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

Tran and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4052 (3 November 2021)
Division:GENERAL DIVISION
File Number: 2021/5846
Re:Vo Duy Khanh Tran
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member J Rau SC
Date:3 November 2021
Place:Adelaide

The decision under review is set aside and substituted with a decision that the cancellation of the Applicant’s Visa be revoked.
...........................[Sgnd]...............................
Senior Member J Rau SC
CATCHWORDS
MIGRATION – mandatory cancellation of Class AS Subclass 801 Spouse visa under section 501CA(4) - where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – repeat driving offences – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
Applicant A v Minister for Immigration (1997) 190 CLR 225
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Citizenship v SZNWC [2010] FCAFC 157
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member J Rau SC
3 November 2021
INTRODUCTION AND BACKGROUND

Vo Duy Khanh Tran (the Applicant) seeks a review of the decision by a delegate of the Minister for Home Affairs (the Respondent) made under section 501CA(4) of the Migration Act 1958 (Cth) (the Act) on 18 August 2021 not to revoke the mandatory cancellation of his Class AS Subclass 801 Spouse visa (the Visa).
The hearing was held on 18 October 2021 and 19 October 2021. Leonard Karp of Chalfont Chambers appeared on behalf of the Applicant along with Ms Janice Vu of Janice Vu and Associates Pty Ltd, and Ada Wong of Mills Oakley Lawyers appeared on behalf of the Respondent. The Applicant appeared by video link via Microsoft Teams from Villawood Detention Centre. The Applicant and Respondent’s advocates both appeared by video link via Microsoft Teams.
The Applicant called his mother, Ms Vo, his former partner, Ms Dinh, and Mr Watson-Munro, a consultant psychologist, as witnesses.
The Applicant was born in Saigon, Vietnam and is 38 years of age. He is a Vietnamese citizen.
The Applicant came to Australia in May 1999, when he was about 15 years of age to join his mother, Ms Vo. Ms Vo came to Australia in 1997 for surgery. She subsequently formed a relationship with a Mr Goebel. He is an Australian citizen whom she had met in Vietnam. They married in 1999. They separated in 2008, but still reside in the same property with Ms Vo paying rent as a tenant, for a single room. The Applicant is Ms Vo’s only son, although she does also have a daughter, who is the Applicant’s half-sister. She lives in Vietnam. Ms Vo is an Australian citizen.
The Applicant attended school in Australia, however, he struggled due to his lack of English language skills and bullying. He completed years 10 and 11 at Greystanes High School. He left school partway through year 12.
The Applicant had a poor relationship with Mr Goebel. About 18 months after the Applicant came to Australia, Mr Goebel kicked him out of the family home. He was 18 years of age at this time. He entered an itinerant period. He slept rough in a park and then stayed with friends. He dropped out of school because it was too far for him to travel. He worked part time in a takeaway shop for about 6 months.
On 26 March 2002, the Applicant was charged with entering premises without lawful excuse.[1]
[1] Exhibit 4, G2, p 38.
In 2002 the Applicant returned to Vietnam for about 11 months, staying with his half-sister. He returned to Australia in January 2003 because “he missed his mother and said that he could not hide in Vietnam forever.”[2]
[2] Ibid, p 61.
At around this time in early 2003, the Applicant became associated with a Mr Lam. Mr Lam was involved in the commercial supply of prohibited drugs. It was through the Applicant’s association with Mr Lam that the Applicant came to the attention of police for drug trafficking offences.
According to a New South Wales police fact sheet dated 11 July 2003:
“On 12 June, 2003 an “undercover operative made arrangements to meet the co-accused Lam in the Burwood area to purchase 14 g of heroin. About 4 PM the accused Tran, co-accused Lam and an unknown female met the undercover operative in Green Street Café, Burwood. The accused Tran drove to this meeting in a Mitsubishi FTO, registration why see why – 964. The accused Tran in the co-accused Lam supplied the undercover operative with heroin, weighing 13.8 g which the operative paid $3500.”[3]
[3] Exhibit 9, R2, p 6.
On 28 June 2003, the police stopped and searched the Applicant’s car. He was charged with having an amount of $1407.50 cash “which may be reasonably suspected of being stolen or otherwise unlawfully obtained”[4] at the time the Applicant “denied that the money found in his position was from drug sales and stated that his mother had given him the money to buy a car”.
[4] Ibid, R3, p 14-17.
The fact sheet dated 11 July 2003 goes on to describe a further offence in the following terms:
“On 8th and 9th July, 2003 numerous conversations between undercover operative, the accused TRAN and the co-accused LAM were made in relation to the supply of half an ounce of heroin for $3500. Arrangements between undercover operative and the accused TRAN were made to meet at the Green Street Café, Burwood.
About 10.20pm on 10th July, 2003 the accused TRAN drove a Mitsubishi FTO, registration YCY-964 to Park Street, Burwood. TRAN was with the co-accused LAM and the young person…. TRAN walked a short distance from the vehicle and maintained a watch, whilst the co-accused LAM supplied the undercover operative for that amount of heroin, weighing approximately 14 grams, of which the operative paid $3500.”[5]
[5] Ibid, R2, p 6.
He was arrested on 10 July 2003 and bail was refused. A probation and parole service pre- sentencing report dated 16 December 2003, reports that:
“Mr Tran appears to acknowledge the severity of his current situation but denies any intention of supplying the drugs for financial gain.”[6]
[6] Ibid, p 9.
On 3 May 2004, the Applicant pleaded guilty in the Campbelltown District Court:
“…to a charge on an indictment that he did on 10 July 2003 at Burwood in the State of New South Wales, knowingly take part in the supply of a prohibited drug, namely, heroin. That is a charge under section 25 of the Drug Misuse and Trafficking Act 1985 and carries a maximum penalty of fifteen years imprisonment or two thousand penalty units fine or both.”[7]
[7] Exhibit 4, G2, p 52.
A probation and parole service presentence report dated 24 June 2004, reports the following:
“Mr Tran stated that he had used alcohol and ecstasy on a social basis at parties and outings to clubs but was adamant that he had no drug addiction and had never been dependent on any substance. He also stated that he had no prior involvement with heroin. He made the claim that his conviction for drug supply in December 2003 was a “deemed supply” matter and related to a quantity of ecstasy tables [sic] he had acquired for his own use. On 1 May 2004 he was found to be in possession of a non prescribed drug, a sleeping tablet, for which he received a correctional centre punishment of restrictions on his visits.
When discussing the current offences Mr Tran was straightforward in admitting his role. He said that he had met his co-offender Lam at a Cabramatta club approximately 5 months earlier and they used to socialise together.
He said that he had become involved because Lam does not drive and that he had taken part in the offence to assist his friend with no expectation of any financial gain, expecting at most to be given a meal or some drinks for his trouble.”[8]
[8] Ibid, p 12.
In his sentencing remarks of 24 June 2004, Judge Marien SC said:
“… as part of the sentencing exercise it is necessary for me, at the outset, to identify where in the range of objective seriousness this offence falls. That must be carried out in every sentencing exercise. I am satisfied on the facts that the Offender’s involvement in this, that is his involvement being that he was knowingly concerned in the supply, commenced no earlier than 9 July 2003. I am also satisfied that the role played by the Offender in the supply, that is he was knowingly concerned in the supply in that he provided transport to Mr Lam to allow Mr Lam to effect the supply to the undercover officer. I further find that there is no evidence that the Offender was aware of the quantity of drug to be supplied, but that is really a neutral matter because a the courts have consistently said, for those who allow themselves to become involved in the supply of prohibited drugs, they therefore display a recklessness which can result in large quantities of drugs being supplied even when they may not know the precise quantity that is being supplied.
……
…the Offender said that he became involved with Lam firstly because Lam did not drive and he said that he had taken part in the offence to assist his friend with no expectation of any financial gain, expecting, at most, to be given a meal or some drinks for his trouble.
……
I must say that given that that explanation that he was to receive no financial advantage whatsoever, being as it is contained only in reports which have been tendered towards me and in circumstances where the Offender has not given evidence before me and been cross-examined by the Crown, that I do not place a great deal of weight in his assertion that he was to receive absolutely no financial benefit from his involvement in the supply of drugs. It is clear from the telephone calls that he was aware that this deal in prohibited drugs was to take place and he was clearly providing assistance. It seems to me to be beyond the realms of credulity to suggest that someone would become involved in so serious a matter to be able to have a meal and a drink. Having said that, and taking into account that the Offender was clearly not the principal in the supply, and that his involvement in the supply was only to the extent of providing transport to Mr Law, that it would be appropriate and it is appropriate to characterise the objective seriousness of this matter as at the lower end of objective seriousness for these kind of offences.
Whilst I take into account that the quantity of prohibited drug involved is not insubstantial, it seems to me that to take into account the actual role he took in the supply and the period of time over which he was aware that the offence was to take place, that that objective seriousness should be at the lower end… that nothing short of a full time custodial sentence can be imposed in this case. There is nothing exceptional in my view, to take it out of the kind of case which the Court of Criminal Appeal has said that with respect to offences of supply of prohibited drugs, it would only be in exceptional circumstances that a full time custodial sentence would not be imposed. As I say I find no such exceptional circumstances in this case.
Further, the objective seriousness of this matter is aggravated seriously by the fact that he committed this offence whilst on bail.
…that bail, he reoffended with respect to the matter which is now before the Court. That can only be regarded as a matter of the most serious aggravating kind to exhibit nothing really but contempt for the judicial system, that to be granted bail and within two weeks to be reoffending with respect to the same kind of offence for which he had been granted bail. Clearly nothing less than a full time custodial sentence can be imposed in this case.[9]
[9] Ibid, pp 56-65.
The Applicant was sentenced to two years imprisonment commencing on 8 April 2004 with a non-parole period of 16 months.[10] He was released on parole on 7 August 2005.
[10] Ibid, p 65.
Although the offending on 10 July 2003 was the most serious offending by the Applicant, it is not his only criminal history. The Applicant was, until very recently, a heroin addict. He has convictions for possession. He also has numerous convictions for offences relating to the illegal use of a motor vehicle particularly in the context of a license suspension. He has also breached court orders on several occasions. Annexure “B” contains a full list of his criminal convictions.
On 5 July 2006, the Department of Immigration and Multicultural Affairs (as it then was) notified the applicant that his Visa may be liable for cancellation under section 501 of the Act on character grounds. By letter dated 27 March 2007, the Applicant was advised in the following terms by the Department:
“After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your client’s visa on character grounds. His visa will continue to provide him with permission to enter or remain in Australia. However the delegate decided that he is to be given the following warning.
Please note that Visa refusal cancellation may be reconsidered if fresh information comes to notice or if Mr Tran incurs a liability on new grounds. Disregard of this warning will weigh heavily against him if his case is reconsidered.…”[11]
[11] Ibid, p 80.
On 7 May 2007, the Applicant signed an acknowledgement of receipt of the correspondence incorporating the warning.
The Applicant became a heroin user in about 2011-2012. He began on a daily methadone programme in 2014. While he was on the methadone program, he would occasionally substitute heroine for methadone when he was for some reason or another, unable to get to his appointment at the methadone clinic to receive his dose. He ceased using methadone in early February 2021 and has been drug free since then.[12]
[12] Ibid, p 116.
On 4 December 2019, the Applicant was convicted in the Fairfield Local Court of “drive motor vehicle during disqualification – 2^nd+ offence (2)”. The following passages from the sentencing remarks on that occasion:
“Mr Tran is 36 years of age. He is a father of two young daughters, he is separated from his wife. He has employment. He has a conviction history mostly for traffic offences. He is presently disqualified from holding or obtaining a licence until 2025. He has a drug addiction. He recently participated positively in the MERIT Program, whilst so engaged he recommenced methadone treatment at the Barber Street Clinic. His addiction to heroin is of some longstanding. He asserted to the clinician that he had used that substance for about seven years but he had come before the Court before then for serious drug related activity in 2003 which resulted in the imposition of full time imprisonment.
Following the expiration of those sentences there appears to have been a gap in the defendant’s offending until 2010 for an offence of drive whilst suspended was established against him and he was given the benefit of a conditional discharge. Since then he acquired a further - I withdraw that. Not long thereafter the defendant acquired a conviction for driving whilst suspended in 2010. Subsequently he acquired four convictions for driving whilst disqualified between 2011 and 2016. The 2014 and 2016 convictions resulted in sentences of imprisonment though each sentence was suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act.
Relevantly the defendant’s first offence of driving whilst disqualified was accompanied by an offence of drive with the prescribed concentration of alcohol low range, offences committed in 2011.
Today he is to be sentenced for each of two counts of driving whilst disqualified. The first in point of time on 26 June 2019 and the second on August 2019. At the time of the June offence he was found to be in possession of small amounts of heroin, methylamphetamine. Each offence of drive whilst disqualified was detected following a traffic stop, in August 2019 for random breath testing purposes. He was reasonably cooperative with police. He pleaded guilty to each offence on 27 November 2019. The proceedings were adjourned for a sentencing assessment report. This afternoon I have the report of Ms Elmasa(?) dated 4 December 2019. He was found suitable for supervision and suitable to undertake community service order work.
Apart from the fact that all of the offending was calculated criminal conduct there are no other matters in aggravation. There were matters in mitigation apart from those I have already alluded to. He had prospects of rehabilitation by reason of his insight into his wrongdoing and he had recently completed a MERIT Program to, it seemed, a reasonably high standard. His personal background and subjective features were reasonably unremarkable. I was informed that the Hi-Ace van/vehicle the defendant used on both occasions of driving was his mother’s. That vehicle is no longer available for him to use. It is unclear to me how the defendant will continue his small business, he is self-employed in the tiling industry, without a vehicle. Nonetheless the defendant asserted to the Corrections officer and to his lawyer that he had a reasonably credible work history in this State.
The custodial threshold had been reached, Ms Lai, with respect to the drive whilst disqualified offences for obvious reasons. In reaching this conclusion I did not overlook the fact that there was a small gap between his last conviction in 2016 and the reoffending in 2019. But the further offences tended to indicate the gap was simply that, a break in offending, as opposed to a change in conduct towards road legislation of this State.
I am required to consider the intensive correction order provisions. I have done so.
His drive whilst disqualified offences whilst serious are not so serious as to disentitle him form serving a sentence by way of intensive correction order and given his recent efforts to address his drug and his drug problems. It is possible an intensive correction order was more likely to address his risk of reoffending. Such an order was not against community safety.”[13]
[13] Ibid, p 67-69.
The Applicant was sentenced to an aggregate of 15 months to be served by way of a community corrections order. His disqualification from driving was extended to 28 March 2026.
On 8 October 2020, the Applicant was again in the Fairfield Local Court before Magistrate Seagrave. The offending on this occasion was again a motor vehicle offence been driving while disqualified on 26 August 2020. The sentencing remarks include the following passages:
“HER HONOUR: Mr Tran is to be sentenced today for an offence of drive whilst disqualified on 26 August 2020. It is an offence, a subsequent offence for the purposes of the legislation so it carries upon conviction a maximum penalty being a fine of $5,500 or 12 months imprisonment or both fine and imprisonment; a default period of disqualification of 12 months that can in appropriate circumstances be reduced but not below a minimum of six months.
The offence represented Mr Tran’s seventh conviction for driving whilst disqualified since 2011 when he was convicted of his first offence of driving whilst disqualified, an offence committed whilst driving with the prescribed concentration of alcohol low range. The present offence was detected at 1.30am on 26 August in the suburb of Fairfield West. The defendant was cooperative with police at the time of the traffic stop. He emphasised he was driving for work-related purposes.
Relevantly, the offence was committed whilst the defendant was the subject of an aggregate intensive correction order of 15 months duration imposed on 4 December 2019 for two offences of driving whilst disqualified committed on 26 June 2019 and 10 August 2019. The offence was also committed whilst the defendant was the subject of two concurrent 12-month supervised community correction orders for possess prohibited drugs, orders imposed on 4 December 2019. The drugs were detected at the time of the 26 June 2019 drive whilst disqualified offence.
The defendant accepted his driving on 26 August 2020 was a serious error of judgment. It seemed the defendant was under some pressure to transport a work item, I think Mr Lazski(?) said yesterday afternoon. Rather than wait for a co-worker to drive him, he drove instead. It was an odd time to be driving for work purposes in a business concerned with tiling. Nonetheless if the defendant was in fact driving for the purpose indicated he would have known the risk he was taking.
His personal background and subjective features were uneventful. He was an older man. He was separated from his partner. He had one child. His business as a tiler had been affected by the pandemic. He had a reasonably significant conviction history for serious traffic offences. Other entries on his conviction history were concerned with drug-related activity. Relevantly, the defendant had previously been convicted of two supply offences although the conviction for the second offence in point of time occurred in 2004 and appeared to relate to 2003 offending. The defendant was sentenced to a term of imprisonment for that offence which ended in 2006.
Drugs were not a feature in the present offending apparently. According to the sentencing assessment report prepared by Ms Mijatovic(?), a Community Corrections officer at Fairfield dated 30 September 2020, if the subject of a supervised order supervision would be suspended. The defendant was assessed as suitable to undertake community service order work. Relevantly, the defendant was the subject of supervised orders at the time he reoffended and I note the aggregate intensive correction order included a work service condition. The report did not address whether or not breach action had been taken in relation to the ICO as a consequence of this offence and Mr Lazski was not able to assist on this matter.
The offence of driving whilst disqualified clearly constituted a breach of the supervised community correction orders. Even though the breaching offence of driving whilst disqualified was of a different character from the possess prohibited drug offences, nonetheless each order required the defendant to be of good behaviour for the entire period of the order and he failed, refused or neglected to be of good behaviour.
The breaching offence, drive whilst disqualified, was a reasonably common example of the offence category in terms of the way in which it was detected. It was aggravated in that it was calculated offending whilst the defendant was the subject of conditional release in the community. There were some matters in mitigation being his plea and his remorse. According to the sentencing assessment report the defendant was assessed as at T1 low risk of reoffending. He appeared to have good prospects of rehabilitation.
The custodial threshold was reached. I find a conditional release order or a community correction order would not reflect the objective seriousness of the offence or deterrence, deterrence being an important consideration in sentencing offenders for this type of offence and in this case an element of specific deterrence was warranted. The starting point was a sentence of imprisonment of 12 months.”[14]
[14] Ibid, p 71-73.

The Applicant’s community corrections order was revoked, and he was sentenced to nine months imprisonment with a six-month non-parole period. It was during his imprisonment that his Visa was cancelled under section 501 (3A) of the Act. When his non-parole period ended on 25 February 2021, he was removed to immigration detention.
Aside from his periods of incarceration, the Applicant has mostly been working and paying tax since 2005. He initially worked in a warehouse. In 2008 he started work as a labourer in a tiling business. He became an apprentice and since 2012 he has been a self-employed tiler.
The Applicant’s mother is 68 years of age. She gave evidence through an interpreter. She is fragile, suffering from a range of medical conditions. She has osteo-arthritis in her hips and knees and will probably require surgery in the future. She has high cholesterol and high blood pressure. She can manage on her own, but with increasing difficulty. She would be looking to her son to assist her if he were returned to the community. She has some savings and would be prepared to support the Applicant to obtain accommodation and psychology services, at least until he could get a job and support himself. The Applicant and his daughter are her only relatives in Australia. If he were to be returned to Vietnam, she would try and assist him financially if possible. There is a strong relationship between the Applicant and his mother. She would not be able to visit him if he were returned to Vietnam due to her health. Their separation would be traumatic for both of them.
The Applicant is close to his mother. He also has a close relationship with two children. One is his biological daughter Child A, the other is his former partner’s child from a previous relationship, Child B.
The Applicant’s former partner, Ms Dinh, is still on good terms with him and Ms Vo. She knew the Applicant for many years before they commenced a relationship in 2013. She fell pregnant with the Applicant’s daughter that same year and they began to co-habit in November 2013. They separated in 2019. The Applicant says that this happened when he decided that for his family’s sake, he should get away and sort his life out. The evidence from Ms Dinh suggests that this decision was arrived at by both of them on the basis that they were “not getting on”. In any event, the separation does not appear to have been acrimonious and they continue to have constructive relations focused on the children.
The Applicant has a good relationship with Ms Dinh’s son from a previous relationship, Child B. Child B, who is 10 years of age, has been around the Applicant since he was an infant. He calls the Applicant “Dad”. His biological father is totally absent from his life. The Applicant is the closest thing that Chid B has ever known to a father. Prior to his incarceration, even after he left the family home, the Applicant and Ms Vo have continued to have regular contact and offer practical and financial support to Ms Dinh and the two children. This included, for example, picking up the children from school on Thursday and Friday afternoons and feeding them when Ms Dinh had to work late.
The Applicant gave evidence in a straightforward manner. He gave the clear impression of being highly motivated to avoid offending. He is focused on the future for his children and being there to support them. He also wants to be on hand to assist his mother. He has no other relatives aside from his half-sister in Vietnam. He has had no contact with her for some time and is not sure about her current circumstances. He has not been on methadone since February 2021. He said he quit the programme so as to be totally drug free upon his possible return to the community. He is now very aware of the serious consequences to him, should he continue to offend.
The Applicant’s counsel also called Mr Watson-Munro, consultant psychologist. Mr Watson-Munro produced a comprehensive report dated 22 September 2021 which states as follows:
“Notwithstanding his troubling history, there are some positive prognostic indicators in this case. Mr Tran has expressed a desire for treatment to deal with longstanding psychological problems, including his Substance Use Disorder.
He is the father of a 7 year old daughter [Child A] and 10 year old step-son [Child B], who is the son of his former partner. He has a strong bond with his children. Although there were difficulties in the relationship, which have now stabilised, and it is apparent from my discussions with his former partner, that she is supportive of his desire to remain in Australia, in the context of the considerable assistance he provides as a role model to their daughter and step-son.
Mr Tran is further motivated by the concerns he has for his mother, whom was deeply distressed when I spoke to her referable to the possibility of him being deported. It would appear that he is now maturing and I believe that with continuing support, supervision and treatment, the risk factor to the Australian community will continue to reduce. He is currently trending from a Moderate to Low risk category in my respectful opinion.
……
This was undertaken utilising an interpreter. Ms Vo impresses as a highly concerned mother, who confirmed her deep distress referable to the possibility that Mr Tran could be deported.
……
She stated that she will not cope if Mr Tran is deported, as he is her only son. She stated that she would be very happy to assist him rehabilitate into the community, in terms of him sharing accommodation, in addition to driving him around, until such time that his licence is restored. I note in this regard, that Mr Tran currently is not eligible to have his licence returned until 28 March 2026.
……
Ms Dinh impresses as a concerned individual, who confirmed that notwithstanding the breakdown in the relationship with Mr Tran, she remains highly supportive of him.
She stated that he has expressed remorse for his behaviour and that he has been a good source of support in relation to their child.
She feels that her daughter will suffer psychological harm, if Mr Tran is required to return to Vietnam.
……
Mr Tran suffers a severe and recurring Depressive Disorder according to DSM-5 criteria. He has a compounding diagnosis of an Anxiety Disorder and a Substance Use Disorder, which us now in Partial Remission.
……
I believe there is a direct nexus between his offending behaviour, his untreated psychological problems and in the past, his Substance Abuse Disorder.
……
Mr Tran is trending from moderate to low risk. It is clear that he has matured and inevitably, as a consequence of his current circumstances, with him facing deportation, he fully comprehends the seriousness of his predicament and what will occur should he reoffend in any way. He stated that he will not drive a motor vehicle and that he is now drug free and thinking more clearly.
I believe he is genuine in his motivation but it is clear that he nonetheless requires ongoing treatment in the community, coupled to the support of his mother and significant others in his life.
It is equally apparent that Mr Tran will have a very difficult time if he is deported, given his age, his assimilation into the Australian community, in addition to the ongoing issues referable to the COVID-19 pandemic. Arising from this, there is a possibility if he is returned to Vietnam, that he may relapse. I say this advisedly, on the basis that his treatment is ongoing and needs to continue for some time in the Australian community, It is unlikely that he will be able to access psychological treatment in Vietnam and certainly, even if counselling is available, it may be beyond Mr Tran’s reach due to financial considerations. Beyond specialist treatment, his rehabilitation in Australia will be reinforced and progressed by other protective factors in his life, including the love and support of his family, as well as employment. Inevitably, if he is deported, there will be a significant escalation in his depression and anxiety because of the loss of contact with his family, including his daughter. This scenario could create a situation where Mr Tran could spiral into depression and attendance to this, drug use.
As a further relevant consideration, although I have not assessed Mr Tran with his child, it is apparent from my discussion with him and his daughter’s mother, that they enjoy a loving and well bonded relationship. If his daughter is deprived of her father’s involvement in her life because he is domiciled in Vietnam, in all likelihood, this will have an adverse impact upon her psychological development”.[15]
[15] Exhibit 5, pp 3, 7, 8, 10, 11, 12, 13.
This report indicates that the Applicant is suffering from a severe and recurring depressive disorder, he also has “a compounding diagnosis of an anxiety disorder and a substance use disorder, which is now in partial remission”. In evidence, Mr Watson-Munro explained that an individual is deemed to be in “partial remission” until two years after they have ceased substance abuse. He also said that “there is a direct nexus between his offending behaviour, his untreated psychological problems and in the past, his substance use disorder”. Mr Watson-Munro was quite positive about the Applicant’s progress. He identified four elements that he would like to see if the Applicant were to be returned to the community. These were:
(a)Continuing treatment;
(b)Structure and or supervision;
(c)Close relationship with his family; and
(d)Re-employment.
In respect of each of these he gave further details. The continuing treatment that he recommends is supportive psychological counselling. Whilst this may be difficult to obtain in the present pandemic, he indicated that he would be prepared to try and find a suitable practitioner to assist. He also gave evidence about the availability of a mental health plan such as to enable the Applicant to receive such services substantially paid for by Medicare.
As to the point about structure and supervision, he said that this would flow from him having a good relationship with his family and having employment. These two things together would provide both structure in his life and people close to him who could assist him and support him in his daily life. There is no question that the Applicant’s mother and Ms Dinh are willing to perform this role.
As to the question of employment, obviously this is a matter that the Applicant would need to address if he were released back to the community. In his evidence he indicated that he has a plan to obtain factory work or some other work where his transport issues will not be as significant as they would be if he returned to his tiling business.
Mr Watson-Munro expressed the view that with the aid of family support and treatment, the Applicant was a low risk of reoffending. He also indicated that the multiple driving offences associated with the Applicant’s criminal history point to impulsive behaviour influenced by drug use. The fact that he is not now using, suggests that he will not continue to behave in such a manner.
If the Applicant does not resume substance abuse, there is a very high probability that he will not reoffend. Mr Watson-Munro thought that the Applicant was now highly motivated not to resume substance abuse because he is well aware of the consequences if he were to reoffend. He “has insight into the impact on those that he loves the most”.
On 14 January 2021, the Applicant’s Visa was cancelled under section 501(3A) of the Act. At the Applicant’s request, this decision was reviewed by the Respondent who on 18 August 2021 determined not to revoke the cancellation of the Applicant’s Visa.
It is this decision that the Applicant seeks to have reviewed in these proceedings before the Tribunal.
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act provides that:
“The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. “
There are two issues presently before the Tribunal:
·whether the Applicant does not satisfy the Tribunal that the Applicant passes the character test; and if so;
·whether the Tribunal considers that the discretion in section 501(1) of the Act to refuse to grant the Applicant a visa should be exercised.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 24 June 2004, the Applicant was sentenced to a term of imprisonment of two years with a non-parole period of sixteen months. On 8 October 2020, he was sentenced to nine months imprisonment with a six month non-parole period.[16] It is quite properly conceded in the Applicant’s Statement of Facts, Issues and Contentions that he does not pass the character test because of his “substantial criminal record”.[17]
[16] See also Annexure B.
[17] Exhibit 2, p 6.
The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. The Tribunal must consider whether “there is another reason why the original decision should be revoked”.
In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) has application.
For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(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 non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[18]
“…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[19]
[18] [2018] FCA 594.
[19] Ibid, [23].
OFFENDING HISTORY
The Applicant’s criminal record as produced by the Australian Criminal Intelligence Commission is outlined at “Annexure B”.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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 Applicant’s Conduct to Date

When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
There is no evidence that the Applicant has engaged in family violence, crimes of a sexual nature or violent crimes against women or children. I note that sub-paragraph (a) commences with the words “without limiting the range of conduct that may be considered very serious…”. This suggests that conduct other than the specified violent/sexual conduct may be viewed “very seriously”. The Applicant has been involved in serious criminal conduct. In particular, his conviction in 2004 for offences involving the supply of heroin is serious. His offences since that time, taken individually, do not constitute offences of the same gravity, however, the sheer number of offences and the fact that they have involved the Applicant displaying contempt of court orders is also serious.
Having regard to subparagraph (b) of paragraph 8.1.1.(1), I have come to the view that it is more relevant to the Applicant’s conduct than this subparagraph. I take the view that the same conduct, unless specified in sub-paragraph (a) and (b), cannot be both “very serious” and “serious”.
Having regard to all these matters, this consideration is neutral.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.
I note that sub-paragraph (b) commences with the words “without limiting the range of conduct that may be considered serious…”. As with sub-paragraph (a), this suggests that conduct other than the specified conduct may be regarded as “serious”. There is no evidence that the Applicant has been involved in forced marriage, crimes against vulnerable members of the community, government representatives or officials, or indeed committed any crime whilst in immigration detention. Having regard to the Applicants pattern of offending however, it is reasonable to have doubts about the Applicant’s good character (e.g. see section 501(6)(c)). By any measure, the Applicant’s criminal record must be considered serious.
This consideration weighs against revocation.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
The Applicant has been imprisoned twice. On the first occasion, the offending was drug related. He was sentenced to two years imprisonment. This indicated the seriousness of this offence. On the second occasion he was sentenced to nine months for breaches of court orders. This reflects the serial nature of the offending.
This consideration weighs against revocation.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Applicant’s pattern of offending is complex. As previously observed, he has not been convicted of serious drug offences since his conviction in 2004. He was convicted of being involved with the commercial sale of heroin, by any measure, a serious offence. In his favour it seems that he was not the principal offender, acting essentially as a driver. There is no evidence to suggest that he was profiting from the enterprise. If this were the whole story, it would suggest that the Applicant had substantially reformed. Unfortunately, this is not so. He has continued to offend, albeit on a more minor scale. His offending has been mostly related to the unlicensed use of a motor vehicle. He says that this offending was borne of practical necessity related to his employment. Whatever may be said of his reasons, the fact of his continuing disregard for the law is a serious matter, albeit that the individual offences are not of the same gravity as commercial drug trafficking. His offending has been essentially victimless, but it has wasted public resources.
It is the sheer persistence of his offending since 2003 and his disregard for court orders, rather than the gravity of each offence that gives rise to serious concern.
This consideration weighs against revocation.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
As has already been set out in detail, the Applicant has a long history of offending. Although the gravity of each offence has not approached that of his offending in 2003, he has continued to disregard the law. Public resources have had to be expended in policing, courts and corrections to manage the Applicant. He has placed a burden on the criminal justice system
This consideration weighs against revocation.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is no evidence of such conduct. This consideration is neutral.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
The Applicant was given a formal written warning by correspondence dated 5 July 2006.
Although the Applicant has not committed any further serious drug offences since this warning, he has been a serial offender. His explanation to the Tribunal was that he thought this warning only pertained to drug trafficking offences. The terms of the warning are of course not confined in such a way. This explanation is unconvincing. His disregard for this explicit warning is a very serious matter.
This consideration weighs heavily against revocation.
I do not consider that factors (a) and (f) of paragraph 8.1.1(1) of the Direction applies to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(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 non-citizen 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; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The Applicant’s offending history, as previously observed is complex.
The Applicant’s history suggests that he is not likely to commit serious drug trafficking offences in the future. His risk lies more with driving offences or other breaches of court orders. I note that his license is suspended until 28 March 2026. If the Applicant were to be returned to the community, he plans to return to work. This goes to his credit, but it does present the very practical problem of him getting to and from work. This is an obvious point of risk. It is significant that most of the Applicant’s driving offences have not involved risk to other members of the public. Whilst it is not acceptable to trivialise these offences as “regulatory”, they are at the lower end of the spectrum when viewed through the prism of community safety. The Applicant’s mother has indicated that she would be prepared to assist with his transport to and from work if necessary. Given her infirmities, it is unlikely that this will be a satisfactory permanent solution to his transport problems. Public transport may be a practical option, depending on where he finds work. The Applicant has turned his mind to this issue and will be seeking employment in a factory or process work line of business, rather than working for himself as a tiler.
The Applicant seems to have a genuine commitment not to reoffend and the impact on the community if he did, whilst more than trivial, is moderate. In summary, there is a slight to moderate risk that the Applicant may commit further offences, by driving without a license. There is no evidence to suggest that there is any risk of him re-engaging with the commercial supply of prohibited substances. There is no evidence to suggest that any offending by him would cause direct harm to others.
The great unknown in this case is whether the Applicant will fall back into drug use. If he does, the prognosis is concerning. There is a clear link between his drug use and his offending. The Tribunal in this instance, as is so often the case in these matters, is presented with a future fork in the road. Will the Applicant return to drug use, or will he not? If he does relapse, he is at least a moderate risk of re-offending. If he does not, the risk is low.
In this case, the decision of the Tribunal may ultimately be determined by forming a view as to the likelihood of the Applicant choosing the correct path. In this case, I am persuaded on balance, having particular regard to the evidence of Mr Watson-Munro, that the Applicant should be given the benefit of the doubt.
Conclusion: Primary Consideration 1
Having regard to all of the foregoing, I am of the view that Primary Consideration 1 weighs against the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
There is no evidence of family violence.
Conclusion: Primary Consideration 2
This consideration is neutral.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·     whether there are other persons who already fulfil a parental role in relation to the child;
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
·     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The relevant minor children in Australia Child A and Child B.
Child A is the Applicant’s daughter from his relationship with his former partner, Ms Dinh. Child A is 7 years old. She has a very close relationship with her father and misses him a great deal. Her parents have protected her from the reality of her father being incarcerated by saying that he is away for work. She still visits him frequently and they communicate electronically. Ms Dinh confirmed the close relationship and bond between the two. Ms Dinh is very appreciative of the Applicant’s support for the family. Before his incarceration, along with his mother, he helped with collecting the children from school and child minding when Ms Dinh was at work. He helped around the house. When he was working, he has given financial support. The Applicant has been a hands-on father to Child A since her birth. Child A would be greatly deprived of close parental support if her father were removed to Vietnam and they were forced to have electronic contact only. It is strongly in Child A’s interests that the Applicant remain in the community. Ms Dinh told the Tribunal that if the Applicant were to remain in Australia, he could reside with her, her mother, and the two children.
Child B is Ms Dinh’s son from a previous relationship. He is 10 years old. He has no contact at all with his biological father. He was only two years of age when his mother and the Applicant began to co-habit. He believes that the Applicant is in fact his father and he calls him “Dad”. Child B is closer to his mother, but has only ever had one close adult male in his life, the Applicant. He has been supported in his family by the Applicant in the same way as Child A. For the reasons set out above, it is strongly in the interests of Child B that the Applicant remain in Australia.
Conclusion: Primary Consideration 3
Having regard to all of the above, Primary Consideration 3 weighs heavily in favour of revocation of the cancellation of the Applicant’s Visa.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction

In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[20]
[20] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
(a)the Applicant’s criminal record as set out in Annexure B; and
(b)the ongoing nature of the Applicant’s disregard for the law is a significant concern. He has committed serious drug offences, albeit almost 20 years ago, and has continued to reoffend and disregard court orders since that time. Although his offending over recent years is nowhere near as serious when viewed from the perspective of each individual offence, as his offending in 2003, it is nevertheless serious. The Applicant has displayed a contempt for the laws of Australia and the orders of our courts. He has been a long-time burden on the criminal justice system.
Conclusion: Primary Consideration 4
Primary Consideration 4 weighs against the revocation of the cancellation of the Applicant’s Visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
Paragraph 9.1 of the Direction concerns international non-refoulement obligations as follows:
(1) 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. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
(2) 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. In doing so, 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, and in the meantime, detention under section 189, noting also that section 197C 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 non-citizen.
(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a 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 non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
(4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6) It may not be possible 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. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
(7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
(8) If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international nonrefoulement obligations.
The Applicant argues that this consideration is both relevant and weighs in favour of revocation. The Applicant’s written submissions on this point are summarised as follows:
“(a) on return to Vietnam he may, because of what Mr Watson Munro described as, “a significant escalation of his depression and anxiety because of the loss of contact with his family, including his daughter” spiral into depression and attendant drug use (exhibits six page 12 – 13). In his oral evidence, Mr Anson Munro suggested that this was a distinct possibility.
(b) if you were to relapse into drug use, he would be a member of a “particular social group” consisting of drug users in Vietnam.
(c) he would then face a well-founded fear of persecution for reason of membership of that particular social group.”
In order to properly consider with these submissions is important to note the following facts:
(a)The Applicant is at present drug-free and has not used methadone or any other opiate since February 2021.
(b)It is a criminal offence both in Australia and Vietnam to possess or traffic in opiates.
(c)Drug addicts and drug offenders are a burden on societies in which they live. They are frequently involved in criminal activity, above and beyond offences arising from simple possession for personal use. They routinely cause harm to others and consume scarce public resources in both the criminal justice system and the health system.
(d)All countries grappling with the scourge of drug addiction do not respond in the same way. There is no crisp demarcation line between responses that “compel” treatment of addicts and those that “encourage” treatment by various other means.
(e)Even on the Applicant’s evidence, assuming in his favour that being a drug user would constitute him as being a member of a “particular social group” for the purposes of Australia’s international obligations, which I do not accept, he is presently not a member of such a social group.
(f)If the Applicant were to be returned to Vietnam, it would be entirely a matter within his own control, whether he chose to use drugs. The choice would be his alone. I do accept however, having regard to the report of Mr Watson-Munro, that this would be more likely to occur, if the Applicant were to be removed to Vietnam.
(g)If the Applicant did return to Vietnam, and did use drugs, and did come to the attention of Vietnamese authorities, he would be in no better or worse position than any other Vietnamese citizen subject to the criminal law of that country.[21]
[21] See Applicant A v Minister for Immigration (1997) 190 CLR 225, and Minister for Immigration and Citizenship v SZNWC [2010] FCAFC 157.
In view of the above, I do not believe that the Applicant can successfully assert that he, by reason of arguing that he is at a heightened risk of relapsing into drug use, can bring himself within the notion of a “particular social group” for the relevant purposes. If he were to return to Vietnam and he relapsed into drug use, the Applicant would be in exactly the same position as any other Vietnamese citizen committing that same criminal offence. The Applicant is an adult and must take full responsibility for his own actions and decisions.
Even if I was of the view that the Applicant could successfully assert that he was a member of a “particular social group” for the relevant purposes (which I am not), I am unpersuaded on the evidence before the Tribunal that whatever may have been said of the shortcomings of Vietnamese drug treatment methods in the past[22] continues to be the case.[23]
[22] Exhibit 6.
[23] The present state of the law is set out in the Full Court of the Federal Court of Australia decision in Minister for Home Affairs v Omar (2019) 272 FCR 589.
While I am not satisfied that a non-revocation in the instant application will necessarily result in Australia breaching its non-refoulement obligations, I nevertheless accept that removal to Vietnam will result in a significant measure of hardship and possible harm to the Applicant. Such hardship could manifest in him not receiving adequate care for his mental health issues compared to what he might experience in Australia.
Having regard to all of these matters, I am not satisfied that the question of non-refoulement arises in this case.
This Other Consideration (a) is neutral.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
In my view, most of the arguments raised by the Applicant in respect of Other Consideration (a) are more properly dealt with under this consideration.
The Applicant is 38 years of age and in good physical health. The Applicant has recently been diagnosed with mental illness, being depression and associated problems. If the Applicant is able to remain in Australia, there is every chance that he would be able to obtain appropriate, affordable, and effective psychological support services. He would have the connection with his relatives and their support, he could find accommodation with Ms Vo or Ms Dinh, and he would be able to continue his active involvement in the lives of Child A and Child B. There is no evidence to suggest that he would be able to secure similar services, or affordable services of this type were he to be returned to Vietnam. He has no family supports there. This is an important consideration for the Applicant’s well-being according to Mr Watson-Munro. According to him, it is also possibly relevant to him continuing to abstain from drug use and not returning to criminal behaviours.
There are no significant language or cultural barriers preventing the Applicant returning to Vietnam, although his written Vietnamese language is relatively poor. He has spent most of his life in this country. A return to Vietnam would inevitably involve significant adjustment issues.
The Applicant would certainly be in a less advantageous position in relation to social, medical and economic support if he were to be returned to Vietnam. The services available to him there would not be comparable to those available to him in Australia. He does not have a relationship with his father, and his half-sister has her own life and family separate to him. He has not had contact with her for some time. If returned, he would be placed in a position of little or no local support, no job, and no obvious way to establish himself. His mother and former partner would offer what support they could, but this would be limited, remote, and temporary. His skills as a tiler would probably be of value in Vietnam, but it is difficult to say how easy it would be for him to obtain employment. A return to Vietnam would be very difficult for the Applicant.
This Other Consideration (b) weighs heavily in favour of revocation of the cancellation of the Applicant’s Visa.
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence concerning the impact on any victims.
This Other Consideration (c) is neutral.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant has lived in Australia for more than half of his life. His only close relatives are his mother, Child A, Child B, and his former partner, Ms Dinh, with whom he maintains a good relationship. They all live in Australia. They are Australian citizens. The Applicant’s only relative in Vietnam is his half-sister with whom he has not had contact for years. The Applicant’s removal to Vietnam would practically sever his ties with his mother, his former partner, Child A and Child B. The evidence suggests that the impact both on him and, in particular, on his mother and Child A would be devastating. There was no evidence of the Applicant’s broader social ties to the Australian community.
For most of his time in Australia, the Applicant has been gainfully employed and contributed to society as a taxpayer. He clearly has strong ties to Australia.
This Other Consideration (d), paragraph 9.4.1 of the Direction, weighs heavily in favour of revoking the cancellation of the Applicant’s Visa.
Impact on Australian business interests
There are no impacts on Australian business interests.in favour of revoking the cancellation of the Applicant’s Visa.

This Other Consideration (d), paragraph 9.4.2 of the Direction, is neutral.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: neutral;
(b)extent of impediments if removed: weighs heavily in favour of revocation;
(c)impact on victims: neutral;
(d)links to the Australian community including the strength, nature, and duration of ties to Australia: weighs heavily in favour of revocation; and
(e)the impact on Australian business interests: neutral.
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary consideration 1 weighs against revocation.
Primary consideration 2 is neutral.
Primary consideration 3 weighs heavily in favour of revocation.
Primary consideration 4 weighs against revocation.
Other considerations (a), (c), and (d), paragraph 9.4.2 of the Direction, are neutral.
Other consideration (b) and (d) weigh heavily in favour of revocation.
In my view, the proper application of the Direction favours the Tribunal exercising the discretion to revoke the cancellation of the Applicant’s Visa. I find that there is “another reason” pursuant to s501CA (4)(b)(ii) to revoke the original decision.
DECISION
The decision under review is set aside and substituted with a decision that the cancellation of the Applicant’s Visa be revoked.

I certify that the preceding one-hundred and forty-one (141) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.

............................[Sgnd]...............................
Legal Administrative Assistant

Dated: 3 November 2021

Date of hearing: 18 & 19 October 2021

Advocate for the Applicant:

Leonard Karp

Chalfont Chambers

Advocate for the Respondent:
Ada Wong

Mills Oakley Lawyers

Annexure A – List of Exhibits

Exhibit no.

Lodged by

Document

1

Applicant

Statement of Facts, Issues, and Contentions

2

Applicant

Amended Statement of Facts, Issues, and Contentions

3

Respondent

Statement of Facts, Issues, and Contentions

4

Respondent

G-Documents

5

Applicant

Psychologist Report – Tim Watson-Munro

6

Applicant

Article – James Windle – “A slow March from Social Evil to Harm Reduction: Drugs and Drug Policy in Vietnam”

7.1

Applicant

Statutory Declaration – Vo Thi Tam (Applicant’s mother)

7.2

Applicant

Statutory Declaration – Dinh Thi Ngoc Huyen (Applicant’s former partner)

7.3

Applicant

Statutory Declaration – Janice Aileen Vu (Applicant’s solicitor’s interview with Child A)

7.4

Applicant

Statutory Declaration – Tran Vo Duy Khanh (Applicant) – 24.09.2021

7.5

Applicant

Statutory Declaration – Tran Vo Duy Khanh (Applicant) (Attachments included) – 24.09.2021

8.1

Applicant

Statutory Declaration – Tran Vo Duy Khanh (Applicant) – 12.10.2021

8.2

Applicant

Certificate of Completion, Online Traffic Offenders Rehabilitation program – Tran Vo Duy Khanh (Applicant)

8.3

Applicant

Email – refusal to visit Applicant at Villawood Detention Centre

9

Respondent

Tender Bundle

Annexure B – Applicant’s Offending History

Court

Court Date

Offence

Court Result

Liverpool Local Court

26/03/2002

Enter inclosed land not presc premises w/o lawful excuse

Dismissed

Campbelltown District Court

16/12/2003

Supply prohibited drug > indict. quantity (not cannabis)

Imprisonment – 18 months

Liverpool Local Court

22/01/2004

Goods in personal custody suspected being stolen (not m/v)

Imprisonment – 3 months

Campbelltown District Court

24/06/2004

Knowingly take part in supply prohibited drug

Imprisonment – 2 years

Balmain Local Court

16/06/2010

Drive on road etc while licence suspended

Bond

12 months traffic offenders program

Liverpool Local Court

16/12/2010

Drive on road etc while licence suspended

Fine – $600

Disqualification – 12 months

Liverpool Local Court

21/04/2011

Drive while disqualified from holding a licence

Fine – $2000

Disqualification – 2 years

Drive with low range PCA

Fine – $600

Liverpool Local Court

25/08/2011

Drive while disqualified from holding a licence

Community service order – 70 hours

Disqualification – 2 years

Liverpool Local Court

14/07/2014

Drive motor vehicle during disqualification period – 2^nd + off

Imprisonment – 10 months (suspended on enter bond)

Bankstown Local Court

20/01/2016

Drive across dividing lines to do a U-turn – motor vehicle

Fine – $400

Drive motor vehicle during disqualification period – 2^nd + off

Imprisonment – 12 months (suspended on enter bond)

Fairfield Local Court

04/12/2019

Possess prohibited drug

Community correction order – 12 months

Drive motor vehicle during disqualification period – 2^nd + off

Intensive correction order – 15 months

Fairfield Local Court

08/10/2020

Possess prohibited drug

Fine – $250

Drive motor vehicle during disqualification period – 2^nd + off

Imprisonment – 9 months (non-parole period – 6 months)

Disqualification – 12 months

Parramatta District Court

01/12/2020

Drive motor vehicle during disqualification period – 2^nd + off

Order confirmed:

Imprisonment – 9 months (non-parole period – 6 months)

Disqualification – 12 months

[2021] AATA 4052

3 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Exhibit no.	Lodged by	Document
1	Applicant	Statement of Facts, Issues, and Contentions
2	Applicant	Amended Statement of Facts, Issues, and Contentions
3	Respondent	Statement of Facts, Issues, and Contentions
4	Respondent	G-Documents
5	Applicant	Psychologist Report – Tim Watson-Munro
6	Applicant	Article – James Windle – “A slow March from Social Evil to Harm Reduction: Drugs and Drug Policy in Vietnam”
7.1	Applicant	Statutory Declaration – Vo Thi Tam (Applicant’s mother)
7.2	Applicant	Statutory Declaration – Dinh Thi Ngoc Huyen (Applicant’s former partner)
7.3	Applicant	Statutory Declaration – Janice Aileen Vu (Applicant’s solicitor’s interview with Child A)
7.4	Applicant	Statutory Declaration – Tran Vo Duy Khanh (Applicant) – 24.09.2021
7.5	Applicant	Statutory Declaration – Tran Vo Duy Khanh (Applicant) (Attachments included) – 24.09.2021
8.1	Applicant	Statutory Declaration – Tran Vo Duy Khanh (Applicant) – 12.10.2021
8.2	Applicant	Certificate of Completion, Online Traffic Offenders Rehabilitation program – Tran Vo Duy Khanh (Applicant)
8.3	Applicant	Email – refusal to visit Applicant at Villawood Detention Centre
9	Respondent	Tender Bundle

Court	Court Date	Offence	Court Result
Liverpool Local Court	26/03/2002	Enter inclosed land not presc premises w/o lawful excuse	Dismissed
Campbelltown District Court	16/12/2003	Supply prohibited drug > indict. quantity (not cannabis)	Imprisonment – 18 months
Liverpool Local Court	22/01/2004	Goods in personal custody suspected being stolen (not m/v)	Imprisonment – 3 months
Campbelltown District Court	24/06/2004	Knowingly take part in supply prohibited drug	Imprisonment – 2 years
Balmain Local Court	16/06/2010	Drive on road etc while licence suspended	Bond 12 months traffic offenders program
Liverpool Local Court	16/12/2010	Drive on road etc while licence suspended	Fine – $600 Disqualification – 12 months
Liverpool Local Court	21/04/2011	Drive while disqualified from holding a licence	Fine – $2000 Disqualification – 2 years
Liverpool Local Court	21/04/2011	Drive with low range PCA	Fine – $600
Liverpool Local Court	25/08/2011	Drive while disqualified from holding a licence	Community service order – 70 hours Disqualification – 2 years
Liverpool Local Court	14/07/2014	Drive motor vehicle during disqualification period – 2^nd + off	Imprisonment – 10 months (suspended on enter bond)
Bankstown Local Court	20/01/2016	Drive across dividing lines to do a U-turn – motor vehicle	Fine – $400
Bankstown Local Court	20/01/2016	Drive motor vehicle during disqualification period – 2^nd + off	Imprisonment – 12 months (suspended on enter bond)
Fairfield Local Court	04/12/2019	Possess prohibited drug	Community correction order – 12 months
Fairfield Local Court	04/12/2019	Drive motor vehicle during disqualification period – 2^nd + off	Intensive correction order – 15 months
Fairfield Local Court	08/10/2020	Possess prohibited drug	Fine – $250
Fairfield Local Court	08/10/2020	Drive motor vehicle during disqualification period – 2^nd + off	Imprisonment – 9 months (non-parole period – 6 months) Disqualification – 12 months
Parramatta District Court	01/12/2020	Drive motor vehicle during disqualification period – 2^nd + off	Order confirmed: Imprisonment – 9 months (non-parole period – 6 months) Disqualification – 12 months