Tran and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2023] AATA 2011

Tran and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 2011 (12 July 2023)
Division:GENERAL DIVISION
File Number: 2023/2690
Re:The Anh Tran
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:12 July 2023
Place:Melbourne

The Tribunal affirms the reviewable decision.
......................[sgd]..................................................
Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory visa cancellation – citizen of Vietnam – Class BS Subclass 801 Partner (Residence) Visa – failure to pass good character test – illegal residence in Australia – cultivate cannabis – traffick cannabis – family violence – use of illicit drugs – whether another reason why mandatory visa cancellation should be revoked – Ministerial Direction No. 99 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Confiscation Act 1997 (Vic)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Drugs, Poisons and Controlled Substances Act 1981 (Vic)
CASES
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294
Brownlie v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 436
Bushell v Repatriation Commission (1992) 175 CLR 408
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
DPP v Nguyen; DPP Tran [2021] VCC 1257
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs [2020] HCATrans 056
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Le v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3130
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Meyrick v Minister for Home Affairs [2020] FCA 677
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Suleiman v Minister for Immigration and Border Protection (2018)74 AAR 545
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
YKSB v Minister for Home Affairs [2020] FCAFC 224
SECONDARY MATERIALS
Australian Criminal Intelligence Commission, Illicit Drug Data Report 2019-20
Kalina M Brabeck, M Brinton Lykes & Cristina Hunter, ‘The Psychosocial Impact of Detention and Deportation on U.S. Migrant Children and Famillies’ (2014) 84(5) American Journal of Orthopsychiatry, 496
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Sentencing Advisory Council, ‘Imprisonment’ < FOR DECISION
Senior Member A. Nikolic AM CSC
12 July 2023

The Applicant seeks review of a decision by the Respondent not to revoke the mandatory cancellation of his Class BS Subclass 801 Partner (Residence) Visa.[1]
[1] Exhibit R1, 45-50.
The hearing was held in person at the Tribunal’s Melbourne Registry between 27 and 29 June 2023. The Applicant was represented by Mr Nicholas Poynder of counsel, instructed by Lena Hung and Associates. The Respondent was represented by Ms Jessica Xiao, a solicitor from Clayton Utz Lawyers.
For the following reasons, the Tribunal affirms the reviewable decision.
FACTS
The Applicant is a 32-year-old citizen of Vietnam.[2] His formative years were spent there, including completion of high school and diploma studies ‘relating to pharmaceuticals’.[3] His parents, a sibling, and other relatives and friends continue to reside in Vietnam.[4]
[2] Applicant’s Statement of Facts, Issues, and Contentions (“ASFIC”) dated 7 June 2023, 1.
[3] Exhibit R1 34 [28].
[4] Ibid 281-294.
The Applicant first arrived in Australia a decade ago when he was almost 22 years of age. He intended to study nursing but failed to maintain his enrolment.[5] This resulted in his Student Visa being cancelled on 5 July 2013 under s 116(1)(b) of the Migration Act 1958 (Cth) (“the Act”).[6] As a result of this the Applicant became an unlawful non-citizen within the meaning of s 14 of the Act but decided to remain in Australia. For the next four years he worked illegally in various unskilled roles, including on a strawberry farm and in factories.[7] The following also occurred:
[5] Ibid 34 [28]; 191; 283 [17]; 307.
[6] Exhibit R3.
[7] Exhibit R1, 34 [28]; 145 [24/09/2019]; 191 [22/08/2019]; 246 [12.(f)].
(a)The Applicant met Ms Thu Anh Ngoc Nguyen in 2015.[8] They married in January 2017 and had their first child in April 2017.[9]
[8] Ibid 34 [28].
[9] Exhibit A11.
(b)The Applicant applied for a Partner Visa and was granted a Bridging Visa in July 2017 while this was considered.[10] This regularised his visa status in Australia.
[10] Exhibit A1, 307.
(c)In 2016 Ms Nguyen purchased and operated a nail salon and eyelash extension business, which she sold in November 2017.[11]
[11] Exhibit R2; Exhibit R1, 69 [33].
(d)Ms Nguyen became an Australian citizen on 23 August 2017.[12]
[12] Exhibit A11.
(e)In May 2018 Ms Nguyen purchased a home in her name.[13]
[13] Exhibit R1, 105 [29]; 257 [74].
(f)Ms Nguyen had a second child in October 2018.
(g)The Applicant was granted a Partner Visa on 27 June 2019.[14]
[14] Ibid 45; 307.
(h)In July 2019, about a month after the Partner Visa was granted, the Applicant was arrested after a search warrant was executed at his home. A ‘sophisticated hydroponic setup’ was discovered by police that was used to cultivate a cannabis crop weighing 119 kgs.[15] A further 38 bags of dried cannabis weighing 13.29 kgs were in the freezer. Police also discovered $24,000 in a car that was subsequently forfeited as proceeds of crime.[16]
[15] Ibid 31.
[16] Ibid 34.
(i)On 31 August 2021, the Applicant was convicted and sentenced in the County Court of Victoria for the following crimes:[17]
[17] Ibid 27-28; 38; DPP v Nguyen; DPP Tran [2021] VCC 1257.
(i)‘Cultivate narcotic plant in commercial quantity – cannabis’, for which he was sentenced to three years and three months’ imprisonment;
(ii)‘Traffick drug of dependence’, for which he was sentenced to one year and nine months’ imprisonment; and
(iii)‘Theft’, for which he was sentenced to three months imprisonment.
(j)When concurrency provisions were calculated, the Applicant’s total effective sentence was three years and nine months imprisonment, with a non-parole period of two years and six months.[18]
(k)Ms Nguyen was convicted as the Applicant’s co-offender for allowing the premises she owned to be used for cultivating / trafficking a drug of dependence. She was also found guilty of one summary charge of possessing $24,000 in cash suspected to be the proceeds of crime.[19] Ms Nguyen received a 12-month Community Corrections Order (“CCO”)[20] and the cash was forfeited.[21] The house, which was in Ms Nguyen’s name, was the subject of seizure action by the Victorian Office of Public Prosecutions as proceeds of crime.[22] On 14 February 2022, after Ms Nguyen withdrew her application for an exclusion order, the property was forfeited.[23]
(l)On 21 September 2021, in consequence of his offending, the Applicant’s visa was mandatorily cancelled.[24] He was then serving a sentence of imprisonment on a full-time basis.[25] He was invited to make representations to have the cancellation decision revoked and did so.[26] After completing his sentence he was taken into immigration detention on 17 February 2022, where he has since remained.
(m)On 24 April 2023, a delegate of the Minister decided not to revoke the mandatory cancellation decision (“non-revocation decision”).[27]
(n)On 27 June 2022 the Applicant asked the Tribunal to review the non-revocation decision.[28]
[18] Exhibit R1 38 [49].
[19] Ibid 30 [4]-[5].
[20] Ibid 38 [43]-[44].
[21] Ibid 41 [69].
[22] Ibid 105 [31].
[23] Ibid 236 [8]; 257 [76]; 300-301, Pursuant to s 20 of the Confiscation Act 1997 (Vic)
[24] Exhibit R1, 45-51.
[25] Ibid 43.
[26] Ibid 52-138; 239-250.
[27] Ibid 8-9.
[28] Ibid 1-9.
The Tribunal must decide this application within 84 days of the Applicant being properly notified of the non-revocation decision. This falls on 17 July, which is eleven working days after the hearing concluded.[29] These reasons are provided within the permissible period.
[29] Section 500(6L) of the Act.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and a person does not pass it if they have a ‘substantial criminal record’ as defined by s 501(7). This includes if they are sentenced to a term of imprisonment of 12 months or more.[30]
[30] The Act, s 501(7)(c).
Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act confers a discretionary power upon the Minister to revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
ISSUES
Character test and issue to be resolved
The Applicant does not pass the character test because his convictions on 31 August 2021 mean that he has a substantial criminal record.[31] The statutory power to revoke the mandatory cancellation of his visa can therefore only be enlivened by the Tribunal’s satisfaction that there is ‘another reason’ for doing so.[32]
[31] Pursuant to ss 501(6)(a) and 501(7)(c) of the Act.
[32] The Act, s 501CA(4)(b)(ii); Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
Another reason?
The Full Court in Bettencourt[33] reflected with approval upon the approach taken in Viane,[34] about how ‘another reason’ is determined. At [27] their Honours summarised characteristics about the statutory power conferred by s 501CA(4) of the Act:
‘(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
[33] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294 (Burley, Colvin and Jackson JJ)
[34] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
More recently, in Plaintiff M1/2021,[35] the plurality of the High Court stated how representations made under s 501CA(4) of the Act should be approached:
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations…the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
(Citations omitted).
[35] Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (‘Plaintiff M1/2021’), [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ).
DIRECTION 99
In making its decision, the Tribunal must comply with a ministerial direction, made under s 499(1) of the Act, and known as ‘Ministerial Direction 99’ (“the Direction”).[36] This commenced on 3 March 2023. The Tribunal ‘stands in the shoes of the original decision-maker’ and must make ‘the correct or preferable decision’[37] on current materials.[38]
[36] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 , [4] (Rares, O’Callaghan and Jackson JJ); Nathanson, 2 [4].
[37] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]-[98] (Hayne and Heydon JJ); Nathanson v Minister for Home Affairs (2022) 96 ALJR 737.
[38] AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175, [25] (Wigney, Abraham and Rofe JJ); Nathanson v Minister for Home Affairs [2022] HCA 26 (“Nathanson”); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Beezley v Repatriation Commission (2015) 150 ALD 11, [68]Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J);.
The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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 measurable 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.
(5)With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)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 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision. Clause 8 of the Direction identifies the following primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The strength, nature, and duration of ties to Australia;
(d)The best interests of minor children in Australia;
(e)Expectations of the Australian community.
Clause 9 of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations’. This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[39]
[39] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’. The weighing process, however, is left to individual decision-makers.[40]
EVIDENCE
[40] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57].
Documentary evidence
The Applicant has two young daughters. The Tribunal will refer to the eldest child, who is currently six years old, as Child A, and the four-year-old child as Child B. Details relating to the kindergarten and school attended by these children, and the names of a family day-care educator and principal who have written letters, are excluded from these reasons.
The following documents were tendered into evidence:
(a)Applicant’s two-page statement dated 31 May 2023, including certificates of completion for ‘Anger Management 101’ and ‘Drug and Alcohol Abuse 101’, which were issued on 24 April 2023 by an online organisation called Universal Class;[41]
[41] Exhibit A1.
(b)Two letters dated 3 May 2023 and 30 May 2023, from the principal of the school attended by Child A;[42]
[42] Exhibit A2.
(c)A 37-page bundle of the Applicant’s medical records from the International Health and Medical Services (“IHMS”);[43]
[43] Exhibit A3. IHMS provides primary and mental health care services within Australia’s immigration detention network.
(d)Report of consultant psychologist Mr Tim Watson Munro dated 29 May 2023, attached to which is his curriculum vitae and a letter of instruction dated 8 May 2023;[44]
[44] Exhibit A4.
(e)One page letter dated 7 June 2023 from a Vietnamese Chaplain;[45]
[45] Exhibit A5.
(f)One page statement dated 2 May 2023 from a representative of the Indo-Chinese Prisoner Support Program;[46]
[46] Exhibit A6.
(g)One page letter dated 21 June 2023 from a kindergarten teacher at the preschool attended by Child B;[47]
[47] Exhibit A7.
(h)One-page medical letter dated 22 May 2023 from a general practitioner relating to Child B;[48]
[48] Exhibit A8.
(i)Journal article titled: ‘The Psychosocial Impact of Detention and Deportation on U.S. Migrant Children and Families’;[49]
[49] Exhibit A9.
(j)One page statement dated 10 May 2023 from a café owner who has offered the Applicant employment upon release, and an extract from the Australian Securities and Investment Commission (“ASIC”) relating to this café;[50]
[50] Exhibit A10.
(k)A bundle of documents comprising:
(i)Ms Nguyen’s Australian Citizenship Certificate dated 23 August 2017;
(ii)Child A’s Birth Certificate and Australian Citizenship Certificate;
(iii)Child B’s Birth Certificate;
(iv)Death Certificate for Ms Nguyen’s grandfather dated 25 June 2015; and
(v)Ms Nguyen’s international movement records between 21 January 2013 and 26 June 2015;
(l)G-documents[51] numbering 386 pages;[52]
(m)ASIC extract dated 9 June 2023, regarding a nail salon previously owned by Ms Nguyen and an extract from the company that owned the nail salon;[53]
(n)Decision record relating to cancellation of the Applicant’s Student Visa on 5 July 2013, attached to which is a PRISMS record about his past student enrolments.[54]
[51] G documents are so named because they are provided under s 501G of the Migration Act. They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision. Many of these documents usually accompany the Minister’s written notice regarding a visa cancellation, refusal, or non-revocation.
[52] Exhibit R1.
[53] Exhibit R2.
[54] Exhibit R3.
The Applicant was one of six witnesses called during the hearing. His evidence was heard over the first two days with the assistance of an interpreter in the Vietnamese language. Several witnesses were interposed because of their limited availability.
Applicant’s evidence
The Applicant adopted his statement dated 31 May 2023 as true and correct. His previous documentary evidence has also been considered.[55] Mr Poynder referred the Applicant to handwritten revocation submissions and two typed statements dated 19 October 2021 and 1 April 2023. While acknowledging the signatures on a Personal Circumstances Form (“PCF”) and two other statements were his, the Applicant said the handwriting on the PCF was from his former lawyer, Mr Andy Pham. He said Mr Pham speaks Vietnamese and completed the PCF after they had telephone discussions. The completed PCF in English was then sent to the Applicant for signature, which he claimed was not interpreted to him upon receipt. When asked by Mr Poynder if he generally understood the PCF contents, the Applicant replied: ‘Some words I did not understand’. When asked if he was ‘generally confident’ of the contents, the Applicant replied ‘No’. A similar discussion followed about two typed statements the Applicant previously signed,[56] also prepared by Mr Pham, which contain the following:
‘Language
1. I speak and read Vietnamese fluently. I cannot speak or read other than simple
English. My lawyer Mr Andy Pham read this statement to me in the Vietnamese
language before I signed it.’
[55] Exhibit R1 60-71; 251-257.
[56] Ibid 71; 257.
There was no evidence from Mr Pham at this proceeding. In the absence of any corroboration, the Tribunal places little weight on the Applicant’s assertion that he did not fully understand the contents of documents he previously signed and relied upon when making representations to the Department, while legally represented.
The Applicant’s oral evidence centred on the interests of his wife and children, who he wants to remain in Australia with. Key aspects of his evidence are summarised as follows:
(a)The Applicant said he ‘dropped out’ of studies in Australia because of his ‘lack of [English] ability’. After his Student Visa was cancelled, he decided to remain in Australia illegally and worked for the next four years despite not holding a visa. The Applicant said he received ‘cash money’ for this work.[57] Mr Poynder directed the Tribunal’s attention to a record from the Australian Tax Office, which discloses the Applicant has only submitted one tax return, around the time his visa status was regularised in 2017, which resulted in a $35 refund.[58]
[57] Ibid 191-192, 145, 246; Exhibit A4, 6.
[58] Exhibit R1 304.
(b)The Applicant claimed that shortly after his relationship with Ms Nguyen commenced, he informed her that he was living and working illegally in Australia. He said they purchased and operated a nail salon business together and then bought a house around mid-2018. Both the business and house were in Ms Nguyen’s name alone. The Applicant said the proceeds of the nail salon were used to purchase the house. When asked by Ms Xiao about business records showing the salon was sold after his wife purchased the home, the Applicant attributed this to ‘solicitor paperwork’.
(c)The Applicant said he regrets not listening to Ms Nguyen when she counselled him against the cannabis enterprise. He told her not to interfere, lost patience with her, and said he ‘yelled at’ but never ‘beat her’. The Applicant claimed that when he shouted angrily at Ms Nguyen, she responded in the same way and was not scared.
(d)The Applicant said financial pressures intensified after the home purchase because he was the only one bringing in an income. Ms Nguyen did not work because she was pregnant with Child B, who was born in October 2018. The Applicant explained both need and greed motivated his decision to set up the cannabis enterprise:
‘Yes, I was under financial pressure. I was so greedy to be making a lot of money. I could not control my greed or my obsession for money…I could not control myself when listening to my friend’s advice about doing illegal things.’
(e)The Applicant said he met this friend ‘about mid-year 2018’ in a café, who advised him he ‘could make a lot of money from cannabis’. This was the same person who sold him crystal methamphetamine (“ice”) and cannabis for personal use. The Applicant recalled setting up the hydroponic infrastructure at his home around January or February 2019. When Ms Xiao pointed out this was earlier than the Court’s finding that his offending only ‘extended over a month’,[59] the Applicant said he wanted to disclose this earlier commencement because he had lied about aspects of his past conduct and wanted to be completely truthful at this hearing.
[59] Ibid 31 [8]; 32 [13].
(f)The Applicant agreed he set up the cannabis enterprise in several bedrooms and the garage approximately two months after Child B was born. He did not pressure Ms Nguyen to become involved, said she never assisted with cultivation, and claimed she never even saw the crop. When asked how this was possible for a couple residing in the same house, the Applicant responded somewhat opaquely: ‘She didn’t report it to police’. The Applicant said he was aware cannabis cultivation is illegal but claimed he ‘did not fully understand’ the consequences of doing so until after being arrested.
(g)The Applicant was asked by Ms Xiao about the reference in Mr Watson-Munro’s report to him using ice from the age of 26 (in 2016) for about a year. He said this age / date reference was a mistake and his use of ice started in early 2018 and continued for a year. He agreed that Child A was one year old at this time and Child B was born during the year he used ice. The Applicant agreed his ice use was an addiction.
(h)The Applicant said the only place he ever used ice was in the bathroom or garage of a nearby house, which was a five-to-seven-minute walk away from his home. He could not recall the address and said he never drove there. The occupant of this home sold him ice and cannabis and advised him he could make a lot of money from cultivating cannabis. The Applicant said he is no longer in contact with this person.
(i)The Applicant said his use of ice was sporadic and ‘could be daytime or night-time’, depending on his mood. He ‘craved using it’ when experiencing ‘very low energy status’ and recalled his mood becoming erratic when not able to use. He smoked the ice, which caused him to be ‘excited, very active’ and unable to sleep for up to five days. The Applicant recalled ‘something very weird happening in [his] brain – like it stops functioning’. He experienced goosebumps, an increased heart rate, and felt the hairs on his arms and neck ‘sticking out’. The Applicant said he could ‘do a lot of things’ during this time, but after experiencing ‘low energy’ wanted to use again.
(j)The Applicant claimed that when smoking ice at his supplier’s house he was only ever away for an hour or so. He subsequently returned home to do ‘normal things like cooking meals’ and caring for the children. He claimed that even when using ice he could walk in a straight line, not stumble, and did not have any vision or hearing problems. He said Ms Nguyen could not detect his drug use and he only disclosed this to her in a general way after being arrested in July 2019, but not how much he used or for how long. When asked about the safety implications of caring for his infant children after using ice, the Applicant claimed he had a lot more imagination when affected by ice and a sense that he was able to ‘do good things and not bad things’. He claimed his condition was ‘not that bad’ to prevent him from caring for the children, who were too young to be aware of his drug use. When pressed, he agreed it was ‘no good for children if parents use ice’. When asked to elaborate, he said that after using ice he did things ‘in a rushed manner’ and was ‘not very careful’. Mood changes affected the way he treated Ms Nguyen and their children. He became ‘bad-tempered’, was not as careful as usual, and forgot to do things like ‘change the nappy or wipe [the child’s] bottom’. When asked about the safety implications of children living in the same home as a commercial quantity of cannabis, chemicals, and a bypassed electricity system, the Applicant claimed Ms Nguyen and the children never saw the cannabis crop.
(k)The Applicant said he stopped using ice sometime in December 2018 after he purportedly experienced paralysis to one side of his face and body. He sought treatment from a Chinese acupuncturist but did not disclose the drug-related cause of his paralysis. There is no independent evidence about the Applicant seeing an acupuncturist or receiving other treatment for the paralysis condition he described.
(l)After ceasing ice use, the Applicant said he started using cannabis for approximately seven months until being arrested in July 2019. He did so because ‘people’ told him it would improve his sleep and appetite, which ‘ice doesn’t give you’. He recalled smoking two or three bowls of cannabis at a time, approximately three times a week, in the garage of his house. He said this made him feel like his hearing and vision improved, but also caused frightening hallucinations. After using cannabis, he recalled not being able to walk properly and his gait was ‘very weird’, as if he was drunk.
(m)The Applicant said he normally smoked cannabis through a bong ‘about 7:00 pm’ because his wife had usually gone to bed by then. He explained that she became very tired because of looking after two small children and slept when the baby did. He recalled that the cannabis effects ‘slowly increased’ after he smoked it, causing him to eat and drink more than usual. The effects persisted for about five or six hours or until about midnight. The Applicant denied being addicted to cannabis and said Ms Nguyen never detected his use.
(n)The Applicant claimed to have been abstinent from illicit drugs in custodial settings during the last four years and said he does not intend relapsing if released because he is now ‘fully aware of addictive substances’. When asked if he ever sought professional help to address past drug use, he replied: ‘No I did not’.
(o)The Applicant expressed remorse several times for past conduct in a general way. When asked by Ms Xiao to elaborate on what he was remorseful for, he referred to cannabis cultivation, trafficking, and the anger he showed Ms Nguyen. This included ‘coercively controlling’ her and using ‘verbal, abusive language’. Later in his evidence the Applicant referred to an incident where he smashed a cupboard with a hammer at his wife’s nail salon after becoming angry with her. He regrets this incident and says he fixed the cupboard and apologised.
(p)The Applicant agreed he instructed Ms Nguyen about who she could associate with, by telling her: ‘you better associate with good friends only – not bad friends’. He alone was responsible for family finances and claimed Ms Nguyen did not have time to shop because of long working hours at the nail salon and ‘spending all her time taking care of babies’. When put by Ms Xiao that he did not allow Ms Nguyen to spend money, the Applicant responded: ‘No, it’s just because my wife trusts me, that’s why I was the only one’. The Applicant said he gave Ms Nguyen the ‘access account’ when she requested it and ‘sometimes’ cash. He said they had one credit card with two names and Ms Nguyen sought his permission ‘once or twice’ weekly to use it. The Applicant confirmed it was he who decided that she had to ask for permission to spend money, but claimed she agreed. He could not recall ever refusing her access to the credit card. When asked by Mr Poynder if Ms Nguyen also needed permission to spend cash for shopping, the Applicant responded: ‘She’d ask me I need to go and get this and that, and I’d agree’. He also said that he controlled ‘some part of the operation’ of Ms Nguyen nail salon but said she could use cash from the business without getting his permission. When asked by Mr Poynder if she ever did, the Applicant responded: ‘I don’t know – I’m not aware about that’.
(q)When asked about references in a report prepared by his wife’s treating psychologist to how he treated his wife,[60] the Applicant said he previously ‘tried to cover up all the bad things’ about himself, but in 2023 realised this was a mistake and now wants to ‘be fully open’ and ‘to be forgiven’. During the last four years in custody, he has noticed Ms Nguyen is ‘more independent’ and hopes she will continue contributing to family finances through employment if he is released. He intends ‘sharing financial contributions’ with her in future. The Applicant will reside with Ms Nguyen and their children at her mother’s home, but in the ‘long run’ they intend to rent or buy.
(r)In terms of rehabilitation, the Applicant did a course relating to gambling addiction while imprisoned. He recalled using poker machines while living in the community but said he was not addicted to gambling and this was not contextually relevant to family financial pressures or his offending. Ms Xiao asked the Applicant about references in prison records to him denying past drug use[61] and not wanting to do courses relating to drug and alcohol rehabilitation.[62] The Applicant said he was ‘lying to correctional officers’ and did so on ‘many occasions…I was sinking into my lie and could not get out of that’. He explained that he needed to hide ‘bad habits’ so authorities didn’t extend his sentence. The Applicant said he ‘later learned that covering up only made it worse and worse’, and now intends to be truthful and share his feelings with others. He said that he wanted to do a drug rehabilitation course at a later stage, but COVID-19 restrictions intervened.
(s)When asked about a record dated 12 March 2022 in which he denied past drug use and the necessity for drug rehabilitation,[63] the Applicant responded:
‘At that time, I had already changed myself. I was not an addicted person anymore and did not need any course. I was continually exercising and changed myself and became a better man…After so long in prison my body did not absorb any more drugs. Through gym my body was cleaning itself’.
(t)The Applicant referred to a course he did recently in immigration detention on 24 April 2023 called ‘Drug and Alcohol Abuse 101’ but claimed he does not need any outside help to deal with past issues because being imprisoned had the ‘biggest impact on [his] ability to quit’. He referred to a ‘lot of lessons’ learned in custody.
(u)The Applicant said he does not suffer from medical or other conditions and aspires to commence immediate employment upon release. He agreed that on arrival at Fulham Prison he disclosed no medical or other health concerns,[64] but now states this was a lie because his mental health was ‘in very bad shape’. He recalled that this subsequently became ‘very good’ after he ran and did gym sessions. The Applicant also referred to five or six counselling sessions in immigration detention, most recently in May 2023, from which he received ‘lots of useful information’. He agreed the counselling sessions were with a mental health nurse rather than a psychologist as previously claimed. The sessions focussed on ‘past experiences’ in his life and imprisonment, but not past drug use, financial pressures, influence of adverse peers, or family violence against Ms Nguyen. The Applicant referred to continuing issues with ‘mental focus’ because of uncertainty about his visa status. He agreed that he requested a ‘psych report’ from IHMS staff for legal purposes but this was not provided. All he was given was clinical records.[65] He also agreed that he did not attend further counselling after the last session on 31 May 2023 and was yet to submit a further request to continue these.
(v)The Applicant was asked about an offer of employment from a friend who owns a café in Melbourne.[66] He said this person was unaware of his crimes because they ‘didn’t tell each other everything about [their] lives’.
(w)The Applicant was asked about a custodial record dated 12 March 2022, in which he is recorded as saying if deported, Ms Nguyen and the children would return to Vietnam with him.[67] He agreed this comment was accurately recorded but said the situation had since changed and they ‘will be staying in Australia’.
[60] Exhibit R1, 67 [17].
[61] Ibid 144; 168; 195.
[62] Ibid 152.
[63] Ibid 226.
[64] Ibid 143.
[65] Exhibit A3.
[66] Exhibit A10.
[67] Exhibit R1, 226.
Evidence of Ms Nguyen

Ms Nguyen adopted her statements as true and correct.[68] Her oral evidence is summarised as follows:
[68] Ibid 103-107; 258-260.
(a)She arrived in Australia with her family in October 2010 when 14 years of age. She has since returned to Vietnam several times to visit her grandfather who was in failing health, most recently for his funeral.
(b)Ms Nguyen confirmed the dates of her marriage, children’s births, when she and Child A received Australian citizenship, and when her grandfather died in Vietnam.[69]
(c)Ms Nguyen said she began seeing Dr Nguyen, a clinical psychologist, in June 2020 and feels comfortable talking to her about past experiences in an open way. She agreed that she told Dr Nguyen the Applicant was controlling, possessive, jealous, and did not allow her to have friends other than work colleagues. Ms Nguyen recalled the Applicant telling her that if she associated with ‘bad people’ they would ‘take advantage’. Every time she wanted to see her friends, she had to ask the Applicant’s permission and he drove her there and back. She could not recall him refusing to allow her to see people but said she did not go out much, particularly when pregnant.
(d)Ms Nguyen agreed the Applicant had ‘full control of family finances’, including for the nail salon she owned. She agreed with Mr Poynder that she trusted the Applicant to take care of ‘every aspect’ of their finances. When asked by Mr Poynder if she was allowed to access money from the bank without asking the Applicant, Ms Nguyen said she ‘never tried to withdraw money by [her]self - If I wanted to withdraw I’d ask my husband.’ She could take cash from the nail salon without asking but had to later inform the Applicant and ‘bring back the receipts’. She said: ‘he would know about my shopping because he drove me to the shop’.
(e)Despite telling the Applicant she disapproved of the cannabis enterprise, Ms Nguyen said he did not listen and shouted: ‘shut up’. She did not notify the police and told Dr Nguyen this was because she did not dare disobey him, including because of ‘previous incidents of family violence’.[70] She stated: ‘If he knew I notified police he would be very, very angry’. She also thought he would be ‘taken away’ and her children ‘will have no father’. When asked by Ms Xiao what she thought might happen if the Applicant became angry, she responded: ‘I’m scared every time he shouted at me’. She did not tell the Applicant his shouting made her scared, but she cried and ‘was sad’ on these occasions. She agreed with Ms Xiao that she was ‘scared’ [to tell the Applicant] you’re making me scared’.
(f)When asked to elaborate about the Applicant’s conduct, Ms Nguyen recalled an incident at the nail salon when he ‘felt like ‘[she] talked too much’ and smashed a glass cupboard with a hammer. It ‘shattered everywhere’ and she was ‘very scared’ for ‘a few days’. She recalled the Applicant repaired the cupboard and apologised to her. Ms Nguyen said the Applicant was abusive when she disagreed with him, including on occasions unrelated to the cannabis enterprise, such if she wanted him to do something her way in the nail salon. Ms Nguyen confirmed there was never any physical abuse or another incident comparable to the glass cabinet incident.
(g)Ms Nguyen said the Applicant loves their children. When asked by Mr Poynder if she felt she was at ‘risk of danger’ from the Applicant, she replied: ‘No, I was not scared of my own safety, because I was unaware of his actions with using drugs or anything’. When asked about any potential risk to the children’s safety, Ms Nguyen replied: ‘No, absolutely not’. When asked if the children were present when the Applicant shouted at her, Ms Nguyen said this had occurred on one occasion, which is why she avoided arguing with him. When asked by Mr Poynder if she verbally abused the Applicant in response to his anger and abuse, Ms Nguyen stated: ‘I only talked back to him but never really raised my voice’.
(h)In terms of the Applicant’s use of ice and cannabis, Ms Nguyen said she was not aware of this at the time and ‘only found out later’ after he was arrested. He only told her that he ‘used those drugs – that’s all’, but not when or how much.
(i)Ms Nguyen has lived with her mother and stepfather whilst the Applicant has been in custody. She said her mother can only provide limited assistance because of her health. She asked her stepfather once to assist with the children’s literacy and homework, but he did not cope well, and she never asked him again.
[69] Exhibit A11.
[70] Exhibit R1, 33 [21].
Evidence of school principal
The principal adopted two one-page letters dated 3 and 30 May 2023 as her evidence in this proceeding. Her evidence is summarised as follows:
(a)A qualified classroom teacher is currently helping Child A with reading. This is because Child A is not doing the required literacy homework after hours, which includes practicing ‘tricky words’. Child A needs to do this homework and have stories read to her, which is an essential complement and needs to be ‘formalised’. Child A has been late to school six times in the last six months and absent for one morning. The principal said Ms Nguyen is busy with work and often ‘not home’. She always looked ‘very rushed, very hurried, and quite stressed’, which appears linked to dropping the two children off at different locations before work.
(b)The principal said the school was ‘looking into further assessments’ relating to receptive and expressive language, to determine how much of Child A’s issue relates to English as a second language, which may just ‘need a bit more time’. She is not aware of any expert diagnosis regarding developmental delays. At least 12 months of assessment is required by the school before consideration can be given to a language assessment done by a speech pathologist.
Evidence of Applicant’s mother-in-law
The witness adopted her two statements as true and correct.[71] In the statement dated 11 January 2022, she claimed to be suffering from: ‘a multitude of medical condition, like imbalance thyroid gland (sic), and I believe I have a tumour which requires invasive medical attention in the coming months’. She also stated: ‘I have been advised by my family doctor that in serious event of breathing complication, I can pass away suddenly at any minute’. There is no corroborating expert evidence of the thyroid, tumour, or sudden death claims. The Tribunal has considered documents dated March 2023 relating to consideration of ‘right middle finger trigger release’ surgery,[72] but there is no evidence this has occurred.
[71] Ibid 180-183; 276-280.
[72] Ibid 299.
The witness claimed she was unaware of the Applicant’s illegal residence in Australia when dating her daughter and only became aware after they married. She disapproved of their union not because of his illegal status but because her daughter was very young. When her daughter disclosed the Applicant’s abusive conduct, she also disapproved of this. The witness said her daughter did not discuss the full details, but she was aware it occurred while they worked together in the nail salon, during which the Applicant ‘always abused and dominated’ her daughter and ‘never listened to her in almost everything’.
The witness said if the Applicant could remain in Australia, he could help her daughter care for their children. The witness and her husband, who is 77 years of age, find it ‘very difficult’ to have her daughter and two grandchildren live with them for so long. They will nevertheless support them until they can find their own place to stay.
Evidence of Café Owner
The owner of a Melbourne café gave oral evidence about offering to employ the Applicant as a ‘Barista and hospitality worker’ if released in Australia.[73] He was interposed during the Applicant’s oral evidence because of limited availability. The café owner said his wife wrote his statement because she has a better grasp of English. She is not a certified interpreter and did not read the statement back to him before he signed it.
[73] Exhibit A10.
The café owner said he first met the Applicant in January 2019 at a market cafe. They talked a few times and became friends. He was unaware of the Applicant’s past financial pressures or offending because they ‘weren’t that close’ and he respected the Applicant’s privacy. The café owner said he met the Applicant’s wife ‘once or twice’ earlier this year and learned she was ‘struggling’. He only learned about the Applicant’s offending after receiving a call from immigration detention in April or May 2023. He was surprised to hear from the Applicant after no contact for four years. The witness said he has no idea why the Applicant ‘chose to follow this path’, which was a reference to the cannabis offences. At this point Ms Xiao put to the café owner that: ‘It’s a path you yourself chose to follow, isn’t it?’. The Tribunal halted proceedings to enquire about the basis of this question, for which there had been no previous reference in the evidence. The possibility of the witness having to be warned about his privilege against self-incrimination also arose. The Tribunal adjourned the hearing so Ms Xiao could share the information she relied upon with Mr Poynder.
Upon resumption, the Tribunal asked Ms Xiao if the purpose of her line of questioning was to attack the witness’s credit or the protective value of the job he offered to the Applicant. Ms Xiao said it was the latter. The Tribunal expressed concern about the surprise nature of the question and the material on which the question relied, which Ms Xiao had prepared copies of prior to her questioning the witness. This had not previously been provided to the Applicant or lodged with the Tribunal during the pre-hearing phase as provided for in scheduling orders. There was also no reference to this line of questioning in the Respondent’s Statement of Facts, Issues, and Contentions (“RSFIC”), which is comparable to a pleadings document. Ms Xiao said the information she relied upon is publicly available and handed up two unreported decisions from another Division of this Tribunal. The Tribunal noted such material was normally furnished to opposing counsel before being raised with a witness. Ms Xiao submitted she was not under a ‘strict obligation to do so’. She said although these questions came to her notice ‘a day or two before the hearing’, her decision to rely on it had only ‘crystalised’ during cross-examination. She explained that when the café owner was asked about the reference in his statement to meeting the Applicant in a market café, she also recalled the Applicant had stated in his oral evidence that he met the person who encouraged him to commence the cannabis enterprise and supplied him with ice and cannabis in a market café. Ms Xiao said she intended to pursue the protective value of the employment offer because the café owner had also been convicted of cultivating cannabis. This included asking him about whether he and the Applicant shared mutual friends who may be adverse peers.
Mr Poynder objected to Ms Xiao’s reliance on the unreported decisions on several grounds, including relevance, lack of notice, and inconsistency with the ‘Evidence Act’. Mr Poynder said the café owner had been interposed as a witness and the Applicant had not yet been asked anything about the café owner also being convicted of cultivating cannabis. Moreover, the key aspect of the café owner’s evidence was the job offer made to the Applicant, not the café owner’s past.
After hearing from both parties, the Tribunal directed that the remainder of the café owner’s evidence would only be heard after the Applicant’s oral evidence was completed. Ex tempore reasons were also given for allowing Ms Xiao to later ask the café owner whether he has also previously been convicted of cultivating cannabis. The Tribunal observed it is not bound by the rules of evidence,[74] so notice or leave provisions for certain types of evidence is not apposite to Tribunal proceedings. In the interests of procedural fairness, however, the Tribunal ensured Mr Poynder had sufficient time to review the documents Ms Xiao relied upon and, if later required, have additional time for submissions.
[74] Administrative Appeals Tribunal Act 1975 (Cth), s 33(1)(c).
Upon resumption of the café owner’s evidence late on the second hearing day, he confirmed that had been convicted of cultivating cannabis in the past. He characterised this as a mistake, following which he become a ‘much better person’. The café owner said he is not close to the Applicant and, apart from the unexpected call from immigration detention a month or so ago, they had not spoken for four years. When asked why this was not in his statement, the café owner said he only told his wife about when he and the Applicant met and not when their relationship ended in March 2019. When asked by Ms Xiao about the basis of his reference in the statement that the Applicant is a ‘hardworking and reliable worker’, the café owner could not recall telling his wife to put that into the statement. He nevertheless thinks ‘from now on’ the Applicant will become a ‘different person…[and] a hard worker’. Notwithstanding the café owner’s limited past association with the Applicant, he still regards him as a friend.
Evidence of Mr Watson-Munro
The Tribunal has considered the report of psychologist Mr Tim Watson-Munro dated 29 May 2023, which was commissioned by the Applicant’s lawyer. In the opinion section of his report, Mr Watson-Munro stated in part:
‘4. Mr Tran has also suffered significant symptoms of depression, anxiety and low self-esteem over the years. I note that he travelled to Australia in his late teenage years and in the context of his exposure to a divergent language and culture, he was clearly vulnerable to potentially adverse peer group dynamics. I note a prior history of experimentation with a range of illicit drugs, including cannabis and crystal methylamphetamines. Subsequent to marrying and the acquisition of a home, coupled to the birth of two daughters in close succession, Mr Tran’s anxiety escalated as a consequence of ongoing and escalating financial pressures. The confluence of these issues inevitably impacted upon his judgment referable to consequential thinking and impulse control. It was essentially against this backdrop that his offending conduct occurred.
5. Mr Tran appears to have used his time in custody in a productive way. I note that whilst he was imprisoned, he held a job in mainstream jail and that since his transfer to immigration detention, he has undertaken five sessions with a psychologist. With the effluxion of time he has matured. He stated that his primary focus now relates to the well-being of his wife and two children and to this end he expressed a strong desire to move forward in the Australian community if permitted, in a pro-social way. To this end he hopes to re-join the workforce with a view to supporting his wife and children.
6. Mr Tran is well aware of the consequences he will face should he reoffend in any manner, if he is permitted to remain in Australia. He stated that he is highly anxious concerning the welfare of his children, whom as noted, are already struggling in his absence. He realises that if he is returned to Vietnam, it will be virtually impossible to maintain a relationship with his wife and children and indeed, very difficult for him to support them at a financial level. The sense of guilt arising from the impact of his conduct continues to weigh upon him.
7. There are a number of protective factors to be considered in this case. Mr Tran enjoys the support of his wife and children, he has expressed remorse for his conduct and is no longer using illicit drugs. He has commenced treatment in immigration detention and has expressed a desire to continue with this if he is permitted to remain in the Australian community. He has also matured and appears to have some understanding of the dynamics surrounding his offending conduct in the past.
8. Arising from these considerations, I believe that the likelihood of him reoffending in the future is now trending towards low. I note that you seek my opinion regarding the impact on his wife and children should he be required to leave Australia. It is apparent that his wife and two children are suffering in his absence. Ms Nguyen has undertaken a significant amount of therapy over the years to address her symptoms but notwithstanding this, remains highly symptomatic in terms of her clinical presentation and as reflected through appropriate psychometric testing. I note that she is currently on anti-depressant medication. The children have been described as developmentally delayed and I note from the documentation that they constantly ask about their father’s whereabouts and when he is coming home. Neither child is aware of the possibility of him being deported and should this occur, in the absence of the preparation of this possibility, they inevitably will be significantly affected at a psychological level. In this context, it is highly likely that the children too will require treatment, although this may be difficult given the significant financial pressures which Ms Nguyen is currently experiencing on her own.’
Mr Watson-Munro gave oral evidence by video and was cross-examined. His evidence is summarised as follows:
(a)Mr Watson-Munro spoke with the Applicant by telephone (without video) on 12 May 2023 and then on 15 May 2023. He did not keep a record of how long for but believes it was a 90-minute or two-hour discussion. He also spoke with the Applicant’s wife by telephone on one occasion for about half an hour. Mr Watson-Munro agreed this meant he was unable to observe the demeanour or visual cues of either person. In forming his opinions, Mr Watson-Munro said he applied clinical judgement alone and did not administer any psychometric or actuarial tests.
(b)Mr Watson-Munro agreed the first five pages of his 16-page report are extracts of information communicated to him by the Applicant’s solicitor in the Letter of Instruction dated 8 May 2023. The next three pages summarise his discussions with the Applicant.
(c)The Applicant told Mr Watson-Munro he lived unlawfully in Australia after his Student Visa was cancelled, and subsequently worked as a handyman, farmhand, bricklayer, in a factory, at his wife’s salon, and other jobs.
(d)Mr Watson-Munro said the Applicant’s recidivism risk is ‘trending from moderate to low’ and ‘he would benefit from treatment’. He did not use the word ‘moderate’ in his report and explained that his opinion on recidivism risk is ‘subject to the caveats’ mentioned in his report. This includes the Applicant finding employment, remaining substance free, continuing his relationship with Ms Nguyen, and being ‘as motivated towards his children as he is now’. Mr Watson-Munro said if ‘all the ducks line up, there is no reason to anticipate he will reoffend again’. He said that should one of these factors be absent or ‘dissipates’, this does not necessarily mean the Applicant will reoffend, except if he relapses into ice use. Mr Watson-Munro would be ‘less confident about his prognosis’ in the event of drug relapse.
(e)Mr Watson-Munro said the Applicant described feelings of guilt and remorse during their consultation and conveyed that his offending was driven by financial need and not substance abuse. He did not discuss the Applicant’s drug history or abuse of his wife ‘in great detail’ but is aware of it. Mr Watson-Munro also confirmed he did not observe the Applicant and Ms Nguyen together but said his conduct towards her was a contributing factor to her depression. This included ‘trying to stop her seeing friends and controlling money’. He did not discuss these things with the Applicant because the impact of these behaviours had already been well described by Dr Nguyen. When asked if he considered the risk of the Applicant relapsing into similar behaviours against Ms Nguyen, Mr Watson-Munro said: ‘All of the indicators are that he has matured, she has forgiven him, and they are both keen to move forward as a couple’. There is no express reference in Mr Watson-Munro’s report to the Applicant’s recidivism risk relating to family violence.
(f)When asked about the Applicant’s self-described symptoms of depressive disorder, Mr Watson-Munro said he was unaware of a formal diagnosis of any mental health condition: ‘He has symptoms of a depressive disorder, but I am not diagnosing him with depression. Whether he’d fit the criteria for a full-blown depressive disorder, I can’t say’. Mr Watson-Munro confirmed he had not administered any psychometric testing regarding depression or anxiety. He said the Applicant told him he had seen a psychologist in detention on approximately five occasions, but Mr Watson-Munro had not seen clinical records about that. He was unaware the Applicant had seen a mental health nurse rather than a psychologist and said these sessions were the no more than the ‘beginning of a journey’. He continues to encourage the Applicant to see a ‘qualified psychologist who is fluent in his language’.
(g)Mr Watson-Munro said he has no doubt the Applicant is depressed because of his circumstances and had expressed ‘feelings of sadness’. When asked about custodial records referring to the Applicant being in ‘very good’ mental health, Mr Watson-Munro said this did not mean his circumstances were not depressing. He said while the Applicant had not described intense symptoms, many of the thousands of prisoners Mr Watson-Munro had assessed in the past were ‘depressed and anxious about their circumstances’. He opined that people who are imprisoned can be ‘in a state of denial’ and ‘put on a brave face’.
(h)Mr Watson-Munro considers the Applicant’s ice use was ‘at the very least a big habit, if not an addiction’. He said the Applicant met the diagnostic criteria for Substance Use Disorder but had since benefited from ‘detoxification, rehabilitation and ongoing treatment’, and was now ‘arguably in a state of remission’. He said: ‘two years of drug free time correlates with remission’, which is an internationally accepted threshold. Mr Watson-Munro conditioned his remarks, however, by pointing out that the Applicant has been in a ‘contained situation’ since being arrested in July 2019 and ‘the real test will be in the community and maintaining treatment’. The Applicant’s need for treatment prevails and should focus on why he used drugs in the past and what the triggers are for future use. Mr Watson-Munro said this is ‘prudent clinical practice’ because drug use impacts judgement and risk.
(i)Mr Watson-Munro agreed with Ms Xiao that the efficacy of treatment depended on a person’s willingness to engage. He said people often lack insight into the need for treatment, which speaks ‘to their motivation to an extent’. When asked to elaborate on the specific treatment being recommended, Mr Watson-Munro said the Applicant should see a Vietnamese-speaking psychologist who is familiar with substance use issues and the criminal justice system. He said the Applicant would also benefit cognitive behavioural therapy that is focused on relapse prevention strategies, skills to improve his anxiety, and responses to adverse peer influences.
(j)When asked by Ms Xiao whether Ms Nguyen’s exposure to family violence during childhood made it more likely she would tolerate abuse, Mr Watson-Munro said people in these circumstances could become conditioned to it because if such behaviour was normalised ‘they become more accepting of it’. He agreed that Ms Nguyen is a ‘vulnerable person’ because of her ‘severe and recurring mental health illness’. He said if the Applicant started using drugs again, or is subjected to financial pressure, or the relationship unravels, there is ‘always that risk’ of family violence.
(k)Mr Watson-Munro said he did not examine the couple’s children but stated ‘one has learning difficulties and developmental delays’. When referred to the remarks from the principal of Child A’s school, which disclosed there is no formal diagnosis of developmental delay, Mr Watson-Munro said it was encouraging the problems ‘were not constitutional’ in nature. He said the absence of a father could nevertheless have adverse effects, including because the burden fell on the other parent. He also agreed with Dr Nguyen’s descriptions about the possible long-term impacts on children if a parent is deported.[75] Mr Watson-Munro agreed that children who witness verbal abuse would ‘unquestioningly’ experience adverse impacts.
(l)When asked about the basis of his remarks regarding the health of the Applicant’s mother-in-law, Mr Watson-Munro said he is not an endocrinologist, but based on what the Applicant and Ms Nguyen told him, the mother-in-law ‘seems to be in suboptimal health’.
(m)Mr Watson-Munro said he is familiar with Exhibit A9 and although it was an American journal article, the psychological principles remain valid. He said the absence of a father cannot be replaced by telephone or video calls. During cross-examination, Mr Watson-Munro agreed that some of the contextual circumstances in the article, including references to forcible removal and disruption to children’s neurological pathways and cognitive skills, were not apposite to this case. He said the absence of a parent may have some impact on a child’s learning capacity, but this was also a function of other environmental factors. When asked about any nexus between a child’s development and a father’s absence, Mr Watson-Munro said he has certainly seen this before but had not examined the children in this case and could not comment. When asked if he was making the claim that the children’s cognitive skills may diminish because of a father’s absence, he stated:
‘No, I’m not…I really cannot comment too much on the two children I have not examined. I do not know the dynamics surrounding the problems they are experiencing beyond what has been described by the others’.
PRIMARY CONSIDERATIONS
[75] Exhibit R1 90 [26].
Protection of the Australian community from criminal or other serious conduct

Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
Under cl 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(v)   crimes of a violent nature against women or children, regardless of the sentence imposed;
(vi) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)    causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)   crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
There is no evidence the Applicant has committed any offences in Vietnam. His August 2021 convictions are his only recorded offences in Australia. The sentencing remarks refer to his crimes as ‘very serious’,[76] which is not contested.[77] A large amount of cannabis was involved, and the Court considered this a ‘significant example of the offence of trafficking’.[78] It was a well-planned enterprise over which the Applicant had complete control. It is noteworthy the Applicant disclosed during oral evidence that he commenced establishing the hydroponic infrastructure for the cannabis enterprise in January or February 2019, about six or seven months before his arrest, compared to the Court’s finding that the offending only ‘extended over a month’.[79] As noted earlier, this was in the context of his intention to be entirely forthright and truthful now, having told lies about aspects of his past conduct.
[76] Exhibit R1, 36 [35].
[77] ASFIC, 18 [5].
[78] Exhibit R1, 32 [17].
[79] Ibid 32 [13]-[14].
The Applicant’s offending was planned and persistent rather than impulsive. He ignored Ms Nguyen’s repeated advice not to commence the cannabis enterprise and directed abuse and aggression towards her. His conduct clearly conforms with the definition of family violence at cl 4(1) of the Direction. Under cl 8.1.1(1)(a)(iii) of the Direction this is viewed very seriously irrespective of whether a conviction is recorded or a sentence imposed.[80]
[80] Direction, cl 8.1.1(1)(a)(iii).
The sentence of imprisonment received by the Applicant was substantially below the 25-year maximum available for the cultivation offence,[81] the 15-year maximum for trafficking, and 10-year maximum for theft.[82] That said, imprisonment is a sentence of last resort and the most severe sanction available.[83] A total effective sentence of three years and nine months imprisonment for a first-time offender reflects the objective seriousness of these crimes.[84] It is noteworthy that $24,000 cash found in the Applicant’s car and the home purchased in Ms Nguyen’s name were forfeited under proceeds of crime recovery action.
[81] Cultivation of a commercial quantity of a drug of dependence is an indictable offence under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). Under s 72A it has a maximum sentence of 25 years’ imprisonment.
[82] Exhibit R1, 30 [20].
[83] See for example: Sentencing Advisory Council, ‘Imprisonment’ <
[84] Exhibit R1, 39 [52].
This primary consideration is not limited to criminal convictions and includes ‘other conduct to date’.[85] For example, the Applicant lived and worked in Australia unlawfully for approximately four years after his Student Visa was cancelled in 2013. Additionally, notwithstanding the absence of any drug use convictions in his criminal history, he disclosed using ice for approximately a year until December 2018 and then cannabis for approximately seven months until being arrested in July 2019. His oral evidence in respect of dates differed to the drug history taken by Mr Watson-Munro as follows:
‘Drug, Alcohol and Psychological History:
Mr Tran stated that prior to his arrest he was using crystal methylamphetamines (ice), cannabis and alcohol. He stated that he started using ice at about the age of 26 years, against a backdrop of associating with an adverse peer group. He stated that he used ice for about 12 months but then ceased due to a significant medical episode following its ingestion, resulting in “half my body being paralysed”. This resolved after he saw a Chinese acupuncturist.
Mr Tran denied any stimulant induced psychosis but reported significant sleep disturbance lasting for up to five days at a time. His mood was also erratic with him experiencing rebound depression and high levels of anxiety.
After ceasing ice use, Mr Tran began smoking cannabis. This continued for about seven months before he quit.
He stated that he started drinking alcohol at the age of 18 but denies that excessive alcohol consumption was a health problem for him. He stated he has no drink-drive convictions.’
[85] Direction, cl 8.1.1(1).
It is noteworthy the Applicant cultivated a commercial quantity of cannabis in the family home shared with Ms Nguyen and their two children. He also referred to looking after his children while drug affected. Such conduct is inconsistent with the provision of a safe environment for very young children, who the Tribunal considers are vulnerable members of the community. The Tribunal places little weight on the Applicant’s evidence that neither Ms Nguyen or the children ever saw the cannabis crop, or that his condition after using drugs was ‘not that bad’ to prevent him from caring for the children, or that the children were too young to be aware of it, or that Ms Nguyen did not detect his drug use. The Applicant states he caused Mrs Nguyen ‘to be included in [his] criminal conduct’,[86] and the oral evidence establishes he acted in abusive, controlling, coercive, or aggressive ways towards her. That said, the Tribunal accepts the Court’s finding that Ms Nguyen’s ‘will was not overborne’ when she permitted the house she owned to be used for trafficking / cultivating a drug of dependence for a ‘substantial period’.[87]
[86] Ibid 251.
[87] Ibid 33 [20].
There are no convictions in the Applicant’s criminal history for family violence offences. He has also previously denied in documentary evidence that he did more than verbally abuse Ms Nguyen or exhibit certain controlling behaviour.[88] In his oral evidence, however, he admitted smashing a cupboard with a hammer at her nail salon and conceded that in the past he ‘tried to cover up all the bad things’ about himself but realised in 2023 this was a mistake and now wants to ‘be fully open’ and ‘forgiven’. Ms Nguyen’s evidence is that the cupboard smashing incident occurred because the Applicant perceived her as ‘talking too much’ or objected to her opposing his views, which routinely attracted verbal abuse. Contrary to the Applicant’s claim that the children never witnessed his family violence against Ms Nguyen, the Tribunal prefers her evidence that there was one occasion when they did, which is why she avoided disagreeing with him. The Tribunal is satisfied the Applicant did more than just verbally abuse or exhibit controlling behaviour against Ms Nguyen during their relationship. His past claim to the contrary constitutes false or misleading information in an official context.[89]
[88] Ibid 67 [16]; 241 [6].
[89] Direction, cl 8.1.1(1)(f).
The Tribunal finds the totality of the Applicant’s criminal and other conduct is very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction provides:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Clause 8.1.2(2) of the Direction states that in assessing the risk non-citizens pose to the Australian community, decision-makers must take into account, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
This aspect of the Direction requires the Tribunal to assess the risk posed to the Australian community if the Applicant reoffends, taking into consideration the nature of any harm and its probability. The courts have held that past actions are legitimate predictors of future behaviour.[90] The notion of risk and its nexus to future possibility were explored by Mortimer J, as her Honour then was, in Murphy:[91]
‘That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’
[90] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 578-579; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133, [81]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, [63].
[91] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
The Applicant submits he no longer uses illicit drugs, has remained abstinent in custodial settings during the last four years, and is more mature than at the time of his offending. In a statement dated 1 April 2023 he claimed:
‘I have done everything I can to improve myself in prison and in Immigration Detention. Since I came into Immigration detention, I continue to try to seek help in improving myself and to make sure that I am ready to lead a good life once I re-enter the community.
I have been seeing a psychologist while in Immigration Detention. I requested that I can receive some psychologist counselling to better understand and prepare for leaving detention to go back into the community.
I have had 5 sessions with a psychologist in Immigration detention. They are about 30 minutes each session, and I have it at about 10 a.m. Monday each week. My last session was 3 weeks ago.
8. While in immigration detention, I completed two additional courses of my own initiative: Anger Management 101 and Drug and Alcohol Abuse 101. I just want to do everything I can to keep learning about how to keep myself in good behaviour for the long term.
9. I have reached out to friends and support persons to give me assistance with reintegrating back into the community. I have been offered a job to work in my friend…business…once I am allowed back into the community. I am very lucky to be given an offer so that I can start work and earn money right away and provide financial support to my wife and children.
10. I have made serious and lasting efforts to be free from the problems that caused me to become involved in drug dealing. I have remained clean and off drugs and will not fall back into such addictions. I have stayed off drugs while in prison and in Immigration Detention.
11. I will never return to dealing drugs to earn money ever again. I know it is wrong and the price is so high that it is never worth it. I will make sure that I never break the law again.’[92]
[92] Exhibit A1, 1 [5]-[11].
The Applicant says the salutary lessons learned following imprisonment have reinforced the dire consequences of any further offending and the importance of his family. He expresses his intentions as follows:[93]
‘I am not motivated by the financial gains from drugs anymore. Even if I can only have a modest job, I can still support my wife and children financially. My wife has been able to earn money through her job and has been supporting our family although with great difficulty including on her mental health. I know that she only needs me to be around and contribute where I can and I don’t feel the burden that we are so desperate for money that I must resort to selling drugs to support us, now or ever again, no matter what happens.
I see that the most important thing for me is to take pressure off my wife, which I can do by adding additional income but also more importantly to spend time with my children so they feel safe and do not struggle so much in school and in their learning. While I have made efforts and am committed to working in an honest job, I now see that even if I had no job at all, me being around for my children will allow my wife to work with less stress and my children will have less stress and will improve in school. We will be able to survive if I am with my family. It is far more important that I can provide support to my wife and children by being around and money is not everything. I see now that anything I do in the future will be better than selling drugs or doing anything against the law to earn money.’
[93] Ibid 2 [13]-[14].
In terms of financial pressures motivating his past offending, the Applicant said he now realises ‘dealing drugs to earn money…is wrong and the price is so high that it is never worth it…I don’t feel the burden that we are so desperate for money that I must resort to selling drugs to support us.’[94]
[94] Ibid 1-2 [11]; [13].
In closing submissions Mr Poynder submitted that this primary consideration always weighs against revocation, but ‘ought not to be regarded as the determinative factor’.[95] He said the Applicant’s crimes were referable ‘primarily to financial circumstances’ and greed. Mr Poynder contends the Minister has relied on ‘many red herrings’ regarding recidivism risk, including the Applicant’s drug use, which Mr Watson-Munro had characterised as ‘experimentation’.[96] Mr Poynder stated that drug use is a ‘backdrop’ rather than central to the Applicant’s offending: ‘there were no direct consequences for other people…Ice didn’t lead to serious deleterious effects on others. It had the potential to do so but didn’t’. Mr Poynder said it was to the Applicant’s credit that he quit ice ‘cold turkey’ in December 2018 and his subsequent cannabis use was ‘recreational’ and ‘far less serious’. He highlighted the Applicant’s abstinence from all forms of illicit drugs during the last four years, despite drugs being available in custodial settings.
[95] ASFIC, 22 [10].
[96] Exhibit A4, 14 [4].
In relation to the Respondent’s reliance on the Applicant denying his drug use to custodial officers prior to sentencing,[97] Mr Poynder said the Applicant was under no obligation to ‘dob himself in’ and ‘wanted to keep his sentence low’. Mr Poynder noted the Applicant later disclosed his past drug use in immigration detention and during the present hearing.
[97] Exhibit R1, 144.
Mr Poynder said there are ‘before and after’ dimensions to this case, He said ‘something clicked’ for the Applicant after bail was refused in July 2019, which was a ‘road to Damascus moment’. This commonly refers to an important event with life-changing consequences. Mr Poynder highlighted custodial records showing the Applicant was compliant and well regarded in custody,[98] undertook vocational and other courses, abstained from illicit drug use, and is now more mature. Reliance was also placed on the offer of café work if released, continuing support from Mrs Nguyen, determination to put his children’s needs first, and awareness about the adverse consequences of further offending. Mr Poynder acknowledged the café owner’s evidence about being previously convicted of cannabis cultivation but said there is no evidence of any continuing involvement in such activities. Mr Poynder said the Applicant’s moderate recidivism risk would continue in a ‘downward trajectory’ if the conditions identified by Mr Watson-Munro were achieved.
[98] Ibid 144; 158; 224.
The Respondent submitted in the RSFIC:[99]
‘The Applicant's criminal offending was motivated by financial gain, having previously identified his "vain efforts to chase quick money" and that he was "involved in crime as a means of satisfying my personal gratification" as an explanation for his offending. Most recently, the Applicant stated that he has learned his lesson and is "no longer motivated by the financial gains from drugs" nor will he "fall back into such [drug] addictions".
While the Applicant has expressed remorse for his actions and undertaken a number of vocational courses in prison and two additional courses on anger management and drug and alcohol abuse in recent months while in immigration detention, there is no evidence of rehabilitation achieved by reference to time spent in the community (cf. paragraph 8.1.2(2)(b)(ii)) nor of how the Applicant has attempted to address the underlying factors behind his offending (and how effective any such attempts might be).
Overall, given the very serious nature of the Applicant's conduct and the harm that such conduct can cause, the Respondent contends that this consideration should weigh significantly against revocation.’
[99] RSFIC 6-7 [17]-[19].

The Tribunal accepts the Applicant has played a close and prominent parental role in the lives of his children after they were born. That said, there has been a long period of absence or limited meaningful contact with them since his arrest in 2019, during which Ms Nguyen has been the primary caregiver. The Tribunal also accepts the importance of children having a relationship with both parents whenever possible, providing this is not contrary to their best interests.[142] This is assessed by considering the nature of the relationship and the impact of separation if known.
[142] Meyrick v Minister for Home Affairs [2020] FCA 677, 63 (Jackson J).
The Tribunal accepts the Applicant loves his children and has done his best to maintain a close relationship with them during the last four years despite his circumstances. He has been physically absent for much of their young lives, with only limited contact, mostly by telephone, video calls and occasional visits. The latter has been impacted by his wife’s conviction as a co-offender in the cannabis enterprise and visiting restrictions arising from COVID-19. The Tribunal accepts the Applicant has the potential to play a positive paternal role in the lives of his children providing he does not relapse into drug use, addresses his unmet rehabilitative needs, and can better respond to inevitable financial and other pressures in the community. For the reasons previously expressed, however, there is a moderate risk of him reoffending, so his ability to play a positive parental role remains somewhat uncertain.
The Tribunal has some concerns about the Applicant’s prior conduct regarding his children, including the cultivation of a commercial crop of cannabis in their home, caring for them while affected by ice and cannabis, and the objectionable way he treated their mother. The Tribunal is also concerned he has only recently decided to be entirely forthright about his family violence, including one occasion in the children’s presence. These concerns tend to detract from his claims about the importance of his children, although the Tribunal accepts he aspires to be a better husband and father if released.
If the Applicant is repatriated to Vietnam, he could continue communicating with Ms Nguyen and children as he has done since 2019: via telephone, videocalls, and occasional visits. It is accepted this is a poor alternative to the sort of positive influence a loving and present father can have. As the children get older, they may also want to have a closer relationship with the Applicant, which would be very difficult if they remain in Australia with their mother, but their father is returned to Vietnam. This may result in adverse emotional impacts.
On balance and premised on Ms Nguyen staying in Australia with the children regardless of a decision in this matter, this primary consideration carries substantial weight in favour of revocation.
Expectations of the Australian community
Clause 8.5 (1) of the Direction identifies the expectations of the Australian community:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Clause 8.5(2) of the Direction states that visa cancellation, refusal or non-revocation 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. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
(a) acts of family violence;
...
Clause 8.5(3) provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. As per cl 8.5(4), this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in a particular case.
Clause 8.5(4) of the Direction correlates with the reasoning in FYBR.[143] Notwithstanding the different pathways in judicial reasoning, the plurality held that this primary consideration is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government. The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[144]
[143] FYBRv Minister for Home Affairs (2019) 272 FCR 454, at 471–2 [66] (FYBR) (Charlesworth J), and 476 [91] (Stewart J). The High Court refused an application for special leave to appeal from the orders in FYBR: FYBR v Minister for Home Affairs and Anor [2020] HCATrans 56
[144] Ibid at 473 [75]–[76] (Charlesworth J).
The Applicant submits that although this primary consideration weighs against him, ‘the isolated nature of his offending and the other factors referred to [in the ASFIC] suggest that this factor ought not weigh heavily’.[145]
[145] ASFIC, 26 [26].
The community would expect, as a norm, that the Government would not allow the Applicant to remain in Australia. His behaviour since arrival is such that he should expect to forfeit the privilege of remaining here.[146] This primary consideration weighs substantially against revocation.
OTHER CONSIDERATIONS
[146] Clauses 5.2(1)-(4) of the Direction.
Legal consequences of the decision
Clause 9.1 of the Direction states:
9.1 Legal consequences of decision under section 501 or 501CA
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
9.1.1 Non-citizens covered by a protection finding
(1) Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
(2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3) Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will Page 12 of 24 Direction No. 99 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
9.1.2 Non-citizens not covered by a protection finding
(1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3) Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
Section 5 of the Act defines ‘non-refoulement obligations’ non-exhaustively as including Australia’s obligations as a party to certain Conventions, Protocols and Covenants, and ‘any obligations accorded by customary international law…of a similar kind to those mentioned’ in those treaties. As held in Ibrahim v Minister for Home Affairs, non-refoulement obligations are ‘not confined to the protection obligations to which s 36(2) refers’.[147]
[147] Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 at 35 [103].
The Tribunal must give active intellectual consideration to the Applicant’s clearly articulated representations about risk of harm, regardless of characterisation.[148] This is in the context of ‘another reason’ for revocation, rather than the more comprehensive Protection Visa assessment process under s 36A of the Act.[149] The former requires the Tribunal to:
‘…bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate.’[150]
[148] YKSB v Minister for Home Affairs [2020] FCAFC 224, 5; Minister for Home Affairs v Omar (2019) 272 FCR 589, [34]–[44] (‘Omar’).
[149] The Direction, cl 9.1.2(2); Plaintiff M1, [39]; Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, [27]-[28]; Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28].
[150] Plaintiff M1 [9]; [24].
There is no dispute the receiving country pursuant to s 5(1) of the Act is Vietnam. In the ASFIC, no mention is made of this consideration. Instead, it states:
‘The only consideration of direct significance in relation to the other considerations is the obvious impediments faced by the applicant if he removed to Vietnam, having lived for so long in Australia, where he has a home and family.’
(Emphasis in original.)
No submissions were made during the hearing about this consideration, either by the Applicant or counsel on his behalf. In a statement prepared by his former solicitor, Mr Andy Pham, however, the following is stated:
Concerns about returning to Vietnam
I fear returning to Vietnam to live. I fear for my safety given the surging Covid-19.
If my wife and children follow me to Vietnam, I fear for the welfare of our children.
Vietnam is not a country like Australia where the laws is being upheld under many circumstances. Vietnam is not a country where human rights are respected.
The health care and the education system in Vietnam is badly riddled with highly corrupt officials. Vietnam is one of the most polluted countries.[151]
[151] Exhibit R1, 256. [60]-[63].
Even if no documentary or oral submissions are made about a primary or other consideration by an Applicant or their counsel, or it is expressly stated a consideration is not relevant nor advanced, this no longer seems to be the end of the matter. Justice Feutrill recently held in Brownlie,[152] that neither the absence of an express representation nor materials that disavow the relevance of a consideration, are determinative. In Brownlie, the Applicant stated he was born in Wales and materials before the Tribunal expressly stated he did not identify as an Aboriginal person. No claims about Aboriginality were advanced in the ASFIC nor oral submissions by the Applicant or his barrister during the hearing. His Honour noted at [80]:
‘There is no reference to indigenous heritage or identification as Aboriginal person. Indeed, under Citizenship Details ‘No’ is circled in hand writing in response to the question ‘Do you identify as Aboriginal or Torres Strait Islander? Similarly, in the applicant’s application in the Tribunal for review of a decision ‘No’ is written in a box under the question: ‘Are you of Aboriginal or Torres Strait Islander origin?’
[152] Brownlie vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 436 (‘Brownlie’).
His Honour held, however, that the Tribunal’s task extended to searching for a connection to Aboriginality that may be ‘unarticulated but manifest from the materials before the Tribunal’. Despite the ‘sparse’ evidence of such a connection, the Tribunal was required to identify the conflict between the Applicant’s express non-identification as Aboriginal in recent documents, and contrary references that could be inferred in other material. The Tribunal’s failure to do so was considered a failure to perform the review mandated by s 500(1)(ba) of the Act and ss 25 and 43 of the AAT Act.
During the hearing, neither the Applicant nor Mr Poynder advanced any fears the Applicant holds about repatriation to Vietnam. No evidence was led about the previous claims submitted by Mr Pham that the Applicant fears for his safety ‘given the surging Covid-19’ in Vietnam, or for the welfare of his children, or the basis for the claim that laws in Vietnam are not upheld and human rights are not respected. No evidence was advanced about why health care and the education system in Vietnam is riddled with ‘highly corrupt officials’, or about pollution in Vietnam, or why these things are relevant to the Applicant’s circumstances as someone who expresses no health concerns and whose children will not return to Vietnam. In the Applicant’s parents’ statement reference is made to the Applicant learning ‘to cope, toil with the adversity and a very low socio-economic upbringing during his teenage years’.[153] The Tribunal finds no evidence manifest in the materials before it or any inference in those materials that bears out the Applicant’s claims. On the contrary, the evidence suggests the Applicant experienced unremarkable formative years in Vietnam, was educated to Diploma level, and his sister became a pharmacist. His parents and sister have also been able to remain in Vietnam without any reported issues.
[153] Exhibit R1, 283.
The Applicant’s crimes resulted in visa cancellation, which rendered him an unlawful non-citizen within the meaning of s 14 of the Act. In the event of non-revocation, he would continue to be detained under s 189 of the Act until removed or granted a visa.[154] Because of the operation of s 501E of the Act, he would be prevented from applying for any visa other than a Protection Visa or a Bridging R (Class WR) Visa, pursuant to reg 2.12A of the Migration Regulations 1994 (Cth). There is no evidence his removal to Vietnam is not reasonably practicable, although how long this takes will depend on the irresoluble branches and sequels of future events. This includes the time it might take to consider another visa application the Applicant lodges, or for an appeal against an adverse decision to be heard, or consideration of a request for ministerial discretion,[155] or a request for voluntary removal. There is no reliable evidence, however, about what the Applicant might do in the event of an adverse decision. As noted earlier, no submissions were made about the legal consequences of a decision.
[154] The Act, s 196.
[155] For example, under s 195A or s 197AB of the Act. Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, 191 [16].
If the Applicant were to apply for a Protection Visa and have this rejected, he would be on a pathway to removal as soon as reasonably practicable.[156] It is unlikely he would subsequently be allowed to return to Australia absent an exercise of Ministerial discretion. If his non-refoulement claims were accepted, s 197C(3) of the Act provides that s 198 does not require or authorise removal of a person for whom a protection finding is made.
[156] The Act, s 198(2B).

Having identified some of the potentialities, the Tribunal is not required to engage in speculation or fact-finding about future events.[157] The reasoning in Ali v Minister for Immigration and Border Protection (“Ali”) is respectfully adopted:[158]
‘The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing...’
[157] BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199.
[158] [2018] FCA 650.
In DOB18 v Minister for Home Affairs,[159] Griffiths J reflected favourably on the reasoning in Ali and similarly cautioned against speculating about the course of future decision-making:
… In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making...
[159] [2018] FCA 1523, at [35].
Irrespective of decisions yet to be made or options that might emerge, non-revocation would be a significant, adverse outcome for the Applicant, Ms Nguyen, and their children. It gives rise to deprivation of his personal liberty until removal from a country he has lived in during the last decade, which may have adverse impacts.
To the extent the Applicant raises inferences or unarticulated submissions about the legal consequences of an adverse decision, the Tribunal is unpersuaded by these. Given the limited time available between the end of this hearing and the 84^th day pursuant to s 500(6L) of the Act, it is appropriate to defer consideration of any such claims to a more comprehensive Protection Visa assessment process under s 36A of the Act, should he intend lodging such an application. This would consider his protection claims prior to consideration being given to any character or security concerns.
In the context of ‘another reason’ for revocation, however, the Tribunal finds this consideration carries neutral weight.
Extent of impediments if removed
Clause 9.2 (1) of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)        The non-citizen’s age and health;

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

c)        Any social, medical and/or economic support available to them in that country.
The Applicant submits that the ‘only consideration of direct significance in relation to the other considerations is the obvious impediments’ he faces if ‘removed to Vietnam, having lived for so long in Australia, where he has a home and family’.[160]
[160] ASFIC, 27 [27].
The Applicant is 32 years old. As noted by Mr Watson-Munro, he suffers depressive symptoms and is understandably anxious about his future. The Applicant made no claims about diagnosed conditions or taking any medication.
There are no discernible language or cultural impediments to his repatriation, given that he spent the first 22 years of his life in Vietnam. The vocational courses he has completed in custodial settings can only have enhanced his employability.
The Tribunal has considered a five-page joint statement from the Applicant’s parents dated 31 March 2023,[161] and from his younger sister,[162] all three of whom live in Vietnam. Reference is made to them speaking regularly with the Applicant during his incarceration via telephone and videocalls. The evidence is suggestive of the Applicant being able to rely on some continuing support from his parents, a sibling, and possibly other relatives and friends if returned. He has undertaken Diploma-level studies in Vietnam and his parents previously funded his study aspirations in Australia. There is no evidence they would not continue to support him if returned. The Applicant has demonstrated resourcefulness in working for cash payments while living illegally in Australia for four years and has some employment skills to draw upon if returned. There is no evidence Ms Nguyen, who has previously returned for visits to Vietnam on multiple occasions, could not visit him with their children if she wishes.
[161] Exhibit R1, 281-285.
[162] Ibid 290-293.
The Tribunal accepts that after living in Australia for approximately a decade and following a relatively long period in custodial settings, there are some impediments to the Applicant re-establishing himself, but these are not significant or insurmountable. He is relatively young and could maintain basic living standards in the context of what is generally available to other Vietnamese citizens. To the extent that the Applicant’s claims extend to being able to make sufficient earnings in Vietnam to support Ms Nguyen and their children in Australia, the Tribunal notes Ms Nguyen has managed to support herself and the children during the last four years. She ran her own business prior to this. Moreover, the requirement under the Direction is to consider an applicant’s ability to establish themselves and maintain basic living standards ‘in the context of what is generally available to other citizens of that country,’ rather than by comparison with remuneration for work in Australia or whether they could support family members choosing to remain in Australia. There is also no evidence that if he needed it, the Applicant would be denied the same support available to other Vietnamese citizens who meet relevant prerequisites.
This consideration weighs no more than slightly in favour of revocation.
Impact on victims
Clause 9.3 (1) of the Direction states:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
This consideration is not enlivened and carries neutral weight.
Impact on Australian business interests
Clause 9.4 provides that a decision-maker must have regard to any impact on Australian business interests if the non-citizen is not allowed to remain in Australia. There is no evidence that Australian business interests, including the Applicant’s proposed café work if released, enlivens this consideration. It therefore carries neutral weight.
Additional considerations
No additional considerations were advanced by the parties and the Tribunal has not identified any ‘other considerations’ under the non-exhaustive list at cl 9(1) of the Direction.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to the specific circumstances of this case. The Tribunal sees no reason to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations than other considerations.
For most of the Applicant’s decade-long residence in Australia, he has either been living and working here illegally, or in custodial settings. He has unmet rehabilitative needs and the protective factors he relies upon to prevent further reoffending are comparable to those of the past. He constitutes a moderate risk of reoffending and the crimes he committed fall into a category where even a low risk of repeat is unacceptable. Having regard for his criminal and other conduct, including illicit drug taking and family violence against Ms Nguyen, the Australian community would expect he should not continue to hold a visa.
Given Ms Nguyen’s stated intention to remain in Australia with the children even if the Applicant is removed, the interests of their children weigh in favour of revocation.
Of the other considerations enlivened in this matter, the Applicant would only be confronted with slight impediments if returned to Vietnam. Of greater consequence is the strength of his ties to Ms Nguyen and their children. She is heavily reliant on the Applicant for emotional support and distressed about the potential that their children may grow up without a father. In the event of a non-revocation decision, her mental health issues are likely to persist and perhaps worsen, irrespective of whether she accompanies the Applicant to Vietnam or not.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the primary considerations Protection of the Australian community, Expectations of the Australian community, and Family violence committed by the non-citizen, considerably outweigh the weight given to the primary considerations Strength, nature and duration of ties to Australia, Best interests of minor children, and the other countervailing consideration.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding one hundred and paragraphs (150) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

................[sgd]........................................................
Associate
Dated: 12 July 2023

Date of hearing: 27, 28, and 29 June 2023

Advocate for the Applicant:
Mr Nicholas Poynder

Solicitors for the Applicant: Lena Hung and Associates

Advocate for the Respondent:

Solicitors for the Respondent:

Ms Jessica Xiao

Clayton Utz Lawyers

Date of hearing:	27, 28, and 29 June 2023
Advocate for the Applicant:	Mr Nicholas Poynder
Solicitors for the Applicant:	Lena Hung and Associates
Advocate for the Respondent: Solicitors for the Respondent:	Ms Jessica Xiao Clayton Utz Lawyers