Nguyen and Minister for Immigration, Citizenship Multicultural Affairs (Migration) - [2023] AATA 2543

Nguyen and Minister for Immigration, Citizenship Multicultural Affairs (Migration) [2023] AATA 2543 (2 August 2023)
Division: GENERAL DIVISION
File Number: 2023/3373
Re:Quang Tuan Nguyen
APPLICANT

Minister for Immigration, Citizenship Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Senior Member Skaros
Date:2 August 2023
Place:Sydney

The Tribunal affirms the decision not to revoke the mandatory cancellation of the Applicant’s visa.
...................[SGD].......................
Senior Member Skaros
Catchwords
MIGRATION – where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancellation under section 501CA (4) should be exercised – consideration of Ministerial Direction No. 99 - decision under review is affirmed
Legislation
Migration Act 1958 (Cth)
Migration Amendment (Aggregate Sentences) Act 2023 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Brown v MIAC (2010) 183 FCR
Dinsdale v the Queen (2000) 202 CLR 321
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Pearson v Minister for Home Affairs [2022] FCAFC 203
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tualahi v MIBP [2016 FCAFC 177
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
VPKY and Minister for Home Affairs [2019] AATA 352
Secondary Materials
Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member Skaros
2 August 2023
INTRODUCTION

This is an application for review of a decision made by the delegate of the Minister of Immigration, Citizenship and Multicultural Affairs (the Respondent) on 10 May 2023 not to revoke the mandatory cancellation of the Applicant’s Bridging (Subclass 030) visa (the visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
For the following reasons, the Tribunal affirms the delegate’s decision not to revoke the mandatory cancellation of the Applicant’s visa.
BACKGROUND
The applicant is a 35-year-old citizen of Vietnam. He first travelled to Australia on 8 March 2009 as the holder of a Higher Education Sector (Subclass 573) visa. On 8 December 2011, the Applicant lodged an application for a combined Subclass 820/801 Partner visa on the basis of a relationship with Ms TBN. He was granted the Subclass 820 (Temporary) Partner visa on 19 December 2011. On 13 April 2017, he withdrew his Subclass 801 (Permanent) Partner visa application.
On 4 May 2017, the Applicant lodged a second combined Subclass 820/801 Partner visa application on the basis of his relationship with his current partner Ms QAN. The Applicant was subsequently granted a Bridging C visa in association with that application. On 5 March 2018, a further Bridging C visa (with permission to work) was granted to the Applicant.[1] That visa was mandatorily cancelled on 1 June 2021 under s 501(3A) of the Act on the basis that the Applicant did not pass the character test as he had a substantial criminal record, as defined in s 501(7)(c), and was serving a sentence of imprisonment on a full-time basis.[2]
[1] Exhibit R25 p 171 - 185
[2] Exhibit R25, p 171 – 185.
A month prior to the mandatory cancellation of his visa, on 30 April 2021, the Applicant was convicted of several offences, including two counts of deal with property proceeds of crime, two counts of supply prohibited drug (commercial quantity and large commercial quantity) and possess unauthorised pistol, for which he received an aggregate sentence of seven years and six months of imprisonment, with a non-parole period of four years and six months.[3]
[3] Exhibit G2, p 25.
On 17 June 2021 the applicant sought revocation of the decision to cancel his Bridging C visa.[4]
[4] Exhibit G6, p 211.
On 27 October 2022, the applicant was released on parole from criminal custody and transferred to Immigration detention. On 30 December 2022, the Applicant was released from detention following the decision in Pearson v Minister for Home Affairs [2022] FCAFC 203 (Pearson), in which the Full Court found that an aggregate sentence of imprisonment did not fall within the definition of a ‘substantial criminal record’ under s 501(7)(c) of the Act. As the Applicant’s visa was mandatorily cancelled on the basis of the aggregate sentence he received for his 30 April 2021 convictions, the cancellation of his visa was considered invalid.
On 17 February 2023, the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (the Amending Act) commenced. The Amending Act inserted s 5AB into the Act, which provides that where a provision of the Migration Act or Regulations (made under that Act) refers to a sentence of imprisonment, it makes no difference whether the sentence had been imposed with respect to one offence or multiple offences. The Amending Act also included provisions which retrospectively validated decisions affected by Pearson, including validating the previous mandatory cancellation of a visa.[5]
[5] Migration Amendment (Aggregate Sentences) Act 2023 (Cth), s 4.
The mandatory cancellation of the Applicant’s visa was retrospectively validated, and the Applicant became an unlawful non-citizen. On 17 February 2023, the Department sent a letter to the Applicant by email (to his nominated email address) informing him of the amendments to the Act. [6] The Applicant was informed that he was liable for detention as an unlawful non-citizen, and he was requested to self-report to the Australia Border Force.[7] A copy of that correspondence was also forwarded to the Applicant’s solicitor on 20 February 2023.[8]
[6] Exhibit G11, p 224
[7] Exhibit G2, pp 134 -135
[8] Exhibit G13, p 227
On 21 February 2023, the Applicant applied for a Protection visa. That application was subsequently withdrawn on 27 June 2023.[9]
[9] Exhibit R26, p 186
On 10 May 2023, a delegate of the Minister decided not to revoke the mandatory cancellation of the Applicant’s visa. On 17 May 2023, the Applicant applied for review of that decision, which is the subject of this review.
On 20 June 2023, the Applicant was located by NSW Police as the passenger in a motor vehicle that was being followed by police. The Applicant alighted from the vehicle and was arrested by police after a short pursuit on foot. The applicant was detained under s 189 of the Act.[10]
[10] Exhibit R25, p 171
When interviewed by the Australian Border Force (ABF), the Applicant indicated that he had received the letter from the Department informing him of the amendments to the Act on 17 February 2023 and that he was no longer the holder of a visa and was unlawful.[11]
[11] Exhibit R25 - p176
The Applicant is in a de facto relationship with Ms QAN, who is an Australian citizen. They have three children together. The children are aged five, seven and nine and are Australian citizens.
Evidence before the Tribunal
The documentary evidence before the Tribunal includes:
·The s 501G documents (G-Documents): Exhibits G1 – G15, comprising of pages 1 – 233.
·The Applicant’s Statement of Facts Issues and Contentions (the Applicant’s SFIC) dated 23 June 2023: Exhibit A.
·The Applicant’s personal statement dated 23 June 2023: Exhibit A1.
·Statement from the Applicant’s de facto partner, Ms QAN: Exhibit A2.
·Letter from Ms QAN’s mother (Ms HTN), together with evidence of her permanent residence and medical certificate: Exhibit A3.
·Letter from Ms QAN’s father (Mr MHN): Exhibit A4.
·Letters of support from friends: Exhibits A5 - A8.
·The Respondent’s Statement of Facts, Issues and Contentions (the Respondent’s SFIC) dated 4 July 2023: Exbibit R.
·The Respondent’s tender bundle of documents: Exhibits R1 – R32, comprising of pages 1 – 300.
The Applicant appeared before the Tribunal in person to give evidence at a hearing held on 18, 19 and 20 July 2023. The Applicant was represented by Ms My Yen Tran of MYT Nguyen Solicitors and Mr SJ Young of counsel. The Respondent was represented by Ms Sophie Roberts of Mills Oakley.
The Tribunal notes that when giving evidence, the Applicant referred to his de facto partner (Ms QAN) as his wife and to Ms QAN’s parents as his in-laws. The Tribunal has also used these terms inter-changeably throughout the decision record.
The Tribunal also received oral evidence from the following witnesses called by the Applicant:
·The Applicant’s de facto partner, Ms QAN.
·The Applicant’s mother-in-law, Ms HTN.
·The Applicant’s father-in-law, Mr MHN.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by subsection 501CA(4) of the Act. This provides that:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Tribunal is satisfied that on 17 June 2021 the Applicant made the representations required by paragraph 501CA(4)(a) when he sought revocation of the mandatory cancellation of the visa.[12]
[12] Exhibit G6, p 211
Accordingly, there are two issues remaining before the Tribunal:
·whether the Applicant passes the character test; and if not
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant pass the character test?
The character test is defined in subsection 501(6) of the Act. Under paragraph 501(6)(a), a person will not pass the character test if they have a ‘substantial criminal record’. This phrase is defined in paragraph 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 30 April 2021, the Applicant was sentenced to an aggregate term of imprisonment of seven years and six months with a non-parole period of four years and six months in respect of five offences for which he was convicted. Following commencement of the Amending Act, the Tribunal finds that the aggregate sentence imposed on the Applicant is a sentence of imprisonment of more than 12 months and amounts to a substantial criminal record. It follows, and the Tribunal finds, that the Applicant does not pass the character test. The Applicant properly concedes that he does not pass the character test.
The issue remaining before the Tribunal is whether there is another reason why the cancellation should be revoked.
Is there another reason why cancellation of the Applicant’s visa should be revoked?
In considering subparagraph 501CA(4)(b)(ii) of the Act, the Tribunal is bound by subsection 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) applies in considering whether the cancellation of the Applicant’s visa should be revoked.
In deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction provides the framework within which decision makers must approach this task. The Direction sets out five primary considerations and four ‘other’ considerations as well as specifying how to take the relevant considerations into account.
The principles in paragraph 5.2 of the Direction are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’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 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Applying the Direction
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7 states that information from authoritative and independent sources should be given appropriate weight, that primary considerations should generally be given greater weight than the other considerations, and that one or more primary considerations may outweigh other primary considerations.
Paragraph 8 of the Direction sets out the primary considerations. These are:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia:
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
Paragraph 9 of the Direction sets out ‘Other’ (non-exhaustive) considerations which, include:
(a)legal consequence of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
The Tribunal has considered each of the primary and other considerations.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering the protection of the Australian community, paragraph 8.1 of the Direction requires decision-makers to 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. The Direction specifies that decision makers must have regard to the principle that entering or remaining in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct to date
The Applicant’s National Criminal History check[13] indicates that on 30 June 2009 he was convicted of shoplifting (value less than $2000) for which he received a $600 fine. On 3 March 2015 he was convicted of taking part in enhanced indoor cannabis cultivation (commercial) for which he received 19 months of imprisonment (suspended on a s12 Bond). On 3 October 2017, the Applicant was convicted of driving a vehicle with an illicit drug present in his blood, for which he received a $600 fine and four months’ disqualification. On 5 April 2018, he was convicted of possessing a prohibited drug (cannabis) 2g, for which he received a s 10 bond for two years.
[13] Exhibit G2, pp 24 – 26.
On 30 April 2021, the Applicant was convicted of the following offences, for which he received an aggregate term of imprisonment of seven years and six months with a non-parole period of four years and six months.
·Count 1: Deal with property proceeds of crime (less than $100,000).
·Count 2: Supply prohibited drug large commercial quantity. Indicative sentence seven years.
·Count 3: Deal with property proceeds of crime less than $100,000. Indicative sentence two years.
·Count 4: Possess unauthorised pistol. Indicative sentence nine months.
·Supply prohibited drug (commercial quantity): taken into account on Form 1 in sentencing (count 2).
In the Applicant’s SFIC, in respect of the 30 April 2021 convictions, it was contended that the allegations in the Court Attendance Notices were not necessarily accepted as true by the Applicant or the sentencing court and that there is evidence, as detailed in the Applicant’s statement, that charges were withdrawn, re-investigated, or sentenced on a factual basis other than that initially alleged by the investigating officer. The Applicant’s SFIC indicates that count 3 (above), does not appear in the Court Attendance Notice produced by the NSW Police, which contains inconsistences as to whether it alleges 4,5 or 11 offences. It was also contended that it was unclear what the sentencing judge understood the applicant to have admitted by his plea.
The Tribunal acknowledges that the Court Attendance Notice (H 68923739)[14] lists only four offences (Seqs 2, 7, 9 and 15), and did not include count 3 ‘deal with property proceeds of crime’, which was referred to in the Advice of Court Results (Seq 0).[15] It is further noted that the Advice of Court Results included the offence ‘possess prohibited drug’ (Seq 1) which was in respect of a different Court Attendance Notice (H 65192940).[16] The evidence before the Tribunal, including the corresponding Police Facts sheets[17] relating to events which occurred on 29 August 2017 and to events which occurred between November 2017 and June 2018, indicate that the Applicant was charged with various offences, some of which were later withdrawn or downgraded, and some of which were re-commenced following further evidence obtained by police. In his oral evidence the Applicant indicated that the had been charged with various offences to which he initially pleaded not guilty. He indicated that he later pleaded guilty to some of the charges, including some which had been downgraded, following an offer from police.
[14] Exhibit R10, p 25.
[15] Exhibit G2 pp 46-47.
[16] Exhibit R4 p 15.
[17] Exhibit R4, pp 16-17

The Tribunal did not consider the discrepancies between the various documents to be material because ultimately the Applicant was convicted of 6 offences (seq 1, 2, 7, 9, 15 and 0) pertaining to Court Attendance Notices H 68923739 and H 65192940. The facts underpinning the convictions in respect of the offences for which the Applicant was convicted on 30 April 2021 were set out in the sentencing remarks of Judge Flannery SC of the District Court of New South Wales. It is not for this Tribunal to impugn the factual findings upon which the Applicant was convicted and sentenced.[18] To the extent that the Applicant’s version of the events which led to his convictions differ from that of the sentencing judge, the Tribunal, for reasons explained, has rejected his evidence.
[18] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [63], [68].
Judge Flannery SC set out the circumstances of the offences for which the Applicant was convicted on 30 April 2021 in her sentencing remarks.[19] Her Honour noted that the Applicant had pleaded guilty in the Local Court to one count of supply a large commercial quantity of methylamphetamine and, on 1 December 2020, pleaded guilty in the District Court to two counts of dealing with property that was reasonably suspected of being proceeds of crime[20] and one count of possessing a pistol not being authorised to do so. When sentencing the Applicant for the drug offence in count 2, the judge also took into account the supply of a commercial quantity of a prohibited drug.
[19] Exhibit G2, pp 27 – 45.
[20] The actual offences for which the Applicant was convicted was ‘deal with property proceeds of crime (under $100,000)’: Exhibit G2, p 46.
Her Honour noted that the supply offence has a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The proceeds offences have a maximum penalty of three years imprisonment, and the firearm offence has a maximum penalty of 14 years imprisonment with a standard non-parole period of four years. In sentencing the Applicant, the judge took into account the Applicant’s pleas of guilty which entitled him to various discounts.
The facts in respect of count 1, as found by the sentencing judge, are that on 29 August 2017 the Applicant’s vehicle was stopped and searched by police, during which $56,759 was found. The Applicant informed police that $40,000 of that money was from the sale of a nail salon business. Count 1 was accordingly found to be in respect of $56,759 less $40,000.
In respect of count 2, on 4 April 2018 and 14 June 2018, the Applicant supplied methamphetamine (totalling 4.8 kilos) to an undercover police operative in exchange for cash payments totalling $330,000. The Applicant was introduced to the operative’s ‘boss’ to facilitate further drug deals. The Applicant provided the operative with a cipher phone which has military grade encryption. The facts also indicate that on 11 April 2018, an associate of the applicant, Mr TKN, supplied the operative with 499g of methamphetamine. This was a separate offence, taken into account as part of count 2.
In respect of counts 3 and 4, police executed a search warrant on the Applicant’s home at Clement Park and found $28,000 in cash in a wardrobe, several phones, $14,350 in a bedside drawer and a lease document for a property at Campsie. Police obtained a warrant and searched the Campsie property and found $50,100 in cash inside a bag in the kitchen and a dismantled pistol (without a magazine or ammunition) inside the washing machine. Various amounts of methamphetamine totalling 844.4 g were also found at the premises.
Judge Flannery SC could not conclude beyond a reasonable doubt that the applicant was the principal of the of the operation, but nevertheless found that he acted as the “point of contact and as a person involved in the exchanges themselves.”[21] Her Honour noted that such a role was normally assumed by those low in the drug hierarchy. The judge found that the drug offence was a serious one having regard to the quantity supplied and its purity. Her Honour stated that the quantity reflected the supplies on two different days (4 April and 14 June 2018) and that halfway through the operation cipher phones were used. The judge took into account that the drugs were never going to be disseminated but found this to be of limited relevance on the present authorities. In taking the relevant matters into account, the judge found the offence to be under the midrange of objective seriousness but not appreciably so.[22]
[21] Exhibit G2 p 35.
[22] Ibid.
In respect of the firearms offence, the judge considered it below the midrange of objective seriousness. In relation to counts 1 and 3 (dealing with proceeds of crime), the judge found count 1 to be of some seriousness and count 3 to be a more serious example of that offence. The judge found that the offences “involved a degree of organisation and negotiation and that the planning was not impulsive or at the lowest level”, and that they “must have been for financial gain”.[23] Her Honour found that the applicant was on a s10 bond when he committed the offences,[24] but noted that this did not disentitle him to leniency. Nevertheless, the judge found that no penalty other than imprisonment was appropriate, having regard to the sentencing procedure and particularly the importance of general deterrence and the protection of the community in drug supply cases.[25]
[23] Ibid at p 36
[24] ibid
[25] Ibid at pp 44- 45.
In considering the nature and seriousness of the conduct, the Tribunal has had regard to matters in paragraphs 8.1.1(1) of the Direction as follows:
Is the conduct viewed very seriously or seriously by the Australian government and the Australian community?
The Applicant contends that drug offences are not identified as examples of offences which may be considered “very serious” or even "serious” by the Australian Government and the Australian community.[26] The Tribunal acknowledges that the applicant’s offences do not fall within the types of examples viewed as “very serious” in paragraph 8.1.1(1)(a) which include violent and/or sexual crimes, violent crimes against women or children and family violence. It also acknowledges that the offences do not fall within those identified as “serious” in paragraph 8.1.1(1)(b) which involve conduct such as causing a person to enter a forced marriage, crimes against vulnerable members of the community, conduct which suggests the person does not pass the character test based on a decision maker’s opinion and crimes committed in detention. The Tribunal notes, however, that the offences or conduct specified in paragraphs 8.1.1(1)(a) and 8.1.1(1)(b) are not exhaustive.
[26] Exhibit A p 9 [25]
The Tribunal considers that drug related offences, particularly those involving the supply of a commercial quantity of a prohibited drug, to be at the very least “serious”. In sentencing the Applicant, Judge Flannery SC found that the drug offences were serious given the quantity supplied and purity of the methamphetamine. The Tribunal acknowledges, as contended by the Applicant, that the drugs were not disseminated as it was part of a police operation. This may be so, however, in the Tribunal’s view, this does not diminish the seriousness of the applicant’s conduct and role he played, which included being the point of contact and being involved in the exchanges themselves. The judge also considered the offences of dealing with property proceeds of crime to be of some seriousness, with one of the counts being a more serious example. Her honour found that the offences involved a degree of planning and negotiation on the part of the Applicant and were committed for financial gain.[27]
[27] Exhibit G2, p10.
The Tribunal concludes that the Applicant’s conduct in respect of the drug supply (and related) offences to be at least serious.
The sentence imposed by the court
With the exception of sentences imposed for crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) of the Direction, which do not apply in this case, the Tribunal is required to have regard to the sentence imposed by the court for crimes committed by the Applicant.
In relation to the convictions for shoplifting, driving with illicit drugs present in his blood and possessing a prohibited drug, the Applicant received fines, licence disqualification and a good behaviour bond. This suggests that these offences were at lower end of serious as they did not attract a prison sentence.
In relation to the conviction for taking part in enhanced indoor cultivation of cannabis (commercial), the court imposed a term of imprisonment of 19 months which was wholly suspended. The Tribunal agrees with the Respondent’s contention that a sentence of imprisonment which is fully suspended is nevertheless regarded as a very serious form of punishment.[28] In the hierarchy of sentencing options, a suspended prison sentence is considered “just slightly lower in severity than the imposition of imprisonment to be immediately served.”[29] The Tribunal finds that the 19 months prison sentence imposed on the Applicant (notwithstanding it was wholly suspended) reflects the seriousness of the offence for which he was convicted.
[28] Brown v MIAC (2010) 183 FCR 113 at [4]
[29] Dinsdale v the Queen (2000) 202 CLR 321 at [77] as cited in Tualahi v MIBP [2016 FCAFC 177 at [181]-[185]
In respect of the offences relating to drug supply, dealing with property proceeds of crime and possess an unauthorised pistol, the court imposed an aggregate sentence of seven years and six months imprisonment with a non-parole period of four years and six months. The Tribunal acknowledges, as contended by the Applicant, that the indicative sentences imposed for each conviction were well below the maximum term of imprisonment in respect of each offence.
The Tribunal has considered the Applicant’s submission that general deterrence is a significant factor in sentencing drug supply offenders as they are more likely to respond to the severity of sentences imposed, and that the significant penalty of seven and a half years imprisonment imposed on the Applicant is not a reliable yardstick of the seriousness of his conduct. The Tribunal disagrees with this submission. In sentencing the Applicant, Judge Flannery SC found, after taking into account the Applicant’s pleas of guilty, the objective seriousness of the offence, the Applicant’s subjective circumstances and the sentences imposed in related matters before the court, that no penalty other than a term of imprisonment was appropriate.[30]
[30] Exhibit G2, p44
Having regard to the sentencing principle that imprisonment is a last resort and that custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending,[31] the Tribunal considers that the lengthy prison sentence of seven years and six months imposed on the applicant for these offences appropriately reflected the serious nature of his offending conduct.
[31] PNLB v Minister for Immigration and Border Protection [2018] AATA 162 at [22].
The frequency, trend and cumulative effect of the offending
The Tribunal is required to have regard to the frequency of the offending and whether there is any trend of increasing seriousness under paragraph 8.1.1(1)(d) of the Direction. It is also required to consider the cumulative effect of repeated offending under paragraph 8.1.1(1)(e) of the Direction.
The Applicant has been convicted of nine offences which were committed between June 2009 and June 2018 (a period of nine years), which were dealt with on five occasions.
The Applicant was first convicted in June 2009 for shoplifting. The Tribunal accepts, as contended by the Applicant, that this offence is of a very different nature to his later offences. It was not until March 2015 until the Applicant was next convicted of an offence, being the taking part in cannabis cultivation. The events which led to this conviction occurred in August 2013.[32] The Tribunal accepts that the charges against the Applicant were downgraded from possession and supply to participation,[33] which is indicative that his involvement was not as serious as initially suspected. In October 2017 and April 2018, the Applicant was convicted of further drug related offences. The applicant was the subject of a good behaviour bond when he next engaged in his most serious drug related offences, which occurred between April 2018 and June 2018, and included the supply of large quantities of methamphetamine.
[32] Exhibit R2, pp 6-9.
[33] Exhibit G2, p 26.
The Tribunal acknowledges that there were gaps between the Applicant’s incidents of offending, it nevertheless considers that between 2017 and 2018, the Applicant’s offending was frequent. It also considers that the offences had a general trend of increasing seriousness, given his most recent convictions were in respect of his most serious offending.
The Tribunal considers the cumulative effect of the Applicant’s offending, which involved nine convictions and five sentencing episodes, would have imposed costs to the Australian community, including expenses associated with police resources, court proceedings, corrections facilities, and parole services.
Providing false or misleading information to the Department
The Tribunal is required to have regard to whether the applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending, under paragraph 8.1.1(1)(f) of the Direction.
Evidence before the Tribunal indicates that on 7 November 2012 and 15 August 2012, the applicant completed incoming passenger cards in which he indicated that he did not have any criminal convictions.[34] This was not accurate, as the Applicant had been convicted in June 2009 for shoplifting.
[34] Exhibit G2 p 115 – 116.
The Tribunal has had regard to the Applicant’s explanation that while he was fined for the offence, he was not aware at the time that it carried a conviction as he was new to the country.[35] The Tribunal notes that the questions on the incoming passenger cards were also in the Vietnamese language.[36] The Tribunal does not accept that the Applicant did not appreciate, at the time he completed the incoming passenger cards in 2012, that he had a conviction. The evidence before the Tribunal regarding this offence indicates that the Applicant was arrested by police, taken to the police station and taken into custody, and, with the assistance Vietnamese interpreter, was read his rights and ordered to appear before the court on 30 June 2009, where he pleaded guilty and was convicted of the offence.[37] Having regard to the circumstances leading up to the conviction, the Tribunal considers it highly likely that the Applicant was aware, at the time of completing the incoming passenger cards, that he had been convicted of an offence and that he chose not to disclose this information out of fear he may be denied re-entry into Australia. The Tribunal considers that the Applicant’s conduct, in not disclosing this previous conviction, contributes, though not significantly, to the overall seriousness of his conduct.
[35] Exhibit G2, p 77.
[36] Exhibit G2, pp 115 - 117
[37] Exhibit R2, pp 3 – 4 and Exhibit A1 p 2 [5].
During cross examination, information arose which raised the concerns about whether false or misleading information had been provided to the Department about when the Applicant’s relationship with Ms QAN commenced and whether it was during the time that he was being sponsored by his former partner, Ms TBN, for the Subclass 820/801 Partner visa. The Applicant claimed in his statement and at the hearing that he first met Ms QAN in 2013 (on one occasion) and that unbeknown to him, Ms QAN fell pregnant and had a baby (their first daughter, child RN) in July 2014. He also claimed that Ms QAN did not include his name on child RN’s birth certificate because she did not know his full name at the time. The Applicant claimed he did not meet Ms QAN again until a year later, in 2015, when Ms QAN told him he may be the father of child RN. When asked on day one of the hearing, during cross examination, why the address (in Earlwood) provided by Ms QAN on child RN’s birth certificate[38] was the same as address recorded for him in the police records[39] around the time of child RN’s birth, the Applicant was unable to provide an explanation and maintained that he did not start living with Ms QAN until after child RN was born. He gave evidence that he was living between two households, that his relationship with Ms TBN ended in April 2017 and that he withdrew the Partner visa application in July 2017. On day two of the hearing, the Applicant gave evidence that he was living at the Earlwood address with Ms TBN and that Ms QAN had used the address to put on the birth certificate. In her evidence, on day two of the hearing, Ms QAN said she had never lived at the Earlwood address, but she recalls asking the Applicant if she can use his address for correspondence. She gave evidence that she asked for the address prior to child RN’s birth. She maintained, , that she and the Applicant did not officially live with each other until after the birth of their son (child AN).
[38] Exhibit G2 p 105
[39] Exhibit R17 p 141
The Tribunal does not consider credible that Ms QAN would ask the Applicant to use his address at Earlwood for the purpose of correspondence, including for child RN’s birth certificate, yet not include his details as the father because she did not know his full name. The Tribunal formed the view that the Applicant and Ms QAN have not been entirely forthcoming about the commencement and development of their relationship. Notwithstanding these concerns, there is insufficient evidence before the Tribunal to establish with confidence that the Applicant has provided false or misleading information to the Department regarding the commencement of his relationship with Ms QAN.
Reoffending since being formally warned
The Tribunal is required to consider whether the Applicant has reoffended since being formally warned is a matter to be taken into account under paragraph 8.1.1(1)(g) of the Direction. There is no information before the Tribunal that the Applicant has received a formal warning.
Offences committed in another country
The Tribunal is required to consider whether the Applicant has committed an offence in another country that is classified as an offence in Australia must be taken into account under paragraph 8.1.1(1)(h). There is no information before the Tribunal to suggest that that the Applicant has committed offences in another country.
Conclusion on the nature and seriousness of the conduct to date
In considering the nature and the seriousness of the Applicant’s conduct to date and having had regard to the matters specified in paragraph 8.1.1(1) of the Direction, the Tribunal concludes that, on the totality of the evidence, the Applicant’s criminal and other conduct is serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Direction specifies that in considering the need to protect Australian community 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 (paragraph 8.1.2(1)).
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence
Nature of harm should the Applicant engage in further criminal or other serious conduct

The Tribunal accepts, as contended by the Respondent, that the harm that would be caused if the Applicant repeats his offending behaviour, in particular the supply of commercial quantities of methamphetamine, is obvious and serious. The Respondent referred to a decision of the Tribunal (differently constituted), in which Senior Member Groom provided a detailed analysis of the harm caused to individuals and to the community by drugs, particularly methylamphetamine.[40] In that decision, the Senior Member referred a report published by the Australian Crime Commission in 2015 titled “The Australian Methylamphetamine Market – The National Picture”,[41] which concluded that:
[40] VPKY and Minister for Home Affairs [2019] AATA 352 at [18]- [20]
[41] Exhibit R2 pp 188 – 211.
Of all illicit drugs, the ACC assesses that methylamphetamine, and in particular crystal methylamphetamine, poses the highest risk to the Australian community. The following factors support that conclusion:
·the rapid growth of the methylamphetamine problem across cities, regional and remote communities
·the harms methylamphetamine poses to the individual, including psychosis and other long term psychological and behavioural problems
·the links between methylamphetamine use and other crime types including violent crimes against the person and property crime
·the harm to the community (including families of users, innocent bystanders and road users, frontline staff in hospitals, law enforcement and emergency services, and non-government organisations)
·the economic impact to governments and the community, and redirection of finite resources away from other harmful activity
·the impact on legitimate industry sectors (such as the pharmaceutical, chemical and transport sectors) through diversion of chemicals and transport of illicit substances
·the significant profit to be made by organised crime groups in the importation, domestic manufacture, sale and distribution of methylamphetamine
·the presence of both importation and domestic manufacture of methylamphetamine, unlike other illicit drugs.
The Tribunal accepts, as contended by the Respondent that exposing members of the Australian community to methamphetamine ruins lives.[42]
[42] Exhibit R, p9
In this case, the Applicant was able to source and supply large quantities of methamphetamine. While the Tribunal acknowledges that the drugs were never disseminated, as it was part of a police operation, this does not lessen the Applicant’s culpability. The Applicant, as the “point of contact” and a person “involved in the exchanges” with the undercover operative, knowingly and intentionally engaged in the supply of large quantities of methamphetamine, which he likely understood would be resold within the Australian community.
The Tribunal considers that the harm to the Australia community should the Applicant engage in further drug-related offences, particularly the supply of methamphetamine, would be widespread and devastating.
Likelihood of engaging in further criminal or other serious conduct
In considering the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, the Tribunal is required to into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence.
The Tribunal has had regard to the Applicant’s submission, dated 17 June 2021, which was provided to the Department as part of his request for revocation. The Applicant stated, by reference to his 30 April 2021 convictions, that he committed the offence as a victim of his own drug and gambling addictions. He said the offences were committed out of foolishness and he is remorseful. The Applicant stated that it was his first serious offence and that he would never reoffend. He said he recognises his wrongdoing and has taken steps to right his wrongs by seeking spiritual and professional guidance and has completed religious studies.
The Applicant stated that he is not a threat to the community, is willing to face his problems and live a meaningful life. He said he has the support of his de facto partner, Ms QAN, his three children and his in-laws (Ms QAN’s parents). The Applicant stated that his risk of re-offending is extremely low. He wants to remain with his family in Australia who are his only source of happiness. He said at the time of the offence he was vulnerable and dependant on drugs, did not comprehend the seriousness of his actions or the possible effect it could have on the future of his children, his partner and himself. He wants to be a better person and his friend has offered him employment.
In support of his claims, the Applicant provided copies of Certificates of Achievement dated 25 June 2019, 28 January 2020, and 19 November 2020 indicating he completed several courses whilst in prison, including religious studies with Crossroads (a Christian organisation).[43] He also provided a letter from his Crossroads mentor (Ms J), dated 25 January 2020, in which she encourages him to keep his faith, go to church and not mix with his old friends who started him on ‘ice’.[44] Also provided was a letter from the Applicant’s friend, Ms NHL, who owns a butcher shop stating that she is willing to offer the Applicant full time employment. She stated that she has known the Applicant for a long time, that he is a good man to his family and that she has seen his family struggle without him.
[43] Exhibit G2, pp 87 – 89.
[44] Exhibit G2, pp 94- 95.
In her letter to the Department, the Applicant’s de facto partner, Ms QAN, said that the Applicant is not a bad person, he just made a mistake and is sorry. She believes he was the victim of drugs, gambling and was vulnerable at the time of the offence. She said the offence was out of character and that the Applicant was deeply ashamed and regretful of his conduct. A medical certificate issued on 9 June 2021 stating that Ms QAN is suffering from major depression was also provided to the Department.[45]
Psychologist report
[45] Exhibit G: G2 p 106
The Tribunal has also had regard to the report prepared by Clinical Psychologist, Mr Sam Borenstein, dated 16 April 2021, which sets out the Applicant’s criminal history, family history, immigration history, education, employment history, personal circumstances and the events which led him to commit the offences of which he was convicted.[46] Relevantly, it records that the Applicant married his former partner (Ms TBN) in 2011 and had two children. However, he later learnt that the children were the product of an extra-marital affair. This event led to the Applicant using the drug ‘ice’ on a regular basis. He also developed a gambling disorder. He stopped using ‘ice’ when he met Ms QAN, his current partner.
[46] Exhibit G2, pp 78 – 84.
The report indicates that about eight months prior to being charged with the drug supply offences, the Applicant was pulled over by police and charged with possessing heroin and cash and was held in Silverwater on remand for a period of two months. He was subsequently released on bail and the charges were later withdrawn. Whilst in Silverwater he started using ‘ice’ and continued to use it. The Applicant met an inmate who later contacted him and asked if he knew anyone that wanted to buy ‘ice’. The Applicant knew someone who had a small child and was having problems with money, so he tried to help him by introducing him to the inmate. He said at the time he was using ‘ice’, was being foolish and not thinking straight.
In Mr Borenstein’s opinion, the Applicant suffers from sensitivity to attachment, loss and separation, and fears abandonment. He found that the Applicant was suffering from recurrent depression, against which he medicated with ‘ice’ and suffers a gambling disorder. He recommended that the Applicant consult a psychologist and undertake necessary bereavement counselling which dates to his father’s death, compounded by the end of his first marriage. He considered that psychological treatment would significantly reduce the likelihood of the Applicant finding himself in similar scenarios, as was the case leading up to and during the offending period.
Sentencing remarks
The Tribunal has also had regard to the sentencing remarks of Judge Flannery SC, in which she accepted that the Applicant was remorseful. Her Honour considered, having regard to the Applicant’s remorse, the position he put his de facto partner in, and the steps he has taken to improve himself, that the Applicant is unlikely to reoffend and has a reasonable to good prospect of rehabilitation, particularly if he got the sort of treatment that Mr Borenstein referred to in his report. Her Honour accepted that the motivation for becoming involved in the offending was to feed his drug addiction and pay his debts. She was satisfied that the Applicant was vulnerable to depression and anxiety and self-medicated using ‘ice’, which eventually took over his life and made it difficult for him to function effectively at the time of the offence. Her Honour accepted that the Applicant had not used prohibited drugs in custody and was committed to rehabilitation and found that the applicant was remorseful, had insight to his offending, had the support of his family and partner and was satisfied that he had good prospect of rehabilitation.
The Applicant’s statement dated 23 June 2023
The Tribunal has also had regard to the Applicant’s statement in which he detailed his travel to Australia, study, his father’s death in 2012, visits to Vietnam, his marriage to Ms TBN and finding out that the two children she gave birth to were not his and were the result of an extra-marital affair, and the breakdown of that relationship.
In relation to his 2009 shoplifting conviction the applicant said he was ashamed and never shoplifted again. He said he started using drugs to cope with the loss of his father in 2012. In relation to the offence of being involved with the cultivation of cannabis, the Applicant said in August 2013 he drove some friends to a house which was being used to grow cannabis and that he had been to that house before to help them move some plants around. He was charged with possessing and supplying cannabis. He did not sell any cannabis and was afraid of going to gaol, given the seriousness of the charges, so he so pleaded not guilty. He was granted bail in respect of those charges. In March 2015 he pleaded guilty to the lower charge of being involved in the cultivation of cannabis and was sentenced to a bond for 19 months. The Applicant said he pleaded guilty to the offence because he knew his friends were using the place to grow cannabis and he helped them by cleaning up the place.
The Applicant said that in May 2017 he was pulled over by police at 1:00 am while driving and that he tested positive for methamphetamine. He does not remember being intoxicated but at the at the time he was using ‘ice’ three times a week. The Applicant said that in August 2017, at about 11:00pm, police again pulled him over when he was driving. They searched him and found some cannabis. They asked him if there was anything in the car and he told them there was $50,000 from the sale of the nail salon business.
The Applicant said that on 10 November 2017 the police again stopped and searched him. He was carrying $25,000 which he was going to send to Vietnam. There was some powder in his bag which the police thought was heroin. He was charged with drug supply offences and was refused bail. The Applicant was subsequently released on bail (on 27 December 2017), with a surety. The charges were later withdrawn, however, by that time the Applicant had spent up to two months on remand in Silverwater.
The Applicant said that after he was released on bail, he tried find a way to support and provide for his family. When he was in prison in 2017, he had met prisoners who were involved in the supply of methamphetamine. They told him they could help him get large enough quantities of ‘meth’ to sell to other dealers. After getting out of prison, he could no longer work at the seafood company and was having trouble finding work to support his wife and three children, so he made the mistake of contacting the people in prison and they told him about getting access to large amounts of drugs. They explained to him that by arranging a successful meeting between the buyer and seller he could get a share of the profits. He met someone who wanted to buy half a kilogram of ‘ice’, he took them to meet with his co-offender (Mr TKN). He helped him transfer the package to the car. He received some money which helped with his financial problems. He kept texting the purchaser and encouraged them to buy more methamphetamine. He said he knew it was wrong and is ashamed of what he did, but it was the easiest way to support himself when he had been released from prison and could not find legitimate work. He arranged for the purchaser to buy three kilograms of methamphetamine from the people he was introduced to when he was in prison. When his co-offender arrived in the car with the drugs the police arrested them. The police found cash at his home, which was for drug dealing and a lease document for a property he used to deal drugs as the agent would not release him from the lease. The police found 844g of methamphetamine at that property.
In relation to his conduct in prison between 15 June 2018 and 27 October 2022, the Applicant stated that the first year in prison was difficult for him. Other inmates knew that he was there for drug offences, and there was a lot of drug use in prison, so people asked him to hold drugs or tobacco for them. He said there were occasions when he got in trouble because tobacco and other contraband were found in his cell. He sometimes took responsibility for things that belonged to other people because there would be consequences if he told the prison authorities about other people’s activities.
The Applicant stated that he thought about his future with QAN and kids, a life he could look forward to, and decided to plead guilty to the offences. In December 2020, his pleas were accepted by the court and his case was listed for sentencing. By that time, he had been in prison for three years. He was sentenced to seven and a half years in prison with a non-parole period of four and a half years. He was granted parole in August 2022 and transferred to Immigration detention.
He was released from Detention on 22 December 2022 and was happy because he could go back and live with Ms QAN and the children. Later he heard from others that the government was going to cancel the visas again and they would have to return to Villawood. He did not want to think about that possibility because he was happy living with Ms QAN and the children. The chance to live with his family again for the first half of 2023 has strengthened his resolve to change his life for the better. He is now almost 36 years old and feels strongly that he needs to support his family. He is a different man to the one who was arrested for methamphetamine dealing five years ago.
The Applicant said he was sorry for all his past offences. He said his most serious offences were committed at a time when he was dependent on drugs. He was foolish and was not in his right mind and did not comprehend the seriousness of the offence and the effect on his loving partner and children. His partner and children need him. His partner suffers from depression. He wants to raise the children in a safe and caring environment. He promised that if given another chance he would not reoffend and will be able to prove that he is good member of the Australian society.
Statement from the Applicant’s de facto partner, Ms QAN
The Tribunal also had regard to the statement provide by Ms QAN in support of this application for review. She said that the Applicant is a person of good character with a kind heart. He has made several mistakes in his life, but she wholeheartedly believes that he has faced the consequences and understands the risks which he could potentially put others in. She said the Applicant has suffered from recurrent depressive order and separation anxiety and that these mental illnesses were a large factor in his offending, where he turned to drugs and gambling as an escape. She said at the time of his offending he had an extremely vulnerable mindset which allowed for bad influences to sway his rational decision making.
Letters of support from family and friends
The Tribunal has also considered the letters of support provided by Ms QAN’s parents and friends, in which they indicate that the Applicant is a good person, a loving husband and father and that his offences are out of character.[47]
Letter from State Parole Authority
[47] Exhibits A3 – A8
Letter from the State Parole Authority dated 26 August 2022 and Parole Order – indicating that the applicant, if released into the community, would be subject to parole conditions until 27 October 2025.
Pre-Release Report - 4 August 2022
The Tribunal has had regard to the pre-release report which provides a background to the Applicant’s offending, his responsivity, programs completed in prison, post release plans (including supervision whilst on parole), and an assessment of the risk of reoffending for the purpose of supervision whilst on parole. The Applicant was assessed by the corrections officer as being a low/medium risk of reoffending.
The matters contained in the pre-release report are highly relevant to the Tribunal’s assessment of the likelihood of the Applicant engaging in further criminal or other serious conduct. The Tribunal has carefully considered the evidence therein together with other information and evidence before it, including that which was provided at the hearing, as follows.
Assessment of the information and evidence
The Applicant has been convicted of nine offences, eight of which are drug related. The Tribunal accepts that the first offence (shoplifting) committed by the Applicant shortly after his arrival in Australia is of a very different nature to his later offences. The Applicant indicated he was ashamed and never shoplifted again. There is no evidence that the Applicant has been engaged in conduct of a similar nature. On this basis, the Tribunal is satisfied that the risk of the Applicant committing shoplifting offences is very low.
There was a gap of four years (until August 2013) when the Applicant next engaged in criminal conduct, being the involvement in the cultivation of cannabis offence. In his statement to the Tribunal, the Applicant indicated that at the time of the offence he was using drugs to cope with the loss of his father. He appeared to take responsibility for his conduct and said he pleaded guilty in March 2015 to that offence because “he knew his friends were using the place to grow cannabis and he helped them by cleaning up the place”. In contrast, in his oral evidence at the hearing, the Applicant denied having any knowledge that there were drugs at the house. He said it was the first time he went to the house, that he was at the back of the house and did not see any drugs, and he was not told that there were any drugs at the house.
A discrepancy arose between the evidence in the Applicant’s statement, in which he said he had been to the house previously, and his oral evidence, in which he said it this was the first time he had been to the house. The information in the police facts sheet[48] indicates that it was another person, whose name was redacted, who said they had been to the house previously. The police facts sheet indicates that the Applicant ran from police and, following a foot pursuit, was located (semi-unconscious) by officers, as he appeared to have suffered a fall, and the ambulance were called. The facts sheet records that the Applicant told police he had little memory of the incident. The Tribunal accepts, as contended on behalf of the Applicant, that the discrepancy in the evidence in the statement about the Applicant having been to the house previously was an oversight. Even accepting that it was the Applicant’s first time at the house, the Tribunal nevertheless remains concerned that the Applicant now seeks to downplay his involvement by suggesting he was innocently caught up in the events and had no knowledge that the house was being used to cultivate cannabis. This casts doubt over whether the Applicant has genuinely taken responsibility for his offending conduct and raises concerns about whether he may become involved in such conduct in future.
[48] Exhibit R2 pp 6-9

In March 2015 the Applicant was sentenced to 19 months of imprisonment which was suspended. During that period, the Applicant appears to have complied with the conditions of his s 12 bond. He did not come to the attention of police until May 2017 when he was stopped by police and subjected to an oral fluid test which produced a positive detection to amphetamines.[49] A subsequent blood sample confirmed that the Applicant had methamphetamine in his blood, and he was subsequently convicted of the drive vehicle with an illicit drug present in his blood. The Applicant indicated in his oral evidence that at the time he was using ‘ice’ a few times a week and was not taking it as often as before. He denied being under the influence of ‘ice’ on the night he was subjected to the blood test and said he had only used it a few days prior. The Tribunal formed the view that the Applicant was again seeking to downplay his wrongdoing and did not fully appreciate the risks associated with having drugs present in his blood whilst driving. This also raises concerns about whether the Applicant may engage in such conduct in future.
[49] R3 – 13 -14.
Three months later, in August 2017, the Applicant again came to the attention of police. The police Facts Sheet indicates that on 29 August 2017 the Applicant was stopped by police at a petrol station in Campsie and asked to exit the vehicle so that his car could be searched as they had suspected he may have drugs in his possession. When the Applicant exited the vehicle, he had a small clear resealable bag in his hand which contained green vegetable matter. The Applicant informed police that the drug was cannabis and that it was his.[50] By contrast, when asked about the events of this conviction during examination in chief, the Applicant gave evidence that when he was stopped, he told the police he had $50,000 in the back seat and that he did not have any drugs. He said they asked him to get out of the car and found a cannabis flower bud in the car. He denied it was his cannabis. He said he was not using cannabis at the time and did not think there was any cannabis in the car. He said the cannabis belonged to his friend, whom he had met earlier, as they had travelled together in the same car. He said his friend left it (the cannabis) in the car and forgot to take it with him when he got out. When the inconsistencies in his evidence about who the cannabis belonged to were put to the Applicant under cross-examination, the Applicant said he cannot recall and that whatever he said was not what police wrote down. He said maybe his English was not good and he told them it was his friend’s cannabis, but they did not understand him. He said the statements are sometimes not the truth. He said, “when you commit an offence and appear in court, the defence will have the sentence reduced so even though you are innocent, you are actually in the wrong place at the wrong time, so it is better to admit it”.
[50] Exhibit R4, 18 – 19.
The Tribunal gives more weight to the information in the police facts sheet (as set out above) as it is more consistent with the contemporaneous narrative recorded by police about the event,[51] and indicates that police observed that the Applicant was holding a plastic bag in his hand which contained cannabis. The Applicant’s attempt to blame others, (his friend whom he claimed was the owner of the cannabis, and police for not writing down what he claims to have told them and not understanding him), and his refusal to accept responsibility and denial of wrongdoing, despite evidence to the contrary, casts doubt over whether he is genuinely remorseful for his past offending conduct.
[51] Exhibit R17, p 125
Three months later, in November 2017, the Applicant again came to the attention of police. He was stopped and searched, and police found $25,000 and white powder in his car. The Tribunal accepts that the charges relating to that incident were eventually withdrawn. This incident, however, led to the Applicant being imprisoned for about two months because he was initially refused bail. The evidence before the Tribunal indicates that the Applicant blames police for charging him with the offence (which was later withdrawn) that led to him being refused bail. In the pre-release report, the corrections officer notes that the Applicant feels he was set up by police and blamed them for allegedly wrongly charging him with an offence, which resulted in him being held on remand in Silverwater, during which time he met the negative associates who encouraged him to commit his most recent offences.[52] The pre-release report indicates that the Applicant told the corrections officer that if he was not bail refused he would not have met the associate and the offences would not have occurred. The evidence suggests that the Applicant, even after pleading guilty, being sentenced, and having served over four years for the supply of methamphetamine and proceeds of crime offences, still blamed others for his predicament. The Tribunal formed the view that the Applicant, instead of taking responsibility for his part in the offences, shifted the blame onto the police and his former inmate.
[52] Exhibit R14, pp 71 – 72.
At the time the Applicant was engaged in the conduct which led to him being convicted of the supply of methamphetamine and deal with proceeds offences (between April 2018 and June 2018), he was also the subject of proceedings before Burwood Local Court in relation to the possess prohibited drug (cannabis) charges. In a signed letter to the Magistrate, dated 4 April 2018, the Applicant said he was sorry for his offending and the resources that have been wasted because of his lapse of judgement. He said he is a father of three young children, his priorities were misplaced and that he wants to fix his energy on his children and family. He said he is lucky to have the support of his partner and her parents. He said he helps his partner and wants to be a positive role model for his children. He has accepted responsibility for what he has done and has learnt from the ordeal, so it does not happen again. He said he was embarrassed and ashamed. He said he was working at a nail Salon for 20 hours a week and managed the staff with his mother-in-law and that this had given him a way to earn money and support his family. He said his focus was on his family and children and he wants his children to look up to him and this starts with him obeying the law.[53]
[53] Exhibit R6, p21
In her letter to the Magistrate, Ms QAN states that she and the Applicant have three children. She pleads with the magistrate to be merciful when sentencing the Applicant, she provides details of the assistance she receives from the Applicant and indicates that he works at the nail salon and cares for her. She states that the Applicant is remorseful, that their eldest daughter will commence kindergarten the following year and that she wants the Applicant to be a role model for the children.[54] At the hearing, Ms QAN denied having any knowledge of this document. The Tribunal observed that the letter was not signed.
[54] Exhibit R7, p 22.
The Tribunal notes that on 5 April 2018 the Applicant received a s10 (good behaviour) bond for two years in respect of the possess prohibited drug charge. At the hearing, the Tribunal raised with the Applicant the concern at the time he was seeking leniency in relation to the possess drug charges he was also engaged in the supply of methamphetamine. It also noted that he had indicated in his letter to the Magistrate that he was working at the time which was contrary to the evidence in his statement that the reason he contacted his former inmate and became involved in the supply of drugs was because he could not find work to support his family.[55] The Applicant initially indicated that he was not familiar with the document (the letter to the Magistrate) but confirmed that it was signed by him. He said he helped his mother-in-law but was not working because he did not have permission to work. The Tribunal noted that he was granted a Bridging C visa on 5 March 2018 with permission to work. The Applicant said, when he was released, he was using drugs and was not thinking or acting sensibly. He said he knows he did the wrong thing. He said if given the opportunity he can become a better person. He said he is sorry for what he has done and that it severely affected his family. He said everything that he did, the drugs and the illegal activities occurred after the passing of his father in 2012 and that the biggest loss of a child is to lose their father and he does not want this to happen to his children.
[55] Exhibit A1, pp 5-6.
The Tribunal observed that on 15 March 2018 and 5 April 2018 he was referred to Drug Health Services, Magistrate Early Referral into Treatment Program (MERIT) and that on both occasions he was found not to be eligible because he did not have a demonstrated illicit drug problem. In response, the Applicant said at the time he was not addicted to cannabis. He also said that he refused to do the program and did not want to join.
The Tribunal notes that the Applicant was granted a visa with permission to work in March 2018, and could, if he so wished, have engaged in legitimate employment to support his family. The Tribunal considers that the reason the Applicant likely engaged in the supply of methamphetamine was for financial gain. In his statement, the Applicant said he contacted people in prison about getting access to a large amount of drugs and they explained to him how he could get a share of the seller’s profits.[56] The Tribunal considers that the Applicant was likely attracted to the prospect of making a large sum of money, which he may not have been able to make through legitimate employment.
[56] Exhibit A1 pp 5 – 6.
The Tribunal is also concerned that the Applicant had refused to get assistance through the Drug Referral Service despite being referred for the program on two occasions. The Tribunal has discussed this concern in greater detail further below.
In relation to the supply of methamphetamine and deal with proceeds offences, the Tribunal notes that the Applicant pleaded guilty in December 2020 and served four and a half years in prison before being granted parole. The Tribunal formed the view that the Applicant pleaded guilty to the offences not because he acknowledged his wrongdoing but because, having already served almost three years in prison, he was likely to be released sooner. While the information in the Applicant’s statement (as set out above) suggested that he may have accepted full responsibility for his part in the supply offences, his evidence at the hearing indicated a denial of wrongdoing and the shifting of blame.
When giving evidence during examination in chief about his role in the supply offences, the Applicant said that it was his former inmate and the undercover officer that had approached him about supplying a large quantity of ‘ice’ and that he initially rejected the offer. The Applicant said he rejected the offer three times but was told he did not need to do anything and just had to refer ‘them’. The Applicant said he contacted the inmate in gaol and just provided them with the numbers of those who were interested. He said he did not think he was committing an offence as he just did the referral. The Applicant’s evidence was that the undercover officer kept texting him and asking him to come, but that he was busy and so gave her his colleague’s the number.
The Applicant gave evidence that remained involved in the ‘deals’ because he was trying to recover the money that he had borrowed from Ms QAN to go to Adelaide and meet the undercover officer’s ‘boss’ and discuss a large supply (three kilograms of ‘ice’). When asked in examination in chief what his role was in relation to that ‘deal’, the Applicant said he was “just the messenger”.
When the Applicant’s home and another property he had leased were searched, police found large amounts of cash, drugs, and a gun. While the Applicant admitted in his oral evidence that the 800g of ‘ice’ belonged to him, he denied any knowledge or ownership of the of the cash or the gun.
The Tribunal considers that the Applicant’s evidence about his involvement in the supply of methamphetamine offence and dealing with proceeds of crime was in contrast with the findings of the sentencing judge that the applicant was identified as “the point of contact” and as a person “involved in the exchanges themselves”.[57] In seeking to shift the blame for his involvement on to his former inmate and the undercover police officer, the Applicant has demonstrated an unwillingness take responsibility for his actions and a failure to comprehend the impact of his conduct.
[57] Exhibit G2 p, 35.
The Tribunal’s observation is consistent with information in the pre-release report which indicates that the Applicant failed to recognise, without prompting, the damage or ongoing impact that could have been caused to the community if the illicit substances were accessed by the community.
The Applicant’s lack of insight into his offending and the impact of his conduct, as considered above, casts doubt over his claims of remorse which, in the Tribunal’s view, increases his recidivist risk.
The Tribunal is also concerned about the Applicant’s conduct while he was in prison. In his statement, the Applicant makes no mention of his wrongdoing in prison but refers to taking responsibility for things (tobacco and other contrabands) that did not belong to him. The evidence before the Tribunal, however, indicates that that between 2018 and April 2022 the Applicant was involved in numerous breaches whilst in custody. The breaches included possessing prohibited goods, possessing drugs, manufacturing prohibited goods, possessing drug implements, fighting, and receiving (from visitor) unauthorised articles. The prison reports also indicate that the Applicant, on several occasions, failed or refused to take a drug sample, with the most recent incident being on 18 April 2022, when the Applicant refused to supply a urine sample as directed by the prison officer.[58] When asked at the hearing about his conduct in prison, the Applicant mentioned the occasion on which he admitted to having tobacco even though it belonged to another inmate. When asked specifically about a contraband he received during a visit in February 2020, the Applicant said he was addicted to drugs and asked his wife (Ms QAN) to just bring in cigarettes.
[58] Exhibit G4, R11 & R12
The Tribunal again formed the view that the applicant, while acknowledging that his first year of prison was difficult, sought to downplay his own involvement in the breaches whilst in prison and shifted the blame on to other prisoners. His evidence appears to be contrast with prison records, which indicate that in February 2020 the Applicant was identified as “a primary figure with the introduction and distribution of contraband within Long Bay Hospital Correctional Centre”.[59] The prison record pertaining to the ‘cigarettes’ incident indicates that Ms QAN, when visiting the Applicant in prison with two of the children, had brought in nine balloons of tobacco, three of which were ingested by the Applicant. When the prison officer noticed what was happening via CCTV, they terminated the visit, confiscated the remaining balloons and Ms QAN was questioned.[60]
[59] Exhibit R13, 69.
[60] Exhibit R11 p53, R12 pp, 65 -66
It was contended on behalf of the Applicant that after this incident there was an improvement in the Applicant’s behaviour, that he pled guilty in December 2020 and that his good behaviour continued through 2021, after his visa was cancelled and he was facing risk of removal from Australia. It was submitted that the consequences became apparent to the Applicant and there were significant changes in his attitude and responsibility towards his family.
The Tribunal accepts, based on prison records, that the incidents of breach and misconduct by the Applicant had significantly reduced, however, it was not entirely absent. On 18 April 2022, the Applicant refused to take a drug test despite being informed that the failure to comply with the direction will attract the same penalties and conditions imposed for a positive drug test. This raises a further concern which the Tribunal has about whether the Applicant’s drug issues have been adequately addressed.
The Applicant’s evidence is that he committed the offences as a victim of his own drug and gambling addictions. Mr Borenstein in his report noted that the Applicant had been using ‘ice’ on a regular basis and developed a gambling disorder, was sensitive to issues of loss and separation, and had a propensity to recurrent episodes of depression which placed him at greater risk of medicating with ‘ice’. Mr Borenstein recommended that the Applicant get psychological treatment and undertake bereavement counselling. Judge Flannery when sentencing the Applicant also noted that the Applicant had reasonable to good prospects of rehabilitation if he got the kind of treatment recommended by Mr Borenstein.
While there is evidence of the Applicant successfully completing several programs while he was in prison, there is limited clinical evidence before the Tribunal about whether these programs have assisted the applicant in addressing his drug and gambling addictions. There is also limited evidence of the Applicant having undertaken bereavement counselling to address his past issues of loss and separation, which have in the past led to episodes of depression. In his oral evidence, the Applicant indicated that he saw a psychologist in prison but did not find it helpful. He also indicated that he attended a drug use education course, which was part of the HIPU program, where he learnt strategies to help him not reoffend.
The Tribunal has had regard to the courses and programs completed by the applicant while he was in prison. It has first considered the religious studies undertaken by the Applicant in 2019 and 2020 and the letter from the Crossroads mentor, dated 25 January 2020, in which she encourages the Applicant to keep his faith, go to church and not mix with his old friends who started him on ‘ice’. At the hearing, the Applicant said he participated in these courses by responding to questions, he started to realise who he is, what he did wrong, such as relying on drugs and not thinking of the consequences, and how his actions, which led from one wrongdoing to another, caused misery to himself, his family, the community, and the society.
The Tribunal has also had regard to the Equips program that the Applicant completed, and the observation of the programs officer that the Applicant realised that he was the cause of so much stress and the impact this has had on himself, his family and his friends.[61] The Applicant has also successfully completed other courses as part of the HIPU program during which he learnt new skills to assist him to deal with issues in a more positive way, to stop, think, and walk away from certain situation to get better outcomes for himself.[62]
[61] Exhibit R15 p 93.
[62] Exhibit R 15, p 102
The Applicant’s participation in courses and programs while in prison, and the officer’s observations about what he has learnt, including the Applicant’s acknowledgement of the impact his offending has had on his family, suggests that the Applicant is remorseful, however, his remorse appears to be largely related to the stress experienced by his family because of his convictions and not necessarily remorse for his offending conduct. This view was formed on the basis of the Applicant’s oral evidence at the hearing, during which he downplayed his involvement in the offences, his denial of wrongdoing and blaming others (including the police) for his conduct. The view formed by the Tribunal is consistent with the observations of the corrections officer in the pre-release report in which she noted that the Applicant recognised the impact on his current partner and their children, and on his family in Vietnam, but believed that the harm caused was due to his incarceration and not due to the fact that he committed the offences.

Having found, for the above reasons, that it is in the best interest of the Applicant’s biological children for the visa cancellation to be revoked, the Tribunal finds that this consideration weighs heavily in favour of revocation.
PRIMARY CONSIDERATION 5 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5(1) of the Direction provides that 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.
Paragraph 8.5(2) of the Direction directs that the non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or;
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. It states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[78]
[78] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466; and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government on which the decision maker must have regard.
The Applicant in this case has breached the expectations of the community by engaging in serious criminal conduct in Australia. Consequently, the expectation of the Australian community, as stipulated in paragraph 8.5(1), is that cancellation of the Applicant’s visa should not be revoked.
The Tribunal notes that the Applicant’s offending does not fall within the categories of offences specified in subparagraphs 8.5(2)(a)–(f).
The Tribunal has found above that there is an appreciable risk of the Applicant re-offending or engaging in serious conduct. However, even if the Applicant does not pose a measurable risk of causing physical harm to the Australian community, the expectations of the Australian community, as stipulated, applies regardless of the level of risk the Applicant poses: paragraph 8.5(3).
The Tribunal has had regard to the submission made by counsel for the Applicant that involvement in the supply of a commercial quantity of drugs does not invariably result in the conclusion that an Applicant with young children, whose relationship with the Applicant has been disrupted by the imposition of a significant custodial sentence, must be removed from Australia. It was also submitted that it is not the case that the expectations of the Australian community dictate that those involved in the supply of methamphetamine should not receive the benefit of an order of revocation. Counsel for the Applicant referenced two Tribunal decision (Toroa and Minister for Immigration [2023] AATA 1717 and RRCX and Minister for Immigration [2022] AATA 379) where the Applicants in those matters, who were convicted of supply offences and sentenced to long terms of imprisonment and had Australian citizen children, were successful in having the cancellation of their visas revoked.
The Tribunal agrees with the general submissions made by counsel, however, considers that each case must turn on its own unique set of facts. For example, in the matter of Toroa, the applicant in that case was a 43-year-old male who arrived in Australia when he was ten years of age and all his immediate and extended family, except for one sister, resided in Australia. Similarly, the applicant in RRCX was a 35-year-old male who had arrived in Australia at the age of 11 as the holder of a child visa. Having spent most of their formative years in Australia, the Australian community may afford a higher level of tolerance for their offending conduct, this was the case in the circumstances of the Applicant in Toroa.
The Tribunal does not consider the circumstances of this case are such that the Australian community would afford the Applicant a higher level of tolerance as provided for in the principle at paragraph 5.2(5). The Applicant arrived in Australia as an adult, at the age of 21, and of the 14 years that he has lived in Australia, almost five have been spent in prison or Immigration detention.
Conclusion on Primary Consideration 5
In considering the evidence overall, the Tribunal concludes that the primary consideration of the expectations of the Australian community weigh heavily against revocation.
OTHER CONSIDERATIONS
The Tribunal is required to take into account other consideration, listed in paragraph 9 of the Direction.
(a)Legal consequences of the decision
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.
The Tribunal is mindful that if the cancellation of the Applicant’s visa is not revoked, he will continue to be detained under s 189 of the Act and be liable for removal from Australia as soon as practicably possible, unless he is granted another visa.[79] Due to the operation of s 501E the Applicant is prevented from applying for another visa unless it is a protection visa or a Bridging R visa.[80] The Tribunal is also mindful that, due to the operation of s 501F, which resulted in the consequential refusal of his pending application for a combined Partner (Subclass 820/801) visa, if the visa cancellation is not revoked, the Applicant’s Subclass 820/801 visa will not be revived.
[79] Migration Act, s 189.
[80] Migration Regulations, Reg 2.12AA.
The Tribunal has had regard to the Applicant’s submission that if he is removed from Australia (to Vietnam) that he will be prevented from visiting his children in Australia.[81] The Tribunal accepts that, as a consequence of removal, the Applicant will be subject to special return criteria 5001 and would not satisfy the requirements for the grant of another visa unless the Minister (acting personally) grants the visa. The Tribunal accepts that, in the circumstances, the Applicant will not be able to visit his children in Australia. The Tribunal acknowledges that this is a significant consequence of a decision not to revoke the visa cancellation, however, it is one that is intended by the legislation.
[81] ASFIC [38]
The Tribunal has next considered paragraph 9.1.1 which applies to non-citizens covered by a protection finding[82] and 9.1.2 which applies to non-citizens not covered by a protection finding. In this case, the Applicant is not the subject of a protection finding pursuant to s 36(a) or s 36(aa) of the Act. That is, no findings have been made that the Applicant is a person in respect of whom Australia has protection obligations.
[82] Migration Act s 197C(5)
The Applicant applied for a Protection visa on 21 February 2023 but withdrew that Application on 27 June 2023. Consequently, the Applicant not subject to s 48A or s 501E of the Act and can, if he so wished, apply for another Protection visa.
While the Applicant raised claimed (for the first time at the hearing) that he feared returning to Vietnam because of his religion (Cao Dai), the Tribunal did not consider it appropriate, given the lack of sufficient detail pertaining to the Applicant’s claims, the constraint of time by which the Tribunal must make its decision on the review, and the fact that the Applicant is not prevented from applying for a protection visa, to consider the claims and make findings about whether or not the Applicant is a person in respect of whom Australia has protection obligations. It is appropriate in the circumstances for the Tribunal to defer such considerations and for the Applicant’s claims to be more comprehensively assessed as part of a protection visa process, should he wish to make such an application. The Tribunal notes that, as provided for in s 36A of the Act, any protection claims made by the Applicant would be assessed prior to consideration being given to any character or security concerns.[83]
[83] Paragraph 9.1.2(2) of Direction 99.
Given that the legal consequences of the decision are those intended by the legislation and given that the Applicant is not prevented from lodging a Protection visa, the Tribunal considers that the legal consequences of the decision weigh neither for nor against revocation. This consideration is therefore neutral.
(b) Extent of impediments if removed
The Tribunal must also consider the extent of any impediments the Applicant will face if removed from Australia to his home country of Vietnam. The Tribunal is required to make this assessment having regard to the Applicant’s age and health; whether there are substantial language and cultural barriers; and any social, medial and/or economic support available to them in that country. The Tribunal has considered the evidence before it pertaining to these factors, as well as other matters raised by the Applicant.
In addition to the legal impediment of visiting his children in Australia, which the Tribunal has considered above, it was also submitted that there will be an economic to making the arrangements for the children to visit him in Vietnam. It was also submitted that while the Applicant pursued some education in Australia, his employment history does not indicate a likelihood that he will be able to earn a significant level of income in Vietnam. It was submitted that the applicant's earning capacity will be reduced in Vietnam, and that his removal from Australia would present a more significant impediment to the maintenance of a relationship with his children than his incarceration or detention.
The Applicant is 36 years old, which the Tribunal considers to be relatively young. There is no evidence before the Tribunal, and the Applicant has not indicated, that he suffers from any physical health issues. The Tribunal however acknowledges the Applicant’s evidence that he suffers from depression and has also had regard to the psychological assessment of Mr Borenstein’s which indicates that the Applicant suffers from recurrent depression, which dates to the death of his father and breakdown of his first marriage. The Tribunal acknowledges the Respondent’s submission regarding the lack of current evidence pertaining to whether the Applicant suffers from any mental health condition and whether he has sought treatment whilst in custody, immigration detention or when he was released in the community. Nevertheless, the Tribunal considers that the Applicant’s mental health is likely affected, though the extent of which is uncertain given the lack of current clinical evidence, by his current circumstances and the prospect of being separated from his family in Australia. The Tribunal considers that the Applicant may be able to seek assistance for his mental health in Vietnam. The DFAT Country information report on Vietnam indicates the following regarding the availability of mental health services:
“Mental healthcare is available at different levels including at national, provincial and commune hospitals and clinics. About half of the provinces have a mental health facility at the main hospital. There are three national mental health hospitals in Hanoi and HCMC. Medication for mental health conditions is provided at provincial, national and some district hospitals.”[84]
[84] Department of Foreign Affairs and Trade Report on Vietnam, January 2022, p 9.
The Applicant was born and lived in Vietnam until he was 21 years of age. The Tribunal accordingly considers that he will not face any language or cultural barriers if he returns to Vietnam. The Tribunal notes that the Applicant’s mother and brother reside in Vietnam. In his evidence at the hearing, the Applicant indicated that he would receive support from his mother, including accommodation.
The Applicant has not completed any qualifications in Australia, though he has employment experience as a delivery driver, packer, and seafood worker. The Tribunal accepts that such experience may not indicate a likelihood of the Applicant earning a significant level of income in Vietnam. The Applicant also has experience in establishing and operating a nail salon business in Australia and has undertaken a hairstyling course whilst in prison.[85] These skills are likely to assist the Applicant upon his return to Vietnam, though Tribunal acknowledges the Applicant’s evidence at the hearing that the economy in Vietnam is very different to Australia and that running a business in Vietnam requires capital and connection. The Tribunal accepts that the economic conditions in Vietnam are different to those of Australia and that the Applicant is likely to experience some difficulties re-establishing himself there. Nevertheless, given the Applicant’s age, employment and business experience, family support, the Tribunal considers that the Applicant will be able to maintain basic living standards, in the context of what is generally available to other citizens in Vietnam.
[85] Exhibit R14, p74.
The Tribunal acknowledges that the Applicant’s earnings in Vietnam may not be the same as that in Australia and that may not have the financial capacity to facilitate his partner and children travel to Vietnam to visit him, which would impede his ability to maintain a relationship with the children. The Tribunal acknowledge that when the Applicant was in prison or Immigration detention, the children were still able to visit him in person. It accepts that, unless arrangements can be made for the children to travel to Vietnam to visit the Applicant, his removal would present a significant impediment to maintaining a relationship with the children. In the circumstance, the Applicant would have to rely on phone and video calls to maintain a relationship with the children, which, as recognised above, is a poor substitute for meaningful physical interaction between the Applicant and his children.
The Tribunal accepts that the Applicant will face numerous impediments if he is removed to Vietnam, however, considering the Applicant’s age, employment and business experience, course he has completed, and family support, the Tribunal does not consider the impediments to be insurmountable.
In considering the evidence overall, the Tribunal considers that the extent of the impediments if removed weigh slightly to moderately in favour of revocation.
(c) Impact on victims
The Tribunal is required to consider the impact of a s 501 decision on members of the Australian community, including victims of the non- citizen’s conduct where information in this regard is available. There is no evidence before the Tribunal relevant to this consideration. This consideration is therefore neutral.
(d)Impact on Australian business interests
The Tribunal is required to consider any impact on Australian business interests if the Applicant is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where an adverse decision would significantly compromise the delivery of a major project or important service.
The Applicant has been offered employment by Ms NHL at her butcher shop in Marrickville. The Applicant has also indicated that he would work at his partner’s café, which she had purchased, if released into the community. However, not submissions have been made which would indicated that either of these businesses would be impacted if the Applicant were unable to remain in Australia to take up that work. This consideration weighs neither in favour of nor against revocation. It is therefore neutral.
CONCLUSION
As found above, the Applicant does not pass the character test. In considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked, the Tribunal has carefully considered all the evidence before it and weighed up the relevant considerations as guided by the Direction.
The Tribunal has found, after considering all the relevant evidence and information before it, that there is a moderate risk of the Applicant reoffending or engaging in serious drug related conduct. His criminal offences, particularly those related to the supply of large quantities of methamphetamine, were found to be serious, with the risk of harm to the Australia community, should the serious offending be repeated, considered to be widespread and devastating. The primary consideration of protection of the Australian community therefore weighed very heavily against revocation. The Applicant’s circumstances are not such that the Australian community would afford a higher level of tolerance of his criminal conduct and, as such, the expectation of the Australian community is that the Applicant should not be allowed to remain in Australia. The primary consideration of the expectation of the Australia community weighed heavily against revocation.
The Applicant’s partner and children will remain in Australia, which is their country of citizenship, even if the Applicant is removed to Vietnam. The Tribunal accepts that this is because the Applicant and Ms QAN do not want their children to be deprived of the educational, economic, and social advantages of living in Australia. Having found that it was in the best interest of the Applicant’s minor children that the cancellation of his visa be revoked, the Tribunal concluded that the primary consideration of the best interest of the Applicant’s minor children weighed heavily in favour of revocation. Further, having regard to the factors to which more, less, or considerable weight is to be given, the Tribunal found, after considering the evidence overall, that the strength, nature, and duration of the Applicant’s ties to Australia weighed moderately in favour of revocation. Other considerations of relevance are the extent of the impediments if removed, which the Tribunal concluded weigh slightly to moderately in favour of revocation.

Having weighed all relevant considerations individually and cumulatively, the Tribunal is not satisfied that the primary considerations of the best interest of the Applicant’s three minor children and Strength, nature, and duration of ties to Australia and the other consideration of impediments if removed to Vietnam outweigh the primary considerations of the protection of the Australian community and the expectations of the Australian community. For these reasons, the Tribunal is not satisfied that there is another reason to revoke the cancellation of the Applicant’s visa.
DECISION
The Tribunal affirms the decision not to revoke the mandatory cancellation of the Applicant’s visa.

I certify that the preceding 230 (two hundred and thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Skaros

........................................................................
Associate
Dated: 2 August 2023

Date(s) of hearing:

18-20 July 2023

Counsel for the Applicant:

S.J Young

Solicitors for the Applicant:

My Yen Tran, MYT Nguyen Solicitors

Solicitors for the Respondent:

Sophie Roberts, Mills Oakley Lawyers

Date(s) of hearing:	18-20 July 2023
Counsel for the Applicant:	S.J Young
Solicitors for the Applicant:	My Yen Tran, MYT Nguyen Solicitors
Solicitors for the Respondent:	Sophie Roberts, Mills Oakley Lawyers