NRST and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 208
•12 March 2025
NRST and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 208 (12 March 2025)
Applicant/s: NRST
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/10670
Tribunal:General Member S. Fenwick
Place:Melbourne
Date:12 March 2025
Decision:The Tribunal sets aside the decision under review and substitutes it with the decision that the discretion to refuse the grant of NRST’s visa should not be exercised.
........................[SGD]................................................
General Member S. Fenwick
Catchwords
MIGRATION – visa refusal – Partner (Temporary) (Class UK) visa – citizen of Vietnam – drug related offending – failure to pass the character test – whether discretion to refuse visa should be exercised – Ministerial Direction No 110 applied – strength, nature and duration of ties to Australia considered – best interests of minor child considered – Protection Visa refusal considered – decision set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
CKL21 v Minister for Home Affairs [2022] FCA 70
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
QXNS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] FCA 1369Tanlieu v Minister for Immigration and Border Protection [2014] FCA 673
Secondary Materials
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024)
Statement of Reasons
BACKGROUND
NRST applied on 19 December 2024 for the review of a decision by a delegate of the Respondent Minister dated 18 December 2024 refusing the grant of a Partner (Temporary) (Class UK) visa. The discretion to refuse under s 501(1) of the Migration Act 1958 (Cth) (the Act) was based on NRST’s failure of the character test by reason of his substantial criminal record, as defined in the Act.
The Applicant was born in Vietnam in 1990 and lived there until 2013 when, aged 23 years, he arrived in Australia. NRST undertook some study and intended to pursue further qualifications here but was convicted in 2015 of cannabis ‘crop sitting’ and was sentenced to 12 months in prison. His student visa was cancelled and NRST spent a period in immigration detention. Upon release the Applicant became an unlawful non-citizen, later applying for a Protection visa and then the partner visa the subject of this matter.
NRST’s partner visa application arises from his relationship with his long-term partner, Ms N, with whom the Applicant has a daughter, currently aged five and a half years. Ms N is also a citizen of Vietnam. In 2022 the Applicant was convicted of trafficking in methamphetamine and heroine, in an enterprise conducted by a former prison-mate, and was sentenced to just over 12 months in prison. NRST’s Protection visa application was refused and this decision was affirmed by the Administrative Appeals Tribunal in August 2022.
NRST was represented before the Tribunal and lodged a Statement of Facts, Issues and Contentions (ASFIC) and a Reply, as well as a bundle of documents principally comprising statements of support (AB). The Respondent lodged documents under s 500 of the Act (G) and a bundle of Supplementary G documents, being selected items from material lodged under summons, and a SFIC (RSFIC).
NRST gave evidence with the assistance of an interpreter in the Vietnamese language. His partner Ms N also gave evidence, as did one of the Applicant’s referees, Ms P.
LEGISLATION
As noted above, s 501(1) of the Act provides for the discretion to refuse the grant of a visa if the Minister is satisfied that a person does not pass the character test. Failure to pass the character test arises in this case by a substantial criminal record (s 501(6)(a)) constituted by a sentence of imprisonment of 12 months or more (s 501(7)(d)).
Exercise of the discretion is informed by the considerations set out in Direction No. 110 (the Direction), made under s 499 of the Act. The primary and other considerations set out in the Direction will form the structure for these reasons and reference will be made to the specified factors when making findings. The Direction also provides that consideration must be given to the specific circumstances of the case (5.1(2)), and it also sets out Principles (5.2) that provide a framework within which a decision must be made:
(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)The safety of the Australian Community is the highest priority of the Australian Government.
(3)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.
(4)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 measureable risk of causing physical harm to the Australian community.
(5)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.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non‑citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non‑citizen does not pose a measureable risk of causing physical harm to the Australian community.
ISSUES
I must first be satisfied that NRST fails the character test, and this fact is demonstrated by reference to the Applicant’s criminal history record (G2/B). Accordingly I must now determine whether or not to exercise the discretion in favour of refusal of the visa sought.
PRIMARY CONSIDERATIONS
Protection of the Australian community
Nature and seriousness of the applicant’s offending
In mid-2022, NRST was sentenced in a County Court after pleading guilty to two charges of traffick drug of dependence. The sentencing remarks provide a brief summary of this offending (G2/D). NRST worked with two co-accused across three properties in a scheme for the preparation, storage and distribution of methylamphetamine and heroine over a period of several months. Text messages confirmed the Applicant’s involvement in conducting transactions on behalf of the primary co-accused, and that NRST lived for some time on one of the properties raided by police.
The Applicant was paid in the form of drugs and accommodation and there was no other financial enrichment. He was charged only with trafficking heroin for a limited period, and methamphetamine on one day. However, the prosecution summary includes numerous references to NRST dealing methamphetamine on other occasions and assisting in its purification. He was also found guilty of cannabis possession but the matter was discharged.
The judge noted that NRST was said to have been experiencing difficulties in his relationship at the time of the offending. This included the deterioration in the relationship as his partner developed a mental health condition post-partum. With little other family support, NRST left the family home for a time and agreed to work with a person he previously met in custody in the drug enterprise.
The judge further noted the difficulty of NRST’s time in custody during the pandemic, including that he did not have access to rehabilitation programs. It was also accepted that he had reasonable prospects of rehabilitation. The judge noted the seriousness of the offending based upon the nature of the conduct and its scale, and found that its gravity merited a term of imprisonment.
Sentencing remarks are also available for NRST’s earlier conviction in 2015 (G2/C). The Applicant plead guilty to a single charge of cultivation of not less than a commercial quantity over a period of around seven months in 2014. He also plead guilty to a charge of theft of electricity for which a compensation order of over $11,000 was made. The cannabis operation was sophisticated, albeit NRST lived rent‑free at the premises pending a fee upon harvest and was not the organiser of the scheme.
It was accepted that the offending occurred in circumstances where financial assistance from NRST’s parents had stopped due to their separation and NRST was unable to make sufficient money during his studies to cover his expenses. The judge accepted the Applicant was somewhat naïve in not realising the consequences of associating with criminals, and – aged 24 – was sentenced as a youthful offender. NRST’s early guilty pleas were accepted as evidence of remorse and he was sentenced on the basis it was unlikely he would commit this offence again.
NRST acknowledges in written statements his offending history and the circumstances of both instances as outlined above (G2/N, dated 2 February 2024, and AB, dated 24 January 2025). In this material, and in his oral evidence, the Applicant explains that in respect of the second conviction, he ran into the primary co-accused when visiting a market and was offered money to be a housekeeper. He also gave evidence that he did not initially know that he was assisting with a drug trafficking operation, but acknowledged that he did engage in trafficking, as well as being a user of methamphetamine at this time.
The Applicant was asked in cross-examination why he offended a second time after already having served time in prison for his first offence. NRST responded that he really didn’t have any planning or intention, and there were too many pressures from his ‘mood’. He stated that the circumstances of the COVID-19 pandemic put him in that situation, and then he was enticed to use drugs.
I also note that in his 2025 statement (AB), the Applicant states that he considers he did not receive good advice at the time of applying for a spouse visa, suggesting that he should have obtained a bridging visa. He states that he may not have broken the law in this case, and if he understood the law better, he would not have caused suffering to his family.
Information provided as background to the decision of the Tribunal, differently constituted, in mid-2022 to refuse NRST’s application for a Protection visa (G2/AJ) indicates that his student visa was cancelled in late 2014 as he was found not to be a genuine student [11]. The Applicant was placed in immigration detention shortly after this, when released on bail. NRST was subsequently refused a Criminal Justice Stay visa, and in early 2015 his application for a Bridging Visa E was also refused [12].
The Tribunal’s reasons further relate that NRST again applied for a Bridging Visa E in 2016 and this was granted in March ‘on the basis that he would present a ticket for his departure from Australia by 1 April 2016’ [18 vii.]. The Tribunal also relates that there was no information to indicate a deportation order had been made, and noted that NRST admitted to having arranged the purchase of his own return ticket to Vietnam. This material appears to have been included in the reasons as a response to the Applicant’s claim that he failed to return to Vietnam because local authorities had made inquiries of his parents about his return. This caused the Tribunal to consider what evidence supported the implication that the authorities somehow knew about his impending arrival.
It is also apparent from written and oral evidence that NRST is subject to several pending charges for traffic offences (G16). He agreed in evidence that one outstanding charge is for unlicensed driving and that he has never held an Australian licence, but was not carrying his Vietnamese licence when stopped by police.
In the Applicant’s written and oral submissions, emphasis is placed on the exceptional circumstances in which his offending occurred, including financial challenges and, specifically with respect to the 2022 conviction, the conditions of the pandemic and relationship troubles. It is also contended the offending was driven by inexperience and stupidity. The contention is also raised that the penalties imposed were at the lower end of the available spectrum.
The Respondent submits that NRST has engaged in serious conduct that demonstrates increasing seriousness of offending. Written submissions in particular focus on the objective seriousness of drug offending and the contention that custodial sentences add weight to this consideration (RSFIC [27]–[30]). It is also contended that repeat offending exacerbates the inherent seriousness of the conduct, and that weight should be given to the cumulative effect of repeat offending, and indifference toward responsibilities held to the community (RSFIC [32]–[34]).
With reference to the factors identified in the Direction (8.1.1(1)), I consider that NRST’s drug‑related convictions indicate that his conduct should be considered as a serious form of offending. While the individual sentences are at the lower end of the range (8.1.1(1) c)), this does not detract from the importance that his conduct has been sufficient to be considered a substantial criminal record. I agree with the Respondent that weight should be given to an increase in seriousness (indicated by involvement with hard drugs in the latter conduct) (8.1.1(1) e)), and to the cumulative effect of repeat offending (8.1.1(1) f)).
It is a matter of some concern that NRST re-offended after having already experienced prison (8.1.1(1) h)). This matter was not dealt with explicitly in submissions, and I have noted above what appears to be a contention raised in at least one of the Applicant’s statements that he has in the past been confused about his immigration status, or visa options. It is also not entirely clear to me from the reasons of the Tribunal in the Protection visa refusal whether or not NRST did have a genuine misunderstanding about his intended return in 2016. Regardless, it must be noted for the purpose of my considerations overall that, whatever his explanation, NRST knowingly remained in the Australian community as an illegal non-citizen after his first offending.
I do not consider it appropriate to place any particular weight on NRST’s outstanding charges. While the Applicant does appear to acknowledge the events from which these charges arose, this does not necessarily entail admissions about conduct that might be assumed to satisfy the elements of the various charges.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Summons material included an assessment of NRST by Mr Warren Simmons, psychologist, dated 3 June 2022, conducted while the Applicant was on remand (SG2). The report notes NRST’s period of drug use and history of relationship issues at the time of his second offending. It also describes an unremarkable childhood and normal developmental path and no vulnerability to substance use is identified or other medical history. The writer states that NRST may benefit from ‘a short episode of drug and alcohol counselling with a focus on self-efficacy, harm minimisation and relapse prevention strategies’. The Applicant is described as having good prospects for rehabilitation ‘given the lack of significant antisocial behaviour in the past, a stable relationship and a history of attempting to build a career for himself’.
In his latest statement (HB), NRST relates that he graduated from nursing studies in Vietnam and came to Australia to pursue English and health science studies. He states that when living in the community illegally he was unable to work and received financial assistance from his parents and sister in Vietnam. NRST states that in prison he felt guilt and remorse and has reflected on his choice not to remain sober rather than turn to drugs to relieve psychological pressure. The Applicant also states that he has worked in prison and has stayed away from drugs. NRST states that he and Ms N have many good friends who have offered support and employment. He has also had offers of financial assistance to establish a business, and would also like to study nursing or aged care.
NRST gave evidence at the hearing consistent with that provided in his written statements. He also accepted that he has not at any point while in Australia earned a wage through employment. It is apparent from both the evidence of both NRST and Ms N that they maintain a loving and supportive relationship, notwithstanding their brief separation some years ago. The Applicant stated that he is interested in training as a hairstylist in order to establish a business with Ms N, who is an experienced nail technician and currently working part time in this trade. NRST stated further that he had some engagement with the Vietnamese community in the past, such as attending Lunar New Year events at a temple.
Both NRST and Ms N gave evidence about her ongoing risk of mental health issues against her background of a post-partum mental health condition. The report of Dr Sandra Nguyen, clinical psychologist, dated 25 January 2025 (AB) confirms that in early 2022 Ms N experienced an adjustment disorder with mixed anxiety and depressed mood in connection with NRST’s legal issues. The report confirms treatment from early 2025 including cognitive behavioural therapy and stress management.
The written and oral evidence overall indicates that the Applicant has not undertaken any form of offence-related rehabilitation. It appears that he has had some limited engagement with health services in immigration detention (some records are extracted at G33), and in cross-examination he stated his willingness to explore therapeutic assistance as identified in the report of Mr Simmons. He gave a description in evidence of the results of some research he has undertaken about the harms arising from drugs which include the impact on individuals and their families, and the risk of addiction. NRST stated also that he has no further contact with his co-offenders. He was also asked in cross-examination how he might deal in future with things such as financial or relationship stressors. NRST explained that he now understood how to deal with matters in a calm and mature way.
There are a substantial number of letters of support, references, and offers of employment in the materials (G2/R-AD2; AB). I have given particular consideration to the letters of commitment from the Applicant’s family in Vietnam (AB) which attest not only to his personal shame and their own disappointment at this conduct, but also to their willingness to provide potentially substantial and tangible financial support using assets in Vietnam. I have considered the several offers of employment (G2/AD-AD2). The wider group of referees appear to be aware that NRST has a history of offending, and all express their confidence in the Applicant’s qualities as a partner and father, his devotion to his family and his remorse.
I note the written and oral evidence of Ms P (G2/W-W1; AB), who has a close friendship with Ms N and who stated that both herself and her family, including her parents who are resident in Australia, know the Applicant well. She spoke in evidence to the circumstances said to have influenced NRST’s recent offending, and to his remorse and previous community engagement. Ms P confirmed that she is willing to offer him employment in her successful lottery business.
Written and oral submissions of the Applicant stress the forward-looking focus of this part of this primary consideration. The original submissions to the Department of Home Affairs (G2/AE) accordingly contend that NRST has a deep love for his wife and family and this together with his positive engagement with the justice system are powerful protective factors against future re-offending [26]. It is noted here that he has strong social and family supports, and financial support. These submissions also refer to literature concerning factors relating to recidivism [29]. The Reply submission contends that NRST is not predisposed to criminal activity and his offending was not regular. The submissions also stress the particular context in which his offending occurred, and the fundamentally forward‑looking nature of the decision (citing Buchanan J in NBMZ v Minister for Immigration and Border Protection [2014] FCA 38, at [192] (NBMZ)).
The Respondent’s oral and written submissions contend that substantial harm could arise were NRST to offend again in a similar manner. It is also contended, following Tanlieu v Minister for Immigration and Border Protection [2014] FCA 673, that an unacceptable risk is a function of evaluating the potential consequences of harm and the likelihood of that occurring (RSFIC [44]). The Respondent also deals here frankly and fairly with numerous factors related to the risk of further reoffending [45], which were also considered in the hearing. It was submitted that positive factors include NRST’s expressions of remorse, his insight (albeit limited) into drug harm, his support network and rehabilitation prospects as found in sentencing. However, it was also submitted that he has undertaken no formal rehabilitation and re-offended despite prior incarceration. Accordingly, it was submitted that he represents a ‘real and appreciable risk’ of re-offending.
This part of this consideration is framed around the premise that the Government is of the view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness increases (8.1.2(1)). Accordingly, I must assess the nature of the harm arising from further criminal or other serious conduct (8.1.2(2) a)). I consider in all the circumstances that it is reasonable to conclude that NRST’s past offending is the only feasible guide to future re-offending. I find that the risk of further drug-related offending such as trafficking is clearly substantial, in line with the seriousness with which such offending is treated in the justice system.
In assessing the likelihood of such further conduct I must take account of information or evidence as to risk (8.1.2 b) i)). The report of Mr Simmons is relatively comprehensive although he does not appear to have administered a formal risk assessment tool. He has formed the view that some formal therapeutic intervention would assist, but otherwise has not identified any underlying risk factors. Mr Simmons does, in contrast, identify what can be described as protective factors in forming his view about NRST’s prospects for rehabilitation. I note that the report makes two relatively brief references to the Applicant’s prior history of drug offending. It is likely that Mr Simmons’ view that NRST does not have a ‘significant history’ of ‘antisocial’ behaviour embraces this forensic history.
I must also consider evidence of rehabilitation (8.1.2 b) ii)). The Respondent is correct to contend that there is no evidence of formal rehabilitation but some, limited, evidence of personal rehabilitation. Given the relatively modest recommendations of Mr Simmons, I do not consider the absence of formal rehabilitation to be a fundamental weakness. I also note the limited scope that NRST appears to have had to access programs in prison, as noted in sentencing. That said, I agree with the Respondent that NRST shows only some insight into the seriousness of drug offending. In this case, there may well be scope for further enhancing his appreciation of this subject, particularly given that he is a repeat offender.
I accept, broadly, the Applicant’s submissions and Respondent’s concessions as to the various factors that could be considered protective against the risk of further offending. NRST does appear to openly acknowledge his wrongdoing, he has conducted himself well in prison and detention and he has clear and viable plans to settle into family life and stable employment. He has not been able to sustain this path previously, but I consider that the substantial amount of support both locally and from his family in Vietnam is likely to be a further motivator for the Applicant. The key explanatory factor for NRST’s prior offending appears to be poor judgment combined with financial hardship. His recent offending occurred some years ago, and he now has substantive offers of financial support.
As this matter involves refusal of a visa, I am also required by the Direction to consider whether the risk of harm may be affected by the duration and purpose of stay and the type of visa applied for (8.1.1(2) c)). It does not appear that this consideration has been addressed in the submissions of either party. As noted immediately above, the context of NRST’s visa application is his desire to remain in Australia in a permanent partnership in which his child plays a prominent role. I have accepted that this is a positive motivator for good conduct. Equally, he has not demonstrated the ability to maintain a law-abiding lifestyle in the past, and re-offended some years after his first drug offence and related visa cancellation. This might suggest that a longer stay offers scope for further offending. However, I consider that, on balance, this particular factor has a neutral weight in my considerations overall.
I find NRST to be at a low risk of further reoffending, but any such offending carries a risk of substantial harm.
Summary finding
It is accepted in the Applicant’s submissions that this consideration carries significant weight against grant of the visa (ASFIC [37]). The Respondent repeats its contention that NRST poses a real and not insignificant risk to the community and has a history of turning to drug offending when experiencing financial hardship (RSFIC [63]). It contends this primary consideration weighs very strongly in favour of refusing the visa.
I have found that NRST has engaged in serious offending and is at a low risk of future reoffending. This consideration requires me to have particular regard to the fact that remaining in Australia is a privilege conferred in the expectation a non-citizen will be, or has been, law-abiding and will respect important institutions (8.1(1)). Equally, the Direction is framed in terms of protection of the Australian community from harm.
The Applicant’s contention that this consideration is fundamentally forward‑looking is logically correct, to the extent that it is not possible to protect the community from harm that has already occurred. Here, I consider it helpful to qualify the authority relied on for this proposition. Buchanan J notes in his reasons in NBMZ that decisions involving a serious criminal record (which was not the case in NBMZ) call for consideration of conduct of an ‘objectively serious character’ [201]. His Honour also observed that the decision under review in that case should also have been directed at the consequences for the community of the grant of a visa [192].
In a more recent decision, QXNS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] FCA 1369 (QXNS), Horan J addresses the application of CKL21 v Minister for Home Affairs [2022] FCAFC 70 (CKL21), a decision in which the Full Court considered the reasonableness of findings made as to future risk. His Honour cites a passage from CKL21 (at [74]) which emphasises the importance when making a finding as to future risk of addressing the frequency of past offending and the conditions under which it occurred, and the likelihood those conditions may have changed [68].
In QXNS, Horan J accepts that this primary consideration requires consideration of the nature and seriousness of offending (consistent with NBMZ) but holds that ‘the focus of this consideration remains protective’ (citing Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83) [81]). His Honour goes on to observe that ‘the seriousness of past criminal conduct may itself remain relevant and be given weight in the context of other considerations …’. His Honour seems to suggest that proper consideration of risk, based on probative material and rational findings, may play a key role in coming to an overall ‘weighting’ under this primary consideration, which in turn could affect the overall evaluative exercise under the Direction (QXNS [82]).
As noted, the first primary consideration is directed at protecting the community from harm, keeping in mind that the safety of the community is the ‘highest priority’ of the Government. The two sub-considerations (nature and seriousness of conduct to date and risk of further offending or other serious conduct) are proposed as additional to the overarching consideration. This arises from the words ‘Decision makers should also give consideration to: [the sub-considerations]’ (emphasis added) (8.2(2)). This structure and language appear to be reflected in the approach taken in the authorities outlined above which emphasise the importance of the consideration of risk.
NRST has committed serious offending and re-offended after already having engaged with the criminal justice system. However, I consider he is a low risk to the community in the future. The submissions for NRST and the substantial material gathered in support of what might be described as his social rehabilitation speak to the likelihood that this low level is acceptable. This is particularly because of the manner in which the critical risk factor of financial support coupled with secure employment are dealt with.
For these reasons I find that this primary consideration weighs moderately heavily in favour of exercising the discretion to refuse the visa.
Family violence committed by the non-citizen
There is nothing arising from the materials or in submissions to indicate that this consideration is engaged and, accordingly, it weighs neutrally in this matter.
The strength, nature and duration of ties to Australia
Immediate family
Consideration must first be given to the impact of the decision on NRST’s immediate family where they are citizens, or have the right to permanently reside in Australia (8.3(1)). The Applicant’s immediate family comprises Ms N, their daughter and Ms N’s adult son.
I have set out above, in other considerations, evidence concerning the nature of NRST’s relationship with his partner and their child. Ms N stated in evidence that the family relationship is very good, and that she has not had an argument with the Applicant in a long time. She stated that their daughter loves her father and that they would be at a huge loss should the Applicant return to Vietnam, stating ‘I also need a husband’. When asked if she would consider returning to Vietnam, Ms N replied that she cannot due to her own adult son living in Australia. Ms N also wants her daughter to be educated here.
When asked about her current circumstances, Ms N stated that she is ‘trying [her] best’. She lives day-by-day but cannot do everything by herself, stating that ‘two people are better than one’. Raising her daughter is not easy on her own. Ms N stated that she was born in Vietnam and has only one older brother, who still lives there.
NRST stated in his evidence that he has a good relationship with Ms N’s son. They have lived together before and he previously helped with school drop-offs and pick-ups. Despite saying that Ms N’s son needs a father figure, the Applicant acknowledged that he has a father and spends time across two households, with more time spent with Ms N overall.
It is contended in the Applicant’s original written submissions that NRST has significant ties to Australia that are enduring and permanent and this places compelling weight in his favour (G2/AE [39]). The Respondent’s submissions note in particular Ms N’s mental health condition and the evidence raised concerning likely stress arising from separation (RSFIC [70]–[71]). The Respondent acknowledges the relationship with her son, and submits that Ms N would suffer negative emotional, financial and practical impact if NRST returns to Vietnam [72].
Other ties
The Direction provides that in cancellation or revocation decisions, consideration must be given to the strength, nature and duration of other ties to the Australian community (8.3(2)). In a refusal decision where an applicant has already been in residence for some time, as here, it appears reasonable also to take account of this factor.
Written and oral evidence confirm that NRST has a cousin resident in Australia (G2/X). I have referred above to the extensive references, and these include letters from Ms P (in addition to her oral evidence), and another friend resident in Australia, his cousin’s wife.
The Respondent’s submissions note that the Direction requires less weight to be placed on other ties where the Applicant commenced offending shortly after arrival, in this case approximately one year (RSFIC [74]). The Respondent otherwise accepts the ties to the individuals identified above, as well as the offers of employment, and notes there is limited evidence of other social engagement [76]–[80]. This primary consideration, it is contended, weighs only moderately in NRST’s favour.
In the context of a visa refusal decision, I consider the primary focus of this consideration is the impact on immediate family. I accept that there is likely to be a relatively substantial emotional impact of separation, and there is likely to be a not insignificant financial and practical impact on Ms N and both children (much more so in the case of their daughter).
I give some relatively limited weight to NRST’s wider ties. There are notable ties to other family and friends, but otherwise no substantial indication of enduring wider ties. The Respondent correctly points to the reduced weighting in cases of offending soon after arrival (8.3(2) a)).
Overall, I consider this consideration weighs heavily in the Applicant’s favour.
Best interests of minor children in Australia affected by the decision
The interests of a single minor child, the daughter of NRST and Ms N, are engaged in this matter (8.4). The written statements dated in 2025 of both the Applicant and Ms N (AB), for example, both speak at length about not only their relationship but of NRST’s love, affection and regular contact with their daughter. NRST’s 2024 statement (G2/N) is accompanied by a very large collection of personal photographs and screen shots demonstrating a strong and ongoing bond (G2/O). There is corroborating evidence from a childcare centre (G2/AA1).
There is written and oral evidence in this matter demonstrating there was a brief separation between NRST and Ms N around the time of his second offending. At the hearing, the Applicant explained that this arose because they spoke and he decided it was best to leave the house. The context for this was his partner’s mental health condition, and his inability to cope. While NRST states in his 2025 statement that there were days when he didn’t come home, I understood his evidence to be that there was a separation of approximately two months, but that he maintained contact with the family during this time.
I note that, while no longer under 18, Ms N has a son from a prior relationship and care for this child appears to be shared with the father. In her 2020 statement (G2/P), Ms N states that she would have difficulty funding travel for two children to Vietnam were NRST to return.
In the original written submissions for the Applicant (G2/AE) it is contended that in the context of potential permanent separation, electronic communication remains a poor substitute for personal contact with a child [44]. This consideration is said therefore to weigh in favour of not exercising the power to refuse grant of the visa [47].
It was noted in the Respondent’s closing submissions that there may be evidence that Ms N could have difficulty coping as a parent given ongoing mental health issues. At the same time it was contended that Ms N is in fact the child’s primary caregiver. It was conceded in oral and written submissions, however, that this consideration weighs in NRST’s favour, but is outweighed by other considerations.
There are a number of factors identified in the Direction as requiring consideration (8.4(4)). NRST clearly has had, and continues to have, a close, parental role in his daughter’s life, notwithstanding incarceration and immigration detention. I consider it likely he would continue to play such a role, and that physical separation would create an emotional strain particularly for his daughter. Notwithstanding some possible personal challenges, Ms N has nevertheless played the role of primary carer during NRST’s time in prison and detention.
I find that this consideration weighs heavily in favour of not exercising the discretion to refuse the visa.
Expectations of the Australian community
In the Applicant’s original submissions (G2/AE) it is contended that the expectation weighs against NRST, but it is contended his offending does not raise the kind of serious character concern identified in this consideration [48]. The Respondent contends that given the seriousness of NRST’s offending, the expectation ought to weigh heavily in favour of exercising the discretion to refuse the visa (RSFIC [92]).
The submissions of the parties broadly recognise that this is understood to be a deemed expectation, meaning that where a person has engaged in serious conduct in breach of the overarching expectation that they obey Australian laws, the community expects the Government not to allow them to remain here (8.5(1)). The Direction does indeed identify certain forms of conduct as representing examples of ‘serious character concerns’ (8.5(2)). The Applicant is correct that NRST’s conduct does not fall within the specific examples, but they may not be definitive of the kinds of conduct that might so qualify.
As I have found that NRST’s offending was serious, I also consider he has engaged in serous conduct thus triggering the expectation that he not be allowed to remain in Australia. I have also found that he is of a measurable risk of causing further harm. On the basis that NRST breached the expectation that he be law‑abiding twice and did so on a second occasion while an unlawful non-citizen, I find that this consideration weighs heavily in favour of exercising the discretion to refuse his visa.
OTHER CONSIDERATIONS
Legal consequences of the decision under s 501 or 501CA
No substantive submissions were made for the Applicant in respect of this consideration. I have also considered his various written statements and not identified any clearly articulated claims of harm should he return to Vietnam. As noted, the Applicant has had his application for a Protection visa refused in mid‑2022 (G2/AJ). For this reason, NRST was asked in cross-examination about his present fears. He responded that he ‘still has such fears because the authorities considers such anti-government things seriously’. He stated that he had attended a New Year’s festival and a music festival which would be considered anti-government, and there may be photos of this activity online.
NRST acknowledged that the Tribunal had found his claims to harm lacking credibility. Certain specific matters were put to him including his claim that Vietnam is not very democratic and that he lacked freedom, that he would not be welcome back in Vietnam, and that local authorities may cause him harm due to opposition he has expressed. As noted, the Applicant adopted these as examples of fears that he maintains. I note from the Protection visa decision that the Applicant stated in that context that he had attended at least one protest, and also claimed that his family had been visited by authorities following the cancellation of his student visa in 2014 and his release from prison after the first offences.
The Respondent contends that it is not necessary to revisit the prior Tribunal decision, and in the alternative, that the Applicant has not provided sufficient evidence that he will suffer harm should he return to Vietnam (RSFIC [100]–[102]). It is further contended that any weight against refusal is outweighed by other primary considerations [103(b)].
I must consider any claims of harm raised by the Applicant in the situation where he is not covered by a protection finding (9.1.2(1)). I note that there is a particular form of harm identified in the Direction, being that covered in the Act by the term ‘protection obligation’, and that this is deemed to reflect Australia’s interpretation of the obligation not to return a person to a place where they fear harm (non-refoulement) (9.1(1)-(3)). NRST has, in effect, restated key claims which were already rejected in the process designed to thoroughly assess such claims. He has provided no new or updated information or evidence.
On this basis, I consider that his claims are not of sufficient weight, or, indeed, gravity, to engage Australia’s non-refoulement obligations. Accordingly the legal consequences of a decision against NRST are that he would continue to be held in immigration detention, and is liable for removal as soon as reasonably practicable under sections 198 and 199 of the Act.
In these circumstances, I find that this consideration weighs neutrally.
Extent of impediments if removed
The pertinent details of NRST’s life story have been extracted above in various parts of these reasons. The critical point for this consideration is that the Applicant was born, raised and educated in Vietnam and holds an undergraduate nursing qualification. His parents and sister remain in Vietnam.
In his 2020 statement (G2/L), NRST states that he would be terrified of the impact upon Ms N of his departure from Australia, and in his 2024 statement (G2/N) he states again his concerns about the stress she would experience in his absence. In his evidence at the hearing, the Applicant stated that he has no mental or physical health issues. He also stated that he considered his family would support him if returned and he would live with them. NRST also stated that he considered his post-secondary education would help him find a job, and he had previously worked in his family business.
The Applicant’s original written submissions point to NRST facing ‘significant trauma, limited work opportunity and access to social, and health services’ on return (G2/AE [49]). It is otherwise contended the impediments are ‘negligible’ [50]. The Respondent submitted at the hearing that NRST may face some emotional hardship, and any barriers would be comparatively minor, thus the consideration should weigh in his favour to only a limited extent. The Respondent’s written submissions also contend that the level and extent of support the Applicant’s family have offered to him should he remain in Australia is an indicator of the support open to him if returned (RSFIC [110]–[111]).
This consideration entails assessment of impediments a person may face in establishing and maintaining ‘basic living standards’ comparable to that of a fellow national (9.2(1)). I note that he is of working age and faces no obvious health issues, and the evidence demonstrates family support will be available. I do accept the Applicant’s primary contention that he will suffer emotionally if returned to Vietnam.
On this basis, I find that this consideration weighs against refusal of the visa, but only to a very limited extent.
Impact on Australian business interests
I noted above that NRST has multiple offers of employment. These are, in summary: at a hair and nail salon where Ms N currently works (G2/AD1); a branch of a large pharmacy chain (G2/AD); a nutritional supplements business (G2/ADS); and in the lottery business of Ms P.
The Applicant has not previously worked in salaried employment and therefore has no prior experience engaged with any of these businesses. There is no direct evidence about their operations and the written and oral evidence points to NRST working in low‑level retail positions, with the exception of the salon which would appear to involve him receiving training prior to making more than a basic contribution.
The Applicant’s written submissions point to this latter position, contending that staffing at this business would be affected by the decision made (G2/AE [51]). The Respondent counters that the evidence does not demonstrate that this business would suffer any impact (RSFIC [117]).
I am not satisfied that the evidence does provide any helpful indicator of impact on Australian business interests, and note this consideration is generally only engaged in relation to a major project of delivery of an important service (9.3).
Accordingly, I find this consideration weighs neutrally.
CONCLUSION
Of the primary considerations I have found that Protection of the Australian community weighs moderately heavily in favour of exercising the discretion to refuse, and Expectations of the Australian community weighs heavily in favour. I have found two other primary considerations – the Strength, nature and duration of ties to Australia, and the Best interests of minor children in Australia – weigh heavily against the exercise of the discretion to refuse the visa.
I have found the other consideration Extent of impediments if removed weighs against exercise of the discretion to only a very limited extent. The remaining other considerations – Legal consequences of the decision, and Impact on Australian business interests – both weigh neutrally.
Protection of the Australian community is generally to be given greater weight than other primary considerations, which should also generally be given greater wight than other considerations (7(2)). One or more primary considerations may outweigh other primary considerations (7(3)).
NRST has not lived in Australia for the majority of his life, nor from a young age, and I do not consider his conduct therefore merits particular additional tolerance under the Principles. He has lived for a lengthy period of time in Australia, but a good portion of this has been as a non‑citizen, by choice. This is one of the most troubling aspect of the Applicant’s circumstances. This disregard for law and institutions was reinforced by repeat offending, and I took this account in respect of NRST’s breach of the expectations that underpin the Direction.
However, as set out in my consideration of the role of undertaking an assessment of risk of re-offending, due consideration must be given to the factors relevant to that risk. In this case, I have found that there are reasons for accepting that protective factors make that risk acceptable. For this reason, I find that the discretion to refuse the Applicant’s visa should not be exercised.
DECISION
For the reasons given above, the Tribunal sets aside the decision under review and substitutes it with the decision that the discretion to refuse the grant of NRST’s visa should not be exercised.
Date(s) of hearing: 21 February 2025 Advocate for the Applicant: Mr Quan Sy Do Solicitor for the Respondent: Ms Kaylla Theocharous Solicitors for the Respondent: Clayton Utz
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