Nguyen and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Nguyen and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 418 (8 March 2024)
Division:GENERAL DIVISION
File Number(s): 2021/6181
Re:Van Hai Nguyen
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:8 March 2024
Place:Adelaide

For the reasons explained in the Tribunal’s Reasons for Decision, the Tribunal pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) sets aside the decision to refuse the Permanent Residence (Spouse Visa) (Class 801) visa and remits the matter to the Respondent for further consideration with the direction that a reconsideration of the refusal of the visa under s 501(1) is to have regard to the findings made by the Tribunal in this matter.
................................[Sgnd]........................................
Senior Member B J Illingworth

CATCHWORDS
MIGRATION – Remittal from Federal Court of Australian on finding of jurisdictional error – Application for a Permanent Residence (Spouse Visa) (Class 801) visa Combined Partner (Class UK/BS) visa – Ministerial Direction No 90 - Ministerial Direction No 99 – Primary Considerations – Other Considerations - ss 499, 501(1), (6), 501CA Migration Act 1958 (Cth) - Reviewable decision set aside and remitted to the Respondent
LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES

Afu v Minister for Home Affairs [2018] FCA 1311
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs [2019] FCAFC 185

FYBR v Minister for Home Affairs [2019] FCA 500
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION

Senior Member B J Illingworth
8 March 2024

INTRODUCTION

On 8 March 2023 the Federal Court of Australia (“the Federal Court”) remitted this matter to the Administrative Appeals Tribunal (“the Tribunal”) for re-hearing.
The Applicant had sought a review of the decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (formerly the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs) (“the Respondent”) made under s 501(1) of the Migration Act 1958 (Cth) (“the Act”) dated 16 August 2021 to refuse to grant the Applicant a Permanent Residence (Spouse Visa) (Class 801) visa (hereinafter referred to as “the visa”).[1]
[1] Variously referred to as a combined application for Permanent Residence (Spouse Visa) (Class 801) visa – Notice of via refusal RB1 page 10; Combined Partner (Class UK/BS) visa, Exhibit A, RB1 p 17, 18 and 28; Permanent Resident (Spouse Visa) - Respondents Statement of Facts Issues and Contentions (dated 21 August 2023).
The delegate’s decision included:
(a) the Applicant did not pass the character test contained in s 501(6)(d)(i) of the Act namely that if the Applicant were allowed to remain in Australia there was a real risk that he would engage in criminal conduct in Australia; and
(b) the Applicant had a substantial criminal record within the meaning of s 501(7)(c) of the Act namely that he had been sentenced to a term of imprisonment of 12 months or more; and
(c) the delegate exercised the discretion to refused to grant the visa.
The Applicant first applied to the Tribunal for a review of the delegate’s decision which was heard on 2 November 2021.
In that hearing, the Respondent correctly conceded that the delegate erred in finding that the Applicant had a substantial criminal record. Nonetheless, the Tribunal affirmed the delegate’s decision that the Applicant did not satisfy the character test contained in s 501(6)(d)(i) of the Act.
Having found the Applicant did not satisfy the character test, the Tribunal was required to then consider whether to exercise the discretion to refuse to grant the visa application pursuant to s 501(1) of the Act and in so doing have regard to Direction 90. Direction 90 was given to decision-makers including a delegate of the Minister or the Tribunal pursuant to s 499(1) in relation to the consideration of visa refusal and cancellation under s 501(1) and revocation of a mandatory cancellation of a visa under s 501CA if the Act.
The Tribunal’s decision delivered on 22 November 2021 affirmed the delegate’s decision to refuse to grant the visa application. By operation of the Act the refusal meant that any other visa held by the Applicant was cancelled.
The Applicant appealed the decision of the Tribunal to the Federal Court and on 8 March 2023 the Federal Court found jurisdictional error,[2] allowed the appeal, ordered the decision dated 22 November 2021 be set side and the matter remitted to the Tribunal for determination according to law. Justice O’Sullivan said:
[…]
[87] I find the Tribunal Member approached the evaluation exercise required by Direction 90 as if it was an application pursuant to s 501CA(4) for revocation of the cancellation of a visa cancelled pursuant to s 501(3A). In so doing, the Tribunal addressed the wrong question and thereby committed an error of law.
[…]
[92] The Tribunal engaged in the deliberative process of evaluation required of it by Direction 90 when reviewing the delegate’s decision but did so through the lens of an application for the revocation of the mandatory cancellation of a visa pursuant to s 501(3A). That exercise demanded a unique outcome following the evaluation process. That is not what is contemplated by s 501(1)
[93] Had the Tribunal approached the correct question with a broad discretion in mind, realistically the result could have been different, particularly given the matters which weighed in favour of the decision to not refuse the applicant’s visa application (albeit of differing weights) being the best interests of minor children in Australian (Primary Consideration 3) – moderate; and in Other Considerations, the strength nature and duration of ties to Australia – strong.
[2] Exhibit A, RB3 p 384-410.
At the re-hearing before me, the Applicant was represented by Mr Richard Chia (“Applicant’s Counsel”) on instruction by Mr Johnnie (Viet Anh) Le of JLe Lawyers, and the Respondent was represented by Mr Christopher Orchard of Sparke Helmore, Solicitors (“Respondent’s Counsel”).
On 3 March 2023, Direction 90 was revoked and replaced by Direction No 99 which was to be considered for the purpose of this remittal hearing.
The Applicant spoke fluent English but an interpreter was provided to assist if required. The Tribunal received into evidence the documents as listed in the exhibit list, held on the Tribunal file which included a Hearing Book 1 – 4 (HB) and Remittal Bundles 1 - 5 (RB) being 680 pages which contained the transcript of the first hearing.
BACKGROUND
The Applicant was born in Tai Lin Province, Vietnam on 20 July 1990.[3] He arrived in Australia on 28 November 2010 as the holder of a Student (Class TU)(subclass 573) visa.[4] He committed no criminal offence in Vietnam.[5]
[3] Exhibit A, HB3 p 515.
[4] Ibid HB1, RB1 p 79.
[5] Ibid HB3 p 515.
The Applicant met his wife JTTH approximately one year after arriving in Australia and they married a year later. They have been in a genuine ongoing relationship since about 2012. They do not have any children but are wanting to start a family.
The Applicant’s entire family comprising his parents, older sister Ms TBHN(1) born in in September 1984 and younger sister Ms TBHN(2) born in in September 1993, all now reside in Australia. The Applicant travelled back to Vietnam on a number of occasions to visit his parents until they moved to Australia to reside.[6]
[6] See Movement History records Exhibit A, HB1, RB1 p 78–79.
The Applicant’s mother–in-law and father–in–law, came to Australia approximately 30 years ago and are Australian citizens. His wife’s sisters, TDH born in May 1994 and KH born in March 2012 also reside in Australia with their parents and are both Australian citizens.
The Applicant’s eldest sister Ms TBHN(1) is married to CTLN. They have one child, the Applicant’s nephew, LN born in May 2015, and he is currently 8 years of age. The Applicant and his wife reside with them in the same home.
The Applicant has no immediate family living in Vietnam and no one there he can rely on for support or financial assistance. He said at the first hearing it would be hard for him to return to Vietnam and start again. He does not know from where he would start his life and would lose his way.[7] It would be difficult leaving his wife and he could not live without her. He does not know how he could support her from Vietnam. He has no one there to share his life with, look to for support and share experiences and emotions. He said it would be the end of the world for him to be returned to Vietnam.[8]
[7] Exhibit A, HB3 p 518.
[8] Ibid p 519.
The Applicant has no friends in Vietnam upon whom he could rely. He has not kept in contact with school friends.[9] He does not know how he would live.
[9] Ibid p 519.
At the first hearing the Applicant described a very close relationship with his nephew and because he and his wife do not have children, they love LN as a son.[10] LN’s father works full-time and so the Applicant spends time with his nephew teaching him sport and helping him with his homework.
[10] Ibid p 517.
The Applicant’s younger sister Ms TBHN(2) was living in Canberra and at the time of the first hearing she was single and approximately 27 years of age. She came with the Applicant to Australia in 2010. She is a permanent resident of Australia. The Applicant’s eldest sister Ms TBHN(1) arrived in Australia before the Applicant. She is an Australian citizen.[11]
[11] Ibid p 517.
The Applicant’s parents have applied for a permanent visa and intend to live permanently in Australia. By the time of the second hearing they had sold their residence in Vietnam.
Offender history
The Applicant accepted he had been convicted of 2 criminal offences in Australia.
First offence
This offence was committed on 17 September 2016. The Applicant was sentenced by the District Court on 25 May 2018 for the offence of “supply prohibited drug”, to a term of imprisonment of 10 months to be served by way of an intensive corrections order; and the Applicant was directed to report to the Community Corrections Office. The drug was MDMA and the quantity was 10.5 grams.
There was a statement of agreed facts provided to the learned Sentencing Judge, which was also before the Tribunal at the first hearing and before me at the re-hearing. I will summarise the agreed facts:[12]
(a)On Saturday 17 September 2018 there was a music festival. As the Applicant approached the front entrance gate, he was approached by a police officer with a drug detection dog. The dog gave an indication the Applicant was in possession of prohibited drugs. He was arrested, searched and a condom containing clear capsules with brown coloured capsules inside them and double wrapped inside a plastic bag was located in the Applicant’s underpants. The Applicant also had in his possession $900 cash and 3 mobile telephones together with 2 additional SIM cards and a SIM removal pin. When questioned, he said the contents of the package was MDMA.
(b)The Applicant explained that he and some friends were outside the entrance gate waiting for another friend to arrive. An unknown Asian male approached the Applicant and gave him a package to take inside the venue. He was offered $500 in cash, payable once inside the venue and upon delivery of the package to him at the main stage. The Applicant initially said he did not know what was inside the package, that it was a “bad thing” but went on to say he guessed the package contained MDMA. He agreed after her being searched that the package contained “about a hundred” (which I infer meant 100 tablets or capsules). He went on to say to the police that he assumed the package was probably worth about $2,000. When asked what the unknown male was going to do with the pills, the Applicant said “Maybe use them or his friends. I don't know.”
(c)The Applicant explained the reason he had multiple mobile telephones, and that one of the phones was used to communicate with family in Vietnam. The Samsung phone belonged to a friend. When analysed, the police confirmed one telephone contained messages in Vietnamese.
(d)The package contained 167 capsules of MDMA with the total weight of 10.5 grammes and 78.5% purity.
[12] Ibid HB1, RB1 p 235-236.
I note that at the relevant time the Applicant's parents still resided in Vietnam.
At the first hearing before the Tribunal, the Applicant said he went to the venue with friends with no pre-planned intention to carry the MDMA into the venue. In a moment of stupidity, he accepted the offer from the unknown man to take the prohibited drug inside the festival. The $900 in his possession included his salary received late the preceding evening from his then workplace at a T-shirt printing company.
In sentencing, no adverse finding was made in relation to the mobile telephones or money in the Applicant’s possession. I infer his explanation for the possession of those items was not disputed.
The Applicant did not breach the intensive corrections order which expired on 24 March 2019. However, he reoffended on 26 May 2019.
Psychological report before the Sentencing Judge
Dr Minh Nguyen–Hoan 3 April 2018[13]
[13] Ibid p 243-250.
Dr Nguyen–Hoan reported the Applicant as friendly and expressive, who engaged well with the assessment process. He read, wrote, spoke an understood English without much difficulty but described his experiences in his native language. He showed a great deal of insight into the cultural values and personal motivations that led to his offending and how his actions have impacted on others and himself.
The report confirmed the Applicant’s family details and that he is very close to his wife and family including his elder sister and nephew. The reported circumstances of the offending were consistent with the evidence. It was reported that at the time of the assessment on 15 March 2018, the Applicant had worked as a full-time truck driver, purchased his own truck and started his own business; sold the business and purchased a “Jim’s Mowing” franchise and worked in the T-shirt printing industry. He lost his job T-shirt printing due to his offending but re-engaged in full-time work truck driving. I note this history is generally consistent with the Applicant’s evidence.[14]
[14] Ibid HB3 p 545.
The Applicant showed insight into his offending. He had no previous or current mental health diagnosis but described severe levels of worry, excessive rumination, disturbed sleep, and reduced socialisation since his offending. He had:
[…] prominent symptoms of generalised anxiety characterised by a state of tension, a readiness to react, physical discomfort, an inability to relax, an apprehensive sense that problems are imminent, excessive alertness, and general edginess. His response also indicated the presence of major depression (e.g., pessimistic outlook of the future, pervasive sense of hopeless resignation, repetitive fearfulness, insomnia) and post-traumatic stress (e.g., intense fear, feelings of helplessness, severe anxiety, exaggerated startle response, hypervigilance) […] he was experiencing a range of clinical symptoms at the time of assessment that were causing him considerable psychological distress. These results were largely consistent with the mental health symptoms he described during the clinical interview.[15]
[15] Ibid HB1, RB1 p 247-248.
Dr Nguyen-Hoan opined that the Applicant’s expression of immediate and ongoing feelings of guilt and shame indicated his level of insight into his own behaviour; and his prospects of rehabilitation in the community were good given the protective factors present, for example, a supportive family, stable accommodation and employment, pro-social attitudes, and a motivation to build a life for his family in Australia.
Dr Nguyen–Hoan opined that the offending appeared completely out of character and that he made a “stupid decision” in the moment, likely due to being in an unfamiliar environment never having attended a music festival before, having consumed a small amount of alcohol and being influenced by a culturally driven sense of responsibility to provide for his younger friends and eagerness to be liked. Subsequently, the Applicant experienced considerable amounts of psychological distress. He demonstrated symptoms consistent with anxiety, depression, and stress and his excessive worry and panic, with disturbed sleep and feelings of helplessness and hopelessness as a result of the court matters and the potential adverse impact on his residency and future in Australia.
It was opined that he would benefit from psychological treatment to address his anxiety and depression. The Applicant's wife and older sister’s family are important sources of support and maintaining close ties with them will help him manage his levels of distress. It was also recommended the Applicant continue to engage in full-time work which will provide structure and organisation in his daily life and enable him to fulfil a sense of responsibility and repair his family relationships.[16]
[16] Ibid p 250.
Second offence
The Applicant was charged with having “Knowingly Take Part in the Cultivation of a Prohibited Plant for a Commercial Purpose”, namely cannabis.[17] The Applicant pleaded guilty and was sentenced on 26 May 2020 to two years community corrections order commencing 26 May 2020 and ending on 25 May 2022.[18] The Applicant did not breach the community correction order.
[17]Ibid p 29-30; also referred to in Exhibit A, HB1, RB1 p 40.
[18] Exhibit A, HB1, RB1 p 29-30. There was no sentence of imprisonment and the mandatory cancellation of the Applicant’s visa pursuant to s 501(CA) of the Act did not arise.
The Applicant said a friend, who he had known for a few months, asked him for help by checking the lights in a house and gardening outside the house. In the second hearing before me, the Applicant said the friend was someone from his soccer club; he did not know the house had growing inside it, marijuana plants. It was only when he entered the house for the first time that be became aware of the plants. The Applicant turned on the house lights as he was asked. The lights were not lights for the purpose of growing the marijuana plants but simply the normal lights inside the premises. He also watered the outside garden, but he never tendered or watered the marijuana plants inside the house.
The Applicant did the same thing on a second occasion, when he went to the house but was unhappy that the marijuana plants were growing inside the property. On the third occasion, he went to the house to meet the property owner and return the keys, because he did not want anything else to do with the property. The police arrested him on that occasion. The friendship ceased following the Applicant’s arrest.
In relation to the first offence, the Applicant never spend time in gaol. He was granted police bail following his arrest. In relation to the second offence, he spent 10 days in gaol until bail was granted. That was the first time he had been in gaol, and he found the experience frightening and he was depressed. He described the experience as a wake-up call.
I had before me the “Summary of Submissions”[19] provided by the Applicant’s counsel in the criminal proceedings to the learned Sentencing Judge. There were 75 plants in the house, but the Applicant was only aware of a quantity less than 50 plants. The plants were in 4 different stages of growth, and many were immature. There was sophisticated equipment inside the premises but no evidence regarding its set-up. There was no suggestion the Applicant was involved in setting up the premises or that he brought any particular skill to the enterprise. His involvement was limited to the 3 attendances referred to. There is no evidence of any intended profit from the conduct and there was no evidence to suggest that the Applicant was a principal in the enterprise.
[19] Exhibit A, HB1, RB1 p 55-61.

An “Agreed Statement of Facts” was before the Court[20] and referred to the Applicant’s 3 attendances at the premises. On the first occasion he was there for 31 minutes, on the second occasion 11 minutes and on the third occasion he was arrested when he arrived. He had in his possession keys to the house. The Crown conceded it could not prove the Applicant had knowledge of the commercial quantity of the cannabis plants, but he was aware there was close to 50 plants.
[20] Ibid p 138-139.
The Applicant provided a letter of apology to the Court dated 18 May 2020, and explained his current understanding of the impact cannabis can have on others including on a person’s mental health. He regretted his conduct. He explained how he has changed and his motivation to assist the community.
Psychologist report before the Sentencing Judge
Mr Bradley Jones 11 May 2020[21]
[21] Ibid p 145-150.
The learned Sentencing Judge received a report from forensic psychologist Mr Bradley Jones dated 11 May 2020 who detailed the Applicant’s personal and family circumstances, consistent with the evidence before me. He enjoyed a closer relationship with his mother than his father. The Applicant married at the end of 2013. It was a loving relationship, but his offending impacted upon his relationship with his wife who initially wanted a divorce; however, they have since reconciled. The relationship remained tense with concerns that he may be imprisoned and later deported.
Mr Jones referred to the Applicant’s expression of remorse as follows:
I am thinking I did completely wrong. I didn’t think much at that time, and I feel bad and sorry for the community and for my wife and family for what I have done. This time going to gaol scares me so much. Last time no gaol, but when I go to gaol it was the worst time of my life. I cannot explain how it felt when I was released and saw my wife. I know I never ever do this again as gaol very scary for me. It was terrible.
Mr Jones opined the Applicant was not experiencing any psychological or physical condition, that he was a low risk of re-offending and a treatment plan had been developed to address risk management factors and reduce the risk of recidivism. He was experiencing a mild level of depression and normal levels of anxiety and stress. A treatment plan was developed to manage and decrease recidivism.
Psychological report prepared for the Tribunal
Dr Sandra Nguyen 30 July 2023[22]
[22] Ibid HB3 p 446-459.
Dr Nguyen provided the report for the Tribunal. The Tribunal was advised that Dr Nguyen had declined to make herself available to give evidence. The Tribunal indicated a preparedness to issue a subpoena to Dr Nguyen if requested but that was not pressed by either party. Nonetheless, the Tribunal has given this report some weight.
Dr Nguyen received from the Applicant details of his personal history and circumstances of offending, consistent with the evidence before the Tribunal. The DASS21 test designed to measure emotional state of depression, anxiety and stress scored the Applicant in the severe range of depression and stress, and the extremely severe range for anxiety.
The Applicant’s family history was consistent with the evidence given to the Tribunal. He was very close to his nephew and often takes him to school, picks him up from school, teaches him mathematics, soccer and basketball. They had a strong and close relationship.
Dr Nguyen opined that the Applicant satisfied the criteria for diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood. He presented with low affect, expressed shame, sorrow and remorse and is depressed most of the day. His symptoms have caused significant distress and impairment in social and daily functioning. Dr Nguyen expressed concern that the Applicant was not coping with daily activities and struggled to manage stress depression and anxiety. Nonetheless, he showed insight into his offending and his incarceration for 10 days awaiting bail scared him. The Applicant acknowledged he needs professional help and will seek psychological counselling to help manage his anxiety and depressive symptoms and better understand himself.
Dr Nguyen opined that they Applicant’s risk of recidivism was low.
Aust-Viet Counselling and Coaching report of Mr Phuong Phan dated 5 September 2023[23]
[23] Exhibit B p 1-4.
Mr Phan is a counsellor and life coach working in private practice and was first consulted by the Applicant on 3 August 2023. As at the date of the report he had 4 consultations with the Applicant. Those sessions have been directed amongst other things to self-awareness, self-improvement, interpersonal relationships and techniques relating to improvement in personal functioning.
The reported personal and offender history is consistent with the evidence before the Tribunal including the Applicant’s close relationship with LN and his parents. Mr Phan in discussing the second offence said the Applicant felt terribly confused and referred to assistance he had given repairing the house’s electricity as a favour to his friend, and that his kindness had been exploited.
Mr Phan summarised the consultations on 10 August 2023, 17 August 2023, 31 August 2023 with the next session to occur on 21 September 2023. In the third and fourth sessions it was reported that the Applicant was worried about his mental health because he often obsessed because of the time in police custody which was a terrible experience, and Mr Phan gave him techniques to deal with those issues.[24]
[24] Ibid p 3.
Mr Phan described the Applicant as cooperative and open, with a good understanding of his problematic issues. Mr Phan opined that the Applicant was healthy and intelligent, and was aware of what he should do to work towards a better future for himself and loved ones.
Other matters
The Applicant remained living in the community following his visa cancellation. He did not know why he was not placed in immigration detention. His immigration lawyer applied unsuccessfully for 2 visas including a protection visa. The Applicant has resided at the same residence, continued to maintain his business, filed income tax returns and said the Respondent knew where he was. I accept that explanation.
The Applicant explained the appreciation he now has for his offending and in particular the impact his first offending potentially had on others, his wife and the community. He has performed volunteer work for the community and assisted those in need during the COVID-19 pandemic. On weekends he continues to help those in need, including delivering food. He helps in the temple including with food preparation and cleaning, albeit the temple was closed during the pandemic. He joined a volunteer organisation called Turbans 4 Australia Inc delivering food hampers to those in need.[25]
[25] Exhibit A, HB3 p 522-525.
The Applicant was adamant he would not reoffend. He said the first offending occurred when he was young, and he did not think about what he was doing. He was influenced by the promise of money. The second offence he was just helping a friend. He loves his wife and family, and his career is important to him as is the work he performs as a volunteer. He intends to stay away from all criminal activity.
The Applicant runs his own transport company. He is a truck driver providing deliveries to major supermarkets; but following the COVID-19 pandemic he was unable to employ staff. In the second hearing the Applicant confirmed he continued to run the company, employed his younger sister as a part time administrator, and also employed another driver. He owns his own truck which is a semi-trailer. He commences work at about 2:00 am, attends a collection centre where he receives and then distributes food to the supermarket chains. He works about 12 hours a day, 5 and sometimes 6 days a week.
The Applicant said it was after he arrived home from work that he would help his nephew with his homework or play with him including sport such as soccer or basketball. The Applicant’s brother-in-law works night shift.
The Applicant and his wife share the rent for the property in which he lives with his elder sister and her family. They contribute $250 per week for the rent, do food shopping together and share the cost of the utilities with his sister’s family.
The Applicant said that his salary from the trucking business was about $40,000 per annum and the average profit from the business was about $30,000 per annum. At that time of the first hearing, he was primarily responsible for the finances of his family, which I infer meant he and his wife.
The Applicant’s wife has graduated from university with a degree in law, and for the last 12 months worked in a position in legal practice earning about $60,000 per annum. They used her income to save for a house.
The Applicant said he also cares for his parents. His mother is unwell following a heart attack and his father is over 65 and does not work. They are not Australian citizens and so the Applicant pays for their doctors’ accounts and medicine costs. He and his sister share his parents’ grocery cost. Because his older sister is married, the Applicant provides most of the care for his parents. His younger sister lives in Canberra and cannot assist.
The Applicant would also provide some money to his younger sister for her to use for the cost of her study or general living expenses as required. He tried to help her out. The Tribunal notes this is the younger sister who he now employs part-time in his trucking business.
The Applicant said in cross-examination that he had a friend in Vietnam who lived with his family, but he could not impose upon the friend for support should he return to Vietnam. He has an aunt, uncle, and cousin but they live a long distance from where his parents lived, and he did not visit them when he returned to Vietnam. They may be able to provide some support to the Applicant should he return to Vietnam, but he was not close to them. He agreed he could ask for assistance. As at the first hearing, his parents had a house in Vietnam but by the second hearing, he confirmed that property has since been sold after his parents decided to live in Australia.
The Applicant said he thought it would be difficult for him to find employment in Vietnam and he would have difficulty finding a good job as a truck driver because the transport system in Vietnam is different and they drive on the opposite side of the road. He does not have a Vietnamese drivers licence. He did not believe he will be able to build up the skills to drive a truck in Vietnam.
Ms TBHN(2) (the Applicant’s younger sister)
Ms TBHN(2) provided statements dated 15 September 2021[26] and 27 September 2023[27] and gave evidence before the Tribunal. Her evidence was consistent with that of the Applicant.
[26] Ibid HB1, RB1 p 194-197.
[27] Exhibit E p 1-2.
In her statements Ms TBHN(2) described the Applicant as a good person who has suffered from his mistakes. She described him as being careful to comply with the law and contributes to the community. He shows signs of anxiety and regrets his mistakes. His wife continues to support him.
Ms TBHN(2) confirmed the Applicant’s contribution to the community including during COVID-19 pandemic lockdown and that he supports their elder family members and friends. His visa refusal will be hard for the Applicant and his family. She confirmed the Applicant, and his wife are wanting to purchase a home and start a family which is on hold pending the outcome of the visa application.
The Applicant has been providing Ms TBHN(2) support including financial support with her tuition fees. She is studying psychology. She and the Applicant came to Australia together and she is scared that he may have to return to Vietnam. Their parents’ mental health has been affected by the visa refusal, and their father has diabetes and kidney issues, and their mother has a heart condition. Ms TBHN(2) and her sister are sponsoring their parents to live in Australia.
Ms TBHN(2) confirmed there was no home in Vietnam and no family there to whom the Applicant could turn to for support and if he returned to Vietnam, it would be difficult for him. The whole family would be heartbroken if he returned to Vietnam.
Since 2023, Ms TBHN(2) has worked in the Applicant’s business remotely as a admin/secretary, preparing work contracts and organising employees’ pays. The company is doing well. She corroborated the hours worked by the Applicant and that he looks after his nephew and they have a close and loving relationship.
Ms JTTH (the Applicant’s wife)
Ms JTTH provided statements dated 20 September 2021[28] and 26 September 2023[29] and gave evidence before the Tribunal. Her evidence was consistent with that of the Applicant.
[28] Exhibit A, HB1, RB1 p 192-193.
[29] Exhibit D.
She confirmed that time spent in custody in May 2020 impacted upon the Applicant and that he was truly remorseful. In the last 12 months preceding the first statement, he volunteered at the temple and contributed to the community and continued making efforts to reform as he was deeply embarrassed and regretted his past actions.
In her statements, Ms JTTH confirmed that the Applicant’s offending had caused him stress, which posed a threat to their relationship, but they were working together to overcome that threat. She said she had struggled personally trying to deal with the consequences of the Applicant’s mistakes and that she is fearful of being separated from him if his visa is refused. They have built a life in Australia together, discussed starting their own family but due to the instability in the Applicant’s visa status they have postponed starting a family. Having a family is a priority and they are planning to purchase their own home.
Ms JTTH said that she relied on her husband's income for financial support and that they pooled their savings. She also confirmed that if the Applicant’s visa is refused it will cause significant stress to her and the Applicant’s parents who live with them and have retired due to underlying health conditions. The Applicant’s father has diabetes and kidney problems, and his mother suffers from heart conditions. Both parents are now sponsored to live in Australia and hence if the Applicant returns to Vietnam, he will be alone. He has no family in Vietnam and would have difficulty obtaining employment. She confirmed he has not kept in contact with anyone in Vietnam.
The Applicant had made a significant contribution to Ms JTTH’s development and supported her financially during the 6 years she was studying full-time. She is now a practising solicitor, experiences stress at work but is given support by her husband. She said he was her greatest support and motivation; shown her unconditional love and commitment and she will be filled with despair if separated from him.
She said her husband has subsequently changed for the better and confirmed that he runs a truck driving business and employs others. She again confirmed his expression of remorse and the impact his offending has had on his family. She believes he will not re-offend because to do so would jeopardise his future and their future relationship.
In evidence, she said that following the first offence she was very angry with him but he acknowledged his mistake; but following the second offence it was much worse and she lost faith in him which put a strain on their marriage. Nonetheless, the Applicant has demonstrated that he understands the consequences of his offending and he will lose everything including his family.
Ms JTTH was asked about the Applicant’s visa status. She had not discussed that with him. He had a migration solicitor to guide him in that area. She understood that his visa was rejected and currently the subject of an appeal in the Federal Court and review before the Tribunal which was what they were dealing with.
Other statements
The Tribunal received a statement from the Applicant’s elder sister dated 1 October 2021[30] which was consistent with the other evidence before the Tribunal including their living arrangements. In particular, she confirmed her son LN’s close relationship with the Applicant, the contribution he makes to the care of LN and that if the Applicant returned to Vietnam it would be heartbreaking for LN.
[30] Exhibit A, HB1, RB1 p 198-200.
Mr TVT is employed by the Applicant and provided a statement dated 15 September 2021.[31] He was aware of the Applicant’s convictions. He described the Applicant as a good person and hardworking employer who provided him with support and on the job training. The Applicant’s return to Vietnam would have a significant impact on Mr TVT who would then be unemployed with no other source of income which will impact upon him personally.
[31] Ibid p 201-202.
Ms TTD provided a statement dated 14 September 2021.[32] She had known the Applicant for 3 years and he was her best friend. She spoke of him in glowing terms. He joined volunteer activities and supports her as a single mother with 2 children. She struggled until she met the Applicant.
[32] Ibid p 203-204.
The Applicant did not rely on his relationship with Ms TTD’s 2 children as children to whom Primary Consideration 4 applied.
Ms TTT provided a statement dated 15 September 2021.[33] She was a close friend of the Applicant and his wife. She also spoke in glowing terms about the Applicant, his involvement and commitment to his family, the community including with Turbans 4 Australia Inc and his work ethic.
[33] Ibid p 205-206.
The Tribunal also received a letter from Turbans 4 Australia Inc confirming the Applicant’s volunteer service.[34]
[34] Ibid p 219.
LEGISLATION AND ISSUES
Refusal or cancellation of visas is governed by s 501(1) of the Act which reads:
Decision of Minister or delegate—natural justice applies
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
The character test is generally defined in s 501(6) and for the purpose of this matter s501(6)(d)(i) which reads:
[…]
(d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or
[…]
If the Tribunal is satisfied that there is a risk in accordance with s 501(6)(d)(i), the Tribunal will then consider whether the discretion in s 501(1) should be exercised to refuse to grant the Applicant the visa.
When considering the exercise of the discretion in ss 501(1) and 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any direction made under the Act. In this case, Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a Visa under section 501CA (“the Direction”) applies.[35]
[35] Note: On 3 March 2023, the former applicable direction, Direction No. 90, was revoked and replaced by Direction No. 99.
In deciding whether to refuse or cancel a non-citizen’s visa, or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform the decision-maker’s application of the considerations identified in Part 2 where relevant to the decision. Those principles may be briefly stated as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) 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.
(3) 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.
(4) 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.
(5) With respect to decisions to refuse, cancel and revoke cancellations of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) 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. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2)[36] (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
[36] Note: The direction states paragraph 8.55(2) but the Tribunal infers this is a typographical error.

Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out 5 Primary Considerations that the Tribunal must take into account, and they 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.
Paragraph 9 of the Direction sets out 4 Other Considerations which must be taken into account. These considerations are:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
The first question for the Tribunal is whether the Tribunal is satisfied that the Applicant passes the character test as defined in s 501(6)(d)(i).
The character test
The Applicant’s first offence was serious. Having regard to the evidence the Tribunal is satisfied that the Applicant knew that the items he seconded into his underwear contained drugs. He knew the approximate quantity of the drug and its value. I am satisfied he knew he was being asked to deliver a quantity of MDMA into a music festival. I accept that his actions were immature and motivated by greed and being influenced by a culturally driven sense of responsibility to provide for his younger friends and eagerness to be liked (as described by Dr Nguyen–Hoan), but that is no excuse and does not mitigate his conduct.
Those who operate as drug mules and take drugs into venues including music festivals for cash, provide a service to promote criminal activity, and help disseminate an insidious drug to members of the community including the more vulnerable and younger community members that places those people at serious risk to themselves and others including their families. To perform that function, driven in particular by greed, for cash is reprehensible.
The Applicant received the benefit of a suspended sentence and 10 months intensive community correction order which expired on 24 March 2019. He complied with the terms of his suspended sentence bond. However, within about 8 weeks of completing that intensive community correction order he reoffended on 26 May 2019.
In regards to the second offence, it is not clear to me how it is said that the Applicant committed the offence and in what way he knowingly took part in the cultivation of cannabis. Nonetheless, it is not for the Tribunal to go behind the conviction. I accept on the first occasion he attended the friend’s home, he did not know about the drug crop until he entered the premises and turned on the house light. He did know about it, when he attended on the second occasion, and on the third occasion he intended to return the keys to the friend and have nothing further to do with the house.
The sentence imposed by the District Court would support an inference that the offending was regarded by the Court, as one at the lower end of the scale of like offences, particularly given the offence was committed 8 weeks after the expiration of the intensive community correction order imposed in relation to the first offence. The community correction order imposed in relation to the second offence ended on 25 May 2022.
I have regard to the Applicant’s strong declaration that he will not reoffend, and that it was only in respect of the second offence that he served a period in gaol pending the grant of bail. This, he said, had a significant and sobering impact on him. He says he now has a realisation about the nature of his offending, and its impact on others including family members and the community. I accept that evidence. I have also had regard to the report of his psychologists and counsellor.
However, there has been an insufficient passage of time since the completion of his last sentence such that I can be satisfied that the Applicant satisfies the character test contained in s 501(6)(d)(i) of the Act.
Accordingly, I will now deal with the Direction and each of those Primary and Other Considerations in turn in deciding whether the discretion to refuse the visa application is enlivened.
Primary Consideration 1 – Protection of the Australian Community
Paragraph 8.1 of the Direction requires decision-makers keep in mind that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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 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(2) of the direction requires decision-makers give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
I will deal with each of those considerations in turn.
The nature and seriousness of the Applicant’s conduct
Paragraph 8.1.1(1) informs decision-makers of those matters to which the decision-maker must have regard when considering the nature and seriousness of the Applicant’s conduct. Violent and/or sexual crimes, crimes of a violent nature against women or children regardless of the sentence imposed and acts of family violence, regardless of whether there is a conviction for an offence, or a sentence imposed, are viewed very seriously by the Australian Government and community. The decision-maker must have regard to the sentence imposed by the courts, the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness, the cumulative effect of repeated offending, whether the non-citizen has provided false or misleading information to the Department, whether the non-citizen has reoffended since been formally warned or otherwise made aware in writing about the consequence of further offending and where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
I have already summarised the offending and will not repeat it. The first offence of trafficking of drugs into a music festival, albeit for another person who the Applicant did not know, was nonetheless serious. The impact of drugs on the young and vulnerable, including at music festivals is well publicised. The fact that the Applicant was motivated by an offer of $500 to take the drugs into the festival demonstrated a disregard for the wellbeing of others and a selfish greed for money.
At both the first and second hearing, the Tribunal had the Pre-sentence report dated 12 January 2018 in relation to his first offence. The author of that report said the Applicant presented as naive and that the Applicant said he was stupid and the financial reward enticed his behaviour. He was cooperative, was assessed as a low risk of re-offending and a person who would benefit from a community service order.
The Applicant did not receive a warning following his first offence.
The second offence was at the low end in the scale of offences of its type. The Tribunal does not have the benefit of sentencing remarks, but it appears the Applicant’s limited involvement was to turn on the house lights unrelated to the marijuana crop, and water the garden of a friend’s house in which the cannabis was being grown. There is also an indication that he did some electrical repairs to the house. The fact that the Applicant did not receive a custodial sentence for his offending, committed so soon after completing his intensive community correction order, supports the finding that this was not the most serious offence of its type.
However, as I have said there remains a degree of risk of reoffending to which I will refer.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Australian 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.
Paragraph 8.1.2(2) provides that 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;
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 […].
c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the Applicant’s offending, including any escalation in offending, properly informs the assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct. The consideration that the Australian community’s tolerance of harm becomes lower as the seriousness of the potential harm increases is also a relevant consideration.
The Tribunal is satisfied that there was no escalation in the seriousness of the Applicant’s offending. His second offence was one in which he played a very peripheral role in his friend’s cannabis cultivation and for which he was to receive no benefit or financial reward.
The Tribunal is satisfied that the Applicant’s expression of remorse was genuine and that the time spent in gaol following his second arrest had a salutary effect on him. It is important that he competed his community correction order sentences without incident or criticism.
Unusually, in this matter the Applicant has also had the benefit of remaining in the community following his visa cancellation. The Respondent has reminded the Tribunal that the Applicant remained illegally in the community, following his visa cancellation. But that was not the consequence of any deception or deliberate misconduct by the Applicant designed to avoid apprehension. The Applicant was represented by a migration lawyer. The Applicant said, and I accept, that he did nothing to hide from the Respondent. Whilst in the community he applied for 2 visas, continued to work, paid staff, paid taxes and completed his income tax returns. The Tribunal makes no adverse finding against the Applicant because the Respondent failed to place him in detention.
The period of time that the Applicant remained in the community gave him the opportunity to demonstrate his contrition and remorse, and his genuine intention not to reoffend, and make a valued contribution to the Australian community. Importantly, the Applicant has continued to receive counselling after completing his second community correction order which was recommended by his psychologist and supports his expression of contrition, remorse and determination not to reoffend.
Any offence relating to drug use or trafficking has the potential to cause harm to individuals and members of the Australian community, but I am satisfied that the risk of reoffending in the circumstances of this matter is substantially reduced. I have also taken into account the impact the visa refusal will have on the Applicant and his intention to stay permanently in Australia with his immediate family, including those family members with whom he resides; his wife who is an Australian citizen and who will not relocate to Vietnam; and the close relationship with his wife’s family.
The psychological reports and Pre-sentence report to which I have referred, support that the Applicant has suffered a level of anxiety and depression as a result of the consequences of his offending, which is continuing. The Tribunal accepts that evidence about his contrition and remorse. The most significant offence being the first offence, occurred over 7 years ago. Having regard to the evidence, the Tribunal is satisfied that the risk of re-offending is substantially reduced, albeit any risk is unacceptable.
Finding on Primary Consideration 1
When balancing all the considerations in the Direction and the evidence before the Tribunal, the Tribunal is satisfied that Primary Consideration 1 still weighs in favour of the Respondent and the discretion to refuse to grant the Applicant’s visa application. However, the Tribunal has a degree of confidence that the risk of reoffending is significantly reduced and there are matters personal to the Applicant and the circumstances of his offending, such that this Primary Consideration should be given medium weight in favour of the Respondent and the refusal of the visa application.
Primary Consideration 2 – Family Violence committed by the non-citizen
No evidence has been led that enlivens the Tribunal’s obligation to consider this Primary Consideration. Accordingly, neutral weight is given to Primary Consideration 2.
Primary Consideration 3 – The strength, nature and duration of ties to Australia
Paragraph 8.3(1) of the Direction sets out that decision-makers must consider any impact of the decision on the non-citizen’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.
Paragraph 8.3(2) provides that in considering a non-citizen’s ties to Australia, the Tribunal should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Paragraphs 8.3(3) and (4) of the Direction sets out that the Tribunal must consider the strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely, or other ties to the Australian community, having regard to:
a) the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant’s immediate family all live in Australia. His parents have sold their property in Vietnam and have applied to be permanent Australian residents. There is no residence in Vietnam to which the Applicant can return. His other immediate family members are permanent residents or citizens of Australia, and all will continue to reside in Australia for the foreseeable future.
The Applicant and his wife share accommodation with his elder sister, her husband and the Applicant’s nephew. Since the first hearing the Applicant’s parents have also resided in the same premises. Both have significant health issues, and his father is over 65 years of age and does not work.[37] The Applicant plays a role in supporting that familial relationship including contributing to household expenses and assisting in the care of LN.
[37] Exhibit C p 1-2.
The Applicant and his wife want to start a family but that is on hold pending the outcome of this application. Since the first hearing he no longer consumes alcohol. He does not use drugs and does not gamble.
The Applicant has strong social links to the Australian community by performing volunteer work, assisting those in need during the COVID-19 pandemic and helping in the temple including food preparation, and delivering food hampers to those in need.
The Applicant runs a successful business, employs his younger sister who performs remote administrative work for the business, a full-time secretary and a second driver. The Applicant works from approximately 2:00 am to 2:00 pm Monday to Friday.[38] That business involves delivery of food to major supermarkets which benefits the Australian community generally. He described his business as performing well.
[38] Ibid.
The Applicant has resided in Australia since 28 November 2010[39] and has made a positive contribution to the Australian community during that time save for the 10 days he spent in custody awaiting bail with regards to the second offence. He has continued to make a positive contribution after his visa refusal and consequent visa cancellation while remaining in the community.
[39] Exhibit A, HB1, RB1 p 78-79; p 681.
Finding on Primary Consideration 3
The Applicant’s only tie to Vietnam is an aunt and uncle with whom he has had no relationship for many years, including when he revisited Vietnam on a number of occasions to visit his parents after first arriving in Australia in 2010. He accepted that there was no impediment in him asking his aunt and uncle for assistance should he return to Vietnam but does not know what their attitude may be to such a request.
His immediate family, his wife and her family all reside in Australia. He has a successful trucking business with 3 employees. He has lived in Australia for over 13 years, is married to an Australian citizen and has close family ties. His family, in turn, provide him with support and stability, and assist him in dealing with his anxiety and depression. His return to Vietnam will likely impact upon the Applicant’s stress, anxiety and depression. He contributes positively to the community including in the temple and volunteer work.
Having balanced the Direction and the evidence, the Tribunal is satisfied that Primary Consideration 3 weighs significantly in favour of the Applicant and against the decision to refuse to grant 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 compels a decision-maker to make a determination about whether cancellation or refusal under s 501, or non-revocation under s 501CA is in the best interests of a child affected by the decision.
Paragraphs 8.4(2) and 8.4(3) of the Direction respectively contain further stipulations. The former 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. The latter provides that if there are 2 or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
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.
LN
LN, the Applicant’s nephew, is 8 years old and he has known him since birth. He is the son of the Applicant’s eldest sister and her husband with whom the Applicant and his wife live.
The Applicant and LN are close. They regularly attend soccer games, visit local parks, occasionally go shopping and attend their local swimming pool. The Applicant and LN have been on several family trips together including overseas.
The Applicant has an aptitude for mathematics and tutors LN twice a week in mathematics. The Applicant will take LN to and collect him from school when his parents are unable to do so.
The Applicant said that LN sees the Applicant as a role model. They have similar interests. The Applicant said that LN “is the closest thing I have to a son”, and that LN needs him. The Applicant would be very distressed if separated from LN.[40]
[40] See Applicant’s statement dated 5 October 2023.
The relationship between the Applicant an LN was supported by the witnesses called by the Applicant and the statements to which I have referred. In particular, LN’s mother has said, and I accept that LN would be devastated should the Applicant be returned to Vietnam.
The Applicant will not remain living in the same residence as LN indefinitely but will likely continue to play a role in LN’s future. It is in LN’s best interest that the Applicant continue to reside in Australia and have the benefit of his ongoing tutelage, personal love and support.
KH
KH is the Applicant’s sister-in-law born on 18 March 2012. In his statement dated 5 October 2023 the Applicant said that he has known KH since she was young. He sees her a couple of times a week and the Applicant and his wife regularly take KH on outings such as shopping or to local parks.
The Applicant also tutors KH in mathematics when required. He has taught her ice-skating, how to ride a bicycle and regards her as his little sister.
The Applicant says he cannot imagine life without KH.
The Tribunal accepts the Applicant’s evidence about his relationship with KH. It would be in KH’s best interest that she continues to engage with the Applicant and that he plays a continued role in her life.
Finding on Primary Consideration 4
I have had regard to the interest of both children separately and am satisfied that the Applicant will continue to play a role in each child’s life until each attains 18 years of age.
Both children continue to have the support of their parents and other family members which would be available should the Applicant return to Vietnam. Nonetheless, the Applicant’s relationship with LN does include a level of parenting including care arrangements and he plays a similar role, albeit, to a lesser extent in KH’s life. The Applicant’s return to Vietnam will have an adverse effect on both children but more so on LN.
Albeit there is no impediment to the Applicant maintaining contact with both children through telephone and other electronic communications, it is in both children’s best interest that they maintain the personal contact and engagement with Applicant that they currently enjoy.
Having regard to the Direction and the evidence, the Tribunal is satisfied that Primary Direction 4 weighs significantly in favour of the Applicant and against the decision to refuse to grant the Applicant’s visa.
Primary Consideration 5 - The Expectations of the Australian Community
In making the assessment for the 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. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious 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 Australian Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[41]
[41] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466; and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5 contains a statement of the Australian 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 the decision-maker must have regard to.
Consistent with the Direction, the Australian community would expect the Applicant’s Visa to remain cancelled. It is a matter of the weight the Tribunal ascribes to this Primary Consideration.
The Applicant arrived in Australia in 2010. He has a close and loving relationship with his family members all of whom now reside in Australia. He provides emotional and financial support to his younger sister in addition to part-time employment. He runs a successful business and currently employs 3 others.
The Applicant’s first offence was 7 years ago. He received a suspended sentence of imprisonment and completed a community correction order. His second offence was at the very low end on the scale of offences of its type, and he successfully completed his community correction order.
The Applicant has remained in the community since his visa refusal, he has not reoffended, he made a valued contribution to the Australian community and his family, maintained a successful business, continued to receive counselling and has demonstrated contrition and remorse.
Finding on Primary Consideration 5
Having regard to the nature of the offending, the Australian community would expect the visa remain cancelled. However, there are matters personal to the Applicant to which I have referred, that need to be weighed against his offending in determining the weight to be given to Primary Consideration 5. It is relevant that the most serious offence occurred 7 years ago and since that time the Applicant has demonstrated his contrition and remorse and contributed to the Australian community and his family.
Having regard to the Direction and the evidence, the Tribunal is satisfied that the weight to be given Primary Consideration 5 is substantially reduced because of those matters personal to the Applicant. Accordingly, Primary Consideration 5 is to be given moderate weight in favour of the Respondent and the refusal of the visa application.
Other Considerations
It is necessary to consider the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the 4 stipulated sub-paragraphs a), b), c) and d).
Other Consideration a) - Legal consequences of the decision
No evidence has been led that enlivens the Tribunal’s obligation to consider this Other Consideration. Accordingly, neutral weight is given to Other Consideration a) legal consequences of the decision.
Other Consideration b) - Extent of impediments if removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is still a young man. There is no language barrier should he be returned to Vietnam. However, in Vietnam he does not have the support of family or friends who live there. The Applicant did not complete his tertiary education but took up work as a truck driver and continues to run a successful business in Australia.
He has said that he does not believe he will be able to obtain a truck drivers licence and continue to work as a truck driver in Vietnam. The Tribunal does not accept that obtaining a truck drivers licence will be unachievable, albeit it may be difficult in the short to medium term, given the change in country, the Applicant does not have a Vietnamese drivers licence, and because Vietnam drives on the opposite side of the road. The Applicant left Vietnam when he was aged 20 years and it would be a matter of re-familiarising himself with the county and its driving conditions.
The Applicant and his family members have expressed concern that he will find a return to Vietnam difficult particularly in the absence of support from his family and in particular his wife. The Tribunal accepts it will be difficult for him initially and that may impact on his mental health to some degree.
The Applicant has been diagnosed with anxiety and depression. The Tribunal asked the Respondent to provide country information directed to mental health support services available in Vietnam. That was not received. The Tribunal sourced the DFAT Country Information Report dated 11 January 2022 (the Report) which was provided to the parties for consideration and further submission.
The Report at page 9 details mental health services that are available across Vietnam including in hospitals and in clinics. Medication is available but the quality of treatment from place to place varies. The Report reads:
In-country sources told DFAT that treatment is often inadequate, with a large ratio of patients to mental health professionals, and that most mental health conditions, especially depression and anxiety, will go untreated. Treatment relies on medication rather than psychotherapy, which is often unavailable.
Should the Applicant return to Vietnam it is unlikely he would have available to him the level of mental health practitioner support he would receive in Australia. He would also lose the opportunity to continue with counselling provided by Mr Phan which was an important factor in ensuring the Applicant’s future development and overcoming the anxiety and depression that he has suffered and continues to suffer particularly given the uncertainty of his future.
Finding on Other Consideration b) - Extent of impediments if removed
This Other Consideration weighs in favour of the Applicant. Having regard to the Direction and the evidence to which I have already referred and also giving some weight to the possible reduction in mental health support available in Vietnam, the Tribunal is satisfied that Other Consideration b) is to be given medium weighs in favour of the Applicant and against the decision to refuse to grant the Applicant’s visa.
Other Consideration c) – Impact on victims
No evidence has been led that enlivens the Tribunal’s obligation to consider this Other Consideration. Accordingly, neutral weight is given to Other Consideration (a).
Other Consideration d) – Impact on Australian business interests
In consideration of this Other Consideration d), the decision-maker must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision, under ss 501(1) or 501CA, would significantly compromise the delivery of a major project, or delivery of an important service to Australia.
No evidence has been led that enlivens the Tribunal’s obligation to consider this Other Consideration. The Applicant’s business interest has been considered in particular having regard to Primary Consideration 3. Accordingly, neutral weight is given to Other Consideration d).
CONCLUSION
Section 501CA(4)(b) of the Act stipulates 2 alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa, either:
(1) the Applicant must be found to pass the character test, or
(2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, such that the discretion in s 501(1) should not be exercised to refuse to grant the Applicant the relevant visa.
Based upon the Applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason not to exercise the discretion afforded by s 501(1) to refuse the visa application the Tribunal has had regard to those considerations referred to in the Direction.
Accordingly, the Tribunal finds:
(a)Primary Consideration 1 – Protection of the Australian community – is given medium weight in favour of the Respondent and the refusal of the visa application;
(b)Primary Consideration 2 – Family violence – is given neutral weight;
(c)Primary Consideration 3 – The strength, nature, and duration of ties to Australia – is given significant weight in favour of the Applicant;
(d)Primary Consideration 4 – Best interests of minor children – is given significant weight in favour of the Applicant;
(e)Primary Consideration 5 – Expectations of the Australian community – is given moderate weight in favour of the Respondent;
(f)Other Consideration a) – Legal consequences of the decision – is given neutral weight;
(g)Other Consideration b) – Extent of impediments if removed – is given medium weight in favour of the Applicant;
(h)Other Consideration c) – Impact on victims – is given neutral weight;
(i)Other Consideration d) – Impact on Australian business interests – is given neutral weight.
Having ascribed weight to each of the Primary and Other Considerations, the Tribunal must now weigh the various considerations against each other and determine whether there is another reason not to exercise the discretion to refuse the Applicant’s visa application.[42]
[42] see CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138.
Having undertaken that process there are significant matters personal to the Applicant which have been important considerations in the reduction in Primary Considerations 1 and 5 that may otherwise have been given greater weight in favour of the Respondent.
The combined weight of the strength, nature, and duration of ties to Australia, best interests of minor children, impediment and extent of impediments if removed from Australia are such that they outweigh the Primary and Other Considerations that weigh in favour of the Respondent.
The Tribunal therefore finds that, taking into account all of the Considerations in the Direction, they weigh in favour of the Applicant and satisfy the Tribunal that there is another reason not to exercise the discretion to refuse the Applicant’s visa application.
Consequently, the Tribunal does not exercise the discretion to refuse to grant the Applicant a Permanent Residence (Spouse Visa) (Class 801) visa.

DECISION

For the reasons outlined above, and pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision to refuse the Permanent Residence (Spouse Visa) (Class 801) visa and remits the matter to the Respondent for further consideration with the direction that a reconsideration of the refusal of the visa under s 501(1) is to have regard to the findings made by the Tribunal in this matter.

I certify that the preceding one hundred and eighty-four (184) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

...............[Sgnd]..................
Associate

Date of Decision: 8 March 2024

Date of Hearing:
3 October 2023

Post-hearing submissions requested at the hearing and received from the Applicant on 15 January 2024 and the Respondent on 18 January 2024.

Counsel for the Applicant:

Solicitor for the Applicant:

Richard Chia

Johnnie (Viet Anh) Le (JLe Lawyers)

Counsel for the Respondent:
Christopher Orchard (Sparke Helmore)

[2024] AATA 418

8 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Remedies

Date of Decision:	8 March 2024
Date of Hearing:	3 October 2023 Post-hearing submissions requested at the hearing and received from the Applicant on 15 January 2024 and the Respondent on 18 January 2024.
Counsel for the Applicant: Solicitor for the Applicant:	Richard Chia Johnnie (Viet Anh) Le (JLe Lawyers)
Counsel for the Respondent:	Christopher Orchard (Sparke Helmore)