Nguyen and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 606

Nguyen and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 606 (22 May 2025)
Applicant/s:  Nga Thi Nguyen
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2025/1619

Tribunal:General Member S. Evans
Place:Sydney
Date:22 May 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.

.......................[SGND]..............................................
General Member S. Evans
Catchwords
MIGRATION – mandatory cancellation of Resident Return (Class BB) visa – where applicant does not pass the character test – citizen of Vietnam - applicant has a substantial criminal record – whether the decision should be revoked under subsection 501CA(4) – consideration of Ministerial Direction 110 – best interests of adult children – best interests of minor child - decision under review set aside
Legislation
Migration Act 1958 (Cth)
Secondary Materials
Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
INTRODUCTION

Nga Thi Nguyen (the Applicant) seeks review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the Respondent) not to revoke the mandatory cancellation of her Resident Return (Class BB) (subclass 155) visa (the visa) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (Act).
The Applicant is a 52-year-old citizen of Vietnam who has resided in Australia since her arrival on 8 July 2005. On 17 December 2021 the Applicant was sentenced to a term of six years and six months imprisonment in the District Court of NSW for drug related offences including knowingly directing activities of a criminal group, supplying a commercial quantity of cannabis, supplying a commercial quantity of a prohibited drug and cultivating a large commercial quantity of a prohibited plant (cannabis).
On 30 June 2023 the Applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Act as she failed to pass the character test as she had a substantial criminal record. Specifically, she had a substantial criminal record within the meaning of s 501(6)(a) on the basis of 501(7)(c) because she had been sentenced to a term of imprisonment of 12 months or more. The Applicant made representations to have the cancellation of the visa revoked.
On 24 February 2025 a delegate decided not to revoke the cancellation decision (the reviewable decision). The Applicant was notified of the decision on 27 February 2025 and on 6 March 2025, she sought review of the delegate’s decision at the Tribunal.
At the time of the hearing, the Applicant was being held in immigration detention. For the reasons that follow, the reviewable decision will be set aside.
RELEVANT LAW AND MINISTERIAL DIRECTION
Section 501(3A) provides that the Minister must cancel a visa in certain circumstances:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501CA of the Act applies where the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person.
The character test referenced in s 501(3A)(a) is defined in s 501(6) of the Act. Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). Paragraph 501(7)(c) provides that a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
The Minister may revoke the original cancellation decision pursuant to s 501CA(4) of the Act. Section 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under s 499 of the Act, which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 110).
Paragraph 5.2 of Direction 110 provides overarching principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of Direction 110 identifies the considerations the Tribunal must take into account where relevant to a decision.[1]
[1] Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.
The primary considerations in the Direction are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations set out in Direction 110 which must be taken into account where relevant include, but are not limited to:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
ISSUE TO BE DETERMINED
The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act.
Subsection 501CA(4)(b) of the Act provides that the Tribunal may revoke the original decision if it is satisfied:[2]
(a)that the Applicant passes the character test; or
(b)that there is another reason why the original decision should be revoked.
[2] Ibid s 501CA(4)(b).
On 17 December 2021, the Applicant was sentence to a term of six years and six months imprisonment by the District Court of New South Wales. As the Applicant was sentenced to a term of imprisonment of 12 months or more, she has a substantial criminal record for the purposes of paragraph 501(7)(c) and therefore does not pass the character test in 501(6)(a). It follows that subparagraph 501(CA)(4)(b)(i) is not satisfied.
As the Applicant does not pass the character test, the sole issue for determination is whether the Tribunal can be satisfied that there is another reason why the mandatory cancellation of the visa should be revoked.
BACKGROUND AND EVIDENCE
The Applicant provided written submission in support of her application and gave evidence at the hearing.
The Applicant was born in 1972 and grew up in Vietnam. In 2002 she met Mr White who she later married. In July 2005 she and her daughter from a previous relationship migrated to Australia to be with Mr White. In 2006 she gave birth to their first son and their second son the following year. In 2012 the Applicant and Mr White divorced.
Shortly after arriving in Australia, the Applicant began part-time work. She opened a takeaway shop in December 2007 and her first nail salon in 2009. She continued to open new businesses primarily in the beauty industry until 2019. By her own account, she was a successful businesswoman who also owned rental properties.
The Applicant detailed her business and property interests in Australia in a personal circumstances form lodged with the Respondent. She and Mr White purchased a three-bedroom house in May 2006. In 2007 they purchased the takeaway shop. The Applicant found it hard to find suitable staff to work at her nail salon in Newcastle, so began looking for staff in Sydney and Melbourne, who she provided with accommodation.
In December 2010 the Applicant purchased a 6 bedroom house that she, her family and staff shared. She also had the three-bedroom house that she rented to students. In 2012 the Applicant and Mr White separated and they sold the takeaway shop. In 2013 the Applicant established two new companies - a homestay and a nail and beauty company. The homestay company allowed people travel from overseas and stay in Australia.
In 2015 the Applicant acquired an investment property. Between June and October 2015, she refinanced her house to raise the deposit to purchase two more properties. In 2016 she signed a new lease on a nail salon and increased the size of an existing salon. In April 2016 she purchased an apartment and in November she bought a house.
In May 2017 she acquired a coffee shop. Around this time, the Applicant’s parents in Vietnam agreed to use their family savings to purchase property. Between April and September 2017, the Applicant purchased three properties under the family trust.[3]
[3] G13 104-117.
The Applicant says she was a successful businesswoman who had built a life for herself and run several nail salons and own rental properties, but she has lost everything because of her ‘legal and financial troubles’. Her assets were either sold to pay for her legal expenses or seized by the NSW Crime Commission.
The Applicant says the experience has been very painful. She was trying to do everything - run a business, raise her children and keep everything together – and she made mistakes along the way that she deeply regrets. She takes full responsibility for her actions and has learnt from the experience.
Should she return to the community, the Applicant plans to reopen the nail salon business she started with her daughter. The Applicant used to support local Vietnamese temples with donations and regularly donated blood from 2006 because she has a rare blood type, and she plans to return to her charity and community work.
She also plans to care and support for her children. Her eldest son is currently working to provide for her family. Her youngest son stopped attending school and does not want to go back until she returns home.
The Applicant’s children
The Applicant’s children have made statements in support of their mother’s application. The two eldest children gave evidence at the hearing.
Evidence of the Applicant’s daughter Minh Phuong Thi Nguyen
The Applicant’s daughter Minh Phuong Thi Nguyen is 23 years old. She was born in Vietnam to a different father than her brothers. Where her brothers can rely on Mr White, the Applicant is her closest family member. She feels isolated and abandoned in her absence.
Ms Nguyen wishes for the Applicant to remain in Australia so she can live with her and her brothers. She said her mother is who she and her brothers turn to and can trust to be there for them.
Ms Nguyen experiences social anxiety and without her mother she isolates and does not leave the house. The Applicant helps to push her out of her comfort zone and to be social. She finds it hard to maintain contact with her mother over the phone because of her anxiety. Ms Nguyen was still at school when her mother was arrested. She recalls coming home and being told that her mother was in custody and her brothers were with their father, which was extremely distressing and has had a lasting effect on her. She has been in a ‘depressive spiral’ since she was 16 years old.
Ms Nguyen plans to marry but has pushed her wedding back in the hope her mother will be able to attend. She says her brothers’ behaviour has worsened as they have grown up without their mother. They are often fighting and have become verbally and physically aggressive. She says that her younger brother feels neglected and has moved to live with her on multiple occasions in anticipation of their mother’s return. She said that with the repeated disappointment following their mother’s anticipated return has led to both her brothers acting out.
Evidence of the Applicant’s eldest son Logan White
In his statement of 11 January 2025, 18 year-old Logan says he wants his mother to remain in Australia. He currently lives with his brother and sister. He has completed his HSC and currently working because he cannot afford to attend university.
Logan said his father does not have time for him, his sister is busy with work and school and he and his brother often fight and argue. He says the Applicant always wants what is best for he and his siblings. He is disappointed, upset and hurt by her continued absence and looks forward to living with her again.
Regarding the domestic violence incident in which he and his brother were the victims, he said that when he and his brother were younger they did not appreciate how much trouble they were causing their mother. She had told them about the straitened circumstances but they continued to use her credit card to pay for purchases through their Xbox. Despite the assault, he considers his mother to be a good person who would not cause intentional harm to her children.
Evidence of the Applicant’s youngest child, OP
OP wishes to live with the Applicant and is happy and excited at the prospect of her returning to the community. He believes his mother is a good person who has been present, helped him learn and taken care of him.
He and his brother often fight. Regarding the assault in which he was the victim, he said he was upset at the time but now he appreciates that he and his brother were difficult to care for and caused trouble for others.
Letters of support
Letters of support have been provided from the Applicant’s accountant Carol Tran and the religious community.
Ven Thich Dao Hien is a Buddhist monk who works for Nguyen Thieu Buddhist and Welfare Association has provided a statement of support dated 24 October 2024 in which he confirms the Applicant has volunteered at the temple. He says the Applicant understands Buddhist teachings and this has enabled her to be kinder.
Van Chuong Nguyen is a monk at the Long Quang Temple. He writes that the Applicant has a good heart, is hard-working and likes to help others. He says that if she has done anything wrong it was only a minute of losing her way.
Mr Tha Lam writes that the Applicant is a current member of Ketana Khmer Krom Temple where she has volunteered in the kitchen. Buddhist monk Chua Minh Giac says that the Applicant is a Buddhist who regularly volunteers at the temple.
CONSIDERATIONS AND REASONING
Primary Consideration 1: Protection of the Australian Community
I must have regard to the protection of the Australia community from criminal or other serious conduct. Relevantly, paragraph 8.1.1 of the Direction states:
When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1.1 provides that decision-makers should also give consideration to the ‘nature and seriousness of the non-citizen’s conduct to date’ and paragraph 8.1.2 requires consideration of ‘the risk to the Australian community, should the non-citizen commit further offending or engage in other serious conduct.’
Nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1 of Direction 110 provides that in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii.crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
The Applicant’s offending

On 19 June 2018 the Applicant pled guilty and was convicted in the Local Court of New South Wales at Newcastle for two counts of assault occasioning actual bodily harm (domestic violence) and sentenced to an aggregate term of eight months imprisonment with a non-parole period of four months. She was also subject to a two-year Apprehended Violence Order (AVO) to protect her sons. The conviction related to an incident on 16 February 2018 where the Applicant struck her two minor sons in a one-off circumstance where she had lost control.
In sentencing the Applicant, Magistrate Price said it was a reasonably serious assault that should not be minimised or trivialised. He said the Applicant clearly lost control and behaved in a highly inappropriate and objectively serious manner. He noted the Applicant’s guilty plea, remorse, contrition and good prospects of rehabilitation.
Magistrate Price also considered the need for general deterrence in matters of a similar nature. He said it must be made unambiguously clear to members of the public that hitting their children with wooden items such as broom handles in circumstances such as this is inexcusable.
On 17 December 2021 in the District Court of New South Wales the Applicant was convicted of knowingly directing activities of a criminal group, supplying a commercial quantity of cannabis, supplying a commercial quantity of a prohibited drug and cultivating a large commercial quantity of a prohibited plant (cannabis). She was sentenced to a term of 8 months imprisonment with a non-parole period of 4 months for knowingly directing activities of a criminal group and an aggregate term of 6 years and 6 months with a non-parole period of 4 years for the supply a commercial quantity of cannabis charge.
In sentencing, Acting Judge Walmsley SC said that the Applicant was guilty of participating in a criminal group whose activities were organised and ongoing. She was responsible for directing activities of the group knowing that the activity contributed to the occurrence criminal activity between March 2017 and October 2017. The charge concerned her knowing direction of the business of hydroponically growing cannabis in a premise she had leased in Newcastle. She also directed others to do the necessary work in growing, harvesting and distributing cannabis.[4]
[4] G7 pp 67-72.
The Applicant’s three co-offenders who pleaded guilty to offences including cultivate prohibited plant greater than large commercial quantity by enhanced indoor means and knowingly participate in a criminal group. None of the co-offenders had any criminal history and His Honour found that they were in effect the Applicant’s employees.
Judge Walmsley noted that the facts that the co-offenders were sentenced on were essentially the same as those for which the Applicant was being sentenced. However, he said the co-offenders could be distinguished because they pled guilty and the Applicant was the principal in the operation, whereas they were her underlings. He said she leased the premises in which the drugs were cultivated and directed the activities of her co-offenders.
I am required to have regard to the sentences imposed by the courts when considering the seriousness of the offending. It is a clear indicator of the seriousness of the Applicant’s offending that she received a sentence of imprisonment of six years and six months. Sentences involving terms of imprisonment are considered a last resort in the sentencing hierarchy and must be viewed as a reflection of the objective seriousness of the offences involved. The offending also involved family violence, which the Direction requires be viewed very seriously.
The Applicant submits that her offending should be assessed in the context of her financial constraints and the need to support her three children during a time when she felt helpless. I make no finding on the Applicant’s financial circumstances at the time of the offending, but I accept she may have felt helpless and overwhelmed by her significant responsibilities, but that does not diminish the seriousness of her conduct.
Having regard to the Direction, I consider the Applicant’s offending to be very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction provides in part:[5]
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[5] Direction 110, paragraph 8.1.2.
Should the Applicant commit further crimes of a similar nature, there is a significant risk of serious harm to the Australian community. Drug related offending has the potential to cause significant physical, psychological and financial harm. Family violence can cause serious physical and emotional harm to vulnerable members of the community.
The Applicant submits there is a low likelihood that she will engage in any further criminal conduct. She says she takes responsibility for what she has done and is sorry for the hurt she has caused. The prospect of being permanently separated from her family is a disincentive for further offending and her belief in the teachings of Buddha are both cited as protective factors.
The Applicant writes that she now understands the circle of people she employed at her beauty salon and their partners and friends led to her offending. They led her to believe that they wanted to help and support her in being a successful businesswoman. She was mistaken to trust them easily and she has now learnt she needs to be careful about who she associates with and proceed with caution when becoming involved with others.[6]
[6] G12 p 100.
In custody the Applicant has participated in rehabilitation programs to better herself and understand her past choices. She completed the High Intensity Program Unit, EQUIPS` foundation, seasons for growth (focused on grief and loss), certificates in hospitality, work safety practice training and obtained a forklift licence. She says she has spent a lot of time reflecting on working on a self to make a genuine effort to learn from our past and be better.
A NSW Justice pre-release report dated 24 November 2024 assessed the Applicant at a Tier 3/Medium-Low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R), whilst noting she continued to deny responsibility for her offending:
[The Applicant] denied responsibility for the offences and maintained she had been framed by her associates. Despite challenging [the Applicant] regarding the accumulated evidence described in the agreed facts, she maintained her innocence and claimed that she was naïve to the illegal activities being conducted in her properties. Upon discussion regarding how she became convicted of the offence, [the Applicant] claimed that her co-offenders took advantage of her generosity.
When challenged in regard to ever witnessing paraphemilia [sic] at her properties, she alleged having seen equipment on one occasion, failing to notify police due to past negative experiences.[7]
[7] JTB2 p 74 -80.
At the hearing the Applicant continued to maintain her innocence in relation to the drug offending. In sentencing, Judge Walmsley acknowledged that it is often said to be something that stands in the way of rehabilitation, but he accepted she was ‘extremely unlikely’ to reoffend because she had virtually no criminal history and had prosocial supports.
His Honour found the Applicant was an intelligent businesswoman who was likely to maintain a life which is free of crime once she is released from custody. He observed she was well thought of by those who knew her and had contributed significantly to the community through regular donations of her unusual blood type.
By minimising her responsibility for the drug related offending, the Applicant casts doubt on her remorse and rehabilitation. However, Judge Walmsley’s remarks are reassuring as to the low likelihood of further offending. I also consider the Applicant is motivated by material success and has been chastened by the loss of her assets. The experience of being imprisoned, detained and having her visa cancelled has been a salutary experience for the Applicant.
Taking all the above into account, I consider the evidence supports a finding that there is a low risk the Applicant may reoffend.
Conclusion as to the protection of the Australian community
The Applicant’s offending is very serious and offending of a similar nature in the future may cause significant harm to the Australian community. There is a low risk of further offending by the Applicant. I consider this primary consideration weighs heavily against revoking the cancellation of the Applicant’s visa, primarily on account of the seriousness of the conduct to date.
Primary consideration 2: Family Violence committed by the non-citizen
Paragraph 4(1) of Direction 110 defines family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Paragraph 8.2(2) provides that this consideration is relevant where a non-citizen has been convicted of an offence involving family violence or there in information or evidence from independent and authoritative sources indicating the non-citizen is or has been involved in the perpetration of family violence.
As outlined, the Applicant was convicted of two acts of assault occasioning actual bodily harm on her two sons. Based on the police reports, sentencing remarks, and the evidence of the Applicant and her sons, it appears that the Applicant hit her sons because they broke the remote control to the Xbox. When she learned about the incident, she lost control and threw pencils and soup at her sons. She also hit her sons with a broom handle until it broke and a feather duster. The assault left the boys with ‘circular sores with bruises around them’. One of her sons had multiple bruises to his back, forearm, legs and shoulder. The Applicant told her sons not to tell anyone about the incident, but it was reported to police by their father, who noticed one of his sons had difficulty walking as a result of his injuries.
The Applicant says she regrets what she did and is ashamed and disappointed in her herself. She explained that the incident occurred in the context of her being extremely stressed because she had been arrested in October the year before on drug related charges and her sons had been fighting and using her bankcard while she was struggling financially. She says physical discipline is ‘seen as normal’ in Vietnamese culture, but she ‘now understand[s] the seriousness of family violence in Australia’.[8]
[8] JTB5 p 115.
Both victims have expressed a strong desire to live with the Applicant should she return to the community.
The Applicant’s sons are ‘members of a person’s family’ and I find that the instance of domestic violence constitutes an act of family violence. This primary consideration weights strongly against revocation of the cancellation decision.
Primary Consideration 3: The strength, nature and duration of ties to Australia
I am required to consider the impact of the decision on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. I am also required to consider the strength, nature and duration of any other ties that the Applicant has to the Australian community having regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has identified her three children as immediate family in Australia. As Logan is a minor, his interests are considered under primary consideration 3.
The Applicant arrived in Australia age 32 and has resided in Australia for 20 years. In addition to her children, she has social ties to Australia, most notably through the Buddhist association and temples who have provided her character references. The Applicant, who has a rare blood type, has contributed to the community through regular blood donations since 2006 and has contributed to the community through her paid employment and business interests.
The Applicant speaks to her daughter Ms Nguyen every day and they lived together until the Applicant was imprisoned. She has no other relatives in Australia. Ms Nguyen’s evidence is she suffers from social anxiety which the Applicant helps her to manage by pushing her out of her comfort zone. In her mother’s absence, she has been lonely and isolated. She says her brothers are often arguing and fighting, and she expects her mother’s return will have a calming influence on their behaviour.
Logan is currently working and should the Applicant return to the community, he will have the option to return to full-time study. He speaks to the Applicant regularly and has expressed a desire to remain close to her.
The strength and nature of the Applicant’s ties to her children in Australia is corroborated by their evidence. They plan to resume living together and the Applicant will provide emotional support and help her children manage financially.
This primary consideration weighs heavily in favour of revoking the cancellation of the Applicant’s visa.
Primary Consideration 4: Best interests of minor children affected by the decision
Paragraph 8.4 of the Direction requires decision-makers to decide whether the cancellation is, or is not, in the best interests of minor children in Australia affected by the decision.[9] This consideration applies only if the child is under 18 years old at the time of the decision. In considering the best interests of each child, the factors that must be considered where relevant include:[10]
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[9] Direction 110, para 8.4.
[10] Ibid.
The Applicant has three Australian citizen children who reside in Australia. Only her youngest child 17 year-old OP, is a minor. The Applicant states that she was a single mother and her son’s only support after she separated from Mr White and he lived overseas for three years. However, I note Mr White has been OP’s primary carer since the Applicant was imprisoned.
In his statement of January 2025, OP wrote he was living with his father but often visited his brother and sister in Sydney. In a separate statement of 2 May 2025, he writes that he had left his father to live with his siblings in Sydney. OP hopes that the Applicant will remain in Australia and she will live with him and his siblings. He says it has been difficult without his mother who he says has taken care of him his whole life.
OP says his father does not like him as much as his older brother. His father also drinks a lot, and OP feels ignored and does not like living with him. In contrast, he says the Applicant has been a good mother who has always done her best to support him and provide for him. He writes that he misses his mother, loves her and is sad that she may be deported. OP says that the Applicant not returning home has caused him to become angry and upset.
The evidence indicates that OP’s primary carer’s have been his father and sister since the Applicant’s imprisonment in 2018. I afford this consideration, which weighs strongly in favour of revocation, less weight on account of OP being a victim of the Applicant’s family violence offending and that he will turn 18 in this year.
Primary Consideration 5: Expectations of the Australian community
Paragraph 8.5 of the Direction relevantly provides:[11]
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
[11] Ibid, paragraph 8.5.
Paragraph 8.5(3) of Direction 110 states that these expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
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. Rather the Tribunal must give effect to the ‘norm’ stipulated in the Direction.
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 in the Direction, without independently assessing the community's expectations in the particular case.
The Applicant has failed to meet the Australian community’s expectation that visa holders obey its laws. The Applicant submits that the Australian community may afford a higher level of tolerance for her criminal conduct because of her positive contribution to the Australian economy and community through her various business interests. As the Applicant had many of her assets confiscated by the NSW Crime Commission, the Applicant’s overall contribution to the economy is unproven.

Having regard to the Direction and the Applicant’s offending, this consideration weighs heavily against revocation.
OTHER RELEVANT CONSIDERATIONS
Legal consequence of decision under section 501 or 501CA
Paragraph 9.1 of Direction 110 states that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198 of the Act, liable to be removed from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
As there is no claim and no evidence to suggest that Australia’s non-refoulement obligations are enlivened in respect of the Applicant, this consideration weighs neutrally.
Extent of impediments if removed
Paragraph 9.2 of the Direction provides:
(1)   Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)   the non-citizen's age and health;
b)    whether there are substantial language or cultural barriers; and
c)    any social, medical and/or economic support available to them in that country.
The Applicant has suffered from insomnia and depression since 2017 for which she has been prescribed medication. She fears that returning to Vietnam would cause her considerable stress and exacerbate her mental health conditions. Having spent more of her life in Vietnam than Australia, the Applicant accepts that she would not face substantial language or cultural barriers should she return.
The Applicant is not established in Vietnam and has no financial or economic ties in that country. She fears it would be difficult to find employment or housing. However, she gave evidence that prior to leaving Vietnam, she had been able to obtain employment and start a business in Vietnam. Her history of establishing businesses in Australia supports her assertion she is a successful businesswoman, and I expected she would leverage these skills in Vietnam.
The Applicant’s elderly parents still live in Vietnam, as do three of her five brothers - one of whom is disabled and cared for by her parents. The Applicant claims she rarely speaks with her parents or brothers and could not rely on them for financial support having lost the money they gave her to invest. She has relatives including uncles and aunts, nieces, cousins and grandparents in Vietnam, but she has not had contact with most of them for a long time.
I accept that should the Applicant return to Vietnam, she would likely experience emotional and psychological distress as a result of being separated from her children. She would also face some hardship initially as she would need to reestablish herself with little support.
I consider this factor weighs moderately in favour of revocation.
CONCLUSION
The primary considerations of the protection of the Australian community and the expectations of the Australian community weigh in favour of the cancellation decision. The Applicant’s family violence weighs heavily in favour of affirming the decision to cancel the visa.
The Applicant’s three children have given compelling and genuine reasons as to why it is in their best interests that the Applicant remains in Australia. On account of their interests, the primary considerations of the best interests of minor children affected by the decision and the strength nature and duration of the Applicant’s ties to the community are afforded significant weight in favour of revocation. The legal consequences of this decision weigh neutrally while the impediments the Applicant would expect to face upon her return to Vietnam are afforded limited weight in favour of revocation.
On balance, I am satisfied that there is another reason to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
For the reasons outlined above, 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.

I certify that the preceding one-hundred and three (103) paragraphs are a true copy of the reasons for the decision herein of General Member S. Evans.

............................[SGND].......................................
Feng J. Associate

Dated: 22 May 2025

Date of hearing: 8 May 2025

Advocate for the Applicant:

Ms M. Mamarot

Advocate for the Respondent: Mr R. O'Shannessy

Date of hearing:	8 May 2025
Advocate for the Applicant:	Ms M. Mamarot
Advocate for the Respondent:	Mr R. O'Shannessy