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

[2022] AATA 3169

Nguyen and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3169 (28 September 2022)

Division:GENERAL DIVISION

File Number:          2022/5841

Re:Anh Tuan Nguyen

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Deputy President Britten-Jones

Date:28 September 2022

Place:Adelaide

The decision of the Tribunal is to affirm the decision made on 11 July 2022 to not revoke the mandatory cancellation decision of 24 March 2020.

...[sgd].....................................................................

Deputy President Britten-Jones

CATCHWORDS

MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether there is another reason to revoke mandatory cancellation decision – the primary considerations of the protection and expectations of the Australian community and family violence outweigh the countervailing considerations - the decision under review is affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56; [2016] FCAFC 244
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673

WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55

SECONDARY MATERIALS

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).

REASONS FOR DECISION

Deputy President Britten-Jones

28 September 2022

1. This is an application for review of a decision to not revoke the mandatory cancellation of the applicant’s Class CB Subclass 100 Partner visa (the visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]

   [1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.

   The decision to cancel the visa AND SUBSEQUENT PROCEDURAL HISTORY

2. On 24 March 2020, the applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months.

3. On 2 June 2020, JM Migration Services wrote on the applicant’s behalf seeking revocation of the cancellation decision.

4. On 16 December 2021, a delegate re-issued a notice inviting the applicant to make representations about revoking the cancellation decision. On 22 December 2021, the applicant made representations in support of a request for revocation. Mr Nguyen wrote:

   I was diagnosed with schizophrenia and currently receiving treatment in the Villawood Detention centre.

   I committed my offences because my mind was not in a stable condition, my illness recurred and I am currently receiving treatment for it.

   I am very sorry and I plea to the Department please forgive me and I promise I will never reoffend again.

   If I am forced to return to Vietnam I will die.

5. On 11 July 2022, a delegate of the Minister decided under s 501CA(4) not to revoke the cancellation decision (the non-revocation decision). On 15 July 2022, the applicant applied to the Tribunal for review of the non-revocation decision.

   Legislative Framework

6. Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:

   (a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and

   (b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

7. The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[2]

   [2] Migration Act 1958 (Cth) s 501(7)(c).

8. Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:

   501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

   (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

   (2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:

   (a) would be the reason, or a part of the reason, for making the original decision; and

   (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

   (3) As soon as practicable after making the original decision, the Minister must:

   (a) give the person, in the way that the Minister considers appropriate in the circumstances:

   (i) a written notice that sets out the original decision; and

   (ii) particulars of the relevant information; and

   (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

   (4) The Minister may revoke the original decision if:

   (a) the person makes representations in accordance with the invitation; and

   (b) the Minister is satisfied:

   (i) that the person passes the character test (as defined by section 501); or

   (ii) that there is another reason why the original decision should be revoked.

9. Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.

   Issues before the Tribunal

10. The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has “a substantial criminal record” as defined under s 501(7). Therefore, the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.

11. Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is another reason why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which I am required to read, identify, understand and evaluate.[3] Deciding whether or not to be satisfied that another reason exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.[4]

    [3] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].

    [4] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [14].

12. The applicant concedes that he does not pass the character test and that the only issue for the Tribunal is whether there is another reason to revoke the cancellation decision having regard to the principles and considerations in Direction 90.[5]

    [5] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).

    Direction 90

13. The purpose of Direction 90 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.

14. The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 90 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 non­citizens who have been participating in, and contributing to, the Australian  community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non­citizens who have lived in the Australian community for most of their life, or from a very young age.

    (5)  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 8.4(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 measureable risk of causing physical harm to the Australian community.

15. In making a decision under s 501CA(4), the following are primary considerations:

    (a)protection of the Australian community from criminal or other serious conduct;

    (b)whether the conduct engaged in constituted family violence;

    (c)the best interests of minor children in Australia; and

    (d)expectations of the Australian community.

16. In making a decision under s 501CA(4), other considerations must also be taken into account, including (but not limited to):

    (a)international non-refoulement obligations;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)links to the Australian community, including:

    (i)strength, nature and duration of ties to Australia; and

    (ii)impact on Australian business interests.

17. In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[6] However, as held in Jagroop v Minister for Immigration and Border Protection,[7] “the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501”.

    [6] Direction 90 at 7.

    [7] (2016) 241 FCR 461 at [57].

    SOME BACKGROUND FACTS

18. The applicant is a 32 year old man who was born in Vietnam. He came to Australia on 7 April 2012 with his mother and sister. His brother lives in Vietnam.

    CONSIDERATION

    Protection of the Australian community – 8.1 of Direction 90

19. When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. As required by paragraph 8.1(2) of Direction 90, I give consideration below 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 non-citizen’s conduct – 8.1.1 of Direction 90

20. On 21 April 2017, the applicant set fire to the granny flat where he lived with his wife and his mother. He was charged with damaging property by fire and was sentenced under the Mental Health Act 2007 (NSW). The police applied for and obtained an apprehended violence order which recorded that on 25 April 2017 the applicant’s wife and mother attended a police station and stated that they had fears for their safety due to the applicant’s actions and that over the last two weeks the applicant had shown violence towards them and would throw and smash items inside the house on a nightly basis. The applicant said in evidence before the Tribunal that there was no physical violence towards his wife or his mother but he accepted the property damage and yelling and screaming at them. However, there is no doubt that he caused them significant fear and that his conduct falls within the definition of family violence in Direction 90. On 28 April 2017, the applicant was admitted to a hospital mental health unit and was diagnosed with a schizoaffective disorder with a background history of substance abuse. He was discharged from the hospital on 21 June 2017 but spent further time in hospital in July 2017.

21. The applicant received a fine and licence disqualification on 2 May 2018 for driving with an illicit drug present in his blood. He received a further fine for driving while disqualified on 27 August 2018.

22. The applicant was sentenced to an aggregate term of imprisonment of two years on 19 December 2019, to be served by way of intensive correction in the community. There were numerous offences including possess prohibited drug, driving during disqualification, larceny and custody of suspected stolen goods, armed with intent, and stalk/intimidate. Three of these offences were committed on 29 July 2019 in a shopping centre where he stole some items and threatened a security guard with a capped syringe. The Magistrate referred to a sentencing assessment report dated 18 December 2019 and said:

    He has a driving history and not surprisingly, a mental health background. He attributes his offending to the breakdown of his marriage in 2017, his inability to cope, his commencement of drug use, before it became problematic for him. The report says he has escalated to polysubstance abuse of both heroin and methamphetamine. He is assessed as showing little insight into his offending behaviour, believing, wrongly, that his own conduct has not damaged anyone else. He is assessed as a medium risk of reoffending. He is unsuitable for community service work because of his history of mental health issues and unresolved drug use. His risk of reoffending is obviously related to his drug use.

    … I therefore conclude that he is a young man with a significant drug dependence, who has limited insight into the consequences of his own behaviour and who needs to engage in drug rehabilitation. I have concluded that it is appropriate for him to serve his term of imprisonment in the community.

23. Not long after being sentenced, he breached the conditions of the intensive correction order which was revoked on 24 February 2020. The applicant was taken into custody to serve the remainder of his sentence. On 5 May 2020, he was convicted and sentenced to a 12-month community correction order for a series of similar offences including possess prohibited drug, larceny, destroy or damage property and being in custody of suspected stolen goods.

24. The applicant has engaged in acts of family violence which are viewed very seriously by the Australian Government and the Australian community regardless of whether there is a conviction for an offence or a sentence imposed. The applicant engaged in frequent offending from 2018 up until he was incarcerated in February 2020. I take into account the cumulative effect of his repeated offending. The applicant’s offending must be seen in the context of his drug abuse and mental health conditions, but it is very serious and is a very significant factor in terms of whether I am satisfied that there is another reason to set aside the non-revocation decision.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 90

25. In considering the need to protect the Australian community from harm, I 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 repeated, is so serious that any risk that it may be repeated may be unacceptable.[8] As required by paragraph 8.1.2(2) of Direction 90, I also have regard to, cumulatively:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

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

    i)information and evidence on the risk of the non­ citizen re-offending; and

    ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

    [8] Direction 90 at 8.1.2(1).

26. In terms of measuring the risk of harm to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[9] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.

    Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 90

    [9] (2014) 225 FCR 424; [2014] FCA 673.

27. If the applicant were to engage in further similar criminal offending, then the nature of the harm would be very serious because it involved acts of family violence and repeated driving offences, larceny and drug possession.

    Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 90

28. The applicant contends that there is a low risk of re-offending because he has rehabilitated himself, learnt from his mistakes and shown remorse. I accept that the applicant was an honest witness who has made some efforts towards abstaining from drugs. He gave evidence that he committed his offences when he did not have a stable mind and when he was using heroin and ice. He said that he was not a violent person. He stopped using drugs just before he was arrested and imprisoned in February 2020 which means he has been drug free for over two and a half years. He said that if returned to the community he would not associate with those persons with whom he took drugs. These are positive factors which I take into account.

1. In relation to the risk of re-offending, I note that as at December 2019 the applicant was assessed by the sentencing magistrate as being a medium risk of re-offending. In May 2020 he was assessed as a medium to high risk of re-offending in the sentencing assessment report made by the community corrections office. In his personal circumstances form provided in December 2021 the applicant said that he had not completed any courses or programs that would help him to avoid further offending but that a treatment program was being administered. Under cross-examination the applicant said that the reference to a treatment program was a reference to the injections he was receiving for the treatment of his schizoaffective disorder. The applicant accepted that he has not attended any rehabilitative courses to address his drug addiction. There is evidence that his mental health condition has stabilised and that he is compliant with the treatment program of injections which currently are administered every three months. However, it is of concern that he has not engaged in any rehabilitative programs to address his drug abuse. Nor has he engaged in any rehabilitative programs with respect to domestic violence. It is also of concern that the sentencing assessment report from May 2020 noted that he had refused to engage in a residential rehabilitation program “finding it funny”. Under cross-examination the applicant explained that he made that comment when he did not have a sound mind, but he said that he would now participate in a rehabilitation program. In these circumstances, I consider that he is a medium risk of re-offending taking into account his recent abstinence from drugs and his stabilized mental health condition.

   Conclusion as to protection of the Australian community – 8.1 of Direction 90

2. The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[10] The applicant has committed serious crimes including domestic violence which if repeated would cause serious harm. Whilst the applicant has expressed a genuine desire to engage with appropriate rehabilitative services if released into the community, he has not yet engaged sufficiently with the rehabilitative services so as to address his drug addiction and his past domestic violence. Further, his abstinence from drugs has not been sufficiently tested whilst in the community.  I consider that there is an unacceptable risk of significant harm to the Australian community if the applicant were released and therefore, the protection of the Australian community is a factor that weighs heavily against revocation of the cancellation decision.

   [10] Direction 90 at 8.1(1).

   Family violence – 8.2 of Direction 90

3. The Government has serious concerns about conferring the privilege of remaining in Australia on non-citizens who engage in family violence. The act of intentionally damaging property by burning down the granny flat and causing fear to his then wife and mother, is considered family violence. The applicant gave evidence that the incident did not involve physical contact but the Tribunal does not agree that this would make the applicant’s actions fall outside the definition of family violence in Direction 90. Further, the incident resulted in an apprehended domestic violence order on 27 June 2017, which reflects the seriousness of the conduct.

4. Clause 8.2 says that the Government’s concerns are proportionate to the seriousness of the family violence engaged in. This was a once-off incident which caused no physical harm and it must be seen in the context of an untreated mental health condition. Nevertheless, it was violent conduct of a nature that is serious which resulted in an apprehended domestic violence order. Further, the applicant has not taken any rehabilitative steps to address his past family violence. During his evidence to the Tribunal, the applicant emphasised that he had never hit his wife and that he had given a warning before setting fire to the granny flat. This suggests a lack of genuine insight into the harm that was caused by his conduct. I accept that the applicant has expressed remorse, but I am not satisfied that he is rehabilitated. In this case, the seriousness would be considered less than other examples of physical family violence, but there remains a significant concern about the applicant’s conduct which impacts adversely on the privilege of him remaining in Australia. This is a factor that weighs heavily against revocation of the cancellation decision.

   Best interests of minor children – 8.3 of Direction 90

5. There was no evidence of any minor children affected by the non-revocation decision. This consideration is neutral.

   Expectations of the Australian community – 8.4 of Direction 90

6. 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 remain in Australia.[11]

   [11] Direction 90 at 8.4(1).

7. In addition, non-revocation may be appropriate simply because the nature of the character concerns is such that the Australian community would expect that the person should not be allowed to stay in Australia. Of particular relevance in this case, the Australian community expects that the Government should cancel a visa if there are serious character concerns arising from acts of family violence.[12]

   [12] Direction 90 at 8.4(2).

8. Paragraph 8.4(4) of Direction 90 provides that, as a decision-maker, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed therein, without independently assessing the community’s expectations in the particular case. I note the particular circumstances of the applicant including his mental illness and previous drug addiction, but the acts of family violence and repeated larceny and drug possession are very serious. In these circumstances, the expectation of the Australian community is to not allow the applicant to remain in Australia.[13]

   [13] Direction 90 at 8.4(1).

9. The applicant has engaged in serious conduct including domestic violence in breach of the Australian community’s expectation that he would obey laws while in Australia. The nature of the offending is serious and there is a moderate risk of re-offending. The risk to the Australian community is unacceptable. The character concerns relating to the applicant and his past criminal behaviour mean that the expectations of the Australian community is a factor weighing in favour of non-revocation.

10. My conclusion as to the expectations of the Australian community is that it is a factor that weighs heavily against revocation of the cancellation decision.

    Other Considerations

11. In deciding whether there is another reason to revoke the cancellation of the applicant’s visa, I must also take into account the other considerations listed in Direction 90, but these are not exhaustive.[14] I must consider and understand the representations received from the applicant.[15] I must also consider the consequences that would flow from not revoking the cancellation decision.[16]

    [14] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.

    [15] See above at [11].

    [16] Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 70-71 at [61]; [2016] FCAFC 244.

    International non-refoulement obligations – 9.1 of Direction 90

12. 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.[17] The applicant did not raise non-refoulement obligations at the hearing or in his statement of facts and contentions which was provided to the Tribunal on 17 August 2022. Non-refoulement obligations were not raised in the letter sent on his behalf from JM Migration Services dated 2 June 2020. I consider that international non-refoulement obligations are not relevant to this application because they have not been raised by the applicant and because the Migration & Refugee Division of the Tribunal has affirmed on 13 April 2021 an earlier decision to not grant the applicant a protection visa (the MRD decision).

    [17] Direction 90 at 9.1(1).

    Applicant representations including as to risk of harm

13. The applicant made representations concerning risk of harm if returned to Vietnam. The applicant claims a risk of harm and even death because of his mental health and his drug addiction. He believes he would be persecuted by the Vietnamese Government and face harassment by the police and forced into incarceration or labour camps because of his mental health condition and because he was a drug user.

14. The issue of the applicant’s mental health was considered in the MRD decision at paragraphs 71 to 94. The conclusion reached by the Tribunal Member in the MRD decision was that based on the applicant’s own evidence and the available country information, there is no real chance that the applicant will be seriously harmed if he returns to Vietnam by reason of his mental health. The evidence before me did not support a contrary conclusion. I accept and adopt the reasons and conclusion in the MRD decision. Further, the issue of mental health is dealt with in the DFAT country information report on Vietnam dated 11 January 2022. It provides that the quality of mental health treatment in Vietnam varies from place to place and that about half of the provinces have a mental health facility at the main hospital. Basic treatment and basic medications are covered by social health insurance and the out-of-pocket cost for medication is low and affordable to most people. Whilst the mental health facilities in Vietnam are not to the same standard as in Australia, I do not consider that the applicant is at risk of harm if returned to Vietnam due to his mental illness.

15. The issue of the applicant as a drug user was also considered in the MRD decision at paragraphs 95 to 97. The Tribunal Member in the MRD decision found that there is no real chance that the applicant will be seriously harmed if he is returned to Vietnam as a result of his addiction to drugs as claimed. The evidence before me did not support a contrary finding. I accept and adopt the reasons and conclusion in the MRD decision. Further, the issue of drug addiction is dealt with in the DFAT country information report. Drug users, especially for minor addicts, might be required to register with the police and may be detained at Government treatment centres where the conditions are described as “prison like” but are generally clean and safe, if sometimes overcrowded. Whilst these treatment centres are of concern, the applicant is currently drug free and therefore, it is unlikely that if returned to Vietnam he would find himself being treated for drug addiction.

16. There was no evidence provided to support the contention that the applicant would be prosecuted by the Vietnamese Government or harassed by the police. I reject that contention.

    Consequences of cancellation and non-revocation

17. The consequence of the cancellation[18] of the applicant’s visa is that he is an “unlawful non‑citizen” as defined in s 14.

    [18] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [45] to [49].

18. Relevantly, s 198(2B) requires an officer to remove an unlawful non-citizen from Australia as soon as reasonably practicable if a delegate of the Minister has cancelled the non-citizen’s visa under s 501(3A) and, since that decision, the non-citizen has not made an application for a visa that can be granted while he or she is in the migration zone, and the Minister has decided not to revoke the original decision under s 501CA(4). Section 198(6) requires an officer to remove as soon as practicable an unlawful non-citizen who is a detainee who has made a valid application for a substantive visa that can be granted when he or she is in the migration zone and (relevantly) the visa has been refused and the application finally determined. Section 198(6) would otherwise operate to require the unlawful non-citizen’s removal from Australia if any application for a protection visa was refused.

19. I find that if the cancellation decision is not revoked, the applicant would be removed from Australia.

    Extent of impediments if removed – 9.2 of Direction 90

20. Direction 90 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to Vietnam in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)the applicant’s age and health;

    (b)whether there are substantial language or cultural barriers; and

    (c)any social, medical and/or economic support available to him in that country.

21. The applicant is 32 years old and appears to be in good physical health. He suffers from schizoaffective disorder, but he states in his statement of facts and contentions that he has been getting professional help from doctors in detention and complying with treatment plans and that his mental state is improving. He has been drug free for about two and a half years. There would be no substantial language or cultural barriers because he grew up in Vietnam and speaks Vietnamese. During the hearing before the Tribunal, he asked for and used a Vietnamese interpreter. There is no evidence that the applicant will not be able to access health services, treatment and welfare available to other citizens of Vietnam.

22. The applicant has raised the following impediments if he were to be removed to Vietnam:

    (a)that he would have less emotional support;

    (b)that he would not have access to sufficient mental health treatment;

    (c)that he would have difficulty obtaining employment and mental health condition; and

    (d)that he believes he would be jailed in Vietnam due to his mental illness and drug dependency.

23. I accept that the applicant is likely to face emotional hardship if removed to Vietnam. He would not have the same level of family support in Vietnam and there would be a difficult period of adjustment because he has lived in Australia for the last 10 years. However, I do note that he has visited Vietnam on two occasions in that 10 year period. I consider it unlikely that the applicant would relapse into drug use due to the additional stressors if returned to Vietnam but I accept that there remains a slight chance of relapse which represents an additional impediment that he may face if removed from Australia.

24. In summary, the applicant would face some impediments if removed to Vietnam and he may have difficulty establishing himself and maintaining basic living standards because of his mental health issues and because he would have less family and social support in Vietnam. I note that the applicant does have a brother and an aunt and uncle in Vietnam but he said that he has not kept in contact with them. The matters referred to above in relation to risk of harm are also relevant to extent of impediments and I will not repeat them here.

25. This factor weighs in favour of revocation of the cancellation decision but I do not give it significant weight because the applicant would likely be able to access some medical treatment for his mental illness and because he speaks the language and has some family in Vietnam.

    Impact on victims – 9.3 of Direction 90

26. There was no evidence of impact on victims within the meaning of  Direction 90. As such, this consideration weighs neutrally.

    Links to the Australian community – 9.4 of Direction 90

27. I am required to consider the strength, nature and duration of any ties the applicant has to Australia and any impact on Australian business interests if he is removed.

28. The applicant has links to the Australian community because he has lived here for about 10 years with his mother and his sister. He has been in Australia since he was 21 years old. He has had various jobs. He worked as a handyman from 2012 to 2014 and in a chicken factory from 2014 to about 2017. This represents a period of positive contribution to the Australian community but the period from 2017 onwards was marred by his offending and drug taking and consequent incarceration.

29. If the applicant is removed to Vietnam then it will impact negatively on his mother and his sister. In particular, his mother gave oral evidence pleading that he be allowed to stay in Australia. I am prepared to accept that his ex-wife would be negatively impacted but she gave no evidence to the Tribunal. The applicant also has four aunts and an uncle with whom he has little contact but who I infer, as family members, would be negatively impacted if he is removed.

30. There would be no impact on any Australian businesses if the applicant is not allowed to stay in Australia.

31. In conclusion with respect to his links to the Australian community, I consider this to be a factor that weighs in favour of revocation of the cancellation decision.

    Conclusion as to whether to revoke the cancellation of the visa

32. I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is another reason to revoke the cancellation decision.

33. The primary considerations of the protection and expectations of the Australian community and family violence weigh heavily in favour of not revoking the cancellation decision. The countervailing factors are the other considerations of the extent of impediments if removed and the links to the Australian community. Primary considerations should generally be given greater weight than the other considerations and in this case, there is no reason to act to the contrary.

34. It is of particular concern that the applicant has engaged in acts of family violence and repeated offences involving larceny, property destruction and drug possession. The offence where he threatened a security guard with a capped syringe was serious. I have taken into account that the context of the applicant’s offending involved drug abuse and his mental illness. Whilst his mental illness has stabilised, it is of concern that the applicant has not engaged in sufficient rehabilitation to address his past family violence and drug use. I have found that there is a moderate risk of further serious offending and that such a risk is unacceptable to the Australian community.

35. I reach this conclusion by applying the principles in paragraph 5.2 of Direction 90 to the specific circumstances of the applicant who has committed serious crimes involving drug possession, larceny and domestic violence. Being able to remain in Australia is a privilege Australia conferred on the applicant in the expectation that he would be 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. The applicant has not been law-abiding; he has shown disregard for Australia’s law enforcement network and he has caused harm in the domestic context and to the wider community. The applicant, as a non-citizen who has committed serious crimes involving damaging property, should generally expect to forfeit the privilege of staying in Australia. The Australian community expects that the Australian Government should cancel the visas of non-citizens who commit such crimes in Australia which raise serious character concerns.

36. It follows from the application of these principles that I am not satisfied that there is another reason why the cancellation decision should be revoked.

37. My decision will be devastating for the applicant’s mother who has decided to make Australia her home and that is a very unfortunate consequence. However, it is a consequence that arises from the conduct of the applicant and the decisions he made which also had a serious impact on innocent persons including his ex-wife and a security guard in the Australian community. Further, the applicant has some family in Vietnam and speaks the language having spent his childhood there. In these circumstances, he will not face insurmountable impediments upon his return.

    Decision

1. The decision of the Tribunal is to affirm the decision under review.

67.     I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

....[sgd]...........................................................

Associate

Dated: 28 September 2022

Date of hearing:	19 September 2022
Applicant:	Self-represented
Advocate for the Respondent:	K Ervin
Solicitors for the Respondent:	Clayton Utz