Pham and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2022] AATA 2551

Pham and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 2551 (12 August 2022)
Division:GENERAL DIVISION
File Number: 2022/4337
Re:Le Van Pham
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:12 August 2022
Place:Melbourne

The Tribunal affirms the decision under review.
....................[sgd]....................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION – visa refusal – citizen of Vietnam – Bridging E (Class WE) and Combined Partner (Class UK/BS) Visa –– rehabilitation and remorse – risk of engaging in criminal conduct in Australia – inconsistencies in evidence – intentional breach of migration laws – cultivation of commercial quantity of cannabis – risk of reoffending – best interests of children – exercise of discretion – Ministerial Direction No. 90 applied – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Civil Procedure Act 2010 (Vic)
CASES
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
CKL21 v Minister for Home Affairs [2022] FCAFC 70
DOB18 v Minister for Home Affairs [2018] FCA 1523
DPP v Pham [2021] VCC 109
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
FYBR v Minister for Home Affairs and Anor [2020] HCATrans 56
FYBR v Minister for Home Affairs (2019) 272 FCR 454
GLD18 v Minister for Home Affairs [2020] FCAFC 2
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Hughes v The Queen (2017) 263 CLR 338
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Murphy v Minister for Home Affairs [2018] FCA 1924
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
PQSM v Minister for Home Affairs [2019] FCA 1540
Say v Administrative Appeals Tribunal [2020] FCA 1489
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
White Industries (Qld) Pty Ltd v Flower and Hart (1998) 156 ALR 169
YKSB v Minister for Home Affairs [2020] FCAFC 224
YNQY v Minister for immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Australian Criminal Intelligence Commission, “Illicit Drug Data Report 2018-19 (September 2020)”< Report%202018-19.pdf>
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Rob Newsom, ‘Cataplexy’ Sleep Foundation (Web Page, 13 April 2022) <Cataplexy: Causes, Symptoms, and Treatment | Sleep Foundation>
Sentencing Advisory Council, ‘Imprisonment,” < FOR DECISION
Senior Member A. Nikolic AM CSC
12 August 2022
INTRODUCTION

Le Van Pham (the Applicant) has asked the Tribunal to review the Respondent’s decision to refuse his application for a Bridging E (Class WE) and Combined Partner (Class UK/BS) Visa (the visa), under s 501(1) of the Migration Act 1958 (the Act).
The hearing was held on 2 and 3 August 2022 in person at the Tribunal’s Melbourne Registry. The Applicant was represented by Ms Thara Sujithkumar from Flyworld Migration and Legal Services. The Respondent was represented by Ms Shauna Roeger, from the Australian Government Solicitor.
For the following reasons the Tribunal affirms the decision under review.
BACKGROUND
The Applicant is a 49-year-old Vietnamese national, who is one of six siblings.[1] His mother, two adult children, and a woman he claims is his ex-wife live in Vietnam.
[1] Exhibit R2, 10 [2].
The Applicant said he comes from a very poor family,[2] which resulted in several attempts to seek a better life in Hong Kong, England, and Australia.[3] He claimed that his family relocated to Hong Kong when he was 16 to seek refugee status but were detained for six years before being returned to Vietnam in 1994.[4] As an adult in 2000 the Applicant said he returned to live and work in Hong Kong, but this ended after two years. He then tried to relocate to England in 2003 but claimed he and members of his travelling party were arrested and imprisoned in Cuba “under allegation of using a false document,” before being deported to Vietnam.[5] The Applicant said Vietnamese authorities jailed him for two months on return, confiscated his passport for five years, and told him any repeat could be punished by ‘jail for lifetime’.[6]
[2] Ibid [3].
[3] Exhibit R1, 178.
[4] Ibid; Exhibit R2, 11 [6].
[5] Exhibit R1, 178.
[6] Ibid.
The Applicant said he successfully applied for a new Vietnamese passport in about early 2016, before travelling lawfully to Australia on a three-month tourist visa in July 2016. He was then 43 years of age. The Applicant understood he had no work rights under this visa but said he intended working anyway “to try and earn money for his family.”[7] He stated in his Incoming Passenger Card on arrival in Australia, which was in the Vietnamese language, that he did not have any criminal convictions.[8] The Applicant has not departed Australia since July 2016.[9]
[7] Exhibit R2, 12 [8].
[8] Exhibit R1, 205-206.
[9] Ibid 206.
The Applicant said he secured casual work almost immediately in Australia, in construction, farming, and other roles. In about June 2017 he became involved in a drug growing enterprise and participated in this for about three years until his arrest in mid-2020.
In late 2017 or early 2018, the Applicant said he commenced a relationship with a Vietnamese woman who the Tribunal will refer to as Ms PH.[10] Ms PH has four children who are currently between 2 and 13 years of age. The Tribunal will refer to the children from oldest to youngest as R, T, K, and W. Ms PH and her children are Australian citizens.[11] Three of the children are from a previous relationship, but the Applicant claims he is W’s biological father. W’s birth certificate, however, names the father as the same man who fathered Ms PH’s other children.[12]
[10] Ibid 36.
[11] Ibid 55-56; 194.
[12] Ibid 195-198.
Key aspects of the Applicant’s criminal and visa history in Australia include:
(a)June 2020: The Applicant was arrested and charged for offending since June 2017. This included cultivating a narcotic plant in a commercial quantity. He was held on remand for 262 days.[13]
(b)19 February 2021: The Applicant was found guilty of three charges relating to the cultivation of a commercial quantity of cannabis. He was sentenced to two years and nine months imprisonment, with a non-parole period of 18 months.[14]
(c)22 February 2022: The Applicant was granted parole and immediately taken into immigration detention.[15] His parole expires on 21 January 2023.
(d)25 February 2022: The Applicant applied for the visa sponsored by Ms PH.[16]
(e)31 March 2022: The Respondent notified the Applicant of an intention to consider refusing the visa application on character grounds (Notice).[17]
(f)20 April 2022: The Respondent advised the Applicant about information relevant to the Notice, namely a National Criminal History report.[18]
(g)10 May 2022: The Applicant responded to the Notice through his lawyer.[19]
(h)19-24 May 2022: The Respondent refused to grant the visa.[20]
(i)30 May 2022: The Applicant asked the Tribunal to review the visa refusal decision.[21]
[13] Ibid 23.
[14] Ibid 21-24; Exhibit R2, 58 [51]; DPP v Pham [2021] VCC 109.
[15] Exhibit R1, 90; Exhibit R2, 224.
[16] Exhibit R1, 27-50.
[17] Ibid 73-77.
[18] Ibid 78-79.
[19] Ibid 80- 84.
[20] Ibid 235-241.
[21] Ibid 1-6.
LEGISLATIVE FRAMEWORK
Taken together, s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(b) of the Act are the sources of the Tribunal’s jurisdiction to review visa refusal decisions under s 501(1) of the Act.
Section 501(1) of the Act confers a discretionary power on the Minister to refuse to grant a visa if the person does not pass the ‘character test’ in s 501(6) of the Act:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or …
Section 501(7) of the Act sets out six circumstances in which a person is taken to have a substantial criminal record, including if they have been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
If an applicant fails the character test, the Tribunal must make a subsequent determination whether to exercise the discretion under s 501(1) of the Act to refuse the visa.[22]
[22] PQSM v Minister for Home Affairs [2019] FCA 1540, [22].
CHARACTER TEST
Failure of the character test arises as a matter of law.[23] The Applicant was convicted of several offences in February 2021, receiving prison sentences totalling two years and nine months. The Tribunal is satisfied he does not pass the character test.[24]
[23] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
[24] Section 501(6)(a) of the Act read in conjunction with s 501(7)(c).
ISSUE TO BE RESOLVED
The Tribunal must decide whether to exercise the discretion granted by s 501(1) of the Act to refuse the visa, after applying relevant primary and other considerations in the Direction to the specific circumstances of the Applicant’s case.
THE DIRECTION
Guidance in exercising the discretion is found in Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction). The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power.[25] Except for the Minister acting personally, the Direction must be applied by decision makers under the Act, based on currently available information.[26] Clause 5.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’. Clause 5.1(2) states:
…Where the discretion to refuse to grant…a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
[25] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, [45].
[26] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ); Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
The Direction cites the following principles at cl 5.2 as relevant to the decision-maker’s assessment of whether the discretion to refuse a non-citizen’s visa should be exercised:
(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 measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that a decision-maker must take into account the considerations at cls 8-9 of the Direction, where relevant to the decision. If a person does not pass the character test, the following primary considerations (at cl 8 of the Direction) must be applied to the specific circumstances of their case:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia;
(d)expectations of the Australian community.
Clause 9(1) of the Direction requires that other considerations must be taken into account where relevant. These include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims;
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia;
(ii)impact on Australian business interests.
Clause 7(1) of the Direction states that in applying the primary and other considerations, ‘information and evidence from independent and authoritative sources should be given appropriate weight’.
Clause 7(2) of the Direction provides that primary considerations should generally be given greater weight than the other considerations. However, as held in Suleiman,[27] regarding a previous equivalent direction, this:
“…does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
[27] Suleimanv Minister for Immigration and Border Protection (2018) 74 AAR 545, [23] (Colman J).
In Jagroop,[28] the Court held that:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case…
[28] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57] and [78].
EVIDENCE
The witnesses called during the hearing were the Applicant, Ms PH, and Ms PH’s sister. All were assisted by an interpreter in the Vietnamese language. The Tribunal advised the Applicant and Ms PH about their privilege against self-incrimination on several occasions, including that if they chose not to answer questions that may tend to incriminate them, the Tribunal would draw no adverse inference.
Documentary evidence
The Tribunal has considered the Applicant’s Statement of Facts, Issues and Contentions (ASFIC) dated 15 July 2022, and the Respondent’s Statement of Facts, Issues and Contentions (RSFIC) dated 19 July 2022. This has been done with appropriate adjustments for amendments and concessions made during the hearing.
The following documents were tendered into evidence:
(a)Documents lodged by the Respondent numbering 241 pages;[29]
(b)Further documents lodged by the Respondent numbering 332 pages;[30]
(c)One-page undated statement of Ms PH;[31]
(d)One page statement of Ms PH’s sister;[32]
(e)Child Support Registrar Assessment for the period 4 August 2022 to 10 March 2023, which was requested by the Tribunal from Ms PH during the hearing.[33]
[29] Exhibit R1.
[30] Exhibit R2.
[31] Exhibit A1.
[32] Exhibit A2.
[33] Exhibit T1.
Applicant’s evidence
The Applicant said Ms PH, who speaks good English, prepared his statement for him based on what he told her in Vietnamese. He adopted this statement as true and correct.[34] The Tribunal has also considered his previous documentary evidence.[35] Key aspects of the Applicant’s evidence are now summarised.
[34] Exhibit R1, 178-180.
[35] Ibid 5; 80-84.
Life in Vietnam
The Applicant said he and his family were rejected as refugees by Hong Kong authorities and returned to Vietnam after spending six years in detention. He recalled doing various sorts of work, including as a “rickshaw driver for a couple of years…advertising for a tobacco company…[and working]…in a motor garage fixing cars”.[36]
[36] Exhibit R2, 11 [7].
When asked about any family in Vietnam, the Applicant replied: “only my mother”, who he is close to and speaks with daily by telephone. During cross-examination the Applicant conceded he has other relatives in Vietnam. When asked about children, he initially stated: “I have one child, my son who lives with my mother”, who he remains in regular telephone contact with. He subsequently conceded he also has an adult daughter in Vietnam. He agreed that his wife, who he married in 1997,[37] also lives in Vietnam but claimed they separated “a long time ago”. No evidence was provided to corroborate any separation or divorce and, when challenged about evidence to the contrary,[38] the Applicant insisted his current evidence is correct. He could not recall when he and his wife separated.
[37] Ibid 12 [9].
[38] Ibid 22 [17].

The Applicant claimed that despite his poverty, he was able to live and work in Hong Kong, and holiday in France, Japan, and Cuba. He explained that the holiday to Japan was “really cheap”, and he was assisted by savings from his work in Hong Kong.
Deportation from other countries
The Applicant said he was arrested in Cuba “because of a false visa document” and held in custody “for about two weeks” before being returned to Vietnam. This conflicts with his statement, which claims he was detained in Cuba for two months. When asked about this, the Applicant insisted he “stayed legally in Cuba for two weeks” before being detained for two weeks and then deported to Vietnam. When asked why he had a false visa document in Cuba, the Applicant claimed his visa was genuine, but because six members of his travelling party had fabricated visas, the entire group was arrested, detained, and deported. He also claimed to have been travelling to Cuba for a holiday, with no intention of travelling to the United Kingdom. This conflicted with his most recent statement, which referred to him seeking a “better life” in England. The Applicant’s explanation did not assist the Tribunal’s understanding of this inconsistency. The Applicant said after returning to Vietnam, his passport was retained by authorities for five years. He stated that he was able to obtain a new Vietnamese passport approximately two months prior to travelling to Australia in 2016. The Applicant claimed he told his current lawyer, who also completed his Partner Visa application, about his arrest and detention in Hong Kong and Cuba.
Life in Australia
The Applicant said he travelled to Australia because he “wanted to find a new opportunity”. He was aware the visa granted to him was for three months and with no work rights, but he intended to work anyway. When asked by Ms Roeger to clarify whether he came to Australia intending to breach his visa conditions, the Applicant responded: “Yes”. He accepted he was not a genuine tourist, wanted to remain here permanently, and decided to remain illegally after his visa expired. In re-examination, Ms Sujithkumar asked the Applicant if he was aware of his visa conditions, to which he responded: “Yes”. When asked if he knew that a valid visa was required to work legally, the Applicant responded “Yes”. The Applicant said it was not hard to find employment in Australia and he was working within a month of arrival. He subsequently increased and sustained his work hours to about four days a week.
The Applicant said he refers to Ms PH as his wife but is not “officially married her”. He initially claimed they met on 2 September 2017 after he received an invitation on his mobile telephone to a child’s birthday party from one of his friends. He and Ms PH then contacted each other by telephone, but “later on started to meet”. He agreed that he lied to Ms PH in telling her he worked on a farm during the week, which meant he saw her “just on weekends”. When asked if Ms PH knew about his wife and two children in Vietnam, the Applicant replied: “Later”. He explained that he divulged this information “five or six months” after they met. He did not disclose to Ms PH the $3000 he sent each month to family in Vietnam from the drug enterprise. The Applicant conceded he did not disclose his relationship with Ms PH to psychologist Mr Simmons at the time of their consultation in December 2020, claiming he was “hiding” this information at that time.
The Applicant said he is close to and loves W and his stepchildren. He claimed that he speaks with Ms PH and the children on the telephone “more than 10 times a day”. The Applicant expressed concerns about Ms PH’s ability to cope, stating: “I know she can’t take care of four children by herself”. He claimed she is under financial pressure and he wants to assist her financially, practically, and emotionally if released.
The Applicant said the eldest child, R, has a “drowsiness disorder”, which requires constant care. Prior to his imprisonment he recalled playing with the children and taking them to the park and other activities. The Applicant said he was present at W’s birth but had not seen the child’s birth certificate.[39] When asked why the biological father of PH’s other three children was also listed as W’s father, the Applied initially replied: “because I don’t have any personal documents”. He said Ms PH was responsible for recording the details on the birth certificate and he was unaware someone other than him was recorded as the child’s father. When asked if he now knew the name of the father recorded on this document, he responded: “He is the ex-husband” of Ms PH. When asked if he was sure he was the biological father of W, the Applicant said he was.
[39] Exhibit R1, 195.
When asked about friends in Australia, the Applicant only named Ms PH’s sister and this sister’s husband as close friends. He referred to a third person as: “not really a close friend”. When asked whether anyone else apart from these three people is a friend, he replied: “No”.
Drugs, alcohol, and health
The Applicant claimed to have never consumed drugs and “only a little bit” of alcohol. He said that he has no prior criminal convictions. He described his health as “normal”, stating there is nothing impeding his immediate return to work if released. The only health issue he raised was a tendency to get headaches when the weather changes.
Offending
In his documentary evidence the Applicant stated he was ‘forced to confess…forced to plead guilty’ to the offences he was convicted of and ‘was not…in a position to speak up or plead not guilty’.[40] His lawyer has similarly stated in written submissions the Applicant “was forced to confess for current charges”.[41]
[40] Ibid 80; 84.
[41] Ibid 82.
In oral evidence, the Applicant explained he met some people “at the marketplace”, who “convinced [him] to…take care of some plants – that’s all”. When asked to confirm he set up the property in accordance with his police interview and the Court’s findings, the Applicant responded: “It was not only me - it involved 4-5 other people”. When asked about this inconsistency, he responded: “Yes, because I was beaten by police who broke my teeth. They punched me in the face, so I admitted more than what I did”. When asked by Ms Roeger if he now denied his offending, the Applicant responded: “No”. When asked by the Tribunal to clarify what he admitted to that was more than what he actually did, the Applicant stated: “Many people arrived – more than me - to set up the thing. I also told police I brought $30,000 from Vietnam, but that was not true – it came from someone else”. When asked where this money came from, the Applicant responded: “The boss or owner paid that money to buy materials to set up the house”. He did not elaborate on who that person was, or who the “many” others were that helped him establish the crop house. He referred to a “contract” for his involvement, which he explained was verbal and that he received “more than $2000 [and] nearly $3000 a month”. He said he was also given $1800 a month to pay for rental on the crop house, which he gave to the landlord. He disagreed with Ms Roeger’s proposition this was a “good income”, claiming it was only “a little bit more but not much more” than he previously earned. When put to the Applicant that his evidence about income conflicted with his barrister’s submissions to the Court,[42] the Applicant insisted his current evidence was accurate. When asked why he agreed to become involved in growing unknown plants for only “a little bit more” than his other work, the Applicant said “there weren’t many jobs” available around this time. He explained that some of his work was seasonal and limited English made it hard to find other jobs.
[42] Exhibit R2, 22 [16.a.-b.].
The Applicant claimed he was unaware for about six months what plant he was growing, that it was illegal, or that it was intended to be sold. He claimed to have never heard of cannabis and never asked his co-offenders what it was or why it was being grown. He did not think it unusual a crop was being grown inside a suburban residence with artificial lighting. When asked what type of plant he thought he was growing, the Applicant responded: “I didn’t think of any plant”. He said his only role was to grow the plants and “someone else would take the crop”. He claimed it was only “later” he discovered the plant was cannabis after seeing a picture online “by accident” and then comparing it to the mature plants in the crop house. He said it was only at about the six-month mark that he realised growing and selling cannabis was illegal. He also claimed it was not until “later” he became aware cannabis could harm users. When challenged, the Applicant insisted: “I just know it’s illegal to grow cannabis”, but claimed he was “not sure” why. When asked if he knew why drugs are illegal generally, the Applicant responded: “When people use drugs they can be affected by paranoia”. It was put to the Applicant that contrary to his claims, he was aware from the outset this was an illegal operation, which he denied: “No – if I was told it was cannabis, I would not have accepted this”. When asked how this could be if he did not know what cannabis was, he stated: “Because I was scared of inhaling these things, becoming addicted and being arrested”. The Applicant said he was aware after six months that if caught growing cannabis he might go to prison.
The Applicant agreed he lived at the crop house alone but claimed he could not leave. He stated: “they put food in the house” but he “did not have a car or transport [and] had to stay there”. When asked if he was claiming to have been kept as a prisoner, he responded: “Yes”. When asked why he did not tell police this when arrested, or to the court, the Applicant claimed he was “beaten up by police [which] made [him] scared”. When asked how he was able to socialise, meet Ms PH, develop a relationship with her, and see her on most weekends if kept against his will, the Applicant claimed the organisers of the drug enterprise “started to provide some breaks” and would drop him off “at the marketplace”, where Ms PH picked him up. When pressed that his circumstances appeared incompatible with someone forced to remain at the house, he responded: “In the first six months it was no go…but after that they lifted the restrictions a little bit”. The Applicant agreed that upon being arrested there was a car in the garage that he owned and was registered to him.[43]
[43] Ibid 84; 117-118; 176 [110]; 189 [221]-[190 [222].
The Applicant agreed that after discovering his conduct was illegal, he continued participating until his arrest more than two years later. When asked why he did not stop earlier, he responded: “I already committed to do this thing for other people, so couldn’t stop because they might beat me up…I had a plan to quit but was arrested before I could”. The Applicant claimed he most recently “wanted to withdraw from involvement” about two weeks prior to arrest in June 2020, which foiled his intention to cease participation. He also claimed not to know that he could quit. Later in his evidence he claimed: “I asked them to stop but was not permitted”. When put to the Applicant that he could have ceased his involvement earlier, he responded: “I was scary because I already committed, and they threatened to kill”. When asked who had threatened him, he stated: “I don’t know his name”.
The Applicant agreed that after being arrested, read his rights, and invited by police to make a telephone call, he asked to call a female friend in Vietnam. He explained this was the only number he could recall from memory and wanted this friend to call his wife and daughter in Vietnam to advise them of his arrest.[44] When asked why he did not call Ms PH, his partner in Australia, the Applicant claimed he was “scared of disclosing that [he] had a wife and children in Australia” at this time.
[44] Exhibit R2, 165 [Q10].
When asked towards the end of his oral evidence if he continued to claim that police forced him to confess, the Applicant responded: “No”. When asked if he was represented by a barrister in his criminal matter, assisted by interpreters, and confessed of his own free will, the Applicant responded: “Yes”. He agreed that he told police and accepted in Court that he funded and set up the crop house, bought PVC tubing, electric lights, and other materials from a hardware store, and drilled into the wall to bypass the electricity system. He also agreed that he understood by making additional concessions to the police and court, he might be imprisoned for a longer period, resulting in longer separation from Ms PH and the children. It was put to the Applicant his loyalty appeared to be to others involved in the drug enterprise and not to his family. He agreed, stating this was because he feared retaliation. The Applicant confirmed he has not been contacted by others involved in the drug enterprise since his arrest.
In re-examination Ms Sujithkumar asked the Applicant if he “ever provided bogus documents to any authority knowingly” to which he responded: “No”. When asked if he ever “lied to authorities out of fear”, he responded: “Yes”. When asked if he ever felt like he was “unable to communicate effectively in the community”, he responded: “No”.
Intentions if released into the community
The Applicant said he wanted to remain in Australia permanently rather than on a temporary basis. If released he intends immediately commencing work as a delivery driver for six days a week. When not working, he will assist Ms PH with the children, including through school pick-ups and drop-offs, and taking them to recreational and social activities. When asked how he would provide this support for the children if working six days a week, the Applicant said he intends finishing work each day by 3:00 pm.
Intentions if returned to Vietnam
The Applicant was asked about comments he made during panel discussions in prison, in which he stated that “currently his family is in Vietnam and confirmed that following his release, he would be returning to be with his family”.[45] The Applicant said his intention was always to remain in Australia permanently, but: “At that time [he] was not declaring [his] wife and children in Australia”. The Applicant was asked about another panel entry dated 26 February 2021, which stated: “Le reported he was living with [Ms PH] in Victoria, however confirmed his knowledge that he will be deported back to Vietnam at the end of his sentence and raised nil issues with this”. The Applicant explained: “No, I was willing to stay here…but if they forced me to leave, I’d have to go with that”. The Applicant agreed he told prison authorities that Ms PH and the children planned to move back to Vietnam with him,[46] but claimed they had since decided not to because the children are settled in school.
[45] Ibid 125.
[46] Ibid 98.
The Applicant said his concerns about returning to Vietnam centre on the possibility of further imprisonment, which occurred after he was deported from Cuba. He cavilled with the proposition that he could find work in Vietnam, stating this would not be easy without qualifications. When challenged by Ms Roeger that the jobs he previously did were without qualifications, the Applicant claimed he was getting older and “they don’t accept old people anymore”. He stated that to secure a “permanent job with the Government in Vietnam” a person needed qualifications. When challenged by Ms Roeger that he was being asked about comparable jobs in Vietnam rather than jobs requiring qualifications, the Applicant agreed he could apply for “simple labour jobs with no qualifications” but stated: “at my age they may not accept”. When asked about a panel interview report while imprisoned that: “he should have no problem” finding work in Vietnam, the Applicant agreed he said this, but said it related to jobs like a driver or operating a motorbike taxi. The Applicant agreed he is physically able to do such work, is in good health, and there are no language impediments.
Evidence of Ms PH
Ms PH adopted her statement as true and correct. The Tribunal has also considered her other documentary evidence.[47] Ms PH said she came to Australia with her parents and four siblings from Vietnam and is now an Australian citizen. Her parents and siblings live nearby. She attended school in Australia and has worked since the age of 16, most recently as a receptionist and aide in a healthcare setting. She has not worked for four years because of her children’s needs but wants to do so now they are older. Apart from her family she does not have any close friends and only a few “school friends”.
[47] Ibid 57; 200.
Ms PH said she married the father of her three eldest children in 2008 and even though they separated “a long time ago”, which she estimated was at the “end of 2015”, they have not divorced. When asked why the Partner Visa she sponsored for the Applicant states she ended the relationship with her husband two years earlier than currently claimed (1 January 2014), Ms PH said she was “confused”. When asked what the correct date of separation was, she stated: “a long time ago, around 2014”.
Ms PH claimed to have met the Applicant on 2 September 2016 and said they started a relationship on 6 June 2017. She considers the Applicant to be her husband despite them not marrying. Ms PH was asked about the inconsistent dates in evidence about when they met and commenced a romantic relationship. Her statement refers to their relationship commencing in 2016, whereas the Applicant’s statement, which she wrote for him, states they met on “2.9.2017.” The Partner Visa she sponsored for the Applicant states variously that their relationship began on 1 January 2016,[48] which is prior to the Applicant’s arrival in Australia. Under her details as visa sponsor, however, it states they met on 2 September 2016,[49] and committed to a shared life together on 6 June 2017.[50] Ms PH’s responses did not assist the Tribunal in resolving these inconsistencies.
[48] Ibid 28.
[49] Ibid 41.
[50] Ibid 36; 41.
Ms PH claimed not to know the Applicant was living in Australia illegally throughout their relationship. She believes his involvement in criminal activity was “incidental and without knowing the seriousness”, because of his lack of formal education.[51] Ms PH said she was “angry” about the Applicant lying to her about working on a farm during the week but has forgiven him. She has paid for half his legal fees in the current proceeding and said his mother in Vietnam has provided the other half.
[51] Exhibit A1, 1.
Ms PH said she “really doesn’t know what [the Applicant] offended or what he was doing”. She agreed that she attended Court for his criminal matter, and when pressed, stated he was “cultivating cannabis”. She agreed the Applicant did not live with her and in the initial stages of their relationship, they only saw each other “once or twice” a month. This later increased to “more often on weekends”. When asked if the only physical interaction with her and the children was on weekends, Ms PH agreed, but claimed: “he sometimes came to me during weekdays”.
When asked what she knew of the Applicant’s life in Vietnam, Ms PH said he told her about being “detained many times in Hong Kong – back and forth between Hong Kong and Vietnam”. She referred to him being detained in Hong Kong for six years and said he then “tried to find freedom in other places”. He told her he “went to Cuba but it was unsuccessful”. When asked about the reference to England in the statement she wrote for him, Ms PH said he told her he “was trying to flee [Vietnam] to go to England but was caught in Cuba and put in jail for two months before being returned to Vietnam”. Ms PH said she knew the Applicant was previously married and has two adult children in Vietnam, but he told her the marriage “ended a long time ago”. Ms PH said she talked with the Applicant’s mother on the telephone “many times” since giving birth to W and knew his siblings live overseas.

Ms PH claimed W is the Applicant’s biological child. When asked why the father of her other three children, who she is still legally married to, is listed as W’s father on the birth certificate, Ms PH initially stated her husband agreed to this and “signed to this effect”. The Tribunal stopped Ms PH at this point and advised her about the privilege against self-incrimination, confirmed the adequacy of this warning with Ms Sujithkumar, and offered an adjournment. Ms Sujithkumar said this was not required. When Ms PH was asked further questions about the circumstances of W’s birth certificate containing her husband’s name, she invoked her privilege against self-incrimination, from which the Tribunal draws no adverse inference.
Ms PH said she never received any financial contribution from the Applicant during their relationship because she can cover all expenses for herself and the children. She said the Applicant only supports her “emotionally”. The Tribunal notes, however, that Ms PH is recorded as telling the Parole Board interviewer, that she needed the Applicant to assist her financially with R’s medical expenses.[52] Ms PH said she was unaware the Applicant sent $3000 a month to his family in Vietnam but does not care about this. When asked how she managed financially despite not working for the last four years, Ms PH said she had savings to rely upon, but also received financial support from a “friend’s business” and “parental payments” from Centrelink. When asked why this friend’s business supported her, she said it almost became “bankrupt” during COVID-19 and she provided financial assistance from her savings to pay business rent, which was now being reciprocated. When asked who this person was, Ms PH stated it was her “Boss’s nephew,” but did not elaborate.
[52] Exhibit R2, 233.
When asked about any child support from her husband Ms PH conceded the Child Support Registrar has issued a Determination requiring the payment of child support. When asked to provide this Determination to the Tribunal, she claimed it was not available because she had: “thrown that document in the rubbish”. When asked how much her husband paid, she claimed not to recall. When asked if she could refer to her bank statement as a way of recalling how much was paid, Ms PH said her husband paid her directly in cash. When asked how much this was, she could not recall or even approximate the amount. When asked about the existence of any percentage of care arrangement, Ms PH said there is an “order by consent”, giving her 100% care of the children, but her husband can visit any time by telephoning her. The Tribunal directed Ms PH to provide this consent order by close of business 4 August 2022.
Ms PH said the Applicant has always “been there” for her children, particularly R, who suffers a sleeping disorder. She said R is “quite heavy” and the Applicant would be of considerable assistance to her and R if released. She said R does not go out much because of their condition. In relation to the other children, the Applicant gets on well with them and used to take them to activities like swimming, martial arts, and the park. She said K used to cling to and cuddle the Applicant, and because some of the burden of looking after W falls on K, the Applicant’s presence would alleviate this. Even though W was a young baby when the Applicant was arrested, Ms PH said “there seems to be a connection between them”, because the child responds to him during telephone and video calls. Ms PH said she and the children talk with the Applicant “all the time, on multiple occasions each day”.
When asked about the expert medical evidence regarding R’s condition, Ms PH agreed it was not an eligible condition for the National Disability Insurance Scheme and that medication had resulted in a “huge improvement”. She said this was conditional on the medication being provided “on time”. When asked about the specialist’s references to an MRI for R being constantly delayed, Ms PH said this had now been done but was normal and provided no explanation for the sleep disorder. She said further appointments were scheduled and she wanted to get a second opinion.
Ms PH said the three elder children attend school daily from Monday to Friday while W attends childcare and occasional care between 09:00 am and 3:00 pm. When asked about the reference in her statement to R being “fully reliant on [the Applicant] for [their] survival”, Ms PH insisted this was true. When asked how this could be, given the Applicant had not been a physical presence in the children’s lives since arrest over two years ago, Ms PH said he plays a vital role in the children’s lives through other interactions. When put to Ms PH she has managed capably in the Applicant’s absence, with financial and practical support from her husband, business friend, parents, siblings, and government funding, she responded: “Not quite”. She claimed her husband does not have much involvement in the older children’s lives, was “emotionless”, and did not “seem to care much for the kids”. Ms PH said she is the one who looks after their children. When asked about R’s medical records, which refer to her husband being part of the medical decision-making, Ms PH responded: “No – he’s only attended one time…Even though [the doctor] says that…it didn’t happen”. When asked if she recalled when her husband attended a meeting with the specialist, Ms PH could not recall. She said her husband works fulltime in a busy job and does not have much time for involvement in their children’s lives. She said the children rarely mention him and it is the Applicant she receives emotional support from. Ms PH agreed her mother helps look after the children “for a few hours” when needed, and although her siblings are busy with their own families, her “older sister helps” when she asks.
Evidence of Ms PH’s sister
Ms PH’s sister adopted her statement as true and correct. She could not recall when she met the Applicant but thought it was around July 2016. She said they treated him “like family” and he is a “very caring man” of “very good character”. She sees Ms PH and her children at monthly gatherings at their parents’ house and provides her with emotional support.
The witness said their family is very close and lives within 30 minutes of each other. She said the siblings have their own lives to lead, but support each other, which is mostly “mentally and emotionally”. Occasionally Ms PH asks her to babysit, which she does.
When asked if the father of Ms PH’s children has anything to do with them, the witness said she was “not very clear” about this, but Ms PH had told her she is “sad and disappointed the father does not care for them”. She said the children’s father provides some financial support, but she is unaware of how much.
Expert and other evidence
Child Support Assessment
During the hearing, the Tribunal asked Ms PH to provide the percentage of care information she had referred to in oral evidence, and any Determination regarding child support paid by the father of her three eldest children. She initially claimed to have thrown the Child Support Determination “in the rubbish” without retaining a copy. She was unable to estimate how much child support was paid. Ms PH stated that she possesses an “order by consent” that gives her 100% care of the children. The Tribunal directed Ms PH to provide this order by close of business 4 August 2022.
In an email to the Tribunal dated 4 August 2022 at 1:54 pm, Ms Sujithkumar stated that Ms PH had instructed “there is no parenting consent order made by any court regarding the parenting arrangements of her kids” but had located “a recent assessment document from child support” regarding the contributions made by her husband. This document, which was taken into evidence as a Tribunal document,[53] discloses the following:
(a)Ms PH’s husband pays child support for all four children, including W, who Ms PH had insisted during the hearing is the Applicant’s biological child;
(b)The payment calculated for the assessment period dated 4 August 2022 until 10 March 2022 is $30,168 annually or $1,156.34 fortnightly, and the amount paid just for W, is $7,542 each year.
[53] Exhibit T1.
Psychologist’s report regarding Applicant
The only psychologist’s evidence regarding the Applicant is a relatively brief four-page letter from psychologist Mr Warren Simmons dated 23 December 2020.[54] This letter was prepared for the Applicant’s criminal matter. Mr Simmons interviewed the Applicant once on 23 December 2020 with the assistance of a Vietnamese interpreter.
[54] Exhibit R2, 10-15.
There are noteworthy deficiencies and inconsistencies in Mr Simmons’ letter when compared to other evidence before the Tribunal. For example:
(a)There is no reference in Mr Simmons’ letter to the Applicant’s relationship with Ms PH or the children whose interests the Applicant now invokes. Mr Simmons refers to the Applicant having “only one long-term relationship” with his wife in Vietnam, with whom he has two children, and which broke down after his “arrest”. Mr Simmons noted the Applicant’s wife “submitted divorce papers and fled to another part of the country” after being “threatened by people” with whom the Applicant had dealings with in Australia. This is inconsistent with the Applicant’s current evidence that he and his wife separated “a long time ago”, he does not know where she lives, and did not refer to any past threats against her;
(b)Mr Simmons noted the Applicant’s claim that his son lives with his biological mother, whereas the Applicant’s oral evidence is his son lives with the Applicant’s mother;
(c)Mr Simmons refers to the Applicant’s claim that “most of the money” he earned from the drug enterprise “went to his wife in Vietnam”. The Applicant denied during the hearing, however, that he sent any money to her and does not know where she lives after their separation “a long time ago”;
(d)There is no reference in Mr Simmons’ letter to the Applicant’s past arrests and expulsion from Hong Kong and Cuba, or his arrest in Vietnam;
(e)There is no reference in Mr Simmons’ letter to the Applicant’s unlawful non-citizen status within three months of arrival in Australia; and
(f)Mr Simmons records the Applicant’s claim that guards were alerted to his suicide attempt after he “thrashed around and hit the emergency button”. Prison records state, however, that staff “responded to an intercom call” from the Applicant that alerted them of his imminent suicide attempt.[55]
[55] Exhibit R1, 86.
There is no reference in Mr Simmons’ letter to any tests or actuarially based risk assessment to support his conclusion that the Applicant is “unlikely to engage in further offending”.[56]
[56] Exhibit R2, 14 [20].
Psychologist’s report regarding Ms PH
The Tribunal has considered a two-page letter from psychologist Hui-Lin Tan dated 29 January 2021, referring to Ms PH’s self-referred attendance at an ‘initial Telehealth psychological session’ on 26 October 2020.[57] There is no indication how long the session was for and the only source of presenting information appears to be Ms PH’s self-reported claims. The letter states Ms PH spoke:
“…about going through a separation process with her husband. She mentioned that she did not receive a lot of help and support from her husband. She talked about her husband working full‐time and that he perceived that women should stay at home and fulfill the household responsibilities.”
[57] Exhibit R1, 59-60.
The letter also states Ms PH “presented with symptoms consistent with depression” and encouraged her to:
“…continue with ongoing psychology and counselling services in dealing with her present mental health problems. It was understood that she experienced financial hardship at that time and was given a number of resources to explore for further assistance through government and funding bodies.”
This letter and the consultation session are now somewhat dated and consisted of a ‘single general consultation session without therapy’. There is a reference to Ms PH’s second child having “frequent problems with epilepsy and seizure”, requiring a “significant level of care”. This is the only reference to this condition in the documentary evidence, which was not raised during the hearing. There is no reference to the Applicant in this letter, which is unusual given he and Ms PH claim they were in a romantic relationship for about three-years by that time, which included the birth of W. There appears no reason why Ms PH would omit reference to the Applicant given she was purportedly unaware of his non-citizen status, and believed he was working legally on a farm from Monday to Friday. Moreover, the letter from the psychologist refers to Ms PH’s presenting issue as “going through a separation process with her husband”, which caused “relationship stress …for many years before the youngest child was born”.[58] These issues are referred to in the present tense, which conflicts with Ms PH’s oral and other documentary evidence that she and her husband ended their relationship more than six years earlier in 2014.
[58] Ibid.
A subsequent letter dated 9 May 2022 states Ms PH presented for a second session with another psychologist from the same company, to request ‘a psychologist’s report to assist her partner’s release from detention’.[59] This is the first and only inference to the Applicant in these two letters from the same videoconferencing psychology service.
[59] Ibid 182.
Royal Children’s Hospital documents
The Applicant and Ms PH refer to R suffering narcolepsy and cataplexy. The Tribunal notes from open-source information that narcolepsy is a sleep disorder causing daytime drowsiness and sudden sleep, while cataplexy is a sudden muscle weakness occurring while a person is awake.[60] The Tribunal has considered several medical letters from a consultant at the Royal Children’s Hospital between 2020 and 2022 about these diagnoses, when the child was between 10 and 13 years of age.[61] These disclose medication received had resulted in ‘huge improvement in [R’s] ability to concentrate and perform at school’.[62] For example, correspondence from a Sleep Paediatrician to the child’s general practitioner in 2020 stated:
“[R’s] teacher has noticed a huge improvement in [R's] ability to concentrate and perform at school. [R] is falling asleep at school much less frequently. [R] is still tired after school and we hope the change to a long-acting preparation with (sic) help with this sleepiness. [R] may need to have scheduled naps on some occasions as well. [R's] family were initially quite resistant to commencing medication. Consequently, we are going slowly and starting with a stimulant only at this stage. Once stabilised on the correct dose, if there is ongoing cataplexy, we will introduce another medication to manage this, if the family agree.
Progress Notes:
…
[R] seems to have had a pleasing response to the commencement of modafinil. Last visit I had suggested [R] increase the dose from 50mg to 100mg mane and lunchtime, however, [R] increased [their] dose to 150mg mane and lunchtime. Fortunately [R] has not experienced any side effects on the new dose of medication.
[R] describes being more alert and not feeling sleepy anymore. [R] has not had any nausea. [R] denies symptoms of cataplexy…
I have expressed my concerns to [R’s] mum about several aspects of [R’s] care. I have requested that [their] parents closely observe and supervise [R’s] medications to make sure they are taken regularly and at the correct dose, even while on holidays. I have requested the family provide me with contact details for [R’s] current school and that of [R’s] new high school for next year so that I may provide the schools with correspondence in relation to [R’s] condition… medications and how [R’s] diagnosis may impact on [their] schooling. I am concerned that the family have repeated cancelled the MRI brain scan I have ordered for [R]. I have encouraged them to call the MRI department and select a date that they have available on the school holidays so that [R] may have [R’s] scan done.
I plan to review [R’s] progress in February 2021.”
[60] Rob Newsom, ‘Cataplexy’ Sleep Foundation (Web Page, 13 April 2022) < Cataplexy: Causes, Symptoms, and Treatment | Sleep Foundation>.
[61] Exhibit R1, 61-63; 185-193.
[62] Ibid 62-63.
A more recent record dated early 2022 states the Cataplexy ‘rarely happens’.[63] It is recorded that the Narcolepsy still causes tiredness and some concentration issues at school and while doing homework, but the child was ‘reportedly not falling asleep’ at school any longer. Reference is also made to the child still being ‘late to classes frequently at the beginning of day and between classes...’ resulting in some detentions.[64] One record states the child’s general practitioner had now closed the case, but Ms PH wanted to take the child to an occupational therapist. The consultant at the Royal Children’s Hospital stated it is ‘unclear what role the OT will play’.[65] The child’s biological father reportedly played a role in decision-making regarding R’s treatment.[66] The child is reported to have had a ‘pleasing response’ to medication and the treating consultant expressed concerns that imaging scans ordered had not yet been performed.[67] The child’s mother was informed by the consultant that R’s condition was not eligible for NDIS support.[68]
[63] Ibid 187.
[64] Ibid 187; 192.
[65] Ibid 188.
[66] Ibid.
[67] Ibid 190.
[68] Ibid 192.
This issue is further discussed in Ms PH’s evidence and under the primary consideration: Best interests of children.
Supportive statements
The Tribunal has considered supportive statements in evidence.[69] This includes from Ms PH’s sister, a purported employer, and friends as follows:
(a)Ms PH’s sister stated that R has ‘disabilities symptom [that] can never be treat’ (sic).[70] There is a general reference to the Applicant having made a ‘mistake’.
(b)A letter dated 27 January 2021 and addressed to the ‘Sentencing Judge’[71] is without an address or telephone number. The author was not called as a witness and states they have known the Applicant for two years, during which he helped her ‘move house’, refused payment for this work, and has assisted with gardening. The letter refers generally to the Applicant’s ‘charge for a drug offence’.
(c)A letter dated 14 January 2021 addressed to the ‘Sentencing Judge’[72] is again without an address or telephone number listed. The author was not called as a witness and states they have known the Applicant for three years, that he helped with cooking at a prayer gathering, and is a ‘funny person’. The letter only refers generally to the Applicant being ‘charged with a Criminal Offence’.
(d)A letter dated 12 July 2021 contains an offer of employment for the Applicant as a ‘delivery person’ at a meat company.[73] The author was not called to give evidence and the letter is not on company letterhead. There are no contact details for the author, who refers any enquiries to his ‘secretary’. The mobile telephone number for the secretary appears elsewhere in the evidence for a person described as a ‘House wife’ and friend of Ms PH.[74]
TRIBUNAL CONSIDERATION OF EVIDENCE
Expert evidence
[69] Ibid.
[70] Ibid 53-54.
[71] Ibid 183.
[72] Ibid 184.
[73] Ibid 58; 181.
[74] Ibid 43.
Mr Simmons’ letter regarding Applicant
Mr Simmons was not called as a witness and could not be cross-examined about the inconsistencies and omissions in the information obtained from the Applicant during a single consultation almost two years ago. When coupled with the absence of any formal risk assessment, Mr Simmons’ letter has limited probative value and the Tribunal places little weight on this correspondence.
Psychologist’s report regarding Ms PH
The two psychologists who wrote brief letters relating to consultations with Ms PH were not called as witnesses and could not be cross-examined on the inconsistencies and omissions in the information they obtained from her. Her stress and symptoms are referred to in the context of marital problems with her husband rather than the Applicant. There is no direct reference to the Applicant, except for an inference drawn from the May 2022 letter. These letters have limited probative value, including as evidence of Ms PH’s current psychological health, and the Tribunal places little weight on them.
Applicant’s and Ms PH’s evidence

The Tribunal considers aspects of the Applicant’s and Ms PH’s evidence to be variously inconsistent, evasive, exaggerated, or intentionally opaque. This finding is not made lightly and does not arise from minor irregularities, mistakes, or their demeanour, but substantial evidentiary concerns. For example:
(a)The Applicant’s life story includes claims of persistent dire poverty, while purportedly being able to live and work in Hong Kong for two years, holiday in Japan and Paris, and attempt to emigrate to the United Kingdom via Cuba. He was also able to fund travel to Australia in 2016 on the premise that he was a genuine tourist.
(b)There was a concerning incrementalism and evasiveness about the Applicant’s evidence regarding his family in Vietnam. He initially claimed this consists of: “only my mother”. When asked about children, he first claimed to have: “one child, my son who lives with my mother”, then later conceded he has a second child, who is an adult married daughter.
(c)The Applicant’s current evidence about his wife in Vietnam is unpersuasive. He stated in oral evidence that he married his wife in 1998, but elsewhere claimed it was in 1997,[75] or that their relationship only began in February 2000.[76] The Applicant now claims to have separated from her “a long time ago” but cannot recall when. This information conflicts with his barrister’s claim to the Court in January 2021, presumably under the Applicant’s instructions, that the marriage in Vietnam only “broke down since he was arrested, and they divorced while he was on remand”.[77] The Court similarly found it was not until he was arrested that his “wife in Vietnam separated from [him]”.[78] This version of events is also contained in the letter from psychologist Mr Simmons. It is noteworthy that upon being arrested, the Applicant’s first instinct was to contact his wife and children in Vietnam rather than Ms PH.[79] The letter he wrote during his purported suicide attempt in prison, was also to his wife in Vietnam rather than Ms PH.[80] The Applicant agrees he sent approximately $3000 per month to his family in Vietnam,[81] without Ms PH being aware of this, although he claims it was for his mother and son, rather than his wife, whose whereabouts he claimed to be unaware of. There was no evidence from the Applicant’s mother, son, or daughter to corroborate these claims. The Tribunal does not accept on the currently available evidence that the Applicant’s relationship with his wife in Vietnam ended a long time ago and considers it more probable it continued until he was arrested for his drug offending and placed on remand.
[75] Exhibit R2, 12 [9].
[76] Exhibit R1, 45.
[77] Exhibit R2, 22 [17].
[78] Ibid 53 [32].
[79] Ibid 165.
[80] Exhibit R1, 86.
[81] Exhibit R2, 51 [19].
(d)Several of the responses recorded on the Applicant’s Partner Visa application are inaccurate and do not reflect his oral evidence at the hearing or other documentary evidence. This includes a failure to disclose he visited several countries in the last 10 years, was arrested / removed from Hong Kong and Cuba, and was arrested and imprisoned on being deported back to Vietnam. The Applicant’s evidence that his visa to Cuba was as a “genuine tourist” and he was only arrested and deported because six other members of his travelling party had fraudulent visas, was uncorroborated and unpersuasive. This is particularly so given he falsely claimed when entering Australia in 2016 that he was also a genuine tourist. Moreover, his claim that he was only holidaying in Cuba with no intention of proceeding to the United Kingdom is contradicted by his own statement and Ms PH’s oral evidence. Given the Applicant’s evidence of repeated arrest, imprisonment / detention, and expulsion from several countries, the Tribunal does not accept his uncorroborated assertion alone about never knowingly providing bogus documents. The Applicant’s claim that he has no prior criminal convictions other than those in Australia, is at least questionable given the history he currently relies upon. The Tribunal does not accept this visa application is “complete and correct” as was attested to when he and Ms PH submitted this form.
(e)The Applicant’s claim that W is his biological child is unconvincing in circumstances where Ms PH’s husband is listed on the birth certificate as W’s father and pays over $30,000 annually in child support for all four children.
(f)The Applicant’s claim that Ms PH is incapable of taking care of four children in his absence is contradicted by the fact she has done so during the last two years. His claim that she is experiencing financial pressure attributable to his absence from her life, is contradicted by Ms PH’s evidence that the Applicant has never provided her with financial support, only provides “emotional support”, and she receives the funds she needs for herself and the children from several other sources.
(g)Given the Outline of Plea Submissions tendered by the Applicant’s barrister to the Court,[82] and the Court’s findings, the Applicant’s current revisionist claims about his involvement in the cannabis enterprise were unpersuasive. He has since claimed others “forced” him to cultivate cannabis,[83] and he “tried to kill himself because Vitoria (sic) Police assaulted him and forced him to confess to…current charges”.[84] His current lawyer has also submitted the Applicant “was forced to confess…”:[85]
[82] Ibid 20-28.
[83] Exhibit R1, 5.
[84] Ibid 86-87.
[85] Ibid 82.
Our submission
Le was forced to plead guilty... [86]
[86] Ibid 84.
(h)The Applicant initially stated at the hearing: “I was beaten by police who broke my teeth. They punched me in the face, so I admitted more than what I did”. When asked to elaborate, he claimed many others helped him set up the crop house, and he did not fund establishment of the crop house. Later in his evidence the Applicant resiled from the claim he was “forced to confess…forced to plead guilty” and “was not…in a position to speak up or plead not guilty”.[87] When asked during closing submissions, Ms Sujithkumar conceded the Applicant no longer contended his admissions to police and the Court were coerced. That said, the fact the Applicant and his lawyer continued to make these serious allegations until the present hearing are of concern. The Tribunal rejects these claims, which appear at odds with professional legal obligations. This includes not acting “as the mere mouthpiece of the client”, ensuring any allegations “are reasonably justified”, and not alleging any matter of fact that amounts to “criminality, fraud or other serious conduct” unless there is a proper basis.[88] Aspects of the ASFIC dated 15 July 2022 are also not accepted as follows:
[87] Ibid 80; 84.
[88] Under s 18(d) of the Civil Procedure Act (2010) (Vic) and ss 17.1 and 21.2; 21.3; 21.4 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (ASCR); White Industries (Qld) Pty Ltd v Flower and Hart (1998) 156 ALR 169.
(i)The claim that the Applicant’s visa expired “around one year after his arrival” is factually incorrect. His three-month visa only allowed him to stay in Australia legally until October 2017.
(ii)It is contended the Applicant became involved in the drug enterprise ‘without knowing the seriousness’ and was ‘an inactive participant of the crime’.[89] The Tribunal rejects this. In oral evidence the Applicant said he was aware of the illegality of his conduct by the six-month mark but persisted in this illegal conduct. It is also impossible to be an “inactive participant” in crimes you plead guilty to and the Court finds you guilty of.
[89] ASFIC, 3.
(iii)There is no persuasive evidence to support the contention that the Applicant “has suffered a lot of discrimination from his home country and had been incarcerated for trying to flee his country due to political unrest.” Moreover, Ms Sujithkumar stated during the hearing the Applicant was not advancing any non-refoulement claims, and the Applicant’s oral evidence is he was seeking a “better life” and improved economic circumstances in Hong Kong, England, and Australia rather than fleeing political unrest.
(iv)The Tribunal rejects the contention the Applicant “has never spoken to anyone about his visa status” because he is an “introvert”. He stated in oral evidence he came to Australia intending to breach his visa conditions, decided to remain here unlawfully for several years, and engaged knowingly in an illegal enterprise for at least two years. These are intentional breaches of Australian laws rather than anything attributable to introversion.
(v)There is no reference in the ASFIC to the Applicant’s oral claims that he gave instructions to his solicitor about being arrested and deported from Hong Kong and Cuba. This information was not included in the visa application, which was prepared by his current lawyer. No objection was raised by his lawyer about this claim or explanation offered during the hearing.
(i)The Applicant’s current narrative about being kept as a prisoner, not being solely responsible for setting up and funding the crop house, and being coerced to continue involvement under threat of harm or death, conflicts with his police interview, his barrister’s submissions to the Court, and the Court’s findings. The Applicant’s inability to recall who else was involved or purportedly threatened him, diminishes the persuasive force of his claims. On the evidence currently before the Tribunal, he lived at the house alone, operated several mobile telephones, earned enough money to buy his own car, sent $3000 monthly to family in Vietnam, was invited to and attended social gatherings like birthday parties, met Ms PH during one of these gatherings, and commenced a romantic relationship with her, which evolved into spending most weekends together. This further diminishes the persuasive force of his claim to have been kept prisoner by unknown persons who exploited his naivety.
(j)The Applicant’s current oral evidence about how much he received from participation in the drug enterprise conflicts with his barrister’s submissions to the Court and came across as an unpersuasive effort to diminish his culpability. This includes the claim he only tended plants and received “a little bit more but not much more” than what he was previously earning.
(k)The Applicant’s evidence that he did not know what cannabis was, and thought he was growing legal crops for the first six months of his participation, was implausible. As a man in his 40s, who had travelled internationally prior to arriving in Australia, this aspect of his evidence came across as feigned naivety. The Applicant’s evidence that he would not have engaged in the drug growing enterprise if he knew it was cannabis, sits uneasily with the claim he did not know what cannabis was. His current oral evidence appears to conflict with the submission of his barrister in the criminal proceeding that “in 2017 he met some people who taught him that he could make a better income by growing cannabis for them at his house”.[90] His barrister presented his role as a “contractor” and the Court found he was the “architect of this set up”.[91] These cut across any claim the Applicant was unaware of the illegality of his conduct. The Applicant’s claim that he did not know cannabis harmed users until much later in his participation was similarly unpersuasive.
(l)The Applicant’s claims about wanting to exit the drug venture, including in the fortnight prior to his arrest, came across as unpersuasive. He performed this work for three years and his barrister submitted he worked “for the sole purpose of financial gain”.[92] The “genuine remorse” claimed to be evident from his “comprehensive admissions, plea of guilty, and candour”[93] is now brought into doubt by the revisionist nature of his claims. These are further diminished by a purported inability to recall others involved in the drug venture.
(m)The Tribunal does not accept the Applicant’s uncorroborated assertion alone that he would be unable to find work in Vietnam because of his age and lack of qualifications. He previously undertook a range of work in Vietnam into his 40s before arriving in Australia. This is comparable to the sort of work he plans to do if released (delivery driver). He also agrees that he previously told a panel interview in prison that “he should have no problem” finding work in Vietnam and was in good health and physically capable to do such work.
(n)Aspects of Ms PH’s evidence came across as less than forthright. This is particularly so regarding when the relationship with her husband ended, the financial support he provides, and why he is listed as W’s father on the birth certificate. On the currently available evidence, the Tribunal is unable to make a reliable finding that W is the Applicant’s biological child. In circumstances where there is no evidence from Ms PH’s husband, and given she exercised her privilege against self-incrimination about why he is listed as father on W’s birth certificate, the Tribunal is unable to make a reliable finding about why this is the case.
(o)The Tribunal found Ms PH’s evidence about her sources of income and support to be opaque at best. For example, the claim that she threw away the Child Support Registrar Determination about how much she receives from her husband in child support, was overtaken a day later by her provision of the document purportedly thrown away. This document disclosed that her husband pays child support for all children, including W.
(p)Given the inconsistency in the information from the Applicant and Ms PH about when they ended the relationships with their legal spouses, coupled with inconsistencies in the dates they say they met and commenced a relationship, the Tribunal is unable to make reliable findings about this. The Tribunal also has unresolved concerns about the accuracy of the information provided on the Applicant’s Partner Visa application, which Ms PH sponsored, to the Child Support Registrar, and to the psychologists who interviewed the Applicant and Ms PH.
(q)The Tribunal found aspects of the Applicant’s and Ms PH’s evidence about his parental role in the four children’s lives to be exaggerated. This is particularly so in circumstances where the Applicant was only seeing Ms PH and her children initially once or twice a month at the commencement of their relationship, and later predominantly on weekends. This includes for a period of approximately eight months following W’s birth in October 2019 until the Applicant’s arrest in June 2020. He has since been imprisoned or in immigration detention. The purportedly irreplaceable role of the Applicant in R’s life came across as somewhat overstated, in circumstances where the medical records state her sleeping condition is well controlled by medication, some of Ms PH’s family members assist her at times with care of the children, the children attend school or childcare during the week, and R’s biological father participates in medical decision-making to some extent.
(r)Ms PH’s current claim that she has never received and has not required the Applicant’s financial support, is inconsistent with claims recorded by a Parole Board interviewer, that she needed the Applicant to assist her with R’s medical expenses.[94] There is no evidence before the Tribunal to corroborate that Ms PH is experiencing financial stress at all, much less as a result of the Applicant’s physical absence from her life since June 2020.
(a)The Applicant relies on his purported suicide attempt on 14 June 2020 while imprisoned as a sign of remorse.[95] There is no expert evidence regarding his actual intentions and the Tribunal notes a prison record stating he called prison staff by intercom to alert them to this attempt. Prison staff noted upon attendance the Applicant was non-responsive but breathing normally. He is then reported to have started crying while remaining unresponsive. In the absence of any expert evidence and given the inconsistent nature of other aspects of the Applicant’s evidence, the Tribunal makes no finding about the genuineness of this incident.
[90] Exhibit R2, 22 [13].
[91] Ibid 51 [18].
[92] Ibid 22 [14]; 23 [25].
[93] Ibid 25.
[94] Exhibit R2, 233.
[95] Exhibit R1, 86.
Statements from friends and others
The Tribunal has considered several letters lodged by the Applicant from people who variously describe him as gentle, polite, respectful, and generous. One letter purporting to be from someone who works at a dental clinic treating the Applicant, did not refer to his offending and there are no contact details for the author. The Tribunal notes Ms PH worked at a dental clinic and the basis on which this reference is provided remains unclear. Another letter dated over a year ago purports to offer the Applicant employment as a delivery person upon release from parole. This letter is dated, makes no reference to why the Applicant was imprisoned, appears unaware of his immigration detention, and only includes a mobile telephone number. None of the authors of these letters were called as witnesses and there is no evidence the job offer remains open to him.
In considering references from close friends and family, the Tribunal is mindful they can often provide the best possible perspectives about an applicant’s conduct or other compelling factors. For example, the claim by Ms PH’s sister that R’s “disabilities symptom can never be treat” (sic)[96] are plainly inconsistent with the medical evidence. Care must therefore be taken about the weight placed on such references, particularly from those with only a limited understanding of the Applicant’s past conduct, or when they make general claims, or when their perspectives are untested by cross-examination. The Tribunal places less weight on such evidence.
[96] Ibid 53-54.
PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Tribunal consideration: The nature and seriousness of the conduct
Clause 8.1.1 of the Direction provides that the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)   crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)    causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)   crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).

The Tribunal has considered several photographs of the Applicant, Ms PH, and the children,[132] although these appear somewhat dated given the current ages of the children. The Tribunal accepts he has undertaken activities with the children in the past including swimming, soccer, taekwondo, parties, and going to the park. Notwithstanding the contextual inconsistencies in the psychological evidence relating to Ms PH, including that her mental health and parenting issues result from a separation process with the children’s biological father, the Tribunal accepts her parenting ability has also been impacted by stressors arising from the Applicant’s imprisonment and continuing detention.
[132] Ibid 64-72; 202-205.
The Tribunal has considered two letters in evidence, which appear to have been written by the Applicant’s stepchildren.[133] It is clear from these letters they love the Applicant and would like him to return to their lives.
[133] Ibid 199; 201.
Ms PH claimed in oral evidence she has never relied on the Applicant’s financial support. Given the relatively limited nature of his physical presence in the children’s lives, both prior to imprisonment and subsequently, this constitutes a long period of absence and limited meaningful contact. This is not to diminish the love he expresses for the children, or to suggest he has not maintained contact in other ways, but simply reflects that others, particularly Ms PH, have played the primary parental role.
The Tribunal accepts the Applicant cares for Ms PH’s children and aspires to a future parental role. The Tribunal finds that the biological father of Ms PH’s children also plays some role in their lives, as evidenced by his involvement in R’s medical decision-making, and payment of over $30,000 annually in child support. Given the inconsistencies and concerns previously expressed about Ms PH’s evidence, the Tribunal does not accept her evidence alone that the children’s father is “unemotional” and uninvolved.
The children’s interests are distinguished on the basis that W as the youngest child, and R as the sufferer of a sleep disorder, appear most in need of care. The Tribunal accepts that R has narcolepsy and this has affected their school attendance and ability to concentrate at times. The Tribunal also accepts Ms PH is seeking a second specialist opinion after an MRI and other medical enquiries did not disclose a reason for R’s condition.
There is no evidence the care received by the children is deficient in any way because of the Applicant’s absence. Given the young age of the children, there is scope for the Applicant to play a prominent and positive role in their lives for a considerable time prior to adulthood. This is conditioned by the requirement that he remains law-abiding, which is uncertain given he previously engaged in prolonged crime despite their interests.
Notwithstanding the Tribunal’s inability to make a reliable finding that the Applicant is W’s biological father, it is nevertheless in the best interests of the children to grant the visa. This includes because of the practical assistance he could provide to Ms PH when he is not working, and the emotional support his presence would provide to her and the children. This primary consideration weighs substantially in the Applicant’s favour.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Clause 8.4(1) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Clause 8.4(2) of the Direction states that visa refusal may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect the non-citizen should not be granted or continue to hold a visa.
Clause 8.4(4) states that this consideration is ‘about the expectations of the Australian community as a whole’ and directs decision-makers to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations. This correlates with the reasoning in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR), albeit under a different Direction. Notwithstanding the different pathways in judicial reasoning, the plurality in FYBR reaffirmed the principle enunciated by Mortimer J in YNQY,[134] namely that ‘Expectations of the Australian community’ is a deeming provision with normative principles, ascribing an expectation that aligns with the Executive Government. It is not for the Tribunal to determine the expectations of the Australian community based on a non-citizen’s individual circumstances.[135] FYBR requires decision-makers to focus on what the Government has deemed the community’s expectations to be, to have due regard to those views, and generally afford them more weight than other non-primary considerations:[136] cl 7(2) of the Direction.
[134] YNQY v Minister for immigration and Border Protection [2017] FCA 1466 (Mortimer J).
[135] FYBR (2019) 272 FCR 454, at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
[136] Ibid [74] (Charlesworth J). See also Say v Administrative Appeals Tribunal [2020] FCA 1489, [39] (Charlesworth J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[137] The Tribunal notes the High Court refused an application for special leave to appeal from the orders in FYBR.[138]
[137] Ibid at 473 [75]–[76] (Charlesworth J).
[138]FYBR v Minister for Home Affairs and Anor [2020] HCATrans 56.
The Applicant came to Australia as a 43-year-old adult, intending to live and work illegally, and engaged in serious criminal offending within a year. The Australian community would have a low tolerance of serious criminal and other conduct that raises serious character concerns within the non-exhaustive meaning of cl 8.4(2) of the Direction. This applies irrespective of whether the non-citizen poses a measurable risk of causing physical harm: cl 8.4(3) of the Direction.
The Applicant has breached the privilege of being allowed to enter Australia and the community’s reasonable expectation that non-citizens are law-abiding, respect important institutions, and do not engage in conduct that harms others. Of the six years he has spent in Australia, most of this has been spent either working illegally, engaging in prolonged criminal offending, serving a sentence of imprisonment, or in immigration detention. The principles at cls 5.2(2) and 5.2(4) of the Direction are particularly apposite and the Applicant should expect to forfeit the privilege of being allowed to remain in Australia. On balance, and notwithstanding other positive features of his case, this primary consideration weighs very substantially in favour of visa refusal.
OTHER CONSIDERATIONS
International non-refoulement obligations
Clause 9.1 of the Direction provides:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
(2) In making a decision under section 501 or 501 CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197 AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
(4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501 CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6) It may not be possible at the section 501/section 501CA stage to consider nonrefoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of nonrefoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
(7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501 CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the noncitizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
(8) If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501 CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international nonrefoulement obligations.
Section 5 of the Act defines ‘non-refoulement obligations’ non-exhaustively as including Australia’s obligations as a party to the Conventions, Protocols and Covenants listed at cl 9.1(1) of the Direction and ‘any obligations accorded by customary international law that are of a similar kind to those mentioned’ in those treaties. As held in Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 at 35 [103]: ‘the term “non-refoulement obligations” is not confined to the protection obligations to which s 36(2) refers’.
The Tribunal must give active intellectual consideration to the Applicant’s clearly articulated representations about risk of harm, regardless of characterisation.[139] The Tribunal’s engagement with such claims, however, relates to whether the discretion to refuse his visa should be exercised, rather than the analysis undertaken for Protection Visa applications.[140]
[139] YKSB v Minister for Home Affairs [2020] FCAFC 224, 5; Minister for Home Affairs v Omar (2019) 272 FCR 589, [34]–[44] (‘Omar’).
[140] Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, [27]–[28]; Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28].
As held recently by the High Court, the Tribunal is required to “read, identify, understand and evaluate” any non-refoulement representations the Applicant makes,[141] and:
“…bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate.”[142]
[141] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (“Plaintiff M1”), [9].
[142] Ibid [24].
The Tribunal can defer assessment of non-refoulement claims if the Applicant can apply for a Protection Visa, as is the case here.[143]
[143] Ibid [30].
The Applicant submitted the following in his statement dated 7 March 2022:
I am hopping to get a second chance to stay in Australia to be with my family. If I must go back to Vietnam, I don't know what my life will become.
I know for sure that Vietnam Government will put me in jail for couple of years, and they will punish me. Because Vietnam is a corrupt country, that's why my family left everything behind to seek for a better life.
If Vietnam is not corrupt, the government protect their citizen just like Australia, then there's no point their citizen would leave their country.
I am very worrying my life can be threaten when I am back, I know a lot of people like myself try to leave Vietnam but got send back to Vietnam, they got kill, and I am verry worry this could happen to me, that I can be kill with no reason.[144]
[144] Ibid 179.
The Applicant also submitted through his lawyer on 10 May 2022 that returning to Vietnam is ‘not an option for the applicant…as he is fearing jail terms’.[145] It is further submitted:
As he has spent jail terms in his home country due to arbitrary power exercised by the government at that time, the applicant was noto (sic) in a position to speak up or plead not guilty.
[145] Ibid 80.
In his oral evidence the Applicant claimed he “could not escape” from those in the cannabis growing enterprise, and if he had tried to, they would either have killed him or harmed his partner or children. He did not specify whether he was referring to his partner and children in Australia or Vietnam. His claims were general at best and have not previously been made to police or the Court. No evidence was provided to corroborate these purported threats and the Applicant’s oral evidence is that he has had no communication with others involved in the drug enterprise since his arrest. It remains unclear why anyone would seek to harm him. It is noteworthy the Applicant did not advance non-refoulement obligations in his Statement of Facts, Issues, and Contentions and none were advanced by Ms Sujithkumar during the hearing. When the Tribunal asked during closing submissions whether non-refoulement claims were being relied upon, Ms Sujithkumar confirmed they were not.
The Tribunal has considered the DFAT Country Report for Vietnam dated 11 January 2022, which states the following in relation to treatment of returnees:
TREATMENT OF RETURNEES
Exit and entry procedures
5.25 Article 23 of the Constitution allows citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’. In practice, the Government imposes limits on entry and exit for political activists and Government critics. This is achieved by refusing to issue passports or laying criminal charges to prevent travel, and is sometimes used against the families of persons of interest.
…
Conditions for returnees
5.29 Articles 120 and 121 of the Penal Code prohibit ‘organising, coercing [or] instigating illegal migration for the purpose of opposing the People’s Government’ and describes penalties of between three and 20 years’ prison for both organiser and individual émigrés. DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia.
…
5.31 DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.
5.32 Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.
…
5.34 Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.
Tribunal findings: International non-refoulement obligations
The Applicant is a citizen of Vietnam, which is the receiving country for the purposes of s 5(1) of the Act. It remains open to him to apply for a Protection Visa, but there is no evidence he has yet done so or intends to.
Notwithstanding Ms Sujithkumar’s concession during closing submissions that non-refoulement claims are not being relied upon, the Tribunal considers it appropriate to address the Applicant’s previous documentary evidence that inevitable arrest and imprisonment, potentially “jail for lifetime” or death, await him if returned to Vietnam.[146] The only support for this was his uncorroborated claims. These are contradicted by the DFAT Country Report for Vietnam,[147] which the Tribunal prefers as an impartial and authoritative source of country information. The Tribunal does not accept on current evidence the Applicant would be targeted in the way he claims. This includes because he has provided no corroborating evidence regarding the purported circumstances of his past detention and expulsion from Hong Kong, Cuba, and imprisonment in Vietnam, or about the threats purportedly made by people in Australia whose identity he cannot recall. The Applicant came to Australia legally in 2016 on a newly issued Vietnamese passport and valid Australian visa. There is no apparent reason why his return to Vietnam would inevitably lead to imprisonment, arrest, or other punishment.
[146] Exhibit R1, 178.
[147] Exhibit R2, 329 [5.26] -330.

In terms of the primary legal consequence of an adverse decision in this matter, the Applicant is liable for continued detention under s 189 of the Act until it is reasonably practicable to remove him, noting the operation of s 197C(3) of the Act should he apply for and be granted a Protection Visa. It is permissible to continue a person’s detention for a legal reason including, for example, if they are exercising their appeal rights, or applying for a Protection Visa, or while consideration is given to the possible exercise of non-compellable discretions under the Act,[148] or while arrangements are made to facilitate a request for voluntary return. These are currently irresoluble branches and sequels of future events. On currently available evidence, however, it appears reasonably practicable to remove the Applicant to Vietnam in the event of an adverse decision.
[148] Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, 191 [16].
The Tribunal is not required to engage in speculation or fact-finding[149] and respectfully adopts the reasoning in Aliv Minister for Immigration and Border Protection,[150] albeit in the context of a non-revocation decision:
“The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing...”
[149] BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199.
[150] [2018] FCA 650.
In DOB18 v Minister for Home Affairs[151] at [35], Griffiths J reflected favourably on the reasoning in Ali and similarly cautioned against speculating about the course of future decision-making:
… In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making...
[151] [2018] FCA 1523.
Irrespective of options that might emerge, an adverse decision comes with considerable significance for the Applicant, including because of Ms PH’s apparent intention to remain in Australia with her four children because they are settled in school and to accommodate further investigation into R’s condition. This is, however, ultimately a personal choice for the Applicant and Ms PH to consider in the event of an adverse decision.
On the Applicant’s current general and uncorroborated claims this consideration is not enlivened and carries neutral weight.
Extent of impediments if removed
Clause 9.2 (1) of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)        The non-citizen’s age and health;

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

c)        Any social, medical and/or economic support available to them in that country.
This consideration requires an assessment of impediments the Applicant may suffer if repatriated. This is in the context of maintaining basic living standards generally available to citizens of that country.
Age, language, culture
The Applicant is 49 years of age and lived in Vietnam until the age of 43. He has maintained regular contact with his family in Vietnam, through ‘telephone calls and letter writing’.[152] He reportedly possessed a passport when paroled.[153]
[152] Exhibit R1, 90; 95; 113.
[153] Ibid 91; 94.
Health
Upon commencing remand in 2020, the Applicant reported he had no medical concerns and was not taking any medication.[154] Apart from the suicide attempt previously referred to, which the Applicant stated he would not repeat,[155] his health was reported as:
LE SAID THAT HIS MENTAL HEALTH IS ON THE IMPROVE AFTER HIS ATTEMPTED SUICIDE ATTEMPT WHEN HE WAS AT MRC AND IS FEELING MUCH BETTER AT MIDDLETON NOW, HE IS SURROUNDED BY SOME OF HIS FELLOW COUNTRYMEN. LE SAID THAT HE IS PHYSICALLY IN GREAT SHAPE AS HE WALKS DAILY AND USES THE GYM EQUIPMENT 3-4 TIMES PER WEEK.[156]
[154] Ibid 121; 123.
[155] Ibid 124.
[156] Ibid 98.
The Applicant’s lawyer stated in written submissions that his ‘mental level has been improved after the attempt in suicide’ (sic).[157] The Parole Board reported in November 2021 the Applicant has “no issues relating to his physical health and no ongoing medical conditions requiring treatment. Mr Pham is in good health…Mr Pham has no pharmacotherapy or medication requirements”.[158] Mr Simmons’ letter refers to a kidney stone issue that “causes pain [and] bilateral swellings underneath his jawline”, but there is no reference to this in other evidence. During the hearing the Applicant stated there is no medical or psychological condition impeding his immediate return to work if released.
[157] Ibid 83.
[158] Exhibit R2,232; 235.
Employment and daily needs
The Applicant has worked in multiple work roles throughout his life in Vietnam and is recorded as telling staff he has ‘no work lined up when he returns to Vietnam but…should have no problem picking something up’.[159] His evidence during the hearing, however, is that he expects difficulties finding work because of his age and lack of qualifications.
[159] Ibid 97.
Conclusion on extent of impediments
The Applicant is currently fit and healthy. He lived in Vietnam into his 40s and does not face any discernible cultural or linguistic impediments. He reports holding down multiple jobs in Vietnam and the Tribunal does not accept his age is a barrier to work. His mother and two adult children live in Vietnam and Ms PH stated his mother has funded half his current legal fees. Given the Applicant remitted approximately $3000 monthly to family in Vietnam during his criminal offending, he may be able to count on some reciprocal financial, practical, and emotional support if returned. There is also no evidence he would be treated any differently to other citizens of Vietnam if he needs additional support.
There is no evidence of any further suicidal ideation since June 2020 and the Applicant has not sought any follow-up support. He has since reported being in good physical and mental health. The Tribunal accepts this may not always be the case if he is removed to Vietnam, but there is no evidence if this occurred that treatment would be unavailable to him.
After living in Australia illegally for several years, and bearing the custodial consequences of his crimes, the Tribunal accepts the Applicant may experience a period of re-adaptation if returned. The impediments confronting him, however, are not insurmountable and he has previously demonstrated an ability to re-adapt to life in Vietnam after being deported from Hong Kong and Cuba.
This consideration carries slight weight in favour of granting the visa.
Impact on victims
Clause 9.3 (1) of the Direction states:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence from victims within the meaning of the Direction. This consideration is not enlivened and carries neutral weight.
Links to the Australian community
Clause 9.4 of the Direction provides that decision-makers must, reflecting on the principles at cl 5.2, have regard to cl 9.4.1 relating to the ‘Strength, nature and duration of ties to Australia’, and cl 9.4.2 relating to ‘Impact on Australian business interests’. In terms of the latter, the Tribunal has considered the Applicant’s claims about previous work in Australia. There is no evidence, however, that a decision in this matter risks compromising the delivery of a major project or an important service in Australia, such as to displace the presumption in the Direction. The Tribunal finds that cl 9.4.2 of the Direction is not enlivened and carries neutral weight.
Strength, nature, and duration of ties
Clause 9.4.1 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(iii) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant was 43 years of age on arrival in Australia and has only lived here for six years. Most of this time has been spent either working unlawfully, without a valid visa, engaging in criminal offending, serving imprisonment, or in immigration detention.
There is scant evidence of the Applicant’s positive contribution to the Australian community. He refers to work as a builder and on farms, but there is no corroboration of this.[160] There is also no evidence he paid tax on any employment as an unlawful non-citizen or from the proceeds of his criminal offending. There is a reference to claimed volunteering at a church,[161] but no corroboration from church office holders or beneficiaries of this volunteering. His claims about positive contributions rise no higher than assertion.
[160] Ibid 106.
[161] Ibid 101-102.
The Applicant’s Parole Assessment Report notes he “appears to have limited recreation and leisure pursuits in the community”.[162] During his oral evidence, the Applicant referred to only two close friends in Australia. The Tribunal has considered the supportive letters in evidence, but little weight is placed on these in circumstances where the authors did not give oral evidence and no evidence is available that they fall within the meaning of this consideration.
[162] Exhibit R2, 231.
Conclusion on Strength, nature, and duration of ties
The Tribunal finds that:
(b)The Applicant has lived in Vietnam for most of his life, where his parents, other relatives, and friends continue to reside.
(c)Given the Applicant commenced offending soon after arriving in Australia, less weight is placed on this consideration.
(d)It is not possible on these facts to place much weight on any positive contributions.
(e)The Applicant has a very close relationship with Ms PH and her children, whose interests have also been considered under the Best interests of children. The Tribunal accepts the impact on Ms PH after the Applicant’s arrest has been significant. This includes emotional and practical impacts because she carries the burden of her children’s care. That said, the Applicant’s interaction with and support of Ms PH was comparatively limited while he was living in the community. This consisted of initial meetings once or twice a month in the early stages of their relationship, then predominantly on weekends until his arrest in June 2020. The Tribunal has some residual concerns about the closeness of the Applicant’s relationship with Ms PH in circumstances where he was not truthful to her about what work he was doing and did not inform her he was sending approximately $3000 each month to his family in Vietnam. It is also noteworthy the Applicant did not disclose his relationship with Ms PH to the police, his barrister, the court, or psychologist Mr Simmons. Ms PH also does not appear to have disclosed her relationship with the Applicant to the psychologists she saw and instead contextualised her mental health issues as arising from separation with her husband. For the reasons previously adduced, there is continuing uncertainty around the support and involvement of the children’s biological father.
(f)The Tribunal accepts the Applicant has established some ties in Australia, but these are very limited and the effect of visa refusal on other than Ms PH appears emotional at best. This includes Ms PH’s sister and the sister’s husband.
It is accepted the Applicant has a close relationship with Ms PH, who would benefit from his presence in the home. This would enable responsibilities for the children to be shared, although the Applicant’s intention to return to work six days a week will limit the support he can provide. Although the evidence suggests Ms PH would not accompany the Applicant to Vietnam, this is a personal choice to be made in the event of an adverse decision. The Tribunal finds on balance, however, that this consideration weighs moderately in favour of granting the visa.
Additional considerations
No additional considerations were advanced by the parties and the Tribunal has not identified any ‘other considerations’ under the non-exhaustive list at cl 9(1) of the Direction.
CONCLUSION
The Applicant does not pass the character test. In considering whether the discretion under s 501(1) of the Act to refuse the visa should be exercised, the Tribunal has applied the Direction to the specific circumstances of this case. The Tribunal sees no reason to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations than other considerations.
The Applicant’s offending and other conduct is very serious. This includes his intention to breach Australian migration laws prior to arrival. He lived for several years as an illegal non-citizen and involved himself in prolonged and serious criminal offending within a year. It is not to his credit that he now seeks to advance a revisionist version of his offending, in conflict with his guilty pleas and judicial findings. The potential harm from a repeat of his offending and other conduct is very serious. The Applicant has egregiously breached the privilege of being allowed to enter Australia, and the community’s tolerance for such offending is very low. He should expect to forfeit the privilege of being allowed to remain.
The Tribunal does not accept on the available facts that the Applicant is W’s biological father as he and Ms PH claim. This is because the father of Ms PH’s other three children is listed as W’s father on the birth certificate, and he pays over $30,000 annually in child support for all of the children. That said, given Ms PH’s evidence about her reliance on the Applicant emotionally, and the letters from some of the children, it is considered in their best interests to exercise the discretion in the Applicant’s favour.
Of the other considerations enlivened in this matter, the Applicant lived and worked in Vietnam until his 40s and can rely on some practical and emotional support from family members. That said he is likely to experience a period of re-adaptation if returned. Any impediments confronting him, however, are not insurmountable and he has successfully re-adapted to life in Vietnam after previously being deported from Hong Kong and Cuba.
The Applicant’s ties to Australia are very limited. Apart from Ms PH, the children, and two close friends, there is no evidence his removal results in other than disappointment or sadness for others. Although the evidence suggests Ms PH would not accompany the Applicant if he was repatriated to Vietnam, this is a personal choice yet to be made.
Having considered the relevant primary and other considerations, the Tribunal finds the discretion under s 501(1) of the Act should be exercised to refuse the Applicant’s visa. That is because the primary consideration Protection of the Australian community weighs moderately against, and the primary consideration Expectations of the Australian community weighs very substantially against exercising the discretion to approve the visa. These considerably outweigh the combined weight given to the primary consideration Best interests of minor children and the other countervailing considerations.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding one hundred and sixty-nine (169) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

……………[sgd]…………………….
Associate
Dated: 12 August 2022

Dates of hearing: 2 and 3 August 2022

Advocate for the Applicant:
Ms Thara Sujithkumar

Solicitors for the Applicant: Flyworld Migration and Legal Services

Advocate for the Respondent: Ms Shauna Roeger

Solicitors for the Respondent: Australian Government Solicitor

Dates of hearing:	2 and 3 August 2022
Advocate for the Applicant:	Ms Thara Sujithkumar
Solicitors for the Applicant:	Flyworld Migration and Legal Services
Advocate for the Respondent:	Ms Shauna Roeger
Solicitors for the Respondent:	Australian Government Solicitor