Nguyen and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 967

Nguyen and Minister for Immigration and Citizenship (Migration) [2025] ARTA 967 (1 July 2025)
Applicant:Chi Dien Nguyen
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:      2025/3099
Tribunal:       General Member J Cipolla
Place:Sydney
Date of Decision:                        1 July 2025
Date of Reasons for Decision:    4 July 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides that there is another reason to revoke the cancellation of the Applicant’s visa.

Statement made on 04 July 2025 at 11:43am

CATCHWORDS
MIGRATION – cancellation of Applicant’s Subclass 100 Partner visa – substantial criminal record – money laundering – decision set aside.
LEGISLATION
Migration Act 1958 (Cth) s 501CA (4)
CASES
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
JYVY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] AATA 3617
FYBR v Minister for Home Affairs [2019] FCAFC 185
Irving V Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663
SECONDARY MATERIALS
Direction No. 110, Visa cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA paras 5.2(2), 7(2), 8.1.1(1), 8.1.1(1)(a)-(i), 8.1.1(1)(a)(ii), 8.1.1(a)(iii), 8.1.1(1)(b)(i), 8.1.2(1)-(2), 8.2(1), 8.2(3), 8.2(3)(a)-(d), 8.3(2), 8.3(2)(a)-(b), 8.4(1)-(3), 8.4(4)(a)-(h), 8.5(1)-(4), 9(1)
STATEMENT OF REASONS

BACKGROUND

Mr Chi Dien Nguyen (the Applicant) was born in Vietnam on 10 May 1992.
The Applicant’s father died suddenly of a heart attack in 2008.
The Applicant completed his education in Vietnam to year 9 level.
After the death of his father the Applicant’s mother commenced a relationship with an Australian, who sponsored her for a Subclass 309 Partner visa, the Applicant was included in the Application as a dependent member of his mother’s family unit.
The Applicant and his mother arrived in Australia on 24 February 2011 and on 22 November 2012, the Applicant’s mother was granted a Subclass 100 visa leading to the Applicant and his mother acquiring Australian permanent residence.
The Applicant was 18 years old at the time that he arrived in Australia and did not speak any English. Soon after arriving he enrolled in an English language course. He found it very difficult to learn a new language.
The evidence indicates that despite language difficulties the Applicant sought employment in Melbourne so that he could contribute to his family’s living expenses and from 2011 to 2015 he worked as a kitchen hand in a Vietnamese restaurant, Thanh Dat, in Springvale Victoria.
From 2015 to 2019 he worked as a kitchen hand in a Vietnamese restaurant, Co Do, in Richmond. From November 2019 up until the time of his arrest the Applicant worked as a cook in a Vietnamese restaurant, Co Nam Tra Vinh, in Springvale.
In June 2013, the Applicant returned to Vietnam for a holiday during which time he met his wife, Ms Tran. The couple were married on 5 September 2015. On 2 January 2016, Ms Tran gave birth to the couple’s first daughter Olivia.
During 2019 the Applicant began to experience financial difficulties which he claims were exacerbated by the onset of the Covid 19 pandemic where mandated lockdowns in Victoria forced the Applicant into unemployment.
Due to his poor financial predicament, the Applicant borrowed money from friends and accumulated a significant credit card debt along with a car loan that he was not able to repay.
OFFENDING HISTORY
The evidence before the Tribunal indicates that prior to his offending in 2019, the Applicant did not have any criminal antecedents in Australia or Vietnam.
The evidence submitted by the Applicant indicates that in early 2019 he met a Vietnamese man in a local café in Springvale Victoria who offered to pay him if he agreed to deposit cash into different bank accounts. The plan was that the Applicant would travel to Perth, collect funds, and then distribute them into a range of different bank accounts through automatic teller machines. The Applicant believed that the arrangement may have been unlawful, however, he did not appreciate the seriousness of this conduct. The Applicant claims that because of his poor financial predicament he agreed to perform the task in exchange for payment of $6,000.00. The Applicant hoped this money would assist him in paying off his debts and to support his family.
The Applicant states that on 25 June 2019 he travelled to Perth and committed the offence of ‘unlawful possession’. The Applicant was arrested by police in Western Australia on 27 June 2019. On 10 July 2019 the Applicant was granted bail. After being granted bail, he returned to Melbourne and resumed living with his family and continued working at Co Nam Tra Vinh restaurant in Springvale. The Applicant worked hard during this period to pay off as much of his debt as possible before his upcoming sentencing hearing in Western Australia so that if he was imprisoned his family would be in a better financial position.
In December 2020 the Applicant discovered that his wife was pregnant again. The couple were anxious about the financial pressure of raising a new child and there was discussion had as to whether the pregnancy should continue.
In January 2021, the Applicant and his wife’s relationship broke down, and they decided to separate. Despite the separation they continued to live together under one roof and continued to care for their daughter, Olivia.
On 1 April 2021 the Applicant failed to attend his District Court sentencing hearing in Western Australia and a warrant was issued for his arrest.
The Applicant claims that his failure to attend his sentencing hearing was due to concern for his wife having to care for two children on her own, and his concern about the financial hardship that his wife and family would experience if he was imprisoned.
The Applicant’s second child Ariana was born on 29 July 2021. The Applicant claims to have been involved in the care of both his children and extensively involved in the care of his newborn daughter.
In September 2023 the Applicant and his wife finalised their divorce however, they continued to live under the same roof to coparent their children. They have both expressed a commitment to co-parenting
On 23 November 2023 the Applicant was arrested by police at his home in Melbourne, he was extradited to Perth to attend his sentencing hearing which took place on 19 December 2023 in the District Court of Western Australia.
DISTRICT COURT SENTENCING
The sentencing comments of Judge Massey in the District Court of Western Australia indicates that the Applicant’s wife was also complicit in the offending behaviour.
Judge Massey notes that:
“at the relevant time you and your wife, Ms Tran, were residents of Victoria. On 26 June 2019 you both travelled to Western Australia by plane, landing at 12:40am. Between 12am and 5:40pm you came into possession of $193,145 in cash. You took that cash to your hotel room at the Mantra on Murray. You received instructions via mobile phone, from an identified person who went by the name of Harry02, regarding the disbursement of the funds. You separated the cash in bundles, you recorded post it notes with values and bank account details and attached the notes to the bundles of currency. Ms Tran then took possession of 26 bundles of currency totalling $112,810. Between 5:40pm and 6.05pm she made 8 transactions into six separate bank accounts, totalling $33,460.
Between 6:14pm and 6:47pm she made another 18 transactions into 10 separate bank accounts, totalling $79,350. She then returned to the room, where you left to conduct further transactions. Between 5:40pm and 8:18pm the two of you deposited a total of $167,100 into third-party accounts in 41 separate bank transactions, using automatic teller machines.
On 27 June 2019 at about 10:15am you left the hotel and attended the Commonwealth Bank located at 95 Williams Street, Perth, in possession of $20,000. you conducted three deposits of $5,000 each using an automatic teller machine. At about 10:30am you attended the Commonwealth Bank branch in King Square in Perth and deposited $5,000 at an automatic teller machine.
Police were made aware of the conduct, you were arrested. A search of your bag revealed $6,145 and a number of bank receipts and notes. You were in possession of three mobile phones including an encrypted cipher device for which you declined to supply the access codes. A search of your hotel room was conducted, deposit slips and notes for transactions, a bag containing similar post it notes, and elastic bands and an iPad located in the hotel room showed images of previous deposits of a similar nature in Victoria, occurring from March 2019.”
Judge Massey noted that offending of this type was serious and further noted that the Applicant’s failure to attend his sentencing hearing and his breach of his bail conditions meant that resources had to be expended in locating him, arresting him, and transporting him to Western Australia.
In terms of mitigating factors Judge Massey noted that the Applicant declined to be interviewed by the police via video, however he did provide a statement to the police. The Applicant outlined his involvement in the offending. The Applicant stated that he was involved in this enterprise on behalf of others for about four months. The Applicant admitted his involvement in the offending. Judge Massey noted that the Applicant did not make any mention of his wife’s involvement in the offending “which is understandable given that you clearly wanted to protect her”.
Judge Massey noted that the Applicant was suffering financial hardship at the time which explained his involvement in the offending and that he had significant debts which made the offer of engaging in the offending more attractive to him. Judge Massey noted that the Applicant was not at the top end of the hierarchy with respect to this offending and that those who were in the top of the hierarchy took advantage of people like the Applicant. Judge Massey noted that the offending was not at the lowest end of the scale because of its premeditated nature and as it was not an isolated incident of offending and Judge Massey was “prepared to accept that your offending is below mid-range offending of its type. But not the lowest end of the scale”.
In terms of the breach of bail conditions Judge Massey determined that it was a serious breach of bail, noting that the Applicant was required to appear before the District Court and that despite the Applicant’s explanation that his family was suffering financially and that he wanted to make sure that his family was cared for it did not mitigate his failure to appear. Judge Massey determined that “it is a serious breach of bail in the sense that you didn’t volunteer-voluntarily surrender yourself, you had to be-had to be arrested, you had to be extradited from Victoria and more than two years have gone past since you were meant to appear”.
Judge Massey also took into consideration a range of personal circumstances with respect to mitigating factors. Judge Massey noted that the Applicant migrated to Australia with his mother in 2011 after the death of his father. The Applicant married Ms Tran in 2015 and that there were two children of the relationship. Judge Massey noted that the Applicant and Ms Tran were currently separated but hoped to repair their relationship in the future. Judge Massey noted that the Applicant had undertaken English language courses and had worked as a kitchen hand and chef in Vietnamese restaurants in Victoria. Judge Massey noted that the Applicant did not have any previous criminal record. Judge Massey determined that there was evidence of remorse by the Applicant reflected in his plea of guilty. Judge Massey also noted the Applicant’s cooperation with the police and gave the Applicant credit for that cooperation.
With respect to sentence Judge Massey gave the Applicant credit for his previous good character and his lack of any criminal antecedents up until the point of his offending. Judge Massey gave credit to the Applicant’s character with respect to the care of his family and children. Judge Massey noted that “I think the need for personal deterrents in respect of the unlawful possession is relatively low, but the breach of bail charge I think is a bit higher. There is a significant need for general deterrence though. People such as you who are prepared to assist people involved in obviously criminal enterprises in this way play an important role in those criminal enterprises being able to deal with the profits of your offending”.
Judge Massey concluded that “in my view the seriousness of your offending allied with a high need for general deterrence means it would not be appropriate to suspend the term of imprisonment in respect of either count on the indictment or the breach of bail, so I am not going to suspend the term. I will, however, make you eligible for parole. I will also backdate your sentence to commence on 10 November 2023. So, Mr Nguyen, can you stand up, please? I’ve imposed a term of imprisonment totalling 19 months, 16 months’ imprisonment on the unlawful possession charge and 3 months on the breach of bail. I have made you eligible for parole. What that means is you will be eligible for parole after you have served one half of the sentence imposed, which is on my calculations nine and a half months. I’ve backdated that sentence to 10 November 2023. On my calculations I think 9 ½ months is towards the end of July in 2024 when you will be eligible for parole”.
DELEGATES DECISION
On 20 February 2024 the Applicant’s Class BC Subclass 100 Partner visa was mandatorily cancelled under s 501(3A) of the Migration Act (the Act) as the delegate was satisfied that the Applicant did not pass the character test because of the operation of s 501(6)(a) (substantial criminal record) on the basis of s 501(7(c) because he was serving a sentence of full time imprisonment of 12 months or more after being sentenced to a term of 19 months imprisonment for his criminal offending.
The Applicant made submissions to the Department on 26 November 2024 seeking revocation of the cancellation decision. On 8 April 2025 a Departmental delegate decided not to revoke the cancellation.
REVOCATION SUBMISSIONS MADE TO THE DEPARTMENT
The submission to the Department in support of revocation were made by Michelle Fineberg, a registered migration agent, and are located at pages 82-115 of the G documents.
The submission refers to the Applicant’s migration history to Australia, his relationship history in Australia and the fact that he has two Australian citizen children, with whom he is very close. The submission makes reference to the Applicant’s offending history and subsequent sentence.
In addressing Direction 110 the submission notes that having regard to primary consideration 1, the protection of the Australian community from criminal or other serious conduct, that Direction 110 makes specific reference to the range of conduct that may be considered very serious. The Direction is referable to offences that relate to violence and sexual conduct along with offences against women and children. The submission notes that the Applicant’s conduct was not violent or sexual and that it did not come within the ambit of family violence or did not target or victimise women or children. Further, that the Applicant’s conduct did not involve coercion of any kind, nor did he victimise vulnerable members of the community. The submission notes that the Applicant had no prior record of any criminal history and had only been charged with one count of unlawful possession. The Applicant did not provide misleading information to the Department. It was submitted that the Applicant’s conduct fell within the lower range of serious offending.
With respect to risk to the Australian community should the Applicant commit further offences or engage in other serious conduct the submission noted the following. The Applicant had an offer of ongoing employment by his previous employer if he is released into the community. The Applicant had no prior criminal convictions. During the Applicant’s term of imprisonment and in immigration detention the Applicant was assessed as a low-risk prisoner and detainee. The Applicant was granted parole at the earliest available opportunity. The submission noted that the Applicant’s one-off offending was the result of extreme financial hardship along with resultant untreated depression and anxiety.
The submission notes that the Applicant intends, post-release, to make an appointment with a financial planner. The Applicant’s rehabilitation is not challenged by any drug or alcohol abuse or severe mental health conditions. Apart from the Applicant breaching his bail conditions, the Applicant has demonstrated a low risk of reoffending, and his risk of recidivism was extensively tested in the community over a period of four years between the offending date and the date that he was arrested. The submission notes that prior to sentencing the Applicant never experienced the impact of prison or the prospect of deportation and now appreciates the seriousness of his actions and the respective consequences that he is now facing.
The Applicant is committed to ongoing rehabilitation, the preservation of his family unit, and the submission posits that the Applicant’s risk of reoffending is significantly reduced to very low or remote. The submission states that the seriousness of the potential harm to Australians and the Australian community should the Applicant engage in further serious criminal conduct is ameliorated by the low level of risk.
With respect to the strength, nature and duration of ties to Australia the submission notes that the Applicant has a number of immediate family members residing in Australia, including his ex-wife, the mother of his children who is an Australian citizen, his two daughters who are both Australian citizens, and his mother who is an Australian permanent resident. The submission notes that a number of letters of support have been provided by friends and employers of the Applicant, attesting to his reputation in his local community and to the strong support that he derives from family members in Australia.
The submission states that if a decision was made not to reinstate the Applicant’s visa that it would have a significantly negative and persistent emotional, psychological and financial impact upon his children and his ex-wife. It would also impact his mother. The submission notes that the Applicant’s reputation in his local community along with his consistent work history and strong ties to Australia are such, that primary consideration 3 should be given strong weight with respect to the revocation of the cancellation of the Applicant’s visa.
With respect to the best interests of minor children in Australia affected by the decision, the submission notes that the Applicant has an eight-year-old daughter and a three-year-old daughter who are both Australian citizens. The Applicant during his period of incarceration had done his best to remain in contact with his children. The Applicant is concerned that if he is forced to return to Vietnam that his relationship with his young children particularly his older daughter Olivia will be permanently damaged. The submission posits that significant weight should be given to this primary consideration with respect to the revocation of the cancellation of the Applicant’s visa.
With respect to expectations of the Australian community the submission notes that the Applicant’s character concerns weigh against the revocation of cancellation to some degree but should not weigh heavily on balance.
With respect to other considerations the submission notes that the legal consequence of the decision is that in the event that the Applicant is deported from Australia, it is unlikely that he will be permitted to return. The submission notes that the Applicant does not claim to be owed any protection obligations by Australia. With respect to the extent of impediments if removed from Australia the submission notes that the Applicant would not face significant impediments due to his age, health, language and cultural connection to Vietnam. However, the submission notes that the Applicant could experience difficulties readjusting to life in Vietnam, that he has lost contact with many relatives in Vietnam over the years, and there would be an absence of a support network to assist him to reintegrate into the community. Further to this because of their poor financial predicament the Applicant’s family left behind in Australia may be precluded from visiting the Applicant in Vietnam and saving for the costs of prospective travel would be onerous.

The submission notes having regard to both the primary considerations and other considerations that overall the “scale is ultimately tipped in favour of revocation of the cancellation of the visa, by Mr Nguyen having spent a considerable period of his life contributing positively to the Australian community, he has very strong ties to Australia, the seriousness of the offending being low or below mid-range, and his very low risk of re-offending”.
APPLICANTS STATEMENT OF FACTS ISSUES AND CONTENTIONS
The Applicant’s representative provided a Statement of Facts, Issues and Contentions (SFIC) to the Tribunal dated 5 June 2024, which concedes that the Applicant does not pass the character test under s.501(3A) as defined by s.501(6) and s.501(7) of the Migration Act.
The submission notes that the sole determinative issue before the Tribunal is whether the Tribunal is satisfied that there is another reason to revoke the original decision for the purposes of s 501CA(4)(b)(ii) of the Migration Act.
The SFIC refers to the Applicant’s background including his immigration history.
The SFIC notes that at the time the Applicant was arrested on 27 June 2019, that he immediately admitted to his involvement in the ‘money depositing’ operation and that at time of sentencing the District Court of Western Australia the Judge applied a sentencing discount due to the Applicant’s cooperation with police at every stage of their investigation.
The SFIC notes that the Applicants offending did not fall into the category of very serious offending as contemplated by Direction 110. The submission notes however, that given the Applicant’s sentence of 19 months imprisonment was nominally above 12 months was reflective of both judicial and community views with respect to the gravity of the Applicant’s conduct.
The SFIC notes that with respect to consideration of harm caused to victims and their families that this consideration did not apply in the case as the Applicants offending was of a financial nature.
The SFIC notes that with respect to the frequency of the Applicants offending that it was limited to a four-month period in 2019 and that other than the unlawful possession conviction there was only the subsequent breach of bail charge. The submission notes that the Applicants offending was so short term in its nature that it did not result in a cumulative impact. The submission notes that the Applicants offending did not fall within the prescribed criteria of ‘very serious’ or ‘serious’ as identified in Direction 110. However, it was conceded that a term of imprisonment of 19 months resulted in the Applicant obtaining a substantial criminal record and this should be considered with an appropriate level of seriousness.
In terms of risk of further offending the SFIC notes that a lack of past offending was indicative of a low risk of re-offending. Further that the offending did not involve violence and was financial in nature. Reference was made to comments of the Western Australian Parole Board dated 22 July 2024, where the Board determined that the Applicants release into the community did not pose an unacceptable risk to the safety of the community due to the fact that the Applicant had no prior criminal history, the salutary impact of his first term of imprisonment, the fact that he would be subject to parole supervision, and the fact that the Applicants offending may ground the cancellation of his visa.
Reference was made to the psychologist’s report prepared by Dr Sandra Nguyen, dated 24 March 2025, which noted that the Applicant accepted full responsibility for his wrongdoing and expressed remorse for his actions. The Applicant was also remorseful for the impact that his behaviour had on his ex-wife and his children and on his mother. Dr Nguyen further determined that the risk of the Applicant engaging in reoffending was low.
The submission noted that after the Applicants offending in 2019 and his District Court sentencing in 2023 that the Applicant spent an extended period of time in the community, failing to present at the District Court in Western Australia for sentencing. The submission notes “that the lack of the Applicant reoffending while spending considerable time in the community supports the contention that he is not a danger to the community”.
The submission notes the negative impact that the Applicant’s arrest and subsequent incarceration has had on his two Australian citizen children and that this factor has provided a strong motivation for the Applicant not to reoffend, particularly with regard to the spectre of permanent removal from Australia.
The SFIC notes that family violence is not relevant in this case.
The SFIC notes that with respect to strength, nature and duration of ties to Australia that the Applicant’s mother is an Australian permanent resident, his ex-wife and the mother of his two daughters is an Australian citizen, his daughter Olivia aged 8 (now 9) is an Australian citizen and his daughter Ariana aged 3 is an Australian citizen.
The submission notes that prior to the Applicants offending in 2019, he had lived in Australia for 14 years, he had established a close-knit family, he had contributed to the community by working on a permanent and ongoing basis in the hospitality sector. The submission notes that allowing the Applicant to remain in Australia was consistent with the principles of family unity and conducive to the community’s broader interest in a person successfully rehabilitating.
The SFIC notes that in terms of ‘best interests of minor children’ in Australia that this consideration should be given weight with respect to the revocation of the cancellation of the Applicant’s visa. The submission notes that the Applicants 8-year-old daughter Olivia has maintained regular contact with her father through daily video calls from immigration detention and calls when he was imprisoned. The submission notes that Olivia’s best interests would be served by the presence of her father during her formative years. The submission further notes that the Applicant’s younger daughter Ariana also makes daily video calls to the Applicant with Olivia and that the absence of the Applicant from her life would be detrimental during her formative years. The SFIC notes that the Australian community rightly expects non-citizens living in Australia will respect and abide by Australian laws. The submission notes that given the features of the Applicants offending combined with the best interests of his children that this criterion should be given weight by the Tribunal.
In addressing the legal consequences of the decision, the SFIC notes that the Applicant would be removed from Australia under s 198 of the Act. The Applicant would be subject to classification as an unlawful non-citizen and would be subject to ongoing detention until his removal from Australia. The submission notes that this consideration weighs in the Applicant’s favour. With regard to the extent of impediments if the Applicant was removed the submission notes that the Applicant may experience difficulties readjusting to life in Vietnam given that he has spent a large part of his life in Australia creating a life for himself, and his family and his children and mother would have financial difficulties in visiting the Applicant in Vietnam.
In conclusion the submission notes that whilst the Australian community expects that non-citizens comply with Australian laws that the Tribunal must exercise its discretion by weighing all the relevant considerations. The submission posits that in this case the Applicant’s strong rehabilitative efforts and his compelling family circumstances outweigh the adverse weight attached to his prior offending.
RESPONDENTS STATEMENT OF FACTS ISSUES AND CONTENTIONS
The Respondent’s representative provided a statement of facts issues and contentions (SFIC) to the Tribunal dated 10 June 2025.
The submission makes reference to the Applicant’s background and offending history with reference to his conviction in the District Court of Western Australia on 19 December 2023 for possession of stolen or unlawfully obtained property and breach of bail.
The submission notes the respective issue in the review is whether there is another reason why the cancellation of the Applicant’s visa under S 501CA(4)(b)(ii) of the Act having regard to the principles and considerations prescribed by Direction 110 should be revoked.
The submission notes that Direction 110 requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and that the Australian government is committed to the protection of the Australian community from harm as a result of criminal activity, or other serious conduct by non-citizens.
The Minister’s contention is that the Applicants offending should be considered as being ‘very serious’. The Applicant was involved in the disposal of a significant amount of cash, clearly accrued through criminal enterprise, and that he breached his bail conditions by failing to appear in the District Court of Western Australia for sentencing. Reference was made to the District Court judgement noting that the Applicant absconded for some 2-2 ½ years and had to been arrested in order to attend the court.
The submission notes that if the Applicant were to reoffend the harm caused to the community would be significant given the organised crime that the Applicants offending enabled. The Minister contends that the Applicants offending was not at the lowest end of the scale as stated by the sentencing judge and that the offending involved a sophisticated enterprise in which the Applicant had a trusted role.
The Minister submitted that limited weight should be given to the psychologist’s report prepared by Dr Nguyen, due to the fact Dr Nguyen was not a forensic psychologist and had not administered any risk assessment tools.
The Minister concedes that there is no evidence of any family violence committed by the Applicant.
In terms of the strength, nature and duration of ties to Australia the submission notes that the Applicant had been residing in Australia since the age of 18. Less weight should be given to the length of time that the Applicant had resided in Australia due to the fact that he was an adult when he first arrived. The Minister concedes that the Applicant has immediate family members in Australia including his mother, his ex-wife and his two Australian citizen children. The Minister also accepts the fact that the Applicant had provided a positive contribution to the Australian community through his employment and work history. The Minister submits that those contributions made by the Applicant are significantly outweighed by his offending behaviour which occurred in March 2019, only eight years after his arrival in Australia.
The Minister concedes that the Applicant has two minor children in Australia, Ariana aged 4, and Olivia aged 9. The Minister notes that the children are in the full-time care of their mother and that the Applicant’s relationship with his daughters has been characterised by lengthy absences due to his imprisonment and immigration detention since December 2023. The Minister contends that this consideration weighs somewhat in favour of revocation.
The Minister contends that having regard to the expectations of the Australian community that the Australian community would expect a non-citizen to comply with the laws and regulations of Australia and overall, the Minister submits that this primary consideration weighs heavily against revocation.
With regard to other considerations, the Minister notes, that having regard to the legal consequences of the decision, that the Applicant would be liable to be removed from Australia as soon as reasonably practicable and would not be able to apply for another visa whilst in Australia except a protection visa. The Minister contends that limited weight should be given to this consideration in the Applicant’s favour. The Minister notes that the Applicant had not raised any non-refoulement issues.
Having regard to the extent of impediments if removed, the submission notes that the Applicant had previously conceded that he would not face significant impediments due to his age, health, language or cultural barriers if he was returned to Vietnam. The submission notes that the Applicant was a relatively young man and had experience working as a chef and kitchen hand in Vietnamese restaurants in Australia and could find similar employment in Vietnam. Overall, the Minister submitted that this consideration did not outweigh the other factors against revocation namely, the primary consideration of the protection and expectations of the Australian community. The Minister noted that there was no evidence before the Tribunal that indicated that the Applicant’s removal from Australia would impact an Australian business interest.
The Minister’s position is that the Applicant does not pass the character test, further that having regard to the primary considerations of protection of the Australian community and expectations of the Australian community they weighed very heavily against revocation and outweighed the Applicant’s ties to Australia, the legal consequences of the decision and the extent of any impediments if removed. The Tribunal notes that the concluding paragraph in the submission of the Minister makes no reference to best interests of minor children.
REVIEW HEARING
The Tribunal conducted a review hearing on the 18 June 2025 via Audio-Visual Link. The hearing resumed for a second day on 26 June 2025.
The Applicant appeared at the hearing via video link from Yongah Hill Immigration Detention Centre and his representative Mr Northam also attended the hearing via video link from Sydney. The Respondents representative Ms Rezae attended the hearing via video link from Perth. The Applicant and the Tribunal were assisted by an accredited Vietnamese interpreter who appeared via video link.
At the outset of the review hearing the Tribunal went into detail about the process of merits review, the respective issues in the review and outlined details of how the hearing would be conducted.
The Tribunal noted that the joint tender bundle, received by the Tribunal prior to day 1 of hearing contained a number of recently received summonsed documents. Discussion ensured with respect to the relevance of these documents to the review and with respect to whether the Minister intended to rely on these documents.
The content of these documents was also partially referenced in a supplementary tender bundle of summons material received before the resumption of the hearing on 26 June 2025.
The Ministers representative advised on day 2 of the hearing that the material contained in the summonsed material contained in the joint tender bundle would not be relied on by the Minister and could be removed from the evidence contained in the tender bundle. The Minister’s representative further advised that the material contained in the supplementary bundle would not be relied upon by the Minister and could be removed from the evidence contained in the tender bundle.
This evidence having been removed from the tender bundle forms no part of the Tribunal’s decision making with respect to this review.
The parties elected not to make opening submissions.
Mr Northam took the Applicant through his evidence. The Applicant advised that he had worked in restaurants in Victoria as a cook and he had also been working as a cook since he had been in immigration detention.
The Applicant advised that he came to Australia in 2011 at the age of 18 and that his father passed away suddenly from a heart attack in 2006. The Applicant stated that when he arrived in Australia in 2011, that he did not speak English and that he enrolled in a course that gave him 500 hours of English tuition.
The Applicant advised that he left school in Vietnam in year 9 and that he completed a bakery course.
The Applicant advised that he met his ex-partner in 2014 and that as the relationship developed, they had a child together, Olivia, who was born in 2016.
The Applicant advised that he has a close bond with Olivia now aged 9. The Applicant stated that prior to being incarcerated that he would take his daughter to school, take her to church and accompany her on school excursions. The Applicant stated that his daughter was very fond of his cooking and that he would tell her bedtime stories. The Applicant advised that he had a second daughter Ariana, who he was also close to.
The Applicant advised that at the time of his offending in Western Australia in 2019 that he had been experiencing financial difficulty. The Applicant advised that he lost his job in 2018 and got into significant debt. The Applicant advised that he met somebody in a café in Springvale who told him that he could make money if he agreed to deposit money into various bank accounts. The Applicant stated that he thought it was not a serious offence to undertake until he was arrested. The Applicant stated the police told him at the time of his arrest that his actions were serious and that it could affect the wider community.
The Applicant stated that he was remorseful for his offending behaviour and that he fully understood the impact of his offending upon himself, his children and the community. The Applicant stated that he was cognisant of the fact that if he is removed from Australia that he will never be able to return to Australia unless the Minister agrees to grant him a visa.
The Applicant was asked how this would impact his children. The Applicant stated that it would be a very drastic consequence because his children are very young and that he needs to take care of them and that he believed children needed a father. The Applicant stated that he lost his father at a young age, and he understands how difficult and challenging it is not having a father around to support and look after you. The Applicant stated that he wanted a chance to be close to his daughters, so they do not feel that they do not have a father.
The Applicant was asked what difficulties he may experience attempting to be involved in his children’s life from Vietnam. The Applicant stated that his children were young, they needed a father to be present in their lives. He believed that if he had to return to Vietnam, he will not be beside them to provide support. He would not be able to provide physical support and could only appear via phone calls. He believed that his children would be vulnerable without him around. He stated that his children loved his cooking (which his mother did in his absence) and being removed from his children would break the bond between them.
The Applicant was asked about the impact on his own circumstances if he was removed from Australia. The Applicant stated that he had not been back to Vietnam for the last 10 years. The Applicant stated that he has no close relatives or friends in Vietnam. The Applicant stated that he would not know how to start his life in Vietnam. He advised that he had become used to life in Australia and that he will be in Vietnam by himself and that he will not have access to his children or have his family next to him.
The Applicant in cross-examination confirmed that he had provided two statements in support of the review and that the information contained in those statements was true and correct.
The Applicant advised that his late father had a younger sister resident in Vietnam and that his mother had an elder sister resident in Vietnam. He advised that his ex-wife’s family also resided in Vietnam.
Reference was made to the Applicant’s movement records contained in the joint tender bundle at HB 220. Those records indicated that the Applicant had returned to Vietnam on three occasions since first arriving in Australia, once in 2013, once in 2014, and once in 2015. The evidence indicated that the Applicant had not departed Australia since 17 September 2015. The Applicant stated that he returned to Vietnam to see old friends from school and some friends that he had met virtually online the Applicant stated that he no longer maintained contact with any of these people since he last returned to Vietnam in 2015.

The Applicant confirmed that he arrived in Australia in February 2011 when he was 18 years old and that he had been resident in Victoria since that time. The Applicant advised that he had studied in Vietnam until year 9 and that he had obtained qualifications in baking after leaving school. The Applicant advised that he did not work in Vietnam apart from assisting his mother with a small restaurant that she opened serving breakfast and that his role involved waiting tables.
The Applicant advised that after moving to Australia that he had not travelled back to Vietnam with his ex-wife and that he had only visited his ex-wife’s parents on one of his return visits to Vietnam.
The Applicant stated that he had worked in Australia in restaurants as a cook in Springvale and in Richmond. Reference was made to the submission of Michelle Fineberg submitted to the Department seeking revocation of the cancellation of the Applicant’s visa. The submission notes at paragraph 12 that the Applicant lost his job in 2018 and as a consequence experienced financial difficulty. The Applicant stated that he quit the job because he was expected to engage in too much work, that he believed that he was going to be asked to leave this employment and he left before that occurred. The Applicant stated that due to work pressure he quit.
The Applicant stated that in 2019 he experienced financial difficulty and has accumulated several debts including a car loan debt, credit card debt, and debts to friends and acquaintances. The Applicant stated that in total the debts were around $95,000. The Applicant stated that he worked hard to pay the debts and that he only had $17,000 outstanding on a credit card and $5000 outstanding on his motor vehicle.
It was noted that the Applicant attributed his poor financial position to Covid 19 lockdowns in 2019. It was noted that the pandemic did not commence until March 2020 and hence he would not have been impacted by the pandemic at this time. The Applicant confirmed that reference to this timeline in the statement prepared by Ms Fineberg had been collated with the assistance of a Vietnamese interpreter and read back to him, but the Applicant conceded that the pandemic did not commence until March 2020.
The Applicant advised that since his imprisonment and immigration detention that his ex-wife and mother looked after his daughters. The Applicant confirmed that his ex-wife was a good mother. The Applicant stated that his main form of contact with his daughters was through an iPad.
When asked about how he would establish a life for himself if he was removed to Vietnam, the Applicant stated that he had not thought about this, and did not have any plan. He advised that he did not want to go back to Vietnam, he would not know where to start and that adapting to life in Vietnam would be challenging and that he did not wish to be away from his family.
With regard to employment prospects in Vietnam, the Applicant stated that despite having a bakery course behind him, he had never worked in the baking industry and the only work experience he had in Vietnam was waiting tables for his mother.
The Applicant was questioned about his offending. Prior to answering any questions, the Applicant was given the warning with respect to self-incrimination. In regard to his possession of stolen or unlawfully obtained property the Applicant stated that a person came to see him with respect to the offending. The Applicant flew from Melbourne to Perth. He saw a person in Perth who gave him money to deposit. The Applicant stated that his ex-wife flew to Perth with him. The Applicant stated that the person in Perth that gave him the money to deposit also paid for his flights and hotel accommodation.
It was noted that at the time that the Applicant was apprehended by police in Western Australia, he was in possession of cash and three mobile phones including an encrypted phone. The Applicant advised that with respect to depositing money that he was given instructions over the phone about how to do this.
The Applicant confirmed that he was arrested in Western Australia at a Commonwealth Bank premises on 27 June 2019. The Applicant advised that his ex-wife did not know about the planned offending prior to arriving in Western Australia and that he told her about it after they arrived. The Applicant conceded that his ex-wife believed that they were travelling to Perth for a holiday. The Tribunal noting that the Applicant claimed he was experiencing financial difficulty asked whether his wife questioned him about the proposed travel. The Applicant stated that in Vietnamese culture the wife obeys the husband without question. The Applicant stated that he instructed his ex-wife to deposit money in various bank accounts and that she was unaware of the cash that was in his possession when he was apprehended by police.
The Applicant stated that he held a belief that depositing money into bank accounts was a legitimate activity, due to the fact that banks were involved.
The Applicant claimed that the first point in time in which he realised that he was engaged in criminal activity was when he was arrested. The Applicant stated that he did not ask any questions with respect to the cash that he deposited. The Applicant reiterated that he did not think that depositing money in banks could be associated with criminality. The Applicant advised that the instructions to deposit these funds was provided in Vietnamese. The Applicant stated that he did not question whether or not this was a legitimate enterprise and that he just undertook the task.
It was noted that when the Applicant was arrested, he was found in possession of $6000 in cash along with three mobile phones one of which was encrypted. The Applicant stated that when he was given the money by the contact person that there were two phones provided with the money and that the third phone was his own mobile. The Applicant stated that the contact gave him the encrypted phone. The Applicant stated that he did not give police the access code for the encrypted phone when he was first arrested but gave them the access code at a later point. The Applicant stated that at the time of his arrest he panicked and that his memory was affected.
Reference was made to the sentencing comments in the District Court of Western Australia where Judge Massey noted that the Applicant had a trusted role in what appeared to be a sophisticated criminal enterprise. The Applicant stated that this was the first time that he worked with these people, he was not sure whether they trusted him. It was noted that the police found an iPad belonging to the Applicant in his hotel room which had images that were not dissimilar to the deposits of funds he had made in Western Australia, however, these images related to deposits in Victoria in March 2019. The Applicant explained that these related to repayments of his personal loans and that he kept detailed records on the iPad with respect to these repayments. The Applicant provided the details of the people that had lent him money over time. He described them as people that he had met through his work in Victoria in Vietnamese restaurants. The Applicant stated that he had borrowed money from these people in order to meet his living expenses.
At the resumption of hearing on 26 June 2025 Ms Rezae continued with her cross-examination.
The Applicant was asked to clarify his debt. The Applicant stated that he owed between $50,000 to $55,000 to friends, $17,000 on his credit card and $20,000 on his car loan. The Applicant again clarified that the personal loans had been provided through friends and associates he met through work. The Applicant stated that during the time that he was living in the community whilst on bail, and prior to a warrant being issued for his breach of bail, that he had worked hard to repay these personal loans and that he currently owed around $5000 with respect to these loans.
The Applicant was questioned about the images of records of financial transactions found on his iPad. The Applicant stated that he kept these records as evidence of the repayment of personal loans. The Applicant stated that he made the repayments by depositing money into individual bank accounts and that he kept receipts of the individual bank deposits. Ms Rezae asked the Applicant whether this was similar to the depositing of money in Western Australian banks and the Applicant confirmed that it was.
Ms Rezae asked the Applicant about the breach of bail offence. The Applicant confirmed that he was convicted of the breach of bail offence on 19 December 2023 and confirmed that he had entered into a bail undertaking in Western Australia on 10 March 2020. The Applicant confirmed that the conditions of his bail were altered on 1 February 2021 and he was released from custody. The Applicant stated that after being released back into the community on bail that he continued to work as a cook in Victoria. The Applicant confirmed that after being released on bail he remained the subject of bail conditions in Western Australia. The Applicant agreed that a bail undertaking was a legally binding agreement. The Applicant conceded that he breached his bail conditions by not attending the court date on 1 April 2021. The Applicant confirmed that he failed to attend a sentencing hearing in Western Australia on the date. The Applicant stated the reasons for him not attending was the fact that his wife at the time was 6-7 months pregnant. She was suffering with diabetes during the pregnancy. Concern was expressed by her treating doctor that her diabetic condition could cause miscarriage. The Applicant stated that his family’s financial situation at the time fluctuated and that he did not attend court so that he could continue to work to repay debts. The Applicant stated that he later apologised to the court for this breach.
The Applicant stated that at this time he was living with his pregnant wife in Melbourne. The Applicant was questioned about a period of separation between the couple. The Applicant advised that there were problems that lead to separation and eventually divorce.
The Applicant stated that he and his ex-wife eventually decided to live together to look after their two children because of their young age. Ms Rezae noted that the evidence indicated that when the Applicant’s ex-wife fell pregnant with their second child there was disagreement about the pregnancy continuing. The Applicant confirmed that this was the case. Ms Rezae noted that at this time the Applicant moved out of the family home in November 2020, and went to live with a girlfriend in Melbourne and the Applicant confirmed that this was the case. The Applicant stated that he moved back in with his ex-wife when she became unwell during the pregnancy because of her diabetes and that he provided support to their older daughter and to his ex-wife.
The Applicant confirmed that his ex-wife who had also engaged in offending in Western Australia did attend court for her sentencing and that he failed to appear before the District Court. The Applicant claims his ex-wife asked him to return to Western Australia to face sentencing, however the Applicant claimed that he told his ex-wife that he needed to work to repay his debts and during this time he feared that the police could arrest him at any time.
Ms Rezae noted that the evidence indicated that when the Applicant’s ex-wife attended the District Court in Western Australia she told the court that she did not know where the Applicant was living. Ms Rezae noted that the evidence indicated that the Applicant was living with his girlfriend at this time and the Applicant confirmed that this was the case. The Applicant stated that after his ex-wife had been sentenced in Western Australia to a term of imprisonment to be served in the community that he moved back into the home to support her and their older daughter. The Applicant stated that his ex-wife encouraged him to return to Western Australia for sentencing but he failed to do so. The Applicant confirmed that he lived in the community in breach of bail conditions for close to 2 ½ years.
The Applicant stated that he was eventually arrested in Victoria in 2023 and taken to Western Australia for sentencing. The Applicant stated that he was sentenced to 19 months imprisonment for the unlawful possession charge and for breaching bail conditions.
The Applicant advised that he commenced seeing a clinical psychologist Dr Sandra Nguyen in November 2024. The Applicant confirmed that he discussed the reasons for his offending with Dr Ngyuen, namely that it was attributable to his poor financial situation and the lack of knowledge of the seriousness of the offending behaviour. The Applicant described the offending as having a huge impact on his life.
It was noted that on day one of the hearing the Applicant gave evidence that he lost his job in Victoria in 2019. The Applicant was asked whether he resigned from his position or was let go. The Applicant stated that the employer let him go.
The Applicant was asked whether he agreed that his financial situation had not been impacted by COVID in 2019 and he conceded this was the case. Ms Rezae noted that the Applicant had now retracted his earlier evidence that his financial situation was impacted by Covid 19 lockdowns in Victoria. The Applicant responded by saying that he possibly mixed up the dates of Covid 19 lockdowns, however, he was sure of his financial hardship during this period.
The Applicant confirmed that he was paid $6000 for his criminal offending in Western Australia which was used to help extinguish and $90,000 debt. The Applicant was asked whether his name then three-year-old daughter Olivia travelled to Western Australia with he and his ex-wife. The Applicant confirmed she did. Ms Rezae noted when the Applicant was previously asked about his travel to Western Australia he advised that he only travelled with his wife. The Applicant stated the reason for this was that on the last occasion he was asked this question he was asked whether he travelled with his wife and that is why he responded in the affirmative. Ms Rezae stated that her question was whether the Applicant had travelled with anyone else to Western Australia and the Applicant had not mentioned Olivia. The Applicant stated that he believed that the question only related to his ex-wife. The Applicant advised that when he was arrested in Western Australia that his ex-wife and daughter were not present with him as they were back in the hotel room.
The Applicant was asked whether he was still receiving counselling with Dr Ngyuen. He advised that he was, and that he had seen her on five occasions. The Applicant confirmed that his treatment with Dr Ngyuen was still ongoing. The Applicant believe that his treatment may be completed after one more session.
The Applicant was asked whether he had engaged with a financial planner with respect to managing his finances. The Applicant stated that he had not engaged with a financial planner but he had significantly reduced his debt prior to being imprisoned.
The Applicant stated working with Dr Ngyuen had taught him that when he requires help that he should seek help and be proactive with respect to doing so. The Applicant stated that he would speak to his employer or his mother if he was struggling financially.
The Applicant was asked why he would borrow $50,000 from friends and colleagues. The Applicant stated that because of the loss of employment he had no money to meet living expenses and that’s why he borrowed. The Applicant explained that the $50,000 was not borrowed at once, but consisted of a number of smaller loan amounts.
The Applicant was asked whether he had completed any courses in prison. The Applicant stated that he studied information technology for a couple of months of his prison term. The Applicant confirmed that he had not engaged in rehabilitation programs in prison and stated that the reason for this was his poor English.
The Applicant was asked what he planned to do if he returned to Vietnam. The Applicant believed it would be difficult to find a job. He restated that he had only completed a year 9 education. He advised that to obtain decent work in Vietnam you needed qualifications. The Applicant stated he felt compromised by the fact that he had not been back to Vietnam for 10 years. Ms Rezae stated that as a qualified chef having worked in Vietnamese restaurants in Australia that the Applicant may be able to find work in that field. The Applicant stated that he did not agree. The Applicant stated that in Vietnam he had only studied a bakery course. The Applicant stated that Vietnamese cuisine in Vietnam in Australia is different and that he had largely worked in a mixed Chinese-Vietnamese restaurant.
EVIDENCE OF DR SANDRA NGUYEN CLINICAL PSYCHOLOGIST
Dr Ngyuen advised that she had been treating the Applicant since 28 November 2024. Reference was made to Dr Ngyuen’s report located at HB 178 in the joint tender bundle. The report noted that the Applicant had shown insight into his offending behaviour and had expressed remorse for his actions. He had conceded errors in decision-making and judgement. He conceded that his behaviour had a substantial impact on himself, his ex-wife, on his children and his mother as well as the community at large. The report at HB 179 of the joint tender bundle indicated that the Applicant was committed to counselling sessions and had gained insight into his thoughts and behaviours. Further, his criminal offending had been distressing to him, his mother and children, and that he does not wish to interact with the police or indeed the criminal justice system again. The Applicant acknowledged that he needed ongoing professional help to manage anxiety and depressive symptoms. It was noted that counselling and ongoing psychological intervention would assist the Applicant in developing adaptive coping strategies to manage life’s stressors. Dr Ngyuen opined that the Applicant’s risk of recidivism was low “if he were to be able to continue on this journey”.
Dr Ngyuen stated that she had formed the view of a low risk of recidivism, based on her interactions with the Applicant and based on her clinical judgement. Dr Ngyuen identified a number of protective factors that would reduce the risk of the Applicant engaging in reoffending behaviour. These factors included his mother, his ex-wife, his children, a caring role in his children’s lives, being a member of the local church in Moorabbin Melbourne, and being offered a job in the community as a cook on a full-time basis. Dr Ngyuen stated that she believed the Applicant had a number of future personal goals which included buying a house, providing support to his mother and being a good role model to his daughters. Dr Ngyuen stated that the Applicant was committed to ongoing counselling and that the Applicant had readily engaged in his counselling sessions. Dr Ngyuen opined that the Applicant was willing to turn his life around.
Dr Nguyen advised that the Applicant identified that he had accrued around $95,000 of debts that consisted of credit card debt, a car loan and a number of personal loans. The Applicant had revealed that he had substantially paid off his personal loans but still owed $15,000 on his credit card and $5000 on his car loan and that his car had been repossessed by a Toyota dealership.
Dr Ngyuen opined that if the Applicant was to be released into the community that given that he has an offer of a full-time job he would be able to meet his financial obligations going forward. Dr Ngyuen stated that her sessions had assisted the Applicant in committing to adaptive behaviours and being more communicative and not keeping things bottled up inside. She had also imparted strategies for dealing with stress that included exercise and relaxation. Dr Ngyuen again stated that she believed, based on her clinical assessment, that the chance of the Applicant reoffending was low.

Dr Ngyuen was asked by the Applicant’s representative what she believed would be the impact of a lifetime removal from Australia. Dr Ngyuen described it would be devastating to the Applicant. He had no immediate close family members back in Vietnam, his mother was in Australia, his two children were in Australia and he had spent the last 14 years living in Australia. Dr Ngyuen noted that the Applicant had worked a number of jobs to be a good citizen. Dr Ngyuen stated that there would be a substantial impact on the Applicant’s mother and children.
Dr Ngyuen was questioned by Ms Rezae. Ms Rezae made reference to Dr Ngyuen’s letter of support commencing at HB 176 of the joint tender bundle dated 24 March 2025. Dr Ngyuen confirmed that the contents of the letter of support were true and accurate.
Ms Rezae asked Dr Ngyuen about her qualifications. Dr Ngyuen advised that she had been a psychologist for 26 years, that she had undertaken a doctorate in clinical psychology, that she is a board accredited supervisor, and that she is the holder of a Bachelor of Science.
Ms Rezae asked Dr Ngyuen whether she had any experience in forensic psychology. Dr Ngyuen stated that she was not a forensic psychologist, she had prepared many reports for immigration legal matters and that she had the capacity to make sound clinical judgements. Dr Ngyuen stated that she had experience with forensic psychology but was not a forensic psychologist.
The Tribunal asked for a simple definition of forensic psychology versus clinical psychology. Dr Ngyuen stated that to become a clinical psychologist required a period of additional study and two years of supervised practice in a clinical environment dealing with mental health conditions. Forensic psychology was a speciality pertaining to court related matters where a person was assessed for preparing court reports. Dr Ngyuen stated that both forensic psychologists and clinical psychologists have the capacity to assess the risk of recidivism. Dr Ngyuen noted that tests administered by forensic psychologists included personality testing and lie detection testing. Dr Ngyuen stated that she had been engaged for clinical purposes and not to conduct a battery of tests.
Dr Ngyuen stated that she had seen the Applicant on 6 occasions commencing on 28 November 2024, again in February 2025, March 2025, April 2025, early June 2025 and 17 June 2025. Dr Ngyuen noted that she was due to see the Applicant on 26 June 2025, however the appointment had been delayed because of the reconvening of the hearing before the Tribunal. Dr Ngyuen stated that each of her sessions with the Applicant ran for 50 minutes.
Ms Rezae noted that Dr Ngyuen was treating the Applicant for stress, anxiety and depression, particularly anxiety around his immigration matter. Dr Ngyuen confirmed this.
Ms Rezae asked Dr Ngyuen whether she had reviewed any of the Applicant’s criminal history. Dr Ngyuen stated that she was aware of the Applicant’s offending and sentencing in Western Australia and that she had letters from the Western Australia parole board. Dr Ngyuen had also seen other documents with respect to a police investigation that concluded that there was insufficient evidence to support a conviction.
Dr Ngyuen stated that her understanding of the Applicant’s only convictions related to the matter in Western Australia in which the Applicant had pleaded guilty to money laundering offences. Dr Ngyuen stated that the Applicant had been due to be sentenced for this offending on 1 April 2021, however he failed to attend court and an arrest warrant was issued. The Applicant was arrested in Victoria in November 2023 and eventually sentenced to a 19 month term of imprisonment. Dr Ngyuen stated that the Applicant served a period of imprisonment from 23 November 2023 until 26 August 2024 at which time he was transferred to an immigration detention centre in Western Australia. Dr Ngyuen stated that she was aware that the sentencing pertained to money laundering and a breach of bail.
Dr Ngyuen was asked whether she was aware that the Applicant took his infant daughter to Perth under the pretext of a family holiday, and got his ex-wife involved in the offending. Dr Ngyuen stated that she was aware that the Applicant’s wife was in Western Australia, however she was not aware of his daughter travelling with them or that they had travelled to Western Australia under the pretext of a holiday. Dr Ngyuen was asked whether she was aware that the Applicant had engaged in similar offending in the past and she advised that she was not. Dr Ngyuen was asked if she knew the Applicant had engaged in similar behaviour in the past whether her assessment of the Applicant’s risk would be different. Dr Ngyuen stated that she would need to assess the circumstances of the past offending, along with the type of offending to make a proper determination. Dr Ngyuen was taken to the joint tender bundle at HB 53 paragraph 2 and HB 54 paragraph 1. The first paragraph related to the breach of bail and the second paragraph related to unlawful possession. Dr Ngyuen was asked whether in the light of these paragraphs her assessment of risk would be the same. Dr Ngyuen stated that it would be the same. The Applicant had admitted to engaging in this type of offending over a period of four months and that was corroborated by the timeframe in the sentencing comments of the judge in Western Australia. Once again Dr Ngyuen stated that there were a number of protective factors in place. The Applicant had experienced an extended period of imprisonment and immigration detention, the Applicant had experienced a substantial impact on his life and that of his family. The Applicant was committed to putting changes in place going forward. Dr Ngyuen confirmed that she was not aware at the time of compiling a report that the money laundering offending occurred over a four-month period. Ms Rezae asked Dr Ngyuen if she had the sentencing judges remarks before her report, whether that would change her opinion in respect of the Applicant. Dr Ngyuen stated that she believed that it would not, as the offending occurred within the four-month timeframe referenced in the judge’s comments and Dr Ngyuen once again made reference to the protective factors that she believed were in place with respect to the Applicant.
Ms Rezae asked Dr Ngyuen whether the Applicant had discussed his debt. Dr Ngyuen stated the Applicant told her that he had accumulated a number of personal loan debts to a range of people that amounted to about $60,000 and that he had worked hard to pay most of these debts.
Ms Rezae asked Dr Ngyuen what she meant by her comments at HB page 179 of the joint tender bundle where she opined that the Applicant’s risk of recidivism was low “if he continues on this journey”. Dr Ngyuen stated that if the Applicant continues to have psychological counselling, if he is able to work in a stable work environment, and has the support of family and friends, and is open and honest when he is under stress and relies on the support of the community around him, that the risk of recidivism is low.
Ms Rezae asked Dr Ngyuen how many sessions the Applicant would need to engage in going forward. Dr Ngyuen stated that this was impossible to determine and that when a person engaged in counselling many things arise and that counselling gives an opportunity to ensure that a person is implementing strategies suggested by their counsellor. It also provides a measure of a person’s further counselling needs.
Ms Rezae noted that Dr Ngyuen had opined that the Applicant was remorseful for his offending and asked whether this had been self-reported by the Applicant. Dr Ngyuen stated the Applicant expressed his remorse for his offending, however she had also observed his remorse through his behaviour. Dr Ngyuen stated that when this issue was teased out with the Applicant, that he mentioned the shame that he had caused his family as a consequence of his offending.
The Tribunal invited Dr Ngyuen to expand on the cultural aspects of her assessment. Dr Ngyuen advised that she was of Vietnamese background. Dr Ngyuen stated that saving face is very embedded in Vietnamese culture. Bringing shame to your family is highly frowned upon within Vietnamese culture. Being involved in offending, being imprisoned, and being placed in immigration detention, brings a lot of shame in Vietnamese culture.
Dr Ngyuen noted that as the only son and indeed only child of his mother that culturally, after the Applicant’s father passed away the responsibility to care for his mother solely lies with the Applicant.
The Tribunal asked Dr Ngyuen whether she believed these additional cultural aspects acted in a way to further mitigate the risk of reoffending. Dr Ngyuen stated “yes 100%” and that cultural factors mitigated risk of recidivism and this was compounded by the fact that the Applicant was the only child and indeed only son in his family.
Dr Ngyuen was again asked about protective factors with respect to the Applicant. Dr Ngyuen stated the Applicant’s family, his ex-wife, community support through the church, the Applicant’s two young children and his employment. Ms Rezae noted that these protective factors were in place at the time of the offending and asked Dr Ngyuen why these factors would protect the Applicant in the future. Dr Ngyuen stated that she believed there was a significant difference in circumstances. The Applicant had substantially reduced his debt. The Applicant in his counselling sessions with Dr Ngyuen had discussed how he would deal with debt and stress in the future and how to stop re-engaging in the same mistakes. The Applicant had been given strategies to seek help and to deal with debt. The Applicant had also been given strategies to deal with stress in everyday life.
The Tribunal asked Dr Ngyuen whether she believed a period of imprisonment and an extended period of immigration detention would act as a further incentive to not engage in future offending with respect to the Applicant’s rehabilitation. She agreed that these were significant deterrents.
Dr Ngyuen was questioned by Mr Northam. Discussion was had with respect to the differential between forensic and clinical psychologists. Dr Ngyuen stated that forensic psychologists are employed to conduct a one-off assessment of a client. Dr Ngyuen stated that her opinions as a Clinical Psychologist were formed over a number of extended periods of treatment and hence they were well informed. Mr Northam asked Dr Ngyuen whether she ever formed the view that the Applicant had been untruthful, and she advised that he had not.
EVIDENCE OF WITNESSES
The Applicant’s ex-wife, Ms Oanh Tran gave evidence to the Tribunal. Mr Tran advised the Tribunal that the two statements provided in support of the Applicant dated 24 February 2024 and 20 August 2024 were true and correct.
Ms Tran advised that she met the Applicant in Vietnam in around 2013 and a relationship formed between them. She advised that there were two children of the relationship Olivia aged 9 and Ariana aged 3. Ms Tran advised that she and the Applicant are committed to co-parenting.
Ms Tran advised that the Applicant had a strong bond with their older daughter Olivia. Prior to being incarcerated the Applicant spent a lot of time with Olivia and would take her to church on weekends where she learnt Vietnamese. He would also take her to swimming school, and he would cook for her on a regular basis. She advised that the Applicant lost the love of his father with his early passing and that Olivia missed her father and loved him very much. She advised that Olivia had expressed to her that she loved her father more than her mother.
Ms Tran in her statement of 24 February 2024 indicated that raising children as a single mother was very difficult. Expanding upon this she advised that everything costs a lot of money, even school fees, and that she had no support from her ex-husband since he had been incarcerated. Ms Tran advised that she had been deriving support from her mother-in-law.
In her statement of 20 August 2024, Ms Tran described the Applicant as being a good father. Elaborating on this Ms Tran advised that he did everything he could for his children particularly Olivia, because he had been removed from his younger daughter’s life for an extended period. Ms Tran stated that she could compare the Applicant to her own father and believed that he was a good father.
Ms Tran was asked if the Applicant was unsuccessful in his review and faced a lifetime ban from Australia how that would impact her and impact the children. Ms Tran stated that she could not imagine the extent of the impact. She advised that the Applicant lost his father when he was 14 years old and the impact of losing their father at a young age would be profound on their daughters. Ms Tran stated that her children were Australian citizens and that she cannot take them to Vietnam to live, and he would not be able to visit them in Australia. She described the situation as being a nightmare. Mr Northam noted that some people believed that contact by video is just as good as in person. Ms Tran stated that nothing can compensate for actual presence for example when a child is sick or has an event at school.
Ms Tran states that everybody makes a mistake, she had noted significant positive changes in the Applicant over time and believed that he should be given a chance.
Ms Rezae questioned Ms Tran. Ms Rezae noted that Ms Tran travelled to Vietnam a number of times. Ms Tran advised that she had travelled to Vietnam on four occasions to visit her close family members. She advised that the Applicant never travelled to Vietnam with her. Ms Tran advised that she lived with her daughters and with the Applicant’s mother who provided support caring for the children. Ms Tran stated that it would be difficult to travel to Vietnam to visit the Applicant with her children.
Ms Rezae asked Ms Tran about the Western Australian convictions. Ms Tran stated that when she and the Applicant were caught by the police in Western Australia the police advised them that depositing money in bank accounts in the circumstances was unlawful. Ms Tran stated that she was aware of the Applicant’s breach of bail. Ms Tran stated that she faced the same charges as her ex-husband, however she received a suspended prison sentence.
Ms Rezae asked Ms Tran how she came to be involved in money laundering. Ms Tran stated the family had been under a lot of stress for a long time and that the Applicant had suggested a trip to Perth. She advised that when they arrived in Western Australia the Applicant told her to deposit some money in banks and that she thought doing so would be okay.
Ms Tran was asked why the family had been stressed for a long time since 2018. Ms Tran stated that the Applicant had worked in a restaurant in Victoria and that he lost his job and that the family accumulated debts and suffered financial stress. Ms Tran confirmed that Olivia travelled with them to Perth.
Ms Rezae asked Ms Tran whether the Applicant told her where he had obtained the amount of money to deposit in Western Australia. Ms Tran advised that the Applicant just told her to do it and that it was okay and hence she thought it was normal. Ms Rezae asked Ms Tran whether she questioned the Applicant about having a large amount of money in his possession, in fact over $100,000. Ms Tran stated that the Applicant just asked her to be involved in depositing the money. Ms Tran stated that she did not know that this was illegal. Ms Tran stated that she had not been involved in this type of offending in the past.
Ms Rezae questioned Ms Tran about why the Applicant had failed to return to Western Australia to face District Court sentencing. Ms Tran stated that she separated from the Applicant in early 2021 and that she encouraged him to attend his sentencing in Western Australia.
Ms Tran confirmed that there was disagreement between herself and the Applicant about maintaining her pregnancy with Ariana. Ms Tran advised that she became aware over time that the Applicant had engaged in another relationship.
Ms Tran was asked why the Applicant participated in criminal activity. She advised that the Applicant had accumulated significant debts namely a car loan, he had borrowed money from friends, and he had accumulated credit card debt. Ms Tran advised that after the Applicant lost his job in 2018 that the couple’s financial situation deteriorated. Ms Tran described her current financial circumstances as stable. Ms Tran stated that she hoped the Applicant would be able to remain in Australia to help co-parent their children and that she would pursue child support from him.
Ms Tran confirmed that her daughters had maintained contact with their father by telephone and video calls.
Ms Tran was asked whether she would be able to visit the Applicant if he was returned to Vietnam and she was visiting the country. Ms Tran advised that the Applicant’s family and her family lived about nine hours apart by bus and that it would be difficult to engage in contact.
The Tribunal took evidence from the Applicant’s former and prospective employer Mr Benjamin Lo. Mr Lo advised that he ran a restaurant in Springvale Victoria which was a combination Chinese/Vietnamese restaurant. Mr Lo confirmed that he was familiar with the Applicant’s offending but would have no problem employing him in the future. Mr Lo described the Applicant as being a good chef and stated that it was difficult to source chefs of the calibre of the Applicant. Mr Lo advised that he would remunerate the Applicant between $27-$29 per hour and he advised that he opened a second restaurant and hoped that the Applicant would be able to work for him.
The Tribunal took evidence from Mr Lo’s wife, also the first cousin of the Applicant, Ms Yen Ngoc Vuong. Ms Vuong confirmed her relationship to Mr Lo. She advised that she and her husband operated a restaurant in Springvale in Victoria and had recently opened a second restaurant. Ms Vuong confirmed that she was aware of the Applicant’s offending history and believed that despite that history he was of good character. She noted that he had two young children that needed their father, and it would be a challenge if the Applicant was removed from Australia.
Ms Vuong stated that her mother and the Applicant’s mother were sisters and that there were nine children in the family of whom four brothers and four sisters continued to reside in Vietnam. Ms Vuong stated that she and the Applicant had a number of cousins. Ms Vuong stated that the Applicant may derive some assistance from relatives in Vietnam however, she noted that the Applicant’s earning capacity in Vietnam was small and that he would not be able to provide child support to his two children in Australia and support himself in Vietnam.
CLOSING SUBMISSIONS
Mr Northam noted that if the Applicant was unsuccessful in his review he would face a lifetime ban from Australia and be permanently separated from his two Australian citizen children. Mr Northam noted that the only exception to this would be if the Minister decided to grant the Applicant a visa in the national interest and given the circumstances of the case, argued that this would be highly unlikely. Further Mr Northam noted that there were no non-refoulement issues with respect to the Applicant and noted that the Applicant comes from a peaceful country, Vietnam.
With respect to the Applicant’s offending Mr Northam noted that the Applicant helped distribute money, a money laundering crime and that he had been sentenced with respect to this and paid for the crime. Mr Northam noted that there was no family violence, or other violence involved in the Applicant’s offending history, there was no impact on vulnerable persons, there was no weapon involved. Mr Northam stated that he was not minimising the Applicant’s offending, however, the Tribunal must consider the seriousness of the offending with respect to the Direction and that the offending must be looked at in proportion to other types of offending articulated in the Direction.

Dr Nguyen noted that the Applicant was committed to ongoing counselling and that he had been actively engaged in counselling sessions with her to date. Dr Nguyen noted that the Applicant had significantly reduced his debt level from the highs that led him to engage in the offending behaviour. Dr Nguyen believed that if the Applicant was released into the community with a full-time job that he would be able to meet his financial obligations going forward. Dr Nguyen stated that she had imparted a number of strategies to the Applicant which he could utilise with respect to adaptive behaviours to combat general stress which included exercise and relaxation. Dr Nguyen opined that cultural factors with respect to loss of face and saving face and the shame caused to the family by the Applicant’s actions acted as strong risk mitigation factors in Vietnamese culture.
The Tribunal places significant weight on the findings of Dr Nguyen. Dr Nguyen is a clinical psychologist with 26 post admission experience and a significant level of clinical experience. The Tribunal finds based on the evidence that the following factors provide evidence with respect to mitigation of risk.
The Applicant has served a full-time custodial sentence. There were no behavioural issues or compliance issues identified with respect to the Applicant’s time in prison. The Applicant has spent an extended period of time in immigration detention awaiting the outcome of this review and there is no evidence of behavioural issues or compliance issues identified with respect to the Applicant’s time in immigration detention.
The Applicant’s mother is an Australian permanent resident and is the Applicant’s closest living relative. For reasons discussed the Applicant owes his mother ongoing caring responsibilities within Vietnamese culture. The Applicant has two minor Australian citizen children for which he has maintained a close relationship. The Applicant’s ex-wife is supportive of the Applicant’s return into the community to provide assistance to her with respect to co-parenting the children and with respect to provision of ongoing financial support. The Applicant has been offered a full-time position of employment upon his release into the community. Prior to being sentenced for his criminal offending the Applicant worked hard to repay outstanding debts and as a consequence his debt level has been significantly reduced from the level it was at during the time of his offending. The Applicant has a connection to his local church in Melbourne which Dr Nguyen identified provides an additional protective factor to the Applicant.
The Applicant has engaged in a number of sessions with Dr Nguyen in which she has imparted strategies to the Applicant for dealing with stress such as financial stress going forward. The Applicant gave evidence that he is committed to ongoing counselling with a psychologist. The evidence before the Tribunal indicates that there has not been a continuing and sustained pattern of offending by the Applicant. The Applicant’s offending can be confined to the period March 2019 to June 2019 and has been explained as arising due to a crippling financial situation and the need to make money to minimise his debts.
The Applicant has expressed to Dr Nguyen and to the Tribunal at review his remorse for his offending. The Applicant’s representative has submitted the Applicant’s term of imprisonment, and his subsequent immigration detention have had a profound and salutary impact on the Applicant.
The Tribunal finds that these factors when cumulatively considered act to mitigate the risk of the Applicant re-offending going forward.
The Tribunal has considered the sub-paragraphs of paragraph 8.1.2 of the Direction. The evidence provided by Dr Nguyen and referable to the finding of the Parole Board of Western Australia indicate that the risk to the Australian community of the Applicant committing offences or engaging in other serious conduct is low. The risk is mitigated by a number of protective factors, which have been captured in the clinical findings and oral evidence of Dr Nguyen. The evidence indicates that the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct is low and has been mitigated by the protective factors that have been identified.
The Tribunal finds that the Applicant’s period of imprisonment and his subsequent immigration detention have contributed to his rehabilitation and that rehabilitation has been buttressed by the Applicant’s engagement with Dr Nguyen. The Applicant has been equipped though his interaction with Dr Nguyen with better coping behaviours and resilience strategies going forward. The Applicant also gave evidence that he is committed to ongoing psychological intervention and counselling.
Conclusion: Primary Consideration 1
The Direction makes it clear the Australian Government is committed to protecting the Australian community from harm as a result in non-citizens engaging in criminal activity.
The Applicant was convicted in Western Australia with 2 offences. The index offence of unlawful possession and the breach of bail offence. Judge Massey as discussed concluded in her sentencing comments that the offending behaviour of the Applicant was serious and sought fit to impose a full-time custodial sentence of 19 months.
As has been discussed the offending history of the Applicant in Australia is confined to the Western Australia offending for which he was convicted and does not come within the ambit of offending behaviour that the Australian Government has identified in the Direction as being viewed very seriously. The offending did not involve violence and there were no identified impacts on any victims nor any evidence of a cumulative effect of repeat offending.
The Tribunal having regard to Primary Consideration 1 in Direction 110 has considered the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
With respect to Primary Consideration 1 the Tribunal finds that weight should be given to this consideration in respect of the cancellation, however the Tribunal finds that with respect to risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, that any risk is mitigated by the protective factors in place.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
There is no evidence before the Tribunal that indicates that the Applicant has engaged in family violence.
The Applicant’s representative stated that this primary consideration was not relevant to the proceedings. This fact was conceded to by the Minister.
Conclusion: Primary Consideration 2
Primary Consideration 2 is not relevant in the review before the Tribunal and neutral weight has been apportioned to this consideration.
PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
The Tribunal must consider any impact of its decision on the Applicant’s immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(2) of the Direction allows for the consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community.
Sub-paragraph (a) of paragraph 8.3(2) of the Direction directs a decision-maker to have regard to how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child. Less weight should be given where the non-citizen began offending soon after arriving in Australia. More weight should be given to time the non-citizen has spent positively to the Australian community.
As discussed, the evidence indicates that the Applicant arrived in Australia as an 18-year-old and thus he has lived in Australia continuously for 14 years since his arrival. The evidence indicates that the Applicant’s mother is an Australian permanent resident, the Applicant’s ex-wife, the mother of his two daughters is an Australian citizen. Olivia and Ariana, the Applicant’s daughters, are both Australian citizens.
The Applicant relies on statements from family members, friends and colleagues with respect to his Australian ties.
The Applicant argues that his permanent exclusion from Australia would have a devastating impact on his Australian family members such as his mother and particularly upon his young daughters.
The Applicant relies on the fact that prior to his imprisonment and immigration detention he had maintained regular employment in the community and had made a positive contribution to the community through his work as a kitchenhand and later as a chef. The Applicant submits that this primary consideration weighed in his favour.
The Minister concedes that the Applicant’s mother lives in Australia as an Australian permanent resident as does his ex-wife who is an Australian citizen, and his two Australian citizen daughters.
The Minister concedes the Applicant had made a positive contribution to the Australian community through his employment and work history. The Minister concedes that the Applicant had contributed through his employment as a chef and a kitchen hand, however, the Minister submitted that these contributions were significantly outweighed by his offending behaviour in March 2019, only eight years after he arrived in Australia.
The evidence indicates that the Applicant’s offending did not commence until 8 years after his arrival in Australia and was confined to the one incidence of offending the ‘index offending’ of unlawful possession in June 2019 and the subsequent breach of bail.
The Minister made reference to the letters of support provided by friends and colleagues of the Applicant however, submitted that this consideration did not outweigh the first and fifth primary considerations which the Minister contended weighed very heavily against revocation.
Sub-paragraph (b) of paragraph 8.3(2) of the Direction directs the decision-maker to consider 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.
The Applicant’s ex-wife is an Australian citizen, and his two minor Australian citizen children reside in Australia, as does his mother an Australian permanent resident. Their presence in Australia are indicative of the strength of the Applicant’s ties to Australia through those relationships. The Applicant and his ex-wife remain on cordial terms as evidenced by her willingness to provide evidence as a witness at hearing. The Applicant and his ex-wife Ms Tran are both committed to co-parenting their two minor daughters going forward and Ms Tran gave evidence that this arrangement would be in the best interests of their children going forward.
The Applicant has provided statements from colleagues and friends who have attested to his work ethic and his good character.
The Ministers has argued that the Applicant spent his formative years in Vietnam. This argument in the view of the Tribunal is open to conjecture. The Applicant arrived in Australia as an 18-year-old and he has lived in Australia for the past 14 years. The Applicant was educated in Vietnam up to year 9. Since arriving in Australia, the Applicant managed to obtain work in the Vietnamese community in Melbourne working in a number of restaurants and working his way up from kitchen hand to chef. The Minister acknowledges that his work history is indicative of a contribution to the Australian community. It could be argued that in the absence of an extensive work or study history (a bakery course and some waitering in his mother’s coffee shop) in Vietnam that the Applicant’s formative years have actually occurred in Australia.
The Applicant has not only established ties to the Australian community through his work but also through his connection to his local church in Moorabbin Victoria. The evidence indicates that prior to his incarceration the Applicant would regularly take his daughter Olivia to church and to engage in Vietnamese lessons run by the church. The Applicant’s cousin and her husband operate Chinese/Vietnamese restaurants in Melbourne. They have offered the Applicant full time employment upon his release into the community, and they gave evidence of his solid skillset and the difficulty of acquiring an employee with the skills of the Applicant.
Evidence was adduced at hearing that the Applicant’s ties to his Australian permanent resident mother are strong and that culturally, as the eldest son, and indeed only child he has caring responsibilities to his mother going forward.
The Tribunal finds on the basis of the evidence before it that the strength, nature and duration of ties that the Applicant has to Australia weigh strongly in favour of revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 3
Primary Consideration 3 weighs strongly in favour of the revocation of cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.4(1) of the Direction obliges a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA, is in the best interests of a child affected by the decision.
Paragraph 8.4(2) provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made.
Paragraph 8.4(3) provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.4(4) provides that in considering the best interests of the child, the following factors must be considered where relevant:
Sub-paragraph (a) of paragraph 8.4(4) states that the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact).
Sub-paragraph (b) of paragraph 8.4(4) points to a consideration of the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements.
Sub-paragraph (c) of paragraph 8.4(4) points to a consideration of the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child.
Sub-paragraph (d) of paragraph 8.4(4) points to a consideration of the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways.
Sub-paragraph (e) of paragraph 8.4(4) points to a consideration of whether there are other persons who already fulfil a parental role in relation to the child.
Sub-paragraph (f) of paragraph 8.4(4) points to a consideration of any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
Sub-paragraph (g) of paragraph 8.4(4) points to a consideration of any evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally.
Sub-paragraph (h) of paragraph 8.4(4) points to a consideration of any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant submits that his daughter Olivia is 9 years old and that she has maintained regular contact with him through daily video calls since he has been in immigration detention, and she also made contact with him when he was in prison. The Applicant has given evidence that he and Olivia prior to his incarceration had a close and loving relationship. The Applicant believes that Olivia’s best interests would be best served during her formative years he was to remain in Australia to provide care and support to her.
The Applicant has maintained regular contact with his 3-year-old daughter Ariana and has made daily video calls to her. The Applicant has a strong loving relationship with both of his daughters that he submits would be permanently damaged by his removal and exclusion from Australia.
The Applicant submits that because of the young age of both of his children that they are yet to reach their formative years and that his presence in Australia during that period would be beneficial to their best interests.
The Minister’s has argued that with respect to best interests of minor children that if any weight is to be placed on this consideration by the Tribunal it should be tempered by a number of factors. Firstly, that Olivia and Ariana are currently cared for by their mother who fulfils a parental role. Further that the Applicant’s daughters are also supported by their maternal grandmother who is active in their lives. The Minister argues that the Applicant’s relationship with his daughters has been characterised by his lengthy absence as a result of his imprisonment and immigration detention since December 2023. The Minister acknowledged that the Applicant had maintained contact with his daughters through telephone and video calls since he was incarcerated.
In the Tribunals view the submission neglects to address the fact that the Applicant and his ex-wife are both committed to co-parenting their children and this clearly will not be able to be implemented if the Applicant is in Vietnam.
The Minister argues that this consideration should be given weight in favour of revocation however, the Minister contends that this consideration is outweighed by other primary considerations namely primary considerations 1 and 5 which overall weigh very heavily in favour of non-revocation.
The evidence indicates that despite the separation and later divorce between the Applicant and his ex-wife they maintain a cordial relationship and are both committed to the care and indeed the co-parenting of their two Australian citizen daughters.
The evidence before the Tribunal indicates that the Applicant maintains a particularly close relationship with his older daughter Olivia, due to her age, and the fact that he was closely involved in her life before his incarceration. Evidence was provided that this extended to him taking her to church, to Vietnamese lessons and to swimming lessons and attending school functions.
The Tribunal notes that Olivia has hand-written a number of letters to the Department which can be found at HB186-HB188 of the joint tender bundle. The letters are heartfelt and in the view of the Tribunal are representative of the closeness of the relationship she has with her father and the impact that the Applicant’s separation will have on her. In the letter at HB187 Olivia states “please give Dad a change (sic) to get home with us do not send him to Vietnam. I miss him a lot. Please help me. I promise I will be a good girl I will study hard as well. Thank you so much Olivia”. In her letter at HB188 Olivia states that “I love my Dad so much. Please forgive my Dad”.
The Tribunal has given individual consideration to the best interests of each of the Applicant’s minor children. The Applicant is very close to his older daughter Olivia and has done his best to maintain a close relationship whilst incarcerated with his youngest daughter Ariana. The Tribunal also notes that the evidence indicates that the Applicant will continue to play a positive role in his daughter’s lives and that he and his ex-partner share a strong commitment to co-parenting.

The Tribunal finds that the impact of the Applicant’s prior conduct led to a period of separation from his children, however the evidence indicates an ongoing commitment by the Applicant and his ex-wife to co-parenting.
The Tribunal notes that the Applicant’s ex-wife and mother have fulfilled a parental role for the Applicant’s children in his absence, however, as noted the Tribunal finds on the basis of the evidence before it, that if released into the community there is a commitment for the Applicant to co-parent his children with his ex-wife.
The views of Olivia have been captured in her letters to the Department and referenced by the Tribunal in this decision record.
There is no evidence, and the Tribunal so finds that there has been no evidence of the Applicant’s children being exposed to family violence or to any sexual, mental or physical abuse. Further there is no evidence, and the Tribunal so finds, that the Applicant’s children have not experienced any physical or emotional trauma arising from the Applicant’s conduct.
Having regard to 8.4 of Direction 110 the Tribunal finds that the best interests of minor children in Australia should be given strong weight in favour of the revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 4
Primary Consideration 4 should be given strong weight in favour of the revocation of cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Applicant has breached this expectation through his criminal conduct.
Paragraph 8.5(2) of the Direction directs that a 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:
(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.
Paragraph 8.5(3) of the Direction provides that 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.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
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.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.
Paragraph 8.5(4) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which a decision maker is required to have regard to.
The Applicant’s representative submits that the Australian community expects that non-citizens living in Australia will respect and abide by its laws. The submission concedes that the Applicants offending breaches community expectations that non-citizens will obey Australian laws while in Australia.
The submission argues that it is unfair to treat all breaches of community expectations as equal and noted that the Applicants offending did not fall into the ‘very serious’, or ‘serious’ category. The submission argues that given the Applicants remorse and lack of a previous criminal record that the expectations of the Australian community should be informed by these mitigating factors.
The submission argues that the expectations of the Australian community are that the Applicant should not, having regard to his offending behaviour, be permanently removed from his Australian family, particularly his two minor daughters, and that overall, this consideration should be given low weight in the final decision.
The Minister argues that the Australian community would expect that the Applicant should not continue to hold a visa on account of his offending behaviour and with respect to the risk of further offending in the future, that overall the Minister contends that this primary consideration should be weighed heavily against revocation.
The Tribunal notes that the Applicant’s offending of unlawful possession and a breach of bail was found to rise to the level where Judge Massey determined it should be dealt with by a full-time custodial sentence. A sentence of 19 months was imposed, and the Applicant served half of that time before being released on parole and transferred to immigration detention. The Tribunal also notes that in terms of sentencing hierarchy a term of imprisonment is the last resort in that hierarchy and is indicative of the serious nature of the offending.
The evidence indicates that the offending was of a financial nature and clearly came within the realm of money laundering. There was no violence involved. Judge Massey found the Applicant had been given a trusted role in a sophisticated enterprise and noted that the Applicant had been taken advantage of and concluded that the Applicant was not in the top end of the hierarchy but not at the bottom end either. Judge Massey determined that the offending was below mid-range “but not at the lowest end of the scale”.
Upon consideration of the evidence before it, the Tribunal is satisfied that the expectations of the Australian community are such, that some weight against the revocation of the cancellation of the Applicant’s visa should be given to this consideration.
Conclusion: Primary Consideration 5
The Tribunal finds that with respect to Primary Consideration 5 that some weight against the revocation of the cancellation of the Applicant’s visa should be given to this consideration.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. These are considered under their respective headings below.
(a) Legal consequences of the decision
The Applicant’s representative has argued that the Applicant would be prohibited from applying for a visa or having one applied for on his behalf if he had previously had a visa cancelled under s 501, 501A or 501B of the Act, and that limited exceptions would apply to this.
That affirming the decision under review would result in the Applicant’s removal from Australia and that he would remain in immigration detention until that process had been finalised. It was argued that this ‘other’ consideration weighs in the Applicant’s favour.
The Minister in regard to this consideration argued that the Applicant as an unlawful non-citizen would be liable to removal from Australia and would be subject to ongoing detention until that could be organised.
The Minister argued that on the basis of the evidence that Australia’s non-refoulement obligations were not enlivened with respect to the Applicant.
The Minister argued that the Applicant would be precluded from applying for another visa whilst in Australia with the exception of a protection visa and that some weight should be given to this consideration in the Applicant’s favour.
Reference to caselaw namely the decision of Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143 was made by the Ministers representative arguing that based on this decision the Tribunal should give neutral weight to the legal consequences of the decision to cancel the Applicant’s visa.
The Tribunal finds that none of the legal consequences of the decision would have anything less than an adverse impact on the Applicant and hence this consideration in the view of the Tribunal is given significant weight in favour of revoking the visa cancellation.
(b) Extent of impediments if removed
If the Applicant is removed from Australia, the following impediments may come into play. The Applicant could be removed from his two Australian citizen minor children. The Applicant would be removed to Vietnam.
The Applicant’s representative argues that as the Applicant has been in Australia since the age of 18 for the past 14 years, that he would face difficulty re-adjusting to life in Vietnam. The Applicant had built a life in Australia and would struggle to find employment and accommodation, further that he would struggle to make money to support his Australian citizen children. Further his family would be unlikely to visit him in Vietnam due to the costs associated with doing so.
The Minister argues that paragraph 9.2 of Direction 110 requires consideration of the extent of impediments that a non-citizen may face if removed from Australia to their home country in establishing themselves and maintaining basic living standards. The Minister argues that consideration needs to be taken with respect to an Applicant’s age and health, language and cultural barriers and any social, medical or economic support available to them in that country. The Minister’s position is that the Applicant had previously conceded that he would not face significant impediments due to his age, health, language or cultural barriers. The Minister further submits that any difficulty the Applicant may face in re-establishing himself in Vietnam would not preclude resettlement. The Applicant had lived in Vietnam for the first 18 years of his life and there would be no cultural or linguistic impediments to the Applicant’s return. The Minister argues that the Applicant would have access to social, medical and economic support. The Minister submits that this consideration does not outweigh the factors against revocation namely the primary consideration of the protection of and expectations of the Australian community.
The Tribunal finds as has been extensively discussed that the Applicant has spent 14 years continuously in Australia and has managed in that time to sustain employment, progress in employment, and have two Australian citizen children.
The Tribunal acknowledges that the Applicant completed bakery studies in Vietnam and that he undertook some waitering work for his mother in her small restaurant. The evidence further indicates that the Applicant only completed a year 9 education in Vietnam and hence his education history is poor. It is a given that the Applicant speaks Vietnamese. Further that his Australian permanent resident mother has a number of siblings in Vietnam. However, the fact is that the Applicant has not been back to Vietnam for 10 years and there was little to no evidence (apart from conjecture) about the closeness of relationships with those relatives in Vietnam. The Applicant in all of this has maintained that he has no close relationship with friends or relatives in Vietnam.
There is no clear evidence before the Tribunal that the Applicant’s re-integration back into Vietnamese society would be seamless given the length of time that he has spent living in that country and his degree of connectedness with it.
The Tribunal accordingly finds that this consideration moderate weight in favour of revocation of the cancellation of the Applicant’s visa.
(c) Impact on Australian business interests
There is no evidence before the Tribunal regarding the impact on Australian business interests if the Applicant was to be removed from Australia. This consideration is given neutral weight.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to making the decision to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason pursuant to Direction 110 to revoke the cancellation.
In making its decision the Tribunal has been informed by the principles in paragraph 5.2 of Direction 110. The Tribunal has taken into account the considerations that have been identified in sections 8 and 9 of Direction 110 which are relevant to this decision. The Tribunal has closely considered the evidence submitted by both the Applicant and the Respondent.
Having regard to the evidence before it the Tribunal finds that the Applicant does not pass the character test.
In considering whether there is another reason to make the decision under s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds as follows:
(a)Primary Consideration 1 weighs against the revocation of the cancellation of the Applicant’s visa. The weight apportioned by the Tribunal to this consideration is mitigated with respect to the assessment of future risk.
(b)Primary Consideration 2 is not relevant, and the Tribunal gives neutral weight to this consideration.
(c)Primary Consideration 3 weighs strongly in favour of the revocation of the cancellation of the Applicant’s visa.
(d)Primary Consideration 4 weighs strongly in favour of the revocation of the cancellation of the Applicant’s visa.
(e)Primary Consideration 5 is given some weight against the revocation of the cancellation of the Applicant’s visa.
(f)To the extent that they are relevant, the Other Considerations weigh in favour of the revocation of the cancellation of the Applicant’s visa.
The Tribunal has given careful consideration to all of the Primary Considerations and those of the Primary Considerations that are given primacy and the weight that should be apportioned to these considerations. The Tribunal has also given careful consideration to the Other Considerations. The Tribunal finds that having regard to the totality of the evidence and with respect to those considerations, that the cancellation of the Applicant’s Subclass 100 Partner visa should be revoked.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that there is another reason to revoke the cancellation of the Applicant’s visa.

Date(s) of hearing: 18 and 26 June 2025

Solicitors for the Applicant: Mr Northam, Solicitor, Norhtam Solicitors

Solicitors for the Respondent: Ms Rezae, Solicitor, Sparke Helmore Solicitors

Date(s) of hearing:	18 and 26 June 2025
Solicitors for the Applicant:	Mr Northam, Solicitor, Norhtam Solicitors
Solicitors for the Respondent:	Ms Rezae, Solicitor, Sparke Helmore Solicitors