Nguyen and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 2006
•14 August 2025
Nguyen and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2006 (14 August 2025)
Applicant:Van Do Nguyen
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3752
Tribunal:Deputy President K McMillan KC
Place:Brisbane
Date of Decision: 14 August 2025
Date of Reasons: 7 October 2025
Decision:Pursuant to s 105(c)(i) of the Administrative Review Tribunal Act 2024 (Cth), this Tribunal sets aside the decision under review made by a delegate of the Respondent on 23 May 2025 and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class BS Subclass 801 Partner Visa
................[Sgnd]............................................
Deputy President K McMillan KC
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY subclass 444 Special Category (Temporary) Visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 –– decision under review set aside
Legislation
Migration Act 1958 (Cth)
Cases
Bui and Minister for immigration and Multicultural Affairs [2025] ARTA 217
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
GNRK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 250
Gray v Minister for Immigration and Border Protection (2024) AATA 3363
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Plaintiff M1/2021 v Minister for Home Affairs [2022] 275 CLR 582
Rana v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003
Secondary Materials
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
On 7 October 2025 I determined to set aside the Respondent’s decision not to revoke the cancellation of the Applicant’s visa. These are my reasons.
The Applicant is a 33 year old citizen of Vietnam who came to Australia on a Student visa on 17 August 2013 when he was 21 years old. The most recent visa held by him was a Partner (subclass 801) visa (visa). His visa was cancelled on 8 March 2023 due to his criminal offending. On 23 May 2025 a delegate decided not to revoke the cancellation of the Applicant’s visa.
The cancellation of the visa on 8 March 2023was mandatory. Section 501(3A) of the Migration Act 1958 (Cth) (the Act) relevantly provides that the Minister must cancel a visa that has been granted to a person if:
· the Minister 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); and
· 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.
Under s 501(6)(a) of the Act, a person will not pass the character test if they have ‘a substantial criminal record’. Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have ‘been sentenced to a term of imprisonment of 12 months or more’[1].
[1] It is the term of imprisonment to which the applicant was sentenced, not the term actually served, that is relevant when determining the term of imprisonment - See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
On 18 October 2022 the Applicant was sentenced to an immediate term of imprisonment of 4 years backdated to 28 August 2022, with eligibility for parole after serving half of his sentence. On 8 March 2023, while he was serving that full time custodial sentence, a delegate of the Minister (the Respondent) mandatorily cancelled his visa because the applicant had been sentenced to a term of imprisonment of more than 12 months and therefore the Applicant did not pass the character test.
The Minister is required to notify a non-citizen whose visa has been cancelled under s 501(3A) of the Act. The notice must include an invitation to make representations to the Minister about revocation of that decision.[2] The Applicant made such representations.
[2] 501CA(3)(b)
A mandatory visa cancellation can be revoked under s 501CA(4) of the Act which states:
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.
On 23 May 2025 the Respondent decided not to revoke the cancellation of the applicant’s visa (the cancellation decision). On 27 May 2025 the Applicant lodged an application in the Administrative Appeals Tribunal (AAT) seeking review of the cancellation decision pursuant to s 500(1)(ba) of the Act.
From 14 October 2024, the AAT ceased operation and the Administrative Review Tribunal (the Tribunal) commenced. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be applications for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act and, for the reasons set out below, that he does not pass the character test[3]. The issue I had to determine is whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa. If there is, I may set aside the original decision.[4] I determined there was another reason.
[3] R2 GD 66
[4] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
The hearing of this application took place on 29 and 30 July 2025.The Applicant, the Applicant’s wife, Mr Cummins, a psychologist and the Applicant’s prospective employer gave evidence via audiovisual means.
Annexure A contains the written evidence the Tribunal received.
HAS THE APPLICANT PASSED THE CHARACTER TEST?
I am satisfied that the Applicant has a ‘substantial criminal record’ as defined by s 501(7) of the Act, as he was sentenced to a term of imprisonment of more than 12 months on 18 October 2022. He therefore does not pass the character test in s 501(6)(a) of the Act.
The Applicant concedes he does not pass the ‘character test’[5].
[5] A1 p3
IS THERE IS ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In applying s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) applies.
For the purposes of deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains 8 principles which provide the framework for decision making to revoke a mandatory cancellation under section 501CA:
· 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.
· The safety of the Australian Community is the highest priority of the Australian Government.
· Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
· The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
· Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
· With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
· Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
· The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that, informed by the principles in paragraph 5.2 of the Direction, I must take into account the considerations identified in sections 8 and 9, where relevant to my decision.
Paragraph 8 of the Direction sets out 5 ‘Primary Considerations’ that the Tribunal must take into account:
(1)the protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out 4 ‘Other Considerations’ which I must take into account, which include, but are not limited to:
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests
Paragraph 7 of the Direction states:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Section 501CA(4) confers ‘a wide discretionary power’ to revoke a mandatory cancellation, if the decision-maker, in this case the Tribunal, is satisfied that there is ‘another reason’ why the cancellation should be revoked.[6] The majority of the High Court of Australia in Plaintiff M1/2021 v Minister for Home Affairs[7] noted that the assessment of whether there is, in fact, ‘another reason’ is to be undertaken by reference to the representations made by the applicant.
[6] Migration Act, s 501CA(4).
[7] Plaintiff M1/2021 v Minister for Home Affairs [2022] 275 CLR 582 at [22]. See also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398 at [13]-[15]; Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2024) 94 ALJR 594 at [6].
I respectfully adopt the analysis by DP O’Donovan[8] that the task of the Tribunal is to evaluate the factors for and against revocation, and, if there exists ‘another reason’, to act upon that view.
Primary Consideration 1: protection of the Australian community
[8] Gray v Minister for Immigration and Border Protection (2024) AATA 3363
For this primary consideration, paragraph 8.1(1) of the Direction says that decision-makers should keep in mind:
(a)the safety of the Australian community is the highest priority of the Australian Government;
(b)the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens; and
(c)decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of the Direction says that decision-makers should give consideration to:
(a)the nature and seriousness of the Applicant’s conduct to date; and
(b)the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
In assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I have considered the following relevant matters listed in paragraph 8.1.1(1) of the Direction:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending or other conduct on any victims and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has 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); and
(i)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant offending history consists of 3 drug related offences committed between April to July of 2021 for which he was sentenced on 18 October 2022. The applicant was involved in a cannabis cultivation project. On a search conducted by police of 2 residences, they found hydroponic facilities which had been converted for the purposes of growing cannabis. A total of 491 plants were under cultivation and 20.3 kilograms of cannabis had been harvested.[9]
[9] R3 TB 4-8
In sentencing the Applicant, Bowden J referred to the sophisticated nature of the enterprise in each of the residences and the fit out being for the specific purpose of growth and cultivation of cannabis on a commercial basis.[10]
[10]R2GD37
The Applicant has consistently been recognised as no more than a small cog in a bigger machine[11]; he accepted his offending was serious, that he was responsible for his unlawful actions and decisions, and that his behaviour contributed towards the production of large amounts of a prohibited drug.
[11] R2GD38
While the maximum penalty was 10 years for each count, the Applicant was sentenced to 4 years imprisonment on each count to be served concurrently.
Drug offences can be characterised as ‘serious’ under the Direction and the Applicant appropriately makes that concession. Whilst it was accepted he was a small cog in a much larger machine[12], the scale of the enterprise and the amount of cannabis he had in his possession warranted a declaration that he was a drug trafficker. The Applicant was motivated by financial gain at a time of financial stress.[13]
[12] R2GD 38
[13]R2 GD 38
The Applicant has no convictions for violent or sexual offending, nor do these offences constitute ‘domestic and family violence’.
There is no evidence that the applicant provided false and misleading information to the Department or otherwise engaged the factors in Directions 8.1(1) (a ) or (b). There was no evidence that the Applicant received a warning as to criminal activity and the consequences to the status of his visa before he committed his offending.
I find the Applicant’s offending to be ‘serious’ for the purposes of paragraph 8.1 of the Direction.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
The Direction states that in considering the need to protect the Australian Community from harm, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[14]
[14] Paragraph 8.1.2(1) of the Direction.
I have regard to the following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(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; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.[15]
Nature of the harm if the Applicant reoffended in a similar manner
[15] Paragraph 8.1.2(2) of the Direction.
The Applicant again properly concedes that if he reoffends, the harm posed to the Australian community has the potential to be very serious, as articulated in GNRK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[16] The sale and supply of illicit drugs has significant physical psychological and financial harm to members of the community, particularly when this was part of a commercial enterprise.
[16] [2021] AATA 250 at [145-147].
There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment of the likelihood of the Applicant engaging in such conduct[17]
[17] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7 at [41] per Kenny J.
The Tribunal and superior courts have extensively considered the issues surrounding the risk under s 501(6)(d) of the Act, from which paragraphs 8.1.2(1) and (2) of the Direction are drawn.
The Tribunal’s task is to ascertain the realistic level of risk posed by the Applicant at the time of its decision, “an unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates , what the consequences will be . Whether a risk is unacceptable will depend not only upon the likelihood of it becoming a reality ,but also the seriousness of the consequences if it does.”[18]
[18] Nigro v Secretary to the Department of Justice[2013] VSCA 213; 41 VR 359at 389[111] and cited with approval by Mortimer J( as she then was ) in Tanielu v Minister Immigration and Broder Protection [2014] FCA 673; and
The Tribunal was referred to a number of relevant decisions as to other drug related convictions, for example Bui, in which Senior Member Mercer described ‘crop sitting’ as ‘not in and of itself so serious that any repetition of it would be unacceptable’.[19] However it is my view that while Bui and other cases are helpful to assess risk, each must turn upon its facts. The sentencing Judge found that the that the period of the Applicant’s offending was for a limited time between April to July of 2021 and included tending the plants on occasions and possession of cannabis which was to be given to other syndicate bosses or members and was committed at a time of familial financial stress[20]. It is my view that any repetition of this conduct would not fall within the type of risk identified as being unacceptable.
Likelihood of reoffending
[19] Bui and Minister for immigration and Multicultural Affairs [2025] ARTA 217 per Senior Member Mercer at [127]
[20] R2 GD 38
The Applicant had lived in Australia for 8 years prior to his offending. He had commenced but did not complete study for a Diploma and also a Master of Business Administration. He met and married his former partner, Ms K in 2018. This relationship came under strain and he relocated to Perth, where he met his current wife, Ms D in or around 2020 and commenced a relationship with her in 2021. She had a child from a previous relationship, R, who has significant disabilities.
The Applicant remained in Perth and worked until April 2021 as fence constructor. He was aware that his Mother was hospitalised for 2 to 3 months for renal failure[21] and he felt under considerable pressure to support his Mother, partner and step-son. It was at this time he became involved in the criminal enterprise.
[21] ASFIC [9]
He was arrested in July 2021 and after obtaining bail in August 2021, he recommenced work in November 2021 as a cabinetmaker.[22]
[22] Ibid [9-14]
Ms D gave birth to their daughter, P, in March 2022. Ms D also became an Australian citizen that year and she and the Applicant married on 10 October 2022.
On 28 August 2022 the Applicant was remanded in custody (after entering a plea of guilty to the 3 offences). On 18 October 2022 the Applicant was sentenced for the 3 offences.
On 27 April 2023 he was approved for transfer to a minimum security at Wooroolo Prison Farm and remained there until his release on parole on 26 August 2024[23].
[23] GD57
He was then transferred to Yongah Hill immigration Detention Centre where he currently remains.
Assessment as to risk
The Applicant undertook ‘A Risk of Reoffending - Prison Version (RoR-PV) Assessment’ while he was incarcerated. He was ‘not recommended for criminogenic programs at this time due to low risk of reoffending.’ [24]
[24] GD 55.
The sentencing Judge noted the applicant was remorseful for his offending.[25]
[25] GD59
While he was imprisoned, the Applicant engaged in voluntary programs and was employed. His Individual Management Plan (IMP) from April 2023 did not demonstrate a need ‘for General Offending intervention’. He was not further assessed or recommended for criminogenic programs.
The Applicant completed the following voluntary programs while incarcerated:
a.Certificate I in General Education;
b.Barista course;
c.Bringing Up Great Kids Parenting Group;
d.Active Parenting;
e.Sycamore Tree;
f.Certificate II in Workplace Skills and Food Handler Training Program.
The order of the Parole Board noted the Applicant’s participation in voluntary programs and recorded him as being of low risk of reoffending, noting and that if he was released, he would not pose an unacceptable risk to the community.
The Applicant also has a current offer of employment upon release from detention with his wife's employer, Ms T at her nail salon A Nail & Beauty. She confirmed in her oral evidence, that she knew of the Applicant’s convictions and was prepared to employ him.
Cummins Report - Independent assessment of risk:
Mr Cummins, a clinical and forensic psychologist, formed the opinion that the Applicant’s ‘offending was situationally motivated and opportunistic, against a background where he and his wife were experiencing financial distress’.[26] The facts of the relevant situation included that the Applicant had recently relocated interstate (seemingly without much preparation), had engaged in a new relationship with a partner who had a child, was seeking work in a new State during the Covid-19 pandemic, and felt shame and embarrassment regarding his ability to financially provide for his family.44
[26] GD 144
While the Applicant was in the community on bail, his wife had a baby and ceased working for a period of time. The Applicant was the sole income earner for his family and he understood turning to crime would only have negatively impacted him, the community and his family. He demonstrated while on bail, notwithstanding financial stress, he was able to resist becoming involved in criminal activity.
Mr Cummins' conclusion was that the Applicant's:
...risk for committing another offence was low … In my opinion, in this situation a Low risk should be equated to being a negligible risk...ln my opinion [the Applicant] does not require any offence specific treatment.
In this regard I formed the opinion [the Applicant] had learnt his lesson. At interview he acknowledged he had already "paid a high price" in relation to his offending, as reflected in him being separated from his wife and their children.. [27]
[27] GD 144
The following are relevant to the Tribunal’s assessment of reoffending:
(a)The absence of any offending while on bail for 13 months;
(b)That his guilty plea was at an early stage, described as a “fast track” plea;
(c)The sentencing Judge in her remarks recorded that the Applicant had no prior offending, full time employment and was supporting his partner and his family in Vietnam; that he spoke poor English and that imprisonment was possibly a greater hardship on him than on others;
(d)The sentencing Judge’s assessment that he had good prospects of rehabilitation and he was not likely to be involved in further offending;[28]
(e)His expressed remorse for his offending and his evidence and demeanour whilst giving evidence reflected that;
(f)The reports of his time in prison and detention are largely uneventful;
(g)He has the protective factors of his wife and two children, with contact maintained whilst incarcerated. His relationship with his wife and step-son was still relatively recent at the time of his offending .
(h)Whilst he has undertaken courses, none bear directly upon his ability to identify the ways in which he would respond differently if he finds himself in a similar situation [29]
(i)The Applicant has avoided the opportunity to be involved in or use illicit drugs while in prison and immigration [30].Whilst some of the sources relied upon in submissions as to the prevalence of drugs are sourced from media articles, the reference to the recommendations made in the Yongah Hill Immigration Detention Centre Inspection Report published by the Australian Human Rights Commission in April 2024 [31] is of significance. It highlighted issues of widespread use of drugs within the detention centre and the risk that poses to the health and safety to detainees and staff.[32]The Tribunal accepts that the Applicant has not been involved in any illegal activity since 2021.
(j)The Tribunal finds the assessments undertaken of significant assistance in assessing the risk of reoffending
[28] GD39
[29] RSFIC
[30] There appears to be no testing whilst in detention or prison
[31] Yongah Hill Immigration Detention Inspection Report (22 April 2024) Australian Human Rights Commission
[32] ASFIC [55]
Having weighed up the potential harm to the community if the Applicant were to reoffend and the risk posed by him taking into account the above factors, Primary Consideration 1 weighs moderately against revocation of the cancellation of the Applicant’s visa.
Primary Consideration 2: family violence
The Direction defines ‘family violence’ to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes them to be fearful. The Direction provides that a member of a person’s family includes a person who has, or has had, an intimate personal relationship with the relevant person.
Paragraph 8.2(1) of the Direction states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
There is no evidence before the Tribunal that the Applicant has been convicted of an offence, found guilty of an offence, or had charges proven, that involve family violence. There is also no information or evidence from independent and authoritative sources indicating that the Applicant is, or has been, involved in the perpetration of family violence. This Primary Consideration is not relevant.
Primary Consideration 2 is of neutral weight against revocation of the cancellation of the Applicant’s visa.
Primary Consideration 3: strength nature and duration of ties to Australia
Paragraph 8.3 of the Direction says I must consider any impact of the decision on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
I should also consider the strength, nature and duration of any other ties that the Applicant has to the Australian community, having regard to:
(a)how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that:
oless weight should be given where the Applicant began offending soon after arriving in Australia; and
omore weight should be given to time the Applicant 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.
I find that the Applicant has lived in Australia for the past 12 years since the age of 21. He was was employed as a waiter, in retail and as a cabinet maker before and after the offending in 2021. He was also involved in a sporting team. He has contributed positively to the Australian community.
His immediate family in Australia consists of his wife Ms D and two children, R and P aged 7 and 3. Ms D has resided in Australia for the last 13 years and gained citizenship in 2022.
Ms D would be unable to accompany him to Vietnam:- both children are settled and R has challenging health difficulties and consequential needs. Ms D works to support the family and has practical and logistical challenges in parenting the children. P will start kindergarten next year. R is of school age .
Ms D’s mental health has been fragile, including an attempted suicide whilst pregnant with R, described as being overwhelmed with the prospect of being a single parent and coping on her own. Things improved when she formed a relationship with the Applicant and R had a father figure. There was expert evidence before the sentencing Judge from a clinical psychologist.[33] Since October 2022, Ms D has coped with being a single parent with 2 young children with assistance from her parents. Her Mother’s visa expired on 24 July 2025 and her Father has ill health and may need to return to Vietnam should he deteriorate. Concerns are held by the Applicant and Ms D’s family and friends for her welfare.
[33] GD Psychological Report from "Psychological Health Care" written by Ms Heather Whitchurch, Clinical Psychologist, on 24 May 2022
The impact upon on Ms D and her inability to have his support, practically and emotionally, should the Applicant being deported, has been described as ‘catastrophic’.
I accept that the Applicant, having lived in Australia continuously since the age of 21, has significant ties to his community in Australia. Taking into account the impact of any non-revocation decision on the Applicant’s immediate family members in Australia, I give this Primary Consideration very significant weight in favour of the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.4 of the Direction requires me to determine whether a non-revocation decision is or is not in the best interests of a child (under the age of 18 at the time) affected by the decision.
Paragraph 8.4(4) of the Direction sets out a number of factors to take into consideration, which relevantly include:
· the nature and duration of the relationship between the child and the Applicant. 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);
· the extent to which the Applicant 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;
· the impact of the Applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
· the likely effect that any separation from the Applicant would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways; and
· whether there are other persons who already fulfil a parental role in relation to the child;
The Applicant has 2 minor children in Australia:- R and P. R has had no contact with his biological father and the Applicant is the only Father he has known. I find that the Applicant has a parental relationship with R and P.
R was born with an eye condition and has had four surgeries since to correct his vision (the most recent being in 2019).
In January 2024 R was assessed by the Koondoola Child Development Service (speech pathology) following referral in August 2022, as having ‘moderate receptive language difficulty and severe expressive language difficulty’15 and a Service Plan was developed. He was further waitlisted for social work.16
If the Applicant were permitted to remain in Australia, he would continue to play a positive parental role to R. If he was removed from Australia, the Applicant would be unable to continue supporting R (financially, educationally, emotionally, practically or otherwise) or to maintain a meaningful relationship with R, as he would be unable to visit Australia, even for short periods of time.
P and is three years old. Her father was involved in her care for the first 6 months of her life and will expect to do so if allowed to remain in Australia.
It is accepted that she is not of an age to understand her Father’s absence; obviously she would benefit from her father's ongoing presence in her life. Both children’s ability to develop and maintain a meaningful, ongoing relationship with him would effectively all but sever their relationship given their ages.
The Respondent accepts that there will be adverse impacts on the Applicant’s immediate family and concedes this consideration ought be given moderate weight.
I find that both children would each be significantly detrimentally affected by the absence of their father in their lives.
Taking into account the best interests of the children mentioned above cumulatively, this Primary Consideration weighs very significantly in favour of the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5(1) of the Direction says that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.[34]
[34] Paragraph 8.4(1) of the Direction.
Paragraph 8.5(2) of the Direction says that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind, relevantly:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.[35]
[35] Paragraph 8.5(2) of the Direction.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[36]
[36] Paragraph 8.5(3) of the Direction.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined[37]:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
[37] This approach is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185
The Applicant has engaged in unlawful conduct resulting in his convictions on drug related offences, and in so doing, shown a disregard for the laws regulating the community that he seeks to return to.
The Applicant has breached the community's expectation for non-citizens to abide by the law and, as per paragraph 8.5(2) of the Direction, the community expects that the Australian Government can and should cancel the visas of non-citizens if they raise serious character concerns through conduct of the type undertaken by the Applicant.
Primary Consideration 5 weighs significantly against revocation of the cancellation of the Applicant’s visa.
Other Consideration 1 – legal consequences of the decision
There is no claim, and otherwise nothing on the material to suggest that Australia’s non-refoulement obligation are enlivened in relation to the Applicant.
The consequence of affirming the non-revocation decision would be that the Applicant:
(a)will be liable to be removed from Australia as soon as reasonably practicable[38];
(b)must remain in detention until removal[39];
(c)will be prohibited from applying for another visa while in Australia, except for a Protection visa or Bridging visa[40]; and
(d)will be indefinitely excluded from Australia[41].
[38] See 198 of the Act
[39] See s 189 of the Act
[40] See s 500(1)(c) of the Act
[41] See Special Return Criteria 500(1)(c) in Schedule 2 to the Migration Regulations 1994 (Cth),
The Tribunal ought to take into account the legal consequences of a decision because those consequences are part of the legal framework in which the decision is made[42] The Federal Court in Rana v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003 made the following comments regarding this factor (albeit in relation to a section 501 (3) decision):
It follows that the subject matter, scope and purpose of legislation may well require a decision maker to take into account indirect and non-immediate legal consequences that form part of the legal framework of a discretionary decision under that legislation where those consequences flow from the decision by operation of the Act. Consideration of legal consequences does not take place in a vacuum. Relevantly, it is the legal consequences for the person affected by the decision under consideration. Legal consequences may have practical realities in human terms for the person so affected.[43]
[42] Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 at [84]. See also Singh v Minister for Immigration, Migrant Services and Multicultural Affairs [2024] FCA 1273.
[43] At [6]. [12]- [14].
I give this Other Consideration some weight in favour of revocation of the cancellation of the Applicant’s visa.
Other Consideration 2 – extent of impediments if removed
I must take into account the extent of any impediments that the Applicant may face if removed from Australia in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of Vietnam), taking into account:
(a)the Applicant’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to the Applicant.
The Applicant accepts he is unlikely to face any significant cultural barriers if returned to Vietnam. However, his wife and 2 young children live here, and he would suffer emotional, practical and financial distress were he to be returned to Vietnam and permanently banned from re-entering. This weighs in favour of revoking the cancellation decision.
This Other Consideration weighs slightly in favour of revocation of the cancellation of the Applicant’s visa.
Other Consideration 3 - impact on Australian business interests
The Tribunal must consider any impact on Australian business interests of a decision to affirm the reviewable decision. However, Direction 110 makes clear that this consideration should only be given weight where a decision to cancel the Applicant's visa ‘would significantly compromise the delivery of a major project, or delivery of an important service in Australia’.
The Applicant has not identified any Australian business interests that are affected by a decision.
I give this other consideration neutral weight in favour of revocation of the cancellation of the Applicant’s visa.
Any new Other Considerations
No new considerations outside of those listed in the Direction were raised by the Applicant or Respondent.
CONCLUSION
The Tribunal has assessed the considerations as follows:
(a)Primary Consideration 1, Protection of the Australian community, should weigh moderately against revocation of the cancellation decision;
(b)Primary Consideration 3, Strength, nature, and duration of ties to Australia, should weigh significantly in favour of revocation of the cancellation decision;
(c)Primary Consideration 4, Best interest of minor children in Australia, should weigh heavily in favour of revocation of the cancellation decision;
(d)Primary Consideration 5, Expectations of the Australian community, should weigh significantly against revocation of the cancellation decision;
(e)Other Consideration 1, Legal Consequences, weighs moderately in favour of revocation of the cancellation decision; and
(f)Other Consideration 2, Extent of the impediments, weighs slightly in favour of revocation of the cancellation decision.
The task of weighing the considerations must be undertaken noting paragraph 7 of the Direction regarding the weight to be given to primary consideration 1 and that one or more primary considerations may outweigh other primary considerations. I have determined that the weight I give to Primary Considerations 3 and 4, together with Other Considerations 1 and 2 outweigh the weight I give to Primary Considerations 1 and 5.
Application of the Direction therefore favours the revocation of the cancellation of the Applicant’s visa. As a result, the Tribunal finds that there is another reason to revoke the mandatory cancellation of the Applicant’s visa.
Pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal sets aside the decision under review made by a delegate of the Respondent on 23 May 2025 and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class BS Subclass 801 Partner Visa.
Date(s) of hearing: 29 and 30 July 2025 Solicitors for the Applicant: Estrin Saul Lawyers and Migration Specialists Solicitors for the Respondent: Australian Government Solicitor Annexure A – Exhibits Register
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE
RESPONDENT’S SUBMISSIONS
R1
Respondent’s Statement of Facts, Issues and Contentions
15 July 2025
R2
G-Documents – lodged in Administrative Appeals Tribunal proceedings 2025/3752
25 July 2025
R3
Respondent’s Tender Bundle including;
- Documents produced under summons: Western Australia Department of Justice
- Documents produced under summons: Western Australia Police Service
Various
R4
Aide Memoire – Respondent’s contentions
30 July 2025
APPLICANT’S SUBMISSIONS
A1
Applicant’s Statement of Facts, Issues and Contentions
1 July 2025
A2
Applicant’s Bundle of Evidence including;
a) Referral from Community Health Services – Ryan Dang
b) Marriage certificate
c) Notice to tenant of rent increase
d) ASETS Transcript
e) Centrelink – Your family assistance – Dung P Dang
f) Payslips – Sung Phuong Nguyen Dang
g) Statement – Tho Thanh Thanh LE
h) Statement – Van Do Nguyen
i) Statutory Declaration – Dung Phuong Nguyen DANG
j) Statutory Declaration – Thi Thao DAO
k) Thi Kim Lien Nguyen Photographs
Various
A3
Applicant’s Further Bundle of Evidence
Various
A4
Applicant’s Reply
22 July 2025
A5
Applicant’s Summary of Contentions
29 July 2025
OTHER DOCUMENTS LODGED IN MATTER 2025/3752
E1
Agreed Schedule of the Applicant’s Family and Contacts in Australia
25 July 2025
E2
Statement of Agreed Facts
25 July 2025
0