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

[2022] AATA 2357

Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2357 (26 July 2022)

Division:GENERAL DIVISION

File Number(s):      2022/3791

Re:Phuong Dong Nguyen

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:26 July 2022

Place:Sydney

The decision under review is affirmed.

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

Senior Member M Griffin QC

Catchwords

MIGRATION – mandatory cancellation of visa – Partner (Temporary) (Class UK) visa –  Partner (Permanent) (Class BS) visa – where visa was cancelled under s 501(3A) because applicant did not pass character test – substantial criminal record - Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – best interests of minor children in Australia – expectations of the Australian community –  other considerations – extent of impediments if removed – impact on victims – links to the Australian community – the strength, nature and duration of ties to Australia – decision affirmed

Legislation

Migration Act 1958 (Cth) ss 499, 500, 501, 501CA, 501E

Cases

FYBR v Minister for Home Affairs [2019] FCAFC 185

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166

Secondary Materials

Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member M Griffin QC

1.       The Applicant applies for review pursuant to the Migration Act 1958 (Cth) (the Act) of a decision made by a delegate of the Respondent on 21 April 2022 which decision refused to grant the Applicant a Partner (Temporary) (Class UK) and Partner (Permanent) (Class BS) visa (the visas) pursuant to the Act.

2.       Having been notified of the delegate’s decision, the Applicant applied to the Tribunal on 11 May 2022 for review.

FACTS

3.       There are some background factors relevant for the consideration of this matter. The Applicant was born in July 1990 in Vietnam and is therefore a citizen of that country. The Applicant arrived in Australia on 5 February 2012 on a temporary visa which expired on 12 April 2012. Until November 2015, the Applicant remained in Australia without a visa, and was granted a bridging visa in February of 2016 having applied in November 2015 for a Partner (Temporary) or a Partner (Permanent) visa.

4.       The Applicant has been convicted of a number of offences which are drug-related and which have a commercial dimension to them. Those offences mean that the Applicant cannot be considered to have passed the character test pursuant to section 501(3C) of the Act because the Applicant has a substantial criminal record as a result of those two offences committed in 2015 and 2017 respectively.

5.       The Applicant has helpfully and without objection or amendment set out a table dealing with relevant facts and which includes relevant factors in relation to the Applicant’s offending history. Set out below is that table.

Date	Event	Reference
08.08.1988	Applicant’s wife, Thi Duyen DONG, born in Da Nang, Vietnam	G 110 [1]
20.06.1990	Applicant born in Hai Phong, Vietnam	G 66
09.2007	Applicant completes Year 11 at Vinh Quang High School, Hai Phong and leaves to work on his family farm	G 71 G 56 [14]-[19]
03.2008	Applicant’s wife moves to Australia on a Student visa	G 110 [2]
01.2010	Applicant’s wife marries and Australian citizen, Duc Dung Nguyen	G 110 [4]
2011	Applicant selected to represent Vietnam in the South-East Asia Games in Indonesia	G 57 [24]
05.02.2012	Applicant travels to Australia on three month visa to attend one month training camp for rowing in Orange	G 129 G 57 [27]
C. 03/2012	Applicant travels to Sydney with intention to spend a couple of days sightseeing before returning to Vietnam. However he ascertains from his mother in Vietnam that he has been reported as absconding and - fearful of the Vietnamese authorities - he decides not to return to Vietnam.	G 58 [29]-[34]
12.04.2012	Applicant’s visa expires	G 51
11.2012	Applicant’s wife separates from Duc Dung Nguyen	G 110 [4]
2012/2013	Applicant works picking grapes near Melbourne, then on a tomato farm in Gosford	G 58 [37]
01.03.2013	Applicant travels from Gosford to Sydney and first meets wife through friends at a restaurant in Fairfield	G 90 G 58-59 [38]
07.2013	Applicant and wife move in together	G 59 [38]
01.09.2013	Applicant and wife engaged	G 90
10.2013	Applicant’s wife divorced from Duc Dung Nguyen	G 110 [4]
27.02.2014	Applicant’s wife granted Australian citizenship	G 110 [5]
25.04.2014	A son, Jayden Nguyen, born in Fairfield to applicant and wife	G 76
17.05.2014	Applicant and wife married in Fairfield	G 90
02.2015	Applicant meets former co-worker from Gosford, “Alex”, in restaurant in Cabramatta; applicant tells Alex that he is having difficulty obtaining regular work (due to his status as an unlawful non-citizen).	G 60 [46]-[47]
02.2015	Alex offers applicant “an easy job with good pay”	G 60 [51]-[52]
04.2015	Applicant begins work feeding plants at a house in Ryde	G 60 [48]-[50]
08.07.2015	Acting on information received, NSW Police conduct surveillance at 1 Lee Avenue Ryde, and observe applicant enter the building	G 50
14.07.2015	Police conduct further surveillance at 1 Lee Avenue Ryde and again observe applicant enter the building. Police arrest applicant, who is found to be in possession of $545.00 suspected to have been unlawfully obtained. Police attend 1 Lee Avenue Ryde and find growing facilities and 69 cannabis plants and cannabis leaf later assessed to weigh 66.4816 kg. Applicant arrested and held in custody.	G 51-52 G 49-50
29.07.2015	Applicant refused bail.	NSW Department of Corrective Services Conviction, Sentences and Appeals records, p. 2 (summonsed documents)
04.11.2015	Applicant lodges application for Partner visa and granted bridging visa with no permission to work	G 83 G 62 [67]
07.11.2015	Applicant granted bail to live with wife and son at 112 Hughes St Cabramatta.	G 60 [53] NSW Department of Corrective Services Case Note Reports, pp. 8-9 Conviction, Sentences and Appeals records, p. 1 (summonsed documents)
19.02.2016	Applicant provides respondent with statement regarding his background and relationship with his wife	G 123-125
27.03.2016	Applicant assessed by David Green, psychologist, as being a “very low” risk of re-offending	G 64 [81]
01.04.2016	Applicant assessed by NSW Corrective Services as being a low risk of re-offending	Pre-Sentence Report, p. 2 NSW Department of Corrective Services records (summonsed documents)
04.04.2016	Applicant convicted and sentenced by Downing Centre District Court as follows: ·     Cultivate prohibited plant – commercial quantity cannabis: 10 months imprisonment suspended on entering s. 12 Bond for a period of 10 months ·     Take part in supply prohibited drug – commercial quantity: Taken into account Form 1 ·     Goods in personal custody suspected being stolen: Taken into account Form 1	G 31
05.10.2016	A daughter, Leyna Nguyen, born in Fairfield to applicant and wife	G 76
05.2017	Applicant moves from Sydney to Perth	G 108 [9]
19.07.2017	WA Police execute search warrant at 23 Myerick St Mandurah (71 klms south of Perth) and locate 211 cannabis plants, 30 kg of cannabis, and note stolen power to value of $159,699.33. Police locate fingerprints later identified as being those of applicant.	WA Police – Statement of Material Facts Brief No. 1741827-1 p. 2 (summonsed documents)
20.07.2017	WA Police execute search warrant at 38 Oakmont Avenue Meadow Springs (70 klms south of Perth) and locate 60 kg of cannabis head and specialised hydroponic equipment. WA Police subsequently execute search warrant at 196 Foreshore Drive Singleton (64 klms south of Perth). Accused and co-accused subsequently located in vehicle found to contain more than $50,000 and Bunnings receipts for hydroponic growing of plants. Applicant and co-accused arrested and charged with drug offences. Refused bail	WA Police – Statement of Material Facts Brief No. 1725931-1 p. 3 (summonsed documents)
21.07.2017	Applicant transferred to Hakea Prison, Perth	WA Department of Justice records (summonsed documents)
25.09.2017	Applicant transferred to Albany Regional Prison (WA)	WA Department of Justice records (summonsed documents)
19.02.2019	Applicant released from Albany Regional Prison on bail	WA Department of Justice records (summonsed documents)
10.06.2019	Applicant agrees on amended statement of material facts	G 37
25.06.2019	Applicant convicted and sentenced by Lemonis DCJ in Perth District Court (WA) as follows:	G 30-31
1.    (21 Elanora Drive Cooloongup) Cultivate a prohibited plant with intent to sell or supply: 1 year 4 months imprisonment from 19.11.2018 2.    (38 Oakmont Avenue Meadow Springs) Possess prohibited drugs with intent to sell or supply (cannabis): 1 year 3 months imprisonment concurrent from 19.11.2018. 3.    (196 Foreshore Drive Singleton) Possess sum of $192,155 suspected of having been unlawfully obtained. 4.    (23 Myerick Street Mandurah) Fraudulent appropriation of power Sentenced backdated to 19 November 2017.	G 35-48 WA Police – Statement of Material Facts Brief No. 1725931-1 pp. 4-5 (summonsed documents) G 48
19.11.2019	Respondent provides applicant with Notice of intention to consider refusal of visa under s 501(1) of the Migration Act 1958	G 118-122
17.12.2019	Applicant’s migration agent provides response to Notice of intention to consider refusal of visa	G 104-106
21.04.2022	Delegate of respondent makes decision to refuse visa under s 501(1) of the Act	G 11
04.05.2022	Applicant notified of refusal of visa under s 501(1) of the Act	G 8-10
11.05.2022	Applicant       lodges  application       for       review  of respondent’s decision with AAT	G 1-6

6.       It is regrettable that the Tribunal must refer to an incident that occurred during the course of submissions by the Applicant’s counsel. [The Tribunal is satisfied that the incident which occurred between the Tribunal and counsel resulted from a misunderstanding between counsel and the Tribunal and the Tribunal, therefore, withdraws paragraphs 7 to 14].

7.       [redacted].

8.       [redacted].

9.       [redacted].

10.     [redacted].

11.     [redacted].

12.     [redacted].

13.     [redacted].

14.     [redacted].

15.     The necessity to deal with counsel’s conduct is on account of any suggestion being made at a future time that counsel’s conduct affected the Tribunal’s approach to the hearing of the matter and specifically, any allegation that such conduct affected the Tribunal’s decision in relation to the Applicant and denied the Applicant a fair hearing.

16.     It is sufficient to say that the Tribunal ignored counsel’s conduct in relation to its decision-making in respect of the merits of the Applicant’s case and request for review.

ISSUES

17.     The Applicant does not pass the character test because he has a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a) and (7)(c) of the Act. This is not disputed by the Applicant. This is discussed in more detail below.

18.     The sole issue for the Tribunal's determination is whether it can be satisfied that there is another reason why the original decision should be revoked, such that the Tribunal may revoke the decision: s 501CA(4)(b)(ii) of the Act.

RELEVANT LEGISLATION AND POLICY

19.     Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).

20.     Section 501CA(4) provides that:

(4) TheMinister 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.

21. In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38], North ACJ held that:

The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.

22.     Section 501(6)(a) relevantly provides that a person does not pass the character test if the Applicant has a substantial criminal history. Section 501(7)(c) states that a person has a substantial criminal history if they have received a sentence of imprisonment of 12 months or more.

23.     The Applicant was sentenced to a term of imprisonment for more than 12 months. The Applicant does not pass the character test.

24.     Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

25.     The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction No. 90). Section 5 of Direction No. 90 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:

(a)Australia has a sovereign right to determine whether non-citizens who are of character concern have a right to enter or remain in Australia. Being able to come 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 (paragraph 5.2(1));

(b)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 (paragraph 5.2(2));

(c)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 (paragraph  5.2(3));

(d)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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age (paragraph 5.2(4));

(e)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 measurable risk of causing physical harm to the Australian community (paragraph 5.2(5)).

26.     Part 2 of Direction No. 90 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises four Primary Considerations and several specified, but non-exhaustive, Other Considerations, which must be taken into account.

27.     Pursuant to Part 2 of Direction No. 90, the Tribunal must, to the extent that they are relevant to this case, take the relevant considerations (both primary and other) into account and:

(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight (paragraph 7.1).

(2)Primary considerations should generally be given greater weight than the other considerations (paragraph 7.2).

(3)One or more primary considerations may outweigh other primary considerations (paragraph 7.3).

28.     These principles are of course dependent upon the facts and circumstances of each case.

29.     The primary considerations are:

(1)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);

(2)Whether the conduct engaged in constituted family violence (Primary Consideration 2);

(3)The best interests of minor children in Australia (Primary Consideration 3); and

(4)Expectations of the Australian community (Primary Consideration 4).

30.     These considerations include (but are not limited to):

a)International non-refoulement obligations;

b)Extent of impediments if removed;

c)Impact on victims;

d)Links to the Australian community, including:

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

ii) impact on Australian business interests.

THE CHARACTER TEST

31.     As set out above, s 501(6)(a) of the Act provides that a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act.

32.     For the purposes of the character test, a person has a substantial criminal record under s 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more.

33.     In circumstances where the Applicant has been sentenced to imprisonment of 12 months or more, the Applicant satisfies the definition in s 501(7)(c) of the Act and therefore fails the character test.

EXERCISING THE DISCRETION

34.     In exercising the discretion in s 501CA(4) of the Act, the Tribunal must comply with Direction No. 90 (see s 499(2A) of the Act) which sets out the relevant considerations.

Primary Consideration 1 – Protection of the Australian community

35.     Paragraph 8.1 of Direction No. 90 provides:

(1)    When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

36.     Paragraph 8.1(2) of Direction No. 90 provides that decision-makers should also 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

37.     Sub-paragraph 8.1.1 of Direction No. 90 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:

a)without limiting the range of offences that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community (sub-paragraph 8.1.1(1)(a)(i)- (iii)):

(i)violent and/or sexual crimes;

(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious (sub-paragraph 8.1.1(1)(b)(i)-(iv)):

(i)causing a party 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;

c)with the exception of the crimes or conduct mentioned in subparagraph a)(ii), a)(iii) or b)(i) above, the sentence imposed by the courts for a crime or crimes;

d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

e)the cumulative effect of repeated offending;

f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, 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).

The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

38.     Paragraph 8.1.2 of Direction No. 90 provides that decision-makers must have regard to the following:

(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

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

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

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

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

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.

Seriousness of offending and future risk

39.     Paragraph 8.1.2(2)(b) of Direction No. 90 requires the Tribunal to have regard to the likelihood of the person engaging in further criminal conduct, including evidence of re-offending and rehabilitation.

40.     The Tribunal notes that the Applicant has been convicted on only two occasions of offences, both of which are drug-related offending with a commercial aspect. The Respondent has set out, in appropriate detail, facts in relation to that offending. The facts as they appear are not the subject of controversy from the Applicant and are reproduced below.

41.     On 4 April 2016, the applicant was convicted in the Downing Centre District Court of Cultivate prohibited plant >= commercial quantity-cannabis-SI, Take part supply prohibited drug >= commercial quantity-SI and Goods in personal custody suspected being stolen (notm/v). The applicant was sentenced to 10 months of imprisonment, suspended on entering a bond: GD 31. The NSW Police Facts Sheet relevantly stated (GD 50-53):

(a)Police attended a house in Ryde finding 69 cannabis plants, 66.4816 kilograms of cannabis leaf and a hydroponic operation relying on electricity drawn from the grid by bypassing the electricity meter.

(b)From April 2015, the applicant attended the property 2-3 times a week to water the Cannabis plants for payment of $1000 per week.

42.     On 25 June 2019, the applicant was convicted in the Perth District Court of Western Australia of two counts of Cultivate a prohibited plant with intent to sell or supply and sentenced to concurrent 15 and 16 months of imprisonment: GD 30-31. The sentencing remarks of Judge Lemonis relevantly stated:

(a)Police executed a warrant to search a house in Meadow Springs finding 162 cannabis plants and an elaborate hydroponic cannabis growing operation. There were electrical cables sticking out of the ground at the front of the house. The applicant’s fingerprint was located on the toilet door of the premises.

(b)Police executed a warrant to search a house in Mandurah finding 195 cannabis plants and 20.27 kilograms of cannabis in vacuum sealed bags. Western Power confirmed that the power had been bypassed to the premises. The applicant’s fingerprint was located on the front door of the premises and also on the side of a biscuit wrapper on the kitchen bench.

(c)The applicant provided security for the cultivation. The security was provided accompanying a co-offender on each occasion. The applicant’s co-offender was his cousin.

(d)The applicant was paid for his role, but what the payment was is unknown.

43.     The Applicant submits, amongst other things, that although the offences are objectively serious in nature given the large amount of cannabis involved in each case, that the Applicant’s role in each case was subsidiary and that he was not the primary offender in the first set of offences. Furthermore, with regard to the second set of offences, he should be regarded as ‘being at the lower level’ and as ‘an aider’ as he was regarded in that light by the Learned Sentencing Judge.

44.     The Tribunal recognises the force of the Applicant’s submissions and are discussed in greater length below.

45.     At law, the Applicant, according to the parties provisions of the West Australian Criminal Code in relation to the second set of offences, is properly regarded as an “aider”. The Applicant was not the principal offender. Nonetheless, the role played by the Applicant in that series of offences, and indeed in the first series of offences, was integral, substantial and necessary for the criminal schemes to succeed. Furthermore, there is evidence that the Applicant received, on both occasions, some form of payment.

46.     The Applicant gave oral evidence during the course of the hearing before the Tribunal. There are some aspects of that evidence which are relevant to analyse.

47.     In relation to the cultivation offences in New South Wales in 2015, the Applicant accepted that he was paid $1,000 per week to tend the plants. The Applicant’s evidence was that throughout the entire period of his association with the cannabis plants, he did not appreciate that they were cannabis plants or that they were plants which were illegal and further, that he did not appreciate his activity was contrary to law. The Tribunal accepts that the Applicant came to Australia when he was approximately 21 years of age and had come from a sheltered rural community. Nonetheless, the Tribunal does not accept the Applicant’s evidence that it was not until he was arrested in relation to the New South Wales offences that he appreciated that the plants which he tended were an illegal substance.

48.     In the Tribunal’s opinion, the Applicant’s evidence on this topic cannot be accepted. It is inherently improbable that the Applicant did not appreciate, if not the full extent of his illegal activity then, at least, appreciated to an extent that he was carrying on an illegal activity of some dimension. This finding, therefore, on the Applicant’s evidence on oath, puts into doubt other aspects of the Applicant’s evidence where he asks the Tribunal to accept his assertions that he will stay away from drugs in the future.

49.     That is not to say that the Tribunal will act other than on the evidence which was before the New South Wales District Court and the West Australian District Court in relation to the facts of the matter dealt with by those Courts.

50.     Submissions have been made by the Applicant as to the facts upon which this Tribunal should act. The Tribunal accepts the submissions made by the Applicant that the Applicant should be considered by this Tribunal to have done no more than the factual basis upon which the Applicant was sentenced, in each case, in the respective states.

51.     It is, however, relevant to note the seriousness of the conduct which the Applicant involved himself in in relation to each of the offences, not only in New South Wales but two separate offences in Western Australia.

52.     In that case, it was said by the Learned Sentencing Judge that the Applicant provided security for the cultivation and that that security was provided by accompanying a co-offender on each occasion. From the presence of fingerprints in the houses, the Applicant entered the house and ‘it must have been obvious to you that a large scale cannabis operation was being conducted. Also, you were paid for your role but what that payment was is unknown’.

53.     The Applicant supplemented evidence on that topic by saying that he was paid a cleaning fee on a one-off basis of $500. That is the type of evidence the Tribunal considers should be regarded with a degree of circumspection because of the finding referred to above in relation to the Applicant’s knowledge in respect of the first series of offences in New South Wales.

54.     Furthermore, the Learned Sentencing Judge said that considering the commercial and sophisticated nature of the cultivation and that by entering the premises, the Applicant must have been aware that it was a commercial-style operation.

55.     Despite submissions to the contrary, the actual involvement of the Applicant, in terms of his real and practical criminality, is not minimal, in the Tribunal’s view. Reference has been made to the Tribunal’s view of the actual involvement of the Applicant and its practical consequences in terms of the criminal operation elsewhere in this decision.

56.     An issue arose during the course of the hearing which caused some confusion but was ultimately resolved. That matter concerned the Applicant being apprehended by police on 6 March 2022 when it was alleged he was found in possession of about 200 grams of cannabis. Eventually in evidence, the Applicant admitted that he had been dealt with for that offence and therefore accepts his commission of that offence.

57.     The result was a fine in respect to that offence on 30 March 2022.

58.     Impassioned submissions were made by the Applicant’s legal representative to the effect that this set of circumstances and conviction and fine should play little or no role in the Tribunal’s overall consideration of the matter. The Tribunal rejects this submission.

59.     The objective facts disclose that, at a time when the Applicant’s request for a visa to remain in Australia was being considered and within a very short time of the hearing of this matter before this Tribunal, the Applicant committed a drug-related offence. The drug in respect of which the offence was committed was the same drug for which he was charged with cultivation offences in 2015 and 2017. It is obvious that the offence in March 2022 was not a cultivation offence. However, there are other highly relevant factors that cause the Tribunal considerable concern in relation, amongst other things, to the likelihood of the Applicant continuing to commit offences and, in fact, drug-related offences in the future.

60.     The Applicant said that he had possession of the cannabis to make a solution to assist him to sleep. Having regard to the view the Tribunal has formed as to the Applicant’s credibility referred to above, the Tribunal is not prepared to accept that explanation.

61.     The Applicant attempted to minimise his involvement in the New South Wales offences of 2015 by saying, in evidence, that he did not appreciate or have knowledge that he was tending an illegal crop. That minimisation, the Tribunal finds, affects the evidence in respect of which the Applicant gave concerning his possession of the drug on 6 March 2022. It clearly is a quantity that is not commercial but the use to which the Applicant said he was intending to put the cannabis, is not accepted by the Tribunal.

62.     It is possible to infer in relation to the offence committed on 6 March 2022 that if the Applicant did not grow the cannabis himself, then he associated with those who provided the cannabis to him, which offence is an offence of supply. It is therefore possible to further infer that the Applicant continues to associate with those who use and perhaps deal in drugs, most likely cannabis. The Tribunal concludes that the Applicant does, in fact, continue such associations.

63.     On a broader consideration of the offence committed by the Applicant on 6 March 2022 of possession of cannabis, the Tribunal is satisfied that this is clearly indicative of the Applicant who is prepared to continue to commit offences which are drug offences. Furthermore, in circumstances so proximate to his hearing, which is calculated to have such a permanent effect on his life, the Applicant has demonstrated a willingness to continue to commit criminal offences in respect of the use of drugs, in this case, by possession of the same drug as in the past convictions in 2015 and 2017.

64.     Not only, therefore, does the Tribunal consider that the second offences in Western Australia demonstrate a complete and continuing disregard for the laws of Australia and the Applicant’s attitude by that disregard, but a third offence committed in relation to the same drug by means of such possession clearly demonstrates a further and continuing complete disregard and contempt for the laws of Australia.

65.     In the Applicant’s favour, the Applicant appears motivated, and the Tribunal is prepared to accept, that he will look for employment and because of his particular interest in tiling, the Applicant is likely to obtain some form of employment either in that field or perhaps as a farm labourer. Such employment, the Tribunal recognises, would act as a protective factor against the likelihood of future offending.

66.     Together with the consideration of the level of the Applicant’s offending, which the Tribunal regards as serious involvement in the drug cultivation schemes, the Tribunal also recognises that the Applicant was in Australia for part of the time without a visa and by 2016, the Applicant had a right to remain in Australia by virtue of a Bridging visa granted in February 2016. Given those circumstances, the Applicant offended not only in 2015 but the Tribunal regards seriously the second set of offences in 2017 against the background of his relatively tenuous connection to Australia at that time. It may be inferred that the Applicant has little regard for the fact that he had Australian children born in 2014 and 2016 by the time he committed the second set of offences.

67.     A realistic view taken of the Applicant’s re-offending in 2017 and the fact that he was on a bridging visa, which the Tribunal infers must have be known to the Applicant to be a somewhat temporary situation of living in Australia, all lead to a conclusion that the Applicant’s offending should be regarded as particularly serious, and showing a complete disregard for Australian laws. The Tribunal has formed this view even taking into account the fact that the drug offending was related to cannabis sativa, a lower level drug of use in the community.

68.     As to the risk of future offending, there is strong evidence, having regard to the Applicant’s background of offending, that it may be inferred, because of that past offending, that the Applicant is likely to offend in the future. There is no convincing evidence before the Tribunal, in its opinion, that the Applicant will actually be capable of resisting offending in the future.

69.     As to the question of risk of re-offending, statements made by Community Corrections Officer, Webb, and the psychologist, Green, the Tribunal finds are unhelpful and, in fact, positively work against submissions that the Applicant will not re-offend. In 2016, both Webb and Green expressed the opinions that the Applicant was a low risk of re-offending. That proved not to be the case. Furthermore, those opinions can no longer be regarded as contemporary or helpful.

70.     The Tribunal finds no convincing evidence of practical rehabilitation on the part of the Applicant.

71.     The Tribunal recognises that the Applicant now fully appreciates that, were he to remain in Australia, he would be deported in the future should he offend and that would have an extreme impact on his wife and children. The Tribunal accepts that the Applicant now has a keen understanding of the issues which would face him in the future. Furthermore, the Applicant now has a greater appreciation of the need to refrain from offending because of the love that he has for his wife and children.

72.     Even though that is so, and the Tribunal takes that into account, the powerful evidence of the Applicant’s past offending and the fact that he had a wife and two children by the time he committed the 2017 offences, in the Tribunal’s opinion, indicates that the Applicant is a real risk of once again re-offending and probably offending in relation to drug-related matters which, in turn, are likely to be or have a commercial aspect.

73.     The Applicant has committed very serious offences. The Applicant, in the Tribunal’s opinion, has behaved in such a way since 2015, that the real likelihood is that he will continue to commit offences in Australia; that those offences will be drug-related offences most likely in relation to cannabis and that, that offending has the potential to affect other members of Australian society.

74.     The risk to the Australian community of allowing the prospect of future offending in relation to drug-related matters that may be commercially oriented is a significant and dangerous risk.

75.     Overall, the Tribunal regards this consideration as weighing particularly heavily against the Applicant.

Primary Consideration 2 – Family violence committed by the non-citizen

76.     Paragraph 8.2(1) of Direction No. 90 provides that 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 are proportionate to the seriousness of the family violence engaged in by the non-citizen.

77.     Paragraph 4(1) defines family violence to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful’ (emphasis in original).

78.     Primary Consideration 2 is relevant in circumstances where (paragraph 8.2(2)):

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 (sub-paragraph 8.2(2)(a)); 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 has been afforded procedural fairness (sub-paragraph 8.2(2)(b)).

79.     Paragraph 8.2(3) of Direction No. 90 provides that, in considering the seriousness of 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 in increasing seriousness (sub-paragraph 8.2(3)(a));

b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.2(3)(b));

c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.2(3)(c)):

(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));

(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));

(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); 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 (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.2(3)(d)).

80.     There is no evidence to indicate that this consideration is relevant to this review.

Primary Consideration 3 – Best interests of minor children in Australia

81.     Paragraph 8.3(1) of Direction No. 90 provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision.

82.     This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made (sub-paragraph 8.3(2)).

83.     Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.

84.     Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:

a)the nature and duration of the relationship between the child and Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));

b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));

c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));

d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways  (sub-paragraph 8.3(4)(d));

e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));

f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));

g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and

h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).

85.     The Applicant and his wife, who married in 2014, have a son, J, born in that year and daughter, L, born in 2016.

86.     The Applicant submits that this consideration should be recognised as an issue of the highest order in this case. The Tribunal accepts this submission.

87.     There is nothing in the evidence to suggest that the Applicant does not have a deep love and affection for his children.

88.     Although it is not irrelevant that the Applicant has not been able to spend a great deal of time in a domestic relationship with his children because he has been in custody, nonetheless, the Tribunal considers that this matter carries insignificant weight, overall, in this consideration.

89.     A further matter relevant to this consideration and which, on balance, weighs in the Applicant’s favour, is that the wife says she will not follow with the children, to Vietnam, should the Applicant be deported.

90.     Furthermore, as is often submitted in these cases that the children may be able to have some contact with their father by electronic means and via social media should he be returned to Vietnam, this is far from ideal and certainly not, in the Tribunal’s view, in the best interests of the children. The children, in this case, in their best interests, would have their father living with them or be able to have access and contact with their father on a permanent basis.

91.     In the tribunal’s opinion, in the children’s best interests in this case, this consideration weighs strongly in the Applicant’s favour and in favour of granting a visa.

Primary Consideration 4 – Expectations of the Australian community

92.     Paragraph 8.4(1) of Direction No. 90 provides as follows:

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 not to allow such a non- citizen to enter or remain in Australia.

93.     Paragraph 8.4(2) also provides that it may be appropriate simply because the nature of the character concerns or offences is 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.

94.     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 (sub- paragraph 8.4(3)).

95.     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 (sub-paragraph 8.4(4)).

96.     This consideration has been the subject of extensive judicial discussion and ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185). Although these principles are discussed in relation to the former Direction No. 79, those principles are not relevantly different in principle with respect to Direction No. 90.

97.     It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the ‘norm’ stipulated in Direction No. 90 at 13.3(1). per Stewart J and Charlesworth J (93); (100 to 104); (68).

98.     Accordingly, because of the Applicant’s criminal behaviour, particularly in relation to his drug offending, this consideration must count against the Applicant. Furthermore, although there are matters in the Applicant’s favour which would tend at first blush to ameliorate the operation of this consideration, the Tribunal considers substantial weight should be accorded this consideration because of the nature and extent of the Applicant’s drug offending discussed elsewhere in this decision.

OTHER CONSIDERATIONS

99.     A decision-maker must also take into account Other Considerations where relevant. These considerations include (but are not limited to) (paragraph 9(1) Direction No. 90):

a)international non-refoulement obligations;

b)extent of impediments if removed;

c)impact on victims;

d)links to the Australian community, including:

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

(ii)impact on Australian business interests.

International non-refoulement obligations

100.    The considerations at paragraph 9.1 of Direction No. 90 include (but are not limited to):

(1)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 Convention and Protocol non-refoulement obligations.

(2)In making a decision under s 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.

(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa.

(4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa in a request to revoke the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

(5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.

(6)It may not be possible at the section 501/section 501CA stage to consider non­refoulement 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 non­refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

(7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non­citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.

(8)If, however, the refusal, cancellation or non-revocation decision is regarding 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). In these circumstances, decision-makers should seek an assessment of Australia's international non­refoulement obligations.

101.    Relevant principles were stated recently by the High Court in plaintiff M1 2022 HCA etc. The parties provided, at the Tribunal’s request in order to comply with those principles and statements, documents which related to the issues raised by the Applicant under International non-refoulement obligations considerations and associated matters in order for the Tribunal to determine this application in an appropriate and legally appropriate manner.

102.    Those documents requested by the Tribunal by direction on 8 July 2022 now form part of the record and marked Exhibit A in these proceedings and have been taken into account by the Tribunal in its assessment of this consideration and where relevant, within other considerations, including the Extent of impediments if removed, also required under Direction No. 90.

103.    The Respondent has noted at paragraph 41 of its Statement of Facts, Issues and Contentions, the following non-contentious facts in relation to this matter:

104.    The applicant claims that he travelled to Australia to train with the coach of the Vietnamese rowing team. The training camp lasted for a month. The applicant then decided to remain in Australia to travel. He spoke to his mother on the telephone and she informed him that he had been reported on in the Vietnamese news as an absconder and that the Vietnamese authorities were searching for him. When in Vietnam the applicant had seen documentary footage about Vietnamese authorities beating refugees. He was fearful and remained in Australia. The applicant claims returning him to Vietnam would be tantamount to sending him to a torture cell: GD 57- 58, 106-107.

105.    The Applicant’s submissions were originally, in part, as follows:

106.    The applicant fears that he will be punished by the Vietnamese authorities because he absconded from the rowing crew in 2012. While this is unlikely to give rise to a claim for refugee status, it does raise the possibility that he will face harsh punishment upon return to Vietnam, which would give rise to international non-refoulement obligations, pursuant to the International Covenant on Civil and Political Rights. This may also cause impediments to the applicant if removed to Vietnam.

107.    It is helpful to recount submissions by both the Applicant and Respondent in Exhibit A in these proceedings on this consideration.

108.    The Respondent made the following submissions which are in accordance with evidence before the Tribunal.

109.    David Green, psychologist, stated in his report dated 27 March 2016 (Section 501G Documents (GD) 58) at [29]-[35] that:

When the training camp finished Mr Nguyen decided he wanted to see more of Australia. It was his intention to spend a couple of days looking at Sydney and then return to

Vietnam. “I wanted to find out more about Australia. I decided to look around and find out more about the big city.”

He called his mother by telephone from Sydney and she told him that it had been reported on the Vietnamese news that he had absconded from the training camp and the Vietnamese authorities were searching for him. His absconding was highly placed on Vietnamese news.

Whilst in Vietnam Mr Nguyen had seen documentary footage of refugees being arrested by police. The refugees had been beaten and placed in refugee camps.

Mr Nguyen said he became fearful when he recalled the documentary footage. He decided not to return to Vietnam and to try to stay in Australia.

I asked Mr Nguyen, if he had seen such footage, why had he made the decision to visit Sydney rather than return directly to Vietnam.

He said, "I never thought I would become a fugitive. I took a few days extra to look around and then I was going back to Vietnam, and then the situation was not as I thought. I am quite naive. I am from a small rural area and had been in training camp in Hanoi. When I broke free from the training camp, I did not know a lot about life in general. I didn't realise that when I did that, I would be searched for by police."

Mr Nguyen went on, "I was scared and I wanted to go into hiding and avoid capture (by police). I didn't think much of it. I was scared I will be put in gaol and serve gaol time."

110.    Dr Green in his summary notes at [84] that the applicant ‘decided to stay in Australia for fear of returning to Vietnam’: GD 65.

111. The applicant in his statutory declaration dated 13 December 2019 adopted his childhood background as set out in the report of Mr Green: GD 107 at [3]. The applicant then stated as follows (GD 107 at [5]):

After completing the rowing training session that lasted one month. I wanted to see around Australia. But later I found on the media that I have been labelled as absconder in Vietnam. I was afraid and I did not go back to Vietnam. I could not speak English at all at that time. I had to rely on Vietnamese friends to explain things to me.

112. The applicant’s migration agent, Hunter Te, provided submissions dated 17 December 2019 in response to the notice of intention to consider refusal under s 501(1) of the Act. Mr Te summarises the claims in Mr Green’s report and made submissions as follows (GD 106 at [16]-[18]):

The report of David Green and most recently in the applicant’s statutory declaration, raises the issue of the harm that the applicant will face if he returns to Vietnam. In 2012, he was declared absconder in his country. He came to Australia on an official visit to get training for rowing. He was sent by the Government of Vietnam. After completing his training, the applicant stayed in Australia to see some Australian places. However, later he found that he would be subject to punishment if returned to Vietnam therefore he was forced to stay in Australia.

The human rights violations in Vietnam suggest that to send the applicant back to Vietnam would be tantamount to sending him in to a torture cell. Quite apart from any nonrefoulement obligation that Australia may owe to the applicant, he faces very real fear about what will happen should he forced to return to Vietnam.

The applicant was a star player. He was one of the best rowers in Vietnam and that was the reason he was selected to be in the squad who was to be trained in Australia. He won recognition in his country. He is not an ordinary person who would go back slip into the community to live a normal life.

113.    The Applicant accepts the facts contained in these paragraphs as an accurate summary of the evidence before the Tribunal that engages the Tribunal’s consideration on this topic.

114.    It is helpful to recount some of the submissions made by the Applicant in its supplementary outline contained in Exhibit A.

115. The applicant’s claim is that, if he is returned to Vietnam, he faces arrest by the authorities, beatings, and being placed in some form of detention (Green at G 58 [31], [35]), and that this would be “tantamount to sending him into a torture cell” (Submissions, G 106, [17]).

116.    The applicant (Statement of facts, issues and contentions at [17]) has conceded that his claim is unlikely to amount to persecution within the meaning of the Refugees Convention and s 36(2)(a) of the Migration Act 1958 (the Act). Depending on any further evidence from the applicant, it may amount to significant harm within the meaning of s 36(2)(aa) of the Act; namely, that the applicant will, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, face a real risk that of significant harm, defined in s 36(2A) of the Act to include:

(c)cruel or inhuman treatment or punishment; defined in s 5(1) of the Act as “an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person”; or “pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature”; and

(d)degrading treatment or punishment; defined in s 5(1) of the Act as “an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable”.

117.    The above formulation would amount to an international non-refoulement obligation given effect under the Act, and would therefore be a matter which could be deferred on the basis that it is open to the applicant to apply for a protection visa: Plaintiff M1/2021 and Minister for Home Affairs [2022] HCA 17 (Plaintiff M1) at [30] (Kiefel, Keane, Gordon and Steward JJ; Gageler J agreeing at [43]).

118.    However, it is contended that the applicant’s claim most approximates the prohibition on arbitrary arrest or detention in Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR), which states:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

Article 9(1) of the ICCPR is an unenacted international non-refoulement obligation. As such, it is not a mandatory relevant consideration under s 501CA(4) of the Act attracting judicial review for jurisdictional error: Plaintiff M1 at [29]. However, the Tribunal cannot ignore the claim made by the applicant (Plaintiff M1 at [23]). As the High Court said in Plaintiff M1 at [24], the Tribunal:

…must read, identify, understand and evaluate the representations…[T]he decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker.

119.    On the evidence, the Tribunal accepts that the Applicant overstayed his original visa and that by doing so, Vietnamese authorities were aware that he had failed to return and were prepared to search for him and this received media attention in Vietnam. The Tribunal is further prepared to accept that the Applicant was fearful of returning to Vietnam and this encouraged him to remain in Australia. The Tribunal accepts the Applicant’s claim that he was concerned about reprisals, including physical punishment should he return to Vietnam at the hands of Vietnamese authorities. Although this is the Applicant’s genuinely held belief, there is little objective evidence available, in the Tribunal’s opinion, to support this belief.

120.    The Tribunal, however, recognises that these fears and concerns are the result of an incident that occurred 10 years ago and there is no evidence with the effluxion of time that those original attitudes of the Vietnamese authorities would now be maintained. The concerns as to physical harm expressed by the Applicant are somewhat vague and not based on any substantiated material apart from the Applicant’s own genuine view of his circumstances.

121.    In a practical sense, the Applicant’s concerns are based on indirect information, some of which came from his mother which she, in turn, reported to the Applicant, and some of which was the Applicant’s own information which, he said, came from media reports concerning the behaviour of Vietnamese authorities. Those media reports were also indirect in the sense that the Applicant relied on what was reported in the media about the behaviour of Vietnamese authorities.

122.    The Tribunal accepts that the Applicant has a genuine concern for his safety in the way in which it has been expressed before the Tribunal. However, the bases for that concern are indirect and remote. There is no direct evidence as to Vietnamese authorities and their attitude specifically to the Applicant and his particular circumstances or, in a more general sense, as to the Vietnamese authorities likelihood of punishing the Applicant as a member of a class of persons who have refused to return to Vietnam and the extent of the punishment.

123.    Were it the case that the Applicant was liable to a punishment that was not excessive, unfair and one might suppose an ‘ordinary’ punishment consistent with international human rights, there could be no complaint, in the Tribunal’s opinion.

124.    On all the evidence, however, the concerns and allegations raised by the Applicant are so imprecise that the Tribunal does not consider it can act upon those concerns by the Applicant under this consideration. The Tribunal is of the opinion that it is best left to the Applicant to make an application for a protection visa. The Applicant is in a position to make such an application should he be refused the visa he seeks in this Tribunal.

125.    This consideration, therefore, has no weight in the Tribunal’s overall consideration of the Applicant’s application for review.

Extent of impediments if removed

126.    Paragraph 9.2(1) of Direction No. 90 provides:

(1)Decision-makers must consider the extent of any impediments that the non­citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a)     the non-citizen's age and health;

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

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

127.    At first blush, it may seem that the Applicant would have few problems being returned to Vietnam because many family members live there and he himself lived his first 21 years in that country. Nonetheless, the Tribunal recognises that there are factors relevant to this consideration in the Applicant’s favour.

128.    In this Applicant’s case, as in the case of many in the Applicant’s position, to return the Applicant to Vietnam after living in Australia for approximately 10 years would cause emotional, social and economic distress for him, particularly so in circumstances where his wife and children would remain in Australia and would be separated from them.

129.    Further, an important feature identified under International non-refoulement obligations but which has a real and practical effect under this consideration, are the Applicant’s concerns should he be returned to Vietnam as discussed above.

130.    Although there is a lack of satisfactory objective evidence, nonetheless, the Tribunal recognises the subjective concerns that the Applicant has expressed. The Tribunal considers those concerns expressed by the Applicant in a subjective sense to be real and genuinely felt concerns in that regard. Therefore, the Tribunal recognises those concerns, together with what has been referred to as general issues relating to impediments for this particular Applicant, as comprising a significant body of material that operates in the Applicant’s favour and gives real weight to this consideration in the Applicant’s favour.

Impact on victims

131.    Paragraph 9.3(1) of Direction No. 90 provides:

Decision-makers must consider the impact of the section 501 or 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…

132.    There is no evidence to indicate that this consideration is relevant to this review.

Links to the Australian community

133.    Reflecting the principles of Direction No. 90 at paragraph 5.2, decision-makers must have regard to Direction No. 90, paragraphs 9.4.1 to 9.4.2 provided below.

9.4.1.   The strength, nature and duration of ties to Australia

(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)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker 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)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

134.    The Applicant’s wife is an Australian citizen as are his two children. The Tribunal recognises that these factors alone without any sense of “double accounting” in relation to the children themselves are powerful matters in the Applicant’s favour in respect of this consideration. Furthermore, the Applicant has lived in Australia for over 10 years and it may be supposed that he has established, apart from close family, social links to Australia. The Applicant has worked and contributed to Australian society.

135.    The very fact that the Applicant’s wife and children reside in Australia and that he has a continuing strong relationship with them, which he expects will endure should he be released into the Australian community is, in the Tribunal’s opinion, a powerful consideration in the Applicant’s favour.

136.    The Applicant has extremely strong ties to Australia. His wife and children with whom he continues to have a satisfactory domestic relationship will continue to live in Australia should the Applicant be sent to Vietnam.

137.    The wife will be severely emotionally affected should the Applicant be returned to Vietnam. The wife has suffered emotional and financial privations when the Applicant was in prison. She will suffer greater distress, including emotional distress, should the Applicant be returned to Vietnam.

138.    The Tribunal recognises that this will be similar for his children and this aspect is discussed elsewhere, under the relevant consideration.

139.    This consideration weighs strongly in the Applicant’s favour for the granting of a visa.

9.4.2    Impact on Australian business interests

(3)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.

140.    There is no evidence to indicate that this consideration is relevant to this review.

CONCLUSION

141.    The Applicant’s case has presented the Tribunal with a particularly difficult decision in relation to the balancing of a number of considerations. The Tribunal recognises the powerful weight in the Applicant’s favour in relation to his minor children, supplemented with his links to Australia and other matters referred to in his favour.

142.    Ultimately, however, in the Tribunal’s opinion, the seriousness of his particular involvement in commercial drug cultivation and the real likelihood of continued offending in the future, leads the Tribunal to conclude that those factors outweigh the powerful considerations in the Applicant’s favour.

Order

143.    The decision under review is affirmed.

I certify that the preceding 143 (one hundred and forty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

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

Associate

Dated: 26 July 2022

Date of hearing:	13 July 2022
Solicitors for the Applicant:	Mr Nicolas Poynder, Fredrick Jorden Chambers Mr Stephen John, DNG Lawyers and Migration
Solicitors for the Respondent:	Ms Olivia Hicks, Australian Government Solicitor