositions are a last resort and the most severe sanction available.[35] A total effective sentence of 22 months’ imprisonment is considerable, regardless of where it sits in the context of a statutory maximum. The Applicant’s conduct fell into a category of crime for which the Victorian Parliament mandated a term of imprisonment unless an exempting factor was established.[36] The Court found no exempting factor in the Applicant’s case. The sentences he received, however, were far below the available maximums of 25 years’ imprisonment for drug trafficking[37] and 20 years for dealing with proceeds of crime.[38]
(c)The Applicant’s offending was not short-lived, impulsive, or due to immaturity. He was 27 years’ old when committing these crimes, which were characterised by considerable planning to avoid detection. Had police not intervened, there is no evidence he would have ended his involvement.
[33] BNY23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 14 (BNY23), [107] (Rangiah, Derrington and Rofe JJ).
[34] McKay v R [2000] FCA 155 [14]-[15] (Spender J).
[35] See for example: Sentencing Advisory Council (Vic), ‘Imprisonment’ (Web Page, updated 7 May 2024) <
[36] Exhibit R1, 44 [7].
[37] Section 71AA(1), Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[38] Section 194(1), Crimes Act 1958 (Vic).
Having regard for the framework principles at cl 5.2 of the Direction, the Applicant’s crimes are serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: Tribunal consideration
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 posed by a non-citizen to the Australian community, ‘decision-makers must have regard to, cumulatively’:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
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).
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature and seriousness of past offending is probative to assessing the harm that could result from further crimes.[39]
[39] BNY23, [97].
Financial motivation?
The Applicant invokes financial pressures, after his parents in Vietnam experienced adverse business outcomes during the COVID Pandemic, as motivating his crimes.[40] He claims they became ‘sick’ and he also lost his job in Australia. When asked by Ms Xian when he lost his job, the Applicant could not recall. When referred to revocation submissions in which he claimed consistent employment between 2017 and 2023,[41] the Applicant insisted he lost ‘temporary employment’ as a barista and with a floor company, which resulted in his financial situation becoming ‘extremely difficult’.
[40] Exhibit R1, 46 [20]; Exhibit R2, 93.
[41] Exhibit R1, 81.
The Applicant estimated his parents lost around $150,000 from a fraud perpetrated by friends who borrowed money. He claimed that in 2020 and 2021 he sent his parents around $100,000. This included money from savings, selling his car, and ‘a small part’ from drug trafficking, but he could not recall how much each component comprised.
The Court referred to inconsistency in the Applicant’s claims about his background in Vietnam,[42] which is relevant to his claims about financial motivation. His upbringing was ‘not entirely clear’ to the Court, which highlighted differences between the Applicant’s evidence and that of his sibling co-offender.[43] For example, the Applicant referred to an ‘impoverished’ childhood, his parent’s ‘additional employment as farmers…to assist with subsistence wages’, and that he worked since the age of 10 to support them.[44] The Court also referred to the Applicant’s claim that he was expected to be ‘a source of financial stability’ for his parents ‘as they grew older’.[45] The Applicant’s brother instead claimed their parents ‘retired from government positions’ and made ‘no similar reference to dire poverty’. He said his parents funding extra tutoring for him and a ‘long exchange program to the United States’.[46]
[42] Ibid 46 [20]-[21].
[43] Ibid 45 [12].
[44] Ibid 45 [12]-[16].
[45] Ibid 47 [23].
[46] Ibid 45-46 [17]-[19].
More recently, the Applicant told psychologist Mr Watson-Munro his father was a retired Army Officer, his mother a retired teacher, and his parents funded college-level business studies for him in Vietnam and then at an Australian university.[47] He claimed to have ‘finished’ an Advanced Diploma in Business Administration[48] and his parent’s support meant he did not need to work.[49] The Applicant has returned to Vietnam for three visits between 2018 and 2020, [50] which he claimed during the hearing he funded himself. In his statement for the current proceeding, the Applicant stated his father was ‘a soldier’ and his mother ‘worked as a high school teacher for 25 years’.
[47] Ibid 46 [19]; 328 [3].
[48] Ibid 81.
[49] Ibid 328 (3.).
[50] Ibid 99.
When asked why he did not ask Ms AA for financial support instead of committing crimes, the Applicant said he chose not to burden her when they were dating in 2020-2021 and claimed she was unaware of his offending. The Applicant claimed his ‘financial situation improved’ markedly after release on bail in late 2021 after finding a job as a barista. He and Ms AA began living together in December 2022,[51] which was about year after his release on bail.[52] He said it was at this point their relationship became more serious and a ‘new chapter’. Relatively soon after they started living together, the following occurred:
(a)The Applicant and Ms AA signed a contract on 26 May 2023 to purchase a two-bedroom unit in Melbourne.[53] The Applicant stated during oral testimony that Ms AA provided most of the $140,000 deposit, but he contributed $20,000 to $30,000 from his own savings. Ms AA initially claimed in her oral evidence that the Applicant made no contribution to the deposit. When referred to the Applicant’s contrary claim, she claimed he contributed to furnishings. The Tribunal notes the Applicant and Ms AA received a first home buyer’s concession by advising the State Revenue Office they would occupy the property from 28 August 2023 as their principal residence.[54] This was despite the need to accommodate two adults and Ms AA’s three children in this two-bedroom unit. In a statement dated 25 October 2023, however, Ms AA claimed her residential address was a four-bedroom property in a different suburb, which the Applicant has consistently used as his residential address in tax returns since 2019.[55] When asked about this the Applicant said his use of this address in tax returns was an oversight because he vacated the property in 2020. When signing a decade-long commercial business lease in 2024, Ms AA reported a different residential address in a different suburb.[56] When asked about this during the hearing, she claimed it is her mother’s residential address.
(b)On 5 June 2023, the Applicant applied for a Partner Visa with Ms AA as his sponsor;
(c)On 16 June 2023, the Applicant and Ms AA married;[57]
(d)On or about September 2023 the Applicant advised the Respondent he was withdrawing from studies in Australia. When asked during the hearing what course he withdrew from, the Applicant said it was a ‘cookery course’;
(e)On 15 December 2023, the Applicant’s BVC was cancelled following his convictions;
(f)In May 2024, about six months after the Applicant’s imprisonment and mandatory cancellation of his visa, Ms AA established a limited liability company[58] and signed a decade-long commercial lease at $55,000 annual rent for a new business. Ms AA’s oral testimony is that she has not previously been a company Director nor run her own business;[59] and
(g)The Tribunal notes a reference in custodial records dated late 2024 to a court-ordered Pecuniary Penalty requiring the Applicant to repay approximately $37,000 believed to be proceeds of crime.[60] When asked about this during the hearing, the Applicant agreed he owes this debt and intends repaying it if allowed to stay.
[51] Ibid 191 (second paragraph); Applicant’s SFIC 9, [26].
[52] Ibid 191(final paragraph).
[53] Ibid 307.
[54] Ibid 309.
[55] Ibid 55-56, 86, 204, 208, 211, 213, 221.
[56] Ibid 252.
[57] Ibid 86.
[58] Ibid 284.
[59] Ibid 252-253, 259.
[60] Exhibit R2, 10
The Applicant described his current financial situation as ‘relatively stable’, claiming:
(a)He has a superannuation fund in Australia but can’t recall how much.
(b)He hopes to be a barista in Ms AA’s café if released. When asked by Ms Xian about his expectations regarding income, the Applicant said it will be ‘the same or slightly higher’ than he was previously earning as a barista.
(c)The Applicant said he does not currently feel any financial pressure because there is no longer any need for him to financially support his parents in Vietnam. He said they both receive pensions and had ‘purchased a financial insurance policy to prevent hardship if it occurs again’. There is no evidence from the Applicant’s parents in this proceeding.
(d)When pressed by Ms Xian about his newer financial obligations in Australia, the Applicant agreed he has a mortgage to repay with Ms AA, which she estimates currently costs $2000 per month. The Applicant said he has not contributed to this since his imprisonment but intends doing so if released. When asked how much Ms AA’s commercial lease payments are for the café, the Applicant said she had not told him to ‘avoid pressure’ on him while imprisoned. She informed him ‘the business is going well’. The Applicant also does not know how much profit the café makes. When told that the annual lease repayments are $55,000 annually, the Applicant said he intends helping Ms AA with business costs if released and providing financially for her children. The Applicant said he did not help with her bills in the past until they started living together in December 2022.
(e)The Applicant claimed he and Ms AA have ‘extensively planned together’ to address financial obligations and he feels ‘things will be under control’. When challenged that his lack of knowledge about the café business cut across his claims about extensive planning, the Applicant responded inter alia:
My wife didn’t want to put too much on my mind in regards to the business… I know that the business is going well. When I asked her about it my wife responded ‘you don’t need to know about that’ – it’s under control…When I’m released, we would have a more in-depth plan. Currently I cannot think about those future financial responsibilities…but will do so once I’m released and faced them as a reality…The café has been running very smoothly and the income produced from it has been stable. Together with my wife we will run it and help increase productivity…I feel that I am very lucky that my wife is a very talented woman. She can run the café smoothly and care for the children. It's running so well to the point where my wife and I have shared a thought of perhaps buying another property because the current apartment we live in only has two bedrooms and buying another property which is more spacious would give more room for the children…we are very blessed that the cafe has given us all of these means and opportunity…I believe I’ll be able to control those responsibilities in future with my wife to assist me. I’d never resort to illegal activities in order to alleviate any burden...I’ve learned a very valuable lesson that I’ll carry for the rest of my life…I sincerely promise I would never commit a crime again. I would choose to engage in proper and legal employment and work hard to alleviate stress.
(f)Beyond assertion, there is no persuasive corroboration of the financial transformation the Applicant claims has occurred since his arrest or as a consequence of Ms AA’s relatively new café business.
Remorse
The Court noted the significant delay in the Applicant pleading guilty to his offending, but nevertheless accepted his plea indicated remorse.[61] The Applicant expressed remorse for his crimes during the hearing and has previously done so in documentary evidence.[62] Ms AA and several authors of supportive statements also refer to his contrition. Much of the remorse referred to in this matter relates to the impact of the Applicant’s offending on his plans for a future life in Australia with Ms AA.
[61] Exhibit R1, 47 [27].
[62] Exhibit A1, Applicant’s SFIC, 7 [18]-[19], 8 [24].
Rehabilitation
The Applicant has completed six-hour ‘Ice and Me’, ‘Cannabis and Me’ and ‘Alcohol and Me’ programs between January and May 2024.[63] He also completed two three-hour modules under the ‘Tuning Into Respectful Relationships’ program[64] and vocational education modules.[65] When asked why he undertook some courses, given that substance abuse and relationship issues are not relevant to his crimes, the Applicant said he wanted to ‘better understand the consequences drugs can have on people’.
[63] Exhibit R1, 293-295.
[64] Ibid 296.
[65] Exhibit R2, 67-68.
The Applicant has not completed courses or counselling relevant to better managing financial pressures but claimed he has ‘tried to read books on personal financial responsibility’. He said that ‘after today’s hearing’ he will ‘enquire about signing up for counselling’. The Applicant was asked about symptoms of depression and anxiety referred to by Mr Watson-Munro. He said there is no formal diagnosis and agreed that in November 2023 he declined a psychological treatment plan.[66] The Applicant said he was not yet ready at that stage to ‘open up and share [his] thoughts and feelings with others’. He is also yet to undertake the CBT recommended by Mr Watson-Munro but is open to engaging in psychological treatment upon release.
[66] Ibid 33, 35.
Risk
Mr John submitted that the Applicant’s character and ability to remain law-abiding was ‘tested in the community’ while on bail awaiting sentencing[67] and he ‘does not pose an unacceptable risk to the Australian community’.[68] A custodial risk assessment utilising the LSI/R:SV methodology rated the Applicant as a ‘Low’ risk of recidivism, with every assessment factor rated as ‘Low’.[69] This is inconsistent with a Parole Suitability Report in February 2024, which gave entirely different risk/need ratings.[70]
[67] Applicant’s SFIC, 5 [5].
[68] Ibid 8 [23].
[69] Exhibit R2, 17.
[70] Ibid 89, 92.
The Tribunal has considered a report dated 24 September 2024 from consultant psychologist Mr Tim Watson-Munro,[71] who was called as a witness during the hearing. Mr Watson-Munro’s evidence is summarised as follows:
[71] Exhibit R1, 321-329.
(a)Mr Watson-Munro assessed the Applicant via a telehealth consultation with the assistance of an interpreter.
(b)Mr Watson-Munro said the Applicant conveyed remorse and intends leading a prosocial life by securing employment and steering clear of adverse peers.
(c)Mr Watson-Munro said the Applicant was ‘depressed, anxious and financially pressured’ in the lead up to his offending:
He reported that his parents were also experiencing financial difficulties and he was anxious about them. Because of the pandemic, he lost his employment and was experiencing high stress concerning his capacity to care for his family. It was essentially against this backdrop of psychological turmoil that his judgement faltered, leading to his offending conduct.[72]
(d)Mr Watson-Munro said the Applicant has ‘no formal diagnosis’ of depression or anxiety but considers he would benefit from one-to-one psychotherapy involving a ‘combination of Cognitive Behavioural Therapy (CBT) and supportive and motivational psychotherapy’.[73] He said the Applicant would also benefit from a capable practitioner ‘overseeing his life for a while’.
(e)Mr Watson-Munro was unaware of the Applicant’s contact with his female co-offender, or that this person is Ms AA’s best friend, or that Ms AA was unaware of her friend’s involvement in the Applicant’s drug trafficking, or that the co-offender deposited significant amounts into the Applicant’s joint bank account. Mr Watson-Munro said this reflected obfuscation and a lack of honesty and communication in the Applicant’s relationship with Ms AA. He said the Applicant’s continuing association with the co-offender ‘is an issue’ and he would tell him ‘to cut off all contact – this needs to stop’.
(f)Mr Watson-Munro said there is ‘no ironclad guarantee’ regarding recidivism risk but the Applicant had expressed strong motivation not to reoffend. He believes the Applicant has better insight because of the salutary effects of arrest and imprisonment and is less vulnerable to adverse peers because of the protective effect of his marriage. He maintains his assessment that the Applicant’s recidivism risk is ‘trending from Medium to Low’.
[72] Ibid 324.
[73] Ibid 329 [5]-[6].
Protective factors

Pursuant to cl 8.1.2(2)(c) of the Direction, although the BVC cancelled in this matter is a short stay visa, it is clear the Applicant wants to remain permanently in Australia. This follows from the Partner Visa application he made in June 2023 with Ms AA as his sponsor. In terms of protective factors, the Applicant invokes salutary lessons learned since arrest, courses undertaken, support from Ms AA and friends,[74] and the prospect of working as a barista in Ms AA’s café. When challenged by Ms Xian that he offended despite being in a relationship with Ms AA, the Applicant said it was different now because they had entered a ‘new chapter’ in their relationship since December 2022. During closing submissions, Ms John advanced for the first time that the Applicant would be subject to parole conditions if released, requiring him to comply with reporting and other obligations. This is not referred to in the Applicant’s SFIC and there is no corroboration about what if any conditions the Applicant might be subjected to if released on parole.[75] Custodial officers noted between 18 November 2024 and 9 February 2025 that the Applicant’s parole status is uncertain. The first report said his ‘parole is linked to his immigration status’ and the Applicant preferred to ‘serve his parole time in immigration detention’.[76] Another custodial record dated December 2024 recommends that a condition of parole is that the Applicant reside at a Detention Centre rather than in the community.[77]
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: Tribunal findings
[74] Ibid 96-98; Exhibits A2 – A8.
[75] Exhibit R1, 84.
[76] Exhibit R2, 11, 13.
[77] Ibid 100.
Harm
Trafficking illicit drugs has an adverse, pervasive effect on the community. Seizures of cannabis have increased substantially over the last decade and, in 2022-2023, it was the third most common drug people received treatment for[78] and the second most detected.[79] Physical and / or psychological harm can result to users of cannabis, including as a pathway to harder drugs.[80] Families and broader society bear these costs, which result from the nexus between addiction and other crimes, involvement of police, courts, and other agencies, and the potential for direct harm such as when someone drug-affected operates a vehicle.
[78] Australian Institute of Health and Welfare, ‘Alcohol, tobacco & other drugs in Australia, Cannabis’, (25 February 2025), < cannabis> (AIHW Report).
[79] Respondent’s SFIC, 11 [33]. Reference is made to the 2020-2021 Illicit Drug Data Report, which found that of 42,608 tests conducted that year, cannabis was detected in 40% of tests performed and was only behind amphetamine / methylamphetamine at 53%.
[80] AIHW Report.
Remorse, rehabilitation and motivation
The Tribunal accepts the Applicant is remorseful, but his oral evidence often centred on the personal effects of visa cancellation rather than the harm caused by his drug trafficking.
In terms of rehabilitation, the drug, alcohol, and relationship programs completed by the Applicant are of indirect relevance given that addiction or relationship issues are not contextually relevant to his crimes. Of greater relevance to the claimed motivation for his crimes is rehabilitation relevant to dealing with concurrent financial stressors, which he is yet to do. The Applicant is also yet to undertake the CBT recommended by Mr Watson-Munro, having declined to attend psychological programs in prison. He is willing to do so if released. Decisions should not be delayed, however, for rehabilitation to be undertaken.[81]
[81] The Direction, cl 8.1.2(2)(b)(ii).
The Applicant’s unmet rehabilitative needs diminish the persuasiveness of his claims about insight and risk. His release into the community would confront him with financial pressures that include repayment of a pecuniary penalty, a mortgage, and assisting Ms AA with business and family living expenses. He has a limited understanding about the scope of these obligations and does not convey a persuasive plan about better dealing with financial pressures in future. There is also no evidence to corroborate the Applicant’s and Ms AA’s assertions about business success and considerably improved financial position. The Applicant’s past declared income is quite low and in oral testimony he stated that he expects to receive about the same or perhaps a little more as a barista if released. His ability to deal with financial obligations is yet to be tested.
It is difficult to accept the Applicant’s claimed financial motivation for his crimes on his word alone. There is no evidence from his parents about the effects of COVID or extent of their financial reliance on him, or to confirm that their financial position has stabilised. The Applicant’s claimed motivation sits uneasily with a failure to seek financial assistance from Ms AA, his purportedly wealthy co-offender, or from other sources instead of committing crimes. The significant investments he and Ms AA have made since his arrest and imprisonment also cut across his claimed financial motivation. Without more than assertion, the Tribunal is unable to reconcile how someone on a Student Visa, who was financially reliant on his parents, with only modest work as a barista earning $17,000 - $26,000 per annum between 2017 and 2023,[82] and who became unemployed during the COVID pandemic, could provide around $100,000 of financial assistance to his parents, contribute $20,000 to $30,000 towards a property purchase while on remand, and transform his purportedly dire financial situation in such a short time. The Tribunal would have been assisted by probative evidence relating to his and Ms AA’s financial position, statements from his parents, and other corroboration. The Tribunal was left with the impression that the Applicant’s evidence about the motivation for his offending, and his / Ms AA’s financial position, was not entirely forthright.
[82] Exhibit R1, 194-225.
The Tribunal found other aspects of the Applicant’s and Ms AA’s evidence opaque. They have not been entirely candid with each other about: large cash deposits into their joint account by the Applicant’s co-offender; the costs of establishing and operating Ms AA’s café; who the father of Ms AA’s youngest child is and the regular visitation that occurs between father and child; and the involvement of Ms AA’s best friend in the Applicant’s drug trafficking purportedly without Ms AA’s knowledge. Examples of evidence that the Tribunal found difficult to accept on assertion alone includes:
(a)Ms AA registered a company as sole Director and established a new business within months of the Applicant’s imprisonment. In her statement dated 29 October 2024, Ms AA said that prior to meeting the Applicant she ‘lived alone and struggled to raise [her] children’.[83] The Applicant referred to her as a ‘single mum for more than 10 years’[84] Mr Watson-Munro recorded Ms AA’s claim that she worked for three years in ‘cleaning and sales’.[85] In oral evidence Ms AA claimed she did other work in a factory, café, and franchise restaurant. She has never previously been a Company Director, run her own business, or owned realty. Yet soon after purchasing a property with the Applicant during his bail, she signed a decade-long commercial business lease at a starting rent of $55,000 per year with rising annual increments of 3%.[86] She also undertook a fit out of the business and provided a security deposit of $15,000. There is no reliable corroboration about how she afforded this or what income is derived from the café. Ms AA’s evidence about her mother’s assistance is uncorroborated by a statement from her mother.
(b)The Applicant’s co-offender and other persons deposited significant cash sums into a joint account operated by the Applicant and Ms AA.[87] Some of these transactions are listed as ‘Gift’. Ms AA explained that she received multiple cash payments between $10,000 and $20,000 from family and friends for a property purchase, which she asked the Applicant’s co-offender and others to deposit because she is ‘too busy’. Ms AA said some transactions are listed as ‘Gift’ so that those depositing the money cannot subsequently claim it is a loan. When asked why the those who provided the cash didn’t deposit it themselves, Ms AA’s responses did not meaningfully assist the Tribunal. The Applicant said he was unaware of these cash payments into his account, including from his co-offender, and why some are listed as ‘Gift’. He claimed: ‘All these financial matters are handled by my wife…My wife is the person who handles all the big financial decisions’. There is no evidence from the people who provided these funds or made these deposits. When put to the Applicant it was implausible he would have no personal knowledge of significant financial transactions into his account, he insisted that he did not put ‘much thought into keeping track of what these payments are’.
(c)In terms of the Applicant’s claim to Mr Watson-Munro that he intends ‘steering clear of adverse peer group dynamics’, this is not borne out by the evidence. He previously referred to strong ties to his brother in Australia,[88] but claimed at the current hearing they have drifted apart. The Applicant retains close links with his female co-offender, who Ms AA described as her best friend from a ‘wealthy family’ in Vietnam and a ‘close friend’ of the Applicant. The Applicant accepted in oral evidence that maintaining contact with his co-offender adversely impacts his case but said she has completed her sentence and is trying to re-build her life. The Applicant expressed an intention not to have contact his co-offender ‘from this point forward’, but Ms AA said she intends maintaining this friendship.
[83] Ibid 192 (second paragraph).
[84] Ibid 74, 191 (second paragraph).
[85] Ibid 325.
[86] Ibid 252, 275-276.
[87] Ibid 312-313, 315-316.
[88] Ibid 185 [20].
Risk
In terms of recidivism risk, the Tribunal prefers Mr Watson-Munro’s assessment to the custodial records. This is because of significant differences in the assessment of risk / need factors in the custodial records. The Tribunal accepts Mr Watson-Munro’s reference to the Applicant’s compliance with bail conditions for an approximately two-year period in 2022 and 2023. A period of conditional liberty, however, is a contextually different situation to complete freedom in the community. The Applicant would continue to have significant financial obligations if released yet displays a limited understanding about this. His rehabilitation, including in better managing financial stress and the CBT recommended by Mr Watson-Munro, is yet to be undertaken. His plans for doing so are general at best and he has declined to meaningfully advance this while in custody. In terms of protective factors, the Applicant’s ‘more serious’ relationship with Ms AA is relatively short-lived and reflects a continuing lack of candour. Moreover, this relationship and past employment did not prevent him committing serious crimes, including with Ms AA’s best friend purportedly without her knowledge. Ms AA’s intention to remain best friends with the Applicant’s co-offender only adds to the Tribunal’s concerns.
Tribunal conclusion on risk
The Applicant constitutes a moderate risk of reoffending and causing harm to the community. When the serious nature of his crime is coupled with a moderate recidivism risk, which could cause significant harm to the community, this primary consideration weighs substantially against revocation.
FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
There is no evidence that the Applicant has committed family violence 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)   Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)    how long the non-citizen has resided in Australia, including whether the
non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Strength, nature, and duration of ties in Australia: Tribunal consideration
The Applicant has resided in Australia for approximately eight years since November 2016, having arrived as an adult when he was approximately 22 years of age. In terms of positive contributions, he claims to have undertaken university studies and later completed an Advanced Diploma of Business Administration with a Registered Training Provider.[89] There is no independent corroboration about the extent of his past studies except for vocational courses completed while imprisoned. The Applicant also refers to consistent employment in documentary evidence between August 2017 and October 2023,[90] although in his oral evidence referred to periods of unemployment. The Tribunal notes tax returns disclosing that he paid tax on declared income ranging from $11,000 to $26,000 annually from 2017 until 2023, predominantly for work as a barista.[91] The Applicant also claims to have volunteered at a ‘Temple’[92] but there is no independent corroboration of this.
[89] Ibid 81.
[90] Ibid 82.
[91] Ibid 194-225.
[92] Ibid 82.
The Applicant’s involvement in drug trafficking occurred in 2021, which is about five years after arriving in Australia. His younger brother and Ms AA’s best friend were co-offenders.[93] The Applicant has previously referred to a continuing strong relationship with his brother[94] but stated in oral testimony they have drifted apart. He believes his brother is still in Australia but precluded from departing because of his crimes. He claimed not to currently be in contact with his brother. In her oral evidence Ms AA said that when she and the Applicant started living together in December 2022, his brother stayed with them at times.
[93] Ibid 74, 76, 79.
[94] Applicant’s SFIC, 9 [29], [32].
The Applicant wants to remain permanently in Australia with Ms AA who is an Australian citizen.[95] He said a non-revocation decision would cause her stress and sadness.[96] At the commencement of her oral testimony, Ms AA adopted her letters dated 25 October 2023 and 29 October 2024 as true and correct.[97] In oral evidence, Ms AA said she came to Australia with her parents and her entire family now live here. Her father is dead, but her mother, who Ms AA said has experience running cafés helps her. There is no statement from Ms AA’s mother. Ms AA’s eldest son also assists with the café and helps care for the younger children. Ms AA said the Applicant is unable to provide financial support because of his circumstances and was not involved in establishing the café. She said the business is ‘running smoothly’ and making a good profit. She claimed to have taken out ‘business insurance’ and currently employs three staff. One is fulltime, two are part-time, and one is a barista. Ms AA said she nevertheless finds life without the Applicant difficult, including the concurrent pressures of looking after three children and managing a new business. Ms AA contextualised the support she needs from the Applicant as ‘emotional, spiritual, and as a barista – not financially’. She envisages his ‘primary role’ will be as ‘Head Barista’ and believes family are more loyal and committed than other employees.
[95] Exhibit R1, 93.
[96] Ibid 67-68.
[97] Ibid 94-95; 191-193.
In terms of their romantic relationship, both Ms AA’s and the Applicant’s evidence was somewhat different to their documentary claims. Ms AA said she started going out with him ‘near the end of 2020’ and for the next two years they got to know each other but ‘nothing was concrete’. It was not until she and the children moved in with him in December 2022[98] that Ms AA said they ‘entered a new chapter’ in their relationship. They married on 16 June 2023[99] while the Applicant was on bail, which was approximately five months prior to his sentencing. Ms AA and her children have therefore been immediate family members of the Applicant for a relatively short time. Ms AA said that after the Applicant was arrested, she knew he had ‘done something wrong’ but claimed not to ‘remember any of the details’ and it was not until his court appearance some two years later that she ‘specifically’ discovered what his crimes were. She said the Applicant ‘didn’t like talking or mentioning that topic’ because ‘it could lead to an argument’. Ms AA also claimed she was unaware that her best friend was the Applicant’s co-offender in the drug trafficking enterprise. It was only after the Applicant’s arrest that she discovered this. She is still best friends with the Applicant’s co-offender, however, because they cannot ‘reverse the past’ and the co-offender has not harmed Ms AA or her family, so she doesn’t want to hold that against their friendship.
[98] Ibid 191.
[99] Ibid 86-87.
The Applicant said in oral testimony there is nothing preventing Ms AA from accompanying him to Vietnam if she wishes, but her family and business interests are here, and the children have only ever been to school in Australia. He would not ask Ms AA to make this sacrifice. The Applicant agreed they could maintain telephone / digital contact, but said this would ‘never equate’ to being together in Australia. Ms AA’s evidence is that in the event of non-revocation, she and her children would not accompany the Applicant to Vietnam because they have an established life in Australia.
The Tribunal has considered Mr Watson-Munro’s references about Ms AA in his report. He noted she ‘has no history of major psychiatric disturbance’ but would be ‘deeply affected’ if the Applicant is deported, ‘has a strong psychological reliance’ on him, and it ‘would be impossible for her to relocate to Vietnam’ given her life in Australia.[100]
[100] Ibid 326.
In terms of friends in Australia, character references were lodged in support of the Applicant. Two brief and unsigned references were filed in the context of his criminal trial.[101] Both refer to knowing the Applicant for about a year in a work context and variously attest to his ‘coffee-making skills’, ‘professional working attitude’, ‘good qualities’, remorse, and honesty. Both authors refer to the Applicant’s offending as out of character. Six references dated between 3 and 10 February 2025 were lodged for the current proceeding.[102] The Applicant’s oral evidence about these references is summarised as follows:
(a)The author of Exhibit A3 is a friend of Ms AA and the Applicant only got to know this person after his relationship with Ms AA commenced. The Applicant engaged with this person through an online social network group of international Vietnamese students in Australia.
(b)The author of Exhibit A4 is a former café co-worker. Their only association was at work and the Applicant has not spoken with this person since 2023.
(c)The author of Exhibit A5 is a female friend of Ms AA. The Applicant could not recall how they became acquainted but believes it was prior to meeting Ms AA. The Applicant has not spoken with the author of Exhibit A5 since 2023 but considers her a close friend. When asked why the author of this statement uses the residential address that the Applicant consistently used in tax returns since 2019, the Applicant said he had been ‘too busy’ and ‘mistakenly forgot to update [his] address’.
(d)The author of Exhibit A6 is a female member of a ‘barista group’ the Applicant was a part of. He has known this person ‘perhaps from the 2018-2019 to up to 2020 time period’ but has not spoken with them since ‘around 2023’.
(e)The author of Exhibit A7 is a friend of the Applicant’s parents in Vietnam. The Applicant has not spoken with this person since 2023.
(f)The author of Exhibit A8 is the Applicant’s cousin from Vietnam who now lives in Australia. The Applicant said this cousin visited him in prison about a week ago.
[101] Ibid 96-97.
[102] Exhibits A2-A8.

When asked how it was that people he had not spoken to since 2023 lodged supportive statements, the Applicant stated Ms AA organised this. The Applicant said he had ‘not been very proactive in reaching out and keeping contact with them’.

Aboriginality

Even if an applicant makes no submissions about Aboriginality, nor advances any connection to the Australian Aboriginal community, this is no longer the end of the matter. Justice Feutrill held in Brownlie[103] that neither the absence of an express representation nor materials disavowing the relevance of this consideration are determinative. The applicant in Brownlie was born in Wales and expressly stated he did not identify as an Aboriginal or Torres Strait Islander person. No claims about Aboriginality were advanced by the Applicant or his barrister during the hearing. His Honour noted at [80] of Brownlie:
There is no reference to indigenous heritage or identification as Aboriginal person. Indeed, under Citizenship Details ‘No’ is circled in hand writing in response to the question ‘Do you identify as Aboriginal or Torres Strait Islander? Similarly, in the applicant’s application in the Tribunal for review of a decision ‘No’ is written in a box under the question: ‘Are you of Aboriginal or Torres Strait Islander origin?
[103] Brownlie vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 436 (‘Brownlie’).
In quashing the Tribunal’s decision, however, his Honour held that decision-makers are required to search for a connection to Aboriginality that may be ‘unarticulated but manifest from the materials before the Tribunal’.[104] The Tribunal is obliged to follow his Honour’s decision in Brownlie, which requires detailed review of the evidence to identify any conflict between the applicant’s express non-identification as Aboriginal and contrary unarticulated representations or ‘integers’.[105] His Honour held that failing to do so is sufficiently material to constitute jurisdictional error.
[104] Brownlie, [101].
[105] Brownlie [50], [54], [102].
The Applicant responded ‘No’ to a question asking if he is of Aboriginal or of Torres Strait Islander origin.[106] Neither the Applicant nor Mr John advanced Aboriginality claims.
[106] Exhibit R1, 3; 59.
Tribunal findings: Strength, nature, and duration of ties in Australia
The Applicant arrived in Australia on 2 November 2016 when he was 22 years of age and has departed / returned on three occasions since. His offending did not occur soon after arriving in Australia such that less weight should be given to this primary consideration pursuant to cl 8.3(2)(a)(i) of the Direction.
There is no persuasive basis to establish that the interests of the Applicant’s brother fall within cl 8.3(1) of the Direction. There is no evidence from him, and the Applicant claims they drifted apart some time ago. The brother’s interests are not further considered.
Ms AA’s decision not to accompany the Applicant if he is removed to Vietnam would be a difficult but ultimately personal decision. A non-revocation decision would confront her with emotional, practical, and perhaps financial consequences to consider. It is noteworthy that since they started living together in December 2022, Ms AA married the Applicant, purchased a residential property with him, sponsored his partner visa, registered a company as sole Director, and signed a decade-long commercial lease to start a new business. These events occurred either while the Applicant was on bail or after his sentencing and imprisonment in late 2023. She made significant life and financial decisions while aware of the possible criminal and visa consequences confronting him. The Tribunal accepts there are negative emotional, practical, and financial impacts on Ms AA that would result from a non-revocation decision. This includes loss of opportunity for the Applicant to contribute to her household and business. It is noteworthy, however, that the Applicant’s and Ms AA’s relationship only became more serious from December 2022 – around a year prior to the Applicant’s imprisonment. On her evidence, Ms AA has handled significant financial investments and pressures capably, including by establishing a new company and operating a new business successfully without the Applicant’s involvement.
The supportive statements in evidence are quite brief, general in nature, and most are based on a relatively limited association with the Applicant that post-date his crimes. The Applicant’s offending is either not referred to in these statements or only in a general way. The authors of these letters were not called to give evidence and it is difficult to discern from their statements alone if the author’s interests fall within cl 8.3(1) of the Direction. The Tribunal is unpersuaded that the effect on supportive friends who may fall within the meaning of the Direction rises any higher than sadness or disappointment.
The Tribunal accepts that the Applicant has made some positive contribution while living in Australia through study, his relationship with Ms AA, employment, and perhaps some community involvement. Weight is attributed to this positive contribution.
The Tribunal was unable to identity other integers or references in the materials that may raise an unarticulated case to the effect that the Applicant identifies as an Aboriginal Australian with ties to the Australian Aboriginal community.
The Applicant’s connection to the Australian community is not particularly long or strong and is limited to Ms AA, her three children, and a small number of friends. In the latter case he has not spoken with most of them since 2023. On balance, this consideration weighs no more than moderately at best in favour of revocation.
BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Clause 8.4 of the Direction requires decision-makers to determine whether the best interests of minor children in Australia are served by grant or refusal of the visa.[107] It is generally for an Applicant to ‘identify the personal facts and circumstances relevant to the decision’,[108] including the existence of any minor children whose best interests may be affected by the decision. This primary consideration applies only if the child is, or would be, under 18 years old at the time the application is decided. If there are two or more relevant children, the best interests of each affected by the decision should be given individual consideration, to the extent their interests differ. In considering the best interests of the child, the following factors must be considered where relevant:
a.     the nature and duration of the relationship between the child and the non‑citizen. Less weight should generally be given where the relationship is non‑parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b.     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c.     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d.     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e.     whether there are other persons who already fulfil a parental role in relation to the child;
f.   any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g.     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h.     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
[107] Spruill v Minister for Immigration and Citizenship [2012] FCA 1401, [18]; RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 365, [44].
[108] Ismail (n 126), [23]; Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at 221 [61].
Best interests of minor children in Australia: Tribunal consideration
The Applicant invokes the interests of Ms AA’s three children, who are 6, 9, and 15 years of age.[109] They are Australian citizens and Ms AA claims they have three different biological fathers.[110] The Applicant claimed during oral evidence he does not know who the fathers of the children are and had not discussed this with Ms AA. He also does not know if the children’s fathers provide any support. When asked about the birth certificate of the youngest child in evidence, and that the father’s name shown is the same person who lodged a supportive statement for him in this proceeding, the Applicant claimed to be unaware this person is the child’s father.
[109] Ibid 75-76.
[110] 88-92, 326 (first paragraph).
The Applicant referred in documentary evidence to helping the children with homework, playing games, taking them swimming, and listening to their aspirations. It is submitted he is not only a good father, but was ‘instrumental’ in the children’s upbringing’, ‘provides vital care and support’, and his absence ‘would significantly impact [their] development, and psychological and physical health’.[111] It is also submitted the Applicant is ‘essential to the sustenance and livelihood’ of the children, such that this primary consideration carries heavy if not determinative weight in favour of revocation.[112] The Tribunal has considered undated, handwritten letters from the Applicant’s stepson who is a secondary school student[113]. He refers to the Applicant as a ‘best friend’ who has alleviated the burden on Ms AA, and states for the ‘first time’ in his life he has ‘felt love and care’ in a paternal sense and that their family will not be ‘as happy as before’ if the Applicant is removed. This teenage child was not called as a witness.
[111] Ibid 186 [22]-[24]; Applicant’s SFIC, 10-13 [36]-[48].
[112] Exhibit R1, 187 [33]; Applicant’s SFIC, 13 [48].
[113] Exhibit A2.
Ms AA initially claimed in oral evidence that she and the children have no contact with their biological fathers and the Applicant is the only father figure they know.[114] Mr Watson-Munro stated in his report after interviewing Ms AA:
She reported that her three children are to three separate fathers. The children have no contact with their natural father…She notes that her two youngest children believe that Mr Ngo is their biological father…
[114] Exhibit R1, 326 (first paragraph).
Ms AA’s evidence changed during cross-examination when referred to the father’s named on her youngest child’s birth certificate.[115] This is the same name as a person who wrote a supportive letter for the Applicant in the context of an employer-employee relationship.[116] No reference is made in the letter, however, to the author’s parental role with Ms AA’s youngest child. Ms AA conceded that her youngest child’s biological father sees the child weekly under a cooperative agreement. When challenged about this inconsistent evidence, Ms AA obfuscated, variously claiming she misunderstood the question was about whether she personally had any contact with the child’s father, and that she wanted to have ‘minimal contact’ with this person after her marriage to the Applicant.
[115] Ibid 92.
[116] Ibid 97-98.
The Applicant relied a journal article titled: ‘The Psychosocial Impact of Detention and Deportation on U.S. Migrant Children and Families’.[117] No reference to it was made during the hearing and only passing reference in closing submissions. The Tribunal inferred that general principles of family unity are being invoked consistent with the United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (the CROC).[118] The Tribunal notes Australia is a signatory and reference is made in the Applicant’s SFIC to Article 3 of the CROC as follows (footnotes removed; errors in original):
36. When considering the “best interests of the child”, it is an undisputed fact that the children need parents. The applicant has been a good stepfather. There is no evidence to the contrary. In the cases of Wan v Ministe and Vaitaiki v Minister, the Full Court observed that “the question which the Minister was required to answer was what the best interest of the children required it to decide with respect to the proposed deportation of their father, not what the children should do given that their father would be deported”.
37.The applicant is very close to his children. He is a vital source of fatherly love for the children. The applicant provide much-needed care, love and emotional support which is the right of every child and which was lacking in the children's lives.
38. Article 3 of the CROC states:
39. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
40. In the present case, the applicant is a stepfather, but he is a very caring and loving stepfather who caters for all the basic needs of the children and provides love, and emotional support which is fundamental pillar of children’s growth. He took them out for swimming and outdoor activities.
41. The children's best interests would not be served if the applicant were to be removed from Australia. There are no allegations of any family violence towards any member of the family. If the applicant is forced to cease living in Australia, alternative communication methods such as telephone or video calling would not be practical. They have been recognised by the Tribunal as “not [offering] a practical solution that would be in the best interest of the children and their development”.[119]
[117] Exhibit A9.
[118] Exhibit R1, 186-187.
[119] Applicant’s SFIC, 10-11.
Best interests of minor children in Australia: Tribunal findings
The High Court held in Plaintiff M1/2021 that decision-makers are not required to consider Australia’s obligations under the CROC or the consequences of non-compliance.[120] That said, the best interests of children are already a primary consideration under the Direction, which is consistent with Article 3 of the CROC. This is clear from the use of imperative language (‘must’) at cl 8.4(1) of the Direction. More broadly, Article 12 of the CROC is reflected in cl 8.4(4)(f) of the Direction and the Applicant has relied on letters written by the eldest child. In terms of Article 9, the children are not the subject to State action to remove them from the care of their parents. Moreover, Australian courts have held that Article 9 does not apply in circumstances where a parent is deported and ‘does not impinge upon the right of a State to deport the parent of a child’.[121]
[120] NRFX vMinister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 187 [7] (Collier, Derrington and Downes JJ).
[121] Sundrampillai v Minister for Immigration, Local Government and Ethnic Affairs (1992) 29 ALD 479, 485 (French J, as his Honour then was); Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409, 432 (Carr J); Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 288-289 (Mason CJ and Deane J).
The journal article relied upon by the Applicant[122] is over a decade old. The American context and examples of family separation used are inapposite to his circumstances. It is noteworthy Ms AA was aware of the Applicant’s situation when their relationship became more serious in late 2022. They decided to marry while he was on bail, only months before sentencing, and with likely impacts on his liberty and ability to remain in Australia.
[122] Exhibit A9.
The Applicant’s stepson is three years from adulthood. Their relationship is relatively brief and contextualised by a long period of absence. That said, this child is the most mature of the three children and he has directly expressed his views in letters. Unsurprisingly, there is no evidence from the two younger children about the likely effect of continuing separation from the Applicant. They are quite young. The claims advanced regarding the Applicant’s past relationship with them, however, is pitched at a high level of generality. The Tribunal found some of the evidence overstated, including that he has played an ‘instrumental’ role in bringing the children up and is ‘essential’ to their ‘sustenance and livelihood’. There is also no expert corroboration for the claim that his removal to Vietnam would ‘significantly impact’ the children’s ‘psychological development and physical health’. Any parental role since he started dating Ms AA and then living with her in December 2022 is limited in nature. He spent about a year living with the children prior to imprisonment in November 2023, but their relationship has since been contextualised by a long period of absence and limited meaningful contact. The different residential addresses nominated by the Applicant and Ms AA raises questions about the precise extent of their time together as a family.
Ms AA has been primary carer for her children for a decade prior to meeting the Applicant. The references to him playing a prominent paternal role are somewhat aspirational. He has been a poor role model while in a relationship with Ms AA by trafficking drugs with Ms AA’s best friend and dealing with proceeds of crime. His unmet treatment needs and recidivism risk raise questions about the extent to which he can play a positive parental role. There is no expert evidence about the effects of continued separation on the children. There appears to be no impediment to their relationship continuing through visits and digital means as it has since his imprisonment in 2023,[123] although this is a lesser alternative to close contact in Australia. A new factor to consider is Ms AA’s disclosure about the involvement of her youngest child’s biological father, which cuts across earlier claims about the extent of the Applicant’s paternal role and clearly erroneous contention that the Applicant is the only father the two younger children have ever known. The Tribunal accepts that Ms AA does not intend to accompany the Applicant to Vietnam if he is removed, which is a very difficult but ultimately personal choice.
[123] The Direction, cl 8.4(4)(d).
The individual interests of the Applicant’s stepchildren cannot be reliably differentiated on current evidence. The Applicant would have a longer time to play a parental role for the younger children than the teenager approaching adulthood, although it remains unclear how the youngest child’s biological father may feel about this. On balance, revocation is in each of the children’s best interests, but this is contingent on the Applicant remaining law-abiding and addressing his unmet treatment needs. On the best reading of the evidence, this primary consideration weighs no more than moderately in favour of revocation.
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:
In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a)acts of family violence; or
b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)worker exploitation.

Clause 8.5(3) of the Direction provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Clause 8.5(4) of the Direction provides that 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 imputing the community’s expectations in a particular case. This correlates with the reasoning in FYBR[124] where the plurality held that this primary consideration is a deeming provision with normative principles, attributing to the community an expectation that aligns with the executive government. 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] The High Court refused an application for special leave to appeal from the orders in FYBR.[126]
[124] FYBRv Minister for Home Affairs (2019) 272 FCR 454, 471–2 [66] (Charlesworth J), 476 [91] (Stewart J) (‘FYBR’).
[125] Ibid 473 [75]–[76] (Charlesworth J).
[126] FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
More recently in Ismail, the High Court stated the following about this primary consideration, albeit in the context of an earlier but comparable Direction:
Further, para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision-maker must attribute to that hypothesised community knowledge of the personal circumstances of the applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision-maker is to proceed on the basis of the Australian Government’s views as set out in para 8.4 “without independently assessing the community’s expectations in the particular case”.
Paragraph 8.4(4) is to be understood as directing the decision-maker not to attempt to infer what the expectations of the Australian community would be “in the particular case” (that is, with the knowledge of the delegate about the applicant’s personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)-(3) are the relevant norm described as the expectations of the Australian community. That norm, as applicable by reference to the terms of para 8(1)-(3), is then to be weighed with other relevant matters as required by paras 6 and 7 of Direction 90. The delegate’s reasoning accords with these requirements.[127]
[127] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 417 ALR 36, [51]-[52].
His Honour Justice Snaden has relevantly observed that the Direction (emphasis added):
…by its terms, it does no more than to express propositions at a broad or general level. It reserves for individual decision makers the responsibility for determining, first, what weight should be attributed to relevant considerations; and, second, whether they might, once properly weighed, be thought to accumulate in any given case to a point that bespeaks “another reason” for the purposes of s 501CA(4)(b)(ii) of the Act.
…
Direction 99 directs a decision maker to take account of what is stated to be, as the norm, an expectation on the part of the Australian community that non‑citizens who have engaged in serious conduct in breach of Australian laws will not be permitted to enter or remain in Australia. That consideration—that is to say, the standard or “norm” expected by the Australian community as a whole—is just that: a norm. In understanding that norm, the direction contemplates that decision makers should proceed without any independent assessment of community expectation. Nonetheless, if there are, in any given case, circumstances that warrant that limited weight or significance should attach to the “norm” so expressed, then that is a course that a decision maker can prefer without any risk of non-compliance with Direction 99.[128]
[128] WVJB v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 320, [23], [28].
Expectations of the Australian community: Tribunal consideration
The following is advanced on the Applicant’s behalf (errors in original):
Expectations of the Australian community - Direction 110, par. 8.5
49. The applicant accepts that the expectations of the Australian community will generally weigh against an applicant. However, it is contended his overall lack of criminal conduct in his life, and his ‘from moderate to trending towards low risk of re-offending, and where there is an Australian citizen partner and his stepchildren, and friends who will be deprived of the applicant’s presence in the event of removal, this factor should not weigh heavily against the applicant.
50. The applicant has spent over 9 years in Australia. He has been incarcerated since November 2024. Since his arrival in Australia in November 2016 to November 2024, the applicant was living and contributing positively to the community other than a short period of time between March 2021 and October 2021, where he deviated from the path of a law-abiding citizen into a criminal. The principals outline in direction 110 para 5.2 (5) states that the tolerance of any criminal or other serious conduct by visa applicants is low if they are here for a short period of time. The applicant has been living here not most of his life but for a significant period of time.
51. The applicant has not committed a crime of the nature enunciated in para 5.2 (8) and primary consideration 8.1.1 of the ministerial direction 110. The offending is not very serious though it is serious. The countervailing considerations of the rights of the children and wife and his ties to Australia when compared with the nature of the offence, weigh in favour of revocation. There is no evidence of any dissemination of the cannabis to the community. There is no evidence of actual harm to any member of the community though the applicant accepts that his conduct is harmful to the community.
52. The applicant has made significant and serious efforts to learn about his behaviour and mend his ways. He has done various courses while incarcerated about understanding drugs and alcohol to improve not only his understanding but how the drugs are harmful to the community (G2-293 to 305). This reduces his risk of reoffending.[129]
[129] Applicant’s SFIC, 13 [27].
The Respondent submitted that, consistent with High Court authority, the Tribunal should not infer the expectations of the Australian community based on the Applicant’s personal circumstances.[130]
[130] Respondent’s SFIC, 20 [70]-[71].
Expectations of the Australian community: Tribunal findings
To the extent that the Applicant invites the Tribunal to infer for itself the expectations of the Australian community, based on the specific circumstances of his case, the Tribunal declines to do so.
Having regard for the framework principles and norm described as the expectations of the Australian community, it is clear the Applicant has breached the reasonable expectation that non-citizens will abide by the law, respect important institutions, and not engage in conduct harming others. He should expect to forfeit the privilege of staying in Australia.
This primary consideration weighs substantially against revocation.
OTHER CONSIDERATIONS
Legal consequences of the decision
The Applicant did not advance any claims about cl 9.1 of the Direction[131] nor is the Tribunal able to discern material relevant to protection claims or non-refoulement obligations. It follows that this aspect of the consideration is given neutral weight.
[131] Applicant’s SFIC, 14 [54]-[57].
For completeness, the Applicant’s convictions in November 2023 resulted in visa cancellation, which rendered him an unlawful non-citizen within the meaning of s 14 of the Act. The legal consequence of a revocation decision is that his BVC would be restored, and consideration of his Partner Visa application reinstated. A non-revocation decision would result in the Applicant remaining in custody until he is either removed or granted a visa.[132] There is no evidence that the grant of another visa is in prospect or that his removal to Vietnam is not reasonably practicable. The branches and sequels of future events are irresoluble.[133] For example, the Applicant would have judicial appeal rights that he may wish to pursue in the event of non-revocation. He might also decide to seek an exercise of non-compellable ministerial discretion or voluntary removal, again noting there is no evidence about what he may do. In any event, the Tribunal need not speculate, and the reasoning of Justice Flick is respectfully adopted in this regard (emphasis added):
But these are all decision to be made and — if necessary — reviewed at some point of time in the future. The prospect that future decision‐making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment…for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised — and was in fact exercised — by reference to the facts and circumstances then prevailing.[134]
[132] The Act, s 196.
[133] BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199.
[134] Ali v Minister for Immigration and Border Protection [2018] FCA 650, [33] (Flick J).
Impact on Australian business interests
Clause 9.3 of the Direction states:
(1) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Impact on business interests: Tribunal consideration
The case advanced by the Applicant about this consideration follows (errors in original):
The applicant's wife has started a coffee shop business [name redacted] in May 2024. Currently applicant's wife is running the coffee shop, but she bought with the hope that applicant would be able to get a second chance and work with her. The applicant is professional barista and have had many years of experience in the hospitality industry. He has been making Coffees during his time in custody for the prison officers as well as for the inmates.
The sponsor is working early morning to late hours in the shop, and she need the applicant to support her in this business. The small business are the backbone of Australian economy and the applicant, and his wife are entrepreneur people who have taken the step and business is doing well. This factor weighs in the favour of the applicant to revoke the revocation.
This aspect of the Direction requires the Tribunal to consider ‘any impact’ on Australian business interests arising from non-revocation and not just those that affect the delivery of a major project or delivery of an important service in Australia. Ms AA’s oral testimony about the café she opened in 2024 and aspirations for the Applicant’s involvement was earlier summarised. In essence, the Applicant submitted that a non-revocation decision would deny Ms AA his assistance in managing home and business imperatives. He feels that with his assistance the efficiency and profitability of Ms AA’s café would be enhanced. It is noteworthy in this regard, however, that Ms AA registered a company and started the café in 2024 after the Applicant’s imprisonment and with knowledge of his uncertain visa status. It was clear she would bear the brunt of concurrent family and business commitments until his sentence was completed and visa status resolved. The establishment and viability of this business did not rely on the Applicant’s involvement and Ms AA’s evidence is that it has flourished while he has been imprisoned. There was a known risk the Applicant may be removed from Australia and that home-business pressures experienced by Ms AA would need to be addressed in other ways. Ms AA employs three staff and states that she is assisted in running the business by her mother and eldest child. The purported value of the Applicant to this business is therefore future focussed. This is clear from Ms AA’s documentary submission about opening the shop ‘with the hope’ that the Applicant would ‘work with her’. No probative evidence has been filed about the current state of Ms AA’s business or how it might be impacted by a non-revocation decision. The highest the evidence gets is Ms AA’s claim that the business ‘has started to thrive’[135] and her oral testimony that it continues to be successful. The claims about the beneficial effects of the Applicant’s future involvement rest on bare assertion.[136]
[135] Ibid 192.
[136] JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 370 [31] (Katzmann, Sarah C Derrington and Kennett JJ).
Impact on business interests: Tribunal findings
Ms AA established this business in 2024 after the Applicant was imprisoned and with knowledge about his uncertain visa circumstances. She is the sole Director of the company that operates this business and employs several staff. There is no evidence she is unable to hire the staff she needs, including a barista. The Applicant did not contribute to the establishment or operation of this business other than in an emotionally supportive sense. It is claimed the business has flourished since opening despite his limited involvement. The Tribunal accepts, however, that if the Applicant remains in Australia, he could contribute as a barista and assist Ms AA in re-balancing her work and home life responsibilities.
There is no evidence that any business effect from non-revocation would significantly compromise the delivery of a major project or delivery of an important service in Australia. On balance, this consideration is given neutral weight.
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.
Extent of impediments if removed: Tribunal consideration
The Applicant was born, raised, and educated to tertiary level in Vietnam. He relocated to Australia in November 2016 intending to study business administration, but later enrolled in a cooking course.[137] He holds a Vietnamese passport that does not expire until 2032[138] and has returned to Vietnam on three occasions between 2018 and 2020.[139] The Applicant said that his friends and family in Vietnam would support him if he was returned, but this could not replace the support Ms AA and the children could provide. He also agreed that he could find work in Vietnam but emotional hardship from forced repatriation could affect this. He has not put any thought into appropriate employment to pursue if returned but hopes his studies and work experience in Australia would assist him.
[137] Exhibit R1, 46 [18]-[19].
[138] Ibid 85.
[139] Ibid 99.
The Applicant stated in his 2024 revocation submissions that he has no diagnosed medical or psychological conditions.[140] Custodial records in late 2024 state the Applicant was not undertaking any treatment programs, reported ‘no current physical health issues’, but was experiencing ‘situational stress due to waiting for immigration and parole outcomes’.[141] In February 2025 a custodial officer noted the Applicant’s claim that ‘his mental health is okay’.[142] Other records refer to him as ‘mentally and physically fit with no ongoing medical issues’.[143] As discussed earlier, the Applicant declined a psychological treatment plan offered in November 2023.[144]
[140] Ibid 82.
[141] Exhibit R2, 14.
[142] Ibid 15.
[143] Ibid 44.
[144] Ibid 33, 35.
Extent of impediments if removed: Tribunal findings
The Applicant is 31 years of age. He does not refer to any physical or mental health issues, or continuing medication. Mr Watson-Munro did not discern any ‘prior forensic history’[145] but felt the Applicant would benefit from CBT to address his anxiety. Nothing in the Applicant’s history was indicative of ‘psychiatric or psychological disturbance’.[146]
[145] Exhibit R1, 329 [5].
[146] Ibid, 329 [6].
No substantial language or cultural barriers are disclosed. The Applicant was born, raised, educated, and worked in Vietnam prior to arrival in Australia in late 2016. His parents, who are in their late 50s, continue to live there with other relatives. Given the close relationship with his parents, the Applicant may be able to access a measure of emotional, practical, and financial hardship from them and perhaps other relatives and friends if repatriated.
The Tribunal accepts there is a likely adverse impact from non-revocation arising from the Applicant’s separation from Ms AA, her children, and possibly other supportive friends in Australia. The Applicant is well educated, however, speaks English quite well, has acquired new skills in Australia, and has demonstrated an ability to adapt his life to changing environments. There is also no evidence, that if he needed it, he could not access support available to other citizens of Vietnam.
The Tribunal does not consider that the Applicant is confronted by significant impediments in re-establishing himself and maintaining basic living standards in the context of what is generally available to other Vietnamese citizens. It follows that this consideration carries no more than slight weight favouring revocation.
Additional considerations
No other considerations were advanced, and none are discernible from the evidence.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ for revocation, the Tribunal has applied the Direction to the specific circumstances of his case. The Tribunal sees no reason to depart from the guidance in the Direction to generally give greater weight to the Protection of the Australian community, over the other primary considerations, as the highest priority of the Australian Government.
The Applicant trafficked a commercial quantity of drugs and dealt with proceeds of crime. This is serious offending that undermines Australian laws and reflects a disregard for community interests. He should expect to forfeit the privilege of staying in Australia.
The Applicant has unmet rehabilitative needs, including the treatment recommended by Mr Watson-Munro. If his evidence about financial motivation were accepted, he also needs counselling to better deal with financial stressors. New financial obligations confront him if released, including a court-ordered pecuniary penalty, mortgage repayments, and helping Ms AA with business and family living costs.
In terms or recidivism risk, the Tribunal is unpersuaded by the Applicant’s claims about the protective effects of his relationship with Ms AA and her children. Their relationship is relatively short-lived, and he committed crimes with Ms AA’s best friend, without Ms AA’s knowledge. The Applicant’s relationship with this co-offender continues, which conflicts with his claim to Mr Watson-Munro about ‘steering clear of adverse peer group dynamics’. The Applicant constitutes a moderate recidivism risk.

The Applicant lived in Vietnam until the age of 22 and has resided in Australia for approximately eight years since November 2016. He has made some positive contributions. His connection to the Australian community is not particularly long or strong and is limited to Ms AA, her three children, and a small number of friends. The Tribunal accepts that a non-revocation decision would cause emotional distress to Ms AA, who would be confronted by a difficult but ultimately personal decision. The supportive statements from friends are general and the authors were not called as witnesses. It is difficult to discern if their interests fall within cl 8.3(1) of the Direction.
The individual interests of the Applicant’s stepchildren cannot be reliably differentiated. The claims regarding his past relationship with them is pitched at a high level of generality and the Tribunal found some evidence overstated. Ms AA has been primary carer for the children in the decade prior to meeting the Applicant. It emerged during the hearing that a supportive friend who lodged a statement for the Applicant is also the biological father of Ms AA’s youngest child, and they visit regularly. This contradicts the claim that the Applicant is the only father the two youngest children have ever known. On balance, revocation is in each of the children’s best interests, but this is contingent on the Applicant remaining law-abiding and addressing his unmet treatment needs.
In terms of impediments, the Applicant is 31 years old and has no physical or mental health issues. No substantial language or cultural barriers are disclosed. He was born, raised, educated, and worked in Vietnam prior to arriving in Australia. His parents are in their late 50s, continue to live in Vietnam with other relatives, and the Applicant can rely on them for support. The Applicant is also well educated and has acquired new skills in Australia. He has demonstrated an ability to adapt to changing environments. There is no evidence that if he needed it, he could not access support available to other Vietnamese citizens.
Having weighed the relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the primary consideration Protection of the Australian community, which is generally given greater weight than the other primary considerations, coupled with Expectations of the Australian community, considerably outweigh the combined weight given to the countervailing primary and other considerations.
DECISION
It follows that the Tribunal affirms the reviewable decision.

117. I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic

................[sgd]........................................................
Associate
Dated: 31 March 2025

Date of hearing: 18 & 19 March 2025

Counsel for the Applicant:

Solicitors for the Applicant:

Mr Stephen John

ASM Migration Services

Advocate for the Respondent:

Solicitors for the Respondent:

Ms Sophia Xian

Clayton Utz