Phan and Minister for Immigration and Citizenship (Migration) - [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 FLR 354
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Muller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 924
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160
NRFX vMinister for Immigration, Citizenship and Multicultural Affairs (2023) 420 ALR 312
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 365
RJE v Secretary to Department of Justice (2008) 21 VR 526
R v Phan [2017] SASCFC 70
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) FCR 582
Sundrampillai v Minister for Immigration, Local Government and Ethnic Affairs (1992) 29 ALD 479
The Queen v Ta & Anor [2019] VCC 1257
Tran v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 114
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
YKSB v Minister for Home Affairs [2020] FCAFC 224
Secondary Materials
Brabeck, Kalina et al, 'The Psychosocial Impact of Detention and Deportation on U.S. Migrant Children and Families' (2014) 84(5) American Journal of Orthopsychiatry 496
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (together “the Refugee Convention”)
International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976) (“ICCPR”)
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (“CAT”)
Direction No. 110 – 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
Don Andrews and James Bonta, The Level of Service Inventory–Revised (Multi-Health Systems Inc. 1995)
Sentencing Advisory Council (Vic), ‘Imprisonment’ (Web Page, updated 7 May 2024) Nations Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)
INTRODUCTION

Mr Luc Ky Phan (‘the Applicant’) has asked the Tribunal to review a decision by a delegate of the Respondent not to revoke the mandatory cancellation of his Resident Return (Subclass 155) (Class BB) visa (‘visa’).
The hearing was held in the Tribunal’s Melbourne Registry on 26 and 27 August 2025. The Applicant was represented by Mr Nicholas Poynder of counsel, instructed by Ethos Migration Lawyers. The Respondent was represented by Ms Crishelle Lopez, a solicitor from HWL Ebsworth Lawyers.
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’.
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].
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’.
The following principles at cl 5.2 of the Direction provide a framework within which
decision-makers should approach their task:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the
non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the
non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision‑maker must have regard to clauses 8 and 9, where relevant to the decision.
Clause 8 of the Direction identifies the following primary considerations:
(1)Protection of the Australian community from criminal or other serious conduct;
(2)Whether the conduct engaged in constituted family violence;
(3)The strength, nature, and duration of ties to Australia;
(4)The best interests of minor children in Australia; and
(5)Expectations of the Australian community.
Clause 9(1) of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed; and
(c)Impact on Australian business interests.
Clause 7(1) provides that in applying primary and other considerations, appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that the primary consideration Protection of the Australian community is ‘generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations’. As the Federal Court of Australia has observed, however, this authorises but does not bind the Tribunal to give less weight to other considerations than to primary considerations.[20]
[20] Lasalo vMinister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 82, [22]-[23] (O’Sullivan, Dowling and Younan JJ) (Lasalo) citing Milne v Minister for Immigration and Citizenship(2010) 52 AAR 1, [45] (Gray J) and CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, [27]–[28] (Colvin, Stewart and Jackson JJ).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’.
The weight given to an applicant’s claims is a matter for decision-makers.[21]
EVIDENCE
[21] Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160, [23] (Perram, Colvin and Abraham JJ); Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) FCR 582, 587 [23] (Mortimer J, as her Honour then was).
Statements of Facts, Issues and Contentions
The Tribunal has considered the Applicant’s Statement of Facts, Issues and Contentions (‘ASFIC’) dated 12 August 2025[22] and the Respondent’s dated 20 August 2025 (‘RSFIC’).
[22] A SFIC is routinely lodged by parties during the pre-hearing phase and is comparable to a pleadings document in a court proceeding. It serves to identify and narrow the issues in dispute. It also helps ensure both sides are aware of and have an opportunity to answer each other’s case. See, for example: Stevens v Repatriation Commission [2018] FCA 1866.
Documentary evidence
Approximately 1,000 pages of documents were tendered into evidence as follows:
(a)Documents filed by the Respondent numbering 437 pages;[23]
(b)Supplementary documents filed by the Respondent numbering 430 pages;[24]
(c)Applicant’s nine-page statement dated 20 August 2025;[25]
(d)Report of consultant psychologist Mr Tim Watson-Munro dated 12 August 2025, letter of instruction dated 28 July 2025, and Mr Watson-Munro’s Curriculum Vitae;[26]
(e)Statement from Mr Hung Van Nguyen dated 11 August 2025;[27] and
(f)Statement from Mr Quoc Nguyen Tang dated 10 August 2025.[28]
[23] Exhibit R1.
[24] Exhibit R2.
[25] Exhibit A1.
[26] Exhibit A2.
[27] Exhibit A3.
[28] Exhibit A4.
Oral evidence
The Applicant, his ex-wife, and two friends were called to give oral evidence. Mr Watson-Munro was the only expert witness called.
Applicant’s evidence
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

Oral testimony from the Applicant’s ex-wife was heard under affirmation with the assistance of an interpreter in the Vietnamese language. The Tribunal will refer to her as ‘Ms AA’. A statement from Ms AA was not lodged for this proceeding. The Tribunal raised this with his solicitors in the days leading up to hearing because of the so-called ‘Two-Day Rule’ at ss 500(6H)-(6J) of the Act. This had also previously been emphasised at the initial case management hearing on 7 July 2025 and in written orders. The Tribunal was advised that the evidence relied upon from Ms AA was derived from her interview with Mr Watson-Munro on 31 July 2025 and contained in his report. A summary of Ms AA’s oral evidence follows:
(a)Ms AA confirmed Mr Watson-Munro’s summary of their conversation is accurate.
(b)Ms AA said the Applicant’s mother helps look after the children. They share food and other costs, but Ms AA pays the rent herself. She wants the Applicant to remain in Australia to help her practically and financially.
(c)Despite their divorce Ms AA supports the Applicant remaining in Australia. She used to visit him in prison prior to divorce and they speak regularly by telephone. She does not know when he will be released.
(d)Ms AA agreed the Applicant hasn’t been available as a father figure during most of the last decade but said it would be ‘devastating’ for the children if he was removed. She believes the bonding issue with their youngest child can be resolved. When asked about the reference in Mr Watson-Munro’s report to the oldest child expecting the Applicant to return to the family home when released and whether she knows about the divorce, Ms AA confirmed the children are unaware of this.
(e)Ms AA said she was seeing a psychologist prior to the death of her father and received medication but is now ‘on the way to gaining balance’. The Tribunal inferred this was a reference to recovery.
(f)Ms AA agreed she has returned to Vietnam several times, including most recently for some months prior to her father’s death. Contrary to Mr Watson-Munro’s reference to her spending seven months in Vietnam visiting her father, she said it was only three months. Her mother and siblings live in Vietnam, and she maintains contact with them. Ms AA initially said it would be ‘impossible’ for the Applicant to live with her family members if returned because of their divorce and because her father’s assets were passed on after his death to her older brother. She also stated: ‘I cannot confirm whether my family can help him or not’.
(g)Ms AA said if the Applicant is returned to Vietnam she could only provide him with emotional support because of her ‘difficult situation financially’. She does not believe he could assist her financially from Vietnam. When asked if the Applicant’s mother and brother in Australia could assist him if he was returned to Vietnam, Ms AA said she does not know because ‘that is the problem of his own family’. When asked if she knows where the Applicant’s father currently lives, Ms AA said she does not know and is ‘not involved in his family’s problems’.
Evidence of the Applicant’s friend Mr Hung Van Nguyen
Oral evidence from Mr Hung Van Nguyen was heard under affirmation and in English. This is summarised as follows:
(a)The witness adopted his brief statement dated 11 August 2025 as true and correct, which the Tribunal has considered.
(b)The witness has known the Applicant for about 20 years and also knows the Applicant’s mother, brother, ex-wife and children. The witness has offered the Applicant support in the past, including during his criminal proceeding.
(c)The witness was asked about his claim that he knows about the Applicant’s crimes and had read the sentencing remarks. He is aware the Applicant was ‘selling methamphetamine’, said some of the information received about this was from the Applicant’s brother, and ‘doesn’t know the details exactly’.
(d)The witness operates a company centred on timber floor sanding, polishing, and installation. He currently has one subcontractor working with him and believes he can employ the Applicant by taking on more jobs. He intends training the Applicant and paying him $30 per hour.
(e)The witness is willing to provide the Applicant with accommodation in the house he shares with his wife and two children until the Applicant ‘feels confident to move out’.
Evidence of Mr Quoc Nguyen Tang
Oral evidence from Mr Quoc Nguyen Tang was heard under affirmation and in English. This is summarised as follows:
(a)The witness adopted his statement dated 10 August 2025 as true and correct. He has known the Applicant since about 2007.
(b)The witness is self-employed and undertakes home renovation. After the Applicant’s divorce from Ms AA, he took the Applicant’s children to see him in prison ‘once or twice’ because ‘no one takes them’. This was about a year or two ago.
(c)The witness is willing to support the Applicant with things like accommodation, employment, attending ‘important appointments’ and reconnecting with family and positive influences. The witness said he will also offer guidance and encouragement but could not be with him ‘24/7’ because of other commitments.
(d)If the Applicant is returned to Vietnam, the witness is unable to provide regular assistance to the Applicant’s family in Australia. This is because he has three children of his own and other commitments. He may be able to assist on weekends.
Expert evidence
Mr Ian McKinnon
The Tribunal has considered a report by psychologist Mr Ian McKinnon dated 19 October 2019, commissioned by the Applicant’s lawyers in his criminal matter.[36] This is now quite dated, and aspects overtaken by events. Mr McKinnon stated that the Applicant:
(a)Enjoys good physical health, is not on medication, denies past use of illicit substances, and ‘was not suffering from symptoms that met the clinical criteria for any major diagnosable disorder’. Mr McKinnon assessed that the Applicant did not require any psychological treatment or formal counselling.
(b)Spoke Vietnamese fluently but only rudimentary English and mixed predominantly with people of Vietnamese background such that he had not ‘broadened his social experiences and knowledge much beyond the Vietnamese-Australian milieu’.
(c)Had worked in ‘lowly paid’ roles and his offending appeared to be motivated by financial pressures, limited vocational opportunities, and a sense of obligation to his ‘uncle’ under whose ‘authority and influence’ he had fallen.
(d)Claimed to have followed instructions from an ‘uncle’ who organised things and used the money to help his wife pay off her house and other bills.
(e)Did not appear to possess an inherently anti-social or criminal character and was ‘gainfully employed’ prior to his offending, albeit in low-paid work.
(f)Expressed remorse for his offending, had good prospects of rehabilitation, and his likelihood of reoffending was ‘low’.
[36] Exhibit R1, 47 [25], 246-252.
Mr Tim Watson-Munro
The Tribunal gave leave for consultant psychologist Mr Watson-Munro to appear by telephone. He was interposed at the Applicant’s request on the first hearing day, gave evidence under affirmation, and adopted his 13-page report dated 12 August 2025 as true and correct. A summary of this report follows:
(a)Mr Watson-Munro spoke with the Applicant on 7 August 2025 and also with his ex-wife and two children on 31 July 2025. He assessed the Applicant’s presentation as cooperative ‘though psychologically troubled’.
(b)The Applicant contextualised his situation when offending as ‘very depressed’ and with ‘high levels of stress’ due to financial pressures. He also felt ‘behoven to his uncle-in-law’ and ‘reported cultural nuances surrounding this dynamic’.
(c)Contrary to the assessment of Mr McKinnon in 2019, Watson-Munro considers the Applicant was ‘symptomatic’ with severe depression at the time of his offending in 2016. He is surprised by Mr McKinnon’s assessment that the Applicant had ‘nil psychological disorder’ as of 15 April 2019. Mr Watson-Munro opined:
I would respectfully suggest however that contrary to the opinion expressed in that document, that Mr Phan was suffering no psychological conditions at that time, that to the contrary, arising from a complex clinical and developmental history referable to the separation of his parents, adjustment issues arising from travelling to Australia at a critical time in his mid-adolescent development and his associated exposure to a divergent language and culture, in addition to him facing very serious charges at that time, with an appreciation of the gravity of his position, that in all likelihood, Mr Phan was suffering significant symptoms of depression and anxiety, which may not have been articulated to that practitioner. Certainly, in the present, as testing indicates, he is suffering a severe and recurring Depressive Disorder according to DSM-5-TR criteria. His symptoms were noted at a clinical level and confirmed through appropriate psychometric testing. Inevitably, his symptoms have been amplified by his concerns regarding the possibility of deportation and how this in turn will impact upon not only his position but that of his former wife, two children and his mother and other extended family members.
Arising from these dynamics, Mr Phan’s judgment was clearly impaired at the time that he became involved in the index offending. There were additional pressures referable to him working for his uncle-in-law, who is a co-accused, whom in passing I note received a substantial term of imprisonment of 14 years with a non-parole period of 8 years, and attendant to cultural nuances, a sense by him that he was behoven to his uncle. Beyond the adjustment issues that I have described, Mr Phan was also experiencing financial pressure, against a backdrop of marrying and having two young children. These dynamics also factored into his decision-making and in this regard, it is clear that his judgment was impacted, leading to reduced consequential thinking at that time.
(d)Mr Watson-Munro noted the Applicant has not received treatment in prison and instead manages depressive symptoms through exercise and work. He considers the Applicant would benefit from treatment, including to address low self-esteem, pessimism, agitation, and a sense of failure referrable to his ‘legal predicament’. Mr Watson-Munro recommends a combination of Cognitive Behaviour Therapy (CBT), supportive and motivational psychotherapy, and review by a medical practitioner to consider psychotropic medication.
(e)Mr Watson-Munro referred to the Applicant’s insight and remorse, a desire to return to work, and the support of friends, including one who can provide employment.
(f)In terms of recidivism risk, Mr Watson-Munro assessed that ‘with continuing support, supervision and treatment, Mr Phan’s risk of reoffending is now trending from Moderate to Low’.
Mr Watson-Munro’s oral evidence is summarised as follows:
(a)Mr Watson-Munro spoke to the Applicant twice before compiling his report. He estimates their discussion was ‘in the vicinity of’ 90 minutes. He also spoke with the Applicant’s ex-wife and two daughters for about 20-30 minutes.
(b)In terms of Ms AA, Ms Watson-Munro said relied entirely on her self-reported claims and has ‘no evidence about her mental state’. He understands from their discussion that her mental health has been impacted by the Applicant’s long-term ‘absence in terms of logistical support referrable to the two daughters…support ultimately concerning financial matters…[and the Applicant’s] capacity to remain in Australia’.
(c)In terms of the reference to the Applicant’s youngest daughter not speaking to her father, Mr Watson-Munro said she does not have ‘any meaningful relationship with him because of his years of confinement, her age, and so on’. He said Ms AA is supportive of both daughters having the Applicant in their lives. The older daughter described a ‘very strong bond’ with the Applicant and a ‘strong desire for him to remain in Australia’. Mr Watson-Munro believes a ‘positive, supportive and loving relationship with parents’ is an important factor in the psychological development of young children.
(d)In terms of the Applicant, Mr Watson-Munro said the current intensity of his depressive symptoms relates to uncertainty about his future.
(e)Ms Lopez asked Mr Watson-Munro about his assessment that the Applicant’s ‘judgment was clearly impaired’ at the time of his offending nine years’ earlier. Mr Watson-Munro said this was a ‘retrospective analysis’ based on the Applicant’s claims about depression and anxiety in 2016. Mr Watson-Munro said this ‘impacted his judgement without looking at the objective seriousness of what he was doing’. Mr Watson-Munro said he was not suggesting the Applicant was ‘out of touch with reality’ or unaware of his criminality.
(f)In relation to evidence about the Applicant experiencing financial pressures and falling under the influence of Quynh Ta, Ms Lopez asked Mr Watson-Munro why he would not again be ‘easily influenced’ into crimes if released. Mr Watson-Munro said the Applicant has matured in the last nine years, is now almost 40, has better insight, the support of Ms AA and one daughter, and is aware of the ‘adverse impact’ of Quyhn Ta with whom he no longer has contact.
(g)When asked about treatment recommended for the Applicant, Mr Watson-Munro said if he was the treating psychologist he would want weekly meetings that could taper according to his progress. Mr Watson-Munro considers the provision of rehabilitation directed to better dealing with financial pressures is normally ‘within the purview of the treating psychologist’ and if the Applicant needed referral to a financial counsellor, that could be facilitated.
(h)In terms of the Applicant’s recidivism risk, Mr Watson-Munro said it was ‘on a trajectory from moderate to low’. During re-examination and in response to questions from Mr Poynder about whether the risk is closer to low than moderate, Mr Watson-Munro responded inter alia: ‘No, I don’t believe it is. It’s lower than moderate and he’s making good progress in terms of his insight and so on, but I’m not saying it's low because of the factors I described’. Mr Watson-Munro stated: ‘all the indicators are that he’s trending to low’.
(i)When asked if the treatment he recommended was a precondition to achieving a low recidivism risk, Mr Watson-Munro replied: ‘not necessarily’, but said ‘it would be wise’ for the Applicant to engage with a psychologist who could provide mentoring and guidance’. Mr Watson-Munro said the support he recommended was primarily directed at the Applicant’s reintegration into the community because of his long period of imprisonment, divorce, and the ‘world had changed a lot’.
TRIBUNAL CONSIDERATION OF THE EVIDENCE
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

Clause 8.1 of the Direction states:
(1)   When considering protection of the Australian community, decision-makers should keep in mind that safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by
non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or 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.
Under cl 8.1.1(1) of the Direction, 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 and/or sexual 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 197A 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 impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)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).
(i)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Tribunal consideration: The nature and seriousness of the conduct
During sentencing on 9 August 2019, her Honour stated that drug trafficking is ‘a scourge on our community’ and referred to the following extract from a Court of Appeal decision:[44]
We wish to make it clear once more that long prison sentences await those who participate in this pernicious trade. Those lengthy sentences are the occupational risk of the drug dealer and with modern policing techniques, that risk becomes greater by the day. Should that risk become reality, the principles of general deterrence and denunciation will normally be accorded particular prominence in the sentencing mix. Those who choose to embark on the business of drug trafficking must understand that they will lose their liberty for an extended period. It is only in this way that the courts can discourage those lured by greed into an enterprise that is so harmful to our community
[44] Ben Kim v The Queen [2019] VSCA 149 [31] (Judge Dawes).
Her Honour’s sentencing remarks are summarised as follows:
(a)The Applicant and four co-offenders established a clandestine drug manufacturing laboratory in a rented suburban house as part of a joint criminal enterprise to traffick ice. The Court variously described this as ‘significant’, ‘elaborate’ and ‘sophisticated’.
(b)A victim impact statement from the owner of the house referred to ‘a great deal of stress and unhappiness’ caused to his family, which had ‘all but destroyed’ their plans to live in the house.[45] The Applicant’s evidence is he is yet to pay $63,571 in compensation ordered by the Court to this homeowner.
(c)The Applicant pleaded guilty to and was convicted of three charges as follows:
(i)Trafficking in a large commercial quantity of methylamphetamine (12.7 kilograms). This was more than 12 times a large commercial quantity of this drug[46] and resulted in a sentence of 11 years’ imprisonment.
(ii)Possession of chemicals, glassware, equipment and various chemicals, with the intention of using these to traffic in a drug of dependence. The Applicant was sentenced to 30 months’ imprisonment for this crime.
(iii)Possession of the precursor chemical pseudoephedrine. The Applicant was sentenced to 2 years’ imprisonment for this crime.
(d)The Court considered the offending ‘inherently serious’ and imposed a total effective sentence of 12 years. It was noted the Applicant’s plea of guilty came ‘very late’. The evidence discloses he consistently denied involvement between a contested committal mention in 2017 and when eventually entering pleas of guilty proximate to the scheduled commencement of his trial about 18 months’ later in 2019.
(e)The Court found the Applicant engaged in coded conversations with and received instructions from Mr Quynh Ta. Reference was made to the Applicant playing a ‘lieutenant style’ role with responsibility for ‘coordinating the day to day running’ of the syndicate’s business.[47] The Court referred to this as ‘a position of senior management’[48] that included assisting the setup of the laboratory, movement and storage of ice, an ‘intimate knowledge’ of where the drugs and cash were located and passing on operational directions to others.[49]
[45] The Direction, cl 8.1.1(1)(d).
[46] Pursuant to Schedule 11, Part 3 of the Drugs Poisons and Controlled Substances Act 1981 (Vic). A large commercial quantity of methylamphetamine is 750 grams pure or 1 kilogram mixed.
[47] Exhibit R2, 30 [25]-[26].
[48] Exhibit R1, 45 [10], 47 [23].
[49] Exhibit R2, 31 [30].
The Respondent submitted that the Applicant was central to the creation of the drug laboratory, committed serious crimes for financial gain, and the 12-year sentence imposed reflects the seriousness of his conduct.[50]
[50] RSFIC, 4 [27]-[28].
In addition to the Applicant’s criminal history, ‘other conduct’ pursuant to cl 8.1.1(1) of the Direction may also be relevant to the Tribunal’s consideration. The Tribunal is not bound by the rules of evidence[51] and although something may not have been substantiated in court, there is nothing preventing the Tribunal from considering such information.[52] It is submitted in the ASFIC that the Applicant led a blameless life prior to joining the drug syndicate, was heavily influenced by Quynh Ta, and there was no evidence of him receiving a financial benefit. As summarised earlier, these submissions are inconsistent with the Applicant’s oral evidence about receiving significant sums of money from participation in the drug syndicate, and not declaring cash earnings for what was previously claimed to be ‘legitimate’ work.[53]
[51] ART Act, s 52.
[52] Tran v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 114, [27], [32], [34], [38].
[53] Exhibit R1, 47 [24], 75, 87 [27]; Exhibit A1, 3 [23].
Tribunal findings: The nature and seriousness of the conduct
Drug supply or trafficking offences do not appear in the list of examples of ‘very serious’ or ‘serious’ at cl 8.1.1(1) of the Direction. This clause is non-exhaustive, however, and assessments about seriousness turn on the circumstances of each case.[54] The Applicant was convicted of trafficking over 12 times the amount of methylamphetamine constituting a large commercial quantity under Victorian law. He was over 30 years’ old when committing these offences and his conduct was not attributable to youth or impulsiveness. His crimes occurred over an approximately six-month period and was therefore not brief or isolated. His role involved considerable planning and coordination within a sophisticated commercial activity. If police had not intervened, there is no evidence he would have ceased involvement. Aspects of the Applicant’s current evidence about his involvement and the reasons why he may have pleaded guilty for some conduct came across as revisionist and unpersuasive. In any event, his guilty pleas constitute admission to and acceptance of all elements of these offences.[55] It is also impermissible for the Tribunal to impugn the essential basis of convictions.[56]
[54] McKay v R [2000] FCA 155 [14] (Spender J).
[55] Maxwell v R (1996) 184 CLR 501, [19].
[56] Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 358; Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 244–5; HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, [102] (Bromberg J).
Custodial sentences are a last resort and the most severe sanction available.[57] Trafficking in a large commercial quantity of a drug of dependence carries a maximum sentence of life imprisonment.[58] The 12-year sentence imposed on the Applicant as a first term of imprisonment amply reflects the objective seriousness of his crimes. To the extent that anything can be gleaned from comparative sentences about the Applicant’s role in the syndicate, Quynh Ta held the most senior position and received a total effective sentence of 15 years imprisonment.[59] The Applicant and another co-offender, Cong Dau, both received a 12-year sentence.[60] Two other co-offenders, Anh Luong Nguyen and Thang Dang Bui received total effective sentences of eight and 10 years respectively.[61]
[57] See for example: Sentencing Advisory Council (Vic), ‘Imprisonment’ (Web Page, updated 7 May 2024) <
[58] Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 71.
[59] The Queen v Ta & Anor [2019] VCC 1257, 110.
[60] Exhibit R1, 176.
[61] Ibid 52 [80]-[81], 55 [112]-[113].
The Applicant’s crimes are at odds with the principle that non-citizens should respect Australian laws and not cause harm to the community. His behaviour reflects a lack of respect for important institutions and the rights of others.[62]
[62] The Direction, cls 5.2(1), 8.1(1).
In terms of other conduct:
(a)Except perhaps for one occasion where the Applicant claimed he may have lodged a tax return after working for a year in a factory, he concedes that past work in Australia over two decades has predominantly been for undeclared cash payments and without paying taxes. This is not ‘legitimate work’ as claimed.[63]
(b)The Applicant maintained his innocence for an approximately 18-month period until proximate to his trial in February 2019,[64] despite knowing this was false. This can only have added to the costs of dealing with his conduct. He has also continued to make claims in the present hearing that sought to diminish the scope of his involvement in the syndicate and that are inconsistent with findings of the Court.
[63] Exhibit A1, 3 [23], Exhibit R1, 75, 87 [27].
[64] Exhibit R2, 13-18, 90 [262], 91-95.
Having regard for the principles at cl 5.2 of the Direction, including that safety of the Australian community is the Government’s highest priority, the totality of the Applicant’s crimes and other conduct are very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction provides:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Clause 8.1.2(2) of the Direction states that in assessing the risk the non-citizen poses to the Australian community, decision-makers must take into account, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the noncitizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
In Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595, Mortimer J, as her Honour then was, reasoned at [78] that:
…[t]he nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.
In Guo,[65] the High Court held that past actions can be legitimate predictors of future behaviour. The majority observed, however, these ‘are not a certain guide’ and, depending on circumstances, the probability of an event occurring could be so low as to be ‘safely disregarded’, or at the other extreme ‘may border on certainty’.[66] Evidence of past offending, therefore, ‘is not, of itself, significantly probative’ that a person will commit another offence and other factors may bear on this risk.[67] Maxwell P and Weinberg J have observed:[68]
Predicting whether a particular person will commit a criminal offence in the future is notoriously difficult… the prediction of future dangerousness, if it is to be attempted at all, is a matter for expert opinion. As the report in the present case illustrates, the making of such a prediction in a particular case requires expertise in observation and assessment of those who commit offences of the particular type, and a detailed knowledge of the types of factors, both personal and environmental, which increase or reduce the risk of further offending. The necessary expertise combines the ability to make a qualitative assessment of an individual and the ability to utilise the available quantitative risk assessment instruments.
One thing is clear. Judges, including experienced criminal judges, have no such expertise. Neither the conduct of criminal trials nor the sentencing of offenders requires judges to have, or equips them with, the ability to assess the likelihood that an offender will re-offend…
(Footnotes removes).
[65] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574 (‘Guo’).
[66] Ibid 574-5.
[67] Hughes v The Queen (2017) 263 CLR 338, 392 [154] (Nettle J, albeit in dissent); Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595 [78] (Mortimer J, as her Honour then was).
[68] RJE v Secretary to Department of Justice (2008) 21 VR 526 [16][-[17] (Maxwell P and Weinberg J]).
The Tribunal respectfully adopts their Honour’s reasoning as applying equally to the Tribunal in a merits review context.
The Applicant contextualises his offending as referrable to financial pressures, the influence of Quynh Ta,[69] and problems finding employment in other than low-paid work because of his limited education and poor English.
[69] Exhibit R1, 322-323, 336; Exhibit A1, 2-3 [16]-[19], [23], 4 [25], [27].
In terms of remorse, the Court was willing to ‘infer some remorse from [the Applicant’s] otherwise very late plea of guilty’.[70] The Applicant also expressed remorse during this hearing.
[70] Ibid 47 [26], 48 [31].
There is no evidence the Applicant has been other than respectful and compliant while imprisoned, with frequent references to this in custodial records. Certificates in evidence show he has completed vocational training units in prison, namely a Certificate 1 in English dated 23 May 2018, and three units in 2019 relating to traffic control on construction sites and hygienic kitchen practices.[71]
[71] Ibid 256-259.
The Applicant stated in revocation submissions his recidivism risk is ‘very low’.[72] In a report dated 19 April 2019, psychologist Mr Ian McKinnon assessed the Applicant’s likelihood of reoffending ‘in any serious manner is low’.[73] Mr McKinnon observed that the Applicant’s presentation was ‘socially naïve’, despite having lived in Australia for 16 years.[74] He said the Applicant was ‘very dependent on the assistance and opportunities offered to him by his family and the Vietnamese community’ and had ‘quite limited’ knowledge or experience of ‘many aspects of Australian society and culture’.[75] The Court accepted Mr McKinnon’s opinion about risk and considered the Applicant’s rehabilitative prospects were ‘good’.[76]
[72] Ibid 75.
[73] Ibid 246-252.
[74] Ibid 250.
[75] Ibid.
[76] Ibid 47 [26], [28].
The Applicant was assessed by staff from Corrections Victoria between 2019 and 2023 as a ‘medium’ risk of reoffending under the Level of Service Inventory - Revised (LSI-R) assessment methodology.[77] He was later assessed from May 2023 as a ‘low’ recidivism risk using the Level of Service/Risk, Need, Responsivity (LS/RNR) methodology.[78]
[77] Exhibit R2, 127, 131, 135, 326, 354, 361, 369. Don Andrews and James Bonta, The Level of Service Inventory–Revised (Multi-Health Systems Inc. 1995). This is an internationally validated actuarial tool used in custodial settings to assess an offender’s recidivism risk and identify their criminogenic needs.
[78] Exhibit R1, 373-374, 386.

Mr Watson-Munro’s recent assessment is that ‘with continuing support, supervision and treatment, Mr Phan’s risk of reoffending is now trending from Moderate to Low’. The nuance underlying this assessment was earlier summarised.
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
It is uncontroversial that methylamphetamine is a synthetic stimulant of considerable potency. It is highly addictive and linked to chronic health and safety outcomes. Trafficking a large commercial quantity of this drug can inflict widespread social and economic harm. This includes devastating consequences for addicts, their families, and broader society. Examples include overdoses, the misery of addiction, increased pressure on healthcare systems, and elevated crime rates from the nexus between addiction and other crimes. The community bears these costs, including the financial burden of policing, judicial, health and custodial responses.[79] In terms of the Applicant’s other serious conduct, the economic harm on the community caused by falsely maintaining a position of innocence, or failing to declare earnings and pay tax is self-evident.
[79] Muller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 924, [34]-[35] (Rofe J).
The extent of the Applicant’s involvement in the drug syndicate, as disclosed by telecommunications intercepts and other evidence,[80] weighs against the claim that he acted out of family obligation or capitulated to Quynh Ta’s ‘commands’.[81] There is no evidence his involvement was forced or coerced and aspects of his evidence came across as attempting to externalise responsibility. The Tribunal prefers the Court’s finding that he played a prominent role. For reasons earlier discussed, the Applicant’s claims about the legitimacy of his work in Australia, financial need as a motivating factor, and what he received from involvement in the syndicate, must now be seen through the lens of his oral evidence. That said, the Tribunal is satisfied his crimes were financially motivated, albeit not just for family needs. When considered in conjunction with his false maintenance of innocence for about 18 months, this reflects a willingness to try and mislead or deceive when he believes it is in his interests to do so. It also enlivens concerns about how he might respond to financial and other pressures if released after an extended period of imprisonment. The Applicant is likely to encounter financial pressures that includes unpaid compensation of $63,571, a child support debt, and re-establishing himself in circumstances where pre-existing factors limiting his employability remain largely unchanged.
[80] Exhibit R2, 38-82.
[81] Exhibit R1, 87 [28].
In terms of protective factors, the Applicant refers to the interests of his children, intention to return to work with a friend, and the support of Ms AA and prosocial friends. His parental obligations in the past, however, did not deter him from committing very serious crimes, including when his youngest child was a newborn. In terms of employment, the Tribunal accepts the Applicant has received an offer of employment from Mr Hung Van Nguyen and Mr Quoc Nguyen Tang also intends to assist him. That said, both men have been close friends for about 20 years, which did not prevent the Applicant joining a drug syndicate.
The Tribunal accepts Mr Watson-Munro’s evidence that the Applicant’s recidivism risk is currently trending somewhere from moderate towards low, subject to him receiving ‘continuing support, supervision, and treatment’. The Applicant is yet to undertake rehabilitative programs while imprisoned and only aspires to do so if released. Decisions should not be delayed, however, for rehabilitation to be undertaken.[82]
[82] The Direction, cl 8.1.2(2)(b)(ii).
The Applicant’s crimes and other serious conduct reflect a lack of respect for important institutions. In particular, trafficking illicit drugs in these quantities falls into a category of crimes where the harm, if repeated, is so serious that any risk of repeat is unacceptable. This primary consideration weighs very substantially against revocation.
Family violence committed by the non-citizen
There is no evidence regarding family violence within the meaning of the Direction. This primary consideration therefore carries neutral weight.
The strength, nature, and duration of ties to Australia
Clause 8.3 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 non-citizen 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
b)    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.
Tribunal consideration: Strength, nature, and duration of ties in Australia
The Applicant was approaching 17 years of age when he first arrived in Australia. Reference is made to ‘very close relatives’ in Australia, namely his parents, brother, and seven cousins between 27 and 41 years of age.[83] It is submitted his ‘extremely strong ties’ to the community are such that this primary consideration deserves ‘very significant weight’.[84] There are no statements, however, from the Applicant’s relatives or Ms AA in this proceeding, although the latter’s limited oral evidence was earlier summarised.
[83] ASFIC, 13 [.] (missed paragraph number).
[84] Ibid [14].
Psychologist Mr McKinnon has noted most of the Applicant’s time in Australia has been spent with others from a Vietnamese background and he has ‘quite limited’ knowledge or experience of ‘many aspects of Australian society and culture’. The Applicant refers to work as a ‘seasonal and casual agricultural labourer for…four years’.[85] There is scant independent corroboration for his past employment and his oral evidence is that most work undertaken was for undeclared cash payments.
[85] Exhibit A1, 1 [12]-[13].
The Applicant referred to seven cousins in revocation submissions,[86] but there are no statements from them in this proceeding. Their interests were not otherwise advanced in oral testimony or submissions.
[86] Exhibit R1, 74.
The Tribunal has considered the evidence tendered about the Applicant’s monthly donations of $40 to a charity in 2016 and 2017, which was proximate to his offending.[87]
[87] Ibid 263.
Tribunal findings: Strength, nature, and duration of ties in Australia
The Tribunal finds that:
(a)The Applicant has resided in Australia for about 22 years. Most of his stay has been spent working for undeclared income, committing serious drug offences, or imprisoned. It cannot be said on current facts, however, that his offending began soon after arrival such that less weight is given to this primary consideration.
(b)Notwithstanding their divorce the Applicant has a positive relationship with Ms AA. He also appears to have a close relationship with his eldest child who is now a teenager, but no current relationship with the youngest child. Ms AA has been primary carer for the children since the Applicant’s arrest about a decade ago. She receives Centrelink / other benefits and is supported by the Applicant’s mother. Ms AA has visited Vietnam on several occasions and there is no evidence she could not visit the Applicant if he was returned or communicate with him by telephone as she and the children have done for much of the last decade. Although Ms AA invokes the potential for the Applicant to assist her financially and practically, this is somewhat speculative in circumstances where he has a significant court-ordered debt, child support debt, is limited to low-paid work by his circumstances, and would need to cater for his own re-establishment. The Tribunal accepts, however, it is the Applicant’s intention to assist Ms AA and their children financially, practically, and emotionally if released in Australia.
(c)In the absence of direct evidence from the Applicant’s relatives in Australia, the Tribunal is unable to make a reliable finding about whether they fall within the meaning of the Direction, the extent to which they may rely or expect to rely on the Applicant’s support in future, and the strength and nature of their current relationship. The Applicant’s claims about a possible future deterioration of his mother’s health and need for his support is speculative in circumstances where he said she is employed, helps look after the children when at home, and has the Applicant’s brother and family nearby to assist if required. On balance, the Tribunal accepts that a non-revocation decision would likely have an adverse emotional impact on the Applicant’s relatives in Australia.
(d)The Tribunal accepts the two friends who tendered supportive statements are close to the Applicant and are willing to assist him after a long period of imprisonment. Any impact on them from a non-revocation decision, however, rises no higher on current evidence than sadness or disappointment.
(e)The Applicant’s evidence about positive contributions in Australia is scant. His donations in 2016 and 2017 are acknowledged, but these occurred almost a decade ago when he was concurrently committing serious drug offences. His claim about ‘legitimate’ employment as a positive contribution[88] is diminished by the absence of corroborating evidence from employers and work colleagues, and because most of his work in Australia appears to have been for undeclared cash payments. Little weight under cl 8.3(2)(a)(ii) of the Direction can be given in this case.
[88] Exhibit R1, 392 [37].
The nature of the Applicant’s connection to the Australian community after 22 years living here is quite limited. There is little evidence of his integration into community life or development of a network of prosocial ties beyond a small number of family members and friends. On the best reading of the evidence, this primary consideration weighs no more than moderately in favour of revocation.
Best interests of minor children in Australia affected by the decision
Clause 8.4 of the Direction requires decision-makers to determine whether the best interests of minor children in Australia are served by grant or refusal of the visa.[89] It is generally for an Applicant to ‘identify the personal facts and circumstances relevant to the decision’,[90] including the existence of any minor children whose best interests may be affected by the decision. This primary consideration applies only if the child is, or would be, under 18 years old at the time the application is decided. If there are two or more relevant children, the best interests of each affected by the decision should be given individual consideration, to the extent their interests differ. In considering the best interests of the child, the following factors must be considered where relevant:
a.     the nature and duration of the relationship between the child and the non‑citizen. Less weight should generally be given where the relationship is non‑parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b.     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c.     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d.     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e.     whether there are other persons who already fulfil a parental role in relation to the child;
f.   any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g.     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h.     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
[89] RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 365, [44].
[90] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2, [23] (Ismail); Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at 221 [61].
Tribunal consideration: Best interests of children
The Applicant has two children who are currently 9 and 13 years of age.[91] The youngest child told Mr Watson-Munro she does not speak to her father, while the eldest child has a ‘positive’ relationship with him and is keen for his return home after release from prison. Ms AA’s evidence is that neither child is aware she divorced the Applicant some years ago but believes his lack of a relationship with their youngest daughter results from an ‘absence of bonding’ that can be ‘positively resolved’.
[91] Ibid 264, 295.
The Tribunal has considered medical evidence relating to the eldest child being treated for a cyst, eczema, undergoing hearing screening, and receiving assistance with learning issues when she was 5-6 years of age.[92] There is also a doctor’s record stating she was diagnosed with asthma in about 2015 and required a Ventolin inhaler.[93] In submissions from the Applicant’s lawyers dated 28 July 2020, the following is stated:
[Eldest child name redacted] has physically recovered well from surgery in 2012 albeit she still is prescribed with minor medications to help treat her ongoing eczema and asthma. Her schoolwork and learning do still require extra attention which her mother does her best to cater for. [The child] has a promising future in Australia but presuming that her conditions will at least stay with her throughout the rest of her childhood, it will be imperative to have her father return to the family upon his release. Arguably [the child] faces enough of a challenging life as is without the additional removal of her father from Australia.[94]
[92] Ibid 266-270, 271-282, 283, 289-294.
[93] Ibid 287-288.
[94] Ibid 93 [63].
There is no medical evidence over the last seven years to update the status of the eldest child’s health or her progress with any past learning issues.
The following submissions are advanced in the ASFIC:
The evidence will be that, if released into the Australian community, the applicant will play a close and continuing paternal role for both girls.
[Eldest child’s name redacted] in particular requires ongoing support from both of her parents. She has been diagnosed with severe learning difficulties and the evidence will be that the applicant’s former wife has not been able to cope with her needs (along with those of [younger child’s name redacted]) by herself and has had to relinquish the children to the applicant’s mother for extended care. If released into the Australian community the applicant will be able to provide critical support to his former wife in the care of both children, as well as the necessary paternal support needed for all children.
There is no independent evidence regarding the children’s current needs. The Applicant and Ms AA state the Applicant’s mother lives in the same home as Ms AA and the children, works part time, and helps Ms AA with the children’s care as their grandmother.
Mr Poynder referred briefly in submissions to a 2014 journal article regarding the effect of absent fathers, which may:[95]
(a)affect the development of female children more than boys, ‘affecting their academic, emotional, social and psychological development as well as reducing their risks in negative adolescence and adult problems’; and
(b)‘lower their self-esteem, academic achievement; impair…emotional development, relationship formation; cause mental health problems; increase risking behaviours; and is related to teenage pregnancy, promiscuity, poverty, and rate of violence’.
[95] Kalina Brabeck et al, 'The Psychosocial Impact of Detention and Deportation on U.S. Migrant Children and Families' (2014) 84(5) American Journal of Orthopsychiatry 496‑505.
Mr Poynder contends it is ‘almost inevitable’ the Applicant’s absence will render his daughters ‘vulnerable to developing serious psychological problems in the future’. He submits ‘[t]here is no realistic way’ the Applicant’s children would be able to maintain contact with him in other ways if he was repatriated to Vietnam, and that ‘almost all practical regular contact would be lost’. This is because of only infrequent visits to Vietnam and the sub-optimal nature of communication by electronic means.
Reference is made in past documentary submissions to Australia’s signatory status under the United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (the CROC).[96] This invokes general principles of family unity, although the CROC was not further advanced during the hearing.
[96] Exhibit R1, 90-91 [45]-[49].
The Respondent accepts that this primary consideration weights in favour of revocation but does not outweigh the considerations weighing in favour of non-revocation.
Tribunal findings: Best interests of children
It is not possible on current evidence to persuasively distinguish the interests of the Applicant’s children. There are no medical records or from other authorities during the last seven years to update the 13-year-old child’s progress with medical / learning issues at the age of 5 or 6. There is also no direct evidence from the Applicant’s children, one of whom is now a teenager, about the likely effect of separation from the Applicant,[97] or from other caregivers such as the Applicant’s mother. It also remains unclear what effect news of the divorce between Ms AA and the Applicant some years ago may have on the children, including because the eldest child expects her father to return home after his sentence.
[97] The Direction, cls 8.4(4)(d)-(f).
The Applicant was arrested when his eldest child was four years’ old and the youngest was a newborn. This means he has been absent for most of their young lives. The relationship norm established since his arrest nine years ago reflects limited meaningful contact through telephone calls and intermittent visits prior to his divorce from Ms AA, and predominantly telephone contact since with the eldest child.[98] Others have performed the primary parental role.[99] It is clear the Applicant set a bad example for his children by engaging in very serious drug crimes. This has included denying his children the emotional, practical and financial benefits that a present, loving, hardworking and law-abiding father can have.[100]
[98] Ibid cl 8.4(4)(a).
[99] Ibid, cl 8.4(4)(e).
[100] Ibid cl 8.4(4)(c).

In terms of the CROC, Australian courts have held there is no requirement to ‘take into account Australia’s obligations under the Convention, or the consequences of any actual or prospective non-compliance with those obligations, when making [a] decision’.[101] It is noteworthy, however, in conformance with Article 3 of the CROC, that the best interests of children are already a primary consideration under the Direction. Article 12 is also reflected in cl 8.4(4)(f) of the Direction and the Tribunal has considered what views are available from the children in the context of Mr Watson-Munro’s and Ms AA’s evidence. In terms of Article 9 and to the best of the Tribunal’s knowledge, the children are not subject to action to remove them from the care of parents. Moreover, Australian courts have held that Article 9 does not apply in circumstances where a parent is deported and ‘does not impinge upon the right of a State to deport the parent of a child’.[102]
[101] NRFX vMinister for Immigration, Citizenship and Multicultural Affairs (2023) 420 ALR 312 [7] (Collier, Derrington and Downes JJ), referring to Plaintiff M1/2021.
[102] Sundrampillai v Minister for Immigration, Local Government and Ethnic Affairs (1992) 29 ALD 479, 485 (French J, as his Honour then was); Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 288-289 (Mason CJ and Deane J).
The 2014 journal article advanced in this case is almost 12 years’ old and inapposite to the facts in the current case. It focuses on the impact of children separated from a parent in the context of undocumented migrants in the United States of America. Mr Phan, however, was granted a Resident Return visa that was cancelled because of his crimes. Other factors raised in the article such as ‘housing instability and low performing schools’ do not resonate with the current case. Any adverse effects caused on the children by paternal absence result from the Applicant’s crimes and not as a consequence of undocumented status. The relevance of sections on ‘Violations of Rights’ and ‘The Trauma of Sudden and Imposed Family Separation’ is also unclear to the circumstances of this case.
The extent to which the Applicant can play a positive future role in the lives of his children[103] turns on factors that include whether he can remain law-abiding and restore the relationship with his youngest child. In the event of a non-revocation decision, he could continue to communicate with the children through telephone / video calls, and perhaps visits from Ms AA if she agreed to facilitate this. There is no evidence, however, that Ms AA would relocate to Vietnam to enable the children to be closer to their father, particularly given their divorce some years ago. It is uncontroversial that relationships from a distance are suboptimal when compared to close personal contact. The Applicant’s removal would also likely diminish the prospect of him developing a relationship with his youngest child. Should the children want a closer relationship with him in future, this would also be more difficult if he was removed, with likely adverse emotional impacts.
[103] Ibid cl 8.4(4)(b).
On balance, revocation is in the children’s best interests, but this primary consideration carries no more than moderate weight in favour of revocation.
Expectations of the Australian community
Clause 8.5(1) of the Direction identifies the expectations of the Australian community:
(1) 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 8.5(2) of the Direction states:
In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a.     acts of family violence; or
b.     causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c.     commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d.     commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e.     involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f.   worker exploitation.
Clause 8.5(3) of the Direction provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Clause 8.5(4) of the Direction provides that this consideration is ‘about the expectations of the Australian community as a whole’, and decision-makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in a particular case. This correlates with the reasoning in FYBR,[104] where the plurality held that this primary consideration is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government. 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’.[105] The High Court refused an application for special leave to appeal from the orders in FYBR.[106]
[104] FYBRv Minister for Home Affairs (2019) 272 FCR 454, 471–2 [66] (Charlesworth J), 476 [91] (Stewart J) (‘FYBR’).
[105] Ibid 473 [75]–[76] (Charlesworth J).
[106] FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
The High Court in Ismail[107] stated the following about this primary consideration in the context of an earlier Direction (Direction 90):
Paragraph 8.4(4) is to be understood as directing the decision‑maker not to attempt to infer what the expectations of the Australian community would be “in the particular case” (that is, with the knowledge of the delegate about the applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)‑(3) are the relevant norm described as the expectations of the Australian community. That norm, as applicable by reference to the terms of para 8(1)‑(3), is then to be weighed with other relevant matters as required by paras 6 and 7 of Direction 90. The delegate’s reasoning accords with these requirements.
[107] Ismail, [51]–[52].
Mr Poynder concedes that cl 8.5 of the Direction weighs against the Applicant but submitted that ‘other factors’ referred to in preceding paragraphs of the ASFIC are such that ‘this consideration ought not weigh heavily against [him]’. To the extent this invites the Tribunal to infer what the expectations of the community might be with knowledge of the Applicant’s personal circumstances, the Tribunal declines to do so.
The Applicant has engaged in very serious crimes and other misconduct. In doing so he has breached the community’s expectation that non-citizens in Australia will obey Australian laws, respect important institutions, and not cause harm to individuals or the community. For the reasons earlier adduced, there is an unacceptable risk he may do so again. Notwithstanding the higher tolerance that may be extended pursuant to cl 5.2(6) of the Direction, the community as a norm, would expect the Applicant should expect to forfeit the privilege of remaining in Australia.[108] His conduct raises serious character concerns within the non-exhaustive list at cl 8.5(2) of the Direction.
[108] The Direction, cl 5.2(3).
On balance, this primary consideration weighs very substantially against revocation.
OTHER CONSIDERATIONS
Impact on business interests
In terms of cl 9.3, there is no evidence of any impact on Australian business interests in the event of non-revocation, nor was this advanced. The Tribunal finds this consideration is not relevant and it is not considered further.
Legal consequences of the decision
Clause 9.1 of the Direction states:
9.1 Legal consequences of decision under section 501 or 501CA
(1) 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 in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) 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 noncitizen.
(2) 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.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
9.1.1 Non-citizens covered by a protection finding
(1) Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
(2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3) Decision-makers should also be mindful that where the refusal, cancellation or
non-revocation decision concerns 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 501CA, 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.
9.1.2 Non-citizens not covered by a protection finding
(1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement 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 non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3) Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation 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 197AB 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 noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
Tribunal consideration: Legal consequences of the decision
Section 5 of the Act defines ‘non-refoulement obligations’ non-exhaustively as including Australia’s obligations as a party to certain Conventions, Protocols and Covenants, and ‘any obligations accorded by customary international law…of a similar kind to those mentioned’ in those treaties.[109] As held in Ibrahim,[110] non-refoulement obligations are ‘not confined to the protection obligations to which s 36(2) refers’.
[109] For example, Australia is a signatory to 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 (‘CAT’), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (‘ICCPR’).
[110] Ibrahim v Minister for Home Affairs (2019) 270 FCR 12, 35 [103].
The Tribunal is obligated to give active intellectual consideration to the Applicant’s clearly articulated representations about risk of harm, regardless of characterisation.[111] This is in the context of ‘another reason’ for revocation under s 501CA(4) of the Act, where claims can be less categorical than the more comprehensive protection visa assessment process under s 36A.[112] Active intellectual consideration of claims requires the Tribunal to:
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.[113]
[111] YKSB v Minister for Home Affairs [2020] FCAFC 224, 5; Minister for Home Affairs v Omar (2019) 272 FCR 589, 602-10 [34]–[44].
[112] The Direction (n 33) cl 9.1.2(2); Plaintiff M1/2021, 605 [39]; Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, 521 [27]-[28]; Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28] (‘Ali’).
[113] Plaintiff M1/2021, 592 [9], 598 [24].
The Applicant’s non-refoulement claims have changed considerably over time:
(a)In revocation submissions from his lawyers, the following is stated in response to a question about concerns or fears arising from possible return to Vietnam:
Mr Phan does not face any dangers in his home country of Vietnam that would engage Australia's non-refoulement obligations. However, considering that Mr Phan has not spent any significant time in Vietnam since he was a teenager, and he has no close friends or noteworthy family-links, it is not unreasonable to expect that severe emotional hardship would occur should he need to re-settle in this country. All of his ties are to Australia.[114]
[114] Exhibit R1, 78.
(b)In documentary submissions dated 28 July 2020, it was also submitted that non-refoulement obligations are ‘irrelevant to his case’.[115]
[115] Ibid 84 [19].
(c)In documentary submissions dated 6 January 2021, a summary of ‘relevant considerations’ excludes non-refoulement obligations.[116]
[116] Ibid 305 [23].
(d)Documentary submissions from the Applicant’s lawyers dated 21 May 2021 stated: ‘non-refoulement obligations continue to be irrelevant to this matter and so should be given weight neither in favour or against revocation’.[117]
[117] Ibid 305 [23].
(e)In documentary submissions from the Applicant’s lawyers dated 7 April 2024, however, the following is advanced:
31. In Mr. Phan’s case, it is submitted that Australia's non-refoulement obligations weigh significantly in favour of revocation, particularly given the following:
Risk of Harm if Returned to Vietnam
32. Mr. Phan has lived in Australia since September 2003, and has no close family or support network in Vietnam. He has become deeply integrated into the Australian community, and his cultural, linguistic, and social reintegration into Vietnam after more than 20 years would be severely limited. This prolonged absence places him at heightened risk of marginalisation, discrimination, and possible mistreatment upon return.
33. Further, as a person with a criminal record returning from Australia, Mr. Phan may be perceived unfavourably by Vietnamese authorities and could be subjected to arbitrary detention or targeted surveillance. Such treatment may give rise to substantial grounds for believing that he may be exposed to torture or cruel, inhuman or degrading treatment, contrary to Australia’s obligations under CAT and ICCPR.
ii. Accordingly, it is respectfully submitted that the visa cancellation should be revoked to avoid a potential breach of Australia’s international legal obligations and to ensure a proportionate and humane outcome consistent with Ministerial Direction No. 110.[118]
(f)No evidence was advanced in support of the claim that the Applicant may come to the attention of Vietnamese authorities, or why they may be aware of his criminal record from offending that occurred almost a decade ago, or why he might be exposed to the harm referred to.
(g)It was submitted in the ASFIC that cl 9.1.2 of the Direction is the operative provision in this matter because the Applicant has not received a protection finding nor lodged a protection visa application.[119] It was also submitted without further elaboration:
If the applicant does apply for a protection visa his status in Australia will remain in doubt, and even if he succeeds in any such application he may still face removal to a third country, pursuant to the Migration Amendment Act 2024 (No. 105, 2024).
(h)When given opportunities during the hearing to elaborate on any fears about return to Vietnam, the Applicant spoke exclusively about difficulties finding work, separation from family in Australia, and unfamiliarity with Vietnam after so long in Australia, such that it would not be ‘easy for [him] to adapt to life in Vietnam’.
(i)In closing submissions Mr Poynder conceded that the Applicant’s oral evidence did not reflect any non-refoulement concerns.
[118] Ibid 391.
[119] ASFIC, 16 22].

The Respondent submitted that if the visa remains cancelled, the Applicant will be subject to a period of detention and removal from Australia. He would also not meet the criteria for a visa to enable his return to Australia under the Special Return Criteria in Sch 5 of the Migration Regulations 1994 (Cth), which is ‘the intended consequences of a visa cancellation’.[120] The Respondent further submitted that it is open for the Applicant to apply for a protection visa and the Tribunal should defer assessment of any claims in accordance with the High Court's decision in Plaintiff M1/2021.
[120] RSFIC, 9 [60].
Tribunal findings: Legal consequences of the decision
Given the evolving nature of the Applicant’s non-refoulement claims and for the avoidance of doubt, the Tribunal will proceed to consider what he has previously advanced.
The Tribunal is satisfied the country of reference is Vietnam. The Applicant has returned there on three occasions since arriving in Australia, most recently in 2012.[121]
[121] Exhibit R1, 397.
The mandatory cancellation of the Applicant’s visa resulted in him becoming an unlawful non-citizen under s 14 of the Act. If the reviewable decision is set aside, the immediate consequence is restoration of his permanent visa. In the event of non-revocation, he is liable to be detained under s 189 of the Act and then removed to Vietnam as soon as reasonably practicable. He would not be able to apply for another visa while in Australia except for a protection visa.[122] There is no evidence the Applicant’s removal to Vietnam is not reasonably practicable. The duration of any detention is not discernible on current facts, including because it is not known when he may be released from prison. If he was detained, there are permissible reasons for this to continue. Under Part 7 of the ART Act, for example, both sides have appeal rights in the Federal Court. This would impact the length of detention as would consideration of a protection visa application if the Applicant made one. Other possibilities include a non-citizen requesting the exercise of a non-compellable Ministerial discretion under s 195A of the Act,[123] or a residence determination under s 197AB, or electing voluntary return. There is no current evidence about any such possibility.
[122] The Act s 501E.
[123] 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 at 191 [16].
The Applicant’s changing non-refoulement claims detract from their persuasiveness. It is unclear why he might come to the attention of Vietnamese authorities or be subjected to the claimed harm. This appears to turn on the premise that in the event of a non-revocation decision he would not succeed on judicial appeal, or with a protection visa application, or any other potential source of relief. This would be followed by return to Vietnam where authorities would take some form of judicial or extrajudicial action against him. Even if he did succeed with a protection visa application in Australia, it was submitted he faces the prospect of removal to a third country at an indeterminate future time. These outcomes are speculative at best and not an immediate or direct consequence of the Tribunal’s decision.
In terms of reference in the Applicant’s evidence on the 1966 International Covenant on Civil and Political Rights (ICCPR), there is no persuasive evidence about how the claimed future violation of his rights or freedoms might come about, or why he might be denied recourse to available protections or remedies from judicial, administrative, legislative, or other competent authorities in Vietnam. To the extent that reference to the ICCPR may relate to consequences arising from the visa cancellation process or the prospect of future detention, the Full Court has stated the following:
…this claim fails to recognise that Australia’s ratification of the ICCPR does not make that instrument part of Australia’s domestic law or a direct source of individual rights and obligations. It is plain that the text of relevant provisions of the Act, in particular ss 189 and 196, are paramount and prevail over Australia’s international obligations in respect of the ICCPR (see, for example, Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 at 286-287 per Mason CJ and Deane J and Polites v Commonwealth [1945] HCA 3; 70 CLR 60).[124]
[124] CPJ16 v Minister for Home Affairs [2020] FCAFC 212, [69] (Jagot, Griffiths and SC Derrington JJ).
The Tribunal is not required to speculate about the irresoluble course of future events[125] and respectfully adopts the reasoning in Ali:[126]
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).
[125] BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199.
[126] Aliv Minister for Immigration and Border Protection [2018] FCA 650 [33].
In DOB18 at [35], Griffiths J reflected favourably on the reasoning in Ali, similarly cautioning against speculation about the course of future decision-making:[127]
Justice Flick’s reasoning in Ali was adopted and applied by Logan J in Greene at [19] and by Farrell J in Turay at [40] … Contrary to the applicant’s submissions, I do not consider that the reasoning in this trio of cases is plainly wrong. Indeed, I consider that it is plainly correct. 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.
[127] DOB18 v Minister for Home Affairs [2018] FCA 1523.
Irrespective of how future events evolve, a non-revocation decision for the Applicant after a 22-year residence in Australia would be a significant adverse outcome. Unless he succeeded with a different application this would likely end his aspiration for a life in Australia and desire to resume a more direct and meaningful paternal role.
The Applicant’s documentary non-refoulement claims are unpersuasive. The Tribunal concurs with Mr Poynder’s concession in closing that based on the Applicant’s oral evidence he does not advance any non-refoulement claims. If the Applicant’s perspectives about this changed, he is eligible to apply for a protection visa that would be considered by the Migration Jurisdictional Area of this Tribunal with the most recent country information.
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.
Tribunal consideration: Extent of impediments if removed
The Applicant submitted he does not have any physical or mental health issues.[128] This is corroborated by past health assessments.[129] Mr McKinnon assessed in 2019 that the Applicant did not satisfy any diagnostic criteria for a psychological disorder.
[128] Exhibit R1, 77.
[129] Ibid 248, 333; Exhibit R2, 141,144, 167, 174, 178, 193, 248, 257, 265, 274, 294, 333, 350, 353, 378, 381, 384, 390, 394; Exhibit A1, 2 [15].
The Applicant is fluent in Vietnamese and speaks some English.[130] No cultural or language-related difficulties were advanced and the Applicant’s oral and documentary submissions instead centre on finding employment, the adverse emotional impact of separation from his family in Australia, and unfamiliarity with Vietnam.[131] Mr Poynder conceded that the Applicant is not impecunious.
[130] Ibid 249.
[131] ASFIC, 17 [24]-[25].
The Respondent submitted that the Applicant may face some hardship in re-establishing himself in Vietnam but contends this would be short-term. This includes because he lived there until the age of 16, has work skills, and Vietnamese is his primary language.
Tribunal findings: Extent of impediments if removed
The Applicant is 38 years’ old, has consistently reported good physical health, and aspires to return to work in labour intensive roles when released. The Tribunal accepts Mr Watson-Munro’s assessment that the Applicant is currently suffering a depressive disorder, amplified by current visa difficulties. He does not currently require medication or management for this. There is no evidence that he could not obtain treatment in Vietnam if needed, or that he would be treated differently to any other Vietnamese citizen. There is also no evidence he could not continue to manage any mental health symptoms through work and exercise as he has done while imprisoned.
No substantial language or cultural barriers are disclosed by the evidence. The Applicant has family members in Vietnam who he has previously been in contact with. He also has maternal relatives and those of his ex-wife, from whom he or they may request support. There is no evidence, however, that such an approach would succeed.
The Applicant is very close to his mother in Australia who owns a house in Vietnam. For the reasons adduced earlier, the Tribunal does not accept he is unable to live in this house because his father currently resides in it.
The Tribunal accepts there is a likely adverse emotional impact from non-revocation arising from the Applicant’s separation from those he is closest to in Australia. The Tribunal also accepts that after a 22-year residence in Australia and more than a decade imprisoned, he is likely to experience emotional, practical and perhaps financial hardship while re-establishing himself in Vietnam. These are not insurmountable. He has worked since a young age in labour-intensive roles, has held a forklift licence, has gained some skills in a factory and as a handyman. He has also completed several vocational training units while imprisoned, all of which may assist him in finding work – either in Australia or Vietnam.
On the best reading of the Applicant’s evidence, this consideration weighs no more than moderately in favour of revocation.
Additional considerations
No other considerations are advanced by the parties, and none are discernible from the available evidence.
CONCLUSION
The Applicant does not pass the character test. In determining whether there is ‘another reason’ why the visa cancellation should be revoked, the Tribunal has applied the Direction to the circumstances of his case. The Tribunal has decided to apply the guidance to generally give greater weight to the Protection of the Australian community, over the other primary considerations, as the highest priority of the Australian Government.
The Applicant has undermined Australian laws relating to the supply of harmful drugs. He was convicted of trafficking a quantity of methylamphetamine that is over 12 times the amount constituting a large commercial quantity under Victorian law. The sentence of imprisonment he received is very substantial and reflects the objective seriousness of his conduct. Highly addictive drugs like ice in such quantities can cause devastating harm to users, their families, and through the nexus between addiction and other crimes. Having regard for the norm described as the expectations of the Australian community, he should expect to forfeit the privilege of remaining in Australia.
The key motivating factor for the Applicant’s crimes was financial gain. He has undertaken some vocational training while imprisoned but is yet to advance his unmet rehabilitative needs. In terms of risk, the Tribunal remains concerned about how he might respond to inevitable pressures after a long period of imprisonment. This includes substantial debts and family expectations, where factors previously limiting him to low-paid employment and contextualising his decision to join the drug syndicate remain largely unchanged.
The Applicant’s connection to the Australian community on current facts remains quite limited to a small group of immediate family members, Ms AA, and some prosocial Vietnamese friends. He has little broader community connection and there is scant evidence of positive contributions over more than two decades.
The Tribunal does not accept that any impediments confronting the Applicant if returned to Vietnam are insurmountable in being able to re-establish himself and maintain basic living standards in the context of what is available to other Vietnamese citizens.
Having weighed the relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the primary consideration Protection of the Australian community, which is given greater weight than the other primary considerations, coupled with Expectations of the Australian community, considerably outweigh the combined weight given to the countervailing primary and other considerations.
DECISION
It follows that the Tribunal affirms the reviewable decision.

I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic

................[sgd]........................................................
Senior Member A. Nikolic
Dated: 8 September 2025

Date of hearing: 26 and 27 August 2025

Counsel for the Applicant:

Solicitors for the Applicant:

Mr Nicholas Poynder

Ethos Migration Lawyers

Advocate for the Respondent:

Solicitors for the Respondent:

Ms Crishelle Lopez

HWL Ebsworth Lawyers