Nguyen and Minister for Immigration and Border Protection (Migration) - [2018] AATA 4664

Nguyen and Minister for Immigration and Border Protection (Migration) [2018] AATA 4664 (20 December 2018)
Division:GENERAL DIVISION
File Number(s): 2018/5607
Re:Minh Triet Nguyen
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date:20 December 2018
Place:Melbourne

The Tribunal affirms the decision under review.
.................[sgd].......................................................
R Cameron, Senior Member
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa under s 501(3A) – whether discretion under s 501CA(4) to revoke mandatory cancellation should be exercised – single offence – trafficking in a large commercial quantity of heroin – no prior criminal convictions – imprisonment term of more than 12 months – substantial criminal record – protection of 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 – decision affirmed
Legislation
Migration Act 1958 (Cth)
Drugs, Poisons and Controlled Substances Act 1981 (Vic)
Cases
Ang v Minister for Immigration and Ethnic Affairs (1980) 40 FLR 410
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
Lam v Minister for Immigration and Multicultural Affairs [1999] AATA 56
Re Ayache and Minister for Immigration and Border Protection [2018] AATA 310
Re Do v Minister for Immigration and Border Protection [2016] AATA 390
Re Waits v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Seng and Minister for Immigration and Citizenship [2009] AATA 309
Wilson v R [2012] VSCA 141
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No.65 - 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, 22 December 2014
REASONS FOR DECISION
R CAMERON, SENIOR MEMBER
20 December 2018
INTRODUCTION

The Applicant was the holder of a Class BS Subclass 801 Partner (Residence) visa. (“The Applicant’s visa”). On 21 December 2017 the Applicant’s visa was cancelled pursuant to the mandatory provisions of section 501(3A) of the Migration Act 1958 (Cth) (“the Act”).
The Applicant subsequently submitted a request for revocation of the mandatory cancellation of the visa pursuant to section 501CA of the Act. On 20 September 2018 a delegate of the Minister for Home Affairs decided not to revoke the decision to cancel the Applicant’s visa (“the reviewable decision”). The Applicant seeks a review of this decision before the Tribunal.
Therefore, this application requires the Tribunal to determine whether it should exercise the discretion contained in section 501CA(4) of the Act to revoke the earlier decision to cancel the Applicant’s visa.
RELEVANT LAW
The Act
With regard to the mandatory cancellation of visas, section 501(3A) of the Act provides that the Minister (or his delegate) 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
…; 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)(a) of the Act then provides that a person does not pass the character test if they have a substantial criminal record. Relevantly for this application, section 501(7)(c) provides that a person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
With regard to the revocation of a mandatory cancellation decision, section 501CA relevantly 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.
…
(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.
(5)If the Minister revokes the original decision, the original decision is taken not to have been made.
…
Where a decision has been made by a delegate of the Minister under section 501CA(4) not to revoke a mandatory cancellation of a visa, the affected person may make an application to the Tribunal seeking a review of that decision under section 500(1)(ba) of the Act. The Applicant filed this application for review with the Tribunal on 1 October 2018.
Under section 499(1) of the Act the Minister may give written directions to a person or body, having functions or powers under the Act, if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act such as the Tribunal must comply with such direction (section 499(2A) of the Act). Currently, the applicable direction is Direction No. 65 (“the Ministerial Direction”).
Direction No. 65
It is appropriate to record several of the sections of the Ministerial Direction that are applicable with respect to this application. Paragraph 6.2 is entitled “General Guidance” and relevantly provides:
(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.
…
(3)The principles provide a framework within which decision-makers should approach their task of deciding… whether to revoke a mandatory cancellation under section 501CA. The relevant… factors that must be considered in making a revocation decision are identified in Part C of this Direction.
The “principles” referred to in paragraph 6.2 are contained in paragraph 6.3, which relevantly provides:
(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 vulnerable members of the community such as minors, 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.
…
(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.
Part C of the Ministerial Direction provides guidance for decision makers regarding the revocation of cancellation decisions and contains a number of primary and other considerations (outlined later in these reasons for decision). Finally, paragraph 8(4) of the Ministerial Direction provides that “Primary considerations should generally be given greater weight than the other considerations” and paragraph 8(5) states that “One or more primary considerations may outweigh other primary considerations”.
THE ISSUE TO BE DECIDED
The issue to be decided by the Tribunal in this application is whether, under section 501CA(4)(b) of the Act, there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked.[1]
[1] The Applicant in the Statement Facts and Contentions (“ASFIC”) filed on his behalf by his lawyers conceded at paragraph 7 that he failed the character test pursuant to section 501(3A) of the Act. The Respondent in its Statement of Facts, Issues and Contentions (“RSFIC”) properly contended that the Applicant failed the character test because he has a substantial criminal record within the definition contained in section 501(7) of the Act. That section of the Act states that for the purposes of the character test, a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant was sentenced by the Court of Appeal on 9 December 2016 to a term of imprisonment of five years and six months with a three years and six months non-parole period. The reasons of the Supreme Court of Victoria - Court of Appeal (“Court of Appeal”) are contained in the G Documents filed with the Tribunal at pages 36 to 66. By reason of the term of imprisonment imposed by the Court of Appeal the Applicant has a substantial criminal record because he has been sentenced to a term of imprisonment of 12 months or more.
THE EVIDENCE AND OTHER MATERIALS BEFORE THE TRIBUNAL
The Applicant gave oral evidence. A Consultant Psychologist, Luke Armstrong also gave evidence from the witness box. A written report being a “Psychological Assessment” dated 30 November 2018 was also tendered in evidence on behalf of the Applicant.
The Respondent did not call any witnesses but a bound volume of documents lodged under section 501G of the Act (“G Documents”) and a bound volume of documents entitled “Summons Bundle” were tendered in evidence on behalf of the Respondent.
Additionally, both parties filed and served Statements of Facts, Issues and Contentions which were considered by the Tribunal.
SOME RELEVANT FACTS
The Applicant was born in Vietnam on 7 January 1984.
Apart from his children, his entire family reside in Vietnam. He has two sisters and three brothers.
There was evidence before the Tribunal that he experienced some difficulties growing up in Vietnam. These difficulties emanated from several factors. Some of them were due to the difficulties he experienced with his father who had apparently served in the South Vietnamese Army prior to the Communist takeover in 1975. His father had some difficulties following that event. The Applicant’s father developed an alcohol dependency and resorted to chronic violence against the Applicant’s mother which caused their family life to suffer from some stresses and strains. The family were a poor farming family in a rural province of Vietnam.
Despite these challenges the Applicant was academically talented and thrived at school. He achieved solid academic performances which led to a scholarship at an elite government secondary school. He attended this secondary school as a full-time border.
At the completion of his secondary schooling he won a scholarship to a Vietnamese university apparently known as the College of Foreign Economic Relations. At that university he completed two degrees in Administration and Economics.[2]
[2] This fact was observed by the Court of Appeal in its reasons where it observed that he gained a university degree in Vietnam and he was described in the following terms by that Court as "a person who might be assumed to be not unintelligent…”. A footnote in the reasons of the Court of Appeal noted that he had a university degree gained in Vietnam.
He was married in 2009 to Thanh Ngoc Tran. That marriage resulted in the birth of a son Tran in 2010. His son is currently eight years old and now resides in Australia having migrated here some years ago. More will be said about the Applicant’s relationship with his first son later in these reasons.
Sometime after his marriage, his wife suggested to him that he should move to Australia to assist in his wife’s family’s business. He first arrived in Australia on 8 March 2011[3] on what was described as a “business visa”.
[3] In addition to the Applicant’s oral evidence referring to this date, the date can be confirmed from the Applicant's "Movements Details" contained at page 158 of the G Documents.
He worked in Australia for some time after his arrival in March 2011 and frequently returned to Vietnam. He stated that during this time he returned to Vietnam frequently so that he could renew his visa and also to escape from his wife’s aunt whose incessant demands he found very difficult to tolerate.
He returned to Australia on 23 April 2012.[4] Subsequently on 25 September 2013, the Applicant’s visa was granted.[5]
[4] This date is confirmed in the Movements Details at page 157 of the G Documents.
[5] This fact is confirmed in the letter dated 21 December 2017 from the Department of Immigration and Border Protection to the Applicant to be found at page 150 of the G Documents.
The Applicant gave evidence that the dominant reason for his return to Australia was that at the end of 2011 he had formed a relationship with Thanh Ngoc Thai (“Thai”). She became pregnant to him and told him that if he did not return to Australia she would have an abortion. It was for this reason that he returned notwithstanding that he had a child in Vietnam from his marriage.
Thai gave birth to a daughter Jenny on 28 November 2012.[6]
[6] A copy of Jenny's birth certificate is found at page 91 of the G Documents.
Upon his return to Australia the Applicant found work as a kitchen hand. He moved in with Thai in a flat in Footscray. Thai’s two children from a previous marriage were living with their father at another address. The relationship with Thai ended in approximately August or September 2014 when he moved out of the flat and for some time was living out of his car.
THE APPLICANT’S OFFENDING
The Applicant has only ever committed one offence both in Australia and Vietnam. That offence is recorded in the National Police Certificate contained in the G Documents.
As is evident from the reasons of Justice Ashley[7] in the Court of Appeal, the Applicant was sentenced by that court to a term of imprisonment of five years and six months with a three years and six months non-parole period. This sentence was imposed after he had pleaded guilty to one charge, being a breach of section 71 of the Drugs, Poisons and Controlled Substances Act1981 (Vic) (“the Substances Act”) of trafficking in a large commercial quantity of heroin.
[7] With whom Ferguson JA and Beale AJA concurred.
The period that he committed the offence, namely the trafficking of heroin, was between 11 September 2014 to 8 October 2014, as was described by the sentencing Judge in the County Court of Victoria (“County Court”) as “essentially one month”[8].
[8] This observation was made by the sentencing judge in paragraph 2 of his reasons on page 27 of the G Documents.
In addition to the facts recited in the reasons for sentence of the Court of Appeal, the sentencing Judge in the County Court noted that the Applicant’s Counsel at the hearing before him accepted a summary tendered by the prosecution. That summary is contained in Exhibit R-2 being the “Summons Bundle” of documents commencing at page 45.
At the time of his arrest the Applicant did not make any admissions.[9] However, he did plead guilty at the earliest opportunity and was evidently remorseful.[10]
[9] This fact is referred to in paragraph 19 of the "Summary of Prosecution Opening" at page 48 of the Summons Bundle.. Under the criminal procedure rules applicable to trials in the County Court of Victoria the prosecution is required to prepare such a summary of its opening. Where there is a plea of guilty, as in this case, the Defendant through his or her counsel usually will admit the contents of such summary in whole or in part as part of the process undertaken in the course of the plea hearing.
[10] This observation was made by Justice Ashley at paragraph 156 of the reasons of the Court of Appeal which are found at page 63 of the G Documents.
There were several other co-offenders involved in the trafficking of heroin concerned. The Court of Appeal noted that the Applicant’s role was being present when discussions occurred regarding the sourcing and sale of drugs; assisting Thai by pressing the drugs once cut into discs, weighing the drugs, dividing the “deals”, storing the drugs and packing the drugs for delivery to a co-offender.
It was also noted by the Court of Appeal that the Applicant’s role in the enterprise was essentially physical. Thai received quantities of heroin; some of approximately 60 to 70 per cent purity. This required it to be cut, mixed, pressed and packaged. The Applicant operated a press which took some physical effort. He described this function as pulling down the lever of some kind of press that was used to batch the cut down heroin into marketable portions.
The Court of Appeal also noted that his involvement came about because he was Thai’s boyfriend at the time. This was also confirmed to some extent in the Summary of Prosecution Opening (at paragraph 19) where it records that Thai claimed that she had asked the applicant “to do things for me” and got him involved, even though “he did not know what he was doing”[11]. He also gave evidence to the same effect at the hearing before the Tribunal. In response to a direct question from his lawyer which asked what led to his offending he replied: “Because I wanted to help my girlfriend pay off her debts”. In the course of that evidence he stated that he fell in love with her. She had a gambling problem. He stated that he was “the man of the family” and that he had to do it.
[11] This statement was apparently made by Thai during the course of a record of interview with the police.
The prosecution stated that it was unable to precisely quantify the amount of drugs manufactured by Thai and the Applicant, save to say that it was an amount what was described in the Court of Appeal as “just over the large commercial quantity threshold”, pursuant to section 71 of the Substances Act which is determined by Schedule 11 of the Substances Act.

In paragraph 16 of the Summary of Prosecution Opening[12] it is recorded that at the time of the Applicant’s arrest he was found to be in the possession of 324.9g of heroin.
[12] At page 48 of the Summons Bundle.
In the material before both the sentencing judge in the County Court and the Court of Appeal several things emerged which are appropriate to record.
Firstly, the Applicant was aged 30 at the time of his offending. He had no prior convictions.[13]
[13] It should also be noted in this context that the Applicant apparently had no prior convictions in Vietnam.
Secondly, his offending appeared to have been triggered by his association with Thai as noted earlier.[14]
[14] The Tribunal notes that this seems to be some divergence of views between the sentencing judge in the County Court and the Court of Appeal concerning the issue of the Applicant's relationship being the trigger for his involvement in the trafficking concerned. The sentencing judge in the County Court expressed the opinion that it was "farcical" to think that the Applicant was there only because of his relationship with Thai. Justice Ashley in the Court of Appeal put it in slightly different terms whilst noting that the trial Judge found that the Applicant had a profit motive, it was not incompatible with his motive being essentially to help Thai out of the financial problems she was facing caused by her gambling issues (see paragraph 154 of Justice Ashley’s reasons at page 63 of the G Documents). In its consideration of this question, the Tribunal will adopt the approach of Justice Ashley on this question.
Thirdly, the Applicant had not been a gambler, nor under financial pressure, nor a drug user at the time of his offending.[15]
[15] This is noted in Justice Ashley’s reasons at paragraph 149 on page 62 of the G Documents.
Fourthly, he made no admissions at the time of his arrest.[16]
[16] This is recorded in the Summary of Prosecution Opening at paragraph 19 on page 48 of the Summons Bundle.
Fifthly, he pleaded guilty at the earliest opportunity and was evidently remorseful. He wrote a letter of apology to the sentencing court and accepted the seriousness of his criminality.
Sixthly, his prospects for rehabilitation might be regarded as at least reasonable, having regard to: the way in which he came into the offending; the short period of the offending; and the fact that as a person who might be assumed to be not unintelligent, the long period which he had spent on remand was likely to have been a salutary experience.
In terms of the seriousness of the Applicant’s offending it is appropriate to take a cue from the legislature and the penalties imposed by the statute itself. Section 71 of the Substances Act provides a maximum penalty of life imprisonment in addition to a fine of not more than 5000 penalty units. Parliament could not have made its intentions as to the seriousness of this crime clearer.
The nature and seriousness of the crime of trafficking in heroin that the Applicant engaged in weighs heavily against setting aside the revocation decision. This is notwithstanding the significant material by way of mitigation or plea, that was put both before the Tribunal in this hearing and before the original sentencing judge in the County Court, and subsequently in the Court of Appeal.
The seriousness of the Applicant’s offending which weighs heavily against the revocation decision, is also amplified by reason of the fact that the Applicant is an intelligent and educated man who without any doubt clearly understood the nature and effect of what he got himself into. He fully appreciated not only that he was committing a serious criminal offence but also what the effects of heroin has on its users, not to mention society as a whole.
Other factors that also weigh heavily against the revocation decision in the context of the seriousness of his offending is the fact that the Applicant committed the offence concerned when he was not a gambler, nor under financial pressure, nor a drug user. It is puzzling in the extreme.
PRIMARY CONSIDERATIONS
Paragraph 13(2) of the Ministerial Direction with respect to “revocation requests” prescribes the “Primary considerations” to be taken into account by the decision maker. It states:
(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.
Protection of the Australian community
Paragraph 13.1(1) of the Ministerial Direction requires the Tribunal, when considering the protection of the Australian community, to acknowledge 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. Paragraph 13.1(2) further states:
(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.
Nature and seriousness of the Applicant’s conduct
Paragraph 13.1.1 of the Ministerial Direction relevantly provides that:
(1)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 committed against vulnerable members of the community (such as minors, 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;
c) The sentence imposed by the courts for a crime or crimes;
d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e) The cumulative effect of repeated offending;
…
g)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);
…
Of the factors identified in paragraph 13.1.1 of the Ministerial Direction there are only two that are applicable to the Applicant. They are the seriousness of the Applicant’s offending and the sentence imposed by the Court for the crime committed by him.
The starting point for any analysis to be conducted of this consideration is the seriousness of the Applicant’s offending. The Applicant has been convicted of trafficking a commercial quantity of heroin. The Applicant’s offending is serious. This observation was made by Justice Ashley in his reasons concerning the Applicant’s conduct in the Court of Appeal.[17] Similar observations were made by the sentencing judge in the County Court.
[17] This observation is made at paragraph 151 of the Court of Appeal’s reasons which is found at page 63 of the G Documents.
Appellate courts in the State of Victoria (not to mention other states of Australia) have repeatedly emphasised that trafficking commercial quantities of drugs is a serious crime. The seriousness and gravity of such offending is also reflected in the penalties that the legislature has seen fit to impose on persons convicted of such crime.
Indeed the Court of Appeal in Wilson v R[18] observed:
Trafficking in a large commercial quantity is an offence of the utmost seriousness, as the maximum of life imprisonment unequivocally demonstrates.
[18] [2012] VSCA 141 at [26].
As noted earlier in these reasons, a comparatively lengthy term of imprisonment has been imposed, namely five years and six months imprisonment with a three years and six months non-parole period. The length of the custodial sentence imposed by the Court reflects the gravity of the Applicant’s offending.
In the context of the Applicant’s offending under the Substances Act, the imposition of sentences for trafficking offences is classified by quantity. The maximum penalties are set accordingly. The observations made earlier in these reasons concerning the penalties fixed by the legislature for this offence are referred to and repeated.
The Applicant contends, as is the case, that only two of the factors under this consideration are applicable to his conduct and offending. The Tribunal acknowledges this fact and has taken it into account.
He has not engaged in crimes of violence or of a sexual nature.
The crime of trafficking in a commercial quantity of drugs was not committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials, as defined in that paragraph.
There has been no repeat offending. He has only committed one offence.
Notwithstanding the fact that only two of the factors in paragraph 13.1.1 of the Ministerial Direction applied to the Applicant, the Tribunal must take into account the pernicious nature of trafficking in commercial quantities of heroin. It is a trade that has many detrimental effects on the Australian community. There are the obvious effects on heroin users, many of whom suffer overdoses, have their lives destroyed, and in some instances die. Treating drug addicts causes a diversion of resources in the healthcare and law enforcement sectors from other deserving demands. Other users by reason of the effects of their addiction descend into lives of prostitution, commission of various offences to fund their habit, and often wind up living a hand to mouth existence on the streets. Drug addiction frequently destroys or divides families. It is indiscriminate in the way it does so. There are also the risks that drug affected persons commit motoring offences or otherwise put innocent members of the community going about their business at risk. At the opposite end of the spectrum heroin trafficking is a staple diet of organised crime and various figures in its chain of operation. Frequently, trafficking in heroin becomes the enabler of corruption. Also, the proceeds of such trafficking are never taxed, thus depriving the citizens of a stream of taxation revenue that can be applied towards the business of good government.
The Tribunal observed the Applicant in the witness box. As recorded earlier in these reasons and noted by the Court of Appeal, he is not an unintelligent man. He presented as not only intelligent and astute but also a considered individual who, notwithstanding his commitment to Thai (which the Tribunal acknowledges), knew full well what he was getting himself into, and also the very pernicious nature of heroin trafficking as observed above. Further, Mr Armstrong, the Consultant Psychologist who gave evidence before the Tribunal, acknowledged that the Applicant has a well-developed sense of what is right and wrong. He also confirmed the fact that the Applicant was not unintelligent. He described the Applicant as “academically talented”.
Despite his obvious love, affection and probable infatuation with Thai, the Applicant undertook this heroin trafficking venture with his eyes open. He fully appreciated the dangers to the Australian community, which had welcomed him at all times, from the trafficking in heroin which he was undertaking. Overall, these matters evidence a degree of disregard or recklessness towards the well-being of the Australian community which cannot be ignored.
Therefore, the Tribunal finds that the nature and seriousness of the Applicant’s offending within the meaning of paragraph 13.1.1 was serious in all respects and weighs very heavily against revocation.
Risk to the Australian community should the Applicant reoffend
Paragraph 13.1.2 of the Ministerial Direction provides that:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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.
(2)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 re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Applicant contends that he poses no unacceptable risk of future harm to the Australian community. He relies on several grounds in support of this contention.
There was his own evidence from the witness box where he stated he realised how serious his offending was. He stated he knew his actions were wrong. He emphasised that he was very sorry for his mistake. He pointed to the courses that he has undertaken whilst he has been in custody as evidence of his commitment to rehabilitating himself and genuinely reforming. There was also the evidence that he gave concerning his commitment and love for both his biological children and his stepchildren. He reiterated on several occasions during the course of his evidence that if he is released into the community he plans to be an important part of the children’s lives.
Another feature of his evidence was that he referred to the report of Mr Armstrong and his recommendations for future treatment. He undertook to adhere to the regime of treatment suggested by Mr Armstrong in his report that was in evidence before the Tribunal. He did in fairness to him, state that the object of such treatment would be to minimise the potential for relapse, particularly where he may mix with more dominant personalities who could have the potential to exploit him.
Overall, the Tribunal accepts the thrust of this evidence given by the Applicant. It also accepts that the Applicant has gained an insight into his offending both in terms of its gravity and also the betrayal of this nation which has given him the opportunity to reside here.
The evidence of Mr Armstrong both in his report before the Tribunal and his oral evidence were referred to.
Mr Armstrong stated in evidence that in his opinion, the Applicant was a low-level risk of reoffending. He identified a number of reasons why this was the case.
These reasons included that there were no associated behavioural problems or features of early moral corruptibility in his childhood or adolescent period.
He relied upon the fact that the Applicant had no prior criminal convictions in both Australia and Vietnam as an adult. Coupled with this, was the fact that he did not exhibit any enduring personality features or “moral corrupted-ness” which were consistent with someone who was likely to have the attributes of a repeat recidivist.
Mr Armstrong also gave evidence that in the years that the Applicant had been imprisoned, coupled with the many courses that he had undertaken for the purposes of his rehabilitation had led to a heightened understanding and appreciation of the wrongfulness of his actions which would increase his appreciation of the necessity to avoid reoffending. He described the Applicant as a highly motivated individual who had undertaken these courses to genuinely better himself. The Applicant also gave evidence to this effect.
Additionally, Mr Armstrong emphasised the Applicant’s commitment to his responsibility both to his biological children and his stepchildren. Mr Armstrong accepted the Applicant’s expressed desires that the Applicant wished to re-establish contact with his children and in various ways be a positive influence in their lives. Once again, the Applicant’s evidence was consistent with that given by Mr Armstrong.
Mr Armstrong concluded that the offending was out of character with the Applicant’s enduring personality. He concluded that the Applicant’s personality wasn’t coping with the environment he was in. He considered for the reasons articulated in his report that he didn’t believe the Applicant was at risk of reoffending.
The Tribunal found Mr Armstrong’s evidence to be given candidly and fairly. He presented as a dedicated mental health care professional.
In further support of the Applicant’s contention that there was no risk of him reoffending the Applicant relied upon his endeavours undertaken whilst in prison as noted earlier. These endeavours had several limbs to them. One limb centred around what may be described as his reflections whilst in prison to consider how things had unfolded and how he could avoid repeating it. The second limb was the unquestioned application that he undertook to improve himself whilst in prison by undertaking a series of courses of study which enabled him to learn basic skills in reading and writing English, numeracy, communication and digital literacy.
He undertook the following courses whilst in prison, of which there was ample evidence, and it must be said the Respondent did not cavil. Those courses were:
Certificate I in General Education for Adults (Introductory);
Certificate II in Kitchen Operations;
Certificate II in Cleaning Operations;
Certificate I in Spoken and Written English;
Certificate II in Spoken and Written English;
Certificate III in Micro Business Operations (progress);
Participant in ‘Changing Tracks’ Taster course;
Completed 3 hour Conflict Management Program;
Completed 3 hour Communication Skills Program;
Completed 3 hour Introduction to Problem Solving Program;
Completed 120 hour Inside Parenting course; and
Completed Prison Legal Education & Assistance Family Law program.
The Respondent, by way of opposition to the contentions of the Applicant, commenced by relying upon the language contained in paragraph 13.1.2(1) of the Ministerial Direction. and the Respondent centred its attention upon the words used, which require a decision maker to have regard to the principle that the Australian community’s tolerance risk of future harm becomes lower as the seriousness of the potential harm increases.
In developing this contention the Respondent asserted that heroin trafficking for the reasons identified earlier represent an unacceptable risk of harm (or future harm) in its various manifestations. Several of those risks were articulated earlier in these reasons. The Respondent contends that in the circumstances, by reason of the Applicant being convicted of trafficking a commercial quantity of heroin, the risk to the community should the Applicant commit such further offences or engage in other serious conduct are high. If the Applicant were to re-offend by way of trafficking commercial quantities of heroin within the meaning of the Substances Act, the risk to the Australian community is significant.
When considering the nature of the harm to individuals or the Australian community should the Applicant engage in such further criminal activity or conduct which are the matters that a decision-maker must have regard to as mandated in paragraph 13.1.2(2)(a) of the Ministerial Direction, the Respondent contends that the nature of harm suffered could range from the very serious physical and/or psychological injury to death. It is contended this is serious. One cannot quarrel with this contention. The harm that heroin trafficking (let alone the trafficking of any prohibited drug) can cause is well-known and has to some extent been identified earlier in these reasons. This argument is fairly and properly made.

The next consideration that must be taken into account, which may be described as the second limb of paragraph13.1.2(2)(b), is the likelihood of the Applicant engaging in further criminal or other serious conduct. The Respondent asserts that the Tribunal should find that the Australian community would have a low tolerance for any future risk of harm posed by the applicant given:
·The nature and potential harm to the community from future criminal conduct of the kind that he has previously engaged in which is serious, being heroin trafficking;
·The fact that the Applicant had spent limited time in the Australian community prior to commencing his offending, having only arrived in Australia in 2011 and had spent significant time out of the country prior to his arrest[19] and subsequent imprisonment; and
·The motives for the Applicant’s offending which were identified as being entirely for financial gain. There is no independent evidence that he obtained any rehabilitation to address this issue.
[19] The Applicant was arrested on 9 October 2014 when police executed a search warrant at premises in Flemington.
The Respondent further contended that given the seriousness of the offence committed by the Applicant in assessing his risk of recidivism, little weight should be given to the fact that he had no prior convictions. Reliance was placed upon a passage from the decision of the Tribunal in Lam v Minister for Immigration and Multicultural Affairs[20] that:
Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending.
[20] [1999] AATA 56 at [51].
Following this contention it is also submitted on behalf of the Respondent that it is a well established principle in sentencing that the absence of a prior criminal record carries comparatively less weight in relation to drug trafficking offences.
In respect of this principle, the Respondent relies upon the decision of Deputy President Walker in the matter of Seng and Minister for Immigration and Citizenship[21] as follows:
Further, the courts have made it clear that absence of a prior criminal record carries less weight in relation to drug courier offences than in other areas of the criminal law. As the New South Wales Court of Criminal Appeal put it in R v Leroy (1984) 13 A Crim R 469:
…
This court and other criminal courts have said on many occasions that, in the drug trafficking in particular, the circumstances that the accused person has a clear earlier record will have less significance than in other fields of crime. Very frequently, those selected to play some part in the chain of drug trafficking, as the appellant plainly enough was, are selected because their records, their past and their lifestyles are not such as to attract suspicion. It is this in particular which has led the courts to take in the case of drug trafficking a view which does not involve the same degree of leniency being extended to first offenders. (Emphasis added)
The Respondent then asserted that the Applicant had not participated in any meaningful treatment or rehabilitation programs, particularly to manage what it described as his “impulsive behaviour”, and therefore, there was a risk of him reoffending and such a risk was unacceptable to the Australian community.
[21] [2009] AATA 309 at [49].
In applying this consideration the Tribunal is to some extent at least required to enter into the realms of speculation or “crystal ball gazing”.
The Tribunal acknowledges the evidence that has been tendered in support of the contention that there is little or no risk of the Applicant reoffending. It accepts that the Applicant has reflected deeply about his offending. It accepts that the Applicant gave his evidence in a genuine way with the best of intentions. The evidence of Mr Armstrong is also referred to and the observations made above repeated. It is unfortunate that

Mr Armstrong was not retained by or on behalf of the Applicant earlier than he was.
A critical factor in minimising the risk of the Applicant reoffending will be whether or not the Applicant undertakes the course of treatment and introduces the risk minimisation measures that Mr Armstrong recommended. It is dependent on the Applicant continuing to be vigilant and diligently applying himself to this task. He must not succumb to temptation. Unfortunately, whilst his achievements in custody are commendable it must be acknowledged that it has taken place in the structured environment of a prison where he has ample time and opportunities available to him. The true test will emerge if he is released into the community and he does not have the regimented regime of prison life to encourage him to undertake these tasks. If he returns to the workforce and is confronted with the daily demands of life, the question is whether he will succumb to any criminal temptation.
The Tribunal accepts that once a person has broken the law it can never be said that there is no risk of reoffending. The Tribunal also acknowledges, as is contended for by the Respondent, that the absence of a prior criminal record in the context of the commission of drug trafficking offences does carry less weight than in other criminal offences.
The Applicant did emphasise the desire to reconnect with his children and stepchildren, and that this commitment might reduce the likelihood or risk of reoffending. However, it should be observed that he committed the offence whilst he had obligations to those children including his biological daughter Jenny, who was only approximately two years old at the time. Therefore, given this fact, the needs of his family for this reason do not seem to be factors which mitigate the risk of his reoffending quite in the terms that he submitted.
Overall, based upon the evidence before it the Tribunal concludes that there is a risk of reoffending. If that reoffending occurs, the potential harm to and impact on individuals and the community is considerable for the reasons that have already been observed above. Were the Applicant to reoffend, the harm to the community and individuals from heroin or other drug trafficking is significant if not unacceptable.
For these reasons the Tribunal concludes that the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct as contemplated by paragraph 13.1.2 of the Ministerial Direction, weigh against the revocation decision.
Best interests of minor children
Paragraph 13.2(4) of the Ministerial Direction prescribes several factors that must be considered by a decision-maker where relevant in determining the best interests of the children concerned.
In the submission filed on his behalf the Applicant rather than following the factors specified in paragraph 13.2(4) of the Ministerial Direction has relied upon the UNHCR Guidelines on Determining the Best Interests of the Child. The fulcrum of the submission is based upon the Convention of the Rights of the Child. Several matters are relied upon including:
·The well-being of the children concerned;
·Family reunification; and
·Actions affecting an individual child.
The Respondent in its submission accepted that it is in the best interests of the Applicant’s minor children for the Applicant to remain in Australia. The Tribunal acknowledges this concession by the Respondent. However, the Respondent contended that the weight the Tribunal should place on this primary consideration should be limited in the circumstances where:
·It is not clear what the Applicant’s parenting role in relation to his children is or has been;
·It is not clear if the eldest biological son resides in Australia or whether, since 2012, the Applicant has played any active parental role to him;
·The Applicant’s children are currently cared for by their mothers;
·The Applicant’s role in the lives of his children has been restricted because of his custodial sentences; and
·There is conflicting evidence about whether the Applicant will be able to play any significant role in his children’s lives if he remains in Australia.
As noted earlier the Applicant has two biological children, a son Tran who is eight years old (a Vietnamese citizen) and a daughter Jenny who is six years old (born in Australia and an Australian citizen). He also has three stepchildren, being a step son who is 14 years old, a second step son who is 12 years old and a third step son who is 10 years old. His stepchildren are the children of Thai.
The Applicant gave evidence of his connections with both his biological children and his stepchildren.
Prior to his imprisonment the evidence before the Tribunal is that in so far as the Applicant was able to do so, he had formed a bond with his children and did his best to perform the role of a father figure in their lives. It should be recalled of course, that his ability to do this with respect to his biological son has been limited. The reason is that his ability to form a bond and perform the role of a father with his son has been limited, firstly because of the fact that he moved to Australia comparatively soon after his son was born, and secondly, that he separated from his son’s biological mother who it will be recalled was still in Vietnam. Therefore, even though the Tribunal accepts to a large degree the evidence given by the Applicant concerning his role as a parent of his son, the infrequent contact and interaction that he has had with him means that his ability to have developed much of a relationship over any time span as contemplated by paragraph13.2(4)(a) of the Ministerial Direction must have been limited.
The evidence that emerged during the hearing was that with his biological son, the Applicant has lost contact with his ex-wife and son since he went to jail. His biological son apparently migrated to Australia around 12 November 2017 with his mother and resides in Australia permanently.[22]
[22] The Applicant gave oral evidence to this effect. It was also recorded in his Personal Circumstances Form at page 83 of the G Documents.
With his biological daughter, the evidence indicates that prior to his imprisonment, the Applicant did play a significant role in her life by reason of his physical presence, being the sole provider and also that when he and his partner separated, he took full custody of her under a parenting agreement that they had entered into. There was evidence of his partner’s history of mental illness, depression and suicidal thoughts at this time. His partner also had responsibility for her biological children which made significant demands on her parenting capacity at the time.
There was also very specific evidence of the Applicant’s relationship with his biological daughter in several respects. There was evidence of taking her to Vietnam in September 2013 to visit his family and form a relationship with her grandparents.
After his imprisonment the Applicant maintained contact with his daughter via video telephone calls and conventional telephone calls. He also received contact visits from her but they have ceased since 2015. He believes that her mother has entered into a new relationship and as a result of pressure from the new partner; she has been prevented from having contact with him. He has from his modest prison earnings reliably sent money to his daughter for her benefit over some time. There were several remittance advices in evidence before the Tribunal showing that he had sent the sum of $50 to his daughter as often as he could. It does certainly reflect the genuine commitment that the Applicant hasto his children.
The Tribunal accepts that the nature and duration of the relationship between the Applicant and his biological daughter Jenny, despite the matters that the Applicant has had to confront, is overall a comparatively strong one and of significance to her within the meaning of paragraph 13.2(4)(a) of the Ministerial Direction.
With respect to the Applicant’s stepchildren, there has been no contact (other than by some limited correspondence such as cards and letters passing between them periodically)[23] since he was imprisoned. Whilst the Applicant expressed a desire to reconnect with both his biological children and stepchildren it is not altogether apparent to the Tribunal how this may occur. He did express the view that if necessary he would commence proceedings in a court of appropriate jurisdiction to establish further contact if he can. There was correspondence from Victoria Legal Aid and the Family Relationship Advice Line demonstrating that the Applicant has made enquiries of appropriate organisations providing legal and family law assistance to provide guidance in these endeavours. There was some evidence that with respect to his biological son, his ex-wife will permit contact were the Applicant to be released into the community. The exact details of this proposed contract were not articulated at all.
[23] There were copies of letters and other correspondence between the Applicant and his eldest stepson in evidence before the Tribunal.
Concerning his stepchildren, overall the Tribunal accepts that there had been some meaningful relationship established between them and him during the course of his relationship with their mother, prior to him being in custody, and to some limited extent following him being imprisoned as noted above.
In so far as he was able to give evidence on the topic, Mr Armstrong also opined that if the Applicant were to leave the country, the children would be deprived of an additional, supportive and predictable parenting figure. Mr Armstrong then went on to assert that he would have concerns for the wellbeing of such children if the Applicant was prevented from having regular input and contact with them in the future.
The Tribunal has some concerns about the type of role model that the Applicant might be to the children by reason of the crime he has committed for which he was imprisoned. However, overall in the context of the factors to be considered in paragraph 13.2(4)(b) and (c) of the Ministerial Direction his presence in Australia with the children would lead him to play a positive parental role and also have a positive impact on those children.
In terms of the factors to be considered in paragraph 13.2(4)(d) of the Ministerial Direction, whilst no doubt, given the evidence of the capacity of the Applicant to maintain contact with his children by various electronic means such as video calls over the internet which no doubt he would resort to as much as he is able to do so, the likely effect of separation from his children would have an overall negative effect on them.
With respect to the remaining factors to be considered under paragraph 13.2(4) of the Ministerial Direction, there is no evidence that enables the Tribunal to reach a concluded view as to their applicability in this case. There is some limited evidence of course from the Applicant and Mr Armstrong which alleged that the children would be deprived of an additional, supportive and predictable parenting figure if the mandatory cancellation was not revoked. Mr Armstrong stated that he would have concerns for the welfare of the children if the Applicant was prevented from having regular input. However he did not go so far as to say it would amount to emotional trauma within the meaning of paragraph 13.2(4)(h) of the Ministerial Direction.
There was also some limited evidence (and it was contended for by the Applicant in his written submission) concerning the mother of his biological daughter and stepchildren that she has had a history of mental illness and “suicidal thoughts” that led to the Applicant gaining sole custody. There is no independent corroboration of these assertions. However, the Tribunal is prepared to acknowledge when considering all the evidence available before it, that there was clearly some level of concern about the level of proper parental support that the mother is able to offer them. Within the meaning of paragraph 13.2(4) of the Ministerial Direction, it is an important factor to take into account.
Assessing all these factors that have been submitted and the language used in paragraph 13.2(4) of the Ministerial Direction concerning this primary consideration, the Tribunal concludes that the Applicant’s children would unquestionably benefit from, and their best interests be served by the revocation of the mandatory cancellation of the Applicant’s visa. This factor must weigh in the circumstances heavily in his favour.
Expectations of the Australian community
Paragraph 13.3 of the Ministerial Direction relevantly provides:
(1)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.
In applying this paragraph of the Ministerial Direction, one has to construe the language used. The expectation contained in the first sentence of this paragraph that requires obedience to Australian laws is not an unrealistic expectation, nor is it difficult to understand. Where the debate sometimes arises is in the subsequent sentences where one has to consider what the expectations of the Australian community might be in the circumstances facing the Tribunal.
In Re Do v Minister for Immigration and Border Protection[24], Deputy President McCabe provided some guidance:
A decision-maker is, to some extent, required to guess at the community’s expectations… As I begin my deliberations, I assume the Australian community would be fair-minded and mature…. The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community be conscious of the length of time the Applicant has lived in Australia and other circumstances which might assist the community to form a proper judgement about the individual and what should be done.
[24] [2016] AATA 390 at [23].
In Re Waits v Minister for Immigration and Multicultural and Indigenous Affairs[25] Deputy President Block also helpfully observed:
…the expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.
[25] [2003] AATA 1336 at [36].
Recently, Justice Mortimer in YNQY v Minister for Immigration and Border Protection[26] made the observation that, in substance, this consideration (paragraph 13.3(1) of the Ministerial Direction) is adverse to any person who has failed the character test and has been convicted of serious crimes. Her Honour further noted that this paragraph of the Ministerial Direction was in effect a deeming provision about how the executive government wishes to articulate community expectations, whether or not there is any objective basis for such belief. Her Honour concluded that it was inevitable that such a consideration will weigh against revocation and indeed that was the intention of paragraph 13.3(1) of the Ministerial Direction. However, the Tribunal does not consider that it is always appropriate to apply this consideration in this way.
[26] [2017] FCA 1466 at [75]-[77]. The approach of Mortimer J in YNQY was also helpfully considered by Deputy President Forgie in Re: Ayache and Minister for Immigration and Border Protection [2018] AATA 310 at [60]-[75].

Each person’s circumstances must be individually considered on their merits. There are also the other factors that should be (and are) considered: including the relevant sentences imposed by the courts on the Applicant for his offending, the time served, the time he has lived in Australia, his family ties, his daughter who is an Australian citizen and his prospects for rehabilitation. In substance this consideration will generally weigh against revocation in circumstances where a person has been convicted of serious crimes, but sight must not be lost of the use of the phrase “may be appropriate” in paragraph 13.3(1) of the Ministerial Direction and the overall discretionary nature of the power to revoke. The effect of this is that, although this consideration is “inextricably linked to the other primary consideration of protection of the Australian community”[27] and a person’s previous offending, the Australian community may nonetheless expect revocation having regard to other relevant matters.
[27] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
When considering this matter, application of the first sentence requires obedience to the law. It is not an unreasonable expectation.
Very little was contended for by the Applicant concerning this consideration both in the witness box and in the written submissions prepared by his lawyers. Largely his evidence concerning other considerations was adopted and principally it was his explanation for the offending, his insight into the seriousness of his offending coupled with the effects on both his biological children and stepchildren given that they are all in Australia. A corollary of this argument was that at the end of the day to not revoke the mandatory cancellation to some degree would have the effect of causing the process to be used for punitive measures or perhaps more accurately, an additional punitive effect.
The Respondent emphasised the seriousness of the offending and that it was undertaken so soon after the Applicant’s arrival in Australia. It was also contended that the offending was for financial gain. In such circumstances it showed a complete disregard for the harm that it could cause to the community and was a significant breach of the trust that the community had placed in him. Therefore, he does not meet the expectation of obedience to the laws.
The Tribunal does find that this expectation weighs heavily against revocation of the mandatory cancellation decision. Heroin trafficking is not only serious in a criminal sense but it is destructive as noted above for all the reasons identified. It is a crime that is abhorrent to most members of the Australian community whom will generally expect that a non-citizen who engages in such activity would not be permitted either entry to or permission to stay in Australia.[28]
[28] See Ang v Minister for Immigration and Ethnic Affairs (1980) 40 FLR 410 at [417].
There are of course also the provisions of paragraph 6.3 of the Preamble to the Ministerial Direction which state that “[i]n 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”.[29] Also that “Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for only a short period of time”.[30]
[29] Paragraph 6.3(4).
[30] Paragraph 6.3(5).
The expectations of the Australian community would be that the Tribunal finds not to revoke the mandatory visa cancellation of the Applicant. There are several reasons for this which have been articulated earlier:[31]
·Firstly, the seriousness of the offence;
·Secondly, the fact that such serious offending occurred after a relatively short time in Australia;
·Thirdly, the offending was undertaken by an intelligent and educated man who had a well-developed sense of what is right and wrong;
·Fourthly, the Applicant offended when he was not a drug user or drug addict, not a gambler and not under any pressing financial stress; and
·Fifthly, he offended at a time when he had parental responsibilities that he had undertaken, for children who he gave evidence to the Tribunal about that he had a deep and affectionate bond for, when he knew that if convicted for such offending it would place their future welfare in jeopardy by reason of the inevitable prison sentence he would serve.
[31] All of the above analysis is relied upon concerning the Applicant’s offending in reaching this conclusion.
Therefore, this consideration weighs heavily against the revocation of the decision to cancel the Applicant’s visa.
OTHER CONSIDERATIONS
There are “Other considerations” that should be considered in revocation matters which are identified in paragraph 14(1) of the Ministerial Direction. It provides that:
(1)       … 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
Paragraph 14.1 of the Ministerial Direction provides as follows in relation to Australia’s non-refoulement obligations:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section
48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
In addressing this consideration, the task of the Tribunal is to consider whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa under section 501CA(4). The language used in paragraph 14.1 of the Ministerial Direction requires the Tribunal to assess whether the Applicant will be at risk of a specific type of harm such that it would trigger the application of Australia’s international non-refoulement obligations.
In assessing whether any non-refoulement obligations are owed and what they may be, the level of analysis required by the Tribunal in this application is less than that required when assessing a claim for a protection visa.[32] Additionally, the Tribunal cannot in this application engage in the level of evidentiary analysis that would be undertaken if a protection visa application were claimed in the conventional way by those tasked with processing such claims. The application before this Tribunal which is an expedited hearing, requires such an assessment to be undertaken within a limited time span and therefore, it cannot and does not have access to the extensive amount of evidence normally laid before it during the course of a protection visa hearing.
[32] See Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513.
The Applicant contends that Australia’s international non-refoulement obligations are engaged because he fears harm on several grounds.[33]
[33] Paragraphs 141 and 142 of the ASFIC are referred to.
The harm described is that if he were to return to Vietnam, in Vietnamese culture he will suffer loss of face, and is expecting discrimination and ridicule as he had become involved in drug smuggling. This means he has disgraced his family. It was further articulated that he would suffer “reprisal actions” in the form of ridicule, harassment and discrimination. It is also asserted he would be isolated from his family by reason of his offending.
The Respondent asserts that these contentions are not relevant in the Applicant’s circumstances.
Several things should be observed concerning this claim. There was no other material or evidence before the Tribunal concerning the allegations that the Applicant has made. There was no evidence before the Tribunal that what he may be exposed to constituted harm or more accurately a risk of a specific type of harm contemplated within the meaning of paragraph 14.1 of the Ministerial Direction. These include such things as torture, inhumane or degrading treatment or punishment. At best if the Applicant’s offending becomes known to the society or social circles that he mixes in and his contentions are accepted (which the Tribunal does not readily do), within those circles he would face some level, although it cannot be predicted exactly how much, of social isolation.
There is no evidence as to the type of harassment and discrimination he might face on return to Vietnam. This has to be looked at with some degree of realism particularly, if he is to live in larger Vietnamese cities where his previous criminal history is less likely to be known or capable of becoming known to the persons with whom he is likely to interact.
For these reasons, the Tribunal is satisfied that Australia’s international non-refoulement obligations are not engaged in relation to the Applicant.
Strength, nature and duration of ties to Australia
The Ministerial Direction at paragraph 14.2 addresses the matters to be taken into account for this consideration:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-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).
Very little was submitted by the Applicant to the Tribunal with respect to this consideration. In the circumstances the Tribunal will take into account all the evidence that has been adduced nonetheless, that may touch on this consideration.
As noted earlier the Applicant arrived in Australia in March 2011 at the age of 27 years. His offending occurred comparatively soon after his arrival.
He had comparatively few years working here prior to his arrest. There was little evidence as to his employment during that period other than that he initially worked with his mother-in–law’s business and then as a kitchen hand in a restaurant. His contribution must have been, by reason of this fact, fairly limited.
In terms of this consideration, having regard to paragraph 14.2(1)(a)(i) of the Ministerial Direction, less weight should be given by reason of these matters. As there has been comparatively limited time during which the Applicant has spent contributing positively to the Australian community, limited weight if any, can be placed upon it as required by paragraph 14.2 (1)(a)(ii) of the Ministerial Direction.
Within the context of paragraph 14.2(1)(b) of the Ministerial Direction the Tribunal acknowledges that the Applicant now has two biological children in this country. The mothers of both biological children are apparently in Australia. His biological son is now a permanent resident as is his mother. His daughter was born here and by reason of same is an Australian citizen. No doubt they will continue to live here and grow into young adults. The observations concerning his relationship with his three stepchildren earlier in these reasons are referred to and repeated. The effect on his children as recorded above is noted and repeated.
However, the Applicant’s parents and siblings all reside in Vietnam. Since his arrival in Australia, the Applicant frequently visited Vietnam and maintained his contacts there.
Overall, by reason of the effect on his children this consideration weighs marginally in favour of revocation of the mandatory visa cancellation.
Extent of impediments if returned to Vietnam
Paragraph 14.5(1) of the Ministerial Direction requires the Tribunal to consider the extent of any impediments if the Applicant is removed from Australia as follows:
(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.
The Applicant contends that he will face some impediments were he to be returned to Vietnam.[34] Once again the written submissions were comparatively limited on this consideration. The thrust of them was to assert that there would be irreparable harm caused to his family in Australia. It was submitted that whilst he is in Vietnam, there would be no possibility of remedying that harm. The harm being that the family ties that he has in this country would be removed or cut.
[34] Paragraph 147 of the ASFIC are referred to.
In the context of the criteria that the decision-maker is required to take into account in paragraph 14.5(1) of the Ministerial Direction several things emerge.
The Applicant is 34 years of age and has spent the majority of his life in Vietnam. He is apparently in good health.
There are no language or cultural barriers to his return that the Tribunal is aware of. Indeed, as noted earlier his parents and all his siblings continue to remain in Vietnam. Presumably, they would be able to offer him the necessary support required to re-establishing himself in that country.
It also should be repeated under this consideration that he is a highly intelligent man with a good education from Vietnam and a university degree. He gave evidence that after leaving university he worked for an import-export company. There does not seem to be any reason why he ought not be able to re-establish himself to a reasonable level due to this educational advantage that he has, so that he would be able to maintain not only basic living standards in the context of what is generally available for citizens of Vietnam, but probably do even better. His dedication to further study whilst in prison indicates that he has the capacity to adapt to situations of adversity for his overall benefit. There does not seem any reason why this capacity for adaptation could not be applied by him to re-establish a good living standard and lifestyle upon his return to Vietnam.
The Respondent accepts that the Applicant would suffer some emotional hardship but nonetheless asserts that it should not have a direct bearing on his ability to re-establish himself and maintain basic living standards. The Tribunal accepts this contention. It is in any event not an impediment within the contemplation of the language used in paragraph 14.5(1) of the Ministerial Direction.
The Tribunal finds that the impediments that Applicant will face if he returns to Vietnam (if indeed he does face them) do not fall within the meaning of paragraph 14.5(1) of the Ministerial Direction and therefore, do not weigh in favour of revocation of the mandatory visa cancellation.
CONSIDERATION AND CONCLUSION
The Tribunal finds that the nature and seriousness of the Applicant’s offending is serious within the meaning of paragraph 13.1.1 of the Ministerial Direction in all respects and weighs very heavily against revocation.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct as contemplated by paragraph 13.1.2 of the Ministerial Direction is such that the potential harm to and impact on individuals and the Australian community is considerable. Heroin trafficking is abhorrent to most members of the Australian community. Its consequences for the community are wide ranging and extremely damaging. The Tribunal finds that it weighs against the revocation decision.
The Tribunal acknowledges and finds that with respect to the primary consideration of the best interests of minor children within the meaning of paragraph 13.2(4) of the Ministerial Direction, it weighs heavily in the Applicant’s favour.
The expectations of the Australian community referred to in paragraph 13.3 of the Ministerial Direction weigh heavily against the revocation of the decision to cancel the Applicant’s visa.
The Tribunal finds that because of the presence of the Applicant’s biological children and stepchildren in Australia, the strength, nature and duration of ties to Australia weigh marginally in favour of revocation of the mandatory visa cancellation.
The Tribunal does not find that the Applicant will face any impediments within the meaning of paragraph 14.5(1) of the Ministerial Direction if he returns to Vietnam. This weighs in favour of revocation of the mandatory visa cancellation.
When all the considerations are weighed up and the appropriate balance placed on them, the Tribunal finds that it cannot be satisfied that there is another reason why the mandatory visa cancellation should be revoked.
DECISION

The Tribunal affirms the reviewable decision.

I certify that the preceding 160 (one hundred and sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Cameron.

...................[sgd]..........................................
Associate
Dated: 20 December 2018

Date of hearing: 7 December 2018

Advocate for the Applicant:
Aila Melasecca & Jonty Simmons

Solicitors for the Applicant: Aila Rose Melasecca Barristers & Solicitors

Advocate for the Respondent: Christopher Brinley

Solicitors for the Respondent: Clayton Utz Lawyers

Date of hearing:	7 December 2018
Advocate for the Applicant:	Aila Melasecca & Jonty Simmons
Solicitors for the Applicant:	Aila Rose Melasecca Barristers & Solicitors
Advocate for the Respondent:	Christopher Brinley
Solicitors for the Respondent:	Clayton Utz Lawyers