Nguyen and Minister for Home Affairs (Migration) - [2019] AATA 370

Nguyen and Minister for Home Affairs (Migration) [2019] AATA 370 (8 March 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2018/7373

GENERAL DIVISION )
Re: Van Do Dat Nguyen
Applicant

And: Minister for Home Affairs
Respondent
DIRECTION
TRIBUNAL:  Member M East
DATE OF CORRIGENDUM:            11 March 2019
PLACE:            Perth

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

The reference in paragraph 157 of the Reasons for Decision to Vietnam as being a ‘second rate country’ is replaced with Vietnam as being a ‘second world country’.

...................................................................
Member

Division:GENERAL DIVISION
File Number: 2018/7373
Re:Van Do Dat NGUYEN
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member M East
Date:8 March 2019
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated
14 December 2018 not to revoke the mandatory cancellation of the Applicant’s Visa pursuant to s 501(CA)(4) of the Migration Act 1958 (Cth), is affirmed.
.............................[sgd]...........................................
Member M East
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – Direction no. 79 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – extent of impediments if returned to Vietnam – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43
Migration Act 1958 (Cth) – s 195A, s 499, s 499(1), s 499(2A), s 500, s 500(1)(ba),
s 500(6B), s 500(6H), s 500(6J), s 500(6L), s 501, s 501(1), s 501(3A), s 501(6),
s 501(6)(a), 500(6L), s 501(7), s 501(7)(c), s 501(7)(d), s 501(7A), s 501CA, s 501CA(4),
s 501E, s 501G(1)
CASES
Afu and Minister for Home Affairs [2018] FCA 1311
Le and Minister for Home Affairs [2018] AATA 4126
QJTT and Minister for Home Affairs [2019] AATA 152
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction no. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under
s 501CA (Department of Immigration and Border Protection, 20 December 2018) – paras 6.1, 6.2, 6.3, 7, 8, 12, 13, 14, Part C
Commonwealth of Australia National Drug Strategy 2017–2026 (Department of Health,
18 September 2017)
Vietnam Travel Advice, Department of Foreign Affairs and Trade, FOR DECISION
8 March 2019
Member M East
BACKGROUND

The Applicant is a 24-year-old man who is a citizen of Vietnam. He was born in Ho Chi Minh City on 17 February 1995.
The Applicant’s mother moved to Australia in 2005. Prior to that his parents had separated when he was about 2 years old and the Applicant initially lived with his grandmother and then his father and his stepmother. The Applicant remained in Vietnam with his father until he moved to Australia on 14 June 2009 to live with his mother and sister in Sydney. His sister said she moved to Australia in 2007 (Transcript p 65). The Applicant has lived in Australia continuously since that time apart from one brief time

off-shore from 19 December 2011 until 25 January 2012.
The Applicant married his wife, Ms Y Thi Nhu Nguyen on 11 December 2014

(Exhibit R2, p 94).
Ms Nguyen is also of Vietnamese origin and is currently holding a sub-class

820 temporary partner visa (Exhibit R4, p 219).
The Applicant’s mother, Ms Thi Hong Huynh and sister, Loan Thi Hong Nguyen are both Australian citizens (Exhibit A12 and A13).
On 26 April 2018, the Applicant was hand-delivered a letter from the Department of Home Affairs (the Department) advising him that his Class BB Subclass 155 – Five Year Resident Return visa (the Visa), granted to him on 25 January 2015 was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) (the Act)

(Exhibit R1, p 107).
The letter from the Department that was hand delivered to the Applicant on 26 April 2018 advised the Applicant he could make representations about revoking the decision to cancel his visa (Exhibit R2, p 108). The Applicant did so via his representatives (Exhibit R2, pp 24-103).
On 14 December 2018, a delegate of the Minister decided not to revoke the mandatory cancellation (Exhibit R2, pp 4-7) (the Reviewable Decision).
ISSUES
The issues for determination by this Tribunal are:
(a) whether the Applicant passes the character test, as defined by section 501(6) of the Act; and
(b) if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the mandatory cancellation decision should be revoked under section 501CA(4) of the Act having regard to the primary and other considerations in Direction no. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction no. 79).
JURISDICTION
This application is made pursuant to section 500(1)(ba) of the Act which allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent under section 501CA(4) of the Act not to revoke a decision to cancel a visa.
The Reviewable Decision was provided by email to the Applicant’s authorised representative on 14 December 2018. The Applicant sought review of the Reviewable Decision on 17 December 2018 with the Administrative Appeals Tribunal (the Tribunal) (Exhibit R2, pp 1-2). The Applicant is in immigration detention and is in the migration zone. He therefore lodged his application for review with the Tribunal within the nine day period after he received the decision in accordance with section 501G(1) and section 500(6B) of the Act.
The Tribunal is therefore satisfied that the application was lodged within time and that the Tribunal has jurisdiction to review the Reviewable Decision
Further, pursuant to section 500 (6L) of the Act, the Tribunal must comply with the 84 day timeframe for handing down a decision in this matter. This means the decision must be handed down by 8 March 2019.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Thursday 28 February 2019. The applicant appeared in person. He was represented at hearing by Counsel, Mr David Blades. The Respondent was represented by Mr Arran Gerrard from the Australian Government Solicitor, who appeared in person. The Tribunal was also assisted by the services of an interpreter in the Vietnamese and English languages.
The Applicant gave oral evidence and was cross-examined. The Tribunal also heard evidence from the Applicant’s mother, Ms Thi Hong Huynh, the Applicant’s wife, Ms Y Thi Nhu Nguyen and Loan Thi Hong Nguyen, the Applicant’s sister. Mr Cicchini, a psychologist, also attended and gave evidence. All witnesses were subject to cross examination. The Tribunal admitted the following documents into evidence at the hearing:
(a) the Applicant’s Statement of Facts, Issues and Contentions (SOFIC), undated but received by the Tribunal on 25 January 2019 (Exhibit A1) (Note – a further amended SOFIC was filed subsequent to the hearing on 1 March 2019 to reflect references to the new Direction no. 79);
(b) The Offender’s Sentencing Submissions dated 1 March 2018 (Exhibit A2);
(c) a Statutory Declaration of Van Do Dat Nguyen dated 24 January 2019

(Exhibit A3);
(d) a Statutory Declaration of Thi Hong Huynh dated 24 January 2019

(Exhibit A4);
(e) report from ‘Healthy Minds Psychology’ dated 6 November 2018 (Exhibit A5);
(f) a Statutory Declaration of Y Thi Nhu Nguyen dated 24 January 2019

(Exhibit A6);
(g) briefing letters to Mr Mercurio Cicchini (Applicant’s psychologist) (Exhibit A7);
(h) transcript of proceedings before Jenkins J in the Supreme Court of WA dated 2 August 2016 (Exhibit A8);
(i) transcript of proceedings before Sleight CJDC in the District Court of WA dated 21 December 2017 (Exhibit A9);
(k) extract of proceedings before Jenkins J in the Supreme Court of WA dated 15 September 2016 (Exhibit A10);
(l) various certificates completed by the Applicant during incarceration

(Exhibit A11);
(m) citizenship certificate for Ms Thi Hong Loan Nguyen dated 7 December 2016 (Exhibit A12);
(n) citizenship certificate for Ms Thi Hong Huynh dated 2 April 2014 (Exhibit A13);
(o) the Respondent’s Statement of Facts, Issues and Contentions (SOFIC) dated 7 February 2019 (Exhibit R1) (Note – a further amended SOFIC was filed by the Respondent subsequent to the hearing on 1 March 2019 to reflect references to the new Direction no 79);
(p) the s 501 documents (G Documents) numbered pages 1 - 147 (Exhibit R2);
(q) supplementary relevant documents numbered from pages 148 – 209

(Exhibit R3);
(r) further supplementary relevant documents numbered from pages 210 – 223 (Exhibit R4)
(s) Direction no. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction no. 79) (Exhibit R5)
(Note – although the Direction is technically not evidence, due to Direction no.65 being included in the G Documents (Exhibit R2), the new Direction was admitted separately into evidence)
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Migration Act provides that:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
i.paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
ii.paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)
the person has a substantial criminal record (as defined by

subsection (7); or
…
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)
the person has been sentenced to a term of imprisonment of

12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more…
(Original emphasis.)
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
i.a written notice that sets out the original decision; and
ii.particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
i.that the person passes the character test (as defined by section 501); or
ii.that there is another reason why the original decision should be revoked.
(Original emphasis.)
DIRECTION NO. 79
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction no. 79, which commenced operation on 28 February 2019, under s 499 of the Migration Act. Direction no. 79 replaced the previous Direction no. 65. Therefore, Direction no. 79 is applicable and the Tribunal proceedings were conducted on that basis.
Paragraph 6.1 of Direction no. 79 sets out the “Objectives” of the Migration Act, with paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction no. 79 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction no. 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4), including the Tribunal:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the principles set out in paragraph 6.3 of Direction no. 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction no. 79, with regard to the specific circumstances of the case (paragraph 13(1) of Direction no. 79). Specifically, paragraph 13(2) of Direction no. 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 14(1) of Part C of Direction no. 79 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Paragraph 7(1)(b) of Direction no. 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)…
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

Further guidance as to how a decision-maker is to apply the considerations in Direction no. 79 can be found in paragraph 8 of Direction no. 79 which provides:
8. Taking the relevant considerations into account
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
On 8 March 2018 the Applicant was sentenced to three years and nine months’ imprisonment for one count each of Possession of Prohibited Drugs with Intent to Sell or Supply, Possession of a Prohibited Drug and Possession of Stolen or Unlawfully Obtained Property. The sentence was backdated to commence on 14 June 2016 (Exhibit R2, p 29).
The Applicant does not pass the character test.
As the Applicant does not pass the character test, the Tribunal must consider whether there is ‘another reason’ why the Reviewable Decision should be revoked.
IS THE TRIBUNAL SATISFIED THAT THERE IS ANOTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community (paragraph 13.1 of Direction no. 79)
Paragraph 13.1(1) of Direction no. 79 provides that:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens 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…
Paragraph 13.1(2) of Direction no. 79 then provides:
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.
Nature and seriousness of the conduct (paragraph 13.1.1(1) of Direction no. 79)
Paragraph 13.1.1(1) of Direction no. 79 further provides:
In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that 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, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and 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 re-offended 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 non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act;
The Applicant’s National Police Certificate (Exhibit R2, p 22) records the Applicant has been convicted of four offences. These are:
1.Possession of prohibited drugs with intent to sell or supply, imprisonment: 3 years 6 months partly cumulative;
2.
Possess a prohibited drug, imprisonment: 6 months concurrent from

16 June 2016;
3.Possess a prohibited drug, imprisonment: 6 months concurrent; and
4.
Possession of stolen or unlawfully obtained property, imprisonment:

18 months from 14 June 2016 (head sentence).
On 8 March 2018 the District Court sentenced him for three offences (Exhibit R2, p 29).
The Respondent in its SOFIC at paragraph 7 (Exhibit R1) details the offences for which the Applicant was sentenced. After discussion at the hearing, the Respondent agreed the offence of ‘MDMA, total quantity 6 grams’ was not included as one for which the Applicant was sentenced in the District Court on 8 March 2018. Whilst the Applicant’s National Police Certificate records a further offence, there is no material before the Tribunal to identify what that offence is. The Respondent conceded it did not form part of the basis of the Applicant’s sentencing (Transcript p 51).
The Applicant was initially charged with four offences being; (1) attempting to supply 5 kilograms of methylamphetamine to another, (2) possession of 188.3 grams of methylamphetamine, later amended to possession of MDMA, (3) possession of 6 grams of methylamphetamine, with intent to sell or supply; and (4) possession of $75 000 suspected of being unlawfully obtained (Exhibit A9, pp 40-41).
The Applicant pleaded guilty to the charges of possession of 188.3 grams of MDMA and possession of $75 000 suspected of being unlawfully obtained. The Applicant pleaded not guilty to the other two charges. The day before the first scheduled day of the trial the State filed a Notice of Discontinuance in relation to those charges. The Applicant also pleaded guilty to one charge of being in possession of a prohibited drug (heroin) and was sentenced for that at the same time (Exhibit R2, p 25; Exhibit A9, p 42)).
In considering the nature and seriousness of the non-citizen’s conduct the Tribunal has had regard to the sentencing remarks of Stevenson DCJ (Exhibit R2, pp 24-30).
Stevenson DCJ noted the serious nature of the Applicant’s offending as follows

(Exhibit R2, p 27):
Plainly, the offending is serious. It is not isolated and did not occur in a vacuum. I accept that you were a user of drugs yourself but you were involved as I have already indicated to counsel, in my view, in a significant commercial operation for the dissemination of prohibited drugs in the community.
You were an active participant. You were prepared to act as a trusted front man. You were therefore an important cog without whose involvement and willingness to play a role the drugs could not have been disseminated in the community.
You were in effect warehousing drugs and playing a role in their transition from the source to other users in the community. The amount of cash, the subject of count 1, in my view is a significant amount of money.
And further (Exhibit R2, pp 28-29):
You yourself also gained financially by reason of the role you played in this criminal enterprise.
Evidence led at the hearing confirmed the Applicant received payment of his rent, frequent trips to Sydney and supply of drugs for his own habit as his payment for his involvement in the operation (Transcript pp 30 and 82).
The circumstances of the offending are contained in Exhibit R3, p 161 and outlined below.
On 15 April 2016, WA Police received information that the Applicant had been trafficking illicit drugs from Sydney to Perth for distribution and that he was linked to a drug distribution syndicate and money laundering syndicate within Western Australia.
On 13 May 2016, a police officer observed the Applicant leaving his partner’s address to visit Australia Post in Northbridge. He presented a parcel for posting addressed from himself to himself at his residential address in New South Wales. Counsel submitted at the hearing that the comments in the hearing before Jenkins J on 2 August 2016 indicate the package was actually addressed to ‘John’ at a PO Box which was registered to his sister, who is the co-accused’s partner (the Applicant’s brother-in-law) (Exhibit A8, pp 8-9). The police executed a search warrant and seized the package. Inside the package was a blue metal locked box containing $75 000 Australian currency.
On 7 and 9 June 2016 the Applicant’s brother-in-law sent two packages from Sydney to Perth. Note, the Statement of Material Facts refers to the Applicant’s girlfriend and cousin, however, it was conceded in proceedings before Jenkins J that the correct reference is to his brother-in-law (Exhibit A8, p 9).
The two packages contained 3kg and 2kg respectively of methylamphetamine. On 14 June 2016, the Applicant’s brother-in-law collected the packages and met the Applicant. Together they delivered the packages to an address. The Applicant and his brother-in-law were both arrested and charged with drug trafficking offences. The Applicant’s sister and a ‘small child’ were both present at the time of arrest (Exhibit A8, p 9).
The police obtained search warrants for the Applicant’s home address on the same day and found approximately 188 grams of MDMA and 2 grams of heroin (Exhibit R3, p 158).
A search warrant was executed at the Applicant’s brother-in-law’s house and a further 13 kilograms of Methylamphetamine and an improvised drug manufacturing set up were located (Exhibit R3, p 161).
As noted at paragraph 10 of the Respondent’s SOFIC (Exhibit R1) there were a number of contested bail applications and the Respondent accepts the summary provided at paragraphs 19 – 25 of the Applicant’s submissions (Exhibit R1).
In considering the nature and seriousness of the Applicant’s criminal offending or other conduct to date the Tribunal notes the sentencing remarks of the judge. As noted earlier, Paragraph 13.1.1(1)(d) requires the Tribunal to have regard to the sentence imposed by the court for a crime or crimes. The judge noted the maximum penalties and highlighted how serious this type of offending is regarded by the State Parliament which he said represents the view of the whole community. The Applicant’s sentence was discounted by virtue of his pleas of guilty, his age, the lack of previous record and the fact he had engaged in various programs whilst in prison. The judge referred to the decision of the Court of Appeal in Franklin v the State of Western Australia [2017] WASCA 102 in which at paragraph 32 they said ‘MDMA is a ‘seriously harmful illicit drug which sits in the top echelon of harmful drugs along with methylamphetamine, cocaine and heroin’. (Exhibit R2, p 28)
Whilst the Tribunal accepts the Applicant received a sentence short of the maximum, he still received substantial sentences which were served concurrently. The maximum sentence for the possession of unlawfully obtained property is 7 years, for which he received 18 months. The maximum sentence for the possession of MDMA with intent to sell or supply is 25 years and/or a fine of $100 000. The Applicant received a sentence of three years and six months imprisonment. The maximum sentence for the additional charge of being in possession of a prohibited drug (heroin) is two years, for which he received six months imprisonment. The judge ordered a partial accumulation of the terms of imprisonment which required the Applicant to be sentenced to a term of imprisonment of three years and nine months (Exhibit R2, p 29).
The judge further noted:
As I have already remarked, the sentencing considerations for drug offending are well understood by the courts. Primary sentencing considerations include the need for general deterrence and personal deterrents and it is the case that personal circumstances play a lesser role which of course is not to say that they play no role.
If the court imposes a term of imprisonment which it must in this case, it is obliged to consider by reference to section 76 of the Sentencing Act whether any term of imprisonment may be suspended conditionally or otherwise.
I am positively satisfied that it is not appropriate to suspend conditionally or otherwise any of the terms of imprisonment by reason of the objective seriousness of the offending and the sentencing considerations which apply. In my view, the appropriate sentences for each of the offences are as follows.
As was submitted by Mr Gerrard in his closing submissions, the length of the Applicant’s sentencing is significant. He noted that prison sentencing is a last resort. That, combined with the fact that it was three years and nine months for a first time offender, with no suspension or thought of suspension meant ‘it’s obviously itself demonstrative of the severity of the offence’ (Transcript p 76).
The Tribunal agrees with Mr Gerrard’s submissions. Whilst noting that the sentence imposed for the offences was short of the maximum term which could be imposed, it nonetheless was a significant sentence which the judge was positively satisfied should not be suspended. He specifically stated it was by ‘by reason of the objective seriousness of the offending’.
Subparagraph (e) of paragraph 13.1.1(1) of the Direction states that the frequency and trend of any increasing seriousness should be taken into account. The Tribunal notes the Applicant had no prior criminal history and that there is no trend of increasing seriousness to be taken into account. Balanced against this however is the Applicant’s age when he committed the offences. He was arrested in 2016 when he was 21 years of age. He was committing what was described by the sentencing judge as well as a judge of the Supreme Court as being involved in serious criminal offences and has been declared a drug trafficker. As submitted by Mr Gerrard in his closing submissions, and as noted by the sentencing judge, the offences were not isolated and did not occur in a vacuum. The offences took place over a period of about six months. Having regard to the the offences for which the Applicant was convicted, the Tribunal does not find that the Applicant’s age, lack of prior history, or no trend of increasing seriousness mitigates the seriousness of the Applicant’s conduct during this period.
Paragraph 13.1.1(1)(b) of Direction no. 79 is not relevant.
Paragraph 13.1.1(1)(c) of Direction no. 79 is not relevant.
Paragraph 13.1.1(1)(f) of Direction no. 79 is not relevant.
Paragraph 13.1.1(1)(g) of Direction no. 79 is not relevant.
Paragraph 13.1.1(1)(h) of Direction no. 79 is not relevant.
Paragraph 13.1.1(1)(i) of Direction no. 79 is not relevant.
Weighing up the above factors, the Tribunal finds that the nature and seriousness of the Applicant’s offending weighs against the revocation of the cancellation of his visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2 of Direction no. 79)
A decision maker should have regard to the following principle, described in paragraph 13.1.2(1) of Direction no. 79 as follows:
(1) In considering the risk 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 available information and evidence on the risk of the non-citizen reoffending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Relevantly in QJTT and Minister for Home Affairs [2019] AATA 152, Senior Member Evans provided the following summary at [56]-[57]:
[56]In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
[57]In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.
Regarding the risk of harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct, the Tribunal is guided by the sentencing remarks of the judge where he said as follows:
I have had regard to the sentencing considerations including what was said by the Court of Appeal in Franklin v the State of Western Australia [2017] WASCA 102. In particular, I note at paragraph 32 that it was said it cannot be overlooked that MDMA is a seriously harmful illicit drug that sits in the top echelon of harmful drugs along with methylamphetamine, cocaine and heroin (Exhibit R2, p 28).
Counsel for the Applicant submitted at paragraph 49 of their SOFIC (Exhibit A1) that it ‘involved him, following the direction of others, being a part of a drug distribution operation. Such offending does cause harm to individuals or the Australia community, but it should be noted that the applicant was a cog in this process as opposed to being a main instigator’ [sic].
In closing submissions Mr Blades further clarified this submission by stating, ‘…but basically the point I’m making is that the applicant was a cog, albeit an important cog’ (Transcript p 80).

With all due respect to Applicant’s Counsel, the Tribunal cannot accept the Applicant’s role as merely being a ‘cog’. In fact, it trivialises the judge’s sentencing comments where he stated:
Plainly the offending is serious. It is not isolated and did not occur in a vacuum. I accept that you were a user of drugs yourself but you were involved as I have already indicated to counsel, in my view, in a significant commercial operation for the dissemination of prohibited drugs in the community.
You were an active participant. You were prepared to act as a trusted front man. You were therefore an important cog without whose involvement and willingness to play a role the drugs could not have been disseminated in the community.
You were in effect warehousing drugs and playing a role in their transition from the source to other users in the community. The amount of cash, the subject of
count 1, in my view is a significant amount of money
(Emphasis added)

(Exhibit R2, p 27).
The Respondent in their SOFIC (Exhibit R1) at paragraph 20 outlines findings from the Commonwealth of Australia Drug Strategy 2017-2026[1] regarding the impact of drug trafficking on the Australian community. The report states:
Drug trafficking has a significant and deleterious impact on the Australian community. This impact includes health harms, such as injury, chronic conditions and preventable diseases, mental health problems, and road trauma; social harms, such as violence and other crime, engagement in the criminal justice system more broadly, trauma and contribution to domestic and family violence; and economic harms associated with healthcare and law enforcement costs, decreased productivity, associated criminal activity and reinforcement of marginalisation and disadvantage.
[1] Commonwealth of Australia National Drug Strategy 2017 – 2026 pp 4-5
Applying paragraph 13.1.2(1)(a) of Direction no. 79, the nature of harm to individuals or to the Australian community if the Applicant is to reoffend is serious.
Regarding the likelihood of the Applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the Applicant reoffending, Counsel for the Applicant submitted at paragraph 50 (Exhibit A1) that the risk is very low for a number of reasons.
Firstly, they submitted that Stevenson DCJ accepted Counsel’s submissions that the applicant intended to desist from engaging in the dissemination of illegal drugs in the future. His Honour however goes on to say (Exhibit R2, p 26):
It is, of course, crystal ball gazing as to whether or not you would have desisted from engaging in the dissemination of illegal drugs in the community with your family and friends in the future.
I accept, of course, that you were intending to return back to New South Wales and that you had an intention to enrol in a TAFE course.
All of that of course does not preclude you from continuing to derive an income by reason of your association with those in your family who are prepared to engage in this type of behaviour.
So whilst it may be correct to say that His Honour accepted Counsel’s submissions at the sentencing hearing, his acceptance was heavily qualified by acknowledging the possibility of future criminal behaviour by the Applicant.
Secondly, Counsel submitted that the Applicant was sentenced to a short prison sentence due to various mitigating factors, being his age, lack of a previous record, general good character but for the offences, having engaged in various programs whilst in custody and a letter of apology and insight into his behaviour.
His Honour commented as follows (Exhibit R2, p 28):
It of course remains to be seen whether or not the sentence on this occasion will prevent you from committing further offences wherever you may be. The sentencing considerations for this type of offending are well understood by the court.
The Applicant’s pleas of guilty were also a mitigating circumstance warranting a reduction in the sentence (Exhibit R2, p 27).
Thirdly, Counsel submitted that the Applicant’s conduct whilst in custody had been ‘exemplary’ (refer paragraph 53 of Exhibit A1).
The Tribunal has concerns about the Applicant’s attempts to explain or excuse his behaviour and therefore his level of remorse. Despite the Applicant stating in various forums that he is remorseful for his behaviour and that he understands his actions and takes full responsibility for them, his evidence given at hearing was not consistent with these expressions of remorse. Notably, he said he was listening to the elders in his family (his brother-in-law/co-accused), and was too kind hearted and gullible, helping family members out of respect (Transcript pp 29-30) when committing the offences. In response to Mr Gerrard asking him that he knew that he was involved in the sale of harmful drugs, the Applicant responded ‘I didn’t realise that’s very harmful drugs’ (Transcript p 32).
The Tribunal is concerned by the Applicant’s apparent lack of insight into his offending behaviour. This raises concerns about the Applicant’s rehabilitation and the future likelihood of him reoffending if he were released into the Australian community.
The Applicant was referred to Mercurio Cicchini, Clinical Psychologist, for a report. His report dated 15 May 2018 is Exhibit R2, p 70 and the referral documents are at Exhibit A7.
Mr Cicchini describes the Applicant’s drug use (Exhibit R2):
In addition he was also introduced to drug-use by this relative, and drug use became a regular activity. His drug use (smoking methamphetamines with a bong) provided by his relative (beginning when Mr Nguyen was aged about 20) increased over a period of 6 months to the point where he was using up to 4 times a day. The initial feeling of energy that enabled him to do more tasks, as well as relaxation and euphoria from being ‘stoned’. However, he had to increase his intake to try to achieve the effects initially experienced, but with no real success: ‘I had to smoke a lot to get high, but I couldn’t get there’. (This was likely due to drug tolerance effects). At the same time, he also began experiencing an increase in negative feelings such as anger.
Note : reference to the ‘relative’ is the Applicant’s co-accused, his brother-in-law.
Mr Cicchini further states (Exhibit R2):
In light of the penalty received for his criminal involvement in this State, and his previous law-abiding lifestyle, Mr Nguyen said that he would not do favours of an inappropriate kind for relatives or any other party in the future. He had reportedly been in the process of giving up that role for his brother-in-law at the time of his arrest, specifically because he had been informed that his activities could result in deportation to Vietnam, which he did not want and cannot come to terms with even now, given that he came to Australia as a 14 year-old child, and he has no family connections there.
Mr Cicchini obtained details of the Applicant’s childhood after his parents separated when he was 2 or 3 years old. He said he lived with his grandmother who treated him cruelly, for about 4 or 5 years and then lived with his father and stepmother who was also cruel to him. Mr Cicchini makes the note that the ‘presence of residual childhood trauma from his negative parenting experience require professional intervention to heal’ (Exhibit R2, p 76).
Mr Cicchini considers the ‘Substance Use Issues’ at page 7 of his report:
Mr Nguyen’s introduction to the use of drugs at age 20 was mentioned previously, and became a concomitant part of his involvement in helping his brother-in-law’s drug distribution activity. He also used alcohol periodically, but states that he was not a heavy drinker.
He reported a period of abstinence from drug use of 25 months (being whilst in custody), and he believes that because he no longer has drug use on his mind, the issue is now resolved. Having assessed thousands of individuals over the past 40 years, some of whom had developed a dependence on substances, and others exhibiting other maladaptive coping habits, I would venture to offer the opinion that although abstinence is an important pre-requisite for rehabilitation from substance abuse, it may not be a sufficient condition. That is because there is typically an interaction between substance use and an individual’s emotional vulnerabilities of childhood origins, triggered or brought to the fore by particular life stresses, and exposure to future stresses can induce relapse.
Mr Cicchini makes specific reference to the courses undertaken by the Applicant in prison (Exhibit R2, p 77). He notes, ‘All these activities can assist an offender in moving forward in their rehabilitation. However in my opinion, individuals who have had exposure to negative life events and encountered the use of substances may require further, more in-depth, individualised assistance to prevent relapse’.
And further:
In Mr Nguyen’s case, life stresses that could impinge particularly on his vulnerabilities (due to his unstable and problematic early years in Vietnam) include interpersonal problems (as might occur with relationship loss and conflict) and experiences involving perceived disapproval and ostracism. In my opinion, professional counselling from a clinical psychologist within the Medicare system for financial support would enable Mr Nguyen to address both the unresolved trauma from childhood and any issues relating to life stresses that could promote a relapse to drug use
And further (Exhibit R2):
I would anticipate that his difficult and punitive upbringing would have impeded the acquisition of trust in others. Furthermore, the disrupted and negative parenting experienced in childhood is likely to produce emotional vulnerabilities. He indicated that about 6 years ago he broke up with a girlfriend he had been in a relationship with for a year, and experienced suicidal ideation, which was not acted upon.
Mr Nguyen indicated that he had never experienced delusions or psychotic disturbances, but depression and unhappiness was present during his childhood, while happiness was associated with being re-located with his mother since age 14.
Mr Nguyen believes that his abstinence and imprisonment has helped him overcome any interest in drugs. The drug and alcohol course he has undertaken in prison has also provided him with some strategies for dealing with pressure from peers or relations. One strategy he plans to adopt is to only follow the advice of his mother, in precedence to other relatives. However I consider that therapeutic support may be needed in the future to avert emotional difficulties arising from historical and interpersonal stresses.
Mr Cicchini concluded by stating that the Applicant has good prospects by pursuing his TAFE studies and furthering his career in hospitality with support from his mother. He stated the risk of reoffending in a similar way in the future is low. Mr Cicchini further states that staying in Australia would maximise his chances of rehabilitation and that ‘The loss of his Visa would, psychologically, constitute a recurrence of the unfortunate events in his childhood of instability and lack of care for his wellbeing’.
Mr Cicchini in his oral evidence stated that the risk of reoffending is low, however, gives his opinion that without the appropriate intervention in a one-on-one counselling forum, the underlying issues that contributed to the Applicant’s earlier drug use are unlikely to be resolved. He specifically states that without therapeutic help there is a high likelihood of a relapse into drug using. The Applicant is of the opinion that abstinence has resolved the issue which Mr Cicchini does not agree with.
When cross examined Mr Cicchini said that whether the Applicant had a risk of reoffending and whether he had a risk of relapsing into substance abuse were two separate questions. He said the drug use was a ‘concomitant’ part of his involvement in the offences. He said the drug use was associated with the offending but was not a cause (Transcript p 53).
Mr Cicchini said in the Applicant’s case, abstinence from drug use (which has occurred as a result of being incarcerated) is a ‘good beginning’ but is best followed up by individual counselling as a precautionary measure against relapse. He said he doesn’t make this recommendation as a matter of course but did so because of the Applicant’s circumstances (Transcript p 55):
MR GERRARD: So would you continue to recommend that he seek that assistance?
MR CICCHINI: Well, as I say, I don’t know what has transpired since I did that assessment. If nothing has transpired I would say yes, it’s still a good recommendation. I think in terms of a safeguard I think it would be desirable add it with some follow up, yes.
The conclusion the Tribunal draws from Mr Cicchini’s report and oral evidence is that whilst he assessed him as having a low risk of reoffending, to maximise his chances of not relapsing into drug use the Applicant would require some specialised counselling on an individual basis. He said that the drug use was a part of his offending. One of the risks identified by Adult Community Corrections, Parole Assessment for reoffending was substance use (Exhibit R3, p 205).
The Applicant, in his testimony gave firm evidence that he would never use drugs again because ‘I understand the bad way of the drugs and I learn from it’. (Transcript p 34)
The Applicant testified that he had been using drugs for 6 months prior to his arrest because his brother in law encouraged him to do so (Transcript p 33). In Mr Cicchini’s report he stated the Applicant had steadily increased his drug use over a period of 6 months to the point where he was using up to 4 times a day (Exhibit R2, p 73).
Mr Cicchini has identified risk factors for drug use arising out of the Applicant’s childhood. In his evidence, the Applicant gave no indication that he had any intention or desire to complete counselling and felt that he had dealt with his drug problem on his own (Transcript p 34).
Whilst the Tribunal does not wish for the Applicant’s intentions to waiver and indeed hopes that they do not, the evidence of both the Applicant himself and of Mr Cicchini indicates there is a real risk of the Applicant again having issues with drug use.
The Applicant completed several programs whilst in prison both before and after his sentencing (Exhibit A11). These were:
(i)2 Day Gatekeeper Suicide Prevention Workshop, 17 & 25 July 2017
(ii)Life Skills Re-entry Program, 4 April 2017
(iii)Alcohol Other Drugs Programme 8 week program, 15 December 2016
(iv)Brief Intervention Cognitive Skills Program, 4 May 2017
(v)Career Development Workshop, 20 July 2017
The Tribunal acknowledges and takes note of the voluntary courses completed by the Applicant whilst he was in prison. The Tribunal has also taken into consideration the report and oral evidence of Mr Cicchini and the oral evidence of the Applicant. The Tribunal has concluded, that even though Mr Cicchini has assessed the Applicant as having a low risk of reoffending, due to the underlying concerns about the Applicant’s prior drug use, and the risk of him using drugs again without the appropriate psychological intervention and the risk of him then reoffending, the Tribunal has assessed the risk of him reoffending as low to moderate.
A Parole Assessment was carried out on 3 April 2018 (Exhibit R3, p 205). In the section titled ‘Risk Assessment’ it states:
In considering Mr Nguyen’s risk of reoffending, the factors include substance use, negative peer association, financial gain, the belief that he would not be caught, poor decision making and lack of consequential thinking. Mr Nguyen identified that his protective factors include stable accommodation with his partner the support of his family and good prospects of employment. Mr Nguyen admitted that he had been easily influenced by his co-offender, who has yet to be sentenced and who resides in a different unit at Casuarina Prison. Mr Nguyen reported that he remains focused on maintaining abstinence from illicit substance use and is motivated by the desire to engage in employment and start a family.
In the section titled ‘Recommendation’ it states:
Mr Nguyen is serving a term of imprisonment for substance related offences. He has not been required to engage in treatment programs, however he has completed voluntary courses and appropriate treatment interventions are available within the community. Mr Nguyen has some protective factors, including stable accommodation and good prospects for employment. Early release to Parole is supported. It is noted that Mr Nguyen is of interest to Immigration and should the Board choose to grant early release to Parole, he will likely be deported to Vietnam immediately upon release.
All family members indicated they were supportive of the Applicant and the Tribunal accepts he has a relatively high level of family support, particularly from his mother and wife. Despite this however, if he were to return to Vietnam, his wife would return with him and would be able to support him equally well there.
In all the circumstances, the Tribunal is satisfied that there remains a low to moderate risk of the Applicant reoffending.
Based on the above discussion, the Tribunal finds that there is a low to moderate likelihood of the Applicant reoffending should he be given a further chance to be released back into the Australian community. The Tribunal further finds that the Applicant poses an unacceptable risk of harm to individuals in the Australian community and that, in the circumstances, the Australian community would expect that his Visa should remain cancelled. This weighs against the revocation of the cancellation of the Applicant’s Visa.
Second primary consideration: The best interests of minor children in Australia (paragraph 13.2 of Direction no. 79)
Paragraph 13.2 of Direction no. 79 requires decision makers to make a determination about whether revocation is in the best interests of the child. Subparagraph (4) outlines the factors which must be considered where relevant and is outlined as follows:
(4) 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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has submitted that he has no children of his own, however he and his wife have a ‘semi-parental’ role with his sister’s two minor daughters aged 4 and 2.
The Tribunal notes the Applicant has been incarcerated since June 2016. The nieces were born in October 2014 and January 2016. At the time of the Applicant’s incarceration the youngest child was less than 6 months old and the eldest was just short of 2 years old.

A review of the ‘Visits History – Offender (Offender Copy)’ (Exhibit R2, p 89) gives a history of the Applicant’s visits whilst in Casuarina. The Tribunal notes this is not the entire time the Applicant has been incarcerated. Nevertheless, as a sample of visits, in November 2017, the girls visited twice. In December 2017 they visited on 4 days and once in February 2018 and March 2018. The nieces visited either with their mother or the Applicant’s wife.
Apart from this evidence there was minimal evidence before the Tribunal of the Applicant’s involvement with his two nieces. In fact, when questioned by the Tribunal the Applicant’s sister said ‘My brother always live with me so...’ (Transcript p 67) and then later she said she moved from Sydney to Perth on 10 June 2016, four days prior to his arrest (Transcript p 67).
The Applicant’s response to Mr Gerrard’s question whether he lived with his sister when she was here was: ‘She went back to New South Wales, she gave birth to the first baby and then she come back to Perth with me to take out the (indistinct), yes’

(Transcript p 27).
Piecing this evidence together, the physical time the Applicant has lived with his sister and his nieces is 4 days prior to his arrest. As noted above, no further evidence was provided of other involvement by the Applicant with his nieces, apart from the visits to the prison.
Evidence led at the hearing was that the Applicant’s wife has been living with his sister and his nieces since his arrest. Furthermore, the evidence of the witnesses at the hearing is that upon release, he would move back to Sydney to live with his mother and wife (Transcript p 43). In closing submissions, Mr Blades said the Applicant’s sister would remain in Perth with her two daughters (Transcript p 83, also refer to Exhibit A4, paragraph 11). The Tribunal is mindful that if his visa cancellation was not to be revoked, seeing the children would depend on their visiting Vietnam, rather than both parties being able to move freely between Perth and Sydney. Balanced against this however is the fact that the Applicant would have the ability to maintain contact in other ways such as phone, Skype or Facetime should he return to Vietnam.
The Tribunal has had regard to the factors outlined in Direction no. 79 paragraph 13.2(4) and finds the nature and duration of the relationship between the nieces and the Applicant to be very limited. His relationship is non-parental, his contact has been limited, the sister is the primary carer and there are no known views of the child (sub-paragraphs (a), (e) and (f)). Regarding sub-paragraphs (b), (c) and (d) it is unknown whether the Applicant would play a positive parental role in the future, his prior conduct, particularly his drug use within the home would have a negative impact on the children and his ability to maintain contact from overseas all weigh in favour of not revoking the visa. The Tribunal also notes a ‘small child’ was present at the time of arrest. There is no evidence of abuse or trauma from or because of the Applicant’s conduct as considered in paragraphs (g) and (h).
Taking into account the considerations listed in Direction no. 79 paragraph 13.2(4), the Tribunal is prepared to accept that the best interests of the two nieces would marginally be served by the revocation of the cancellation of the Applicant’s Visa and gives this some minimal weight in its consideration.
Third primary consideration: Expectations of the Australian community (paragraph 13.3 of Direction no. 79)
Paragraph 13.3(1) of Direction no. 79 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Paragraph 6.3(2) of Direction no. 79 sets out the following principle:
The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
The relevant case law regarding the expectations of the Australian community was summarised by Member Burford in Le and Minister for Home Affairs [2018] AATA 4126 at [135]-[138] as follows:
135. In the case of YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY), Mortimer J made the following comments:
[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to ‘tolerance’) the Australian community’s ‘expectations’ are defined only in one particular way: namely, that the Australian community ‘expects’ non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese v Minister for Immigration & Border Protection [2016] FCA 348; 248 FCR 296 at [64]–[66]).
(Emphasis added.)
136.In YNQY the Court was, in part, considering whether the Tribunal erred in failing to make findings and/or take into account as a primary consideration the expectations of the Australian community.
137. The passage referred to by Mortimer J above in Uelese v Minister for Immigration & Border Protection [2016] FCA 348 states as follows:
[64] In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. The language in paragraph 6.3(2) of the Direction, that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia, is found in a list of seven ‘Principles’. There is a further reference to the expectations of the Australian community in paragraph 9.3 of the Direction where the statement is made that the Australian community expects non-citizens to obey Australian laws while in Australia. It states that where a non-citizen has breached, or where there is an unacceptable risk that they will breach, this trust or where the non-citizen has been convicted of offences in Australia, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate, the paragraph states, ‘simply because the nature of the character concerns or offences were such that the Australian community would expect that the person should not continue to hold a visa’. The paragraph ends by stating that decision-makers should have due regard to the Government’s views in this respect.
[65] ... In my opinion it is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community and for the Tribunal to act on that statement.
138. Deputy President Constance in Zyaran and Minister for Home Affairs [2018] AATA 3785 at [71] and [72] and in Nguyen and Minister for Home Affairs [2018] AATA 3726 applied the reasoning of the Federal Court in YNQY. Deputy President Rayment, QC in the case of Kumeroa and Minister for Home Affairs [2018] AATA 3744 also applied YNQY.
Member Burford further explained, at [139]-[141]:
139. The Tribunal notes that both Direction no. 65 and the relevant authorities make it clear that the Tribunal must take into account the primary and other considerations relevant to the individual case. Direction no. 65 specifically notes that both primary and other considerations may weigh in favour of either to revoke or not to revoke a mandatory cancellation of a visa (Direction no. 65, Cl 8(3)). While the Direction states a primary consideration should generally be given more weight than the other considerations, the authorities make it clear that this will depend on the individual circumstances and will still require the Tribunal to take into account both the primary and other considerations and to give each appropriate weight in reaching a decision.
140. The Federal Court’s decisions in YNQY and Uelese do not raise the expectations of the Australian community to the status of a determinative consideration. The approach outlined by the Federal Court highlights that it is open to the Minister to make a statement of the Government’s views as to the expectations of the Australian community and that Direction no. 65 makes such a statement. Applying YNQY and Uelese, the Minister makes this statement both in the principle expressed in 6.3(2) and in 13.3(1). Applying Uelese, 13.3(1) directs that the Tribunal should have due regard to the Government’s views in this respect.
141. It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view as to the expectations of the Australian community as expressed in 6.3(2) and in 13.3(1) of Direction no. 65. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed by the Minister, they weigh against revocation. However, it remains for the Tribunal to determine, in all the circumstances, what constitutes appropriate weight. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
In Afu and Minister for Home Affairs [2018] FCA 1311 (Afu) at [85] Bromwich J stated the following:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 reproduced above. The Tribunal was required to give effect to those norms, which is precisely what it did.
Although Le, YNQY and Afu concerned Direction no. 65, they are equally applicable to Direction no. 79 because there has been no change to the wording of the paragraph concerning the expectations of the Australian community in Part A, B or C when Direction no. 65 was updated to become Direction no. 79.
Although the expectations of the Australian community will often weigh against an Applicant, as explained by Member Burford, the Tribunal can in the exercise of its discretion decide how much weight is to be given to this consideration in the process of weighing up the primary and other considerations.
Applying the comments of Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and Bromwich J in Afu, the Tribunal finds that the Applicant has committed drug trafficking offences which are serious offences and the Australian community would reasonably expect that he should not hold a visa. That is, the Australian community would expect the non-revocation of the cancellation of the Applicant’s Visa. In determining the weight to be applied to this consideration, the Tribunal has considered the primary considerations, including the serious nature of the offences committed by the Applicant and the unacceptable risk of harm to the community if he were to reoffend.
The Tribunal has balanced these considerations against the other considerations, which are discussed below, including the strength, nature and duration of the Applicant’s ties to Australia and the hardship the Applicant would face if he was returned to Vietnam.
Nevertheless, the Tribunal finds that on balance, the expectations of the Australian community would still be that the Applicant should not hold a visa. This consideration weighs against the revocation of the cancellation of the Applicant’s Visa.
OTHER CONSIDERATIONS
Paragraph 14 of Direction no. 79:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
International non-refoulement obligations
It is not relevant to consider international non-refoulement obligations (paragraph 14.1 of Direction no. 79) because no such claims arose in any submissions or on the evidence before the Tribunal.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction no. 79 provides:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of nonrevocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Relevantly, paragraph 6.3(5) of the principles section of Direction no. 79 states:
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
Additionally, paragraph 6.3(7) of the principles section of Direction no. 79 states, in part:
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused
The Applicant was sponsored by his mother and moved from Vietnam to Australia in June 2009. At that time he was 14 years old. The Applicant’s evidence is he finished secondary school, completed TAFE and was employed as a barista in Sydney prior to moving to Perth and working in his sister’s nail salon as a manicurist (Exhibit A3).
The Applicant married his wife on 11 December 2014 (Exhibit R2, p 94). His wife is currently on a temporary sub-class 820 partner visa. The Applicant’s mother and sister are both Australian citizens.
The Applicant has resided in Australia for almost ten years, nearly three of which he has been incarcerated for. His convictions record that he started offending when he was 20 years old, approximately 6 years after he arrived in Australia. After his mother separated from his father when he was aged around 3, the Applicant lived with his grandmother then his father and stepmother in Vietnam prior to moving to Australia. The Applicant stated at that time that he did not have contact with his mum for a few years (Transcript p 26).
The Applicant’s Counsel has submitted in their SOFIC (Exhibit A1, para 65) that :
The Australian community, when informed of the applicant’s youth, length of time in Australia, previous good character, circumstances of offending and role in the offences, contrition, exemplary behaviour while in prison, minimal risk of reoffending, employment skills and family ties to Australia, would not expect that the applicant’s visa remain cancelled.
The Applicant does have family ties in Australia, notably a wife. She, however, is only on a temporary visa and is neither a permanent resident nor a citizen. The Tribunal accepts the Applicant’s mother and sister are both Australian citizens and that his deportation would have an effect on them. They have both provided statutory declarations outlining the effect on them should he return to Vietnam (Exhibit R1, pp 62-64 and 67-69). The Applicant’s sister and mother also gave evidence and were cross examined by the Respondent’s Counsel. The mother’s psychologist provided a report which was admitted into evidence. It should be noted this report was commissioned for the purposes of family court proceedings between the mother and her ex-husband, not for the current proceedings. She was, nevertheless, diagnosed with a Major Depressive Disorder in 2018 as a result of domestic violence in her relationship with her ex-partner. The Tribunal also notes the Applicant lived at different times with his grandmother, his father and stepmother after his parents’ divorce. His mother did not move to Australia until 2005 and the Applicant has stated in his oral evidence that ‘I’m not – because I live with my father and my mum they separate and I didn’t contact with her like few years but then she come here in 2005 and she work on the paperwork to get me to Australia with her’
(Transcript p 26).
The Tribunal accepts the Applicant was employed in Sydney and assisted his sister with her nail salon in Perth. There is no other evidence of involvement in the community although the Tribunal does take note of the Applicant’s helpful nature whilst in prison and the comments of the Parole Assessment in that regard (Exhibit R3, p 204).
The Tribunal accepts the Applicant was only 14 when he moved to Australia and was 20 when he started committing the offences. It appears that he completed secondary school and obtained some qualifications in hospitality (Exhibit A2). He also stated that he worked as a barista and helped his sister manage her nail salon whilst she was on maternity leave (Exhibit A2). The Tribunal therefore acknowledges that there has been some positive contribution to the Australian community and that he did live here for a period of time before he started offending.
Further evidence provided at hearing was that if he were to be released the Applicant would move to Sydney to live with his mother. Initially he said she would move to Perth, however, after the Tribunal questioned this evidence and its inconsistency with paragraph 23 of his Statutory Declaration dated 24 January 2019, he changed his evidence to say that he would move to Sydney to live with her (Transcript p 42).

The Applicant’s evidence was that he would work towards providing for his mother to compensate her for funding his legal fees for both his criminal and AAT proceedings. He said it was his responsibility to look after her. Mr Blades sought clarification on re-examination as to what he meant by ‘looking after’ his mother. The Applicant responded, ‘As you know, like I’ve been in prison for two and a half years, she has been very good mum to look after me when I (indistinct) in there, she pay the fees, she order moneys and stuff. When I get out I need to look after her back, I need to pay the money for – to help her pay the moneys’. (Transcript p 38) He said he could get a job as a ‘barista, manager and chef’ (Transcript p 39).
When his mother was cross examined by Mr Gerrard, she said she would support him financially and would keep working to try and support him. She said she wanted him to move to Sydney because she had a job for him and would help him with his life. She said ‘If he has to return to Vietnam anyway, he is still my son, so I try to come to visit him, but my wish is he is able to stay in Australia because I am alone, so I want him to be next to me, close to me’ (Transcript p 71).
In considering the strength, nature and duration of the Applicant’s ties to Australia, the Tribunal accepts that there would be some impact on the Applicant’s mother and sister. The Tribunal also notes however that the Applicant was not living near his mother at the time he committed the offences – she was living in Sydney and he was in Perth. Evidence led was that he visited Sydney regularly, however has not been able to do so since June 2016 when he was incarcerated. The Applicant stated he would move back to Sydney if he was released meaning he would not be living near his sister who said she would remain in Perth. The Tribunal also notes the Applicant has not lived near or with his mother for substantial periods of his life from when his parents separated to his arrival in Australia in 2009 (approximately 10 years). He then moved to Sydney with her but moved to Perth in 2015. Furthermore, the sister’s evidence at hearing was that she did not move to Perth until 10 June 2016, just prior to the arrests of her brother and husband. Apart from the time they were said to be living together in Sydney they have spent very little time living near or with one another.
No doubt there is some impact on family members in being separated however the Tribunal notes that they are both independent women who have supported themselves in the past and in the mother’s case, she supported the Applicant financially.
The Tribunal therefore acknowledges that the Applicant has spent the last 10 years living in Australia and has developed family networks here.
The Tribunal also accepts there would be an emotional impact on his sister and his mother and gives this some marginal weight in favour of the revocation decision.
Impact on Australian business interests
It is also not relevant to consider whether a decision not to revoke the cancellation of the Applicant’s Visa will have a relevant impact on Australian business interests (paragraph 14.3(1) of Direction no. 79). The Applicant is not involved in the delivery of any major projects, or the delivery of an important service in Australia.
Impact on victims
There is no evidence before the Tribunal of any evidence from victims regarding the impact of a decision not to revoke the visa cancellation.
Extent of impediments if removed
Paragraph 14.5(1) of Direction no. 79 provides:
(1)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.
All family members were questioned about the family ties in Vietnam and whether family support was available from either the Applicant’s or the Applicant’s wife’s family. All witnesses denied that the families in Vietnam would provide any support for the Applicant (Transcript pp 60,61, 62, 65 and 70).
The Applicant’s sister said she has visited Vietnam once per year to visit her grandfather. The Tribunal was told the grandfather had just recently passed away. When questioned whether she would visit her brother if he returned to Vietnam she said it would be difficult with her daughters because they’re little and have school. She said it would also depend on whether she had any money (Transcript p 66).
The Applicant said there would be little support for him should he return to Vietnam. He said nobody from his wife’s family would assist. After further questioning, he did agree he had several family members in Vietnam and whilst financial help may not be possible, he would have a social network with family members from his mother’s side as well his wife’s. He confirmed that he speaks both Vietnamese and English. He had requested a Vietnamese interpreter for the Tribunal proceedings as it is the language he is most comfortable speaking in. He said he speaks to all family members in Vietnamese (Transcript p 37).
The Applicant’s wife left Vietnam when she was 19, coming to Australia on a student visa (Exhibit R4, p 217). Her evidence has been that if the Applicant returns to Vietnam, she will accompany him. She confirmed she visits Vietnam, most recently for one month from December 2018 – January 2019. She stated she stayed with her sister and visited her parents and her grandmother who is unwell. She said she could not get any financial support from her parents if they were to return because they had recently had a failed business and times had been very stressful for them. She said that they would not give her emotional support because of their own stresses (Transcript p 60).
In the ‘Offender’s Sentencing Submissions’ (Exhibit A2), Counsel submitted to the District Court that, ‘In the almost certain eventuality of Mr Nguyen being deported once he has completed his gaol sentence, his wife intends returning to Vietnam with him. They will most likely live in Hanoi where her family is from’.
When questioned further, the Applicant’s wife conceded she would have a social network, however felt that her husband would be discriminated against because he was a convicted criminal. She stated that she and the Applicant would be welcome to stay with her family for a holiday but not to live with them permanently (Transcript p 61).
The Applicant has spent 14 years in Vietnam and nearly 10 in Australia. He has no known physical health problems. There are no language or cultural barriers. The Tribunal does accept however that there may be some social, medical and economic impediments with his return to Vietnam. The Tribunal accepts the evidence that the Applicant may face some discrimination in Vietnam due to his criminal history. Furthermore, whilst no evidence was led of the economic and medical conditions in Vietnam, the Tribunal takes note of the submissions of Mr Blades where he referred to Vietnam as being a ‘second rate country’ (Transcript p 75).
The Tribunal has considered the available country information produced by the Department of Foreign Affairs and Trade which acknowledges medical facilities and care at public hospitals, particularly outside the main cities of Hanoi and Ho Chi Minh City are poor (Vietnam Travel Advice, Department of Foreign Affairs and Trade, ).
The Tribunal therefore accepts that living conditions and health services in Vietnam may not be of the same standard as are available in Australia. However, the Applicant being a Vietnamese citizen would have the same access to social, economic and medical support as other Vietnamese citizens
The Tribunal also accepts that the Applicant has been in Australia since he was a teenager and lacks a social structure in Vietnam and also any immediate family support. He does however have his wife’s family living there as well as his own extended family.
As Counsel for the Respondent submitted, the impediments to returning to Vietnam are not overwhelming.
The Tribunal finds that the impediments if removed from Australia are limited and accordingly gives it minimal weight in favour of the Applicant.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has also considered whether there is another reason why the mandatory cancellation decision should be revoked, having regard to the primary and other considerations in Direction no. 79.
In relation to the primary considerations, the findings that the Tribunal has made regarding the protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of Direction no. 79), and the expectations of the Australian community (paragraph 13.3 of Direction no. 79) weigh in favour of the Tribunal refusing to revoke the cancellation of the Applicant’s Visa (that is, affirming the Reviewable Decision).
With respect to the primary consideration regarding the best interests of the Applicant’s two nieces, the Tribunal has concluded that the best interests of the nieces may be marginally served by the Tribunal exercising discretion to revoke the mandatory cancellation of the Visa in favour of the Applicant. However, it is the Tribunal’s opinion that this primary consideration is outweighed by the other primary considerations.
The other consideration of the Applicant’s strength, nature and duration of ties and impediments if removed from Australia weigh marginally in favour of the Applicant.
The Tribunal is of the opinion that the primary obligations of protection of the Australian community, and the expectations of the Australian community outweigh the other primary consideration of the interests of minor children and the other considerations that are in favour of the revocation of the decision to cancel the Applicant’s Visa, namely strength, nature and duration of ties and impediments if removed from Australia.
In summary, having regard to all of the relevant primary considerations, and the relevant other considerations in Direction no. 79, the Tribunal is of the view that it would not be appropriate for the Tribunal to revoke the mandatory cancellation of the Applicant’s Visa. The correct and preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated

14 December 2018
not to revoke the mandatory cancellation of the Applicant’s Visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.

I certify that the preceding 170 (one hundred and seventy) paragraphs are a true copy of the reasons for the decision herein of Member M East

.........................[sgd]..............................................
Associate
Dated: 8 March 2019

Date of hearing:

28 February 2019

Counsel for the Applicant:

Mr David Blades

Solicitors for the Applicant:

Counsel for the Respondent:

TQH Lawyers

Mr Arran Gerrard

Solicitors for the Respondent:

The Australian Government Solicitor

Date of hearing:	28 February 2019
Counsel for the Applicant:	Mr David Blades
Solicitors for the Applicant: Counsel for the Respondent:	TQH Lawyers Mr Arran Gerrard
Solicitors for the Respondent:	The Australian Government Solicitor