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

Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5814 (21 December 2020)
Division:GENERAL DIVISION
File Number: 2020/6176
Re:Minh Tri Nguyen
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member R West
Date:21 December 2020
Place:Melbourne

The decision of a delegate of the Respondent made on 29 September 2020 is set aside and in substitution the mandatory cancellation of the Applicant’s Return (Residence) (Class BB) Subclass 155 – Five Year Resident Return visa is revoked under s 501CA of the Migration Act 1958 (Cth).
..........[sgd]..............................................................
Member R West
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of a minor child – expectations of the Australian community – other considerations – decision set aside.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Confiscation Act 1997 (Vic)
Crimes Act 1958 (Vic)
Drugs, Poisons and Controlled Substances Act 1981 (Vic)
Migration Act 1958 (Cth)
Sentencing Act 1991 (Vic)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Gordon and Minister for Immigration and Border Protection (Migration), Re [2018] AATA 39
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Steve v Minister for Immigration and Border Protection [2018] FCA 311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Direction No. 79 – Migration Act 1958 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – Part C
REASONS FOR DECISION
Member R West
21 December 2020
INTRODUCTION

In these proceedings, the Applicant seeks review of the decision of a delegate of the Respondent made on 29 September 2020 not to revoke the mandatory cancellation of his Return (Residence) (Class BB) Subclass 155 – Five Year Resident Return visa, which was cancelled on 6 March 2020 pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”).
An application for review of the delegate’s non-revocation decision was lodged with the Tribunal on 8 October 2020.
The Tribunal conducted a hearing of the application on 8 and 9 December 2020.
The hearing was conducted in the context of restrictions placed on the community in response to the COVID–19 pandemic. These restrictions necessitated that the hearing not be conducted in person. The Applicant and the Respondent each consented to the hearing proceeding on 8 and 9 December 2020 on the basis that it was conducted by audio/visual link. The Tribunal determined pursuant to s 33A of the Administrative Appeals Tribunal Act 1975 (AAT Act) that the matter be heard by audio/video link. At the time of the hearing the Applicant was imprisoned in the Fulham Correctional Centre. He participated in the hearing by teleconference from the Centre with the assistance of a Vietnamese interpreter. The Applicant was represented at the hearing by Mr Hugo Moodie of Counsel. The Respondent was represented by Mr Christopher Orchard, a solicitor.
BACKGROUND
The Applicant was born in 1977. He is a citizen of the Socialist Republic of Vietnam. He first arrived in Australia in 2008 on a student visa to undertake a bridging English course and to study bakery and cooking. When the institute in which he was enrolled ceased to operate, he remained in Australia.
Before arriving in Australia, the Applicant had married and had one child in Vietnam. He and his wife had a second child in May 2009, but later that year he and his wife divorced. The Applicant subsequently married again while in Australia and he was sponsored by his second wife to obtain a permanent resident visa in 2012. He and his second wife subsequently divorced.
In 2014 the Applicant's two children left Vietnam and joined the Applicant in Australia. The Applicant and his children lived with the Applicant's sister. In 2015 the Applicant's first wife came to Australia and she and the Applicant reconciled and they subsequently re-married. Their third child was born in Australia in December 2015.
In 2015 the Applicant purchased a house in Stawell which he leased to a tenant. In 2018, after the tenant had left, the Applicant, in concert with some associates, used the empty house to grow cannabis. In October 2018 the Applicant purchased a second house in Stawell in his wife's name which was also used for growing cannabis.
On 9 November 2018 the Applicant was arrested and charged with offences in relation to this cannabis growing operation.
The Applicant plead guilty and was convicted in the County Court of Victoria on 21 November 2019 of the following offences:
(a)Cultivating cannabis in a commercial quantity between 12 July and 14 November 2018;
(b)Theft of electricity from Energy Australia between 31 March 2016 and 11 November 2018; and
(c)Theft of electricity from Origin Energy between 19 October and 14 November 2018.
For these offences the Applicant was sentenced to a total combined sentence of five and a half years in prison with a minimum parole period of three years. He was also ordered to pay a total of $31,281.39 as restitution for the stolen electricity. One of his Stawell properties was the subject of automatic forfeiture under the Confiscation Act 1997 (Vic).
It was on the basis of this conviction that the Applicant's visa was cancelled.
LEGISLATIVE FRAMEWORK
Section 501CA(4) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation decision if it is satisfied that:
(a)the Applicant passes the character test as defined in s 501 of the Act; or
(b)there is another reason why the cancellation should be revoked.
The Applicant’s visa was cancelled under s 501(3A) of the Act as the delegate was satisfied that he did not pass the character test. Section 501(6)(a) provides that a person is deemed not to pass the character test if they have a substantial criminal record. Section 501(7)(c) provides that for the purpose of the character test a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Applicant does not dispute that he does not pass the character test in s 501(3A) of the Act.
Accordingly, the sole issue before the Tribunal in these proceedings is whether, under

s 501CA(4)(b)(ii), there is another reason why the mandatory cancellation should be revoked.
The existence or otherwise of ‘another reason’ should be established on the balance of probabilities.[1]
[1] Re Gordon v Minister for Immigration and Border Protection (Migration) [2018] AATA 39 at [57].
Direction 79
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the Tribunal must comply with the directions.[2]
[2] Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591.
In this case, Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction”), applies.
The Direction provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked. Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The relevant considerations in relation to the revocation of a cancellation decision are contained in Part C of the Direction. There are three Primary considerations set out in Paragraph 13 and Other considerations are set out in a non-exclusive list in Paragraph 14.
Subparagraphs 8(3) to (5) of the Direction provide:
(3)       Both primary and other considerations may weigh in favour of, or against,              refusal, cancellation of the visa, or whether or not to revoke a mandatory   cancellation of a visa.

(4)       Primary considerations should generally be given greater weight than the   other considerations.

(5)       One or more primary considerations may outweigh other primary    considerations.
The Direction sets out, in paragraph 6.3, principles which reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations. The principles in paragraph 6.3 provide a framework within which decision-makers should approach their task of deciding whether to revoke cancellation.
EVIDENCE
In conducting the review, the Tribunal has had regard to:
(a)the documents produced to the Tribunal by the Respondent pursuant to s 500(6F) of the Act, sequentially numbered from 1 to 313 (G Documents), and supplementary documents produced under summons and filed by the Respondent, sequentially numbered from 1 to 357 (SG Documents);
(b)the oral evidence of:
i.the Applicant;
ii.Dinh Duong Nguyen Huong;
iii.the Applicant’s 11-year-old son;
iv.Thi Thu Huong Tran;
v.Thi Thu Lan Nguyen; and
vi.Dr Michael King (psychologist).
(c)the witness statements of:
i.the Applicant – Exhibit A1;
ii.Dinh Duong Nguyen Huong – Exhibit A2;
iii.the Applicant’s 11-year-old son – Exhibit A3;
iv.Thi Thu Huong Tran – Exhibit A4;
v.Dr Michael King (psychologist) – Exhibit A5; and
vi.Thi Thu Lan Nguyen – Exhibit A6.
The Applicant
The Applicant gave evidence that he was born in South Vung Tau in Vietnam in 1977. He is the eldest of five siblings. He has two sisters and two brothers. One of his sisters, Thi Thu Lan Nguyen (Lan) is an Australian citizen and lives in Australia. His other siblings live in Vietnam.
The Applicant started a marketing degree at university in Ho Chi Minh City when he finished school, but he discontinued his studies after two years to return to assist his parents in their jewellery store business. He married Huong Dinh[3] (Huong) in 1999. Their first child, a daughter, was born in 2001.
[3] In giving evidence Ms Huong stated that her full married name is Dinh Duong Nguyen Huong.
In 2008 the Applicant arrived in Australia on a student visa to study bakery and cooking. He lived with his sister Lan. He completed a bridging course in English language, but the institute that provided the bakery and cookery course went out of business and the Applicant was unable to complete his studies. He stayed in Australia and worked a variety of jobs including strawberry picker, waiter, construction worker and as a process worker in a chicken processing plant.
He returned to Vietnam to visit his wife and daughter and during this time a second child, a son, was born in 2009. The Applicant and Huong divorced in 2009 and Huong and their two children remained in Vietnam.
The Applicant subsequently re-married in Australia in 2012. His second wife was a friend of Lan. She sponsored the Applicant and he was granted a permanent resident visa. In 2014 the couple divorced.
In 2014, with the agreement of Huong, the Applicant was joined in Australia by his two children, who were then 13 and five years old. The Applicant and the two children lived with Lan and her son (the Applicant’s nephew) in Lan’s house. The Applicant worked in a pet food factory, as a handyman and as a truck driver at this time.
In 2014 the Applicant badly injured his right hand in an industrial accident at the pet food factory. He lost the top of middle finger and underwent two operations. In his sworn witness statement, the Applicant claimed that he could not use his right hand in the same way because of the injury and that he found it hard to get other jobs when people saw his hand.[4] In his oral evidence the Applicant stated that his injury has now completely healed, he is capable of driving heavy vehicles, could perform heavy duties and return to work in an iron factory. The Applicant did not produce any medical evidence regarding his injury. The Applicant confirmed in his oral evidence that he received a lump sum of $50,000 compensation for his injury which he received after he entered prison.
[4] Exhibit A1 at [22]
When asked what he had done with the money the Applicant stated that it had been paid into his sister Lan’s bank account and that he could access it for his personal needs while in prison. Lan confirmed in her evidence to the Tribunal that the money had been used by the Applicant to pay his legal expenses incurred in relation to his criminal trial and his application to the Tribunal in the current matter.
In 2014 the Applicant paid for Huong to come to Australia as the children missed her. The Applicant and Huong reconciled and were remarried in June 2015. A third child, a son, was born in Australia in December 2015. Huong became a permanent resident and the family has lived in Australia since that time.
The Applicant gave evidence that his wife Huong experienced post-natal depression following the birth of their second son and had considerable difficulty coping with life in a new country, looking after a young baby and two young children. He also stated that his second son had health problems having suffered nerve damage to one of his legs which had caused his leg to atrophy.[5] He said that he assisted in the care of his second son by taking him to doctor’s appointments, administering massage and taking him swimming.
[5] Exhibit A1 at [25].
In November 2015 the Applicant purchased a property at Byrne Street, Stawell (Byrne St Property).[6] He claimed that he purchased the property because it was inexpensive and his friend said he would lease the house as he worked in Stawell and needed somewhere to live. The Applicant gave evidence that his friend returned to Vietnam in 2018 and the house fell empty. In his oral evidence the Applicant stated that he was having financial difficulties at the time and made this known to an associate, Mr Van Tung Le, with whom he had co-shared a house for a year or two in 2013/14. He said that Mr Le introduced him to an associate who proposed that the Applicant make available the Byrne St Property for the cultivation of cannabis. The Applicant said he agreed to this proposal because he was in financial difficulty. The Applicant stated in his sworn witness statement that his associates then began growing cannabis in the property.
[6] SG1 at p.117
Later in October 2018 the Applicant purchased another property at Stone Street, Stawell (Stone St Property) in Huong’s name[7] which was also used for the cultivation of cannabis.
[7] The contract of sale was entered into in June 2018 - SG1 at p.140
In his oral evidence the Applicant described his involvement in the cannabis growing operation. He said that he drove Mr Le to the properties several times each week and assisted him with carrying items such as chemicals and soil into the houses and cutting the plants. He insisted that Mr Le was the principal person responsible for the cultivation of the cannabis.
The Applicant was arrested on 9 November 2018 and charged with offences related to the cultivation of cannabis in commercial quantities and the theft of electricity from utilities to power the hydroponic system used to grow the cannabis.
Dinh Duong Nguyen Huong (wife)
Huong gave evidence to the Tribunal and provided a sworn witness statement. She stated that she met the Applicant in Vietnam when they were in high school and that they married in 1999. A daughter was born in 2001. She described the Applicant as a good father who spent a lot of time with his daughter. She said that she and the Applicant operated a small business in Vietnam supplying water, rice and gas to fishing boats.
In 2008 the Applicant went to Australia to study and she remained in Vietnam with her daughter. The Applicant returned to Vietnam to visit her and kept in regular contact with his daughter by phone. On one visit Huong and the Applicant conceived a child and their son who was born in May 2009. She stated that her relationship with the Applicant deteriorated over time and they were divorced in 2009. She said that notwithstanding the divorce the Applicant continued to keep up contact with the children and called them nearly every day. He also sent money to her to support the family and to pay for his daughter to have tutoring in maths and English.
In 2014, after the Applicant obtained permanent resident status, they agreed that the children would join the Applicant in Australia. Huong stated that she remained in Vietnam but she came to Australia in 2015 to see the children and her relationship with the Applicant was re-kindled and they re-married in June 2015. A third child, a son, was born in December 2015. She said that she had a difficult time after the birth of her third child and suffered post-natal depression. She said she found it difficult caring for the baby and the other two children. She also said that they had significant financial difficulties as the Applicant did not have regular employment following his hand injury.
She said that she was unaware of the Applicant’s involvement with the cannabis growing operation and was shocked when he was arrested.
She stated that since the Applicant has been imprisoned her daughter has been upset and has withdrawn from her nursing studies. She said that her first son has become withdrawn, stubborn and disobedient and has gained 20 kg and is morbidly obese. Her younger son has also exhibited behavioural problems and is suffering from muscular atrophy in his leg and requires frequent attendance at doctor’s appointments and treatment, such as physiotherapy exercises at home. She said that her own depression has got worse and she finds it very difficult to cope with the various demands of her children. She said that since 2016 she has worked in a nail salon approximately 18 hours per week at $20 per hour but is currently in receipt of JobKeeper payments because she has not been able to work due to the COVID restrictions. She said she also receives family tax benefits.
Thi Thu Huong Tran (mother)
The Applicant’s mother, Thi Thu, gave evidence that worrying about her son had made her blood pressure and heart problems worse and she often feels dizzy and suffers from headaches. She said she was extremely worried about the welfare of the Applicant’s family. She stated that Huong is not coping, and the children are suffering without the Applicant. She also stated that it would be very difficult for the Applicant if he is deported to Vietnam as it would be shameful and uncomfortable for him and his family if people learn of his crimes.
The first-born son
The Applicant’s son provided a witness statement to the Tribunal[8] and insisted that he be able to speak in support of his father. He said that he had visited his father in prison twice and had spoken to him by video call regularly. He stated that he was sad because his father was in prison and that it was hard on his mother and siblings without him. He said that he really wanted his father to stay in Australia so that he can help Huong and take us camping and do fun stuff with us.
[8] Exhibit A3
Thi Thu Lan Nguyen (sister)
The Applicant’s sister Lan stated that Huong is struggling and is very anxious and she recognises that she cannot look after the children by herself. She said that Huong’s mental health is as bad as when she had post-natal depression following the birth of her second son. She said she is worried about the Applicant’s daughter who has discontinued her studies and has become withdrawn and will not come out of her room. She said that the first son is unable to talk to his mother and he keeps to himself and plays video games all the time and is morbidly obese. She said that the younger son has special needs because of his muscular atrophy and cries almost every night because he misses his father. She said it would have a huge negative impact on Huong and the children if the Applicant is deported to Vietnam.

She confirmed that she provides some support to Huong but is very limited in what she is able to do. She said she brings the younger son home from child care each day, tries to encourage the first son to do his homework and sometimes looks after the children on the weekends, but otherwise she does not have the ability to provide any further assistance.
She said that her son, the nephew of the Applicant, was close to the Applicant and had gone with her when she visited the Applicant in prison.
She confirmed that the Applicant had arranged for his $50,000 workers compensation payment to be paid into her bank account and that she had applied all of the money to the payment of the Applicant’s legal expenses as he had directed. She also confirmed that she and the Applicant had agreed not to tell Huong about the payment because they were afraid that it would put pressure on her and make her more anxious.
She confirmed that her mother Thi Thu was 63 years old and has a heart condition and an anxiety disorder.
Dr Michael King (psychologist)
Dr King, a clinical psychologist, conducted an assessment of the members of the Applicant’s family based on a suite of standardised psychometric tests. Based on the results of those tests he offered an opinion on the psychological make up of each of the members of the family as they related to two questions:
(a)the effect of the Applicant’s deportation upon the welfare (particularly the mental health welfare) of his family;
(b)the question of the Applicant’s capacity to understand the serious nature of his actions (leading to his conviction) and his capacity (based upon cognitive and personality qualities) to provide a credible assurance relating to his re-offending potential.
The results of the tests are set out in Dr King’s report of 19 November 2020[9] and are not repeated in this decision. Dr King’s conclusions in relation to each of the family members can be summarised as follows:
(a)The Applicant’s Wife - Huong
There is a structure of “dependence” in the relationship between the Applicant and Huong. Huong is fundamentally incapable of acquiring the flexibility of approach necessary for managing the forthcoming difficulties of raising two children with significantly impaired social development and who are at the beginning of their school years, and of adolescence.
(b)The Applicant’s sons
Each child is assessed as having significant needs for additional support to assist his developmental pathway. The present age of the younger son (five years) is generally regarded as the watershed period as the child approaches the next phase of formal schooling. The age of the first son (11 years) places him at the highly socially vulnerable brink of adolescence. The permanent departure of the Applicant would deny them the additional support that the present evaluation indicates is needed.
(c)The Applicant’s Mother - Thi Thu
While she has ideals that are set on doing the “right thing”, she may have a major depressive disorder and she most certainly does not have the capacity to contribute significantly to the difficult task of managing and supporting the Applicant’s sons with their social difficulties.
[9] Exhibit A5
Dr King’s overall assessment of the Applicant was that there was no evidence of psychopathology. There was clear evidence of “normal” social understandings and his cognitive capability was around normal [10].
[10] Exhibit A5 at p.3
Dr King opined that the Applicant is aware of social norms and expectations and is generally “at least normal” overall in the quality known as “Social Cognition”. He is potentially capable of understanding the seriousness of his past actions and is capable of formulating a positive (non-recidivist) plan for the future.
In light of his conclusion that the Applicant’s wife and his mother were significantly limited in their capacity to manage complex situations that require flexible reasoning, Dr King opined that the Applicant was the only one in the family who had the cognitive capacity to genuinely contribute positively to the management of his sons’ presently impaired social development and to assist in the inevitable forthcoming social developmental difficulties.
In relation specifically to the risk of re-offending Dr King stated that the Applicant is now fully cognisant of the need to restrict his endeavours to achieve income generation to legal means which had been temporarily put to one side. Dr King concluded that the Applicant has the cognitive capability of adhering to his current intention of non-re-offending and is fully aware of the social requirements and of the consequences of any recidivism. He assessed him as falling in the category of a low risk of repeat offending.
Dr King noted, however, that the gulf between intention to rehabilitate and success can be difficult for a person emerging from custody. He recommended that the Applicant obtain appropriate support at the emotional level as well as the cognitive re-structuring level to ensure a positive post-custodial trajectory. Dr King acknowledged in his oral evidence that he was not aware that the Applicant had taken any such steps.
Dr King noted in his oral evidence that each of the Applicant’s sons scored just above the level necessary to attract support for student with disabilities from the education authorities and that this meant they would have a significant educational and social need for support but may not attract appropriate funding.
In his oral evidence, Dr King indicated that his conclusions, based on psychometric testing, had a high degree of coherence with the conclusions of the consultant psychologist, Mr Luke Armstrong, in his psychological reports on the family members dated 19 May, 22 May and 23 July 2020 which were derived from narrative evidence.[11]
[11] Mr Armstrong’s reports were made available to Dr King but not produced to the Tribunal.
Mr Luke Armstrong, consultant psychologist
Mr Armstrong was not called to give evidence, but his written reports were included in the G Documents.
He reported on 22 May 2020[12] in relation to Huong that:
Mrs Nguyen continues to present in my view with depressed mood and related symptoms consistent with a Depressive illness. Mrs Nguyen’s depressive condition has in my view also deteriorated with the prospect of her husband being permanently removed from Australia… Mrs Nguyen is struggling to cope with the demands of being a single parent carer.
[12] G12 at p.208
His assessment of the Applicant’s mother, Thi Thu, was summarised in his report of 19 May 2020[13] as follows:
…Ms Tran presents as an individual deeply affected by her son’s circumstances and the wider consequences of her son’s actions on the family unit… Ms Tran presents with features of an Adjustment Disorder with Depressed mood. My concern is that her condition will deteriorate significantly if her son is deported…
[13] G12 at p.214
Mr Armstrong’s assessment of the Applicant is summarised in his report of 23 July 2020[14] as:
Mr Nguyen presents with no history of developmental deviance, behavioural or related conduct problems. The key point is there is no evidence of generational deviance or criminal offending in your client or family history. Mr Nguyen’s development was generally unremarkable. As a consequence there would appear to be no vulnerability or manifestation of adult psychopathology. Specifically, there is no evidence of past criminal offending nor criminal priors. Of related significance is that I observed no evidence of entrenched criminal belief systems, making the circumstances of his offending, in my view, out of character and most probably a culmination of situational factors.
[14] G12 at p.222
PRIMARY CONSIDERATIONS
Paragraph 13 of the Direction provides for three primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)best interests of minor children in Australia affected by the decision; and
(c)expectations of the Australian community.
Protection of the Australian community
In considering whether the Applicant represents a risk to the Australian community, the Tribunal has had regard to the matters set out in paragraph 13.1 of Part C of the Direction. Paragraph 13.1(2) which requires decision-makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, the Direction requires that decision-makers have regard to the factors set out in paragraphs 13.1.1(1)(a)–(i).
Of those factors there is no evidence that the Applicant’s offending involved violent and/or sexual crimes, crimes of a violent nature against women or children or crimes against vulnerable members of the community or government representatives or officials. There was also no evidence that the Applicant had given false information to the Department of Immigration or that he had committed offences after being warned in writing, about the consequences of further offending. There is no evidence that the Applicant committed any crime while in detention.
Nevertheless, the nature of his offences, being significant theft and the commercial production of a prohibited substance, is serious as reflected in the substantial sentence imposed by the court.
The sentencing judge noted that the cultivation of cannabis involved was a sophisticated operation involving hydroponically grown crops at two locations utilising electrical bypasses. The total weight of the crops was 286 kg, well above the legislative commercial quantity threshold of 25 kg and above the large commercial threshold of 250kg. His Honour stated[15]:
38. Drug cultivation is a serious offence. This offending ran over a period of four months. An important aspect is the quantity or the level of it. Here, that is much beyond the commercial quantity threshold and, in weight, approaches closely a large commercial quantity. The maximum sentence for cultivation of a commercial quantity is 25 years.
39. Drug abuse is a recognised community problem. The expected profit from cultivation operations such as this is seen to be high.
40. In such circumstances, the sentencing considerations of deterrence, your moral culpability, the need for condemnation of what you did and proportionate of punishment of it are relevant. The sentencing purpose of general deterrence is particularly important.
41. There must be sentences of imprisonment of some significant length…..
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
[15] G4 at p.35
Paragraph 13.1.2 of the Direction states:
(1)      In considering the risk 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 available information and   evidence on the risk of the non-citizen re-offending (noting that   decisions should not be delayed in order for rehabilitative courses   to be undertaken).
Nature of the harm
The Tribunal is satisfied that should the Applicant engage in any further conduct of the kind for which he was convicted it has the potential to cause significant harm to members of the Australian community.
While the theft offences involve significant financial harm to the community the principal harm arising from the Applicant’s offending relates to the cultivation of large quantities of a prohibited substance for the purpose of commercial sale.
The Tribunal recognises that the use of cannabis is generally regarded as presenting a lesser risk of harm to the community than other prohibited drugs such as heroin, cocaine and methamphetamine. The Tribunal also recognises that the possession of small amounts of cannabis and its personal use have been decriminalised in some jurisdictions. However, that is not to say that cannabis is not a harmful drug. In Victorian law, it is categorised as a drug of dependence under the Drugs,Poisons and Controlled Substances Act 1981 (Vic) and using cannabis is an offence under s 75 of that Act. There are significant penalties for the cultivation and trafficking of cannabis in commercial quantities.
The harm to the Australian community resulting from commercial drug trafficking is not confined to the harm experienced by individual drug users. The conduct of large-scale criminal undertakings of the kind undertaken by the Applicant undermines the good order and cohesiveness of the community as a whole and causes a drain on the resources of the community, particularly in relation to policing and health services.
The Tribunal is satisfied that should the Applicant engage in any further conduct of the kind for which he was previously convicted, it has the potential to cause significant harm to the Australian community.
The likelihood of re-offending
The Tribunal notes that there are a number of indications in the evidence that point to a low risk that the Applicant will re-offend.
First, the professional assessment of Dr King is that the Applicant is a low risk of re-offending, based on objective psychometric testing and having regard to the similar narrative-based conclusions of Mr Armstrong.
Secondly, the Applicant pleaded guilty to the charges at his criminal trial and cooperated in the proceedings. The sentencing judge noted that the Applicant had no prior convictions and accepted that he had been of good character and had good prospects of rehabilitation[16].
[16] G4 at [43]
Thirdly, the Applicant has expressed remorse for his actions and in giving his evidence he displayed genuine regret for the consequences of his offending for his family and the community generally, claiming to have become aware of the harmful effects of drug abuse while in prison. The Applicant’s wife, mother and sister confirmed his remorse in their evidence.
Fourthly, the Tribunal accepts that the Applicant has a genuine love for his children, and they provide an incentive for him to avoid any further risk of incarceration or consequent deportation.
Fifthly, there is no evidence that the Applicant has any drug dependence or other substance abuse issues which may contribute to the risk of re-offending[17] and the Applicant has a clean record in prison[18] and has undertaken a number of rehabilitation courses.[19]
[17] See SG2 at p.337-345
[18] G16 at p.295
[19] SG2 at p. 335
Finally, the significant prison sentence imposed by the court and the threat of deportation have provided the Applicant with what Dr King described as a wake up call and can be expected to serve as a deterrent to his further offending if he is released into the community.
On the other hand, there are some aspects of the Applicant’s evidence which suggest that the risk may be greater than these factors would suggest.
A central claim of the Applicant in his evidence was that he was under financial pressure throughout his time in Australia. He gave evidence at the hearing that his first marriage to Huong failed in 2009 due to financial reasons because Huong was dissatisfied with the amount of money he was sending to her in Vietnam to support her and the children.[20] He stated that he lost his job in a sheet metal factory because of his hand injury in 2014 and found it difficult to get another job.[21] He described his financial circumstances in about 2014/15 in his sworn witness statement that he felt under immense financial pressure.[22] He claimed that his concern regarding his financial problems was the reason he agreed in 2018 to use his Stawell property for the growing of cannabis.[23]
[20] See also Exhibit A1 at [13]
[21] Exhibit A1 at [22]
[22] Exhibit A1 at [25]
[23] Exhibit A1 at [28]
As the Respondent pointed out in its final submissions, the Applicant’s motivation for his offending, namely his financial difficulties and the pressure he felt under to provide for his family, have not been overcome. In fact, they have been exacerbated by his conviction. He is subject to an order that he pay $31,281.39 as restitution for the stolen electricity, he has had to forfeit the Byrne St Property and he has used up his compensation payments to pay his legal expenses.
In addition, the Tribunal is concerned that the Applicant may not have been candid regarding his financial position and consequently his motivation for engaging in the cannabis cultivation scheme. In cross examination the Applicant confirmed that he had paid $315,000 for the Byrne St Property in 2015 and that he had expended approximately $50,000 on the deposit ($31,500), taxes and other costs associated with the sale. He claimed to have saved the money by living economically and working a number of jobs and accessing available overtime. This contradicts his claim that he worked irregularly and had difficulty obtaining employment because of his hand injury in 2014 and the evidence of Huong that from 2015 she earned about $360 per week[24] and the family was in deep financial difficulty. The Tribunal is not convinced that the Applicant was truthful in relation to his claim regarding the source of the $50,000, or that he was entirely candid in relation to the family’s allegedly dire financial position as at the time of the offences. The Tribunal notes that the Applicant was able to borrow the balance of the purchase price of the Byrne St Property in 2015, some $283,500. The DPP Summary of Prosecution Opening[25] notes that the Applicant was driving a Ford Territory vehicle at the time of his arrest in 2018 and his evidence to the Tribunal was that he was gambling on the poker machines up to that time. His movement records show that he travelled to Vietnam, in 2014, 2016 and 2018,[26] and he gave evidence that he paid for the fares for the children to join him in Australia in 2014[27] and for Huong to travel to Australia in 2015.[28] He or Huong were also able to borrow some $216,000 for the purchase of the Stone St Property in October 2018 and Huong was able to fund the deposit of $24,000 from the sale of her business in Vietnam and by borrowing from associates.
[24] Her evidence was that prior to COVID she worked 18 hours per week at $20 per hour.
[25] SG2 at p.351
[26] G14 at p.259
[27] Exhibit A1 at [18]
[28] Exhibit A1 at [23]
The Tribunal also notes that the Applicant has admitted significant dishonesty in relation to his dealings with his wife over financial matters. He claimed that he did not tell her about his involvement in the cannabis cultivation scheme, and she claimed not to know of it. She indicated that she was not aware of the Applicant’s gambling which he admitted continued up to his arrest. He also deliberately did not tell her about his workers compensation payment and effectively hid the money from her by having it paid to his sister’s bank account. This evidence indicates that the Applicant does not have an open relationship with his wife on key financial issues which he has claimed have been at the heart of his offending behaviour.
The Applicant also sought to downplay his involvement in the cannabis cultivation operations. He described his involvement to the Tribunal as being a driver and a helping hand to Mr Le who was the person principally responsible for the cultivation of the cannabis. The sentencing judge’s assessment of his role was more substantial than that of Mr Le. His Honour said:[29]
19…….I do not accept the lesser, somewhat exculpatory account put in your behalf.
20. This essentially amounted to little more than leasing the Byrne Street house to a person or persons you do not identify, and being Van Tung Le's driver. He was not licensed. Your benefit was payment of the mortgage for a period and some expenses.
21. You were more connected to the two crops than that.
22.You purchased the Byrne Street property in 2015, albeit not for the purpose of this offending and when more consistently employed.
23. In June 2018, a second house was purchased in your wife's name. Settlement was on 12 October. You played a prominent role in negotiation of purchase, payment of deposit and settlement. You also discussed with a neighbour the building of a higher fence. The house was not tenanted. The crop was established by the time of a police search on 14 November. There is no other sensible explanation but that the second house was purchased to enable the second crop.
24. Rejection of your explanation does not lead, without the proper evidentiary basis, to a finding that you were, for example, the principal entrepreneur. Further, your exposure, given the connection to both properties, tends to speak against that.
25. I am left with the finding that you were more seriously and significantly involved in these crops than you say…
[29] G4 at [19]-[25]

No doubt the Applicant regrets having gone to prison for his crimes and the effect of that on himself and his family. That is a natural reaction. However, the Applicant’s continued downplaying of his role in the cannabis cultivation scheme suggests that his level of remorse and willingness to accept responsibility for his actions may not be wholehearted.
Additionally, there is no evidence that the Applicant has made any plans to undertake the support at the emotional level as well as the cognitive re-structuring level recommended by Dr King to ensure a positive post-custodial trajectory.
Having regard to all of these matters the Tribunal is satisfied, on balance, that the risk of the Applicant re-offending is not high, but it is not convinced that the risk of re-offending can be ruled out. The financial drivers for his criminal conduct remain and there is not a high degree of stability in the Applicant’s personal circumstances which would engender confidence that he will not be led into further criminal offending. The Tribunal therefore concludes that there is a low but credible risk that the Applicant may re-offend.
The Tribunal finds that this aspect weighs against revoking the mandatory cancelation.
The best interests of minor children in Australia affected by the decision
Paragraph 13.2 of Part C of the Direction provides:
(1)       Decision-makers must make a determination about whether revocation is in   the best interests of the child.
(2)       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.
(3)       If there are two or more relevant children, the best interests of each child               should be given individual consideration to the extent that their interests   may differ.
(4)       In considering the best interests of the child, the following factors must be            considered where relevant:
a)        The nature and duration of the relationship between the child and   the non-citizen. Less weight should generally be given where the   relationship is non-parental, and/or there is no existing relationship   and/or there have been long periods of absence, or limited   meaningful contact (including whether an existing Court order   restricts contact);
b)        The extent to which the non-citizen is likely to play a positive    parental role in the future, taking into account the length of time until   the child turns 18, and including any Court orders relating to   parental access and care arrangements;
c)        The impact of the non-citizen’s prior conduct, and any likely future                conduct, and whether that conduct has, or will have a negative   impact on the child;
d)        The likely effect that any separation from the non-citizen would   have on the child, taking into account the child’s or non-citizen’s   ability to maintain contact in other ways;
e)        Whether there are other persons who already fulfil a parental role in             relation to the child;
f)         Any known views of the child (with those views being given due                    weight in accordance with the age and maturity of the child);
g)        Evidence that the non-citizen has abused or neglected the child in   any way, including physical, sexual and/or mental abuse or neglect;                    and
h)        Evidence that the child has suffered or experienced any physical or             emotional trauma arising from the non-citizen’s conduct.
In this case, the minor children identified by the Applicant whose interests might be affected by a decision not to revoke the cancellation of the Applicant’s visa are his two younger children and his nephew, the son of his sister Lan.
The first son was born in Vietnam in 2009 and moved to Australia in 2014. He is now 11 years old. The younger son was born in Australia in 2015 and is currently five years old. Dr King noted that the younger son is at what is generally regarded as the ‘watershed period’ as the child approaches formal schooling, and the first son is on the highly socially vulnerable brink of adolescence.
Both Lan and Huong gave evidence that both children were exhibiting behavioural problems and that the first son is withdrawn and morbidly obese. They also confirmed that the younger son is suffering from muscular atrophy in his leg which requires frequent visits to the doctors and physiotherapy treatment. Mr Luke Armstrong, consultant psychologist assessed the children in May 2020 as having complex developmental, behavioural and mental health difficulties.[30] Dr King assessed both children as having a significant educational and social need for support but, having scored just above the level necessary to attract support for student with disabilities, they may not attract appropriate funding.
[30] G12 at p.209
Huong confirmed in her evidence that she was suffering from depression and was struggling to cope with her role as a mother and carer for the children. She said that the children missed their father. This was echoed in the first son’s evidence to the Tribunal.
Dr King and Mr Armstrong both assessed Huong as struggling to cope with the demands of being a single parent carer and Mr Armstrong opined that if the Applicant is deported the family will collapse.[31]He stated:[32]
I strongly believe that Mr Nguyen is a critical family figure in the long term health, welfare, and financial security of this family.
[31] G12 at p.208
[32] G12 at p.209
Dr King’s view was similar. He stated that the Applicant was the only one in the family who had the cognitive capacity to genuinely contribute positively to the management of his sons’ presently impaired social development and to assist in their inevitable forthcoming social developmental difficulties.
The Respondent argued that the interests of the children should be given less weight because the Applicant had been separated from the children for long periods. The children have been cared for by Huong during these times and she can fulfill the parenting role. In addition, the Respondent argued that the Applicant would be able to maintain contact with his children from Vietnam.
The evidence shows that the Applicant was separated from the first son for approximately five years between 2009 and 2014 and both the first son and younger son have been separated from the Applicant since he entered prison on 9 November 2018. However, there was a four-year period between 2014 and November 2018 when the Applicant lived with both children and fulfilled his parental role. The Applicant gave convincing evidence that he loves his children and strongly desires to resume his role as a parent if released into the community. He has maintained contact with his children while in prison and based on the evidence of his wife, sister and mother he is a good father. Further, on the basis of the evidence of Dr King and Mr Armstrong the Tribunal is satisfied that Huong is not capable of dealing with the problems faced by the children as a sole parent and that the children need the constant physical presence of their father.
Accordingly, the Tribunal is satisfied that it is clearly in the best interests of the first son and younger son for the cancellation of the Applicant’s visa to be revoked. The best interests of minor children is a primary consideration and weighs strongly in favour of the revocation of the mandatory cancellation of the Applicant’s visa.
The Applicant’s sister Lan gave evidence that her son, the nephew, is close to the Applicant and has visited him in prison with her many times and speaks to him on the phone. She said that he is sad that the Applicant is in prison and often asks when he is coming home. The Tribunal accepts that it would be in the interests of the nephew to continue to have contact with the Applicant and that revocation would be in his best interests. However, as the Applicant is not expected to play any parenting role in relation to the nephew his interests carry less weight than the interests of the Applicant’s two minor children.
Expectations of the Australian community
Paragraph 13.3(1) of Part C of the Direction provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The majority of the Full Court of the Federal Court of Australia has explained that paragraph 11.3 which mirrors the wording of paragraph 13.3…should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused.[33]
[33] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75]-[76].
The Tribunal accepts that the Applicant has acted contrary to the expectations of the Australian community by committing serious criminal offences while in Australia. It is a primary consideration and weighs in favour of not revoking the Applicant’s visa cancellation.
OTHER CONSIDERATIONS
Paragraph 14 of Part C of the Direction requires that Other considerations be taken into account, where relevant.These considerations include (but are not limited to):
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed.
International non-refoulment obligations
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Paragraph 14.1 of Part C of the Direction sets out the principles to be applied in considering claims which may give rise to international non-refoulement obligations. In this case the Applicant has not raised any such claim.
The strength, nature and duration of ties
Paragraph 14.2 of Part C of the Direction provides:
(1)       The strength, nature and duration of ties to Australia. Reflecting the    principles at 6.3, 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, including the   effect of non-revocation on the non-citizen’s immediate family in   Australia (where those family members are Australian citizens,   permanent residents, or people who have a right to remain in   Australia indefinitely).
The Applicant arrived in Australia at the age of 31 in 2008. His offending began in 2018. He has made a modest contribution to the Australian community since his arrival. He has worked at a variety of jobs and supported his family over the period from 2014 to 2018. On the other hand, there is no evidence that the Applicant has rendered community service or otherwise contributed to the community beyond looking after his family. He has spent over two years in prison and is yet to complete his sentence.
The Applicant has strong family ties to Australia. His wife is a permanent resident and his three children live in Australia. His second son was born in Australia. His sister Lan is an Australian citizen and his nephew lives in Australia. The Applicant’s mother Thi Thu is a permanent resident. His wife may retain an interest in the Stone St Property but otherwise there is no evidence that the Applicant has any other social, financial or business ties to Australia.
On balance, the Tribunal is satisfied that by virtue of his family the Applicant has ties to Australia which weigh in favour of revocation, but the Tribunal gives this consideration less weight because of the limited positive contribution the Applicant has made to the Australian community.
Impact on Australian business interests
Having regard to paragraph 14.3(1) of Part C of the Direction, the Tribunal is satisfied that on the evidence in this case the revocation of the Applicant’s visa would not have an impact on Australian business and especially the delivery of a major project or an important service.
Impact of victims
There is no evidence before the Tribunal that a decision not to revoke the cancellation of the Applicant’s visa would have any impact on a victim of the Applicant’s criminal behaviour as contemplated by paragraph 14.4(1) of Part C of the Direction.
Extent of impediments if removed
Paragraph 14.5 of Part C of the Direction provides:
(1)       The extent of any impediments that the non-citizen may face if removed   from Australia to their home country, in establishing themselves and   maintaining basic living standards (in the context of what is generally   available to other citizens of that country), taking into account:
a)        The non-citizen’s age and health;
b)        Whether there are substantial language or cultural barriers; and
c)        Any social, medical and/or economic support available to them in   that country.
The Applicant is a citizen of Vietnam. He came to Australia at the age of 31. He has lived in Vietnam as an adult and as a child. He has partially completed a marketing degree at university in Ho Chi Minh City. He speaks fluent Vietnamese and has learned some English. He is generally in good health. The Applicant has experience in running a business in Vietnam, having worked in his parent’s jewellery shop and run his own business selling marine goods and supplies to fishing boats.
He has a sister and two brothers living in Vietnam. His sister Lan confirmed in her evidence that they would be prepared to provide him with somewhere to live when he first returned to Vietnam, although they are relatively poor and would be unable to support the Applicant in an ongoing sense.
The Applicant also has work experience from various jobs in Australia, including driving heavy vehicles. The Applicant’s evidence was that his hand injury has completely healed, and he is now able to perform heavy work and could drive a truck. Lan asserted in her evidence that the work of a truck driver in Vietnam is more strenuous than in Australia and the Applicant would not be able to do it because of his hand injury. The Tribunal rejects this assertion. It was made without medical evidence and is contrary to the Applicant’s own evidence. The Tribunal finds that the Applicant is fit to work as a truck driver in Vietnam.
The Applicant’s mother asserted that it would be very difficult and shameful for the Applicant and his family if he were to return to Vietnam because of his criminal conviction. She said he would not be able to find a job. The Tribunal accepts that the Applicant may have a social stigma in some circles because of his crimes, but in the absence of further evidence the Tribunal does not accept that his criminal record would prevent him from obtaining employment.
The Tribunal accepts that the Applicant would be likely to face some initial difficulties in establishing himself in Vietnam, although these may be somewhat ameliorated by the likely support of his siblings. The Tribunal is not satisfied that beyond the initial difficulties the Applicant would suffer impediments to establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of Vietnam.
This consideration does not weigh for or against revocation.
OTHER CONSIDERATIONS
Paragraph 14 of Part C of the Direction makes it clear that the list of Other considerations be taken into account is not exclusive and that the Tribunal in exercising its discretion under s 501CA(4)(b)(ii) of the Act may have regard to other factors.
In this case, a relevant consideration is the best interests of the adult family members of the Applicant’s immediate family, namely his wife Huong, his daughter and his mother Thi Thu.
The medical opinion of both Dr King and Mr Armstrong is that Huong is suffering depression and anxiety and struggling to cope with the demands of single parenthood. They each offered the strong opinion that the Applicant is the only person who has the capability to address the significant problems facing the family and to take the burden from Huong’s shoulders. The Tribunal is satisfied that it is clearly in the best interests of Huong that the Applicant remain in Australia.
In the case of Thi Thu, Dr King opined that she may have a major depressive disorder, although more tested was needed, but she was likely to experience separation-related grief should the Applicant be deported. Mr Armstrong diagnosed an adjustment disorder with depressed mood and expressed the concern that her condition will deteriorate significantly if her son is deported. On the basis of this evidence, the Tribunal accepts that Thi Thu would benefit from the Applicant remaining in Australia although the consideration in her case does not weigh as heavily as it does for Huong.
The Applicant’s adult daughter has been adversely affected by the Applicant’s imprisonment. Huong gave evidence that she is stressed and has discontinued her studies.[34] Lan gave evidence that she is withdrawn and won’t come out of her room.[35]The daughter did not give evidence and she was not assessed by Dr King or Mr Armstrong. The Tribunal accepts the evidence of Huong and Lan that the daughter has responded adversely to the Applicant’s imprisonment and it can reasonably be expected that his deportation would have a continuing negative impact on her. However, in the absence of any psychological assessment the Tribunal is reluctant to draw any firm conclusions regarding the nature and extend of the daughter’s psychological condition. Accordingly, the Tribunal accepts that her best interests are likely to be served by revocation, but it does not give this consideration substantial weight
[34] Exhibit A2
[35] Exhibit A6 at [16]
CONCLUSION
In Gaspar v Minister for Immigration and Border Protection,[36] North ACJ elaborated on how to approach the exercise of the discretion under s 501CA(4)(b)(ii):
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.
[36] (2016) 153 ALD 338 at [38].
In evaluating the weight to be given to each of the factors for or against revocation the Tribunal has had regard to the principles in paragraph 6.3 of the Direction which sets out the framework within which decision-makers should approach their task of deciding whether to revoke cancellation.
Factors against revocation
The Tribunal is satisfied that the Applicant’s criminal offending was serious and there is a low but credible risk that the Applicant may commit further offences of a serious nature or engage in other serious conduct if released into the Australian community. This represents a risk to the welfare of the Australian community.
The Applicant had resided in Australia for 10 years before his arrest and subsequent criminal convictions. The Direction principles suggest that the Australian community has a higher level of tolerance for offenders who have lived in the community for longer periods. The Applicant’s crimes were not of a violent of sexual nature for which the community would generally expect the person to forfeit the privilege of staying in, Australia. His crimes were also not so serious, that any risk of similar conduct in the future is unacceptable.

The risk of harm to the community is a primary consideration and weighs in favour of not revoking the cancellation of the Applicant’s visa. However, having regard to the limited risk of re-offending and the Direction principles the Tribunal is satisfied that only moderate weight should be given to this consideration.
The expectations of the Australian community are a primary consideration under Paragraph 13.1 of the Direction. The Applicant has acted contrary to the expectations of the Australian community by failing to obey Australian laws while in Australia and this consideration weighs in favour of not revoking the Applicant’s visa cancellation.
However, in assessing the overall question of whether there is another reason to revoke the cancellation of the Applicant’s visa, the Tribunal is not necessarily bound by the expectations of the Australian community. The Full Federal Court in FYBR v Minister for Home Affairs[37] stated:
The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so. The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion
[37] [2019] FCAFC 185 at [75]-[76].
The Court noted[38] that Paragraph 13.3(1) of Part C of the Direction:
…recognises that the government’s assessment of the expectations of the Australian community is that a non-citizen who has committed a serious offence should not be granted a visa. Strictly speaking, it is not correct to say that the expectation is one to which the Tribunal “must give effect”. The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do.
[38] Ibid at [79].
In considering whether or not to depart from the relative ascription of weight for which cl 8(4) “generally” provides the Tribunal is mindful of the nature and extent of the Applicant’s criminal offending. He was convicted of significant theft and cultivating a prohibited drug in commercial quantities. By so doing the Applicant demonstrated a willingness to become involved in a criminal undertaking for commercial gain and at the risk of injury to members of the community. This gives rise to legitimate character concerns but not to the extent that this consideration alone would lead the Australian community to expect that the person should not hold a visa.
Accordingly, because of these character concerns, the Tribunal attributes substantial weight to the expectations of the Australian community as reflected in Paragraph 13.3(1) of Part C of the Direction but acknowledges that it must be weighed against the other considerations in determining the issue before the Tribunal.
Factors in favour of revocation
The principal consideration weighing in favour of revocation is the best interests of the Applicant’s minor children. This is a primary consideration. For the reasons discussed more fully above, the circumstances of the Applicant’s two sons and the inability of the Applicant’s wife to deal with their considerable problems makes for a compelling case that the Applicant be able to remain in Australia to perform his role as parent and husband. The Tribunal gives strong weight to this consideration.
In addition, the nature and extent of the Applicant’s ties to Australia weigh in favour of revocation. His most important relationships are all in Australia. The ties he has to his wife, his three children, his mother, his sister and nephew are strong and enduring.
A further consideration in favour of revocation is the best interests of the Applicant’s adult family members in Australia. His wife Huong has mental health issues and is struggling to cope with her role as a sole parent. The Applicant’s eldest daughter has discontinued her studies and has become socially isolated and is experiencing psychological difficulties. The Applicant’s mother is in poor health. The evidence indicates that the Applicant could play a positive role in assisting each of these family members if he is able to remain in Australia. This consideration warrants significant weight.
Conclusion
In Suleiman v Minister for Immigration and Border Protection[39] Colvin J stated at [23]:
...Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[39] [2018] FCA 594.
Justice Colvin’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the Direction.
Weighing up each of these factors and taking account of the fact that the two factors against revocation are primary considerations, the Tribunal is satisfied, on balance, that there is another reason why the cancellation of the Applicant’s visa should be revoked. The limited risk of harm and qualified expectations of the Australian community are outweighed in this case by the clear interests of the minor children and other adult family members who would be significantly adversely affected if the Applicant were deported.
DECISION
The decision of the delegate of the Respondent made on 29 September 2020 is set aside and in substitution the mandatory cancellation of the Applicant’s Return (Residence) (Class BB) Subclass 155 – Five Year Resident Return visa is revoked under s 501CA of the Migration Act 1958 (Cth).

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

....................[sgd]....................................................
Associate
Dated: 21 December 2020

Dates of hearing: 8 & 9 December 2020

Counsel for the Applicant: Mr Hugo Moodie

Solicitors for the Applicant: Aila Rose Melasecca Barristers & Solicitors

Advocate for the Respondent: Mr Christopher Orchard

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 5814

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Dates of hearing:	8 & 9 December 2020
Counsel for the Applicant:	Mr Hugo Moodie
Solicitors for the Applicant:	Aila Rose Melasecca Barristers & Solicitors
Advocate for the Respondent:	Mr Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore Lawyers