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

Nguyen and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 392 (15 March 2023)
Division:GENERAL DIVISION
File Number(s): 2022/10487
Re:Cong Hoang Nguyen
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Deputy President Justin Owen
Date:15 March 2023
Place:Sydney

The decision under review is set aside by the Tribunal and substituted with a decision that the mandatory cancellation of the Applicant’s Class BS Subclass 801 Partner visa is revoked.
.................................[SGD].......................................
Deputy President Justin Owen
Catchwords
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 99 – protection of the Australian community – nature and seriousness of conduct – risk of reoffending – family violence – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed – impact on victims – impact on Australian business interests–– decision under review set aside and substituted.
Legislation
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 50
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Minister for Immigration & Multicultural Affairs v "SRT" [1999] FCA 389
Minister for Immigration & Multicultural Affairs v SRT (includes corrigendum dated 6 September 1999) [1999] FCA 1197
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
RRCX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 379
R v Pidoto (2006) 165 A Crim R 61
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIAL
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
Deputy President Justin Owen
15 March 2023
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) made under subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act) on 21 December 2022, not to revoke the mandatory cancellation of his Class BS Subclass 801 Partner visa (the Visa). His visa was cancelled on 22 February 2022 under subsection 501(3A) on the basis that he did not pass the character test. The Applicant was duly notified of the mandatory cancellation decision and was invited to make representations in an effort to revoke that decision. On 21 December 2022 a delegate of the Respondent refused to revoke the mandatory cancellation made on 22 February 2022. There followed an application to the Tribunal on 22 December 2022 wherein the Applicant sought review of the delegate’s refusal to revoke the decision made on 22 February 2022.
Paragraphs 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of his conviction on 28 January 2022 in the District Court of New South Wales of knowingly take part-cultivate >= large comm qty – cannabis-SI, for which he was sentenced to three years imprisonment.
The Applicant concedes that he does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to sub-paragraph 501CA(4)(b)(ii) of the Act.
The hearing was held on 7 March 2023. The hearing received oral evidence from:
- The Applicant;
- Mr David Green, a psychologist;
- Ms Hoang Minh Thu Nguyen, the Applicant’s sister;
- Ms Hoang Tuong Vi Nguyen, the Applicant’s sister;
- Ms Hoang Minh Anh Nguyen, the Applicant’s sister;
- Mr Huu Binh Hoang, the Applicant’s uncle
- Ms Dung Thi Thu Le, the Applicant’s friend.
For the following reasons, the Tribunal has concluded that the decision not to revoke the cancellation of the Applicant’s visa should be set aside.

Background Facts

The Applicant was born in May 1989 in Vietnam. At the time of decision he is 33 years of age. The Applicant is the eldest of four children. His mother resides in Vietnam and owns a business selling flour wholesale. His father deceased in 2005 when the Applicant was 16 years of age. The Applicant states at this time he became the male figure in his household and slowly assumed many of the responsibilities of his late father. He states that he assisted his mother with the family business and helped look after her as well as his younger sisters. He completed Year 12 in 2007. The Applicant claims in 2008 his widowed mother wanted to provide him with the opportunity for a better future and consequently used her savings to allow the Applicant to study overseas.
The Applicant arrived in Australia in November 2009, at 20 years of age, as the holder of a Student visa with the intention of studying English before completing an Advanced Diploma in Finance at Macquarie University. The Applicant lived with his maternal uncle Mr Huu Bin Hoang and aunt Mrs Thi Kim Ngan Tran. In October 2010 the Applicant successfully completed his English language studies at Macquarie University and commenced studying an Advanced Diploma of Commerce at the same institution. In 2012 he met Miss Julie Tran, an Australian citizen studying a Bachelor of Commerce at the University of Western Sydney.
In 2013 the Applicant’s cousin Miss Sophia Hoang was born to his aunt Mrs Thi Kim Ngan Tran and uncle Mr Huu Bin Hoang. The Applicant states he became very close to his cousin whilst he lived with his aunt and uncle. That same year the Applicant’s eldest sister Miss Hoang Tuong Vi Nguyen arrived in Australia aged 18 years of age for study purposes. She took up residence with the Applicant and Mrs Thi Kim Ngan Tran and Mr Huu Bin Hoang. At this time the Applicant abandoned his own tertiary studies in order to provide support for his sisters’ studies in Australia.
In January 2014 the Applicant married Miss Julie Tran. The Applicant’s wife took up also took up residence with Mrs Thi Kim Ngan Tran and Mr Huu Bin Hoang. In 2015 the Applicant commenced employment with a distribution company, Masman Group in Chipping Norton. In 2016 the Applicant’s aunt and uncle Mrs Thi Kim Ngan Tran and Mr Huu Bin Hoang separated. The Applicant states his care responsibilities for his cousin Miss Sophia Hoang increased.
In June 2017 the Applicant’s middle sister Miss Hoang Minh Thu Nguyen arrived in Australia at 15 years of age for study purposes, initially undertaking intensive English language courses before commencing in Year 10 at Chester Hill High School. The Applicant paid for extra tuition for his sister who was initially residing with the Applicant, her older sister Miss Hoang Tuong Vi Nguyen and her uncle and aunt.
In early 2017 Miss Hoang Tuong Vi Nguyen graduated from UTS with a Bachelor of Business (Accounting), eventually securing employment with Menzies Aviation. At the end of 2017 due to overcrowding the Applicant, his wife and his sisters Miss Hoang Minh Thu Nguyen and Miss Hoang Tuong Vi Nguyen moved to rental accommodation in Chester Hill, close to his uncle and aunt due to overcrowding.
The Applicant’s youngest sister Miss Hoang Minh Anh Nguyen arrived in Australia in July 2019, with the Applicant becoming his youngest sister’s Guardian. She also undertook intensive English language courses prior to commencing Year 10 at Chester Hill High School.
The Applicant’s relationship with his wife Ms Julie Tran collapsed in August 2019. The arrival of the Applicant’s third sister, and the Applicant’s financial support for his sisters, is blamed for the breakdown of the relationship. Ms Tran moved out stating ‘you keep your own money and look after your sisters and I keep my money’. The Applicant remains in residence with, and financially supporting, his sisters.
The arrival of COVID-19 and lockdowns in March 2020 reduced the Applicant’s work hours. He left his employment with the Masman Group to take up employment with his uncle Mr Huu Bin Hoang. The Applicant states that his hours of employment nevertheless continued to decline with office closures and lockdowns, until he was only getting around ten hours work per work. The Applicant states he was under financial pressure.
The Applicant by mid-2020 was under increasing financial pressure: his sister Miss Hoang Minh Thu Nguyen was intending to enrol in Medicine at university whilst his mother was intending to migrate to Australia following the Applicant’s payment of an application fee the previous year of almost $6,000 for a Contributory Parent visa. The Applicant claims at this point his mood was ‘very low and I was feeling very depressed about my financial situation’. (G15/179, [30])
The Applicant claims at this time he utilised networks in the Australian-Vietnamese community to find extra employment. At Club Condell Park the Applicant claims he met an individual that offered him farm work in Minimbah, NSW. The Applicant travelled to the site in late July 2020 and commenced work. He claims in late August 2020 he realised the property was growing cannabis.
At dates between 27 July 2020 and 23 October 2020 the Applicant was observed by surveillance teams from NSW Police at the site where his observed role was that of a labourer. Evidence obtained by the NSW Police was there were cannabis plants at the site that were being grown by enhanced indoor means. On 22 October 2020 the Applicant was arrested at the property and refused bail.
The Applicant remained remanded in custody until 8 September 2021. During this period his sister Miss Hoang Minh Thu Nguyen completed her HSC studies and enrolled in a Bachelor of Medical Science degree at the University of Sydney.
On 28 September 2021 the Applicant was assessed by Corrective Services NSW as at a ‘low’ risk of reoffending according to the Level of Service Inventory – Revised (LSI-R). (G5/137)
On 28 January 2022 the Applicant, with five co-offenders, was convicted and sentenced in the District Court of NSW of knowingly take part – cultivation of not less than a large commercial quantity of cannabis (5,593 plants) and sentenced to 3 years imprisonment, commencing 10 March 2021 and concluding 9 March 2024. A non-parole period was set for 18 months, concluding on 9 September 2022.
On 8 March 2022 the Applicant made a request to the delegate for a revocation of his mandatory visa cancellation. Whilst in gaol the Applicant on 7 April 2022 completed a ‘Family & Relationships’ session as part of the ‘NEXUS: planning your release’ course. On 20 June 2022 the Applicant completed a ‘Maintain cleaning storage areas’ competency as part of his Certificate III studies in Cleaning Operations. On 11 July 2022 the Applicant successfully completed further courses as part of his Certificate I in Skills for Vocational Pathways and DL Digital Literacy studies.
On 13 July 2022 the Applicant spent 3.5 hours with a psychologist, Mr David Green. Mr Green also spent 1.5 hours with the Applicant’s sisters for the purposes of providing a report to the Tribunal. On 18 July 2022 the applicant was assessed by Mr Green of being at a ‘low; risk of reoffending. Mr Green also provided opinion as to the adverse impact returning the Applicant to Vietnam would have both upon his cousin Miss Sophia Hoang and his sister Miss Hoang Tuong Vi Nguyen.
The Applicant was released from gaol on parole on 9 September 2022.
In this case, it is not in dispute that the Applicant has made representations about the revocation of the cancellation of his visa. The requirements of paragraph 501CA(4)(a) of the Act are met.

LEGISLATIVE FRAMEWORK
Does the Applicant Pass the Character Test?

The character test is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) of the Act states that a person does not pass the character test if the person has a substantial criminal record, as defined in subsection 501(7) of the Act. Paragraph 501(7)(c) of the Act provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Applicant was convicted of the offence knowingly take part-cultivate>= large comm qty – cannabis- SI and sentenced by the District Court of New South Wales on 28 January 2022 to a term of imprisonment of three years with a non-parole period of one year and six months.
The Tribunal finds that the Applicant has a ‘substantial criminal record’; and, therefore, he does not pass the character test. This is not disputed by the Applicant. The Tribunal must consider whether ‘there is another reason why the original decision should be revoked’.

Is there another reason why the original decision should be revoked under subsection 501CA(4)?

In considering whether to exercise this discretion, the Tribunal is bound by subsection 499(2A) to comply with any directions 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 or Direction 99) has application.[1] The Direction is binding on the Tribunal in performing its functions, or exercising powers under section 501 of the Act.
[1] On 15 April 2021, the former applicable direction, Direction no. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90, this in turn was replaced by Direction 99 on 3 March 2023.
The Direction sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant or revoke mandatory cancellation decisions. For the purposes of 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 a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction 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 cancellation 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 8.55(2) (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.
Section 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.
Section 8 of the Direction sets out five 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.
Section 9 of the Direction sets out four non-exhaustive Other Considerations which must be taken into account. These considerations are:
a)legal consequence of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
The Tribunal notes the importance of the Other Considerations being ‘other’ considerations, as opposed to ‘secondary’ considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[2]
…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including nonrefoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[3]
[2] [2018] FCA 594.
[3] Ibid, [23].

offending HISTORY

The Applicant’s criminal record as produced by the Australian Criminal Intelligence Commission is outlined at Annexure A. (G4/22)

The Applicant’s offending consists of a conviction on 28 January 2022 in the District Court of New South Wales of knowingly take part-cultivate>= large comm qty – cannabis-SI, for which he was sentenced to three years imprisonment with a non-parole period of one year and six months. There is no record or suggestion of any other offending.

CONSIDERATIONS

The Applicant made representations seeking the revocation of the cancellation decision. The Tribunal has had regard to the Applicant’s representations, as well as his submissions and evidence to the delegate, in addition to the evidence subsequently provided to the Tribunal by the Applicant, his witnesses and the Respondent.
In his evidence to the Tribunal, the Applicant conceded that his offending was ‘obviously very serious in nature’ (para 5) given the large amount of cannabis involved, and acknowledges the expectations of the Australian community weigh against him. The Applicant points out however that his role was subsidiary and more akin to a labourer at the cannabis farm. The Applicant refers also to the strength, nature and duration of his ties to Australia through his three sisters and cousin; his remorse for the offending and lack of any other adverse interactions with the law either pre or post his conviction, factors that he submits speaks to a low risk of any reoffending. The Applicant also submits that the best interests of minor children – being his young cousin Miss Sophia Hoang – ought to be given very significant weight. The impediments he would face if he had to return to Vietnam has also been pressed as a relevant consideration by the Applicant.
The Respondent refers to the seriousness of the Applicant’s offending, which are relevant to primary considerations of the protection of the Australian community (being both the nature and seriousness of the Applicant’s conduct; and the risk should the Applicant commit further offences or engage in serious conduct), as well as the expectations of the Australian community. The Respondent concedes that the primary considerations pertaining to the Applicant’s strength, nature and duration of ties to Australia weighs heavily in favour of revocation, whilst conceding some limited weight in the Applicant’s favour in relation to the primary consideration concerning the best interests of minor children affected by the decision, and impediments to be faced by the Applicant if he were to return to Vietnam.
The Tribunal’s considerations are set out below with regard to Direction 99.

PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

In considering Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the 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 this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.

The Nature and Seriousness of the Applicant’s Conduct to Date

When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or 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 the Australian community.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
iv.where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention…
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
In considering the nature and seriousness of the Applicant’s conduct to date, the Tribunal has had regard to the Statement of Agreed Facts.
In relation to his offending, the evidence indicates that between 27 July 2020 and 23 October 2020 the Applicant was one of six offenders that was involved in the cultivation of 5,593 cannabis plants at a rural property in Minimbah, 40km south of Taree in the State of New South Wales. His Honour held that he was satisfied that at least 1,500 of these plants were cultivated by enhanced indoor means, and 4,000 plants cultivated other than by enhanced indoor means. His Honour was satisfied beyond reasonable doubt that the number of plants was at least eleven and a half times the relevant large commercial quantity of the drug as defined in the Drug (Misuse and Trafficking) Act 1985 (NSW) for cannabis plants cultivated by such means.
NSW Police surveillance observed the Applicant on 1 September 2020, 19 October 2020 and 22 October 2020 engaging in an array of behaviour including labour-type work, entering greenhouses and winding up the plastic sidings on the greenhouses.
Police forensic results found that the Applicant’s DNA profile was located on a drink can which was found inside one of the greenhouses. The Applicant’s telephone records indicate that over a period of about 11 weeks, the Applicant was at the property on five separate occasions for a total of 19 days between 28 July 2022 and 22 October 2022.
His Honour noted that the Applicant worked as a cook, a cleaner, a labourer and a crop-sitter and did not stand to gain a significant profit. His Honour noted ‘in my view the objective seriousness lies considerably below the mid-range’ (G4/43)
The Applicant stated in oral evidence to the Tribunal that he commenced working at the property in late July 2020, and for the first month was entirely unaware that the farm was in fact an illegal cannabis operation.
For the purposes of section 501 the Applicant concedes that the offence was ‘obviously’ very serious given the large amount of cannabis involved. The Applicant submits however that his role was ‘subsidiary’ and essentially that of a labourer. The Applicant has highlighted the sentencing Judge’s remarks that his main involvement was ‘related to cleaning and removing garbage from the property and delivering food’, though his role did ‘however include some tasks as a labourer, including as observed by the police on three occasions, winding up the plastic siding to the greenhouses’. (G4/46). The Applicant has noted that His Honour found that he did not stand to profit from the enterprise (G4/42). The Applicant also noted that His Honour found the objective seriousness of the Applicant’s offending was ‘considerably below mid-range’. It was pointed out that His Honour rejected the Crown’s contention the objective seriousness of his offence was ‘comfortably above mid-range’.
The Respondent acknowledges that the Applicant concedes his drug-related offence should be considered ‘very serious’. The Respondent has drawn the Tribunal’s attention to His Honour’s remarks in sentencing that the offences, which involved the cultivation of a large commercial quantity of cannabis plants was ‘objectively most serious’, stating that ‘drug dealing and drug cultivation does not simply dispense or produce illegal drugs but is at every level associated with criminal conduct and leads to other forms of crime.’ (G4/40). The Respondent notes that His Honour rejected the characterisation of the Applicant’s counsel that the operation ‘was not sophisticated’. The Respondent notes that the three years imprisonment (with a non-parole period of 18 months) imposed by His Honour is indicative of the seriousness of the Applicant’s offending, noting sub-paragraph (c) of paragraph 8.1.1(1) of the Direction that requires a decision-maker to take into account that the imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process and that custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending. The Tribunal agrees with the Respondent’s submissions and finds that the custodial term imposed by the sentencing judge is indicative that the Applicant’s offending was very serious.
The Tribunal finds that the Applicant’s criminal conduct is objectively serious – a finding not challenged by the Applicant in his submissions. Cannabis is an illegal drug and a scourge in Australian society. The Tribunal accepts that the Applicant did not stand to make any particular profit and accepts his role at the farm was limited to routine labour and maintenance tasks. Such roles, whilst somewhat benign in their own right, do however play an important and corrosive role in the cultivation and production of illegal drugs such as Cannabis. As the Respondent’s submission correctly states ‘such enterprises cannot proceed without the low-level work carried out by low-level workers, such as the offenders in this case.’(G3/11)
The Tribunal finds that the Applicant’s conduct is very serious. It is well-established that imposition of a custodial term upon an offender is seen as the last resort in the sentencing hierarchy. A judicial sentencing officer’s deployment of a custodial sentencing option must be viewed as a reflection of the objective seriousness of the offending sought to be punished: PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [20]-[22]. The Tribunal acknowledges sub-paragraph 8.1.1(1)(c) and notes the imposition of a custodial sentence which is a reflection of the objective seriousness of an Applicant’s offending.
The Tribunal acknowledges this is the Applicant’s only offence to date. It also does not fall into the realm of many of the objectively more serious offences outlined in sub-paragraphs 8.1.1(1)(a) and 8.1.1(1)(b).
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
This is the Applicant’s only offence to date. Subsequently there is no frequency or trend of increasing seriousness in offending by the Applicant.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the cumulative effect of an Applicant’s repeated offending.
This is the Applicant’s only offence to date. Again, there is no cumulative effect of repeated offending to consider.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is no record or suggestion that the Applicant has provided false or misleading information of the Department, including by not disclosing prior criminal offending.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
There is no record or suggestion that the Applicant has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
The Applicant’s single offence was committed in Australia. There is no record or suggestion the Applicant has committed an offence in another country.

Conclusion about the nature and seriousness of the Applicant’s conduct

The Tribunal has sought to apply each of the relevant sub-paragraphs in paragraph 8.1.1(1) of the Direction. With particular reference to the relevant and applicable paragraphs to which the Tribunal has referred, the Tribunal finds the Applicant’s conduct can be characterised, as conceded by the Applicant himself in evidence, as very serious.

Risk to the Australian community should the Applicant commit further offences or engage in serious conduct

Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(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 the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

Sub-paragraph 8.1.2(2)(a) compels an assessment of the nature of the harm to individuals or the Australian community in the event of this Applicant engaging in further criminal or other serious conduct.
His Honour in his sentencing remarks noted:
Offences of this type involving the cultivation of a large commercial quantity of cannabis plants are objectively most serious. General deterrence and punishment are of particular importance. The courts and the legislature have recognised that in assessing the objective seriousness of drug offences, including cultivation of cannabis plants, regard should be had to the drugs’ potential for harm in both direct and indirect ways, in that drug dealing and drug cultivation does not simply dispense or produce illegal drugs but is at every level associated with criminal conduct and leads to other forms of crime. (G4/40)
The Tribunal would agree with Judge Jeffrey’s characterisation of the harm caused in the cultivation of cannabis plants, which of course is the basis for the Applicant’s offending. The Tribunal notes the corrosive and destructive impact illicit drugs, including cannabis, has on both individuals and the Australian community is well-documented. The ongoing social costs to the community are significant. The health costs to the community, in treating, caring for and rehabilitating users are similarly onerous. The financial cost to the community in law enforcement and keeping citizens protected from the harm illicit drugs, and the harm they cause are significant. These illicit drugs – and the destructive forces they unleash – rely on the actions of individuals such as the Applicant whose activities ultimately help allow these loathsome and unlawful products to enter the Australian community.
The Applicant however disagreed with His Honour’s observation of the potential of the Applicant’s activities to cause harm, drawing the Tribunal’s attention R v Pidoto (2006) 165 A Crim R 61 (Pidoto) where at [6] the Court stated:
…Such assessments require specialist expertise, involve detailed investigation and must be based on extensive information on a range of issues. Parliament cannot have intended that courts should even attempt the task.
And at [61] ‘…This is simply not a subject to which the doctrine of judicial notice has any application, less still the doctrine of precedent’.
The Respondent rejected the Applicant’s reliance on Pidoto, noting that what the Tribunal is required to do in paragraph 8.1.2 of Direction 99 is in fact simply consider the nature of the harm to individuals and the Australian community should the non-citizen engage in further criminal or other serious conduct.
In relation to His Honour’s remarks in sentencing the Respondent noted that ‘…all his Honour did was note the very serious consequence of cannabis to the community’. (Respondent’s Statement of Facts, Issues and Contentions, 8, [33.2])
The Tribunal agrees with Respondent’s characterisation of both the task of the Tribunal and the sentencing remarks of Judge Jeffreys. The Tribunal’s task is to assess the nature of the harm to individuals or the Australian community in the event of this Applicant engaging in further criminal or other serious conduct. To make such an assessment requires the Tribunal to consider what harm would be caused to individuals or the Australian community if the Applicant were to reoffend and return to criminal conduct. In the case of the Applicant, there is no evidence or suggestion that he has any prior convictions. There is no history or suggestion of violence, robbery, sex offences or other anti-social behaviour. The Tribunal has subsequently considered what harm would be caused if he returned to offending via returning to work as a labourer on a commercial cannabis.
The Tribunal would note that production of illegal drugs cannot occur without the efforts of those filling roles, including low-level labouring roles, like that which the Applicant was convicted for. The Tribunal considers the nature of the harm the Applicant would cause individuals or the Australian community therefore if he were to reoffend is that of more dangerous and illegal drugs like cannabis in the Australian community. The Tribunal is of the firm view that cannabis, despite the characterisation by some in the community of it being of a lesser danger than other illegal drugs, is a very dangerous drug. As the Respondent points out, other members of this Tribunal have recognised that cannabis can have a myriad of health impacts including mental illness, respiratory illness and cognitive defects: RRCX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 379 (Senior Member Kirk).

The Tribunal notes that the Applicant would appear to have a firm realisation of the adverse effect his offending behaviour has upon the community. Any repeat of such behaviour would, in the Tribunal’s firm opinion, be similarly corrosive. As noted by the Respondent when discussing with the Applicant the psychologist Mr Green’s report on the Applicant:
MR HARVEY: Thank you, Ms Khurana. Mr Nguyen, if I can please take you to the forth bullet point from the bottom of the page where it says:
Mr Nguyen voiced that he understands that his involvement in the offence would have impacted the greater community.
Do you stand by this statement, Mr Nguyen?
INTERPRETER: Yes, I still stand by that.
MR HARVEY: Thank you, Mr Nguyen. Mr Nguyen, you accept that your drug offence is a very serious offence?
INTERPRETER: Yes.
The Tribunal is therefore finds, that were the Applicant to reoffend, the nature of harm to individuals and/or the Australian community would be very serious.

The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (sub-paragraph 8.1.2(2)(b)): (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

The Tribunal has considered the risk to the community, should the Applicant reoffend. In making this assessment, the Tribunal has considered the risk of the Applicant reoffending.
The Applicant has made firm submissions that he is highly unlikely to reoffend, supported by the eloquent and fulsome oral testimony of his three sisters, his uncle and a friend Ms Dung Thi Thu Le at the Tribunal’s hearing.
In support of these assertions the Applicant notes that on 28 September 2021 he was assessed by Corrections NSW as being a ‘low’ risk of reoffending (G5/137). Such an assessment is reflected in the sentencing remarks of Judge Jeffreys who found the Applicant to have ‘good prospects of rehabilitation’. The Applicant’s psychologist Mr David Green in both his written report and oral testimony at the Tribunal’s hearing assessed the Applicant as being a ‘low’ risk of reoffending.
In oral evidence, the Applicant acknowledges his remorse and regret for his offending. He blames several reasons principally for his offending: financial necessity during the COVID-19 pandemic; his depressive state following the breakdown of his marriage and demands on continuing to financially support his sisters’ considerable educational commitments; and an expressed fear of retribution from his co-offenders should he had not continued in his role as a labourer at the cannabis farm.
The Applicant and his sisters each discussed the financial hardship experienced by the Applicant as a result of the COVID-19 pandemic and its impact upon the Applicant financially. The Applicant claimed his hours of employment were reduced considerably from June 2020 whilst at the same time his mother’s flour business in Vietnam experienced a downturn in business.
The Applicant explained that since he was 16 years of age he has been the senior male figure in his family following the death of his father. That involved both assisting his mother with the family business as well as looking after and providing for his sisters. The Applicant discussed how he departed from his own studies in Australia and took up employment as his sisters travelled to Australia to study at the secondary and tertiary level. The Applicant took on the guardianship of his youngest sister. The Applicant started working in June 2015 at a packing business in Chipping Norton, working there continuously until June 2020 when the full impact of COVID-19 was being felt by the economy. The Applicant has submitted that whilst he and his sisters lived in Australia, his mother would assist with payment of tuition fees whilst he would cover virtually all living expenses. The Tribunal accepts the evidence that the Applicant took on a role of responsibility with his sisters following his father’s death and has both financially and emotionally supported them as they travelled to Australia to study.
The Applicant submitted that in 2020, as the pandemic began to hit his mother’s business, his eldest sister Hoang (who by now had graduated from university and was working as an accountant) and he had to take on further financial responsibilities by assisting their mother with the payment of tuition fees for the younger sisters Thu and Anh. By June 2020 his hours at work were reduced to 21 hours per week, leading the Applicant to leave his employer and take up work with his uncle’s cleaning company. The hours there were similarly adversely impacted by the pandemic. It was at this point in July 2020 the Applicant met an individual known as ‘Thanh’ at Club Condell Park who stated he could organise employment for him, a casual role that involved a payment of $300 per day and $200 for petrol to drive to Taree. The Applicant submits on his first trip in late July he was only asked to help clean up around the farm and remove garbage and waste. On subsequent occasions he concedes he assisted moving cannabis plants which had been harvested into a cabin on the property as well as help roll up the sidings of the greenhouses and generally clean up the property. He wrote in a statutory declaration: ‘I knew this was wrong, doing what I did but because of my financial circumstances I felt I had no choice.’ (G15/180) The Applicant states that he was not involved in any direct cultivation of the cannabis plants and his role was restricted to delivering groceries, assisting clean up, moving harvested plants to the cabin and occasionally picking up a worker and driving them to the farm. He did not derive any profits beyond his wages.
The Tribunal has considered the risk of the Applicant reoffending due to financial necessity. The Applicant gave testimony at the Tribunal’s hearing that he would go into partnership with his uncle Huu in his cleaning business should he be permitted to remain in Australia. The Tribunal notes that whilst incarcerated the Applicant successfully completed studies in a Certificate III in Cleaning Operations. Whilst in gaol he appears to have undertaken study courses in an effort to better equip himself from an employment perspective in the future. The Applicant’s uncle’s evidence attests to his desire to go into partnership with the Applicant. The Tribunal notes the evidence that the Applicant resided with his uncle between 2009 and 2017 and accepts the veracity of what both parties have said concerning the desire to recommence working together. The Applicant’s submission is that he is highly unlikely to engage in any future reoffending due to financial need, and the Applicant’s broader realisation of the consequences of such actions precludes any future risk.
The Respondent submits that there is an ongoing risk to the community that the Applicant may face difficult financial circumstances in the future, and subsequently again engage in criminal activity to support his sisters and wider family if he has ‘no choice’. The Respondent highlights the Applicant’s comment to his psychologist Mr Green that ‘I just try to find an excuse, I would do it until I find another job which is legal. I was under a lot of financial stress, whatever it was, it still brings money and when I had another job I would give it up, straight away’. (G14/166)
The Applicant has also submitted that his depression and general mental health at the time led to his offending. The Applicant’s marriage broke down in 2018. He explained that the pressure built up by his younger sisters moving to Australia and cohabitating with him and his wife caused considerable challenges. He submits that his then wife found it difficult to accept that he was taking on significant financial responsibilities in supporting the education and living costs of his younger sisters when she desired they establish their own home and life together as a married couple. The end result was the end of his marriage.
The Applicant was diagnosed by the psychologist Mr Green as having a Major Depressive Disorder of Moderate Severity. Mr Green’s written report, as well as his testimony to the Tribunal, states that the Applicant became depressed after his wife left him. It is Mr Green’s submission that the Applicant was determined to remain working at the cannabis farm, even after he discovered cannabis was being cultivated was largely due to his depressive state. Mr Green submits that the Applicant’s depressive state precipitated some very poor decision-making by the Applicant, including remaining working at the farm after becoming aware the operation was in fact unlawful.
At the hearing in cross-examination the Applicant also raised what was a new claim and explanation as to his offending, and potentially relevant to any risk of reoffending. The Applicant stated that after first arriving at the property in late July 2020, it was not until late August 2020 that he realised that the property was in fact an illegal cannabis operation. He stated that he immediately began to feel anxious about working in, and being associated with, illegal activity. The Applicant stated that he felt however he had no choice other than to continue working on an occasional basis as a labourer at the property as he was fearful that his co-workers would turn on him and seek retribution with him and his family if he simply stopped working. The Applicant has claimed this fear was a major factor in his decision to continue working at the property after discovering it was in fact an illegal cannabis cultivation operation.
On a procedural matter, the Respondent noted that this was a new claim that had not been raised previously by the Applicant’s submissions, either in his submissions to the delegate, the Tribunal or in fact in his sentencing. The Respondent stated that in such circumstances the evidence ought not be relied upon by the Tribunal given the two-day rule for the adducing of new evidence, and this being the first time the Respondent had been made aware of the claim. Mr Poynder for the Applicant in response stated:
MR POYNDER: Two-day rule doesn’t apply to evidence given in cross‑examination or arguably evidence given in re-examination. A case called Uelese v Minister for Immigration and Border Protection [2015] 256 CLR 203 at 101-104. Nettle J said that the provision is:
Limited to oral evidence adduced in chief in support of an applicant’s case. It cannot sensibly be construed as extending to oral evidence adduced in cross-examination of the applicant or of an applicant’s witness favourable to the applicant’s case, or which derogates from the Minister’s case, or to an answer given or submission advanced in response to a matter raised by the AAT of its own motion.
The Tribunal concurs with Mr Poynder. The evidence was in fact adduced during the Respondent’s cross-examination of the Applicant. The Tribunal has taken the evidence pertaining to the Applicant’s expressed fears for his safety into account when considering the factors contributing to his past conduct and the risk of reoffending.
The Tribunal has considered the various claims and factors contributing to the Applicant’s past offending conduct, and the risk of reoffending.
The Tribunal accepts the Applicant’s claim that one of the reasons for the Applicant’s offending was financial need, and his strong desire to continue supporting his sisters. The close bond between the Applicant and his sisters was obvious at the Tribunal’s hearing. It was especially evident in the eloquent oral testimony of the three sisters. They recognise the sacrifices their older brother has made for their educational futures and felt a particular degree of personal remorse and guilt. The sisters in their oral testimony stated they were unaware that the Applicant’s work was in fact unlawful, and their belief he was simply working at a rural property; statements that the Tribunal accepts.
The question before the Tribunal is whether any potential future financial need and necessity the Applicant and his sisters face creates a real risk of reoffending? The Tribunal is satisfied, having considered the evidence before it, that any risk is minimal. In relation to the sisters, the Tribunal notes the eldest is financially independent as a qualified financial accountant in employment with an airline. The second is studying medical science with an ambition to become a doctor whilst the third is studying architecture. They are or will soon be financially independent after they complete their studies and enter the workforce. The Applicant has an employment opportunity through his uncle in an employment area of demand. He has undertaken studies whilst incarcerated to assist prepare him for such employment. The Tribunal considers the risk of reoffending due to future financial need is low. The Tribunal also accepts that the Applicant’s experience of being incarcerated mitigates against any future reoffending on the basis of financial need. This was his first offence and his first experience with criminal incarceration. The applicant states ‘I learnt a very hard lesson and jail is not a place I ever want to return to’.
The Tribunal has considered the Applicant’s mental health and whether the depression and psychological challenges he states he faced at the time of his offending are indicative of a risk of future reoffending. The Applicant stated it took about a month after first working at the farm for him to realise the illegality of his work. He nevertheless remained working at the farm, despite his initial belief he had entered legitimate and lawful employment.
The combination of the Applicant’s marriage breakdown and the ever-growing and onerous responsibilities of looking after his younger sisters were held by the Applicant as contributing to his behaviour in deciding to remain in employment at the farm even after he became aware he was working at an illegal cannabis operation.
These submissions are supported by the psychologist Mr Green who addressed this matter at the Tribunal’s hearing and in his written report. Mr Green held a three and a half hour assessment with the Applicant as well as sessions with the Applicant’s sisters. Mr Green submitted ‘It is also my opinion his decision to remain at the farm was also influenced by his state of depression. It is recognised that depression influences cognitive processes and the ability to make good decisions’. (G14/173)
The Tribunal accepts on the evidence before it that the Applicant was suffering some depressive illness as a result of matters such as his financial hardship, his responsibilities to his sisters, and the breakdown of his marriage. The Tribunal accepts the evidence that such depression can have an impact on decision-making and cognitive processes and result in ‘poor decision making’. The Tribunal cannot be certain of when the Applicant actually became aware his employment was at an illegal cannabis operation rather than simply a lawful agricultural business, but he submits it was about a month after he first visited the property. The Applicant remained in employment (admittedly on an occasional basis) with the cannabis operation for almost another three months before he was arrested by the NSW Police. The question before the Tribunal is whether his decision to remain at the property was a result of his depression, and how does this past conduct speak to the risk of future reoffending. The Tribunal accepts that his depression at the time may have adversely influenced his cognitive processes. The Tribunal is prepared to accept for the purposes of this review that he may have been initially unaware of the genuine nature of the farm he travelled to in July 2020. The Tribunal does not however accept that his depressive state precluded him, after discovering he was working at an illegal cannabis operation, from making an informed and rational judgement whether to stay or not to stay. The Tribunal accepts that the Applicant’s decision to stay was motivated by financial hardship and the need to financially support his sisters. The Tribunal gives limited weight however to the claim it was the result of his depressive psychological state.
The question before the Tribunal is whether the Applicant’s psychological state create a real risk of reoffending? The Tribunal is not convinced it will. The Applicant appears to be in a much sounder position than he was at the time of his offending some two and a half years ago. He has the promise of future employment. His sisters have progressed down their educational journeys and all are on the way, the evidence suggests, to being very successful in tertiary education and in the workforce. The Applicant seeks to bring his mother to Australia through a Contributory Parent visa, having paid the considerable application fee, which would bring further stability to his life. The Tribunal does not consider his psychological state presents a real risk of the Applicant committing further offences or engaging in other serious conduct.
The Tribunal has also assessed the claim, adduced from the Applicant in cross-examination, that he felt he had no choice other than to continue working at the cannabis property as he feared his co-workers, and subsequent co-accused, would turn on him and seek retribution with him and his family if he simply stopped working. The Applicant submitted in cross-examination that this fear was a major factor in his decision to continue working at the property after discovering it was in fact an illegal cannabis cultivation operation:
MR HARVEY: Thank you. I understand the police were conducting their surveillance in September and October 2020. Mr Nguyen, just so I’m clear as well, when you learnt that the plants were cannabis could you not just stop working?
INTERPRETER: When I first learnt that was kind of (indistinct) and I just want to quit straightaway. However, the peoples around me, they seem like they know who I am, where I’m from, and then they can track me down if I can risk to quit the job. So they said to me that they need the people to work for only a short time. I was very nervous and scared, however I watch – I have to stay there to work for them otherwise they would – after me – maybe they kill me. So I’m not quite sure what they would do to me, but I’m very scared at that time.
MR HARVEY: Mr Nguyen, why did you think that?
INTERPRETER: Because once I walked into that farm then that is a remote area. And then I saw that a lot of plant has been set up very, like, sophisticated, so I know that is something got to do with the people who – organisations, they do a bad thing. Like, the illegal things. So they were willing to do a bad thing to me if I report them. And in fact, they’re very far from Sydney and I don’t know who I can count on or I can ask for help. So therefore I just keep myself safe.
The Applicant explained at the Tribunal’s hearing that he did not raise his fears of retribution with NSW Corrective Services in his pre-sentencing interview as he was in prison at the time – as the Tribunal understands with his co-accused.
The Applicant’s statement was supported by the psychologist Mr Green in cross-examination by the Respondent and re-examination by the Applicant who noted:
MR HARVEY: Thank you. Mr Green, now, the applicant gave evidence this morning that the main reason he stayed in the job was he feared for his safety due to some of the other individuals who were working on the farm, did he raise any of these concerns with you during your interviews?---
MR GREEN: No, I didn’t ask him about it either. Though I may say that I have conducted hundreds of these sorts of assessments, it’s a very, very common report for people who have committed offences of this nature to say that there is a fear for their safety were they to leave, and so that also becomes a motivating factor. So, it’s very, very common.
…
MR POYNDER: … And is the situation you’re referring to specifically where an individual is asked - is offered what, let’s say he believes, is a legitimate job, and once he starts the job he finds out that it’s working illegally on cannabis plantations?
MR GREEN: Yes, by and large cannabis plantations, but it’s not always restricted to cannabis plantations. I have had many people who have been oppressed, if you like, to transport illicit drugs, to commit money laundering offences, a whole range of different criminal offences. But I have had a large body of experience of people committing these sorts of offences, these cannabis, cultivating cannabis offences.
MR POYNDER: Yes. And is part of the scenario we’re talking about that I think you used the words very, very common for the person once they find out the illegitimate nature of the task becomes concerned for their safety, and maybe frightened to leave the job, is that part of the scenario that you’re talking about, or?---
MR GREEN: Yes, yes, absolutely. On a number of occasions I have heard people refer to the black society, and I understand the black society to be part of the - the - the Vietnamese criminal milieu, if you like.
MR POYNDER: Yes?
MR GREEN: Within the Vietnamese society it is reasonably well known that there are certain people that are acting against the law, they realise that these people are dangerous, and they fear for their safety, and they sometimes do have legitimate means. I have heard tales - not tales, wrong word, I have heard accounts of people having been threatened, their family being threatened, this so called black society has influences in Vietnam, so the person themselves might be a resident in Australia, but they have their remaining family in Vietnam. The - these people then threaten their family in Vietnam and there’s nothing that they can do about it.

The Tribunal considers the suggestion that the Applicant continued to work at the cannabis property due to the fear he felt after learning he had started working at a major criminal enterprise is at least plausible. The Tribunal considers it at least plausible that the Applicant was concerned for his own and each of his sister’s well-being if he were suddenly to depart the cannabis operation after becoming aware of the nature of the enterprise, and subsequently he decided to remain at the illegal enterprise. The Applicant explained at the Tribunal’s hearing that he was remanded with his co-accused from the cannabis operation. In such circumstances the Tribunal considers it again plausible that the Applicant decided not to place on record his fear of leaving the cannabis operation, after learning of its true nature, due to fear of retribution from his co-accused.
In relation to the assessment of future risk to the Australian community, the Tribunal gives some weight to the argument that the Applicant remained working at the property, after discovering it was an illegal cannabis operation rather than simply a lawful agricultural business, due to his genuine fears for himself and his sisters should he leave the employ of his criminal employers. This was a major cannabis operation with a strong desire to remain anonymous. It is reasonable to speculate that the sudden departure of a new worker would not have been looked upon kindly by such an enterprise reliant on anonymity. The Tribunal gives some weight to this as a plausible explanation for the Applicant’s decision to remain working at the property. The Tribunal considers the Applicant’s fear of retribution was a factor that contributed to his past offending conduct. The Tribunal consequently considers the risk of the Applicant re-offending, based upon his previous conduct, is of a lower likelihood than his offending behaviour might have otherwise suggested.
The Tribunal has also considered the evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.
The Tribunal notes that the Applicant has been released from prison well before the expiry of his three-year sentence. The Tribunal notes the sentencing judge found the Applicant has ‘good prospects of rehabilitation’ (G4/56) and notes there is no evidence or claim the Applicant has reoffended in any way since his release from gaol. The Tribunal has taken into account the considerable affidavits and submissions made in relation to the Applicant’s character and his offending that was out character. The Tribunal notes the psychologist Mr Green’s finding ‘It is my opinion that Mr Nguyen does not have risk factors for re-offending and his overall risk of re-offending is “Low.”’
The Tribunal has also noted the sentencing assessment report of Corrective Services NSW (G5/135 - 138) that stated the Applicant claimed insight into the impact of his offending and was willing to work with relevant support services to address factors that led to his offence.
As evidence of his rehabilitation, the Tribunal also notes whilst incarcerated the Applicant has completed a course forming part of a Certificate III in Cleaning Operations; a course as part of a Certificate I in Skills for Vocational Pathways; a course in Digital Literacy; and has participated actively in a NEXUS family and relationships course. The Applicant also enrolled in a Numeracy and Literacy course whilst in gaol, with the training assessor stating the Applicant ‘consistently comes to class and participates in all activities’ and ‘he has been polite and friendly and has always contributed to his success and other students in the class’. (G10/143).
The Tribunal is satisfied that the Applicant has illustrated genuine evidence of rehabilitation both whilst incarcerated and since that time, illustrated by the employment partnership proposed by his uncle and himself with a cleaning business.
The Tribunal has assessed the risk of recidivism by the Applicant. There has been no evidence of subsequent offending or any other unlawful behaviour since his conviction. The conviction remains his only adverse interaction with the law. The Tribunal considers the absence of any offending conduct since the conviction, and the Applicant’s good conduct during his incarceration, can be taken as probative evidence that the applicant will not reoffend.
The Applicant has largely taken responsibility for his actions and expressed remorse and shame that the Tribunal considered was genuine. He has expressed a desire to reintegrate into society in an employment partnership with his uncle. The evidence is clear that he enjoys a very close and abiding relationship with his sisters, with whom, the evidence suggests, he has otherwise played a hugely significant and positive role with over many years. The Applicant is engaged with a very strong family support network with his three sisters, his uncle and his cousin. The Tribunal acknowledges he has a strong and pronounced preference to be a useful and respectable member of the Australian community. The Tribunal ultimately finds that the risk of recidivism is very low.

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 Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference this specific paragraph, this matter does not involve a ‘refusal to grant a visa to a non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatorily cancellation of the Applicant’s visa. This specific paragraph is not relevant to the determination of this application.

Conclusion about risk to the Australian community should the Applicant commit further offences or engage in serious conduct

The Tribunal finds that were the Applicant to commit further offences or engage in serious conduct, the nature of the harm to individuals and/or the Australian community would be very serious. The Tribunal considers the likelihood of recidivism however is very low and notes the evidence of rehabilitation since the Applicant’s only offending.

Conclusion: Primary Consideration 1

With reference to the weight attributable to Primary Consideration 1:
a)The Tribunal finds the nature and seriousness of the Applicant’s conduct has been ‘very serious’
b)The Tribunal finds that were the Applicant to reoffend, the nature of the harm to individuals and/or the Australian community would be ‘very serious’
c)In terms of recidivist risk, the Tribunal has, after a fulsome review of the evidence, concluded that the Applicant is a low to very low risk of reoffending.
The Tribunal has formed the view that Primary Consideration 1, Protection of the Australian community, weighs against the revocation of the cancellation of the Applicant’s visa.

PRIMARY CONSIDERATION 2 – FAMILY VIOLENCE

Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
There is no evidence or claim before the Tribunal in relation to family violence committed by the Applicant.
The Tribunal has formed the view that Primary Consideration 2, Family Violence, is of no relevance and gives it no weight.

PRIMARY CONSIDERATION 3 – THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

Paragraph 8.3 of the Direction provides:
(1)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.
(2)In considering a non-citizen’s ties to Australia, decision-makers 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.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have 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 Australia 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 the 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 Tribunal notes this consideration in the last few weeks has been elevated from an Other Consideration to that of a Primary Consideration.
The Applicant submits he has extremely strong ties to the Australian community. The Applicant arrived in Australia in 2009 at the age of 20 in order to undertake studies in English and Commerce at Macquarie University. Between his arrival in 2009 and 2017 he resided with his Australian citizen uncle and aunt where he first studied before entering the full-time workforce in 2015. His aunt gave birth to a daughter, Sophia Hoang, in 2013. The Applicant submits that he took on the role of a carer for her whilst living with her parents Mr Huu Binh Hoang and Mrs Thi Kim Ngan Tran who were heavily involved and invested in their own business and employment ventures at the time. He states he retains very close ties with Sophia today. The Applicant’s link with ten-year old Sophia was considered by the psychologist Mr Green who found Sophia would suffer adversely should the applicant be compelled to return to Vietnam, stating ‘her emotional development will be adversely affected’. (G14/175)
The Applicant’s close relationship with Sophia was discussed by her father, Mr Huu Binh Hoang who discussed the relationship the Applicant has had with his cousin the past decade, describing him as a ‘brother’ to his now 10-year-old daughter. The Applicant’s uncle in his oral testimony impressed upon the role of the Applicant with his daughter today, noting that he is now divorced and a greater need remains for the Applicant’s support and assistance with his daughter given his considerable ongoing employment responsibilities:
MR HARVEY: I see. And just how much was Mr Nguyen assisting you and your former partner in raising Sophia? How many days a week or hours could you estimate you were (indistinct)?
MR HOANG: Me and my ex-wife - she’s very busy, she work, and around, like - this is one day - one day she (indistinct) or sometime two day. And the important thing is when I work at city, I get there by train and back home by train. So some - the train cancel and be late, I have no one to pick up Sophia at after school care. So I call him to help me pick up Sophia from after school care. And he - sometime he bring Sophia at the family baker, he help me a lot in there and look after Sophia when I have to go to work, yes. So he - like, he help me a lot. When I - when Sophia just born, he already look after Sophia at that time.
MR HARVEY: Thank you, Mr Hoang. Is it fair to say that both you and your former partner have stayed in Sophia’s life since birth? There weren’t any periods of time, for instance, where Sophia’s mother wasn’t around and you had to rely more on Mr Nguyen?
MR HOANG: Yes, yes. Yes. I - like, (indistinct), you know. So I really need the one, the person I trust, like Mr Nguyen to help me to look after Sophia. Like, you know, the single parent, it’s very hard to - to make money and look after the baby. I’m a man, you know. I do two kind of job. I do woman job and man job, you know. It’s very hard for me.
The Applicant also asserts that he has very strong ties through his three sisters who are all long-term residents in Australia with the eldest, Hoang Tuong Vi Nguyen now an Australian citizen.
The Tribunal notes that the Applicant’s eldest sister Ms Hoang Tuong Vi Nguyen arrived in Australia in July 2013 at the age of 18. She resided with the Applicant from the time of her arrival. The Tribunal accepts from her oral testimony and her written statement that she retains a particularly close and abiding relationship with her brother the Applicant, who the Tribunal accepts supported her through her studies which culminated in her graduating with a Bachelor of Business (Accounting) at UTS and employment today as an accountant with Menzies Aviation. The Applicant’s eldest sister stated that she felt guilt at the Applicant’s offending:
MS NGUYEN: Yes, we really, really feel bad at that time because we think that we part of the – part of what he did, it’s partly our fault. So we think that we (audio malfunction) reason causing him financial pressure. That he contribute to the reason, contribute this pressure, contribute to his depression that make him do the wrong choice. And my father died in 2005 of a heart attack and my brother become the leader of the family. He is always (audio malfunction) family especially he always is looking after us. So especially when we – things are starting to shut down, we know that he did his best to protect us and looking after us.
The Tribunal notes that the Applicant’s second sister, Ms Hoang Minh Thu Nguyen, arrived in Australia in July 2017 at the age of 15. Upon her arrival she too resided with the Applicant who the Tribunal accepts supported her financially through her studies which commenced with intensive English courses and then moved to secondary schooling at Chester Hill High School and from 2021 a Bachelor of Medical Science at the University of Sydney. The Applicant discussed her past studies, the scholarship she won to study at the University of Sydney, and her plans to study medicine after completing her current studies. The Tribunal found Thu a particularly impressive witness who spoke at length about the relationship she and her sisters have with the Applicant, and their emotional debt to him for the ongoing sacrifices he made to support their education in Australia after arriving in Australia with little to no English. She stated at the hearing:
MS NGUYEN: And I blame myself at that time because my brother has sacrificed a lot for me. He always ask me what I want to be, who I’m going to be in the future, but as a little sister I love him, but I never ask him what he want to be. I feel he doesn’t have a dream. He doesn’t bear to have – he doesn’t dare to have a dream. He never cry in front of me even once. The time when he cried the most I think during his break-up after those – after fighting, they’re living together. And the second time that he cry when I called him during – and he was in gaol at that time. I called him to let him know that I made it. “Your sister made it. I finally made it into University of Sydney and I have other choice to be – study at other university as well.” And at that time I know that I – and he always say sorry for what he did. Because what he did not only impact his future, but also our family future and my future study and my sister’s future study.
The Tribunal considers this statement reflects the findings of the psychologist Mr Green who stated in his report at paragraph 145: ‘To a certain extent, Thu blames herself for her brother having committed the offence’.
The Applicant’s youngest sister Ms Hoang Minh Anh Nguyen arrived in Australia in July 2019 at the age of 15 with the Applicant becoming her guardian. The Applicant supported Anh whilst she undertook intensive English language courses before enrolling at Chester Hill High School. She is currently in her first year of studying architecture at UTS. She discussed the role of the Applicant in the life of her and her sisters, and his role in allowing them to achieve outstanding academic success after arriving in Australia with little to no English:
MS NGUYEN: And for me, my brother is not only brother; my brother is my second father because I – my father passed away after a years I was born, so I’m a child living with the absence of my father. So he stand up and raise me and teach me valuable things about life. And I don’t know why this happened to my family because my mum only raised us to be, like, a good citizen. And that’s why my mum sent us here; to study a good thing about Australia. And I think family is a foundation that raise the children, and the children can have, like, good environment and support for society, yes.
The Tribunal has taken into account the oral testimony of the Applicant’s family and their statutory declarations as well as the support letters from family and friends. The Tribunal notes the correspondence dated 19 August 2022 from Mr Michael Hoang of John Lu Shopfitting & Carpentry Pty Ltd who confirms the Applicant will be offered full-time employment and come under his supervision should the Applicant be released to the community (G12/150). The Tribunal has also considered the psychologist Mr Green’s report where, in discussing the Applicant’s commitment to his family, and the potentially adverse impact the Applicant’s return to Vietnam could have upon his sisters, noted ‘It is difficult to convey the extent of Mr Nguyen’s commitment to his family. The best I can offer is that family appears to be his raison d’etre.’: (G14/172)

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 (FYBR) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[4]
[4] 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 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.
The Applicant concedes this Primary Consideration weighs against the Applicant, but submits this should not be determinative. The Applicant submits that the ‘comparatively low-level involvement’ of the Applicant in the offence, and the other factors referred to concerning the Applicant suggest that this consideration should not weigh ‘heavily’ against the Applicant.
The Respondent also noted FYBR where it was held by the Federal Court 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. Paragraphs 8.5(1) and 8.5(4) of Direction 99 state relevantly:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct … the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia
…
(4) 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.”
The Respondent submits this primary consideration ought to therefore be observed ‘through the prism of the applicant’s ‘character assessment’’: namely, the Applicant’s drug cultivation offence, offending conduct which the Tribunal found was ‘very serious’. The Tribunal has found the Applicant engaged in ‘very serious’ offending. The question before the Tribunal subsequently is what is the expectation of the Australian community concerning a visa-holder who has engaged in very serious offending through a drug cultivation offence like that of the Applicant.
Paragraph 8.5(1) 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 this case, the Applicant has not obeyed Australian laws whilst in Australia through his drug cultivation offence, conduct that the Tribunal found was ‘very serious’. The Tribunal considers the Australian community expectation, as a norm, is that the Government does not allow the Applicant to remain in Australia.
The Tribunal notes Paragraph 8.5(2) of the Direction that directs that 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.
In the case of the Applicant, his offending behaviour does not engage the principle in paragraph 8.5(2), however, given the deeming nature of this consideration it means the Australian community expects that the Australian Government can and should cancel the Applicant’s visa.
The Tribunal has formed the view that the Primary Consideration 5, Expectations of the Australian Community, weighs against the revocation of the cancellation of the Applicant’s visa.

Other Considerations

It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.

(a) Legal consequences of the decision

Paragraph 9.1 of the Direction directs a decision-maker to take into account the following:
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
(2) 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. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
9.1.1 Non-citizens covered by a protection finding
(1)Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
(2)Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3)Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
9.1.2 Non-citizens not covered by a protection finding
(1)Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2)However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3)Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
There is no claim by the Applicant, or evidence before the Tribunal in relation to Australia’s international non-refoulment obligations.
No assessment by the Tribunal is necessary in this review.
The Tribunal has formed the view that the Other Consideration (a), Legal consequences of the decision, is of no relevance and gives it no weight.

(b) Extent of impediments if removed

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 submits that the split from his sisters and cousin Sophia will be his principal impediment should he be removed from Australia.
At the Tribunal’s hearing the Applicant’s counsel summarised his submissions:
Mr POYNDER: Impediments if he has to go back to Vietnam, it’s moderately in the applicant’s favour. I mean he’d have to return to Vietnam and be away from his sisters, which would be very difficult for him, but he obviously still speaks Vietnamese. But he has spent many years in Australia, and becoming adjusted to the Australian community, so that’s in our favour.
The Respondent concedes this consideration in principle weighs in favour of revocation but states it should be given limited weight because the Applicant will face few, if any, impediments if he were to return to Vietnam.
The Respondent has submitted four reasons for why the Applicant would be able to resettle in Vietnam:
·The Applicant is relatively young at 33 years of age and came to Australia as an adult aged 20 years of age;
·Whilst he has been diagnosed by the psychologist Mr Green as having a Major Depressive Disorder of Moderate Severity (G14/172), there is no evidence to suggest his depression has prevented him from working or undertaking day-to-day activities. Furthermore, there is no evidence to suggest the Applicant will not be able to address any mental health issues through the Vietnamese health system if necessary;
·The Applicant has highly transferable skills that would allow him to seek gainful employment in Vietnam, noting he has worked as a waiter, a cleaner, a handyman, a machine operator and a packer in Australia since 2009. He also has attained various qualifications and skills including an Advanced Diploma of Commerce from Macquarie University and certificates in cleaning, vocational skills and digital literacy; and
·The Applicant has a strong family network in Vietnam with his mother, two grandparents, five uncles/aunts and seven nieces/nephews.
The Respondent subsequently submits that the Applicant would face ‘few, if any’ impediments in re-establishing himself in Vietnam. The Respondent submits that the Applicant is in fact capable of ‘thriving’ in Vietnam.
The Tribunal accepts the Respondent’s contentions that the Applicant would face limited impediments upon returning to Vietnam beyond that of his family in Australia. The Tribunal has accepted that he has a close and abiding relationship with his cousin Sophia and his Australian citizen sister. He has a close and ongoing supportive relationship with his two younger sisters. The Tribunal notes that the Applicant has also paid the application fee for a Contributory Parent visa for his widowed mother, who the Tribunal accepts has a strong desire to reunite with her three daughters and son in Australia.
There are few other impediments to the Applicant. The Tribunal accepts the Respondent’s submissions that the Applicant’s age, considerable employment skills and familiarity with Vietnamese culture means that he would be able to effectively reintegrate into Vietnamese society. The Tribunal accepts he would be able to utilise Vietnamese health services should he require to do so for his psychological health, albeit the quality of such services in all likelihood being inferior to that available in Australia. The Tribunal does acknowledge nevertheless that 13 years is a significant time, and there would be some limited general challenge in reintegrating into everyday Vietnamese life.
The Tribunal has formed the view that the Other Consideration (b), Extent of impediments if removed, weighs slightly, but not determinately, in favour of revocation. The Tribunal has given the consideration very limited weight.

(c) Impact on victims

Paragraph 9.3 of the Direction directs a decision-maker to take into account the impact of the section 501 or section 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before the Tribunal about any victims of the Applicant’s offending
The Tribunal has formed the view that the Other Consideration (c), Impact on victims, weighs neither in favour nor against revocation.

(d) Impact on Australian business interests

Paragraph 9.4 of the Direction directs a decision-maker to take into account the following:
Decision-makers 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 section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Respondent has made no submissions on this consideration. The Tribunal acknowledges the Applicant’s plans to work in conjunction with his uncle. The removal of the Applicant from Australia will nevertheless not have any impact on Australia’s business interests. The removal of the Applicant will not significantly compromise the delivery of a major project or delivery of an important service in Australia.
The Tribunal has formed the view that the Other Consideration (d), Impact on Australian business interests, weighs neither in favour nor against revocation.

Findings: Other Considerations

The application of the Other Considerations in the present matter can be summarised as follows:
(a)Legal consequence of decision under s501 or s501CA: weighs neither in favour nor against revocation.
(b)extent of impediments if removed: weighs slightly in favour of revocation.
(c)impact on victims: weighs neither in favour nor against revocation.
(d)the impact on Australian business interests: weighs neither in favour nor against revocation.

CONCLUSION

The Applicant does not satisfy the character test. The Tribunal has subsequently considered whether there is another reason the decision to cancel his Partner visa should be revoked.

Heavily against revocation is the primary consideration of the protection of the Australian community. The Tribunal, having considered the nature and seriousness of the offence, is satisfied that his offence of knowingly take part-cultivate>=large comm qty – cannabis-SI is a serious offence against the Australian community. The Applicant was an active part of an operation that was ultimately cultivating over 5,500 cannabis plants. The sentencing judge found that the offence was objectively ‘very serious’ given the production of such a massive quantity of cannabis not only leads to the supply and production of illegal drugs, but is a gateway to other forms of criminal offending. Cannabis is a scourge on Australian society and its health impact in a range of areas, in particular mental health and psychosis in young men especially, is of concern to both policy makers and citizens more widely. The Tribunal acknowledges that this was the Applicant’s first (and remains only) offence, and there is no suggestion he was earning a profit out of his actions.
As part of its consideration of Primary Consideration 1 the Tribunal has also considered the risk to the Australian community should the Applicant commit further offences or engage in serious conduct. The issue of the risk of the Applicant potentially committing further offences was an issue of some conjecture, with it remaining unclear as to when the Applicant actually became aware that he was working for an illegal cannabis operation. It has been the submission of the Applicant that he was unaware of the reality of the operation for about a month, before determining to remain in employ due to a combination of financial hardship, psychological stress due to the breakdown of his marriage and the growing financial demands of his sisters he could not adequately meet due to his lack of employment during the COVID-19 pandemic, and, as raised for the first time in cross-examination, fear of retribution from his co-accused if he had abandoned his job after learning that he was involved in illegal drug cultivation. There was also evidence from the psychologist Mr Green that, due to the Applicant’s psychological situation, he may have been ‘set up’ in taking the job on. Given all those factors, the submission of the Applicant was that the risk of any further reoffending is remote. The Respondent in response stated there was no need for the Tribunal to make a finding as to whether the Applicant was ‘set up’, and to instead simply rely upon the Applicant’s conviction, sentencing and the sentencing judge’s remarks, and the tendered agreed facts from the District Court as its ‘starting point’ (to use the Respondent’s representative Mr Harvey’s phrase) in considering Primary Consideration 1: Minister for Immigration & Multicultural Affairs v "SRT" [1999] FCA 389; Minister for Immigration & Multicultural Affairs v SRT(includes corrigendum dated 6 September 1999) [1999] FCA 1197.
The Tribunal would concur with the Respondent’s submissions and has assessed both the seriousness of the Applicant’s offending and the risk of reoffending on the basis of Applicant’s conviction and sentence. The Tribunal notes from HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 His Honour’s statement, as cited by the Respondent at the hearing: ‘Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of conviction (or sentence, as the case may be) or to the essential facts on which it was based.’ The Tribunal subsequently has not made findings as to whether the Applicant was ‘set up’ as suggested by his counsel. The Tribunal acknowledges the Applicant’s suggestion that, given the sentencing judge made no remarks about such a matter, the Tribunal was open to make a finding. The Tribunal considers such a task speculative and in the circumstances almost impossible to prove or disprove in the absence of such parties as the co-offenders and others involved in the criminal enterprise. The Tribunal when considering Primary Consideration 1, and the issues of seriousness and risk or reoffending, has used the conviction itself and the sentencing, and sentencing remarks and agreed facts, as its starting point.
In relation to the risk to the Australian community should the Applicant commit further offences or engage in serious conduct, and specifically the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, the Tribunal, the Tribunal considers such risk very serious. Production of illegal drugs, including the cultivation of cannabis, is a serious crime. The impact of illegal drugs on Australia society is well recognised – and the production of such loathsome unlawful products can only occur with the involvement of individuals, like the Applicant, who take on low-level labouring roles that may not profit but nevertheless remain an indispensable part of these criminal operations. Were the Applicant to reoffend, the end result is more dangerous and illegal drugs like cannabis in the Australian community.
The Tribunal however concludes that the risk of the Applicant actually committing further offences or engaging in serious conduct is, on the evidence before it, low to very low. Corrections NSW assessed the Applicant of being a ‘low’ of reoffending as did the psychologist Mr Green, whilst the sentencing judge found the Applicant had ‘good prospects of rehabilitation.’ The impressive and eloquent oral testimony of the Applicant’s sisters – and the significant anchor and security they provide in his life gives the Tribunal some confidence in its conclusion. The Tribunal would also note that many of the challenges he states led to his offending are now either absent or of little significance: the Applicant has gainful employment in place if he is permitted to remain in Australia, meaning he will not face the same financial challenges. Further time has now elapsed since the end of his marriage. His sisters are now not reliant school children but successful university students and employees. His psychological state appears to have improved considerably and there is clearly stability on offer in his life through his family members in Australia, and potentially his mother who seeks to come to Australia on a Contributory Parent visa. As for the claims the Applicant was in fact ‘set up’ in taking the role that led to his offending (on which the Tribunal makes no finding), or that he was unaware of the true nature of the enterprise until he arrived, the Tribunal is satisfied that such scenarios will not eventuate again and he will be more vigilant when it comes to employment opportunities.
The Tribunal furthermore is confident that the Applicant’s highly stressful and anxious experience in Australia’s corrections system and his gaoling will act as a firm deterrent if the Applicant was ever minded to return to such an enterprise. The Tribunal as discussed considered it at least plausible that the Applicant did not previously raise the possibility he continued working at the enterprise because he feared retribution were he to leave: an issue the Tribunal would add it has not considered determinative in making its conclusion in relation to risk.
The Tribunal also gave weight to the Applicant’s considered and, in the Tribunal’s opinion, genuine statements of remorse and regret for his offending, as well as the fact this remains the Applicant’s only ever offence. His rehabilitation has seen him undertake and complete courses whilst incarcerated in order to prepare him better for everyday life.
The Tribunal ultimately found the nature and seriousness of the Applicant’s conduct has been ‘very serious’, and were the Applicant to reoffend, the nature of the harm to individuals and/or the Australian community would be ‘very serious’. The Tribunal however concluded that the Applicant is a low to very low risk of reoffending.
The Tribunal found Primary Consideration 3, The Strength, Nature and Duration of ties to Australia, weighed heavily in favour of the revocation of the cancellation of the Applicant’s visa. The Applicant has strong links to his family in Australia, in particular his young cousin Sophia and his three younger sisters, one of whom is currently an Australian citizen. He has spent some 13 years now in Australia. The Tribunal accepts the Applicant has been indispensable to his sisters and his cousin both financially and emotionally.
The Tribunal would note that the very recent elevation (from 3 March 2023) by the Commonwealth Government of the Strength, Nature and Duration of Ties to Australia from an Other Consideration to that of a Primary Consideration has, in the Tribunal’s weighing exercise of the various considerations, ultimately tipped the scales in favour of the Applicant and in favour of revocation of the cancellation.
Primary Consideration 4, Best Interests of Minor Children in Australia, have weighed in favour of revocation given the Tribunal’s satisfaction that the Applicant’s relationship with his 10-year-old cousin Sophia are considerable, from her birth, and he is as close as a brother to her. He continues to play a close emotional and practical role with her today. Sophia has never known the Applicant not to be in Australia and the Tribunal is satisfied his enforced departure from Australia would have an adverse impact upon Sophia emotionally.
In considering the evidence before it pertaining to Primary Consideration 5, Expectations of the Australian Community, the Tribunal is of the view that because his offending was very serious, the community expects the Government can and should cancel his visa. The Tribunal did however note that in its opinion the Australian community would have a slightly higher than usual tolerance for the Applicant’s criminal conduct due to his permanent visa, the duration of his stay in Australia, his long record of employment and contribution to his community and his significant support for his sisters and their education.
In relation to Other Considerations, only (b) Extent of Impediments to removal is of any relevance and has been weighed slightly, though not determinately in favour of revocation. The Tribunal considers the Applicant would face limited impediments were he to return to Vietnam beyond his family members in Australia. His age, considerable employment skills and familiarity with Vietnamese culture would all mitigate against any challenges he might have.
It is necessary to weigh up all of the primary and other considerations.
Primary consideration 1 weighs heavily against revocation.
Primary consideration 2 weighs neither in favour nor against revocation.
Primary consideration 3 weighs heavily in favour of revocation.
Primary consideration 4 weighs heavily in favour of revocation.
Primary consideration 5 weighs against revocation
Other considerations (a), (c) and (d) are neutral.
Other consideration (b) weighs slightly in favour of revocation.
In the Tribunal’s view, the proper application of the Direction favours the Tribunal exercising the discretion to revoke the cancellation of the Applicant’s Visa. The Tribunal finds that there is ‘another reason’ pursuant to sub-paragraph 501CA(4)(b)(ii) to revoke the original decision.

DECISION

The decision under review is set aside by the Tribunal and substituted with a decision that the mandatory cancellation of the Applicant’s Class BS Subclass 801 Partner visa is revoked.

I certify that the preceding 213 (two hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Justin Owen

..................................[SGD]......................................
Associate
Dated: 15 March 2023

Date(s) of hearing:

7 March 2023

Counsel for the Applicant

Mr N Poynder

Solicitor for the Applicant

Ms C Ms C Khurana, AKN & Associates

Solicitor for the Respondent

Mr R Harvey, AGS

[2023] AATA 392

15 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	7 March 2023
Counsel for the Applicant	Mr N Poynder
Solicitor for the Applicant	Ms C Ms C Khurana, AKN & Associates
Solicitor for the Respondent	Mr R Harvey, AGS