Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 442

Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 442 (15 March 2022)
Division:GENERAL DIVISION
File Number: 2021/10247
Re:Van Vinh Nguyen
APPLICANT

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

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:15 March 2022
Place:Melbourne

The Tribunal sets aside the reviewable decision of 21 December 2021 and substitutes a decision that there is another reason to revoke the mandatory cancellation of the Applicant’s visa made on 20 January 2021.
......................[sgd] ..................................................
Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory visa cancellation – citizen of Vietnam – Class WE Subclass 050 Bridging (General) Visa – failure to pass good character test – cultivate cannabis – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 90 applied – decision set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Drugs, Poisons and Controlled Substances Act 1981 (Vic)
CASES
Ali v Minister for Home Affairs (2020) 278 FCR 627
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
De Pinho Neto and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3384
DOB18 v Minister for Home Affairs [2018] FCA 1523
DPP v Nguyen & Anor [2020] VCC
FYBR v Minister for Home Affairs [2020] HCA 056
FYBR v Minister for Home Affairs (2019) 272 FCR 454
GLD18 v Minister for Home Affairs [2020] FCAFC 2
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Murphy v Minister for Home Affairs [2018] FCA 1924
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Vu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2876
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
WAD 230/2014 v Minister for Immigration and Border Protection (2015) 148 ALD 117
XTRG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3378
YKSB v Minister for Home Affairs [2020] FCAFC 224
SECONDARY MATERIALS
Administrative Appeals Tribunal, Persons Giving Expert and Opinion Evidence Guideline < Criminal Intelligence Commission, Illicit Drug Data Report 2018-19 (September 2020)
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, Report (11 January 2022)
Department of Health, Commonwealth of Australia, National Drug Strategy 2017–2026
(18 September 2017)
Sentencing Advisory Council, ‘Imprisonment’ < FOR DECISION
Senior Member A. Nikolic AM CSC
15 March 2022

The Applicant, Mr Nguyen, seeks review of a decision by a delegate of the Respondent not to revoke the mandatory cancellation of his Class WE Subclass 050 Bridging (General) visa.
The hearing was held in the Tribunal’s Melbourne Registry on 9 and 10 March 2021. The Applicant was represented by Mr Ahmadzai, a solicitor from Crystal Migration. The Respondent was represented by Ms Ervin, a solicitor from Clayton Utz. The Applicant and his witnesses were assisted by an interpreter in the Vietnamese language.
For the following reasons, the Tribunal sets aside the reviewable decision and substitutes a decision that there is another reason to revoke the mandatory cancellation of the Applicant’s visa.
FACTS
The Applicant is a 27-year-old citizen of Vietnam[1] and one of six children. He completed high school in Vietnam and lawfully came to Australia on 14 January 2014 on a Student Visa.[2] He was 19 years of age on arrival and studied English.[3]
[1] Exhibit R1, 101.
[2] Ibid 348.
[3] Ibid 247.
The Applicant worked on farms as a fruit and vegetable picker and then as a chicken boner in a factory. He applied for a Protection Visa on 21 June 2016 stating that he feared harm if repatriated to Vietnam because of debt to a ‘loan shark’ and comparatively lesser employment and other life opportunities.[4]
[4] Exhibit R2.
In mid-2017 the Applicant met his current partner, Ms Dinh, who is an Australian citizen[5] of Vietnamese origin. Ms Dinh was previously married to another Vietnamese citizen and had a child from that relationship.[6]
[5] Exhibit R1, 111.
[6] Ibid 133.
The Applicant’s Protection Visa application was refused on 22 November 2017.[7] He appealed this decision to another Division of this Tribunal, but subsequently withdrew the application on 27 May 2021.[8]
[7] Exhibit R2.
[8] Exhibit R3.
The Applicant and Ms Dinh married on 8 December 2018.[9] On 4 February 2019 he applied for a Partner Visa and was granted a Bridging Visa while this was considered.[10]
[9] Exhibit R1, 470.
[10] Ibid 23; 280.
In approximately mid 2019 the Applicant agreed to tend a cannabis crop at a residential property. On 4 September 2019 he was arrested at this location with a co-offender.[11] Bail was denied, and he was placed on remand, where he served 260 days in pre-sentence detention.[12]
[11] Ibid 32; 398-402.
[12] Ibid 245; 401.
In February 2020, while the Applicant was in custody, Ms Dinh gave birth to their child.[13]
[13] Ibid 117.
The Applicant made several bail applications before being released on bail on 25 May 2020.[14] He remained in the community on conditional liberty until 2 December 2020, when he was convicted in the County Court of Victoria for cultivating a commercial quantity of cannabis.[15] He was sentenced as a ‘crop sitter’ and received 14 months’ imprisonment.[16] A co-offender, who recruited him, received an 18-month sentence of imprisonment.[17]
[14] Ibid 248 [18].
[15] Ibid 30.
[16] DPP v Nguyen [2020] VCC; Exhibit R1, 31-37.
[17] Exhibit R1, 32 [3].
On 20 January 2021 the Respondent mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (the Act).[18] The delegate invited the Applicant to make representations to have the cancellation decision revoked, which he submitted on 17 February 2021 through his legal representative.[19]
[18] Ibid 280-286.
[19] Ibid 40-81; 359.
The Applicant was released from prison on 28 April 2021[20] and was immediately taken into immigration detention where he has since remained.
[20] Ibid 453.
On 21 December 2021, a delegate of the Minister decided not to revoke the mandatory cancellation decision (non-revocation decision).[21] On 23 December 2021 the Applicant asked the Tribunal to review the non-revocation decision.[22]
[21] Ibid 8; 11.
[22] Ibid 1.
Under s 500(6L) of the Act, the Tribunal must decide this application within 84 days of the Applicant being properly notified of the non-revocation decision. That means these reasons must be provided by 15 March 2022, which is two working days after the hearing concluded.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and a person does not pass it if they have a ‘substantial criminal record’ as defined by s 501(7). This includes if they have been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act confers a discretionary power upon the Minister to revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
Ministerial Direction 90
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. On 8 March 2021, the Minister signed Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction). The Direction must be applied by all decision-makers (except for the Minister acting personally).[23]
[23] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to cls 8 and 9, where relevant to the decision.
Clause 8 of the Direction identifies as primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia;
(d)Expectations of the Australian community.
Clause 9 of the Direction sets out a non-exhaustive list of other considerations:
(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.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources.’
Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations.’ This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent weight of or greater weight than a primary consideration.[24]
[24] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations.’ The weighing process, however, is left to individual decision-makers.[25]
[25] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57].
ISSUE TO BE RESOLVED
It is common ground the Applicant fails the character test.[26] As such, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the reviewable decision. The issue to be determined is whether there is ‘another reason’ for revocation. This task was considered by the Full Court of the Australian Federal Court (FCAFC) in Viane:[27]
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
EVIDENCE
[26] Exhibit R1, 66.
[27] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
Documentary evidence
The following documents were tendered into evidence:
(a)Applicant’s Statutory Declaration dated 12 February 2022;[28]
(b)Statutory Declaration of Ms Thi Thanh Van Dinh dated 14 February 2022, with accompanying bank statement dated between November 2021 and January 2022;[29]
(c)Statutory Declaration of Mr Giap Duc Nguyen dated 13 February 2022;[30]
(d)Psychological report of Dr Ramony Chan dated 2 March 2022;[31]
(e)Psychological report of Linh Phan dated 15 December 2021;[32]
(f)Undated letter from a Manager / Supervisor of a labour hire company, offering the Applicant employment in a food processing factory in regional Victoria;[33]
(g)G-documents[34] from the Respondent numbering 506 pages;[35]
(h)Documents dated 22 November 2017 relating to the refusal of the Applicant’s Protection Visa application;[36]
(i)Documents dated 28 May 2021 relating to the withdrawal of the Applicant’s review application following refusal of his Protection Visa;[37] and
(j)Department of Foreign Affairs and Trade Country (DFAT) Country Information Report Vietnam dated 11 January 2022, which was tendered into evidence as a Tribunal document.[38]
[28] Exhibit A1.
[29] Exhibit A2.
[30] Exhibit A3.
[31] Exhibit A4.
[32] Exhibit A5.
[33] Exhibit A3.
[34] G documents are so named because they are provided under s 501G of the Migration Act. They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision. They usually accompany the Minister’s written notice regarding a visa cancellation, refusal, or non-revocation.
[35] Exhibit R1.
[36] Exhibit R2.
[37] Exhibit R3.
[38] Exhibit T1.
The Applicant, Ms Dinh, Mr Nguyen, and Dr Chan were called as witnesses.
Applicant’s evidence
The Applicant adopted his Statutory Declaration as true and correct. The Tribunal has also considered his previous Statutory Declaration dated 18 August 2021.[39]
[39] Exhibit R1, 95-97.
The Applicant said that, on arrival in Australia, he undertook approximately six months of English study before working on farms for nine months picking fruit and vegetables. He then trained for about a year as a chicken boner / slicer, before working permanently in that role. He travelled approximately two hours to attend work and enjoyed it, although this reduced the time he could spend with his family during the week. In approximately June 2019 he had to leave that job because his wife became unwell during her pregnancy and needed his support. That included with managing the needs of the Applicant’s stepson, who is diagnosed with Level 3 Autism Spectrum Disorder (Highest Severity), with accompanying language impairment, and Attention Deficit Hyperactivity Disorder (ADHD).[40]
[40] Exhibit A5.
It was in this context that the Applicant said his offending occurred. He was unemployed, Ms Dinh was expecting their child, he was struggling to financially, and his stepson had high care needs. He recalled feeling ‘helpless and hopeless’, during which a former work colleague approached him to tend cannabis plants, cook, and clean at a grow house. The Applicant admitted he was aware the plants were illegal upon first visiting the house but was drawn by the promise of between $150 and $200 a day. He claimed that he went to the grow house about 11 times over approximately three weeks before police raided the premises. His unchallenged evidence is that his co-offender promised to pay him at the ‘end of the job’ but apart from a ‘few hundred dollars’ borrowed from the co-offender, he had not been paid by the time of the police raid. The Applicant said he was not previously in trouble with the police and the shock of arrest, coupled with the potentially dire consequences for himself and his family, caused him to lie to police about his involvement. He subsequently disclosed the truth and pleaded guilty at the earliest opportunity.
The Applicant was asked about non-revocation submissions made on his behalf by a previous representative, in which it was stated he was ‘duped’ into involvement in the drug enterprise. The Applicant said he received poor representation from that person who he claimed had falsely claimed to be a lawyer. He admitted that he realised during the first visit to the crop house that this was an illegal cannabis enterprise. He agreed that he willingly participated to alleviate his family’s financial problems.
The Applicant said his wife struggled during his imprisonment and immigration detention. He could not attend the birth of their youngest child, who is now two years of age and has also been diagnosed with Autism and other developmental delays. The Applicant said his wife experiences significant daily challenges in caring for their children. His stepson attends a school specialising in autism and his daughter requires the support of psychologists and therapists to address speech and behavioural concerns. The Applicant said their eldest child has made some improvement after four years of therapy and support.

The Applicant became emotional when acknowledging that his criminal conduct resulted in his wife and children being left largely alone at a most difficult time. The Applicant said his wife undertakes some part-time work while the children attend school and treatment. He said their financial circumstances have only worsened because of his conduct and they have borrowed money from friends and family to get by. He estimated their total borrowings are in the region of $10,000. The Applicant said despite their troubles his wife has stood by him and visited him regularly with the children while he was imprisoned. After COVID restrictions hit they relied on frequent telephone and video calls.
The Applicant spoke about the love he has for his children, despite only the younger one being his biological child. He can deflect the older child’s anger and calm him when he becomes agitated, during which the child strikes himself and others. The Applicant wants to return to his family so he can alleviate the burden his wife has shouldered in his absence.
The Applicant speaks very little English but said he managed to do some vocational courses in English, cleaning, music, and as a kitchenhand while imprisoned. An employer he previously worked for has offered him employment if released, which he intends taking up.
The Applicant said he has not returned to Vietnam since arriving in Australia eight years ago. He has no other family in Australia, but his parents and siblings, who he remains close to, live close to each other in Vietnam. His siblings are all employed, and one travels between Vietnam and Singapore for work. The Applicant said he calls his parents regularly but his siblings less often. One of his wife’s sisters is in Australia studying and currently lives with her. The Applicant said if his family returned to Vietnam with him, his children would not receive the care they need, and their lives would be adversely affected. He said his wife had previously taken their son to Vietnam for a month in 2017 where she tried to get him some assistance within their own language and cultural setting, but the school was unable to cope with his needs. The Applicant said children with his son’s behavioural issues are disrespected and discriminated against due to a lack of understanding.
The Applicant was recalled to address an inconsistency between his evidence about an offer of work, and the employer’s evidence about that offer. During his evidence in chief the Applicant said the work location was only 25 minutes’ travel time away, which was easier than the past, where he travelled two hours each way to a regional location. The employer’s oral evidence, however, was that the job offer was two hours away at the Applicant’s past work location. After hearing from the Applicant, the Tribunal was satisfied he has received a genuine offer of work in the terms specified at Exhibit A6, at a regional location approximately two hours from Melbourne. The Tribunal accepts the evidence of the employer and Applicant that he is only required for shifts of shorter duration than the past, and will be provided with a transport solution from Melbourne, which will give him more time to assist his family.
Evidence of Applicant’s wife (Ms Dinh)
Ms Dinh adopted her Statutory Declaration as true and correct. The Tribunal has also considered her Statutory Declaration dated 19 August 2021.[41] Her oral evidence is summarised as follows:
(a)The Applicant loves their children and treats his stepson as his own. Despite the child’s high care needs, the Applicant taught him how to ride a bike, swim, and ‘they became like father and son’. Ms Dinh said she loves the Applicant, believes he has learned his lesson, and will not repeat his crime. She said he is a good man who does not drink, smoke, or go out too much. She believes her pressuring of him about financial problems when he first became unemployed, contributed to his bad decision to join the drug enterprise;
(b)Ms Dinh said her former partner left soon after their child was born, and except for occasional calls about three or four times a year to talk with their son, has not been a significant part of their lives. Her former partner pays approximately $50 each fortnight in child support as directed by the Child Support Registrar. She otherwise does some part-time work, supplemented by carer and family payments for her children. Because of financial pressures, she has borrowed money from her parents in Vietnam and friends in Australia;
(c)Ms Dinh said she works and studies approximately two or three days each week but must finish work by 2:00pm to coincide with the children’s after-school needs. Both children have an approved early intervention scheme funded under the NDIS, but a shortage of services means the youngest child is still on the waitlist for some approved care;
(d)Ms Dinh said an older sister is currently studying in Australia and lives with her. She said her sister provides limited support but is substantially committed to her studies. It is also difficult for her to interact with the children because of their behavioural issues and her unfamiliarity with how to respond to their needs;
(e)Because of the Applicant’s circumstances and their children’s high care needs, Ms Dinh said she often feels sad, depressed, stressed, and anxious, for which she sees a counsellor;
(f)Ms Dinh said she and the children could not relocate to Vietnam because of the disruption to their care arrangements in Australia, and belief that they will not get the support they need. This was understandably a very difficult moment in Ms Dinh’s evidence.
[41] Ibid 109-110.
When asked why she believed the Applicant would not make another bad decision if released, Ms Dinh said they had a plan to repay family and friends slowly, who had accepted gradual repayment of the monies loaned. She felt this would be manageable if both she and the Applicant were earning wages. She said the Applicant had learned a salutary lesson and would not engage in crime again. He would provide much-needed respite for her and understood that another offence would result in his immediate return to Vietnam.
Evidence of Mr Giap Duc Nguyen
Mr Nguyen adopted his statement as true and correct.[42] He met the Applicant in 2017 when they both worked in a factory and considers the Applicant and his family close friends. Mr Nguyen is aware of the Applicant’s offending and visa problems but has stood by him. He described the Applicant as a family man and good person, who took care of his stepson as if he was his own biological child. They had communicated with each other by telephone and social media during the Applicant’s time in custody. Mr Nguyen believes the Applicant is a good man who made a bad decision and deserves a second chance.
[42] Exhibit A3.
Evidence of Employer
Ms Trang Tran adopted her statement as true and correct.[43] She employs 14 people in a labour hire business servicing a factory in regional Victoria. She has known the Applicant and his family since 2017 and considers him to be an experienced and ‘excellent worker’. She said he is a ‘nice guy’ and never thought he would become involved in the cannabis growing enterprise. Despite his crime, she has offered him immediate full-time work upon release and believes he ‘deserves a chance’ to resume the life he had with his family. This would be at a factory about two hours from Melbourne between 5:00am and 1:00pm, five days per week on the award wage.
[43] Exhibit A6.
TRIBUNAL CONSIDERATION OF THE EVIDENCE
The Tribunal found the Applicant’s oral evidence to be generally forthright. This is notwithstanding that he lied to police after being arrested, which the Tribunal accepts was impulsive and resulted from the shock of arrest and fear of consequences. The Tribunal notes that the Applicant subsequently disclosed the truth and pleaded guilty at the earliest opportunity. The Applicant was also anxious and hesitant at times during the hearing and tried to put the best possible perspective on his evidence. His evidence was also heard through an interpreter, which can sometimes give rise to misunderstanding. Having observed the Applicant for an extended period in the witness box, however, the Tribunal is satisfied he is remorseful and contrite for his past conduct and for the awful consequences this has borne for Ms Dinh and their children. The Tribunal found the evidence of Ms Dinh, Mr Nguyen, and Ms Tran to be honest and forthright.
PRIMARY CONSIDERATIONS
Tribunal consideration: Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
(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. 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.
(2) 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.
Tribunal consideration: The nature and seriousness of the conduct
Clause 8.1.1(1) of the Direction states that in considering the non-citizen’s ‘criminal offending or other conduct to date’ decision-makers ‘must have regard to the following’:
(a)without limiting the range of conduct 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:
(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:
(i)    causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)   crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A 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 reoffended 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 Tribunal has considered the sentencing remarks of Judge Smallwood,[44] which are summarised as follows:
(a)The Applicant attempted to minimise his involvement during police interview, but eventually made admissions and pleaded guilty to one charge of cultivating a commercial quantity of a narcotic plant, which carries a maximum penalty of 25 years’ imprisonment; and
(b)His Honour described the Applicant’s offending as ‘serious’.[45]
[44] Exhibit R1, 31-37.
[45] Ibid 33.
It is submitted by Mr Ahmadzai that it ‘would be of a great detriment to Australia if Mr Nguyen had to depart Australia because of his visa cancellation’.[46] It is further submitted:
Mr. Nguyen did not commit any war crimes and did not commit any crimes such as those involving domestic violence. Mr. Nguyen acknowledges the seriousness of his actions and has demonstrated considerable remorse.[47]
[46] ASFIC 5.
[47] Ibid.
Ms Ervin submitted that the Applicant has engaged in serious conduct with the potential to cause serious harm to members of the Australian community. This was evidenced by the award of a sentence of imprisonment for a first-time offender, which is the most serious punishment available to the courts.
The Tribunal has considered an Australian Criminal Intelligence Commission report, which states cannabis is a depressant drug that causes short and long-term effects.[48] The provision of commercial quantities of cannabis into the Australian community has been the subject of previous commentary by the courts and this Tribunal. The Tribunal respectfully adopts the comments of Judge Bennett in the District Court of New South Wales, cited in Le and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3130 at [31]:
There is the populist view expressed by some that cannabis is a drug of little significance without the risk of much harm. I have been engaged in the practice of law for many years; as a judge for in excess of a decade. In the course of my life as a barrister I appeared in a number of Supreme Court murder trials and related proceedings and it is the fact that cannabis is a harmful drug. It leaves people prone to schizophrenia with a risk of the development of that disease. It opens the pathway to people without necessary self-control into the drug milieu. I have not I do not think ever seen the case where somebody addicted to heroin, cocaine or methylamphetamine did not begin their life as a drug user starting out with the misuse of cannabis, it is a dangerous drug, and those who urge otherwise are misguided.
[48] Australian Criminal Intelligence Commission, Illicit Drug Data Report 2018-19 (September 2020) < align="left">Tribunal findings: The nature and seriousness of the conduct
The Tribunal accepts that the Applicant has no prior criminal history and the conduct leading to his conviction was isolated and relatively short-lived. His role was that of an employee promised wages at a daily rate. He was supervised by a co-offender who recruited him and had a more significant role. That said, cultivation is an integral part of the trafficking process. If police had not intervened, this crop had the potential to cause significant harm to the community. Cannabis is often a pathway to more serious drugs and when used intensively or for prolonged periods, can lead to mental health conditions like schizophrenia and paranoia. Notwithstanding that the Applicant did not play a role in establishing the cannabis enterprise, his actions in tending the crop and assisting in its concealment, reflect a disregard for the welfare of the Australian community and the law.
Cultivation of a commercial quantity of a drug of dependence is an indictable offence under the Drugs, Poisons and Controlled Substances Act 1981 (Vic), and has a maximum sentence of 25 years’ imprisonment: s 72A. The Applicant’s sentence was significantly below the maximum available. Nevertheless, imprisonment is a sentence of last resort and the most severe sanction available in Victoria.[49] The Tribunal accepts Ms Ervin’s submission that the 14-month custodial sentence received by the Applicant as a first-time offender reflects the objective seriousness of his crime.
[49] See for example: Sentencing Advisory Council, ‘Imprisonment’ <
The Tribunal finds the Applicant engaged in serious offending.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction states:
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.
Clause 8.1.2(2) of the Direction states that in assessing the risk the non-citizen poses to the Australian community, decision-makers must take into account, 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 noncitizen 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).
This aspect of the Direction requires the Tribunal to assess the risk the Applicant poses to the Australian community in the event he reoffends, taking into consideration the nature of any harm and its probability. In Murphy v Minister for Home Affairs [2018] FCA 1924 at [37], Mortimer J reflected on this task as follows:
That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated.”
The High Court has held that past actions are legitimate predictors of future behaviour.[50] Katzmann J, in Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, similarly reasoned at [59] that the ‘risk of harm posed by the conduct in which the person has engaged in is obviously relevant to the risk…he might in the future engage in it.’
[50] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 578-579.
Judge Smallwood sentenced the Applicant as a ‘crop sitter’ and accepted that ‘appropriate remorse’ was shown through his early plea of guilt. His Honour considered the Applicant’s prospects of rehabilitation ‘should be good’ and his recidivism risk ‘should not be high’.
Reasons for offending and remorse
It is submitted by Mr Ahmadzai that:
Mr. Nguyen has a young family. He has strong prospects of employment. He has no substance abuse or health issues. also have no prior offending.
The references speak both applicant’s exemplary character and of his strong remorse for what has happened to the victim. And that the offence took place due to pressures of raising a family at a young age. He has since, matured.[51]
(Errors in original)
[51] ASFIC, 6.
Conduct in custody

There is no evidence that the Applicant has been other than a compliant prisoner and detainee.
Risk and rehabilitation
The Applicant said he learned his lesson following imprisonment and detention, which were powerful incentives not to reoffend. He referred to stable accommodation, employment, support from his wife, and the interests of his children as supporting his intention to remain law-abiding in future.
The Tribunal has considered a Prisoner Education Summary Report stating the Applicant completed several vocational units in cleaning, kitchen operations, and vocational pathways.[52] Mr Ahmadzai submitted these courses ‘equipped him with knowledge and skills which helped him gain confidence working in the community.’[53]
[52] Exhibit R1, 107-108.
[53] Applicant’s Statement of Facts, Issues and Contentions dated 10 February 2022 (ASFIC), 4.
Expert evidence
The Tribunal has considered a report from senior clinical psychologist Dr Ramony Chan dated 2 March 2022, which is summarised as follows:
(a) The Applicant was referred for ‘psychological assessment’ by his previous representative. This occurred on 23 and 24 February 2022 via video conferencing lasting approximately four hours. Dr Chan undertook ‘three hours of structured clinical interview and one hour of psychometric testing’ with the assistance of an interpreter. Dr Chan administered psychometric tests regarding malingering and deception, psychopathology, and recidivism risk. The English-based psychometric tests were translated for the Applicant to complete;
(b) Dr Chan considered the Applicant’s responses ‘are likely to be honest and valid’;
(c) Based on the Applicant’s self-reported claims about depressive symptoms and anxiety, Dr Chan stated ‘these results indicate the presence of symptoms of depression and stress at a Moderate level, and anxiety at a Severe level’. At the time of consultation, Dr Chan assessed the Applicant met the diagnostic criteria for ‘Major Depressive Disorder, Moderate, Recurrent Episode’. Dr Chan assessed the risk arising from the Applicant’s alcohol use to be low and the results were not suggestive of any ‘current drug-related problems’;
(d) The Applicant’s ‘main stressors are finance, possibility of deportation, separation from his family, ongoing legal matters, and his family health’;
(e) In assessing the Applicant’s risk of recidivism, Dr Chan employed an actuarial assessment tool called The Level of Service Inventory – Revised (LSI-R). He stated the Applicant’s results were suggestive of a ‘low’ level of recidivism risk;
(f) Dr Chan noted the Applicant’s claim that there is ‘no welfare system in Vietnam to support the poor and anyone in need’, the ‘unemployment rate is high’, and the Applicant would find it difficult to secure employment. Dr Chan said the Applicant told him he could live with his parents in Vietnam, but they were retired and could not financially support him.
Dr Chan was called as a witness and cross-examined about the contents of his report. The Tribunal has some concerns about his evidence, which are discussed later.
Respondent’s submissions
Ms Ervin said the Applicant had not done anything to help him better respond to financial stressors. She also highlighted the comparable nature of the protective factors the Applicant would return to if released, namely continuing financial stressors, and the challenge of two children with high needs. In these circumstances, Ms Ervin said the Applicant’s recidivism risk was low but not immaterial.
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The potential harm arising from the Applicant’s conduct could be physical, psychological, financial, and societal. This includes direct harm from illicit drugs and the organised criminal activity linked to cannabis production. The discovery and dismantling of the crop house by police prevented potentially serious consequences for the community. The Applicant’s conduct has imposed substantial costs in terms of the investigative, judicial, and other resources required to address his crime.
The Applicant’s police record of interview contained false claims about believing he was growing vegetables rather than illicit drugs. That said, the Tribunal considers his participation in the cannabis enterprise was an initially impulsive decision in the context of unemployment and financial stressors. It was also a relatively short-lived course of conduct.
The Applicant has not received any counselling or rehabilitation regarding what Dr Chan identified as a main ‘finance’ stressor. If released the Applicant would be returning to a comparable situation that existed at the time of his offending. That said, the Tribunal accepts he has engaged in self-reflection and developed insight into the harmful effects of his conduct. He now understands illicit drugs harm others. The high price he has paid through imprisonment, immigration detention, and separation from his wife and children, is a powerful incentive not to repeat his crime. The Tribunal also accepts the unchallenged evidence from the Applicant and his wife that the amounts they borrowed from family and friends can be repaid slowly. This alleviates to an extent the Tribunal’s concern about the impact of financial stressors on the Applicant’s recidivism risk.
The Tribunal found aspects of Dr Chan’s report of limited probative value. Much of his report appears entirely based on the Applicant’s self-reported claims and concerns emerging from his evidence include:
(a)Dr Chan stated that one of the Applicant’s main stressors is his financial situation but was unaware of the extent of the Applicant’s debt to family and friends and did not consider this in his risk assessment. Dr Chan stated it was ‘advisable’ the Applicant undertook counselling for this but agreed he did not refer to it in his report.
(b)Dr Chan stated that the Applicant’s risk assessment was ‘low’ under the LSI-R, but he assessed it was ‘very low’ after applying his clinical judgement. The Tribunal does not accept the validity of the ‘very low’ assessment in circumstances where Dr Chan was heavily reliant on the Applicant’s self-reported claims and did not consider debt;
(c)At page 11 of his report, Dr Chan stated that a 2007 study ‘found that reoffending rates for people who are convicted of supplying drugs are below average.’ Dr Chan agreed, however, that the Applicant has never been convicted of supplying drugs, but thought this offence was ‘close’ to what he was convicted of. The Tribunal does not accept that the Applicant’s conviction is comparable to supplying drugs;
(d)There is no evidence that Dr Chan’s expertise extends to the availability of autism services, income, or other support in Vietnam. Under cross-examination he agreed that his comments about these things reflected what the Applicant told him;
(e)Dr Chan writes in general and speculative terms, based on ‘the literature’, about the impact of ‘visa refusal’ (sic) on the Applicant’s wife and children, without having spoken to his wife and children. This includes an assessment that his wife’s ‘suicidal risk’ would increase if the Applicant were repatriated, which would in turn increase the healthcare cost to the Australian community. There is no reference in other evidence before the Tribunal to any suicidal ideation experienced by the Applicant’s wife, so Dr Chan’s reference to this is general and speculative at best;
(f)Dr Chan referred to the Applicant’s ‘continued absence’ as ‘increasing (his children’s) vulnerability to mental health, developmental and criminal problems,’ and that the Applicant’s absence is ‘already evident’ in his children’s behavioural and development problems. These outcomes, however, appear more persuasively linked to the children’s Autism and other diagnoses. The Tribunal found this aspect of Dr Chan’s report overly speculative.
The Tribunal accepts Judge Smallwood’s remarks about the Applicant’s prospects of rehabilitation. The Applicant has done some vocational courses, but no courses linked to better managing financial stressors if released. That said, decisions should not be delayed for rehabilitative courses to be undertaken: cl 8.1.2(2)(b)(ii) of the Direction.
The protective factors invoked by the Applicant are comparable to those of the past. These include stable accommodation and employment, his children’s interests, and the support of Ms Dinh and his friends. It remains of concern to the Tribunal that he previously offended despite having a child, enjoying the strong support of Ms Dinh, and comparable protective factors. That said, it is also accepted the Applicant has received a salutary lesson and understands another offence would likely end his aspiration to remain in Australia with his family. The Tribunal accepts this will play a protective effect in mitigating his recidivism risk.
The Tribunal finds there is a low but not insignificant risk of the Applicant reoffending. Coupled with the serious nature of his crime, this primary consideration weighs moderately against revocation.
Tribunal consideration: Family violence committed by the non-citizen
There is no evidence of family violence offending and this primary consideration is not enlivened.
Tribunal consideration: Best interests of minor children in Australia affected by the decision
Clause 8.3 of the Direction requires decision-makers to determine, where relevant, whether revocation is in the best interests of any minor children in Australia. This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided. If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.
In considering the best interests of the child, the Direction requires the following factors at cl 8.3(4) to 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 child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Tribunal has considered photographs in evidence showing the Applicant with his partner and two children.[54] He has a biological daughter who was born while he was imprisoned and who he lived with for an approximately six-month period during bail in mid-2020.[55] She has recently turned two years of age, has been diagnosed with autism, and is receiving early intervention treatment under the NDIS.[56] The Applicant stated the only communication he has with the child is via video calls. She is limited in her ability to interact but calls him ‘daddy’ and seems happy to see him.[57] Ms Dinh’s evidence is that it is difficult for the children to communicate because of their autism and developmental difficulties, but this in no way diminishes their closeness to the Applicant. The Applicant said he aspires to play a nurturing paternal role for his daughter in the future and said she would be devastated if he could not remain in Australia.
[54] Exhibit R1, 145-225.
[55] Ibid 54.
[56] Ibid 119.
[57] Ibid 54.
The Applicant referred in his evidence to spending approximately 18 months with his stepson prior to being imprisoned, during which he was heavily involved in the child’s care and development. He claimed that his presence alleviated the child’s anxiety ‘and improved his communication skills significantly’.[58] The Applicant stated in documentary evidence that he is better at calming the child than his wife and the child does not sleep well if they do not have video calls ‘a few times a week’:
Our father and son bond gave us joy and happiness. I could not imagine his life without me and mine without him.
He misses every day, and this causes him lots of trauma as an autistic kid. [59]
[58] Ibid.
[59] Ibid.
During his interview with Dr Chan, the Applicant claimed that since his detention, his stepson has ‘no one to play with’, which has resulted in ‘more behavioural problems and anger, increased frequency of making loud noises, and reduced appetite’.[60] This is somewhat inconsistent with other evidence, including from the Applicant himself, that the child attends a school specific to his needs and is making some positive progress. The Applicant explained during the hearing that what he intended to convey is the absence of someone for the child to play with after school.
[60] Exhibit A4.
The following evidence about support required by the Applicant’s children has been considered:
(a)Letters and other materials relating to the autism and ADHD suffered by the Applicant’s stepson, commencement of psychological therapy and support on 9 June 2021, and the extent of support approved under the NDIS.[61] A letter dated 19 January 2021 stated that approximately $21,000 was approved in core supports for from January 2021 until 19 January 2022;[62]
(b)Approval from the NDIS dated 27 September 2021 for approximately $19,500 in early intervention services for the Applicant’s two-year-old daughter, who has also been diagnosed with autism;[63]
(c)A letter from a mental health social worker to whom the Applicant’s wife was referred in June 2021 for depression and anxiety.[64] This letter does not suggest she is unable to care for the children because of these conditions, but nevertheless provides an insight into the additional challenges she has experienced, which has the potential to affect her ability to care for the children.
[61] Ibid 116; 132-144; 404-428; Exhibit A5.
[62] Exhibit R1, 414.
[63] Ibid 118-131.
[64] Ibid 114.
The Tribunal has considered Mr Ahmadzai’s written submissions regarding this primary consideration.[65]
[65] ASFIC, 8-10.
Ms Ervin accepted that the best interests of the children carry substantial weight in favour of revocation, but this does not outweigh the first and fourth primary considerations.
Tribunal findings: Best interests of minor children in Australia affected by the decision
The Tribunal accepts that the Applicant loves his children and has formed a strong emotional attachment to them, particularly the eldest child. This latter attachment is of greater significance than might normally be the case because of the child’s high care needs, which limit the ability of others to care for and engage with him. The Applicant’s ability to settle the child and manage his symptoms carries greater weight, and seems to better position him to deal with the younger child who has also recently been diagnosed with autism and developmental delays. The interests of these children are likely to be substantially and adversely affected if they are separated from the Applicant, with whom they have formed a strong bond.
By virtue of the time spent on remand, serving his sentence of imprisonment, and in immigration detention, there have been long periods of absence and limited meaningful contact between the Applicant and his two children. His wife has played the primary parental role during this time. Less weight is therefore given to this primary consideration. The Tribunal accepts, however, that the Applicant has done his best to stay connected with the children through visits and video calls. The Tribunal also accepts that if released the Applicant would play a positive role in helping address the children’s significant treatment needs, thereby alleviating the burden on his wife.
The Tribunal accepts that revocation is in the best interests of the children, whose interests are not distinguished on these facts. This primary consideration carries substantial weight in favour of revocation.
Tribunal consideration: Expectations of the Australian community
Clause 8.4 (1) of the Direction provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Clause 8.4(2) of the Direction states that visa cancellation, refusal or non-revocation 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. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
(a) acts of family violence;
(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;
(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;
(f) worker exploitation.
Clause 8.4(3) provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. As per cl 8.4(4), this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in the particular case.
Clause 8.4(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court (FCAFC) in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR). Notwithstanding the different pathways in judicial reasoning, the plurality in FYBR held that Expectations of the Australian community is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[66]
[66] FYBR (2019) 272 FCR 454, at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘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’.[67]
[67] Ibid at 473 [75]–[76] (Charlesworth J).

The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[68]
[68]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
It is submitted by Mr Ahmadzai that:
Mr. Nguyen is otherwise a functioning individual. He has no substance abuse and contributes to the society by always working and obeying the law. Mr. Nguyen is unlikely to re-offend in the future and therefore significant weight should be placed on this in favour of Mr. Nguyen given that it is his first and only offence and he has served time incarceration. These are the expectations of the Australian community. He has not committed repeated crimes and none of his offences were premediated. He has shown great remorse and he has serviced consequences for his actions taking full accountability. These are the expectations of the Australian community.[69]
(Errors in original).
[69] ASFIC, 7.
Ms Ervin accepted that the Applicant had only committed one offence, albeit serious. She submitted that the community would expect him not to be allowed to remain in Australia.[70]
[70] RSFIC 9 [44].
Tribunal findings: Expectations of the Australian community
The Australian community expects non-citizens to obey Australian laws and has a low tolerance for those committing serious crimes. Although a higher level of tolerance may be afforded to those who have lived in Australia for long periods, this depends on the seriousness of the crime or other conduct engaged in.
During the eight years he has spent in Australia, the Applicant committed a single, albeit serious offence. Mindful of his conduct while on a limited stay visa, he should expect to forfeit the privilege of staying in Australia: cls 5.2(1)-(2). The circumstances of this case are also not such that a higher level of tolerance may be afforded to the Applicant because he has lived in the Australian community for most of his life or from a very young age: cl 5.2(4) of the Direction. That is because he was born in and lived in Vietnam for the first 19 years of his life and has only spent eight years in Australia. Based on the specific circumstances of this case, this primary consideration weighs against revocation but not heavily so.
OTHER CONSIDERATIONS
Tribunal consideration: International non-refoulement obligations
Clause 9.1 of the Direction provides:
(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 non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
(2) In making a decision under section 501 or 501 CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(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. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197 AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
(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 under section 501 of the Act, in a request to revoke under section 501 CA 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 501 CA, 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 501 CA, 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.
Section 5 of the Act defines ‘non-refoulement obligations’ non-exhaustively as including Australia’s obligations as a party to the Conventions, Protocols and Covenants listed at cl 9.1(1) of the Direction and ‘any obligations accorded by customary international law that are of a similar kind to those mentioned’ in those treaties. As held in Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 at 35 [103]: ‘the term “non-refoulement obligations” is not confined to the protection obligations to which s 36(2) refers’.
The Tribunal must give active intellectual consideration to the Applicant’s clearly articulated representations about risk of harm, regardless of characterisation.[71] The Tribunal’s engagement with such claims, however, relates to whether there is ‘another reason’ for revocation pursuant to s 501CA of the Act, rather than the analysis undertaken for Protection Visa applications.[72]
[71] YKSB v Minister for Home Affairs [2020] FCAFC 224, 5; Minister for Home Affairs v Omar (2019) 272 FCR 589, [34]–[44] (‘Omar’).
[72] Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, [27]–[28]; Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28].
As held in GLD18 v Minister for Home Affairs:[73]
The predictive exercise involved in forming a state of satisfaction as to the well-foundedness of a visa applicant’s expressed fear of returning to her or his country of nationality was described by the Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [32]–[38]. Included in that exercise is, as the Court said at [37], an assessment and determination of what might happen to a visa applicant if she or he were returned to her or his country of nationality at the point in time the review decision is made, and what might happen in the near future thereafter…
[73] [2020] FCAFC 2 at [77] (Allsop CJ, Mortimer and Snaden JJ).
In previous written claims made by the Applicant’s migration agent, it was stated ‘no submission is made under this subheading’.[74] In an August 2021 Personal Circumstances Form submitted on the Applicant’s behalf by his previous representative, it stated that if repatriated to Vietnam, the Applicant ‘would be uncertain’ about his future and the ‘safety of…[his]…life’. In submissions made by Mr Ahmadzai, reliance is placed on the following:
1. Mr Nguyen’s family will not be able to successfully relocate to Vietnam due to his criminal record
2. It is unlikely that Mr Nguyen will be able to find stable employment because of his criminal record
3. The severity of any drug related offences is harsh in Vietnam and may therefore result in social out casting for Mr Nguyen and his family
4. It will be difficult for Mr Nguyen to formulate any new social connections or maintain his existing social connections
5. Under the above circumstances, it would be extremely difficult to be able to raise a family of two kids.[75]
[74] Exhibit R1, 77.
[75] ASFIC, 12.
Three authorities were submitted by Mr Ahmadzai as apposite to the specific circumstances of this case:
(d)De Pinho Neto and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3384. It is submitted that:
The abovementioned case is of great significance as it explores the nature of the offence committed by the applicant versus their cultural ties to Australia. Similarly in the instance of Mr. Nguyen, the seriousness of his offence is acknowledged, and the mitigating circumstances of this matter are Nguyen’s ongoing cultural and family ties to Australia which outweigh the severity of the offence.[76]
(Errors in original)
(e)Vu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2876. It is submitted that:
We ask the member to consider additional elements including best interests of the children and most importantly impediments if Mr Nguyen is removed.[77]
(Errors in original)
(f)XTRG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3378. It is submitted that:
This case is of a particular importance as the risk of re-offending is explored here. As mentioned by the Member Reitano, the risk of re-offending as per direction 90 should be given significant weigh. There is no evidence before the Department of Home Affairs that Nguyen will re-offend given the background and nature of the offence and his young age at the time the offence took place.[78]
(Errors in original)
[76] Ibid, 13.
[77] Ibid.
[78] Ibid, 14.
For the reasons given orally at the hearing, each of these cases is distinguished by quite different factual circumstances and no weight is placed on them.
The Applicant has previously had a Protection Visa application rejected[79] and in May 2021 withdrew his appeal against that decision.[80] He has not raised any new claims in the present matter and most of the fears he expresses relate more to considerations arising in the context of Extent of impediments if removed. There is nothing in his claims relating to the Refugee Convention, such as a fear of harm arising from ethnicity, religion, actual or imputed political opinion. He also does not make claims that may invoke complementary protection. One of his submissions may be perceived as contending that his membership of a particular social group might draw official attention in Vietnam, namely as a failed asylum seeker, or person convicted of drug-related offending, or returnee from a Western country. The Tribunal has considered the DFAT Country Report for Vietnam dated 11 January 2022, which states the following in relation to treatment of returnees:
[79] Exhibit R2.
[80] Exhibit R3.
TREATMENT OF RETURNEES
Exit and entry procedures
5.25 Article 23 of the Constitution allows citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’. In practice, the Government imposes limits on entry and exit for political activists and Government critics. This is achieved by refusing to issue passports or laying criminal charges to prevent travel, and is sometimes used against the families of persons of interest.
…
Conditions for returnees
5.29 Articles 120 and 121 of the Penal Code prohibit ‘organising, coercing [or] instigating illegal migration for the purpose of opposing the People’s Government’ and describes penalties of between three and 20 years’ prison for both organiser and individual émigrés. DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia.
…
5.31 DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.
5.32 Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.
…
5.34 Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.
The Respondent submitted that none of the concerns expressed by the Applicant ‘relate to his race, religion, nationality membership of a particular social group or political opinion, nor do the materials before the Tribunal indicate that the Applicant's life or freedom would be threatened on account of one of these attributes if he were returned to Vietnam’.[81]
[81] Respondent’s Statement of Facts, Issues, and Contentions (RSFIC), 11 [53].
The Respondent also submitted that the Applicant has not made any claims under complementary protection criteria and contends that the Tribunal should not be satisfied non-refoulement obligations are owed to him.
When Mr Ahmadzai failed to refer to non-refoulement in closing submissions, the Tribunal asked whether claims about this consideration continued to be advanced. Mr Ahmadzai stated that by virtue of the Applicant’s oral evidence that he paid off the ‘loan shark’ in Vietnam and his oral claims were more akin to Extent of impediments if removed, he no longer advanced non-refoulement claims on behalf of the Applicant.
Tribunal findings: International non-refoulement obligations
Notwithstanding Mr Ahmadzai’s concession in closing submissions, the Tribunal considers it appropriate to address the claims he has made.
The Applicant is a citizen of Vietnam, which is the receiving country for the purposes of s 5(1) of the Act.
Based on what the Applicant claimed in his documentary evidence and stated during the hearing, there are no substantial grounds for believing there is a real risk he might suffer harm as a ‘necessary and foreseeable consequence’ of repatriation. He does not have a well-founded fear of persecution and discrimination from authorities in Vietnam or from generalised harm, or because of the ‘loan shark’ threat he previously relied upon, but which no longer exists. He does not currently suffer any medical or psychological condition and his claims about not being able to access healthcare for emergent conditions are speculative at best and contradicted by the DFAT Country Report for Vietnam. The Tribunal prefers the latter to the Applicant’s uncorroborated claims. The Tribunal also does not accept the Applicant may be targeted as a returnee from the West or because of the nature of his offending. On his own evidence his parents will not disclose his offending to others, and he has no intention of doing so.
In terms of the primary legal consequence of an adverse decision in this matter, the mandatory cancellation of the Applicant’s visa meant he became an unlawful non-citizen within the meaning of s 14 of the Act. In the event of a non-revocation decision, he is liable to be detained under s 189 of the Act and removed as soon as reasonably practicable, noting the operation of the amended s 197C(3) of the Act. It is permissible to continue a person’s detention for a legal reason including, for example, while they exercise their appeal rights or consideration is given to the possible exercise of a non-compellable Ministerial discretion at s 195A of the Act,[82] or to make a residence determination under s 197AB. Other factors that may impact the length of a non-citizen’s detention include:
(a)How the COVID-19 pandemic in Australia or Vietnam may impact on the obligation to remove as soon as reasonably practicable; or
(b)Whether an applicant decides to elect voluntary return.
[82] Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, 191 [16].
There is no evidence about what the Applicant may do in the event of a non-revocation decision. There is also no evidence that an exercise of Ministerial discretion is currently in prospect. It similarly remains unclear how COVID-19 or another intervening act may impact upon the time the Applicant might spend in detention before it became reasonably practicable to remove him. But on the currently available evidence it does appear reasonably practicable to remove him to Vietnam in the event of an adverse decision. It is unclear how long this may take, because of the irresoluble and unpredictable branches and sequels of future events, including his own future decisions. The Tribunal is not required to engage in speculation or fact-finding about this,[83] and respectfully adopts the reasoning in Ali v Minister for Immigration and Border Protection (Ali):[84]
The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing...
[83] BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199.
[84] [2018] FCA 650.

In DOB18 v Minister for Home Affairs[85] at [35], Griffiths J reflected favourably on the reasoning in Ali and similarly cautioned against speculating about the course of future decision-making:
…Justice Flick’s reasoning in Ali was adopted and applied by Logan J in Greene at [19] and by Farrell J in Turay at [40]…Contrary to the applicant’s submissions, I do not consider that the reasoning in this trio of cases is plainly wrong. Indeed, I consider that it is plainly correct. In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making...
[85] [2018] FCA 1523.
Given the time he has spent in immigration detention, there is a prospect the Applicant would be liable to remain in immigration detention for an unpredictable longer period depending on what choices he makes. Notwithstanding the absence of any expert evidence, the Tribunal accepts this can result in a deterioration of a person’s mental health.
The Tribunal does not accept the submission that repatriating an applicant who is not owed non-refoulement obligations has any effect on Australia’s international reputation as submitted on the Applicant’s behalf.
Irrespective of options that might emerge, a non-revocation decision comes with considerable significance for the Applicant, including because of the decision Ms Dinh has made to remain in Australia with their children because of their health-related needs.
The Applicant’s protection claims were assessed in 2017 and rejected. In May 2021, the Applicant withdrew his appeal against that decision, and has not since made any new claims about fears of harm. At this hearing, he stated that he has repaid the ‘loan shark’ that featured in his 2017 protection claims. The concerns he expressed about re-establishing himself in Vietnam, providing for his needs, becoming a social outcast because of his Australian offending, and being unable to form new social connections, are speculative at best and unrelated to non-refoulement.
The Tribunal does not accept the Applicant is owed non-refoulement obligations. This consideration is not enlivened and carries neutral weight.
Tribunal consideration: Extent of impediments if removed
Clause 9.2 (1) of the Direction provides:
(1) Decision-makers must consider 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 stated he has no diagnosed medical or psychological conditions.[86] No language or cultural issues are invoked. It is submitted, however, that repatriating the Applicant to Vietnam would deprive him of:
…opportunities which are available in Australia, including work and being with his family. Due to uncertainty surrounding COVID-19 pandemic, it is hard to predict how soon Mr. Nguyen would be able to see his friends and family.[87]
[86] Exhibit R1, 61; ASFIC, 6.
[87] Ibid 7.
The Applicant’s evidence, including to Dr Chan, is that he grew up in ‘an average income family in Vietnam and was not in poverty’.[88] He reported good relationships with his parents and siblings in Vietnam. Dr Chan noted that the Applicant’s parents are retirees with limited income and his siblings have their own families to support and ‘cannot assist [the Applicant] in any meaningful way’.[89] The Applicant is also recorded in Dr Chan’s report as stating he and his wife would find it hard to find work, ‘he would not be able to afford any healthcare costs in case of sickness’, and that his children’s ‘freedom, living conditions, education, health, and quality of life would be highly compromised’.[90]
[88] Exhibit A4.
[89] Ibid, 4.
[90] Ibid, 9.
It is submitted by the Applicant’s previous representative that repatriation to Vietnam ‘would likely cause significant hardship’ for the Applicant because he has not lived in Vietnam for eight years and ‘has only known work and study in Australia, which are not transferrable or easily established in a country such as Vietnam while raising a young family remotely’.[91] It is further submitted that in the event the Applicant’s wife and two children accompanied him to Vietnam ‘to keep the family structure together, this would cause the family great hardship as [the two children] would be required to readjust to a new society, environment and culture at such a young and critical age’.[92] This submission has limited relevance in circumstances where Ms Dinh has stated she will not return to Vietnam with the Applicant even if he is repatriated, because of the health needs of their children.
[91] Exhibit R1, 78.
[92] Ibid 78.
Tribunal findings: Extent of impediments if removed
There are impediments confronting the Applicant if returned to Vietnam, particularly after living in Australia for eight years and following release from a period of imprisonment and immigration detention. But these are not insurmountable. The Applicant has spent most of his life in Vietnam. He is a young man who is not yet thirty and there are no discernible language or cultural impediments. Given his continuing closeness to his family in Vietnam there is no evidence he is unable to rely on them for practical and emotional support. There is also no evidence he would be treated any differently to other citizens of Vietnam in terms of social, medical, and/or economic support. There is no evidence to corroborate the Applicant’s speculative claims about being isolated or unable to re-establish himself. The study and work he has undertaken in Australia can only have enhanced his skillset and the references in evidence refer to him being a motivated and industrious worker.
On balance, this consideration weighs slightly in favour of revocation.
Tribunal consideration: Impact on victims
Clause 9.3 (1) of the Direction states:
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, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Tribunal findings: Impact on victims
There is no evidence from victims within the meaning of the Direction. This consideration is not enlivened and carries neutral weight.
Tribunal consideration: Links to the Australian community
Clause 9.4 provides that a decision-maker must have regard to cls 9.4.1 to 9.4.2 of the Direction, which includes consideration of the strength, nature, and duration of any ties the non-citizen has to the Australian community and the impact on Australian business interests if the non-citizen is not allowed to remain in Australia.
The Tribunal has considered submissions by the Applicant’s previous representative about a skills shortage of ‘meat boners and slicers’,[93] and the ‘essential’ nature of the Applicant’s work as a chicken boner.[94] The Tribunal does not accept that Australian business interests are enlivened within the meaning of the Direction, sufficient to displace the presumption that weight is only placed on this consideration where a non-revocation decision ‘would significantly compromise the delivery of a major project, or delivery of an important service in Australia’. This consideration is not enlivened and carries neutral weight.
[93] ASFIC, 11.
[94] Exhibit R1, 80.
Tribunal consideration: The strength, nature, and duration of ties to Australia
Clause 9.4.1 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)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 noncitizen 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.
(g)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.
The Applicant has lived in Australia for eight years. He is closest to Ms Dinh who is an Australian citizen and relies heavily on the Applicant for practical, emotional, and financial support, particularly in respect of their children’s care needs. The impact on her resulting from the Applicant’s possible repatriation is very significant, given that she feels there is no option but to remain in Australia in order for the children to get the care they need.
The Applicant has made other close friendships, worked in farms and factories, and paid taxes. Although most of the Applicant’s family lives in Vietnam,[95] he has not returned there since arriving in Australia. He is highly regarded by his former employer and those who have provided supportive Statutory Declarations. This includes three former work colleagues,[96] a friend and former housemate,[97] a friend of the Applicant’s wife,[98] and a former sporting teammate.[99] None of these Statutory Declarations refer to the Applicant’s offending, however, and the authors were not called to give evidence. Less weight is therefore placed on these references.
[95] Exhibit R1, 58.
[96] Ibid 226-228; 235-237; 241-243.
[97] Ibid 229-231.
[98] Ibid 232-234.
[99] Ibid 238-240.
The Applicant made general claims about undertaking voluntary work.[100] No corroborating evidence is provided for this community contribution.
[100] Ibid 59; 61; Exhibit A5, 4.
Tribunal findings: The strength, nature, and duration of ties to Australia
On balance, this consideration weighs substantially in favour of revocation.
Additional considerations
No additional considerations were advanced by the parties and the Tribunal has not identified any ‘other considerations’ under the non-exhaustive list at cl 9(1) of the Direction.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ why the visa cancellation should be revoked, the Tribunal has applied the Direction to the specific circumstances of this case. The Tribunal sees no reason to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations than other considerations.
The Applicant engaged in serious but isolated offending in the context of unemployment, financial stressors, and increased responsibilities at home. The Tribunal accepts that the Applicant represents a low but not insignificant risk of recidivism. Given the nature of his offending, community expectations weigh against his application.
The interests of the Applicant’s two children are compelling by virtue of the serious conditions they have been diagnosed with, the considerable burden that falls upon the Applicant’s wife in his absence, and the Applicant’s place in the children’s lives.
Of the other considerations enlivened in this matter, the Applicant would be confronted with some impediments if returned to Vietnam after eight years living here, which are not insurmountable. During this time, he has formed close work and social connections that would be lost if he was returned. Many people have taken the time to provide letters of support and, in one case, to offer him secure employment if released. Of note is the decision of the Applicant’s wife to remain in Australia because of their children’s health-related needs. This would place a continuing heavy burden on her and create significant new stressors on their relationship.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked. Although this is a finely balanced decision because of the Applicant’s serious offending, the primary consideration Best interests of minor children in Australia and the other considerations Extent of impediments if removed, and Strength of ties, outweigh the two primary considerations ‘Protection of the Australian community,’ and ‘Expectations of the Australian community’.
DECISION
It follows that the Tribunal sets aside the decision under review and substitutes a decision that there is another reason to revoke the mandatory cancellation of the Applicant’s visa made on 20 January 2021.

I certify that the preceding one hundred and forty paragraphs (140) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

................[sgd]........................................................
Associate
Dated: 15 March 2022

Date of hearing: 9 and 10 March 2022

Advocate for the Applicant:
Mr Ruslan Ahmadzai

Solicitors for the Applicant: Crystal Migration

Advocate for the Respondent:

Solicitors for the Respondent:

Ms Kate Ervin

Clayton Utz

Date of hearing:	9 and 10 March 2022
Advocate for the Applicant:	Mr Ruslan Ahmadzai
Solicitors for the Applicant:	Crystal Migration
Advocate for the Respondent: Solicitors for the Respondent:	Ms Kate Ervin Clayton Utz