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

Pham and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 535 (13 March 2024)
Division:GENERAL DIVISION
File Number(s): 2023/9655
Re:Manh Hung Pham
APPLICANT

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

DECISION
Tribunal:Senior Member O'Donovan
Date of decision: 13 March 2024
Date of reasons: 26 March 2024
Place:Canberra

The decision under review is affirmed.
…..........................................
Senior Member O'Donovan
Catchwords
MIGRATION – mandatory cancellation of the applicant’s Class BB Subclass 155 Five Year Resident Return visa – applicant is a citizen of Vietnam – recklessly deal with proceeds of crime – traffic methylamphetamine – drive dangerously – assault officer in execution of duty – family violence – failure to pass character test – whether there is another reason to revoke the cancellation – Direction No 99 – protection of the Australian Community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed
Legislation
Migration Act 1958 (Cth), ss 501, 501(3A), 501CA
Secondary Materials
Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023)
REASONS FOR DECISION
Senior Member O'Donovan
26 March 2024
INTRODUCTION

The applicant is a citizen of Vietnam. He came to Australia as an adult in 1996. He got married soon after his arrival and had three children over the following decade, but he never became an Australian citizen. In his time in Australia the applicant has accumulated a lengthy criminal history. Most of his crimes have been the product of his use of hard drugs including heroin and ice. The offences include domestic violence offences, serious traffic offences including a police chase and drug trafficking offences. However, it was a dealing with the proceeds of crime offence committed in 2015 that led to a conviction and sentence of more than 12 months in 2021 and the subsequent cancellation of his Resident Return Visa which has led to these proceedings.
The applicant’s visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth). The applicant sought to have the cancellation revoked pursuant to section 501CA(4). On 19 December 2023 a delegate of the Minister decided that the applicant did not pass the character test, and that there was not another reason to revoke the cancellation. The applicant applied to this Tribunal for review of that decision.
It is not in dispute that the applicant fails the character test. The only issue to be determined is whether there is another reason to revoke the cancellation. For the reasons which follow I am not satisfied that there is another reason to revoke the visa cancellation.
In considering whether there is another reason why the cancellation decision should be revoked, the Tribunal must have regard to the matters contained in a ministerial direction issued under section 499 of the Migration Act. The relevant direction is Direction No. 99, which was executed on 23 January 2023 and commenced on 3 March 2023 (‘the Direction’). Informed by the principles identified in the Direction, I must take into account the considerations identified in sections 8 and 9 when I am determining whether there is another reason why the cancellation should be revoked.
The Direction is divided into ‘Primary’ and ‘Other’ considerations. Primary considerations should generally be given greater weight than the other considerations (but there is scope to weight ‘Other’ considerations more highly in appropriate circumstances).
The primary considerations are:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) Whether the conduct engaged in constitutes family violence;
(c) The strength, nature and duration of ties to Australia;
(d) The best interests of minor children in Australia;
(e) Expectations of the Australian community.
The other considerations are:
(a) The legal consequences of the decision;
(b) The extent of impediments to the applicant establishing and maintaining basic living standards if removed;
(c) The impact on victims;
(d) The Impact on Australian business interests.
I am also required give consideration to any other matters advanced by the applicant.
Having considered each of the considerations and weighed them appropriately, I am not satisfied that there is another reason why the cancellation decision should be revoked. Consequently, the visa cancellation decision stands.
Evidence
A hearing was held on 7-8 March 2024. I heard oral evidence from the following witnesses:
(a)Mr Manh Hung Pham (applicant)
(b)Ms B Pham (applicant’s former wife)
(c)Mr KP (applicant’s son)
(d)Mr JP (applicant’s son)
(e)Ms CP (applicant’s daughter)
(f)Mr Jamie Payton (applicant’s friend)
In addition, I took into evidence the following documents:
(a)G-Documents (filed 10 January 2024)
(b)Letter of Support from Alicia Slater, Secretary of Narcotics Anonymous District 30 dated 17 February 2024 (Exhibit A1);
(c)Report of Sam Borenstein, psychologist dated 28 February 2024 (Exhibit A2)
(d)Statement of Manh Hung Pham dated 6 January 2024 (Exhibit A3)
(e)Statement of KP dated 7 January 2024 (Exhibit A4)
(f)Statement of JP dated 7 January 2024 (Exhibit A5)
(g)Statement of B Pham dated 8 January 2024 (Exhibit A6)
(h)Statement of CP dated 9 February 2024 (Exhibit A7)
(i)Statement of Thi Thu Ha Nguyen dated 4 February 2024 (Exhibit A8)
(j)Further statement of Manh Hung Pham undated (Exhibit A9)
(k)Statement of Quang Hoa Dinh dated 8 January 2024 (Exhibit A10)
(l)SMART Recovery Australia – meeting attendance verification dated 7 February 2024 (Exhibit A11)
(m)Drug Health Services – Magistrates Early Referral into Treatment (MERIT) Report dated 17 September 2021 (Exhibit A12)
(n)Cannabis Awareness Certificate of Completion – Manh Pham undated (Exhibit A13)
(o)Article – Incarceration and compulsory rehabilitation impede use of medication for opioid use disorder and HIV care engagement in Vietnam, Journal of Substance Abuse Treatment dated March 2022 (Exhibit A14)
(p)Article – Fuelled by meth addiction, Vietnam’s drug-treatment centres are rife with abuse, Southeast Asia Globe dated 30 September 2022 (Exhibit A15)
(q)Statement of Jamie Payton dated 27 January 2024 (Exhibit A16)
(r)Respondent’s Tender Bundle filed 29 February 2024 (Exhibit R1)
Fact finding principles
In this application the Tribunal has a number of sources of information. The first is the applicant’s own evidence which he has given to the Tribunal on affirmation, as well as other assorted admissions recorded in psychologists’ reports and other documents.
The Tribunal also has access to police fact sheets prepared by the police in relation to charges which were laid against the applicant over many years. Those fact sheets relate to charges that were mostly disposed of by a guilty plea, no conviction being entered, and the applicant being subjected to a good behaviour bond.
The applicant’s representative initially objected to receipt of the police fact sheets into evidence. The objection was that the contents of a police fact sheet is simply a ‘wishlist’ of what the police hope to prove at a trial. It is not evidence of anything. It is not verified by any witness and so should not be taken in on that basis. That objection was not upheld. I was satisfied that the fact sheets could be taken into evidence on the basis that:
(a)The Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate;
(b)A police fact sheet is more than a ‘wishlist’. It is a document prepared by a public official for the purposes of conducting court proceedings and on that basis its contents are worthy of serious consideration; and
(c)The Tribunal can determine the weight to be given to the document on the basis of submissions concerning its provenance and the evidence that the applicant adduces concerning the facts in issue.
I have had regard to and placed weight on all the fact sheets included in the material provided. The fact sheets were largely consistent with the ultimate result recorded in relation to the various charges which the applicant faced, and the applicant never adduced what could be described as independent evidence to establish that the facts recorded were incorrect. To the extent that the applicant gave evidence which was inconsistent with the fact sheets I have generally preferred the version of events laid out in the fact sheet on the basis that they were prepared by a public official for an important purpose and at a time much closer to the events in question. In many cases the applicant’s evidence was consistent with facts set out in the fact sheets.
Further, the accuracy of the content of one of the contested fact sheets was confirmed by the applicant’s wife. It related to a family violence offence committed in 2001. Ultimately the applicant did not deny that the incident happened as described. He merely stated that he did not remember the incident. If the applicant gave evidence which cast serious doubt upon the accuracy of any fact sheet or anything else recorded in police records, or his wife gave evidence inconsistent with those records, it may be difficult to accept them at face value. However, in light of the evidence I am satisfied that the fact sheets provide a reasonable basis for my factual conclusions.
Facts
The applicant was born in Vietnam in March 1974. He had an unremarkable childhood. He had nine years of formal education. When he left school he began work in a factory. It was here that he was first introduced to heroin by work colleagues. He has struggled with addiction ever since.
He arrived in Australia in 1996 on a Class BB Subclass 155 Five Year Resident Return visa. He married his sponsor T Hong (later known as B Pham) and they lived together in Sydney. Their first son KP was born in 1997.
When the applicant arrived in Australia he was not using heroin but he recommenced using heroin in the late 1990s or early 2000s.
In September 2001 the applicant was convicted of criminal offences in Australia for the first time. He was convicted of using an uninsured motor vehicle, displaying a misleading number plate, driving while his licence was suspended and using an unregistered vehicle on a road area. In September 2001 he was convicted and fined in relation to these matters which arose from a single incident. In his evidence to the Tribunal the applicant explained that he was driving a friend’s van so his friend could buy drugs. In the course of the journey they were stopped, spoken to by police and ultimately charged.
A month prior to the applicant’s conviction on driving offences he was arrested following a domestic dispute. Prior to that dispute I am satisfied that the applicant’s then wife had been subject to emotional abuse during their relationship but had failed to report it due to the fear he instilled in her.[1] On the day in question the applicant’s wife awoke to discover that neither the applicant nor her vehicle were at their home. She advised police that it was her usual practice to hide her keys because the applicant used her car to buy heroin. When the applicant returned home he threw a drinking glass. In his evidence before the Tribunal he denied that he threw it at his wife and for present purposes I am prepared to accept that. A verbal argument ensued, following which the applicant slapped his wife, then when she fell back he jumped on top of her and punched her several times in the head. He also picked up a glass jar shaping up to assault her with it but, following her pleading, he ‘reluctantly’ dropped it rather than using it as a weapon against his wife. The applicant then left the premises, which allowed his wife to leave and seek assistance from the police. The applicant was charged and convicted of common assault. He was fined and given a two-year good behaviour bond. In his evidence to the Tribunal the applicant initially claimed that he had never assaulted his wife during their marriage. However, he later conceded that the incident above may have occurred as described but because he was high at the time he simply did not remember it. His ex-wife confirmed the details were correct in her evidence.
[1] TB 11, 313 and oral evidence of B Pham.
In the next three years the applicant picked up two convictions for driving while disqualified. He continued to use heroin. He was only successful in getting free from his addiction following treatment in Western Australia in 2007. He received a medical implant which diminished his opioid cravings. By this stage the applicant had three children KP, JP and CP.
Between approximately 2007 and 2014 the applicant was drug free. He set up a business with a friend in Vietnam which involved trucking goods within Vietnam. The business was not profitable and after several years of trading was forced to close. As a consequence of his involvement with the business the applicant returned to Vietnam regularly up to 2013. When the applicant returned to Australia following these visits, he failed to disclose his convictions on his incoming passenger cards on 6 March 2012 and 5 June 2013.
In 2014 the applicant resumed using illegal drugs and his criminal offending recommenced. The drug to which he became addicted was the methamphetamine known as ‘ice’.
In July 2014 police sought to question the applicant in a Bunnings carpark. The police asked the applicant to sit down on the curb while they investigated the vehicle he was sitting in, but at some point the applicant became irate and rushed towards one of the police officers. He made contact with one of the police officers’ right shoulders. Attempts were made to place hand cuffs on him and the applicant resisted arrest. He was subsequently charged with assaulting an officer in execution of his duty and resisting an officer in the execution of his duties. The resisting arrest charge resulted in a conviction but with no other penalty imposed.[2] The assault on the police officer resulted in a conviction and a 12-month good behaviour bond.
[2] G3, 39 and TB10, 292 – note the reference to section 10A which is consistent with the applicant’s version of the outcome where he went to court, apologised to the policeman and that was the end of the matter.
On 21 November 2014 at 10:00pm the applicant was involved in a police chase through suburban streets where he reached speeds of around 70-75 km/h in a 50km/h zone. In his evidence before the Tribunal the applicant accepted that his driving posed a risk to other road users and that he was high on ice at the time. The applicant was disqualified from driving for 2 years. He was also dealt with for driving with an expired licence and was given a good behaviour bond.
The applicant continued to use ice.
In 2015 the applicant became mixed up in an attempted fraud when an unknown person altered a cheque so that it bore the applicant’s name. The value of the cheque was also altered from $20 to $528,000. It was deposited in the applicant’s account. When the cheque cleared the applicant made a number of withdrawals from the account. Substantial transfers were made to other people associated with the applicant, including $30,000 to his ex-wife and $1500 to his son KP. The total amount dispersed by the applicant for his own purposes was in the order of $115,000.
The balance of $410,000 was transferred to a third party.
In the course of the criminal proceedings the applicant conceded that he was responsible for seven of the cash withdrawals and a number of the transfers to others which followed the deposit of the fraudulent cheque. The matter was dealt with by the courts in 2021 and resulted in a conviction for recklessly dealing with the proceeds of crime. The applicant was given a custodial sentence of two years and seven months, with a non-parole period of one year and six months.
In 2016 the applicant moved to Melbourne. While in Melbourne he committed offences including trafficking in methylamphetamine and dealing in property suspected of being proceeds of crime. The circumstances were these: in April 2016 police attended a Motor Inn that had been occupied by the applicant and a co-offender. Police located a number of computer devices in the hotel room. During a subsequent search of the hotel room, police found ‘deal bags, scales and $400 in cash’. Police also located methamphetamine in an amount of 47 grams. The applicant was sentenced to four months’ prison in relation to both charges and he served the periods of imprisonment concurrently. The applicant in his evidence to the Tribunal said that he was not trafficking in ice at the time, but was only using. I do not accept that evidence in light of what the evidence available to me establishes was found at the scene and his subsequent guilty plea.
Upon release from prison the applicant returned to NSW and was imprisoned on the basis that he had breached the good behaviour bond imposed in relation to the police pursuit.
In January 2017 he was convicted of driving while disqualified again and sentenced to 12 months in prison with a non-parole period of six months, commencing on 1 December 2016.
He was released from prison on 31 May 2017.
In 2018 the applicant suffered a workplace injury. He resumed using heroin to deal with the pain. In October 2018 he was convicted on a count of driving whilst disqualified and placed on an intensive correction order for a period of 5 months.
On 9 May 2019 the applicant pleaded guilty to using an unregistered motor vehicle and driving during a disqualification period. Intensive correction orders were made.
On 19 August 2020 the applicant was again before the courts and was convicted of possessing a prohibited drug. He was also convicted of being an owner/occupier knowingly allowing use of premises as drug premises. He was placed on a Community Correction Order.
On 26 November 2021 the applicant was sentenced in relation to the proceeds of crime charges arising from events in 2015.
The judge noted that at the time of the offending the applicant was subject to three section 9 good behaviour bonds. The commission of offences whilst the subject of conditional liberty was regarded as a significant aggravating factor by the sentencing judge. The sentencing judge was not satisfied that the applicant was remorseful for his crime. At the time of sentencing the applicant indicated that he maintained limited contact with his ex-wife; however, they were discussing the possibility of reconciling. The applicant reported feelings of guilt for his inconsistent presence in his children’s lives but indicated a desire to provide for them. The applicant admitted that most of his friends were drug users and that he lived alone in a granny flat in Bankstown. The Sentencing Assessment Report noted that the applicant’s likelihood of reoffending was medium.
The applicant was served his sentence at Parklea Correctional Facility. When his sentence was completed he was moved to Villawood Detention Centre as a consequence of his visa cancellation.
Rehabilitation
The applicant has undertaken the following courses while in prison or in detention:
(a)MERIT (Magistrates’ Early Referral into Treatment) program, completed 17 September 2021;
(b)SMART Recovery attendance 31 January and 7 February 2024;
(c)Cannabis Awareness Program (Certificate of Completion undated).
Some of the courses have some relevance to the applicant’s problems but some do not. For example, there is no evidence that the applicant has a history of abuse of cannabis, yet it was the subject of one of the courses he attended.

It was claimed on behalf of the applicant that he attended Narcotics Anonymous meetings. A statement was tendered which, on its face, claimed to be written by a Narcotics Anonymous Secretary based in California. I am not satisfied that the statement was made by a person who had seen the applicant participate in a Narcotics Anonymous meeting. The applicant was unable to make the author of the statement available for cross-examination. Further, the applicant, when asked about the Narcotics Anonymous meetings, had no discernible recollection of having attended such a meeting. When questioned about any courses undertaken while in prison or detention the applicant only had a recollection of attending online meetings which a friend had encouraged him to attend. Based on the timing of the meetings he described I am satisfied he was describing his attendance at the SMART recovery program. The Narcotics Anonymous statement itself describes the applicant as an enthusiastic participant in program meetings whose contributions were ‘uplifting and motivational creating an atmosphere of hope and progress for all members’. The applicant’s difficulty in recalling attendance was inconsistent with attendance of that description.
As a consequence of the applicant’s inability to recall attendance at Narcotics Anonymous meetings and his inability to produce a witness to adopt the statement, I had doubts that the person who purportedly made the statement exists. The applicant’s lawyer was unable to assure me that either he or anyone at his firm had met with the witness to obtain the statement. Accordingly, I am not satisfied that the applicant has commenced meeting with Narcotics Anonymous.
The applicant also attended Bankstown Hospital while he was incarcerated and accessed the opioid substitute Buprenorphine. This was effective in controlling his cravings for a period. He also undertook sessions with a psychologist every 2-3 weeks.
I am also satisfied that the applicant has plans if released into the community to attend a doctor in Western Australia who has previously treated him for his heroin addiction by the use of an implant to reduce his cravings.[3] This treatment was effective in ending his heroin use for a period of approximately 5 years.
[3] TB6, 175.
However, I do not accept the claims made initially by the applicant that he has not used drugs since entering prison in the last quarter of 2021. Whilst incarcerated he failed a drug test and also refused to take another. The applicant conceded in his evidence that when he attempted to stop the Buprenorphine, his cravings returned and he used heroin while incarcerated.
Relationship with his family
The applicant has three children KP, JP and CP.
KP was born in 1996 and is currently 28 years old. JP is 21 years old and CP is 16.
All the children have a relationship with their father, but it is difficult to gauge how close it is. I am satisfied that CP visits him regularly in detention. KP and JP have more limited contact. The applicant has not lived with his family since around 2010. When the applicant and B Pham divorced, she went to live with her parents and the applicant has not been welcome there ever since. He lived in Melbourne for at least two periods before and after he went to prison in 2017. When the applicant was released from prison in April 2017, he was not welcome at the place where the family was living.
He remains close with his wife despite the divorce, and she is keen for him to remain in Australia.
The applicant had one friend give evidence: Mr Jamie Payton.[4] The friend claimed he was fully aware of the extent of the applicant’s criminal history but that seems unlikely. He described the applicant’s criminal history as a ‘momentary lapse in judgment’. Whatever else it may be, the lapse by the applicant was not momentary. According to Mr Payton, he was aware the applicant participated in Narcotics Anonymous. As I have previously noted, when asked about Narcotics Anonymous in the witness box the applicant seemed unaware of what that even was. The notion that he would have conveyed his attendance at Narcotics Anonymous to Mr Payton is extremely improbable in the extreme. Consequently I am not willing to use Mr Payton’s evidence as the basis for any affirmative factual findings.
[4] Noting this witness signed his statement ‘Jamie Payton’, but all his primary ID documents state his name as ‘Jamie Paton’.
The other statements from persons outside the family which have been relied upon have not been verified by live witnesses. I am not prepared to make any affirmative findings of fact based on them.
I make further additional findings in the course of my discussion below.
Expert Evidence
The applicant also relied upon a statement by psychologist Sam Bornstein. He noted that the applicant had a history of substance use disorder, primarily heroin, and intermittent alcohol use disorder and gambling. He concluded that Mr Pham’s mental health issues were linked directly to his history of substance use disorder, primarily heroin dependency. The report, however, expresses no clear conclusion about Mr Pham’s prospects of remaining abstinent from drugs. The closest the report gets to a conclusion is the comment:
Success in his drug rehabilitation and preventing relapse will, I my opinion, be a true test of Mr Pham’s character.
Psychologist Tuyet-Ngan Doan also assessed the applicant in 2021 in the context of the proceeds of crime charges. He also diagnosed Alcohol Use Disorder, Opioid Use Disorder (severe), and indicated that Mr Pham likely requires long-term or repeated care to maintain change. He recommended Mr Pham engage with psychological treatment but was unable to give an assessment as to the applicant’s likely risk of re-offending.
Primary Considerations
Protection of the Australian Community
In considering the protection of the Australian community I am required to keep in mind that the Government is committed to protecting the Australian community from harm from criminal activity or other serious conduct by non-citizens. I am required to have particular regard to the principle that remaining in Australia (for a non-citizen) is a privilege which is conferred on the basis that they will be law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
I also need to have regard to:
(a)The nature and seriousness of the applicant’s conduct to date; and
(b)The risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
In considering the nature and seriousness of the conduct there are factors to which I must have regard specified in paragraphs 8.1.1(1)(a)-(h).
When these factors are applied to the applicant’s circumstances, the result is that I must approach the applicant’s case on the basis that his crimes are viewed very seriously by the Australian Government and the Australian community. His crimes include violent crimes, crime against a woman and a crime of family violence. I must also consider that in relation to several of his most serious crimes a custodial sentence was imposed, and in two cases that sentence was of 12 months or more. Further, the applicant’s offending has persisted over a long period of time and has increased in seriousness since 2002. Long periods of incarceration have resulted in a reduction in the applicant’s opportunities to offend in recent years, but criminal conduct persisted until April 2020.
I have also given attention to the cumulative effect of the applicant’s repeated offending. Between 2002 and 2020 the applicant demonstrated multiple anti-social traits. A threatening and violent demeanour towards his wife and police, a lack of self-control, a willingness to endanger others by driving while impaired, a lack of respect for authority by offending while on good behaviour bonds and facilitating others’ crimes by recklessly dealing with proceeds of crime and allowing his residence to be used for drug distribution.
The applicant has failed to answer honestly the questions asked on his incoming passenger cards and thus he has provided false and misleading information to the Department. Given that his convictions include a family violence conviction, the excuse he proffered that he did not think that his traffic offences counted when answering the question about his convictions does not fully explain his misleading answers.
It also counts against the applicant that he continued to offend after being warned about the consequences of further offending on his migration status. The applicant’s visa was cancelled on 2 February 2017 as a consequence of the term of imprisonment imposed in relation to a driving while disqualified conviction. A decision was made in May 2017 to revoke the cancellation. The letter notifying the applicant of this favourable decision was clear that his case could be reconsidered in the event that further criminal offending occurred. The applicant continued to reoffend following his release from prison with offences including driving while disqualified, possessing a prohibited drug, supplying a prohibited drug and knowingly allowing his premises to be used as drug premises.
The applicant’s offending is very serious.
The risk should the non-citizen commit further offences
In considering the need to protect the Australian community I must have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the resulting harm caused is so serious that any risk that it may be repeated may be unacceptable. The applicant’s criminality is not conduct of that kind, but the risks posed if the applicant’s conduct is repeated are very serious.
Nature of the harm
The applicant’s drug distribution and facilitation offences create a risk to Australian citizens. The capacity of drugs such as ice to ruin lives is notorious. Distribution of drugs damages not only the users of the drug but has a negative impact on their family, friends and the community more broadly.
The applicant’s history of family violence includes not just the physical assaults on his ex-wife, but also threatening behaviour that caused her to be fearful.[5] If conduct of this kind were repeated towards a domestic partner, it would involve a serious harm which the Australian Government is determined to avoid.
[5] TB11, 313.
The applicant’s driving offences are, for the most part unlikely to result in serious harm to the Australian community with one exception. The fact that the applicant failed to stop when requested by police and then sped through a built-up area while high on methamphetamine involved a very serious risk of harm in the form of a traffic accident which could have killed or maimed someone.
Likelihood of the applicant engaging in further criminal conduct
In relation to the family violence offence, I would rate the risk of the applicant re-offending as very low. He has not offended since 2001 and his ex-wife was not concerned about a risk of re-offending.
In relation to the applicant’s assault on a police officer and resisting arrest, I consider the likelihood of the applicant offending as very low. The offences are quite old and there has not been a repeat of the offending.
However, in relation to the other offences, it is difficult to be so optimistic.
The applicant identifies his drug use as the cause of much of his offending. He initially claimed that he has dealt with that issue and has not used drugs since re-entering prison in August 2021. I do not accept that claim. Indeed, even the applicant resiled from it when questioned in the Tribunal about the drug testing which had taken place while he was incarcerated. He accepted that he refused to provide a urine sample on one occasion in February of 2023, then subsequently returned a ‘dirty’ sample the following month. The NSW Corrective Services case note report at the time confirmed that the applicant admitted his refusal to provide the earlier sample was based on his knowledge that it would be dirty. I note that he told Corrective Services at the time that he had injured his foot and another inmate had given him a pain tablet, which was what generated the positive result.[6] However in oral evidence the applicant admitted to the Tribunal that he had smoked heroin, and that was what caused the positive result. Accordingly, the applicant’s drug use has continued whilst in custody. This increases the likelihood that the applicant will re-offend if released into the community.
[6] TB6, 167.
It is possible however that with proper support the applicant will be able to stop use of heroin. The applicant’s wife is optimistic that the applicant will not return to heroin use because the applicant has had good control of his cravings in the past using an opioid substitute implant. An opioid implant assisted the applicant to avoid heroin use for a significant period. Consequently, I assess the risk of the applicant committing heroin-related crime in the future as low.
However, the applicant has many anti-social acquaintances and even if his heroin use is capable of being contained, a relapse into the use of ice is quite likely. If that occurs, then other types of offending are also likely to occur such as driving while drug affected or engaging in police pursuits. These carry risks to the public. The risk of the applicant returning to involvement in drug distribution is also significant.
The applicant was assessed in 2021 by the District Court as having a medium risk of re-offending when he was sentenced in relation to the proceeds of crime charge. I agree with that assessment.
The commission of violent crimes, drug-related crimes, driving offences and proceeds of crime offences all have serious consequences either for specific individuals or the community more generally.
The evidence concerning efforts at rehabilitation indicate that that the efforts have not been comprehensive and, given that the applicant has used illegal drugs while incarcerated, they have also been ineffective. Further, the applicant will only be subject to parole conditions for two months if released into the community. I am not satisfied that this will be sufficient time to establish a durable, drug-free lifestyle for the applicant.
Accordingly, there is a substantial risk that the applicant will reoffend and the potential consequences are very serious.
The Protection of the Australian Community consideration weighs strongly against revocation of the applicant’s visa cancellation.
Family Violence
The applicant has been convicted in relation to a family violence offence. The level of physical violence was significant. It would appear that the incident of physical violence is isolated. However, the definition of family violence in the Direction includes more than physical violence. It also includes threatening behaviour that causes a family member to be fearful. I am satisfied that the applicant had been threatening towards his wife prior to him becoming physically violent in 2001,[7] consequently the incident of family violence was not isolated. However, there is no evidence that violent or threatening behaviour was repeated subsequent to that incident.
[7] TB11, 313.
In my assessment:
(a)The incident of physical violence was a one-off, but occurred in a context of threatening behaviour by the applicant;
(b)Despite the incident, the applicant’s ex-wife remains supportive of him and gave evidence that she now deals better with his moods induced by alcohol and drugs;
(c)The applicant has not committed further acts of family violence since 2001.
Consequently, even though this consideration weighs against revocation, it does not weigh as strongly against it in light of the applicant’s long period of good behaviour.
Strength Nature and Duration of Ties
The applicant has been in Australia since 1996. He has an ex-wife whom he remains close to and three children who maintain a relationship with him. He does not speak English well and has not established a consistent history of employment in Australia. It would appear that many of his ties are to friends and acquaintances who support his drug use.[8]
[8] TB7, 192; Report of Sam Borenstein (Exhibit A2), 7.
The applicant and his wife divorced in approximately 2007 and he has not lived in the same house as his children since. His ex-wife continues to provide emotional and practical support to him. The applicant’s ex-wife hopes that she will live with the applicant if he is released into the community along with the two younger children.[9] It is difficult to assess how realistic that is. The applicant’s youngest child CP currently lives with her mother’s family and it appears that in the past the applicant has not been welcome there.[10] CP does however visit him regularly in Villawood and has a strong emotional connection to her father. The applicant’s youngest son does not visit him in Villawood and the applicant’s oldest son has shown an ambivalent attitude to accommodating his father’s need for a place to live in the past.[11]
[9] TB6, 169.
[10] TB6, 125.
[11] TB6, 123.
I am however prepared to find that the applicant’s immediate family would miss having him in Australia and there may be deep emotional consequences for them in removing him.
More broadly, there is little in the way of convincing evidence of strong ties to Australia. Mr Payton, who gave evidence that he was a good friend of the applicant with a long and durable relationship, was not a convincing witness. It was clear that Mr Payton had no real appreciation of the range and seriousness of the applicant’s offending. Although he claimed he had seen the applicant just prior to him going to prison on the most recent occasion, there was little detailed evidence given about the depth and importance of the relationship and as noted previously, he quite inaccurately described his lengthy criminal history as a ‘momentary lapse’.
The other statements from friends and associates did not provide sufficient detail to provide a persuasive foundation for affirmative factual findings.
The critical facts for assessment of the strength and nature of the applicant’s ties to Australia are:
(a)the applicant came to Australia as an adult;
(b)his offending began reasonably quickly;
(c)drugs have dominated his attention for extended periods while he has lived in Australia;
(d)the applicant has had periods estranged from his family and carries guilt in relation to that;[12]
(e)the applicant has spent long periods incarcerated;
(f)he has ties in Australia which span more than 25 years, but apart from his family they could not be described as strong.
[12] TB7, 192.
In my assessment this consideration weighs in favour of revoking the cancellation, but not strongly.
Best interests of minor children
The interests of one minor child have been identified as engaged: the applicant’s daughter CP who is 16 years of age. She clearly has an emotional connection with her father demonstrated by her regular visits to him in Villawood and on display during her evidence before the Tribunal. Although the applicant has let CP down in countless ways and has been absent from her life for extended periods of time, I am satisfied that it is in CP’s best interests for her to have her father physically present in her life rather than removed to Vietnam.
Having regard to the factors identified at 8.4(4) of the Direction I note the following:
(a)The applicant is CP’s father and it is important for any child to have access to their father. However, the applicant has not always discharged parental responsibilities in relation to CP. I am satisfied that the applicant moved out of the family home when CP was very young, and she has not lived with him since. The applicant has however been involved in some aspects of parenting including taking CP to school on many occasions. The relationship has however been characterised by long periods of absence, as a consequence of the applicant living in Melbourne and being incarcerated twice since 2017. The two do however maintain phone contact and CP has visited regularly since the applicant has been in Villawood.
(b)The applicant is, upon release, likely to engage with CP as a parental figure but it is unclear how positive a parental role he will play. As noted previously I consider that there is a significant risk that the applicant will resume drug use in some form upon release into the community. If that occurs it will make it difficult for CP to resume living with him. She presently lives with her mother’s family who do not approve of the applicant.
(c)The applicant’s past drug use and absence is likely to have had an impact on CP. If the applicant resumes drug use, that is likely to further erode her faith and trust in her father. She does however seem to be willing to overlook her father’s faults and is determined to maintain a relationship with him. If the applicant resumes offending I do not think that it will have a directly negative impact on CP.
(d)Physical separation will have an impact on CP. However, the applicant has been absent from CP’s life for extended periods before. She will be able to visit the applicant in Vietnam and so physical contact will not be cut-off entirely. They will still be able to communicate by phone and over the internet;
(e)CP’s mum fulfills the main parental role and has done for most of CP’s life;
(f)CP is keen for her father to remain in Australia;
(g)There is nothing to suggest that CP has been or is at risk of being subject to violence or abuse or neglect;
(h)There is no evidence that CP has experienced trauma as a result of the applicant’s conduct.

I am satisfied that it is in CP’s best interests that the applicant remain in Australia in the sense that it will almost always be important to a child to have an opportunity to physically connect with a parent. I am not satisfied that there will be enduring psychological harm if the applicant does not remain in Australia. CP has had to deal with extended periods of separation from her father in the past and has continued to thrive despite that.
Consequently, this factor weighs only moderately in favour of revoking the cancellation.
Expectations of the Australian community
As the Direction makes clear, 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, the Australian community, as a norm, expects the Government not to allow such a non-citizen to remain in Australia. Visa cancellation may be appropriate simply because the nature of the offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. The Australian community expects that the Australian Government should cancel a person’s visa if serious character concerns are raised through:
(a)acts of family violence;
(b)commission of serious crimes of a violent or sexual nature against women; and
(c)commission of crimes against government officials in the performance of their duties.
This expectation applies regardless of whether the non-citizen poses a measurable risk of causing harm to the Australian community.
Relevant to this consideration: the applicant has engaged in family violence, he has committed a violent crime against a woman, he has committed crimes against government officials in the performance of their duties. This consideration weighs heavily against revoking the cancellation of the applicant’s visa.
Other considerations
Legal consequences of the decision
The legal consequences of the decision not to revoke are that the applicant will be held in detention until he can be removed to Vietnam. These are serious adverse consequences for the applicant. They weigh in favour of revoking the cancellation.
Impediments to maintaining basic living standards
There are few impediments to the applicant establishing himself and maintaining basic living standards in Vietnam. He is middle aged and is in good physical condition and enjoys reasonable mental health (although I note that he has been diagnosed with alcohol use disorder and other substance use disorder). He grew up in Vietnam and is fluent in the language and he understands the culture.
While the applicant has expressed doubts about his ability to adapt to a return to Vietnam, there are no substantial barriers to him integrating into Vietnamese society from a language or cultural perspective. His parents (who are elderly) and his sister live in Vietnam and he will stay with them upon his return. He has friends in Vietnam and has previously started a business there. I am satisfied that he would be able to find housing and work on his return to Vietnam.
The most significant impediment to the applicant maintaining living standards in Vietnam is the possibility that he will succumb to drug addiction. The applicant has raised concerns that drug users are forced into rehabilitation centres in Vietnam where they are mistreated. Articles have been provided to the Tribunal which support these claims.
I note that country information supplied by the Department of Foreign Affairs and Trade indicates that methamphetamine users may be required to register with the police and may be detained at government treatment centres. However, heroin addicts are diverted into methadone programs which have been scaled up in recent years.
I am satisfied that there are good prospects that the applicant will get his heroin addiction under control in Vietnam with the assistance of the methadone program. There is however a significant risk that the applicant will return to the use of methamphetamine in Vietnam and may end up in a rehabilitation centre where he will be mistreated.
Absent methamphetamine use, I am satisfied that the applicant will not face significant impediments to establishing himself and maintaining basic living standards on his return to Vietnam. If the applicant succumbs to methamphetamine use, then he is likely to face very adverse conditions in a rehabilitation centre. Consequently, this consideration weighs in favour of revoking the cancellation.
Impact on the victim
The applicant’s wife is a victim of one of his crimes. She is very close to the applicant and very keen for him to remain in Australia. She is remarkably supportive of the applicant despite his long battle with addiction that made him an abusive husband and unreliable father. I accept that she will be upset by the applicant’s removal from Australia and will lose a close companion in that process. She does not want him to be removed. This factor weighs in favour of the cancellation being revoked.
Other Matters
Unfair to cancel visa based on old offending
The applicant also claims it is unfair to cancel his visa based on an old offence which was committed prior to the his visa being cancelled on the last occasion. I do not accept this submission. The long delay in dealing with the applicant’s proceeds of crime offence is regrettable and if the applicant had not re-offended after his visa cancellation was revoked in 2017 I would have had some sympathy with the submission he now makes. However, the applicant re-offended on multiple occasions after being released into the community in 2017. When he was sentenced in relation to the 2015 offending in 2021 a visa cancellation was triggered. There is nothing unfair about considering afresh at that point whether revocation of the cancellation should occur and in that process taking into account all of the applicant’s offending.
Conclusion
When addressing the primary considerations, which are generally given greater weight, the majority favour upholding the applicant’s visa cancellation, some very strongly. The protection of the Australian community, the applicant’s family violence conviction, and the expectations of the Australian community all favour a decision adverse to the applicant.
The applicant’s ties to Australia are quite weak, and although CP’s best interests are served by the applicant remaining in Australia, there are good reasons to believe that she will cope with the applicant’s removal and can maintain a relationship with him once he has gone. Accordingly, the primary considerations strongly favour upholding the cancellation.
All of the other considerations favour revoking the cancellation. There will be an impact on the applicant’s wife and the legal consequences of the decision are, inevitably, harsh. The applicant is well supported in Vietnam if he returns, but there remains a risk he will struggle to subsist if he returns to using methamphetamine.
As is commonly the case in these matters the decision depends to a large degree on weighing the interests of the Australian community in having a person who poses a danger removed from it, against the interests of the applicant and those close to him. In the present case I am satisfied that the protection of the Australian community argues strongly in favour of the applicant’s removal. While the impact of removal on the applicant may turn out to be harsh, it is not inevitably so. Those who are close to him I am sure will be affected by his removal. However, the reality is that as a result of incarceration and voluntary absences in Melbourne, the applicant has on many occasions been a peripheral figure in his family members lives. I am confident that contact will continue through the use of technology and visits to Vietnam provide the potential for face to face contact.
In these circumstances I am not satisfied that there is another reason to revoke the cancellation of the applicant’s visa.

I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member O’Donovan.

Associate
Dated: 26 March 2024

Date of hearing:

7-8 March 2024

Date final submissions received:

11 March 2024

Solicitor for applicant:

Mr Raymond Turner

Solicitor for respondent:

Mr Cormac Burke

[2024] AATA 535

13 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Standing

Date of hearing:	7-8 March 2024
Date final submissions received:	11 March 2024
Solicitor for applicant:	Mr Raymond Turner
Solicitor for respondent:	Mr Cormac Burke