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

Nguyen and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4237 (7 December 2023)
Division:GENERAL DIVISION
File Number(s): 2023/6945
Re:Giang Nam NGUYEN
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:7 December 2023
Date of written reasons: 21 December 2023
Place:Sydney

The Tribunal decides that the reviewable decision of 14 September 2023, not to revoke the mandatory cancellation, is affirmed.
..........................[SGD]...................................
Mr S Evans, Member
CATCHWORDS
MIGRATION – visa cancellation – mandatory cancellation under s 501(3A) of the Migration Act 1958 – where Applicant does not pass the character test – whether there is ‘another reason’ to revoke the cancellation – consideration of Direction No. 99 – protection of the Australian community – links to the Australian community – the best interests of minor children in Australia – expectations of the Australian community – legal consequences of the decision – impediments to removal – reviewable decision affirmed.
Legislation Migration Act 1958 (Cth) s 499, 501
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Plaintiff M1 v Minister for Home Affairs [2022] HCA 17
SECONDARY MATERIALS
Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Mr S Evans, Member
21 December 2023
INTRODUCTION:

Giang Nam Nguyen (the Applicant) is a 49 year-old citizen of Vietnam who first arrived in Australia on a student visa on 29 November 1998.
On 7 December 2021 the Applicant was convicted in the NSW District Court for manufacture of a commercial quantity of a prohibited drug and sentenced to five years imprisonment, and supply of a commercial quantity of a prohibited drug for which he was sentenced to two years imprisonment.
On 6 May 2022, the Applicant’s visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (the Act). The Applicant made representations requesting revocation of the cancellation decision on 3 June 2022. On 14 September 2023, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) decided not to revoke the cancellation decision.
On 21 September 2023, the Applicant applied to the Administrative Appeals Tribunal for review of the non-revocation decision.
For the reasons that follow, the reviewable decision will be affirmed.
LAW AND POLICY
Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6)(a) and 501(7)(c).
Paragraph 501(6)(a) provides that a person does not pass the character test if they have a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 99).
Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations. However, other considerations should not be considered ‘secondary’ or of inherently less importance than primary considerations, and in certain circumstances one or more other considerations may outweigh primary considerations.
The primary considerations in the Direction are:
(1)Protection of the Australian community from criminal or other serious conduct;
(2)Family violence committed by the non-citizen;
(3)The strength, nature and duration of ties of the non-citizen to Australia;
(4)The best interests of minor children in Australia affected by the decision; and
(5)The expectations of the Australian community.
The other considerations set out in Direction 99 which must be taken into account where relevant include but are not limited to:
a)The legal consequences of the decision;
b)The extent of impediments if removed;
c)The impact on victims; and
d)The impact on Australian business interests.
ISSUE
As it is accepted by both parties that the Applicant does not pass the character test as defined in section 501(7)(c) of the Act, the issue for determination is whether there is ‘another reason’ why the decision the cancel the Applicant’s visa should be revoked pursuant to section 501(CA)(4) of the Act.
EVIDENCE
The Applicant’s criminal history
The Applicant’s offending history is set out in an Australian Criminal Intelligence Commission report dated 24 June 2022.[1]
[1] G5, pg 31 – 32.
2001 and 2002 offences
In October 2001 the Applicant was fined without conviction recorded for charges including Obtain property by deception. The Applicant was convicted in 2002 of Obtain property by deception for which he was required to perform 80 hours of unpaid community work.
The 2013 drug offences:
In September 2014, the Applicant was sentenced to 6 years’ imprisonment with a non-parole period of 3 years and 3 months, following a guilty plea for the offence of Supply prohibited drug>= large commercial quantity -SI.
The details of the offending are set out in the court transcript and sentencing remarks of Judge Norrish QC.[2] In summary, the Applicant was arrested in June 2013 as part of a wider police investigation related to the supply of methylamphetamine. The Applicant’s role in the supply of drugs was as a courier, having arranged to meet, and take possession of, approximately 3 kilograms of methylamphetamine that had been imported into Australia, prior to transferring the drugs to another.
[2] G5, pg 45 – 65.
The Applicant was to receive $1000 for his participation. The Court noted that the Applicant had developed a substance abuse issue at a later than typical stage in life and had intended that the money would be used to support his habit.
The 2020 drug offences
On 7 December 2021, the Applicant was sentenced to 5 years imprisonment, with a non-parole period of 2 years and 6 months for drug related offences including Manufacture prohibited drug >= commercial quantity – S1, Supply prohibited drug> indictable & commercial quantity – T1, Deal with proceeds of crime =>$100,000 – T1, Possess prohibited drug and Possess precursor intend to use in manufacture/production – T1.
The details of the offending are set out in the court transcript and sentencing remarks of Acting Judge Woods QC.[3] In summary, on 5 June 2020 investigators applied for and were granted search warrants for a flat in which the Applicant lived. During a search of the premises, police found a number of items which indicated an amateur laboratory for the manufacture of methylamphetamine. The Applicant admitted that he was manufacturing methylamphetamine. Police also found 159 grams of crystal methylamphetamine, 401 grams of liquid methylamphetamine and $112,000 in cash.
[3] G5, pg 33 – 44.
His Honour accepted that the Applicant’s recent job loss due to the COVID-19 lockdown and resulting financial stress were significant factors in the Applicant’s offending.
The Applicant’s evidence
In his oral evidence, the Applicant affirmed his statement of 25 October 2023, and expressed remorse for his offending. He accepted all aspects of his offending, which he agreed was serious. In his written statement of October 2023, the Applicant details his personal background:
I was born in 1974 in Northern Vietnam, the country became independent in 1975 and the war with China ended in 1989. My entire childhood was a series of deprivation, hardship, and not being close to my father. My father fought in the Vietnam war and then the war with China, so my mother's life with me as the older brother taking care of my two younger brothers was very hard, only relying on a few paddy fields. I had to work to help my mother since I was 12 years old and I also went to school until grade 12, but the wartime learning conditions brought back memories I really want to forget. After grade 12, I worked a lot of manual jobs to help support my family. When the war ended, my father returned and brought with him the sequelae of Agent Orange and my father's disease was passed on to my second brother born in 1977. From 1993, my father got sick and passed away in 2002.
The Applicant’s evidence was he is very close to his two nephews, who are the sons of his sister in law Thi Khanh Chi Le. His evidence was that their father had died when they were very young and that he wanted to ensure both children were well educated and did better than he had. He said they need to understand what he has done and to learn from his experience.
The Applicant gave evidence that he is a father to his nephews and their mother their main carer. He said that even though their time together was short he had taken them to school daily when he was residing in the community. In particular he said that his eldest nephew, who is now 16 years old always came to him for advice, and that they had continued communicating through Ms Chi Le while he has been in prison and detention.
The Applicant confirmed said he had not seen his nephews since dropping them to school the day he was arrested in 2020. He said that until recently his nephews were unaware he had been in prison or was being held in immigration detention. Their families had told them that he was working in a remote location.
Despite his nephews now knowing he is in immigration detention, they had not visited him. The Applicant said this was because it was difficult to visit him in detention. The Applicant claimed that the children’s mother had visited.
The Applicant left Australia in June 2006 and resided in Vietnam while waiting for his offshore partner visa to be processed. He remained in Vietnam until December 2009, during which he was working in maintenance for his parents in law’s real estate business.
Evidence of Thi Kim Oanh Le, the Applicant’s wife
Ms Oanh Le is the Applicant’s wife. She has provided statements in support of the Applicant and gave evidence at the hearing. She has resided in Australia since 1999 and is now an Australian citizen.
Ms Oanh Le and the Applicant began living together in 2002, and their daughter was born in the following year. She said that when the Applicant was in prison and in detention, she visited him regularly. Since the Applicant’s transfer into immigration detention, she and the Applicant speak on the phone regularly throughout the day.
Following the Applicant’s arrest in 2020, both she and the Applicant began practicing Buddhism and they read scripture together over the phone. Ms Oanh Le suffers from depression and her conversion to Buddhism had helped with the condition.
Ms Oanh Le said that the Applicant used to have a ‘hot temper’, but was now a gentle man, who cried a lot and regrets his actions. In her statement of 4 June 2022[4] she writes that the Applicant accepted his mistakes and had ‘come to a lot of realisations’.
[4] G5, pg 166 – 169.
In relation to their nephews, Ms Le said that the boys did not know their biological father and both considered the Applicant their second father.
Ms Oanh Le confirmed the Applicant had a loving relationship with their daughter. She said that despite the Applicant’s offending and the consequences for their family, he had always been a ‘wonderful father’. It was put to her that, for the most part, the Applicant has not been physically present since 2013 when their daughter was age 10, which Ms Oanh Le agreed was correct.
When asked what it would mean to her if the Applicant was returned to Vietnam, Ms Oanh Le became upset and told the Tribunal she did not want to think about the worst scenario.
Ms Oanh Le said it had been difficult coping in the Applicant’s absence as she had arthritis, and her family needed her husband to be the ‘backbone of the family’ and contribute financially to the household. She also said that she and her daughter currently lived in an old house and the Applicant’s assistance was required to undertake repairs and take care of the garden. She said that calling repairmen is expensive and that she was at an age where she wanted to relax and enjoy her life and noted she had not been on a holiday in 10 years.
It was Ms Oanh Le stated that she had lived in Australia longer than she had lived in Vietnam, and that her daughter’s future is in Australia.
Evidence of Nina Nguyen, the Applicant’s daughter
Ms Nguyen is the Applicant’s daughter. She affirmed her statement of 25 October 2023.
When questioned about her relationship with her father, Ms Nguyen said that even when the Applicant had not been physically present, she had always felt his mental and emotional support, and that she had always felt loved and cared for. Her evidence was that during the times the Applicant had been home he had tried to create family experiences. When the Applicant was residing at home, she said she was very happy. She recalled going to the park with her cousins and playing games as important childhood memories.
Ms Nguyen gave evidence that when the Applicant was serving his sentence for the 2013 drug offences, she and her mother had regularly visited him in prison despite it being an hours long journey. More recently she visited her father at least once a week, and when she was on holidays she tried to visit daily.
Ms Nguyen said it was hard for her to imagine not being able to be with her father for even more of her life. She said that with her career goals and studies it would be mostly impractical to visit the Applicant if he was returned to Vietnam.
Ms Nguyen described the Applicant’s relationship with his nephews as very close. She said they viewed him as a parental figure.
Ms Nguyen confirmed her mother and father had become more religious after his arrest in June 2020. She said they regularly call each other on the phone and pray together.
Evidence of Thi Khanh Chi Le, the Applicant’s sister-in-law
Ms Chi Le is the Applicant’s sister-in-law and mother of the Applicant’s two nephews. She gave evidence at the hearing during which she affirmed her statement of 24 October 2023.
Asked if she understood the nature of the Applicant’s offending Ms Chi Le told the Tribunal she only became aware of the offences following the Applicant’s arrest and speculated that the Applicant’s friends contributed to his offending. While she considered the offences are very serious, Ms Chi Le does not think the Applicant intended to commit the offences.
Ms Chi Li confirmed that since the Applicant’s most recent imprisonment and transfer to immigration detention, she had visited him on one occasion. However, they are in regular contact by phone and she noted the Applicant speaks regularly to her children two to three times a week.
Ms Chi Le agreed that she has largely raised her sons on her own, and that they had not been able to visit the Applicant since he was imprisoned in June 2020. She stated that this was because of COVID-19 and the fact that her children had only received a single vaccination.
Ms Chi Le described the Applicant’s relationship with her children as very good. She said her sons referred to the Applicant as a father. Asked how he helps with the boys, Ms Chi Le said that the Applicant had been doing school drop off and pickup and that he had taken care of and helped her children develop discipline.
When asked about how her sons would feel if the Applicant was removed from Australia, Ms Chi Le said that her eldest son had spoken to her this morning and requested to accompany her to the Tribunal that morning. She said that he had asked her to tell the Tribunal to forgive the Applicant so he can teach them to become good men.
If the Applicant were to be removed from Australia, Ms Chi Le believes her children would be ‘shocked’ and without a male role model in the family. She said losing the Applicant would be a big loss to her family and that she needed the Applicant’s help raising her sons because she has diabetes and was in poor health.
Evidence of Mr Bao Thanh Nguyen
Mr Nguyen is a sole trader and the Applicant’s previous employer. In June 2022 Mr Nguyen made an offer of employment to the Applicant which he confirmed still stood.
He said that he had known the Applicant for around 15 years, and that they had met through a mutual friend and he is aware of the Applicant’s convictions.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, Direction 99 requires decision-makers to have regard 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.
The nature and seriousness of the Applicant’s conduct to date
In considering the nature and seriousness of the Applicant’s conduct I am required to have regard to the factors set out in paragraph 8.1.1(1) of the Direction.
The Applicant’s conduct to date includes drug-related convictions in 2014 and 2021 which are very serious. In addition, the Applicant was convicted in 2002 of Obtain property by deception for which he was required to perform 80 hours of unpaid community work. In October 2001 he was fined without conviction recorded for charges including Obtain property by deception.
Regarding the 2014 conviction Judge Norrish QC stated that the Applicant’s role was ‘significant or important’ as ‘it was a mechanism by which the prohibited drugs could be passed on to others for the purposes of wider distribution in the community.’[5].
[5] G5, pg 49.
The 2021 conviction was for serious drug-related offences including manufacture of a commercial quality of a prohibited drug and supply of a commercial quantity of a prohibited drug. In sentencing the Applicant Acting Judge Woods QC stated:[6]
It is unnecessary to dilate further on the facts which represent an amateur drug manufacturing establishment in a suburb. It was not only criminal, requiring a criminal sentence of imprisonment be imposed full time, but it was no doubt a danger to the community because premises like this are often incompetently managed and explode, creating a fire to the danger of locals.
[6] G5, pg 36.
That the Applicant reoffended in 2021 after previously having his visa mandatorily cancelled by the Department on 21 December 2015 on the basis of the 2014 conviction adds to the seriousness of his conduct.

The Applicant also provided false or misleading information to the Department by not disclosing his prior criminal history on incoming passenger cards between 2009 and 2013. The Applicant submits that his failure to do so was due of ‘omission and lack of understanding’ on his part.[7] He gave evidence that did not understanding he was required to declare offending for which he had not been sentenced to a term of imprisonment. When he returned to the country in 2012, he had forgotten about his previous offending and it was not his intention to conceal the convictions. I accept that the failure to declare his offending amounts to providing false or misleading information to the Department, which adds marginally to the seriousness of his conduct to date.
[7] G5, pg 113.
The seriousness of the Applicant’s offending is reflected in the sentences imposed upon him. He was sentenced to 6 years imprisonment for the 2013 offences and 5 years and 6 months for the 2020 offending. The offending also demonstrates a trend of increasing seriousness, having been convicted of obtaining property by deception in 2001 and most recently a conviction for manufacture and supply a commercial quantity of a prohibited drug.
I also take into consideration that the Applicant reoffended having previously had his visa mandatorily cancelled in December 2015 on the basis of criminal offending in 2014.
Overall, I find that the Applicant’s offending is serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Subparagraph 8.1.2(1) of Direction 99 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. Subparagraph 8.1.2(2) provides that in assessing the risk posed by a non-citizen to the Australian community, I should consider, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending.
Should the Applicant commit further similar offences in the future there is a risk of serious harm to the members of the community arising from the manufacture, distribution and use of prohibited drugs.
Turning to the risk of reoffending, the Applicant contends that he ‘is not a danger to the Australian community’ as he is ‘deeply remorseful for his offending and is committed to leading a law-abiding life’.[8] He submits that having spent nearly three years in prison has provided an opportunity to reflect and to complete courses directed at his rehabilitation. He is now able to control his emotions and has greater empathy for others.
[8] G5, pg 115.
The Applicant also refers me to the sentencing remarks of Acting Judge Woods who observed the Crown accepted that the Applicant had some degree of remorse and some level of insight. Acting Judge Woods also accepted the Applicant was ‘genuinely remorseful’ for his conduct.
The Applicant lost his job during the COVID-19 pandemic and faced ‘severe financial stress’ which he claims contributed to his offending and notes this was accepted by the Court as a mitigating factor.[9]
[9] Applicant’s Statement of Facts, Issues & Contentions, paragraph 12.
The Applicant explained that after his visa was reinstated and he was released from immigration detention, he moved back in with his wife and their daughter. He began working in October 2019 as an ‘all-rounder’ at his friend’s restaurant. The Applicant gave evidence that, at that time, each week he worked approximately 25 hours for which he was paid between $450-$500. In March 2020 the restaurant was forced to close due to COVID-19 restrictions and he lost his job. In May he began to receive income support by way of Jobkeeper payments which he said were about $750 per week.
Asked how COVID-19 related to his offending when the Jobkeeper payments he was receiving exceeded the income he had been earning before the pandemic, the Applicant explained that his wife’s beauty salon business was also closed. The couple did not have any savings and she did not receive Jobkeeper payments until June. Questioned further, the Applicant explained in March 2020 he had borrowed money from a friend who he could not afford to pay back. He indicated that his friend and the debt he owed led to his offending in 2020. This is broadly consistent with the Pre-release report dated 14 March 2023 which records:[10]
Mr Nguyen has stated that at the time of his offending he was aware that his activities were illegal and to the potential consequences of his actions. Mr Nguyen presents as being remorseful and has made no attempt to minimise his participation in the offence.
…
Mr Nguyen reported that he was heavily influenced by his former employer who was also his co-resident at the time of the offence. He reported that his former employer was the architect of the offending and Mr Nguyen “did not want to let him down”, despite knowing the offending behaviour was illegal. Mr Nguyen stated the “he lived with me, what else could I do”.
…
Mr Nguyen disclosed that at the time of the offending he had a substantial debt that was owed to a friend. Mr Nguyen claimed that he had to borrow money from them to assist him financially after having his employment hours reduced due to the COVID lockdown. Mr Nguyen’s primary motivation to participate in the offending was to earn enough money to repay his debt, and possibly have a surplus amount available for future living expenses.
[Emphasis added]
[10] Respondent’s Tender Bundle, pg 18 – 21.
When asked how he could claim to be remorseful having twice been convicted of offences related to the supply of methylamphetamine, the Applicant said that he struggled to rebuild his life after having his visa reinstated. The first cancellation was revoked in 2017, only for the visa to be cancelled again by the Minister. He claims the extended process of regaining his visa had caused misery to his family and ruined his opportunity to reunite with them.
When questioned about the lessons he had learned from his time in custody, he said that he understood that he was now nearly 50 years old, and if he did not change he would be ‘forever behind bars’. He is determined to change himself and he has attended rehabilitation courses and sought the support of his family.
The Applicant contends that he is a changed man who has taken steps to rehabilitate himself and has taken great strength and insight from Buddhism. He has completed the Narcotics Anonymous Program, Smart Program, Emotional Wellbeing program and the Thinking Skills program.[11] He said that the thinking skills and emotional wellbeing program taught him to think before acting and to avoid people who might encourage reoffending. He noted that he was unable to participate in other courses because of COVID-19 lockdown.
[11] Above n 9, para 13.
If he is able to return to the community he plans to take up an open offer of employment as a general hand at a newsagency where he has worked previously and resume living with his wife and daughter.
Regarding his rehabilitation, the Applicant said that although he had not used drugs since 2013, he had participated in Narcotics Anonymous to better understand the impact of drugs. He also said that among other courses, he had taken a financial management course.
Should he be faced with financial challenges in the future, the Applicant is certain he would not commit further drug related offences. He is mindful that his family had suffered greatly because of his past offending and they would not tolerate any further offending.
A sentencing assessment report dated 30 August 2021 states the Applicant was assessed at a low to medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R).[12]
[12] Above n 10, pg 9.
The Applicant has explained his offending was in part a response to financial circumstances brought by COVID-19. The uncertainty of that time and the difficulties for those employed in hospitality deserve special consideration. The challenging financial circumstances were compounded by debts and his wife’s business being shut down, also due to pandemic restrictions.
I am mindful, however, that the Applicant’s own evidence was that the social security payments exceeded what he had been earning while working, albeit with some delay in receiving those payments. The sentencing assessment report also states that the Applicant’s offending was influenced by his association with negative peers. As such, the pandemic only partly accounts for the Applicant’s most recent offending.
The Applicant has expressed his remorse and I accept that he is sincere in his regret for his offending and in particular the impact it has had on his family. He has expressed shame and feels foolish for reoffending, which I also accept as genuine in circumstances where the Applicant previously had his visa cancelled on account of drug related offending.
Except for a short period in the community between 10 May 2017 and 21 December 2017, the Applicant was in either prison or immigration detention from June 2013 to August 2019, meaning he had limited opportunity to reoffend. It is of significant concern that he reoffended so soon after his release back into the community.
It is also of concern that having endured an extended and by his own account miserable experience to have his visa reinstated, the Applicant was prepared to risk having the visa cancelled again within months of his release from detention. This leads me to conclude that despite his remorse and rehabilitation, there remains a very real risk the Applicant may reoffend should he remain in the Australian community.
Primary consideration 1 - Conclusion
Having regard to the evidence and the considerations set out in the Direction, I find that the nature of the Applicant’s offending was very serious. I am satisfied that there is a low to medium risk of the Applicant reoffending, but there is a risk he will continue to engage in criminal conduct.
Despite having undertaken some rehabilitation in the period since his most recent offending, there is limited evidence or expert reports which might support an alternative finding regarding the risk of further harm to the community. Should he reoffend, the harm caused to the Australian community would be considerable, and the protection of the Australian community weighs heavily in favour of not revoking the cancellation decision.
PRIMARY CONSIDERATION 2 – FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
The second primary consideration is whether the conduct engaged in by the Applicant constituted family violence. Family violence is defined in Section 4 of Direction 99 to include 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(3) of the Direction sets out a list of factors that the Tribunal must consider in assessing the weight to be given to this consideration. They relevantly include the frequency of the conduct, the cumulative effect of repeated acts of family violence and the rehabilitation achieved since the person’s last known act of family violence.
There is no evidence that the Applicant has engaged in conduct that constitutes ‘family violence’ and this consideration is not given any weight in favour or against revocation.
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 as well as the strength, duration and nature of any family or social links with Australian citizens, permanent residents and people who have a right to remain in Australia indefinitely. Subparagraph 8.3(4) provides that consideration weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years.
The Applicant has resided in Australia for nearly 25 years having arrived at the age of 24 in 1998. In June 2006 the Applicant returned to Vietnam where he lived until his visa was granted, returning in December 2009. He has contributed to the community through paid employment, notably in hospitality and Mr Nguyen’s Newsagency. Although the Applicant has resided in Australia full time since 28 January 2013, he has been in prison or immigration detention for most of that time.
I am satisfied that the Applicant has established and strong relationships in the community.
The Applicant and his partner Thi Kim Oanh Le have been in a relationship since 2002. Ms Oanh Le suffers from depression. A report by psychologist David Green dated 8 June 2021 confirms that her mental health condition has previously been exacerbated by her separation from the Applicant.
The Applicant’s daughter, Nina Nguyen, is now 20 years old. Ms Oanh Le acknowledges that the Applicant had been physically absent from her daughter’s life since she was 10 years of age. Nonetheless, both Ms Oanh Le and Ms Nguyen gave evidence of the considerable impact it would have on them should the Applicant’s visa remain cancelled. Ms Oanh Le says her daughter has been disadvantaged by the Applicant’s absence and holds fears for her wellbeing should he be removed from Australia.
Ms Oanh Le considers the Applicant the person she loves the most and cannot imagine her life without him. In a statement she writes that the Applicant is the only one who can ‘withstand’ her mood swings and states her mental and physical health have both weakened with age. I note that Ms Oanh Le’s depression has been chronic and the seriousness of the condition is such that she required hospitalisation in 2017.
Thi Khanh Chi Le, the Applicant’s sister-in-law also gave evidence that the removal of the Applicant would be difficult for her and her two sons. The Applicant has friends in the community including his former employer Dinh Quy Pham, Lama Namsai, Ngoc Tam Pham and Jeanne Nguyen.
While the Applicant has spent prolonged periods in prison and detention away from the Australian community, the established relationships he has in the community are significant. His removal would have a significant negative impact on his partner and daughter. Though they could maintain contact with each other via telephone or other electronic means, the strength, nature and duration of the Applicant’s ties to the Australian community weigh heavily in favour of revocation.
PRIMARY CONSIDERATION 4 – BEST INTERESTS OF MINOR CHILDREN AFFECTED BY THE DECISION
Direction 99 requires the Tribunal to make a determination about whether refusal to revoke the cancellation of the Applicant’s visa is in the best interests of any minor children in Australia affected by the decision. The Direction at subparagraph 8.4(4) sets out several factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child, the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child, any known views of the child, and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence.
The Applicant contends that it is in the best interests of his two nephews that he is able to remain in Australia. Child A, born in August 2007, is 16 years old. His brother, child B, November 2011 is 12.
The boys’ mother, Thi Khanh Chi Le, gave evidence that the Applicant has a close relationship with his nephews. It was her evidence that the boys both look up to the Applicant and see him as a ‘secondary father’, particularly as their own father passed away when Child B was two months old. When not in prison or detention, the Applicant regularly cared for the children and took them to the cinema, sporting events or dinner. Both children are attached to the Applicant and Thi Khanh Chi Le is concerned that they will suffer without him. She states that he has been important in their development as they respect and listen to the Applicant.
Child A has provided a statement regarding the Applicant dated 18 November 2022 in which he acknowledges he and his brother had not seen the Applicant for two years but states that they remain close and the Applicant ‘loved us like his own children’.[13]
[13] G5, pg 126.
The children live with their mother and the relationship they have with the Applicant is non-parental and he is not a primary care giver. Nonetheless, it is recognised both children stayed with the Applicant’s family at times and share a close relationship with the Applicant despite limited recent interaction owing to his having been in prison or detention for most of their lives.
I am satisfied that the primary consideration of the best interests of minor children in Australia affected by the decision weighs in favour of revoking the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 5 – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5 of Direction 99 requires me to consider the expectations of the Australian community. Subparagraph 8.5(1) relevantly states:
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.
In FYBR v Minister for Home Affairs[14] (FYBR) the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, 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 expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.5 of Direction 99.
[14] [2019] FCAFC 185, [75]
The Direction lists specific conduct which the Australian community as a whole expects would raise serious character concerns and an expectation that the person would not hold an Australian visa. I accept that the Applicant’s criminal conduct is inconsistent with the values of the Australian community and the Australian community as a norm expects his visa to be cancelled.
Having regard to the provisions of Direction 99 and the Applicant’s criminal offending, I find that the community’s expectations weigh in favor of not revoking the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
Legal consequences of the decision
I am required to consider the legal consequences of the decision having regard to Australia’s non-refoulment obligations. A ‘non-refoulement obligation’ is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm’. Should the Applicant’s visa remain cancelled, by operation of subsections 189 and 198 of the Act, he will be liable for removal from Australia as soon as reasonably practicable. Paragraph 9.1(1) of Direction 99 provides that the Tribunal should be mindful that s 197(C)(1) has the effect that non-refoulment obligations are irrelevant for the purposes of s 198.

The Applicant claims to be fearful of returning to Vietnam where he faces the threat of harm, having been critical of the government of Vietnam in the past. As he has obtained a criminal record in Australia, he believes he will be subject to constant surveillance.
The Applicant has also raised concerns about the use of the death penalty in Vietnam. He has tendered an article which confirms the continued use of the death penalty in Vietnam. The DFAT Country Information for Vietnam confirms the 2015 penal code states the production, transporting or trading of narcotics is one of 18 crimes for which the death penalty is applicable.[15] The DFAT Country Information for Vietnam also acknowledges that a crime committed outside of Vietnam may theoretically be punishable under Vietnamese law but indicates it does not happen in practice.
[15] Department of Finance and Trade, Country Information Report: Vietnam (11 January 2022) 27.
I have found that there is a low to medium risk of the Applicant reoffending should he return to the Australian community. The Applicant submits that should reoffending of a similar nature to that which he has offended in the past occur in Vietnam, it may result in him being subject to the death penalty. The Applicant contends such a scenario would enliven Australia’s non-refoulement obligations.
Claims which may give rise to international non-refoulement obligations must be considered. The Direction at subparagraph 9.1.2.(2) provides the choice whether to defer consideration of non-refoulement issues or to proceed to consider them. Where it is open to a non-citizen to apply for a protection visa, it is not necessary for non-refoulment issues to be considered in the same level of detail as would occur in relation to a protection visa application, and the Tribunal may choose to proceed on the basis that any protection claims can be assessed as and when the non-citizen applies for a protection visa.
The Applicant has not made an application for a protection visa but is able to do so if he chooses. The information before the Tribunal to substantiate his stated concerns is insufficient to determine whether non-refoulment obligations may be owed to him. Having regard to the High Court decision in Plaintiff M1/2021 v Minister for Home Affairs (Plaintiff M1)[16] the appropriate course of action is to allow the Applicant’s claims to be more fully assessed in a protection visa assessment.
[16] [2022] HCA 17, [30] per Kiefel CJ, Keane, Gordon and Steward JJ
For these reasons the legal consequences of this decision weigh neutrally.
The Extent of Impediments if removed
I am required to consider the extent of any impediments that the Applicant may face if removed from Australia in establishing himself and maintaining basic living standards in Vietnam in the context of what is generally available to other citizens of that country. In doing so I am to take into consideration the Applicant’s age and health, whether there are substantial lingual or cultural barriers, and any social, medical and/or economic support available to him in Vietnam.
The Applicant expects to face hardship if he returns to Vietnam due to a lack of financial support and few opportunities for employment.
The Applicant is age 49 and there is no evidence of any significant physical health issues, but I note he indicated he suffered from depression and insomnia in the request for revocation dated June 2022.[17]
[17] G5, pg 89
The Applicant submits he would be unable to rely on the support of his family who remain in Vietnam, notably his mother and two brothers, who are in straitened circumstances and reliant on assistance from he and his partner. Should he return to Vietnam the Applicant fears becoming a burden to his mother and brothers ‘who are already struggling’ and he believes would not be able to provide him with food.[18]
[18] Ibid.
The Applicant was born and raised in Vietnam where he resided until age 24. The Applicant can expect to have access to health and welfare services that are available to other citizens of that country.
I acknowledge that the Applicant’s would be expected to find reintegration into Vietnam more difficult without the emotional and practical support of his partner and daughter and the limited capacity of his mother and brothers to offer practical support. I am mindful that except for his return to Vietnam to await the processing of his partner visa application between June 2006 and December 2009, he has not lived in Vietnam since 1998. However, during that period he was able to secure work in real estate and property maintenance with his parents-in-law.
Having regard to the evidence, I consider the Applicant can expect to face challenges re-establishing himself in Vietnam having resided in Australia for most of his adult life. These impediments are not insurmountable, but are sufficient that this consideration weighs strongly in favour of revoking the cancellation decision.
CONCLUSION
In making this decision I am mindful the Applicant first arrived in Australia age 24 and has spent almost half his life in this country. The seriousness of his offending is reflected in the significant terms of imprisonment he received for the 2013 and 2020 offences. His prospects of rehabilitation are encouraging, but the risk of reoffending is such that the protection of the Australian community weighs heavily against revoking the cancellation of his visa. The expectations of the Australian community also weigh heavily against revocation.
The Applicant’s partner, daughter and sister-in-law in particular have provided detailed and compelling evidence as to how the Applicant’s removal would be detrimental to them. The Applicant’s ties to Australia are afforded significant weight in favour of revocation. The best interests of the Applicant’s two nephews also weigh in favour of revocation. However, the relationship he has with his nephews is non-parental and there have been long periods of absence. Nonetheless, he performs a ‘father like’ role and this primary consideration is afforded moderate weight in favour of revocation.
The Applicant can expect to be challenged by the practical aspects of reintegrating into Vietnam and would have limited support. However, I note he was able to live in Vietnam without significant issues when he returned in 2006. I afford this consideration moderate weight in favour of revocation.
Having weighed the relevant primary and other considerations, I find that the protection of the Australian community and expectations of the Australian community outweighs the considerations in favour of revocation. Accordingly, there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked and the reviewable decision will be affirmed.
DECISION
The Tribunal decides that the reviewable decision of 14 September 2023, not to revoke the mandatory cancellation of the Applicant’s visa, is affirmed.

I certify that the preceding 123 (one hundred and twenty - three) paragraphs are a true copy of the reasons for the decision herein of Member Shane Evans

.........................[SGD]....................................
Associate
Dated: 21 December 2023

Date(s) of hearing:

Date final submissions received: 29 November & 4 December 2023

Solicitors for the Applicant: Mr Ray Turner & Ms Sai Priya Sivalohan

Counsel for the Respondent: Mr Anthony Hall

Solicitors for the Respondent: Ms Megan Kent

[2023] AATA 4237

7 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date(s) of hearing:
Date final submissions received:	29 November & 4 December 2023
Solicitors for the Applicant:	Mr Ray Turner & Ms Sai Priya Sivalohan
Counsel for the Respondent:	Mr Anthony Hall
Solicitors for the Respondent:	Ms Megan Kent