Phan and Minister for Immigration and Citizenship (Migration)

Case [2025] ARTA 1760

Phan and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1760 (8 September 2025)

Applicant:Luc Ky Phan

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:                2025/4157

Tribunal:Senior Member A. Nikolic  

Place:Melbourne

Date:8 September 2025  

Decision:The Tribunal affirms the decision under review.

...................[SGD].....................................................

Senior Member A. Nikolic

Catchwords 
MIGRATION – mandatory visa cancellation – citizen of Socialist Republic of Vietnam – Resident Return (Subclass 155) (Class BB) visa – undeclared income from work in Australia – clandestine drug manufacturing laboratory – traffick large commercial quantity of methylamphetamine and related offending – 12 year total effective sentence of imprisonment – compensation order  – substantial criminal record –  failure to pass good character test – non-revocation decision – whether another reason to revoke the mandatory cancellation – Ministerial Direction no. 110 applied – decision affirmed

Legislation
Administrative Review Tribunal Act 2024 (Cth)
Drugs Poisons and Controlled Substances Act 1981 (Vic)
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Regulations 1994 (Cth)

Cases
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
Ben Kim v The Queen [2019] VSCA 149
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
Brown v Minister for Immigration and Citizenship [2009] 112 ALD 67
Brown v Minister for Immigration and Citizenship [2010] 183 FCR 113
Brownlie v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 436
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416
CPJ16 v Minister for Home Affairs [2020] FCAFC 212
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
DOB18 v Minister for Home Affairs [2018] FCA 1523
DPP v Bui & Ors [2019] VCC 1258
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 056
GBV18 v Minister for Home Affairs (2020) 274 FCR 202
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
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Lasalo vMinister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 82,
Matthews v Minister for Home Affairs [2020] FCAFC 146
McKay v R [2000] FCA 155
Milne v Minister for Immigration and Citizenship(2010) 52 AAR 1
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 Ethnic Affairs v Guo (1997) 191 CLR 559

Minister for Immigration and Ethnic Affairs v Daniele (1981) 61…

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Details
AGLC
Phan and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1760
Case
[2025] ARTA 1760
Decision Date

CaseChat Overview and Summary

The case involves Phan, a citizen of the Socialist Republic of Vietnam, who has been sentenced to 12 years of imprisonment for drug trafficking and other related offences. Phan's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) due to his substantial criminal record, and he appealed the non-revocation decision by the Minister for Immigration and Citizenship. The primary issue for the Administrative Review Tribunal to decide was whether there were any additional reasons for revoking the visa cancellation decision, apart from Phan passing the character test, as required by s 501CA(4)(b)(ii) of the Act.

The Tribunal considered various factors, including Phan's evidence, expert evidence from a psychologist, and representations made on his behalf. The Tribunal found that some aspects of Phan's evidence were less than forthright, and there were inconsistencies between his documentary submissions and oral testimony. However, the Tribunal accepted the unchallenged evidence of Ms AA and the two friends who testified on Phan's behalf. Additionally, the Tribunal accepted the evidence of the psychologist, Mr Watson-Munro, regarding Phan's current recidivism risk and unmet treatment needs.

The Tribunal found that while Phan's criminal record and untruthfulness were significant factors, they were not the sole determinants of whether to revoke the visa cancellation decision. The Tribunal considered the primary considerations, including the protection of the Australian community from criminal or other serious conduct, and the interests of Phan's family members in Australia. Ultimately, the Tribunal was not satisfied that there were other reasons to revoke the visa cancellation decision and affirmed the non-revocation decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons the Tribunal affirms the reviewable decision. BACKGROUND FACTS The Applicant is a 38-year-old citizen of the Socialist Republic of Vietnam (‘Vietnam’)[1] and the youngest of three brothers.[2] His father moved to Australia prior to the Applicant’s birth and the Applicant was predominantly raised by his mother.[3] [1] Exhibit R1, 254.[2] Ibid 97 [83].[3] Ibid 48 [35]. The Applicant’s father commenced a new relationship in Australia and later sponsored the migration of the Applicant and his two brothers in September 2003.[4] The Applicant was almost 17 years’ old on arrival and has since undertaken seasonal farm work and other unskilled roles.[5] He has returned to Vietnam on three occasions for periods up to 10 weeks.[4] Ibid 397.[5] Ibid 97 [87]. The Applicant met his wife in 2009 while both were employed as farm workers. They married in December 2011[6] and have two children who are now 9 and 13 years of age.[7][6] Ibid 260.[7] Ibid 261, 264-265, 295-297. On 9 August 2019, the Applicant was convicted of drug offences, including trafficking in a large commercial quantity of methylamphetamine. This is also known by the street name ‘ice’.[8] He was given a total effective sentence of 12 years’ imprisonment, with a non-parole period of 8 years.[9] The Court also ordered him to pay $63,571 in compensation to the owner of a residence used as a clandestine drug manufacturing laboratory.[10][8] DPP v Bui & Ors [2019] VCC 1258.[9] Exhibit R1, 57.[10] Ibid 59. On 30 June 2020, while the Applicant was serving a sentence of full-time imprisonment, the Respondent cancelled his visa as required by s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). The Applicant was invited to make representations to have the cancellation decision revoked and did so through his current lawyers.[11] [11] Ibid 61-105. The Applicant’s wife divorced him in 2022.[12] [12] Exhibit A1, 6 [42]; Exhibit R2, 141. On 17 June 2025, a delegate of the Minister decided not to revoke the visa cancellation decision (‘non-revocation decision’).[13][13] Exhibit R1, 17–18. On 26 June 2025, the Applicant asked the Tribunal to review the non-revocation decision.[14][14] Ibid 1–16. The Tribunal is required to decide this application within 84 days of the Applicant being properly notified of the non-revocation decision.[15] This falls on 9 September 2025.[15] The Act, s 500(6L).LEGISLATIVE FRAMEWORK Section 13 of the Administrative Review Tribunal Act 2024 (Cth) (‘the ART Act’) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction in this matter. Sections 49–50 of the ART Act provide that the Tribunal has a broad discretion regarding its procedure, and it must act with as little formality and technicality as a proper consideration of the matters before it permits. Section 52 of the ART Act provides that ‘the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it considers appropriate’.

Evidence

Evidence Before The Court

The Applicant’s evidence was assisted by an interpreter in the Vietnamese language. The Tribunal discussed his privilege against self-incrimination with him and is satisfied he understood this. The Applicant’s oral testimony is now summarised:(a)The Applicant gave evidence under affirmation and adopted his statement dated 20 August 2025 as true and correct.(b)The Applicant has mostly worked in Australia as an agricultural labourer. He also worked for about two years prior to arrest in a hydroponics and agricultural fertiliser business owned by Mr Quynh Ta. Mr Ta also led the drug syndicate the Applicant became a part of. The Applicant said Ta gave him cash payments for delivering ice and estimated he received a total of about $50,000 for his involvement. When asked by Mr Poynder what he spent the money on, the Applicant said he paid for family expenses such as rent and medical bills, but also referred to lavish weekly dinners with family and friends where they ‘ate expensive things like lobster’. He recalled the restaurant bills were routinely $500 to $800.(c)The Applicant claimed to currently have no savings and to be unaware if he has a superannuation account in Australia. In response to questions about the latter, he stated: ‘I have not paid tax’ and referred to receiving cash payments for the work he undertook in Australia. He thought an exception may have been a single tax return he submitted after working for about a year in a factory. He did not receive payslips while working for Quynh Ta or pay tax or receive superannuation payments.(d)When asked about property ownership in Australia, the Applicant said he used to own a house but sold it about 10 years ago. He explained that although his name was on the title it ‘was not actually [his] house’ but owned by his father. When asked where his father lives, the Applicant said he had returned to Vietnam a few months ago. In response to further questions, the Applicant disclosed that his father was deported ‘because of criminal offences’ but claimed to be unaware what crime he committed. An online search by the Tribunal during an adjournment, the results of which were shared with the parties, disclosed that the Applicant’s father was found guilty in the District Court of South Australia on 29 March 2016 of knowingly participating in the sale of heroin.[29] Counsel for the Applicant later properly corrected documentary submissions advanced on the Applicant’s behalf about his father.[30] A correction was also made to documentary submissions that stated Quynh Ta is a relative of the Applicant’s ex-wife. This is because it emerged during oral evidence that Quynh Ta is instead a relative by marriage on his father’s side of the family. [29] R v Phan [2017] SASCFC 70, [3] (Kelly, Nicholson and Hinton JJ).[30] ASFIC, 13 [missing paragraph number after 13].(e)The Applicant disagreed with references in sentencing remarks to his involvement in the drug syndicate as akin to a ‘lieutenant style’ or ‘senior management’ role. He conceded that he knew where the syndicate kept drugs and cash but claimed not to know if anyone else shared this knowledge. Ms Lopez also asked the Applicant if claims he made in a statement to the Australian Federal Police about never importing chemicals into Australia, nor being involved in the manufacturing of illegal drugs, and never having heard of pseudoephedrine were true.[31] He responded ‘yes’ and claimed his involvement at the time in question was just driving a forklift and unloading pallets of washing powder from Vietnam at Quynh Ta’s request, without knowing what the pallets contained. He recalled one such unloading event in December 2016. Given that the Applicant’s conviction for involvement in trafficking was from July 2016, he was asked where he thought the drugs came from. He insisted that he knew nothing ‘about the importing’. When put by Ms Lopez that his claims to the AFP about the extent of his involvement were untrue, the Applicant insisted he only engaged in trafficking and pleaded guilty to the other two charges on legal advice. When asked by the Tribunal to clarify when he ‘became involved in [Quynh Ta’s] criminal activity’,[32] the Applicant said he could not recall. When pressed, he estimated that his involvement was for about six months. [31] Exhibit R2, 16 [28].[32] Exhibit A1, 3 [23].(f)The Applicant attributed his involvement in the criminal syndicate to ‘needing money’ and recalled Quynh Ta asking him ‘to do something illegal – like a transporter – delivery’. He claimed not to know who rented the residential property that was used as a drug laboratory. When referred to his statement in which it states Quynh Ta rented the property,[33] the Applicant responded: ‘I think that is the case’. When asked by Ms Lopez when the drug laboratory was set up, the Applicant responded: ‘I don’t know about that’ and claimed not to have participated in the setup. When referred to his plea of guilty for possessing chemicals and equipment from the laboratory, the Applicant again insisted his involvement was limited to ‘only buying and selling’. During re-examination by Mr Poynder, the Applicant agreed he pleaded guilty to the charges he was convicted of and accepted responsibility for these, but said he only engaged in trafficking and other guilty pleas were on legal advice.(g)The Applicant agreed that Quynh Ta received a sentence of 15 years’ imprisonment. He and a co-offender called Cong Dau received 12-year sentences of imprisonment, while two other co-offenders, Anh Nguyen and Thang Dang Bui, received sentences of eight and 10 years respectively. The Applicant said Thang Dang Bui was deported to Vietnam, but Anh Nguyen is still in Australia as an Australian citizen. (h)The Applicant agreed that the Court ordered him to pay $63,571 as compensation to the homeowner of the house used as a drug laboratory but has not made any payments. He also agreed with a custodial record dated 29 June 2025 referring to his legal fees in the current matter ‘pushing over $20,000’.[34] The Applicant’s lawyers confirmed during the hearing this has been paid and is not a debt owed. (i)The Applicant said he has not undertaken any counselling nor received psychological support while imprisoned. He claimed without corroboration to have attended ‘courses for people with drug and alcohol issues’, which taught him ‘drugs can cause bad things’ to the community. When asked if he required rehabilitation, the Applicant said he already understands the dangers of illicit drugs from courses attended. When asked about Mr Watson-Munro’s treatment recommendations, the Applicant replied: ‘if those things are beneficial, I’m willing to attend’.(j)The Applicant said his mother lives in Australia, works part time in a factory, and is independent. He worries that her health will deteriorate as she ages. His mother used to live with the Applicant’s brother, but now lives with his ex-wife and helps care for the Applicant’s children. The Applicant’s elder brother works as a truck driver, lives nearby and assists their mother when required. (k)Although his wife divorced him in 2022, the Applicant said they have a positive relationship. He speaks regularly with his mother, ex-wife and eldest child by telephone but does not speak with his youngest daughter, explaining that she does not speak Vietnamese and ‘doesn’t know much about [him]’. The Applicant said his ex-wife is unemployed and relies on Centrelink and other Government payments. He has received correspondence from the Child Support Agency notifying him of a ‘$7000’ish’ child support debt owed for the care of his children but has been unable to pay this due to imprisonment. (l)When asked why there is no statement in this proceeding from his parents, brother, ex-wife, stepmother, stepsiblings, or cousins, the Applicant said he told his lawyers about family members and ‘it’s up to them’ what they provide. (m)If released in Australia, the Applicant intends living with a friend and working for that friend’s floor sanding business. He expects to earn $30 an hour. The Applicant stated his health is ‘very good’, he is ‘fit and healthy’ and does not take medication. He referred to previously holding a forklift licence that may assist him in obtaining work. In terms of family priorities, the Applicant intends helping his eldest daughter navigate her teenage years and strengthening the bond with his youngest child. (n)The Applicant said his primary language is Vietnamese and he has returned to Vietnam on three occasions for visits of up to two-and-a-half months. The last time was in 2012 when he visited his mother who was then living there. He also visited grandparents and a school friend, but did not subsequently keep in touch with the school friend. The Applicant said his mother still owns a house in Vietnam that his father currently lives in. When asked if he could live in this house if returned the Applicant said this was ‘impossible’. He claimed not to have a close relationship with his father who left Vietnam before the Applicant was born. He recalled his father visiting the family in Vietnam when he was a child, drinking alcohol and ‘yelling out…[or]…shouting things’. His father was not violent, but the Applicant recalled staying out of his way and said he ‘didn’t have much interaction with him’. The Applicant accepted, however, that he lived with his father for about five or six years after arriving in Australia[35] and later purchased a home with his name on the title but which his father was the owner of.(o)When asked about any fears of harm if returned to Vietnam, the Applicant spoke of difficulties finding work, separation from family in Australia, and unfamiliarity with Vietnam. He claimed that because he is now 38 years’ of age and has lived in Australia since a young age, it would not be ‘easy for [him] to adapt to life in Vietnam’. [33] Ibid 4 [24].[34] Exhibit R2, 294.[35] Exhibit A1, 2 [9].Evidence of the Applicant’s ex-wife

Decision

Reasons for decision

On 17 June 2025, a delegate of the Minister decided not to revoke the visa cancellation decision (‘non-revocation decision’).[13][13] Exhibit R1, 17–18. On 26 June 2025, the Applicant asked the Tribunal to review the non-revocation decision.[14][14] Ibid 1–16. The Tribunal is required to decide this application within 84 days of the Applicant being properly notified of the non-revocation decision.[15] This falls on 9 September 2025.[15] The Act, s 500(6L).LEGISLATIVE FRAMEWORK Section 13 of the Administrative Review Tribunal Act 2024 (Cth) (‘the ART Act’) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction in this matter. Sections 49–50 of the ART Act provide that the Tribunal has a broad discretion regarding its procedure, and it must act with as little formality and technicality as a proper consideration of the matters before it permits. Section 52 of the ART Act provides that ‘the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it considers appropriate’. Under s 501(3A) of the Act, the Minister must cancel a person’s visa if satisfied that the person does not pass the character test. Under s 501(6)(a) of the Act, a person does not pass the character test if they have a ‘substantial criminal record’. This is defined in s 501(7)(c) to include if a person is sentenced to imprisonment for 12 months or more. Under s 501CA(3)(b), the Minister must invite a person whose visa is cancelled to make representations about revocation. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth). If the person makes representations in accordance with the invitation, s 501CA(4) provides that the Minister may revoke the original decision if satisfied the person either passes the character test, or there is ‘another reason why the original decision should be revoked’.ISSUE The Applicant has been sentenced to a term of imprisonment exceeding 12 months. He therefore has a substantial criminal record and does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision. The issue to be determined is whether there is ‘another reason’ for revocation.[16] The Tribunal is required to read, identify, understand, and evaluate clearly articulated representations advanced by the Applicant or those obviously arising from the evidence.[17][16] The Act, s 501CA(4)(b)(ii).[17] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (‘Plaintiff M1/2021’), [22]; [25]; [27]; [36] (Kiefel CJ, Keane, Gordon, and Steward JJ); GBV18 v Minister for Home Affairs (2020) 274 FCR 202.DIRECTION 110 Pursuant to s 499(1) of the Act the Tribunal must comply with Ministerial Direction 110, (‘the Direction’).[18] This contains ‘mandatory and aspirational considerations’ guiding the exercise of statutory power.[19] [18] The Act, s 499(2A); CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416, 417–8 [4] (Rares, O’Callaghan and Jackson JJ); Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (commenced 21 June 2024) (‘The Direction’). [19] 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].

Ratio Decidendi

Legal Principle Established

The following observations are made about the oral evidence during this hearing:(a)The Applicant had a relatively good recall of detail about his life in Vietnam and Australia. Aspects of his evidence, however, came across as less than forthright. Examples follow:(i)There were differences between documentary submissions, presumably on the Applicant’s instructions, and what emerged during cross-examination. This includes in respect of the purported financial motivation for his offending and the extent to which he benefitted from his crimes. The Applicant’s claims about financial hardship, including obligations arising from his then four-year-old daughter’s medical costs,[37] sit uneasily with his oral evidence about lavish weekly dinners for family and friends. Submissions that there is no evidence he ‘received any financial benefit…for his offending’,[38] have been overtaken by oral testimony about receiving $50,000 from participation in the drug syndicate over a six-month period.[37] Exhibit R1, 87 [28], 92 [58], 93 [62].[38] ASFIC, 11 [5](ii)The Applicant’s financial circumstances over time are somewhat opaque. He claimed during oral evidence he only has a few hundred dollars in savings and no superannuation. Other evidence, however, is that he paid about $20,000 in legal costs for this proceeding and sold a house as registered owner a decade ago that his father was the equitable owner of. Mr McKinnon’s report also includes a reference to the Applicant telling him he used some of the proceeds from his involvement in the drug syndicate to help Ms AA ‘pay off her house’.[39][39] Exhibit R1, 251.(iii)It was initially claimed in documentary submissions dated 12 August 2025 that the Applicant’s father is one of his close relatives in Australia.[40] In a statement prepared by his solicitors dated 20 August 2025 it was also stated: ‘I believe [my father] still lives in Adelaide’. It emerged during cross-examination, however, that the Applicant’s father was found guilty in the District Court of South Australia on 29 March 2016 for selling heroin and the Applicant’s oral evidence is that he was deported to Vietnam earlier this year.(iv)The Applicant’s evidence about why he could not live in a house his mother owns in Vietnam, purportedly because his father is living in it, did not ring true. It should be recalled the Applicant’s father sponsored the Applicant’s migration to Australia, they lived together for about 5-6 years, and the Applicant was registered owner of a property sold about ten years ago that his father actually owned. Moreover, it was claimed in the Applicant’s statement that Quynh Ta is a relative of the Applicant’s ex-wife.[41] It emerged during cross examination, however, that Quynh Ta is instead related to the Applicant’s father by marriage. The Tribunal is unpersuaded that the Applicant could not live in his mother’s house in Vietnam if returned, irrespective of whether his father is living there.(v)The Applicant claimed in documentary submissions to have undertaken ‘legitimate work’ for Quynh Ta as an ‘employee’,[42] which was advanced in the context of a positive contribution through employment. It emerged during cross examination, however, he received undeclared cash payments from Quynh Ta on which neither tax nor superannuation payments were made in accordance with legitimate employment.(vi)Aspects of the Applicant’s evidence about his offending were unpersuasive and came across as somewhat revisionist. The Tribunal prefers the Court’s remarks because he pleaded guilty to the offences he was convicted of. This includes that he helped set up the clandestine laboratory and ‘actively participated’ in the syndicate based on telecommunications intercepts obtained by police.(vii)The Applicant invokes the interests of family members in Australia such as his mother, brother, children, and cousins, but has not provided statements from or called them as witnesses.(b)As courts have noted, neither Tribunal members nor judges have the expertise to make assessments about whether a person will commit an offence in future.[43] The Tribunal was assisted by the expert evidence of Mr Watson-Munro, who provided a current assessment about the Applicant’s recidivism risk that was cogent and unchallenged. Mr Watson-Munro responded to questions in a clear and precise way and his evidence about the Applicant’s unmet treatment needs and current recidivism risk is accepted. The Tribunal does not accept his ‘retrospective analysis’, however, about the state of the Applicant’s mental health in 2016 and instead prefers the more contemporaneous assessment by Mr McKinnon on this issue.(c)As previously discussed, Ms AA’s evidence was based on a 20 or 30-minute conversation Mr Watson-Munro had with her and the children. That said, the Tribunal accepts the unchallenged evidence she gave.(d)The Tribunal accepts the evidence of the two friends called by the Applicant. PRIMARY CONSIDERATIONS [40] ASFIC, 13 [missing dot point between [13] and [14]].[41] Exhibit A1, 2, [16].[42] Ibid 3 [23].[43] RJE v Secretary to Department of Justice (2008) 21 VR 526 [16]-[17] (Maxwell P and Weinberg J]).Protection of the Australian community from criminal or other serious conduct