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

[2021] AATA 4815

Tran and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4815 (24 December 2021)

Division:GENERAL DIVISION

File Number(s):      2021/7404

Re:Van Tran

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr Rob Reitano, Member

Date:24 December 2021

Place:Sydney

I set aside the delegate’s decision and, in its place, substitute a decision revoking the cancellation of Mr Tran’s Class BB Subclass 155 Five Year Resident Return visa.

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

Mr Rob Reitano, Member

CATCHWORDS

MIGRATION – mandatory cancellation of visa –  Class BB Subclass 155 Five Year Resident visa  –  where visa was cancelled under s 501 because applicant did not pass the character test – substantial criminal record  –  whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – Ministerial Direction No. 90 – primary considerations  –  protection of the Australian community  –  seriousness of offending and future risk  –  best interests of minor children in Australia  –  expectations of the Australian community –  other considerations  –  extent of impediments if removed  –  strength, nature and duration of ties to Australia –  reviewable decision set aside and substituted

LEGISLATION

Drugs, Poisons and Controlled Substances Act 1981 (Vic): s 72A

Migration Act 1958 (Cth): s 499, 501, 501CA

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225

SECONDARY MATERIALS

Migration Act 1958 -– Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Made 8 March 2021/ commenced 15 April 2021)

Migration Regulations 1994 (Cth)

REASONS FOR DECISION

Mr Rob Reitano, Member

24 December 2021

1. On 25 December 2011, Van Thuan Tran (Mr Tran), who was a citizen of the Socialist Republic of Vietnam (Vietnam) and then 34 years of age, arrived in Australia. He has lived in Australia since then. He did so most recently as the holder of a Class BB Subclass 155 Five Year Resident Return visa (visa), which was granted to him on 23 April 2018.

2. On 24 December 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) was satisfied that Mr Tran had failed ‘the character test’ in the Migration Act 1958 (Cth) (Act) because Mr Tran had been sentenced to a term of three years imprisonment on 27 November 2020. Also on that day, Mr Tran was serving that sentence full-time at the Middleton Unit of Loddon Prison in Victoria. Because of both of those things, the Minister was required by s.501(3A) of the Act to make a decision to cancel Mr Tran’s visa.

3. At the time that Mr Tran was told about the decision to cancel the visa, the Minister invited Mr Tran to make representations about why the Minister should revoke that decision, as he was also required to do by s.501CA(3)(b) of the Act.

4. On 5 January 2021, Mr Tran accepted that invitation and made representations to the Minister about revoking the decision cancelling his visa, within the time and in the manner prescribed by the Migration Regulations 1994 (Cth). On 11 January 2021, Mr Tran provided further representations about why the decision cancelling his visa should be revoked.

5. On 11 October 2021, a delegate of the Minister, after having considered the representations, decided that the decision cancelling the visa should not be revoked.

6. On 12 October 2021, Mr Tran filed an application by which he sought to have the Tribunal review the delegate’s decision, with the objective of having the delegate’s decision set aside and replaced with a decision revoking the cancellation of the visa.

7. I have decided that the delegate’s decision should be set aside and, in its place, there should be a decision revoking the cancellation of the visa. I set out my reasons for that decision.

   THE ISSUES

8. The power to revoke the decision cancelling the visa in s.501CA(4) of the Act is available if Mr Tran made representations in accordance with the Minister’s invitation to do so, and if Mr Tran satisfies the Tribunal either that he passes the character test in s.501 of the Act, or that there is another reason why the decision cancelling the visa should be revoked.

9. I am satisfied that Mr Tran made representations in accordance with the Minister’s invitation. I am also satisfied that Mr Tran fails the character test in s.501 of the Act because he has a ‘substantial criminal record’ as a result of his sentence to three years imprisonment, and that is one basis upon which a person fails the character test in s.501 of the Act.

10. It follows that the only basis upon which the decision cancelling the visa can be revoked, and the issue in this review, is whether there is another reason why the decision cancelling the visa should be revoked.

    IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION OF THE VISA?

11. The Tribunal must consider whether it is satisfied that ‘there is another reason why the original decision [the decision to cancel the visa] should be revoked’. The issue requires identification of a rational or reasoned basis, or justification, for undoing the visa cancellation.

12. The Minister has issued Direction 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction).

13. The Tribunal is required by s.499(2A) of the Act to comply with the Direction in performing its functions and exercising its powers. Adjudicating upon whether or not a decision cancelling a visa should be revoked is one of the Tribunal’s functions and involves the exercise of the Tribunal’s powers.

14. The Direction contains principles which provide a framework to decide whether a decision to revoke a cancellation of a visa should be made, and ‘considerations’ that a decision-maker must address and consider, where they are relevant. The principles inform the matters to be considered by the decision-maker. It is not necessary to set out the principles, but I will refer to them where necessary.

15. The Direction has two categories of matters the Tribunal is required to consider: ‘primary considerations’ and ‘other considerations.’ The ‘primary considerations’ are:

    ·the protection of the Australian community from criminal or other serious conduct;

    ·whether the conduct engaged in constituted family violence;

    ·the best interests of minor children in Australia; and

    ·the expectations of the Australian community.

16. The ‘other considerations’ include:

    ·international non-refoulement obligations;

    ·the extent of impediments if a non-citizen is removed from Australia;

    ·the impact on victims;

    ·links to the Australian community including the strength, nature and duration of ties to Australia; and impact on Australian business interests.

17. The class of ‘other considerations’ is not closed so that other things may be considered as ‘other considerations’ in particular cases.

18. It is convenient to note that neither party suggested that conduct constituting family violence, international non-refoulement obligations, or the impact on victims, were relevant considerations in this review. I am satisfied, having considered them, that these considerations are not relevant.

19. The Direction says that, ‘primary considerations should generally be given greater weight than the other considerations.’ The use of the word ‘generally’ contemplates that there may be circumstances where an ‘other consideration’ may outweigh a ‘primary consideration’. That question is left to the Tribunal in evaluating the circumstances.

20. The Direction requires the decision-maker to take into account the matters referred to in the Direction as ‘considerations’ where they are relevant to the decision and, in doing so, lays down specific aspects of the matters that must be taken into account.

21. The obligation to take matters into account carries recognition of the fact that there must be ‘real consideration of the circumstances of the people affected … confronting what is being done to people.’[1]  The need to give actual consideration to matters is important because the nature of the decision is dealing with something that has grave consequences: the potential exclusion of someone from Australia. The far-reaching ramifications, to both the individual visa holder and the community, of such a decision inform the need to consider matters earnestly, carefully, and deliberatively.

    [1] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].

22. I will consider the matters that are relevant to each of the relevant ‘primary’ and ‘other considerations’ in turn and in doing so, will deal with the facts that are relevant to each of them.

    PROTECTION OF THE AUSTRALIAN COMMUNITY

23. The Direction requires that I ‘keep in mind that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens’. I am required to have regard to the fact that remaining in Australia is a privilege that confers the expectation that non-citizens will obey and respect Australian laws and institutions and will not bring harm to the community.

24. There are two particular aspects to this consideration: the nature and seriousness of the conduct of an applicant, and the risk the community faces should that applicant commit further offences or engage in other serious conduct. I will consider each separately although recognising, as the Direction does, that they are both part of the same consideration.

    The nature and seriousness of the conduct

25. The nature and seriousness of the conduct in this case is confined to one criminal offence that Mr Tran committed on 7 May 2020. There is no other criminal conduct that has been identified, and there is no other ‘serious conduct’ that has been referred to. It is necessary to consider the nature and seriousness of Mr Tran’s criminal offence, but before doing so, it is necessary to put it in context.

26. In late March 2020, Mr Tran flew to Vietnam for his nephew’s wedding. In order to fly to Vietnam, Mr Tran needed to borrow some money to pay for his travel. He borrowed some money from lenders in the market near the fish shop, where he was working at the time. He was required to repay the loan with interest, within a period of two months. Mr Tran was then living in Melbourne, as he had gone there to secure work and send money to his family who had remained in New South Wales.

27. The actual circumstances of the offence are reasonably straightforward. Sometime in mid or late April 2020, Mr Tran met a man who he had not met before, in a coffee shop. They had a brief conversation in which Mr Tran was offered a ‘job’, this was after Mr Tran told the man that he was working in a fish shop but was looking for additional work.  He was offered $5000 to ‘look after [a] house’, as he understood as something like a janitor, or by simply staying there. The house turned out to be a cannabis cultivation facility, but nothing was mentioned of that in the conversation with the man in the coffee shop. Mr Tran was told the money would be paid to him upon completion of the job. Mr Tran was told to look after the house and to not deal with anyone who was coming to the house.

28. When Mr Tran was at the house, he said he did not know that there was cannabis there. I doubt that was correct, having regard to the observations of the police officers that they were able to smell cannabis when at the door and the photos that were taken at the time which showed cannabis growing in several rooms of the house. The Sentencing Judge described Mr Tran as what is known as a crop sitter. I should observe that in the plea there was some suggestion that Mr Tran was not the ‘usual kind of crop sitter’, as he was not there to tend the plants. His job, it seems, was to protect the property, but he says he did not know what was going on in the house and did not get involved at all.

29. The detection of the offence arose from the execution of a search warrant at the house in Ringwood, in suburban Melbourne, on 7 May 2020. The police smelt what was growing in the house on arrival and saw advanced crops growing in two rooms. The house was described by the Sentencing Judge as a ‘sophisticated grow house’. It comprised of five rooms that operated as a cannabis cultivation facility, with various kinds of apparatus relevant to that undertaking, and cannabis growing in the house. After the police entered the house, Mr Tran willingly submitted to the police and shortly afterwards was arrested and charged. 

30. On 27 November 2020, Mr Tran was convicted of the offence of cultivating a commercial quantity of cannabis, which was an offence under s.72A of the Drugs Poisons and Controlled Substances Act 1981 (Vic).The offence carried a maximum penalty of 25 years imprisonment. The quantity of cannabis involved was 85kgs and 106 plants. The weight prescription was a little over three times the minimum weight of 25kgs. That constitutes a commercial quantity. The number of plants was a little more than the number of plants that that constitutes a commercial quantity, which is 100 plants.

31. The Sentencing Judge accepted that Mr Tran was not a principal in the enterprise, that he co-operated with police, and that he had pleaded guilty at an early stage, which reflected remorse. Also relevant was the fact that Mr Tran had no prior convictions. The Sentencing Judge considered that even though Mr Tran was at a low level in the chain involved in the cultivation undertaking, his offending was nonetheless serious. That was because of the seriousness of the crime itself which, in turn, was reflected in the imposition of a three-year term of imprisonment. A term of imprisonment is something that reflects the objective seriousness of an offence and a three year term of imprisonment is a long time, which itself confirms that the offence was a serious one. I am satisfied that the offence was a serious one.

    Risk to the Australian community and individuals of re-offending

32. Next, it is necessary to consider the nature of the harm to individuals or the Australian community should Mr Tran reoffend.

33. It may be accepted that the cultivation of drugs of addiction is a precursor to their trafficking and circulation within the community, and all of the individual and other social consequences that follow. The prevalence and availability of illegal drugs of addiction and the human consequences for participants in the consumption of them, are well known and well documented. The personal and the social ramifications for members of the community, not simply just those participating in their use, are also well known and well documented.

34. The effects of illegal drug use often has serious, even catastrophic consequences on participants. But the effects of such are not confined to users, rather their families and friends are very often the other victims who are left to deal with the aftermath. Then too, are the others, who are more often not, the innocent victims of crimes associated with drug use which often involves personal violence, death, or serious injury. Then there is the cost more generally attributed to the community, in efforts to prevent, deal with the consequences, and alleviate the whole problem. Of course any contribution to the wider social problem by any repeat offending by Mr Tran is likely to be fairly insignificant given the magnitude of the problem, nonetheless any repetition of the offending by him simply adds to that problem. In any event, the consequences of repetition of the offences, to both individuals and members of the community, if that happened, are on any view, likely to be serious.  

35. Finally, so far as this consideration is concerned, I must consider the likelihood of Mr Tran’s reoffending. This requires me to take into account information and evidence about the risk of reoffending, and any evidence of rehabilitation achieved by the time of this decision.  

36. This is a complex issue which is often directed to explaining matters of general impression, gained from seeing and hearing an applicant answer questions, and provide evidence to the Tribunal. Having seen and heard Mr Tran give evidence, I gained the impression that whilst he took something of a defensive position in respect of his answers, he was genuine in his remorse and his statements that he would not reoffend. The observations I make below should be considered against that backdrop.

37. The task of assessing the likelihood of reoffending is more difficult in this case because there is no expert opinion, such as pre-sentence reports provided at the time of sentencing or later, or psychologists reports that have later been prepared and provided to the Minister or the Tribunal. Further, the Sentencing Judge did not make any observations about the prospects of repeat offending.

38. I will deal with the matters that I consider to be important in providing some guidance to the prospect of Mr Tran involving himself in criminal offending again.

39. First, Mr Tran is a late visitor to the criminal justice system, being about 42 years of age when he committed his first (and only) criminal offence. In general, late starters in criminal conduct are less likely to reoffend. He is a first time offender and again, there are a class of criminal offenders who offend only once, and having learnt their lesson, do not reoffend. There is some prospect that Mr Tran will be in that class.

40. Second, Mr Tran’s early plea of guilty to the offence, and the admissions he made to the police almost immediately after he was apprehended, demonstrate contrition, remorse and an acceptance of responsibility on his part. He has repeated his statements of remorse and contrition. I consider that they are genuine despite the fact that in his evidence he appeared to downplay his role in the offending and, in particular, his knowledge about the fact that there was cannabis growing in the house. Although that might be explained in the context that he was giving evidence in the face of the spectre of being excluded from Australia, and may have thought that making his offending less knowing might be able to help him, it does somewhat count against him so far as assessing risk of reoffending is concerned. This aspect suggests that there is a risk of reoffending because full responsibility and full admissions are not present. 

41. Third, by the time he is released, Mr Tran will have spent at least two, but perhaps three years in custody. That sentence had the objective of deterring him from reoffending. It should not be presumed that one of the very objectives of criminal sentencing will have no effect on Mr Tran. Additionally, because he is not an Australian citizen, he has, as I have already mentioned, had the very real spectre of being excluded from Australia staring him squarely in the face, by the delegate’s decision in cancelling his visa and the subsequent refusal by the Minister to revoke that decision and by the Tribunal’s consideration in his application for a review of those decisions. His emotional response while answering questions suggested that he is genuinely affected by the possibility of exclusion from Australia. Having been taken to the precipice, it is likely that Mr Tran has been powerfully deterred from going anywhere near it again.

42. Fourth, is the context in which Mr Tran will be released into the community, namely, to reunite with his wife and children after a significant period in prison. That is a strong factor, especially given the closeness of the family, in that it is likely to provide a supportive environment that will weigh against reoffending. His sister has expressed her desire to support him, as has her husband, who has offered Mr Tran employment upon his release from prison. These are strong factors that suggest that Mr Tran will have a network of support from others, who in the knowledge of his past offences, will most probably provide some protection against repeat offending.

1. Fifth, the cause of, or the motive for the offending, which was financial hardship, is different in nature to what is often the cause for repeat offending, which is namely alcohol abuse or drugs of addiction. The latter things generally prove to be more difficult for offenders to overcome.

2. Sixth, it was suggested that the financial predicament of the family prior to imprisonment, which was one that involved financial hardship, and the predicament now, which involves a not so similar circumstance, gives rise to the risk of reoffending. That suggestion may be so, but it must be considered against all of the other matters to which I have referred to that strongly point against repeat offending. The fact that he has been promised a job by his brother-in-law will probably ameliorate, to some extent, that hardship.

3. Seventh, it was suggested that Mr Tran had not undertaken any rehabilitation whilst in prison. Apart from the fact that it is difficult to understand what kind of specific rehabilitation would have helped Mr Tran, there is no evidence that I have that would suggest any rehabilitation of a particular kind being available to Mr Tran whilst he has been in prison. To the extent that his time in prison might reflect rehabilitation, his apparent good conduct and work commitment whilst in prison, points in favour of incarceration itself having had some rehabilitative effect although contextually it is difficult to weigh that against the fact that until his offending he had not engaged in other criminal conduct in any event.

4. In all the circumstances, in evaluating these matters, I do not consider that there is a high likelihood of Mr Tran reoffending. I consider that the risk of reoffending is very much towards the low end of possibilities. Of course, having offended once, there is a real risk that he will do so again, but in my assessment the probability is not at all high.

5. Although Mr Tran’s offence was a serious one and there are likely to be serious consequences for the Australian community should he reoffend, I think the risk of him reoffending is not great. I do not consider protection of the Australian community to be a matter that should be awarded significant weight in determining whether there is another reason to revoke the decision cancelling the visa. It weighs moderately against revocation.

   BEST INTERESTS OF MINOR CHILDREN

6. Next, I am required to consider the best interests of children who may be affected by the decision to either revoke or not revoke the cancellation of the visa. The Direction provides that I consider the best interests of children under the age of 18 years when I make my decision. I must only consider the interests of any such children individually, to the extent that their interests may differ.

7. There are two particular minor children that are relevant to this consideration, who are Tuan Hung Ngo, who is now 16 years of age, and Minh Trang Ngo, who is 14 years of age. Both children came into Mr Tran’s life in December 2014, when he met his now wife Thi Mo Vu, and when they were nine and seven years of age respectively. At least since he married his current wife in September 2015, Mr Tran has occupied the position of a father figure in respect of both children, although most relevantly, he was in that position since the children and their mother permanently moved to Australia from Vietnam, in early 2017.  Their mother is, like them, a permanent resident of Australia.

8. Both children regard Mr Tran as their father, and he regards them as his children. Since they arrived in Australia, until his imprisonment, Mr Tran regularly cared for the children, especially when his wife went to work, and as a result, he has developed a strong paternal relationship with them. The evidence suggests that there is strong emotional relationship between Mr Tran and children, in both cases. I need to add that I do not consider it relevant, at all, that Mr Tran is not their biological father. It is obvious that both children want their father to remain in Australia and want to remain in an environment where their father is in their lives daily. Mr Tran said in his evidence, that he loved the children ‘more than myself’. I believe him. I consider that Mr Tran will be a positive influence in their lives, especially given the view I have expressed about the likelihood of him reoffending.

9. Mr Tran’s wife gave evidence that if Mr Tran was to be returned to Australia, she would too return to Vietnam with him and the children. That would mean if the visa were cancelled the children would still have the benefits of their father’s care and presence in their life upon the family’s return to Vietnam. I am not entirely satisfied that when push comes to shove, that would come to pass, but if it did, I do not consider that would be in either child’s best interests. I say this because Mr Tran’s wife obviously will be faced with a very real and likely difficult decision at that point about whether remaining in Australia is the best interests of the children given what they have endured in moving here in the first place.

10. The children, since coming to Australia, have needed to adjust to life in a new country. Both children have had to deal with all that comes with the need to assimilate and have become part of a new place with a culture, language, and way of life that is different to what they were accustomed to. Tuan Hung Ngo is in his final year of high school. He has many friends at school and, by all accounts, has fit in well at school, and is looking to further education in engineering or business. Minh Trang Ngo is in year 8 at high school, and after having some difficulties adjusting to life in Australia, has become more adjusted and settled into life in her new home. If returned to Vietnam, the children will undoubtedly, in the space of four or by then perhaps five years, be required to again adjust to life in Vietnam. It would not be in their best interests for them to be put through the mill of social relocation again given what they, and in particular Minh Trang Ngo, went through in adjusting to life in Australia, and given what they have gone though as result of their father’s incarceration. I do not consider that to be in their best interests for them to lift up their lives and return again to Vietnam, especially because they are minor children.

11. The view of the children’s mother about whether it would be better for them to remain in Australia or to return to Vietnam, was candidly expressed as favouring remaining in Australia because of the culture, and nature of Australian society. I give her evidence weight because, as their mother, she was ideally placed both as someone who has lived in Vietnam and Australia and, of course, as someone who is, after all, their mother. This view was, to some extent, corroborated by Mr Tran’s general view about life in Vietnam.

12. The best interests of the children would be served by them remaining in Australia and doing so with their father firmly placed in their lives.

13. In my assessment this consideration weighs strongly in favour of revocation of the decision cancelling the visa.

    EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

14. I must give weight to the expectations of the Australian community, which are the expectations that people who are allowed to live and be in Australia will obey Australian laws and that where someone who has been permitted to stay in Australia:

    …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.

15. In some cases, this will mean that not revoking the cancellation is:

    …appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the non-citizen should not … continue to hold a visa.

16. I must decide what weight is to be given to the community’s expectation of not revoking a decision to cancel a visa ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[2] This involves an evaluation about how strong this factor is in the particular circumstances of the case. I am not required to determine the community’s expectation as the normative position is established by the Direction itself. This factor weighs against revocation: the issue is what weight should it be given?

    [2] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [77] (per Charlesworth J).

17. The nature of the criminal offending, as I have observed, is serious and so the community would expect that the decision cancelling the visa would not be revoked. The Australian community may be more tolerant of Mr Tran’s circumstances because he is unlikely to reoffend and, also, perhaps because he readily owned up to his wrongdoing when he was confronted with it. His reason for offending and the financial hardship that confronted him and his family are also factors that are relevant to the fact that the community would be a little more tolerant towards Mr Tran. Further, I do not consider the kind of offence as being one where the community would not be prepared to accept any risk at all of its repetition.

18. I am satisfied that the expectations of the Australian community weigh against revocation because the offending is so serious. However, the matters that I have referred to, and in particular the low likelihood of repeated offending, means that I will give this factor only moderate weight against revoking the decision cancelling the visa.  

    EXTENT OF IMPEDIMENTS IF REMOVED

19. I am required to consider the extent of any impediments that confront Mr Tran in establishing and maintaining a basic living standard for himself in his home country. The basic living       standard referred to is that which is available to other citizens of that country. I am required to consider an applicant’s age, health, language and cultural barriers, and any social, medical, and economic support that may be available.

20. Mr Tran lived in Vietnam until he came to Australia on Christmas Day in 2011. He has returned to Vietnam a few times since then for short periods. It is fair to say he is well familiar with life in Vietnam and the culture of Vietnam. He speaks Vietnamese. He has some family in Vietnam, in particular a brother and two sisters, although one of his sisters is quite ill. He is estranged from his other sister who resides in Vietnam. He has not spoken to his brother since 2018, as a result of a family argument. He has a nephew in Vietnam, who he is close enough to, to have gone to the expense of travelling to Vietnam for his wedding in early 2020.

21. Mr Tran is middle aged and has some health difficulties associated with surgery he had in 2016, concerning a pituitary tumour. The evidence about ‘on-going treatment’ suggested only that the condition needed to be monitored, perhaps annually. There was no evidence to say that that could not occur in Vietnam. I do not know, one way or the other, what medical treatment might be available to Mr Tran in Vietnam and should not speculate about it. Mr Tran has previously been employed in Australia as a machine operator. There is no sound reason to presume that he would not be able to obtain employment in Vietnam.

22. It is relevant that if Mr Tran returned to Vietnam, and if his wife then decided to move back to Vietnam with the children, then it is likely that settling back into life in Vietnam would not be as hard as it might otherwise be with a very limited family network 

23. Nonetheless, returning to Vietnam after a decade away is likely to cause some problems for Mr Tran in re-establishing himself, especially given what seems to be a limited social network that is available to him in Vietnam.

24. This consideration weighs slightly in favour of revocation of the cancellation of the visa.

    TIES TO THE AUSTRALIAN COMMUNITY

25. I am required to consider Mr Tran’s links to the Australian community. There are two things that need to be addressed: the strength, nature and duration of ties in Australia, and the impact on Australian business interests. There is nothing that suggests that Australian business interests are relevant, so I do not consider it further.

26. I must consider how long Mr Tran has lived in Australia but by giving it ‘less weight’ where the offending started ‘soon after’ arrival in Australia and ‘more weight’ where ‘time… has [been] spent contributing positively to the Australian community’. I must also consider the strength, duration, and nature of familial and social links with Australian citizens, permanent residents, and others entitled to remain in Australia indefinitely.

27. Mr Tran has been in Australia for about ten years. He will have spent at least two years in prison if he is released from prison at the end of his non parole period in June next year. His offence was committed about eight years after he arrived in Australia, so it was not ‘soon after’ his arrival. That counts for something.

28. Mr Tran worked as a machine operator for three years, between the years of 2012 and 2015. He has been unable to work since late 2015, which was when his medical condition was diagnosed but he was the main provider of domestic services and care for his children up until he left for Melbourne in mid-2019. He has made something of a contribution to the community since late 2015, through the care of his wife and children.

29. Mr Tran’s wife and two children are permanent residents of Australia. They have decided, at least in the past and for now, to make their life in Australia. He also has a sister in Australia, who is obviously very close to him, who is an Australian citizen. She gave evidence about her love and affection for her brother. Her evidence commenced with the words “I love him, I love him so much”. His ties to his sister are obviously strong. He has another sister and a brother in Australia, both of whom he is estranged from. His brother is an Australian citizen. Mr Tran has five nieces and nephews in Australia, although not much evidence was given about them and whether they are Australian citizens or permanent residents, so I do not place any weight on Mr Tran’s ties to them.

30. So far as other ties to the community more widely are concerned, there was no evidence provided about any such ties. This might be explained by the evidence that Mr Tran gave about the effects of the period after his operation and a period of unemployment, where he felt isolated from his work colleagues. The absence of information about such ties means I cannot take them into account.

31. I am satisfied that this consideration weighs moderately in favour of revocation of the decision cancelling the visa.

    THE VISA CANCELLATION DECISION SHOULD BE REVOKED

32. I have found that the protection of the Australian community weighs in favour of non-revocation of the visa cancellation. I consider the fact that the offence was serious, and that the consequences of Mr Tran’s reoffending, should he reoffend, would be serious and would threaten the welfare of people in the community, and the community more widely. I consider the prospect of Mr Tran reoffending to be low, for the many reasons I have set out but in particular because Mr Tran has committed only one offence, late in life, and for which he has shown real remorse, and the significant deterrent effect of imprisonment and the potential of his exclusion from Australia. I have also found that the expectations of the Australian community weigh against revocation, albeit only moderately so. I consider the best interests of minor children weighs strongly in favour of revocation. The ‘primary considerations’ weight, taken together, are fairly evenly balanced so as far as the issue is concerned.

33. So far as the ‘other considerations’ are concerned, I have found that the impediments to Mr Tran’s return to Vietnam weigh only slightly in favour of revocation, and that Mr Tran’s ties to the community, in particular his familial relationship with his wife, children, sister and brother-in-law weigh moderately in favour of revocation. Therefore, the ‘other considerations’ weigh in favour of revocation of the decision cancelling the visa.

34. I have also found that offences of family violence, Australia’s non-refoulement obligations, and the impact on victims are not relevant considerations and do not weigh, one way or another, so far as revocation is concerned.

35. The ‘primary considerations’ are squarely balanced and the ‘other considerations’ both favour revocation. I am satisfied that there is another reason to revoke the decision cancelling the visa.

    DECISION

36. I set aside the delegate’s decision and, in its place, substitute a decision revoking the cancellation of Mr Tran’s Class BB Subclass 155 Five Year Resident Return visa.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Rob Reitano, Member

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

Associate

Dated: 24 December 2021

Date of hearing:	15 December 2021
Advocate for the Applicant:	Mr Q S Do, Endless ILA
Solicitors for the Respondent:	Ms K Gawidziel, Australian Government Solicitor