TPMP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 3087

TPMP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3087 (19 September 2022)
Division:GENERAL DIVISION
File Number: 2022/5188
Re:TPMP
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

reasons for Decision
Tribunal:Senior Member Dr M Evans-Bonner
Date:19 September 2022
Place:Perth

On 9 September 2022, I made the following decision:
The Reviewable Decision, being the decision of a delegate of the Respondent dated 16 June 2022, is set aside and substituted with a decision that the cancellation of the Applicant’s Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

These are my written reasons.
..........[Sgd].......................................................
Senior Member Dr M Evans-Bonner
Catchwords
MIGRATION – mandatory visa cancellation – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – substantial criminal record – serious drug trafficking offences – Applicant is a 42-year-old man who arrived in Australia from Vietnam when he was a 14-year-old child as the holder of a Class XB Subclass 202 Refugee (permanent) visa – Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – best interests of minor nieces and nephew – minimal information about minor children – expectations of the Australian community – Australia’s international non-refoulement obligations – whether a protection finding has been made – Applicant found by differently constituted AAT to be a refugee – links to the Australian community – strength, nature and duration of ties to Australia – prospect of indefinite or prolonged detention – Reviewable Decision set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 62(4)
Migration Act 1958 (Cth) ss 5, 5H(1), 5M, 36(1C), 36(2)(a), 36(2)(aa), 36A, 36A(1), 36A(2), 48A, 48B, 65, 195A, 197AB, 197C, 197C(3), 197C(4), 197C(5), 197C(6), 197C(7), 198, 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(1), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501(7)(d), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Cases
Kohli and Minister for Immigration and Border Protection [2017] AATA 1326
Ngo v R [2017] WASCA 3
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2227
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
SCJD and Minister for Home Affairs [2018] AATA 4020
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
Secondary Materials
Commonwealth of Australia National Drug Strategy 2017-2026 (Department of Health, 2017)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021) paras 4(1), 5.1, 5.1(3), 5.2, 5.2(4), 6, 7, 7(2), 8, 8(1), 8(2), 8(3), 8(4), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(f), 8.3(4)(g), 8.3(4)(h), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 8.4(3), 8.4(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.1(1), 9.1(2), 9.1(3), 9.1(8), 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4.1, 9.4.1(1), 9.4.1(2), 9.4.2(3)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
19 September 2022
Background

The Applicant is a 42-year-old man who was born in Vietnam.
He came to Australia in December 1994 with his mother and two sisters as the holder of a Class XB Subclass 202 Refugee (permanent) visa. His mother was the primary visa applicant.
Approximately three and a half years before coming to Australia, the Applicant and his mother and sister travelled by boat from Vietnam to Hong Kong. They lived in a refugee camp there for approximately three years. The Applicant’s experience of the refugee camp was traumatising. He witnessed violence and experienced hunger and hardship. The family travelled to the Philippines where they stayed in another refugee camp for approximately six months before travelling to Australia by plane (R1/132-133, paras [9]-[14]).
The Applicant has a lengthy criminal history and has committed offences in Victoria and Western Australia. He was convicted of his first offences of “traffick heroin”, “use heroin” and two counts of “possess heroin” on 27 June 1997 when he was 17 years of age (R2/81).
On 31 July 2008, the Applicant was convicted in the Perth District Court of six drug possession offences and two cannabis cultivation offences. He was sentenced to a total of 10 years’ imprisonment (R2/2-3).
Consequently, the visa he held at that time; a Class BB Subclass 155 Five Year Resident Return visa (Visa), was mandatorily cancelled on 19 May 2015 pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) and when he finished his prison sentence, he went into immigration detention.
The Applicant made representations that were considered by the Minister who decided to revoke the cancellation decision. The Applicant was advised of this decision in a letter dated 9 June 2017, which he signed to acknowledge receipt of. He was released from immigration detention on the same day. The letter also warned that he could be reconsidered for cancellation on character grounds in the future if he committed further criminal offences. It further stated (R1/41-43):
This case was very finely balanced but in this instance the delegate has decided to revoke the Visa cancellation. Mr TPMP needs to be absolutely aware that if he reoffends his Visa may again be cancelled and he may be removed from Australian [sic] permanently and this warning will be taken into account in any such decision. It is in Mr TPMP’s best interests not to reoffend.
Despite this warning, the Applicant committed further offences. Most were dealt with by way of fines. However, on 22 October 2020, the Applicant was sentenced to three years and six months’ imprisonment and declared a drug trafficker for “sold or supplied, or offered to sell or supply, a trafficable quantity of methylamphetamine”, committed on 20 December 2017, approximately six months after he received the warning (R2/2).
Due to this conviction, on 17 December 2020, the Applicant’s Visa was mandatorily cancelled again pursuant to s 501(3A) of the Migration Act (Cancellation Decision) (R1/200-202).
On 16 November 2021, the Applicant’s legal representatives sought that he be re-notified due to defects in the notification process recently identified by the Federal Court (R1/74-77). The Respondent agreed and properly notified the Applicant on 8 December 2021 (R1/83-90).
On 31 December 2021, the Applicant, through his legal representatives, made representations to the Minister requesting revocation of the Cancellation Decision and submitted a personal circumstances form (R1/91-110).
On 2 February 2022, the Respondent issued a natural justice letter inviting the Applicant to make further submissions about sentencing remarks of the Perth District Court on 31 July 2008, the previous warning and acknowledgment, and the Applicant not declaring his convictions on an incoming passenger card dated 13 October 2001 (R1/111-113). The Applicant’s lawyers subsequently provided further information and written statements from the Applicant and several of his family members on 2 March 2022 and 20 April 2022 (R1/114-165).
However, on 16 June 2022, a delegate of the Minister decided not to exercise discretion under s 501CA(4) of the Migration Act to revoke the Cancellation Decision (R1/10). This is the Reviewable Decision currently before me.
The Applicant’s legal representatives, who are his authorised representatives, were notified of the Reviewable Decision by email on 17 June 2022 (R1/191-199).
On 22 June 2022, the Applicant’s legal representatives lodged an application in the General Division of this Tribunal seeking a review of the Reviewable Decision (R1/1-7). Therefore, the application for review was lodged within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84-day period started running from 17 June 2022, meaning that I must hand down a decision on or before 9 September 2022.
The Applicant also has a protection (subclass 866) visa application on foot. He applied for the protection visa on 7 July 2021. On 1 November 2021, a delegate of the Minister refused to grant the Applicant a protection visa under s 65 of the Migration Act. The Applicant appealed that decision to the Migration and Refugee Division of this Tribunal. On 12 May 2022, the Tribunal, differently constituted, remitted the matter for reconsideration with the direction that the Applicant is a refugee within the meaning of s 5H(1) of the Migration Act (A1, annex 8).
At the date of the hearing, the Applicant’s protection visa application was still with the Department of Home Affairs (Department) for reconsideration.
Issues
The issues that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
The hearing and the evidence
The hearing of this application was held partly in person and partly by videoconference on 24 and 25 August 2022.
The Applicant appeared in person. He was represented by Mr G Hughan of counsel, instructed by Ms S Sam of Clothier Anderson Immigration Lawyers who appeared by videoconference. The Respondent was represented by Mr A Gerrard of The Australian Government Solicitor who appeared in person.
The Applicant gave evidence on the first day of the hearing with the assistance of a Vietnamese interpreter.
On the second day of the hearing, Mr Watson-Munro, a Consultant Psychologist, gave evidence by telephone and the Applicant’s mother, AN, gave evidence by videoconference, with the assistance of the interpreter.
My overall impression of the Applicant was that he was honest and forthright in his evidence.
I admitted the following documents into evidence at the hearing:
(a)Supporting Documents of Applicant with annexures 1-13, filed on 26 July 2022 (Exhibit A1);
(b)Further Supporting Documents of Applicant with annexures 1-2, filed on 27 July 2022 (Exhibit A2);
(c)Further Supporting Documents of Applicant with annexures 1-3, filed on 19 August 2022 (Exhibit A3);
(d)Section 501 G-Documents, indexed/labelled 1-5, comprising pages 1-203 (Exhibit R1);
(e)Respondent's Tender Bundle, indexed/labelled 1-5, comprising pages 1-148 (Exhibit R2); and
(f)Decision of the Supreme Court of Western Australia, Court of Appeal, delivered in 2009 (Exhibit R3).
The Applicant filed a Statement of Facts, Issues and Contentions (ASFIC) dated 27 July 2022, prior to the hearing. The Respondent filed a SFIC dated 9 August 2022 (RSFIC).
Legislative Framework
Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 90
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) under s 499 of the Migration Act, which commenced operation on 15 April 2021. This Direction replaced the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018).
Paragraph 5.1 of Direction No 90 sets out “[o]bjectives”, with paragraph 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 90 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction No 90, the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 90) must consider the primary considerations listed in paragraph 8 of Direction No 90, and the other considerations listed in para 9 where relevant (para 6 of Direction No 90).

Specifically, paragraph 8 of Direction No 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are 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 best interests of minor children in Australia;
(4)expectations of the Australian community.
Paragraph 9 of Direction No 90 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in

Direction No 90 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
Does the Applicant pass the character test?
The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act). The Applicant concedes that he does not pass the character test (ASFIC, para [3]).
I agree that the Applicant does not pass the character test due to the operation of s 501(6)(a) of the Migration Act. That section provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act. A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
As I noted in the “Background” section above, on 22 October 2020, the Applicant was sentenced to a term of three years and six months’ imprisonment for the offence of “sold or supplied, or offered to sell or supply, a trafficable quantity of methylamphetamine”, committed on 20 December 2017 (R2/2).
He has therefore been sentenced to a term of imprisonment of 12 months or more, and as a result, does not pass the character test by operation of s 501(7)(c) and (d) of the Migration Act. As the Applicant fails the character test, the statutory power to revoke will only be enlivened if there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
Is there another reason why the Cancellation Decision should be revoked?
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 90)
Paragraph 8.1(1) of Direction No 90 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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.
Paragraph 8.1(2) of Direction No 90 then provides:
(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.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 90)
Paragraph 8.1.1(1) of Direction No 90 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)   where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] 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 frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended 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).
Before evaluating the nature and seriousness of the Applicant’s offending (para 8.1.1(1) of Direction No 90) I will briefly outline his offending history.
The Applicant has convictions in both Victoria and Western Australia.
Offences in Victoria
As I noted in the “Background” section above, the Applicant was convicted of his first offences of “traffick heroin”, “use heroin” and two counts of “possess heroin” on 27 June 1997 in the Williamstown Magistrates Court, when he was 17 years of age. He was sentenced to four months’ imprisonment to be served by way of an intensive corrections order for the “traffick heroin” offence. He was sentenced to three months concurrent imprisonment for each charge for the two “possess heroin” offences with the sentence suspended for 24 months, and one-month concurrent imprisonment for the “use heroin” offence, which was also suspended for 24 months (R2/81).
The Applicant had a court date in the Sunshine Magistrates Court on 14 August 1997 to face charges of “traffick heroin”, “possess heroin” and “resist police or person assisting police” but failed to appear in court, resulting in a warrant being issued for his arrest (R2/80).
When the Applicant was 18 years of age, on 25 June 1998, he was convicted in the Melbourne Magistrates Court of “fail to answer bail” (from 14 August 1997), “traffick heroin” and “resist police or person assisting police” and was sentenced to two months’ detention in a youth training centre on each charge, to be undertaken concurrently (R1/28).
The Applicant appeared in the Melbourne Magistrates Court on 18 August 2000 and was convicted of “possess heroin” and “possess property being proceeds of a crime”. He was sentenced to an aggregate sentence of three months’ imprisonment on each charge to be served concurrently (R1/28). At this point in time, he was 20 years of age.
On 26 March 2002, when the Applicant was 21 years of age, he was convicted in the Sunshine Magistrates Court of:
·two charges of “traffick heroin”, two charges of “possess heroin” and “possess cannabis”;
·“refuse or fail to state name and address”; and
·“possess money – being proceeds of crime”;
and was sentenced to three months concurrent imprisonment, and a community-based order for three months with 70 hours of community work on each charge (R1/27).
Offences in Western Australia
The Applicant moved to Western Australia in approximately 2004.
On 31 July 2008, when the Applicant was 28 years of age, he was sentenced in the Perth District Court to a total term of 10 years imprisonment and was declared a drug trafficker for the following eight drug offences (R2/2-3; R1/46-47 and 58; R3, para [3]) which I will collectively refer to as the Cannabis Grow House Offences:
·“possession of a prohibited drug with intent to sell or supply (methylamphetamine)” (207.4 grams with a purity between 21% and 33%, valued by police at approximately $48,000) for which he received a four-year concurrent prison term;
·“possession of prohibited drugs with intent to sell or supply” (253 grams of BDMPEA, a substance similar to ecstasy, with a purity of 4%, valued at approximately $18,000) for which he received a three-year concurrent prison term;
·two counts of “possession of prohibited drugs with intent to sell or supply (heroin)” (113 grams with a purity of 14% and 23 g with a purity of 26%, valued by police at approximately $60,000) for which he received a two-year and six-month concurrent prison term and a four-year prison term;
·two counts of “possession of prohibited drugs with intent to sell or supply (cannabis)” (10.18 kilograms) for which he received two-year concurrent prison terms for each count; and
·two counts of “cultivate a prohibited plant with intent to sell or supply” (a total of 272 plants with a crop value of $648,000) for which he received three years cumulative imprisonment for each count.
The facts recorded by the sentencing Judge included that police executed search warrants at two residential properties in Perth. When police executed the search warrant on the first property, the Applicant’s mother was found in the hallway. After a search of the house, police found three rooms set up for the hydroponic cultivation of cannabis. Police searched the Applicant’s car which was parked at a shopping centre car park. They found $16,850 in cash and plastic sealed bags containing substances of various colours. Police also executed a search warrant at the other residential premises on the same day. Again, they found three bedrooms dedicated to the hydroponic cultivation of cannabis, and a fourth room with loose leaves drying on the floor. Although the Applicant’s mother and girlfriend were also involved in this offending, the sentencing Judge found that the Applicant was the principal offender (R1/46-47; R3, para [3]).
On 29 October 2014, the Applicant was sentenced in the Perth Magistrates Court for two offences which occurred on 11 September 1998. These were “burglary and commit offence in dwelling” and “stealing” for which the Applicant received a fine of $1000 and $200 respectively (R2/2).
On 27 September 2018, the Applicant again appeared in the Perth Magistrates Court for “dangerous driving” committed on 24 August 2018. He was fined $400 (R2/2).
The Applicant appeared in the Joondalup Magistrates Court on 30 August 2019 for a “no authority to drive (fines suspended)” offence committed on 23 July 2019. He received a fine of $200 for this offence (R2/2).
On 22 October 2020, the Applicant was sentenced in the Perth District Court to three years and six months concurrent imprisonment for the offence of “sold or supplied, or offered to sell or supply, a trafficable quantity of methylamphetamine”. I will refer to this as the 2020 Drug Trafficking Offence. He was also declared a drug trafficker. This offence was committed on 20 December 2017. On 19 December 2017, the Applicant had attended a factory unit workshop to get his car serviced and for an oil leak to be fixed by a friend, B, who he had met in prison. He returned to the workshop the following day and became involved in two drug transactions. The Applicant had not been involved in the lead up to the first drug deal, but assisted B to count cash, being the proceeds of that first drug deal. He had heard conversations between B and another man, T, and became aware that they were involved in a drug deal. The Applicant provided further assistance with the second drug deal whereby he helped another man, P, to sell drugs to T. The Applicant had also previously met P in prison. This transaction was recorded by an undercover officer. The amount of the methylamphetamine was 56 grams, which was a trafficable quantity. The Applicant did not receive any commercial gain but was given some methylamphetamine (R1/33-34).
The Applicant appeared in the Perth Magistrates Court on 16 November 2020, where he was sentenced for seven offences committed between 26 August 2019 and 31 October 2019. These were:
·“trespassing”;
·two counts of “stealing”;
·two counts of “give false personal details to police”; and
·two counts of “breach of bail (fail to appear soon after)”.
These offences were dealt with by way of fines, as well as an order being made for the return of property for one of the stealing offences.
Prison charges
The Applicant has nine prison charges for using or possessing illegal drugs, including morphine, buprenorphine, methylamphetamine and oxazepam between 2011 and 2015 (R2/107-108). The Applicant agreed that he used drugs in prison (transcript/70-71).
Alleged prison assault in 2002
The Respondent made submissions (RSFIC, paras [13]-[17]) and referred to evidence (R2/45-75) concerning an alleged prison assault whereby the Applicant and another prisoner had thrown boiling water on another prisoner and stabbed him with a sharpened butter knife. It was alleged that this incident occurred on 28 May 2002. The Applicant was charged by summons (when he was in custody) to appear in the Sale Magistrates Court on 9 July 2002 with six criminal charges arising from this alleged assault. However, when he was released, he failed to appear at a committal mention in respect of those charges, on 6 January 2003, and a warrant was issued for his arrest (R2/40, 45). Despite the time that has passed, these charges are still pending.
At the hearing, the Applicant was asked about this alleged assault. I gave the Applicant a self-incrimination warning pursuant to s 62(4) of the Administrative Appeals Tribunal Act 1975 (Cth) that he was not required to answer questions about this alleged incident. The Applicant declined to answer any questions about the alleged assault on that basis. I do not draw any inferences from this alleged conduct. It is unproven conduct, (that is, there has been no conviction) and it allegedly occurred some 20 years ago. The statements before me are untested and the makers of the statements have not been called to give evidence. The Applicant did not make any admissions about this conduct and exercised his right not to answer any questions about the conduct based on self-incrimination. He was entitled to do so. I cannot be reasonably satisfied that the alleged incident occurred, and therefore I have not taken it into consideration.
Assessing the nature and seriousness of the conduct
The Applicant has committed the Cannabis Grow House Offences and the 2020 Drug Trafficking Offence. These offences do not fall within the types of crimes or conduct described in Direction No 90 as being “very serious” (para 8.1.1(1)(a)) or “serious” (para 8.1.1(1)(b)). However, the conduct described in those sub-paras is not exhaustive, and the Tribunal has previously recognised that other types of offences can be categorised as “very serious” or “serious”.
The Tribunal has previously recognised the harmful effects of drugs on the community (see, for example, Senior Member Cameron in SCJD and Minister for Home Affairs [2018] AATA 4020 at [81]–[83]). These harms will also be discussed below with respect to para 8.1.2 of Direction No 90. The sentencing remarks for both the Cannabis Grow House Offences and the 2020 Drug Trafficking Offence refer to some of the harms and to the seriousness of the Applicant’s drug related offending.
With respect to the Cannabis Grow House Offences, the sentencing Judge referred to the project having the potential to generate hundreds of thousands of dollars income over the longer term, which His Honour referred to as “the very serious aspect of these matters”. His Honour also stated that (R1/55):
The damage done to our community by drugs such as methylamphetamine and heroin, are all too well known. … there is a growing body of evidence and academic literature which suggests a strong link between the persistent use of cannabis and the development of mental health problems, such a[s] bipolar disorders and schizophrenia.
The sentencing Judge further mentioned that the Applicant’s offending was “more serious” than that of his mother because four of the counts in the indictment involved the Applicant “being in possession of substantial quantities of very serious prohibited drugs, with intent to sell or supply” (R1/57).
With respect to the 2020 Drug Trafficking Offence, the sentencing Judge stated that the maximum statutory penalty, which was imprisonment for life, was indicative of “how seriously this type of offending is viewed by the Parliament of Western Australia which represents the views of the community as a whole”. His Honour further referred to the detrimental impact of drug related offending on the community (R1/38):
Now, it is the experience of courts that dealing in drugs or illicit drug use causes or materially contributes to a lot of the offending we see before the courts and that’s for two reasons.
Firstly because people are committing offences whilst they’re on drugs, … and the second one is that people are committing offences to fund their drug use, … and there’s obviously strong financial incentives for people to engage in drug dealing.
So what that means is a significant amount of public resources are devoted to the task of detecting and apprehending people involved in drug dealing. The court’s response is that for offences of possession of prohibited drugs with intent to sell or supply, significant weight is given to what we call general deterrence, and what that means is the courts have to impose penalties that are serious enough to deter people from committing these types of offences.
The Applicant also has a conviction for “dangerous driving” in 2018. This Tribunal has often regarded driving offences as being serious (see Senior Member Poljak in Kohli and Minister for Immigration and Border Protection [2017] AATA 1326 at [20]). This type of offence puts other innocent road users at risk and suggests a disregard for lawful authority.
The Applicant was sentenced to short terms of imprisonment for some of his earlier drug offences committed in Victoria. At this time, as I have indicated above, he was between the ages of 17 to 21 years of age. Imposing sentences of imprisonment are usually a last resort in the sentencing hierarchy (PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22]), especially for a young person, and so these short sentences do reflect that the courts thought the offences serious enough to impose detention or custodial sentences, even though they were of short duration.

The Applicant was sentenced to lengthy terms of imprisonment for the Cannabis Grow House Offences (a total of 10 years imprisonment) and the 2020 Drug Trafficking Offence (a total of three years and six months imprisonment) (para 8.1.1(1)(c) of Direction No 90). This, in my view, reflects the serious nature of this offending.
The Applicant appealed his 10-year sentence for the Cannabis Grow House Offences. However, the Court of Appeal dismissed the Applicant’s appeal (R3).
When sentencing the Applicant for the 2020 Drug Trafficking Offence, the sentencing Judge stated, “I am satisfied the seriousness of your offending is such that only imprisonment can be justified and the protection of the community requires that” (R1/39). His Honour further stated that “given the seriousness of [the] offending” that it was not appropriate to suspend the sentence (R1/40).
I do note, however, that the Applicant has received fines for many of his offences, including offences of trespassing, stealing, giving false personal details to police and breaches of bail, which suggests that these are less serious offences. I also note that he received a $400 fine for dangerous driving. However, given the potential for harm to innocent members of the community by this type of offending, I nevertheless find that this offending is of a moderate degree of seriousness.
I now turn to the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 90). The Applicant has committed approximately 37 offences between 1997 and 2020. His history starts with less serious drug offences, increases in seriousness with the Cannabis Grow House Offences, and then decreases again with the 2020 Drug Trafficking Offence, and finally less serious offences such as trespass and stealing that were dealt with by way of fines. Overall, there is a spike in seriousness with the Cannabis Grow House Offences in 2008, but no overall increase in seriousness.
I also consider that there would be a cumulative effect of repeated offending given the number of offences committed, numerous court attendances and custodial sentences of imprisonment. This would have had the effect of burdening the resources of police, the courts and corrective services which are ultimately funded by the taxpayer (para 8.1.1(1)(e) of Direction No 90).
The Applicant travelled to Vietnam in 2001 with his ex-partner and daughter. When he returned, he ticked the box marked “no” in response to the question, “do you have any criminal conviction/s” (R1/64). When asked about this at the hearing the Applicant explained that he could not remember who filled out the form, but that his English at the time was not very good. I accept the Applicant’s explanation and do not draw any adverse inference from his incorrect completion of his passenger card (para 8.1.1(1)(f) of Direction No 90).
The Applicant has reoffended after being formally warned (para 8.1.1(1)(g) of Direction No 90). As discussed above, the Applicant’s Visa was previously cancelled on 19 May 2015, but after making representations, a delegate of the Minister decided to revoke that cancellation decision. He was advised of the revocation of the cancellation in a letter dated 9 June 2017, which he signed to acknowledge receipt of. He was released from immigration detention on the same day. As I outlined in the “Background” section above, the letter also warned that he could be reconsidered for cancellation on character grounds in the future if he committed further criminal offences. Despite this warning, the Applicant committed further offences soon after being released from immigration detention, including the 2020 Drug Trafficking Offence. When asked about this at the hearing, the Applicant said that he recalled receiving the warning and did not deny responsibility for offending soon after his release from immigration detention. He said that he was “not thinking properly” and “did not weigh up the consequences of what [he] did wrong at that time” (transcript/72). Offending after receiving a warning that he understood weighs against the Applicant.
As I have explained above, the Applicant’s offences range from those of a less serious nature such as trespass, failing to give details to police and stealing, that were dealt with by way of fines, through to serious drug offences, specifically the Cannabis Grow House Offences and the 2020 Drug Trafficking Offence. This seriousness is also reflected in the sentencing comments and the penalties imposed. His offending is frequent, although there is no overall trend of increasing seriousness (but rather a spike in seriousness in 2008 with the Cannabis Grow House Offences). He continued to offend after his Visa was cancelled the first time, resulting in his being taken into immigration detention, and having that cancellation revoked with a formal warning. Thus, despite the Applicant having committed some offences that can be regarded as less serious, overall, his offending can be viewed as serious.
For these, and the other reasons that I have outlined above, I find that paragraph 8.1.1 of Direction No 90, the nature and seriousness of the conduct, weighs strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 90)
Paragraph 8.1.2(1) of Direction No 90 provides:
(1)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.
Paragraph 8.1.2(2) of Direction No 90 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, 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).
Nature of the harm (para 8.1.2(2)(a) of Direction No 90)
Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should he engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 90).
The Commonwealth of Australia National Drug Strategy 2017-2026 (Department of Health 2017), pages 4-5, lists the direct and indirect harms that drugs cause to the Australian community, families and individuals. These include injury, chronic conditions and preventable diseases, mental health problems, violence and other crime, engagement with the criminal justice system more broadly, contribution to domestic and family violence and healthcare and law enforcement costs.
The National Drug Strategy also states that “[s]ome of the harms that can arise from the use of methamphetamines and other stimulants include mental illness, cognitive impairment, cardiovascular problems and overdose” (page 30). It further states that, “[t]he negative health consequences of heroin and other opioids use include dependence, infectious disease transmission (primarily through risky injecting practice) and death from overdose” (page 33). Further, drugs such as “methylenedioxypyrovalerone (MDPV) … have been associated with fatalities” (page 34).
As I noted above, the harms of drug related offending on the community were also outlined by the sentencing Judge for the Cannabis Grow House Offences (R1/55) and by the sentencing Judge for the 2020 Drug Trafficking Offence (R1/38).
In Ngo v R [2017] WASCA 3 at [63(d)], the Western Australian Court of Appeal stated:
The illicit drug trade is a scourge. It inflicts very significant damage on the people who consume the drugs. Also, the deleterious effects of illicit drug consumption extend to the families, friends and associates of the consumers and society generally.
In Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2227 at [43], Deputy President Boyle cited relevant Federal Court authorities to observe that even when drug related offending does not cause direct harm, or has no apparent victim, “committing them creates a greater risk that much more serious conduct that does cause direct and significant harm could result”.
In summary, the prevalence of drugs causes harm to the community on many levels. These harms include the prevalence of drug related crimes, including violence and theft, and increases in property and health insurance premiums. Drug use can contribute to mental and other health issues for drug users, as well as fatalities caused by drug overdoses. It impacts negatively on drug users, their families and loved ones, and the community more broadly. Should the Applicant commit more drug offences, the harm that could result could be very serious.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 90)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (para 8.1.2(2)(b)(i) and sub-para (ii) of Direction No 90).
The Applicant has a lengthy criminal history in Victoria and Western Australia. He has continued to offend with similar offences despite receiving prison sentences, and he has reoffended shortly after release from prison. Of particular concern is that the Applicant reoffended within approximately four months of serving a ten-year sentence of imprisonment for the Cannabis Grow House Offences when he committed the 2020 Drug Trafficking Offence. My concern is exacerbated by the fact that the Applicant’s Visa was mandatorily cancelled while he was serving a term of imprisonment for the Cannabis Grow House Offences, and upon release from prison he went into immigration detention. That cancellation decision was revoked, and the Applicant was given a written warning. He understood that if he committed any further offences it could lead to his Visa being cancelled again (transcript/72). Thus, after a ten-year sentence of imprisonment, the cancellation of his Visa, approximately one month in immigration detention, and the cancellation of his Visa being revoked with a warning, after being released from immigration detention in June 2017, the Applicant reoffended with the 2020 Drug Trafficking Offence in December 2017, and subsequently committed other offences. This history suggests there is some likelihood of future reoffending.
The Applicant’s offending was primarily due to his heroin addiction. Through friends he was introduced to marijuana when he was 16 or 17 years of age and started using heroin approximately six months later. He developed a circle of friends who were heroin users. He became addicted to heroin and started to sell it to fund his addiction. He first smoked it, but later started to use intravenously. There is some conflicting evidence as to when this occurred. The Applicant’s evidence was that he started to inject heroin approximately seven or eight years after being introduced to it. Psychologist Mr Watson-Munro recorded that the Applicant started using intravenously six to seven years later (A3, annex 2, page 4-5). An earlier report of Psychologist Mr Simmons stated that the Applicant started using intravenously within two years (A2, annex 2, page 3). The Applicant developed a daily habit using one to two grams per day (transcript/51-53). The Applicant became so addicted to heroin that he managed to acquire and use it in prison during his sentence in 2000 (transcript/56). When he was asked at the hearing about the period between 2004 to 2007, the Applicant mentioned that he had a gambling addiction and that he had gambling debts (transcript/37; 62-63). There was previously no reference to his having a gambling addiction in any statements or psychological reports. It is therefore difficult to assess the impact of the Applicant’s gambling on his offending. However, based on the evidence before me, the Applicant’s long-standing drug addiction appears to be the primary factor for his offending. I also note Mr Watson-Munro’s evidence that a gambling addiction is part of the same dynamic as a drug addiction and that gambling is something that could be included in the Applicant’s treatment plan (transcript/100-101).
He met his former partner in 1997, and his daughter, S, was born in 1999. After the birth of his daughter, the Applicant stopped using heroin for a short period but continued to associate with peers who were heroin users. This led to his relationship with his former partner breaking down, despite his former partner imploring him not to use drugs (transcript/57-58). The Applicant also involved his mother who was caught with heroin she got for the Applicant (transcript/60) and involved her in the cannabis grow house operation.
The Applicant got a naltrexone implant in approximately 2018 or 2019. He said this helped him stop using heroin, but the implant wore off after approximately one year (R1/37). He was then bitten by a dog which required him to be hospitalised and he started using methylamphetamine to cope (R1/135; transcript/78). The Applicant’s evidence was that he “tried many times to free [himself] from drugs”, and that there were times that he was successful for a couple of months, but then he would associate with negative peers and relapse again (R1/133-134, para [19]). His evidence was that he was not using drugs in approximately October 2019 when he committed a stealing offence and gave false details to police. The Applicant said at the hearing that he did not have money and was hungry, so he stole food (transcript/76). The Applicant’s significant and long-standing drug history places him at some risk of reoffending.
The Applicant completed a Cognitive Skills program between June 2009 and August 2009 during his prison sentence for the Cannabis Grow House Offences (R2/123-124). He also completed the Pathways Program between September 2012 and January 2013 (R2/135-137). However, these programs did not prevent the Applicant from reoffending and further drug use after his release from prison. When the Applicant was serving his prison sentence for the 2020 Drug Trafficking Offence, he completed the Solid Steps alcohol and drug recovery program. In his statement dated 7 April 2022 (R1/135, para [27]), the Applicant stated that this course, “equipped [him] with some knowledge, skills and techniques to prevent relapse into drugs including how to mentally resist temptation and understand the long-term impact of drug use.” However, at the hearing the Applicant could not remember exactly what he was taught in the program (transcript/76). I am concerned that the Applicant has had minimal treatment for his drug addiction and that he will require intensive treatment and support in the community so as not to relapse to drug use. This view is supported by the two psychological opinions before the Tribunal.
The first psychological opinion was given by Psychologist Warren Simmons who undertook a psychological assessment of the Applicant and wrote a report dated 9 February 2022 (A2, annex 2). Mr Simmons relevantly stated that the Applicant (page 6 of report):
understands that he has a Substance Use Disorder and his use of drugs leads to his offending. He does have some grasp of what he needs to do to address his problem, although not necessarily the tools to do so.
Mr Simmons assessed the Applicant as being at medium risk of future reoffending and stated that the Applicant “would benefit from involvement in further drug and alcohol treatment programs, particularly one that is more intensive in nature” (page 6 of report). He further recommended that the Applicant required more intensive treatment in the community (page 7 of report):
… it was noted that [the Applicant] has had limited interventions in the past and therefore, his risk for future offending could be mitigated should he undergo interventions in the community, which focus on increasing self-efficacy, harm minimisation and relapse prevention strategies. Such programs can often provide a more detailed assessment over a period of time that is able to provide a more comprehensive and detailed analysis of [the Applicant’s] patterns of behaviour. Should [the Applicant] be able to successfully complete such treatment program, then this would decrease the likelihood of further substance use and hence recidivism. The addition of pharmacotherapy such as Naltrexone which [the Applicant] has received as an implant in the past would be helpful given that it gave rise to a degree of abstinence.
Mr Simmons stated that the Applicant’s likelihood of relapse will be reduced if he has the support of his mother, siblings and daughter. He also noted that the Applicant’s association with other “offending peers” was one of the factors contributing to his risk of reoffending (page 6 of report).
The second opinion was from Consultant Psychologist Tim Watson-Munro who also undertook a psychological assessment of the Applicant, and produced a report dated 18 August 2022 (A3, annex 2). Mr Watson-Munro, who gave evidence at the hearing, substantially agreed with the opinions expressed by Mr Simmons in his report. Mr Watson-Munro believed the Applicant was suffering from post-traumatic stress disorder (PTSD), which had not been treated. He believed the Applicant was “now trending from a medium risk of reoffending as described in the report of Mr Simmons to low” (page 3 of report).
Mr Watson-Munro stated that this was because the Applicant had matured. Also, as he had been free from drugs in prison and immigration detention for approximately three years. He was also motivated not to use drugs and to obtain treatment, to join the workforce in Australia and had expressed appropriate remorse for his offending behaviour and its impact on his family members. Mr Watson-Munro also opined that the Applicant would benefit from treatment in the community including cognitive behaviour therapy (CBT) and eye movement desensitization and reprocessing (EMDR) (transcript/93):
The CBT will equip him with skills to recognise triggers that can lead to relapse and addendum to that to develop relapse prevention strategies. It will also teach him to deal with anxieties with techniques such as systematic desensitisation. He would benefit from social skills training in terms of perhaps a vulnerability in the past to be caught up in adverse peer-group dynamics. In addition to that, I believe he would benefit from supportive and motivational psychotherapy; so someone to mentor him in the community. Someone who he can talk to about reassimilating into the community and so on.
EMDR is a specific treatment that is being developed to treat the symptoms of post-traumatic stress disorder, and it has been demonstrated as being highly effective in the literature compared to CBT and medication, and so on. It is a specific technique that is administered by a practitioner who is trained in the technique. I have mentioned in the report that I have referred to a number of practitioners in Melbourne if that is where he ends up subject to this appeal, and the feedback I have had from those clients has been very positive in terms of the efficacy of the treatment. What I am suggesting is a holistic approach to his treatment, involving: EMDR for the PTSD; cognitive behaviour therapy to learn skills; support in motivational psychotherapy in addition to - as he suggests he would benefit from a round of Subutex or naltrexone implant.

Mr Watson-Munro was willing to facilitate a referral to this treatment for the Applicant but had not done so to date because it would be premature if he was not released from immigration detention (transcript/97). If the Applicant is released into the community, he intends to get another naltrexone implant and is willing to engage in treatment in the community. If he does so, it will assist him to abstain from drugs and not to reoffend.
Both psychologists emphasised the importance of family support, and I note that Mr Watson-Munro interviewed the Applicant’s sister and daughter as part of his assessment. The Applicant has very strong emotional support from his mother, daughter, ex-partner, sister and brother, as well as assistance with anything else he needs such as accommodation and employment. I note that the Applicant has had a supportive family in the past, and yet he took drugs and reoffended. I do, however, think that the circumstances of the Applicant and his family have changed so that there are more protective factors in place. As Mr Watson-Munro observed, the Applicant is remorseful, he has matured, and he is facing the real prospect of deportation and permanent separation from his family. He also appreciates the detrimental effect that his drug use, offending, imprisonment, detention, and the cancellation of his Visa has had on them, particularly his daughter and mother. His sister is willing to employ the Applicant in her beauty salon and said that she will ensure he has food and accommodation (A1, annex 6, para [3]). If the Applicant has employment to make meaningful use of his time, and stable accommodation, these may be protective factors that will help him not to reoffend. His family’s support is somewhat qualified because the Applicant is on his “last chance” with his family. His mother stated that the family will not continue to support him if he uses drugs or reoffends (A1, annex 3, para [10]). This is likely to provide the Applicant with motivation not to use drugs or commit further offences.
I do note that the Applicant’s mother has not been a protective influence in the past. She has a conviction in 2002 for heroin possession. She explained the Applicant was suffering from withdrawals and threatened to kill himself, so she went with him to buy $50 worth of heroin and kept it herself so she could monitor how much he used. She was also involved in the cannabis grow house operation which resulted in her pleading guilty to simple possession of cannabis and serving a term of imprisonment (R1/48). At the hearing, her evidence initially was that she had gambling debts and the people she owed money to showed her how to care for the plants (transcript/121-122). However, she later confirmed that it was the Applicant’s drug debts that were the reason she got involved in helping with the cannabis plants (transcript/132). It is unclear whether this was an issue with translation, or if the Applicant’s mother was trying to take the blame to support the Applicant. However, as noted by the Court of Appeal, the Applicant’s mother played a lesser role and the Applicant was the “principal offender” (R3, paras [3] and [8]). She has not committed any further offences since 2007, and for the reasons outlined in the previous paragraph, I find that she will be a pro-social influence in the Applicant’s life.
During his prison term for the Cannabis Grow House Offences, the Applicant was denied release on parole by the Western Australian Prisoners’ Review Board (PRB), citing poor prison behaviour with six prison charges, including for drug use and his unmet treatment needs, despite completing the Think First and Pathways programs. However, during the Applicant’s term of imprisonment for the 2020 Drug Trafficking Offence he was granted parole at his first parole review on 2 March 2021. This appears to be primarily because he had requested voluntary removal to Vietnam. However, to the Applicant’s credit, the PRB noted his positive prison conduct and that he would not pose an unacceptable risk to the Vietnamese community if released into that community (R2/128). The change in the Applicant’s prison behaviour tends to suggest that he has matured, that he has made some treatment gains with his drug use, and that he is less likely to offend in the community. I note that if the Applicant is released into the Australian community he will be on parole until 2 December 2022. He is required to inform the PRB if he returns to (and therefore resides in) the Australian community before his sentence expiry date. The PRB will likely impose conditions relevant to his release into the Australian community or his parole may be transferred to Victoria where the Applicant will reside with his family if he is released. I am hesitant to speculate about what his parole conditions may be, but they are likely to include counselling or treatment programs for his drug addiction and random drug testing. This, together with his abstinence from drugs for the last three years, may assist him to abstain from drug use and to reintegrate into the community.
I also note that the Applicant has had difficulty disassociating himself with negative peers in the past. His association with other heroin users in the past made it difficult for him to break his drug addiction. The 2020 Drug Trafficking Offence occurred at the premises of a person the Applicant knew from prison, when the Applicant assisted with a drug deal shortly after his release from prison. The Applicant accepted at the hearing that he should not be associating with this type of person (transcript/73). He also appreciates that spending time with drug using friends contributed to his relapsing to heroin use and he intends not to associate with negative peers, however he accepts that he made mistakes and poor decisions (R1/138, para [42]).
There are some factors that may be protective and influence the Applicant not to reoffend. These include that he has matured (as shown by his improved prison behaviour during his most recent term of imprisonment), his insight into his offending and drug use, his strong family support, his motivation to change and not to associate with negative peers, a period of parole until December 2022 if he is released into the community, and stable accommodation and employment with his sister. He appreciates the negative impact his drug use, Visa cancellation and detention have had on his family. At the hearing he was distressed and remorseful for involving his mother in his offending.
As I have discussed above, there are also factors that suggest a risk of reoffending. These include:
(a)The frequency of the Applicant’s offending and the fact that he has not been deterred by terms of imprisonment or a previous visa cancellation and warning.
(b)His significant and longstanding heroin addiction for which he has not undergone intensive enough treatment, and his continued association with negative peers.
(c)Having a daughter and a supportive family was not a sufficient factor to deter him from offending in the past, and his involvement of his mother in prior offences.
Overall, I accept the psychological opinions that the Applicant is a moderate risk of offending. I accept Mr Watson-Munro’s opinion that the Applicant is trending towards being a low risk, but that is dependent on his obtaining intensive treatment in the community, which is not currently in place, as well as several other protective factors including employment and family support. Overall, I find that the risk of the Applicant reoffending is likely to be moderate.
I therefore find that paragraph 8.1.2 of Direction No 90, being the risk to the Australian community should the Applicant commit further offences, weighs moderately against the revocation of the Cancellation Decision.
Summary on para 8.1 of Direction No 90
I have found that paragraphs 8.1.1 weighed strongly and 8.1.2 weighed moderately against revocation of the Cancellation Decision. Therefore, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs moderately to strongly against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 90)
Paragraph 8.2 of Direction No 90 requires decision-makers to have regard to family violence committed by the non-citizen. The Applicant has not committed any family violence and so this primary consideration is not applicable.
The best interests of minor children in Australia affected by the decision (paras 8(3) and 8.3 of Direction No 90)
Paragraph 8(3) of Direction No 90 states that in making a decision under s 501CA(4), “the best interests of minor children in Australia” is a primary consideration.
Direction No 90 states that decision-makers must determine whether the decision under review is, or is not, in the interests of a child affected by the decision. The first three paragraphs of 8.3 provide:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of Direction No 90 sets out the factors that the decision-maker must consider:
(4) 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.
The Applicant has two nieces and a nephew who live in Victoria. There is minimal evidence regarding these children, and so the children will be considered together.
His seven-year-old niece, KN, is the child of the Applicant’s younger brother, HM. HM is divorced and lives with the Applicant’s mother. KN lives with her mother, HM’s ex-wife. In a written statement dated 5 April 2022, HM stated that, “I have a daughter, [the Applicant’s] niece, that [the Applicant] might never get to meet if he were forced to return to Vietnam, which just breaks my heart to see that she will never get to meet her uncle” (R1/161, paras [3], [4], [17]).
His nine-year-old niece, RU, and ten-year-old nephew, RY are the children of his older sister, TH, and her husband. The children’s parents are both hairdressers and own a beauty salon. In a statement dated 11 March 2022, TH stated: “My children all have a good relationship with [the Applicant]; he used to visit us at home and the salon and spend time with the children” (R1/148, para [4]).
The relationship is non-parental, and the Applicant appears to have had limited contact with the children and long periods of absence. He has been in prison or immigration detention since 30 May 2007, with a period in the community between June 2017 and 31 October 2019. TH referred in her statement to the Applicant spending time with her children when he visited their salon and home, however, they would have been very young (approximately three and four years of age at the time). Based on the statement of HM above, the Applicant does not appear to have met his seven-year-old niece, KN (para 8.3(4)(a) of Direction No 90).
The Applicant wants to be involved in the lives of his nieces and nephew and to be a good role model to them. In his personal circumstances form dated 27 December 2021, the Applicant stated that (R1/104):
I also have many nieces and nephews in Australia who I adore. I want to be a good uncle to them and buy them Christmas and birthday presents. I want to be around to let watch them grow up and support their parents to raise them into good and law-abiding citizens. I want to share my experiences with them and teach them not to walk down the same path as me.
The Applicant further stated that (R1/104):
All my nieces and nephews would miss their uncle dearly if I were not around anymore. I would not be able to play a role in their lives. They would miss out on all the valuable teaching that I can offer to them, based on my extensive life experiences.
There are some eight, nine and eleven years until the children turn 18, which is a substantial period of time. I find that the Applicant is likely to be a loving uncle who is likely to be involved in the children’s lives. He may be able to be a positive role model to the children if he does not relapse to drug use and does not reoffend (para 8.3(4)(b) of Direction No 90).
There is no evidence to suggest that the Applicant’s prior conduct has had a direct negative impact on his nieces or nephews (para 8.3(4)(c) of Direction No 90).
As I mentioned above, the Applicant does not appear to have met his seven-year-old niece, KN, and there has been a long period of separation from his other niece and nephew due to periods of imprisonment and detention. It would therefore be possible for him to maintain contact with the children in other ways, such as via telephone, the internet or videocall (para 8.3(4)(d) of Direction No 90).
There are other persons who fulfil a parenting role. The Applicant’s sister TH and her husband are the parents of nine-year-old niece, RU, and ten-year-old nephew, RY. Although the Applicant’s brother is separated from the mother of the Applicant’s seven-year-old niece, KN, she does have two parents to care for her (para 8.3(4)(e) of Direction No 90).
There are no known views of the children (para 8.3(4)(f) of Direction No 90).
There is no evidence that the children have been or are at risk of being abused or neglected by the Applicant (para 8.3(4)(g) of Direction No 90). There is no evidence that they have experienced any physical or emotional trauma from the Applicant’s conduct (para 8.3(4)(h) of Direction No 90).
After considering and weighing the factors in paragraphs 8.3(4)(a) to (h) of Direction No 90, which include that the Applicant does not appear to have an existing relationship with KN, he has had a lengthy period of absence from RU and RY, the relationships are non-parental, and that the children have parents to care for them, I find that revocation of the Cancellation Decision is in the best interests of the children, but that it only weighs slightly in favour of the revocation of the Cancellation Decision.
Expectations of the Australian community (paras 8(4) and 8.4 of Direction No 90)
A decision-maker must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.
These expectations are set out in paragraph 8.4 of Direction No 90, which provides:
(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.
(2)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.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
I must give effect to the “norm” stipulated in paragraph 8.4(1) of Direction No 90, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future. The Applicant has breached this expectation by not obeying Australian laws. He has committed numerous offences, including serious drug offences. Consequently, the expectation of the Australian community would be that the Applicant’s Visa should remain cancelled (para 8.4(1) and 8(4) of Direction No 90).
As is evident from the reference to the “norm” in paragraph 8.4(1) of Direction No 90, I am being told unequivocally what the community’s expectations are. Further, paragraph 8.4(4) of Direction No 90 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government’s views about community expectations without independently assessing them.
In this regard, I agree with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143, which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman). In Wightman, Deputy President Boyle stated, at [85]–[86]:
… Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
(Original emphasis and footnotes omitted.)

In the 12 May 2022 decision regarding the Applicant’s protection visa application, the Tribunal outlined relevant country information concerning drug users in Vietnam. The Tribunal made findings that the Applicant may face economic and psychological harms and that if he were to seek medical treatment for his drug addiction, there was a real chance that he would be incarcerated in a compulsory drug centre, and/or that he may be reported to the authorities for registration as a drug user. The Tribunal accepted that “the treatment of drug addicts in a compulsory drug centre rises to the level of serious harm” (A1, annex 8, paras [77]-[87]).
The Applicant’s health issues, particularly his untreated PTSD which is derived from his history of childhood trauma, history of adjustment disorder, and long history of drug addiction, are likely to be significant impediments to the Applicant’s ongoing mental health, his ability to find employment and accommodation (and indeed, to subsist), and to access treatment for his drug addiction if he is returned to Vietnam. Additionally, he has limited work experience and limited, if any, skills that could assist him to find employment in Vietnam. When faced with these impediments, I find that there is a high possibility that the Applicant would relapse to drug use if he returns to Vietnam.
The Applicant gave his evidence through a Vietnamese interpreter at the hearing, and accordingly, I find that there are no language difficulties. He has resided in Australia since he was a 14-year-old child, and his mother, siblings, nieces and nephew, and daughter reside in Australia. The Applicant does not have any family in Vietnam who could provide him with any support if he were returned there (transcript/43; R1/131, para [5]). There would likely be cultural barriers and significant social and emotional impediments that the Applicant would have to overcome if returned.
I find that there are likely to be substantial and insurmountable impediments, both in the short and long term, that the Applicant would face establishing himself in Vietnam, maintaining basic living standards and indeed subsisting. Given these impediments, together with the real chance of harm that the Applicant would face if returned, I find that it is appropriate to weigh this consideration in the Applicant’s favour.
However, due to the likelihood of a protection finding being made in the Applicant’s favour, it is unlikely that the Applicant will be removed to Vietnam pursuant to s 198 of the Migration Act whilst non-refoulement obligations are owed to him (s 197C(3) of the Migration Act). As I discuss below, however, the most likely consequence of a decision to affirm the Reviewable Decision is indefinite or prolonged detention. There is always the possibility that when the Minister goes through the decision making process in s 36A(1) of the Migration Act that the Applicant may not be found to be owed non-refoulement obligations, for example, if he is found not to be a refugee. Although I think this is unlikely given the direction made by the previous Tribunal, it is still a possibility which may result in the Applicant being returned to Vietnam. Additionally, the Applicant has requested voluntary removal in the past. There is a possibility that such a request could be made again, given that he faces the prospect of indefinite or prolonged immigration detention. Consequently, I find that some weight should be given to this consideration that is more than minimal.
Consequently, I find that this consideration weighs moderately in favour of revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 90)
Paragraph 9.3(1) of Direction No 90 provides that:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations). As the Applicant’s offending is primarily drug related, as well as his having committed other offences such as stealing and burglary offences, there are no apparent victims whose interests require separate consideration. I therefore find this other consideration not to be applicable.
Links to the Australian community (paras 9(1)(d) and 9.4 of Direction No 90)
Paragraph 9.4 of Direction No 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 to 9.4.2 below.
This requires consideration of the strength, nature and duration of an applicant’s ties to Australia and the impact of non-revocation of a cancellation decision on Australian business interests.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1(1) of Direction No 90 provides that:
(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.
Further, paragraph 9.4.1(2) of Direction No 90 provides that:
(2)Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
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.
As I mentioned above, the Applicant arrived in Australia as a teenager when he was 14 years of age. He has therefore resided in Australia for approximately 28 years, including most of his teenage and all his adult years.
Although the Applicant arrived in Australia as a 14-year-old child, he was convicted of his first offence at the age of 17.
He has a long history of offending and has spent a substantial part of his adult years in prison and immigration detention. His employment history is minimal. In 1996 he worked as a labourer in a market garden, between 1997 and 2000 he helped in his family sewing business after school, and between 2015 and 2016 he helped as an assistant in his sister’s hairdressing business (R1/107; transcript/39 and 41). During past prison terms he cut hair for other inmates and worked in the kitchen (R1/108). I find that these contributions are minimal.
Therefore, these factors diminish the weight to be given to the Applicant’s time in the Australian community and the fact that he came here as a 14-year-old child.
Nevertheless, the Applicant does, however, have strong ties to Australia. All his immediate family members reside here. He has no family in Vietnam. In addition to his minor nieces and nephews (discussed above), his adult daughter, his mother, four siblings, adult nieces and nephews and brother-in-law all reside in Australia. The family appear to be a close and loving family. The Applicant’s mother, daughter, two sisters and brother all submitted witness statements to the Tribunal in support of him. The Applicant’s ex-partner, who is the mother of his daughter S, also submitted witness statements in support of him. It is evident from their statements that they will suffer emotional detriment if the Applicant is removed from Australia.
The Applicant’s 23-year-old daughter, S, who is an Australian citizen, is anxious for the Applicant to stay in Australia. In her statutory declaration dated 25 July 2022, she described having a close relationship with her father. She explained the negative impact that it would have on her if her father were removed from Australia (A1, annex 4, para [5]-[8]):
I could have never imagined or contemplated that my father would be deported, and I would be far apart from him in a different country. I would struggle emotionally to deal with this. I became so sad and depressed at the thought of my father being deported. The consequences of my father being deported will be serious for me. I will not be able to travel to Vietnam to see him as I have very little savings. My life will never be the same if my father is deported.
I am also scared for my father if he is deported to Vietnam. He has no one there; he will be so sad, lonely, and scared. I cannot imagine how he would survive there; where would he live and how he would support himself. He will be homeless and face destitution. I have only just started working; I am barely earning enough to support myself, let alone to support my father in Vietnam or to travel there to see him every time that I miss him.
If my father is permanently out of Australia, he cannot return to Australia to be with me in any special occasion in my life. For example, to be there for my wedding or if something happens to me, such as a car accident, he cannot be there straight away to support and comfort me.
I beg the Tribunal to give my father another chance to remain in Australia so that we can be a family again and spend time together and allow him to be there for all the special moments in my life. Our family and I need my father to remain in Australia. If he is allowed to stay, my father will move to Melbourne to be close to his family including his mother, brother, sister and me. We all love him very much and will support him emotionally as well as with accommodation or whatever practical support he needs to get back on his feet. …
The Applicant’s ex-partner, who is the mother of S, stated in a statutory declaration dated 30 March 2022 that (R1/146, paras [18]-[19]):
I am also concerned for our daughter. S loves her father very much and would not cope if she were to be separated from her father permanently. As a mother, I cannot stand to see my daughter hurt and go through the trauma of seeing her father deported and persecuted in Vietnam. Even though S is 21 years old now and has a full-time job, she is still a child to me and she still needs her parents around to guide her and be there for her. I do not want her to be impacted negatively by [the Applicant’s] permanent departure. I know it would be very hard for her and I would not know how to comfort or support her.
[The Applicant] has strong family connections in Australia, most importantly his mother and S. I want S to grow up and be happy. I want her to have a bright future with [the Applicant] beside her in Australia. I want our family to be whole. S needs her father beside her; it has affected my daughter emotionally to hear the news that her father could be deported.
I find that the Applicant’s daughter is likely to suffer significant emotional detriment if the Applicant is removed to Vietnam.
The Applicant’s mother, who is an elderly Australian citizen suffering from ill health, would be detrimentally impacted if he were removed from Australia. In her statement dated 25 July 2022, she stated that she was “devastated and heartbroken” when she learnt that the Cancellation Decision was not revoked. She stated that, “I cannot lose my son; he is my heart and soul” (A1, annex 3, para [7]). In another statement made in 2022, the Applicant’s mother said that she is “suffering from depression and feelings of isolation” and that the source of her strength was her children and grandchildren. She stated that, “I would die from the pain and suffering of being separated from my son [the Applicant]. It would kill me and my spirit” (R1/157, para [19]).
The Applicant’s brother, HM, stated in a statutory declaration dated 5 April 2022 that his mother would be “very sad and depressed” if the Applicant was deported from Australia and that he is fearful that “her health would deteriorate significantly” if the Applicant was removed from Australia (R1/162, para [14]). The Applicant has lived with his mother previously. If he is released into the community he would return to live with her again. She described that when he lived with her previously, he helped her around the house, drove her to the doctor, bought medication for her, and that she felt secure having him there (R1/156, para [12]). I find that the Applicant’s mother would suffer emotional, practical, and possibly physical detriment if the Applicant was removed from Australia.
I find that the Applicant has strong ties to Australia because all his immediate family members, including his mother, daughter, siblings and nieces and nephews are in Australia.
On balance, I find that paragraph 9.4.1 of Direction No 90, being the strength, nature, and duration of the Applicant’s ties to Australia, weighs strongly in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.4.2(3) of Direction No 90 provides that:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before me and is therefore not relevant.
Indefinite detention
The Applicant has been detained in immigration detention for approximately 18 months since his release from prison on parole on 2 March 2021 (R2/128).
As I mentioned above, the Applicant’s protection visa application has been remitted to the Department. He faces detention for an uncertain duration pending the outcome of his protection visa application.
As I also explained above, whilst a protection finding has not yet been made, it will be made before the Minister decides whether to grant or refuse the visa due to the operation of s 36A of the Migration Act. Further, given the finding of the previous Tribunal that the Applicant meets the definition of a refugee, there is likely to be a finding that he satisfies s 36(2)(a) or (aa), which would mean that he cannot be refouled, even if his protection visa application is ultimately unsuccessful because it is refused under s 36(1C) or s 501(1) of the Migration Act. I am reluctant to pre-judge any decision, but I find that it is reasonably likely that the Applicant’s protection visa application would be refused under one of those sections.
Depending on the decisions made concerning the Applicant’s protection visa application, and whether there are any appeals, and/or if the Applicant’s matter is referred to the Minister to consider the exercise of the Minister’s non-compellable powers, the process and length of the Applicant pursuing the grant of a protection visa may be tortuous and he may face detention for an indefinite period, even if he is ultimately successful in being granted a protection visa.
Mr Watson-Munro diagnosed the Applicant with having a history of mental health issues including early childhood trauma, an adjustment disorder when he came to Australia and as he has adjusted to events in his life such as imprisonment and detention, depression and anxiety and on-going PTSD which is untreated (transcript/95-96). These vulnerabilities would further worsen the Applicant’s experience of prolonged or indefinite detention.
In summary, the prospect of indefinite detention is the most likely consequence of a decision to affirm the Reviewable Decision. I therefore find that this consideration weighs very strongly in favour of revocation of the Cancellation Decision.
the weighing exercise
The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 90.
For the reasons set out above, I made the following findings about the relevant primary considerations in Direction No 90. These were:
(a)The protection of the Australian community primary consideration weighed moderately to strongly against the revocation of the Cancellation Decision.
(b)With respect to the best interests of minor children, the best interests of the Applicant’s two nieces and his nephew, weighed slightly in favour of the revocation of the Cancellation Decision.
(c)The expectations of the Australian community weighed moderately against the revocation of the Cancellation Decision.
I made the following findings with respect to the other considerations that were relevant. These were:
(a)International non-refoulement obligations weighed slightly in favour of the revocation of the Cancellation Decision.
(b)The extent of impediments if removed weighed moderately in favour of the revocation of the Cancellation Decision.
(c)The Applicant’s links to the Australian community weighed strongly in favour of the revocation of the Cancellation Decision.
(d)The prospect of indefinite detention weighed very strongly in favour of the revocation of the Cancellation Decision.
Although primary considerations are generally to be given greater weight (para 7(2) of Direction No 90), they are not hierarchical and other considerations can outweigh primary considerations.
Thus, despite two of the primary considerations (the protection of the Australian community, and the expectations of the Australian community) weighing moderately to strongly, and moderately, against the revocation of the Cancellation Decision, I find that they are outweighed by the other considerations of indefinite detention and links to the Australian community which weighed very strongly and strongly in favour of the revocation of the Cancellation Decision. They are significant reasons which carry significant weight, such that I am satisfied that the Cancellation Decision should be revoked (Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64]).
The impediments if removed other consideration which weighed moderately in favour of the revocation of the Cancellation Decision; the best interests of the Applicant’s two minor nieces and minor nephew which weighed slightly in favour of the revocation of the Cancellation Decision; and international non-refoulement obligations which weighed slightly in favour of revocation of the Cancellation Decision, further add to the overall weighing exercise being in the Applicant’s favour.
In other words, there is another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the Cancellation Decision should be revoked.
Decision
The Reviewable Decision, being the decision of a delegate of the Respondent dated 16 June 2022, is set aside and substituted with a decision that the cancellation of the Applicant’s Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act.

I certify that the preceding 203 (two hundred and three paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

.........[Sgd]............................................................
Associate
Dated: 19 September 2022

Date of hearing: 24 and 25 August 2022

Representative for the Applicant: Mr G Hughan instructed by Ms S Sam, Clothier Anderson Immigration Lawyers

Representative for the Respondent:

Mr A Gerrard, The Australian Government Solicitor

Date of hearing:	24 and 25 August 2022
Representative for the Applicant:	Mr G Hughan instructed by Ms S Sam, Clothier Anderson Immigration Lawyers
Representative for the Respondent:	Mr A Gerrard, The Australian Government Solicitor