Tran and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 323

Tran and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 323 (22 February 2021)
Division:GENERAL DIVISION
File Number: 2020/7979
Re:Trung Nghia Tran
APPLICANT

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

DECISION
Tribunal:Member R Maguire
Date:22 February 2021
Date of written reasons: 26 February 2021
Place:Brisbane

The reviewable decision is affirmed.
..............................[SGD]..........................................
Member R Maguire
Catchwords
MIGRATION – cancellation of Class B Subclass 115 Five Year Resident Return Visa – where good character test is not satisfied – whether there is another reason to revoke the cancellation of the Applicant’s visa – whether Australia’s non-refoulement obligations are enlivened – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Corrective Services Act 2006 (Qld)
Drugs Misuse Act 1986 (Qld)
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016)153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
REASONS FOR DECISION
Member R Maguire
26 February 2021
INTRODUCTION AND BACKGROUND

By application dated 3 December 2020, the Applicant seeks the review of a decision of a delegate of the Minister (“the Respondent”) dated 26 November 2020 made pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the decision made under subsection 501(3A) of the Act to cancel the Applicant’s Class B Subclass 155 Five Year Resident Return visa (“the visa”).[1]
[1] Exhibit G1, G Documents, G4 at page 15.
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period, provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg 2.52), and the decision-maker determines that the Applicant passes the “character test”, or, as provided under section 501CA(4)(b), there is another reason why the mandatory cancellation should be revoked. The Minister accepted that the Applicant had made the necessary representations within the prescribed period.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under section 501(6)(a) of the Act the person has a substantial criminal record as defined by section 501(7). Relevantly, section 501(7) states:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;…
The term “imprisonment” is defined to include any form of punitive detention: section. 501(12) of the Act.
The Applicant is a 64 year old male citizen of Vietnam.[2] The Applicant was born in Vietnam[3], and first entered Australia when he was 28 years old on 11 April 1985.[4] He has departed Australia in some instances for extended periods of time (including an absence of nearly 2 years and nine months between 25 December 1997 and 8 September 2000, an absence of approximately seven months between 25 May 2002 and 23 December 2002, and an absence of approximately seven months between 19 November 2008 and 24 June 2009). He has most recently entered Australia on 20 March 2016, and has not departed since that date.[5]
[2] Exhibit R1, Respondent's Statement of Facts, Issues and Contentions (SFIC) at page 1, paragraph [2].
[3] Exhibit G1, G Documents, G7 at page 35.
[4] Ibid at page 37.
[5] Exhibit R1, Respondent's Statement of Facts, Issues and Contentions (SFIC) at page 1, paragraph [2].
The Applicant’s first conviction in an Australian court was in the Melbourne Magistrates Court on 3 November 1986 when he was charged with a drink-driving offence committed on 20 June 1986, some 14 months after his arrival in this country. His blood alcohol content was .185%. On that occasion he received a $200 fine, his probationary license was cancelled, and he was disqualified from driving for 12 months. He did drive whilst disqualified, on 11 February 1987, and on 24 April 1988 he was again convicted of that offence in the Melbourne Magistrates Court and received a $500 fine. About six weeks after this conviction, he committed a further high range drink-driving offence with a blood alcohol concentration of .16% on 24 April 1988 for which he was convicted on 14 August 1989. At this time he was sentenced to two months imprisonment, suspended for 12 months and his car license was cancelled and he was disqualified from driving for a period of three years. In 1997 he was again convicted of a high range drink-driving offence with a blood alcohol concentration of .162% and was disqualified from driving for a period of 36 months. He also received a sentence of one month imprisonment to be served by way of an intensive correction order and his car license was cancelled and disqualified for a period of 36 months for unlicensed driving. He was again dealt with in the Ipswich Magistrates Court on 6 October 2006 for a high range drink-driving offence with a blood alcohol concentration of .2% and received a $1200 fine and one-year disqualification. He was subsequently convicted again in the Ipswich Magistrates Court on 26 April 2007 of disqualified driving and fined $800 and disqualified from driving for a further period of two years. On 26 November 2014 the Applicant was convicted of possessing dangerous drugs specified in schedule one under the Drugs Misuse Act 1986 (Qld) and received nine months imprisonment suspended for a period of 12 months. On 4 May 2015, the Applicant was convicted of a further offence of unlawful possession of suspected stolen property committed on 9 December 2013 and received a $200 fine. On 10 September 2019, the Applicant was convicted in the Supreme Court of Queensland at Brisbane for a number of drug-related offences committed in 2017, and received concurrent sentences of six years and four years for possessing and trafficking in dangerous drugs. A Serious Drug Offence Certificate was issued. He will be eligible for parole on 10 June 2021.[6]
[6] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions, pages 2 – 3;
On 17 February 2020, whilst the Applicant was serving a term of imprisonment (that is, in actual criminal custody) the Respondent, pursuant to section 501(3A) of the Act, decided to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test (substantial criminal record) on the basis that section 501(7)(c),[7] was satisfied i.e. that he had been sentenced to 12 months or more imprisonment.
[7] Exhibit G1, G Documents G20 at pages 114-119.
Notice of this decision dated 17 February 2020[8] was given to the Applicant by hand on that date. In accordance with Regulation 2.52(2)(b) the Applicant was invited in accordance with section 501CA(3)(b) to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant made representations to the Minister on 11 March 2020 within the period and in the manner specified.[9]
[8] Exhibit G1, G Documents G20 at pages 120.
[9] Exhibit G1, G Documents G6 at pages 29-32; G7 at page 33-48; G8 at pages 49-50; G9 at pages 51-54; G11 at pages 59-63; G12 at pages 64-65’ G13 at pages 66-67; G14 at pages 68-70.
On 26 November 2020, the Respondent, acting pursuant to section 501CA(4) of the Act, decided not to revoke the visa cancellation decision made under section 501(3A) of the Act,[10] and on 3 November 2020 the Applicant made the present application to this Tribunal for a review of that decision.[11] The Tribunal has jurisdiction to review this decision pursuant to section 500(1)(ba) of the Act.
[10] Exhibit G1, G Documents G4 at page 15; G5 at pages 16-28.
[11] Exhibit G1, G Documents, G1 at pages 1-2; G2 at pages 3-8.
The hearing of the instant application was initially listed for 3 and 4 February 2021. The hearing was initially conducted by telephone owing to internet issues at the Applicant’s place of incarceration. It became apparent that it was the intention of the Applicant’s representative to lead evidence from his client which fell under section 500(6H) of the Act. In the circumstances, the hearing was postponed until 11 and 12 February 2021 to enable the Applicant to provide a proof of evidence so as not to be excluded from consideration by the Tribunal in consequence of either section 500(6H) or 500(6J) of the Act.
At the resumed hearing, the Applicant was represented by Mr Nguyen, and the Respondent was represented by Mr McLaren of Minter Ellison. The Tribunal received oral evidence from the Applicant, who was in the migration zone on shore in Australia. The Tribunal also received written and oral evidence from the numerous witnesses set out below. The complete suite of written material forming the exhibit record is further particularised in the Exhibit Annexure attached hereto and marked “A”.
By operation of section 500(6L) of the Act, when an application is made to the Tribunal for a review of a decision under section 501CA(4) of the Act not to revoke a decision to cancel a visa, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1), the Tribunal is taken at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) to affirm the decision under review. At the hearing, Mr McLaren for the Respondent, and Mr Nguyen for the Applicant informed the Tribunal that for the purposes of this review, and section 500(6L)(c), the 84^th day is 22 February 2021. It is therefore open to the Tribunal to make a decision prior to midnight, 22 February 2021.
Given the adjournment of the final hearing of this matter, the Member formed the view that the most thorough review of the evidence and the most detailed written reasons could not be safely provided in time to meet the 84 day deadline. Based on the Tribunal’s intention to consider the material as fulsomely as possible and to deliver an appropriately detailed decision, the Tribunal published its Decision in this application pursuant to section 43(1) of the AAT Act on Monday 22 February 2021. In so doing, the Tribunal also met the requirements of section 500(6L)(c) of the Act. Attached to these Reasons and marked “Annexure B” is a true and correct copy of that Decision.
In accordance with the principles outlined by the Full Federal Court in Khalil v Minister for Home Affairs [2019] FCAFC 151 (“Khalil”), the Tribunal now publishes the written Reasons to the parties. In Khalil, the Full Federal Court said:
“41. The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84 day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271-273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required it to give its reasons, oral or in writing, within a reasonable time of the decision.
…
48. What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…”
[Tribunal’s underlining]
ISSUES
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:
4The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant made the representations required by section 501CA(4)(a) of the Act.
As provided in section 501CA(4)(b) of the Act, there are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[12]
[12] Minister for Home Affairs v Buadromo [2018] FCACF 151.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in section 501(6) of the Act. Under section 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 section 501(7). Section 501(7)(c) 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”. In addition, and as an alternative, section 501(7)(d) provides that a person will have a substantial criminal record if the person “has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.” Section 501(7A) provides that for the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part) the whole of each term is to be counted in working out the total terms.
The concurrent sentences of six years imprisonment and four years imprisonment imposed in the Supreme Court of Queensland on 10 September 2019 are clearly a serious criminal record for the purposes of both section 501(7) (c) and (d). In an undated statement[13] the Applicant acknowledged having been sentenced to six years’ imprisonment by the Supreme Court of Queensland.
[13] Exhibit A5.
The Tribunal therefore finds on this basis that the Applicant does not pass the character test pursuant to section 501(6)(a) of the Act and that the Applicant therefore cannot rely on section 501CA(4)(b)(i)[14] of the Act for the mandatory cancellation of his visa to be revoked.
[14] Note: This provides that the Minister is satisfied that the person passes the character test (as defined by section 501).
The remaining question therefore is found in section 501CA(4)(b)(ii), namely whether there is another reason why the original decision should be revoked.
As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[15]
…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[16]
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
[15] [2018] FCAFC 151.
[16] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016)153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
Ministerial Direction No. 79
In considering whether to exercise the discretion in section 501CA(4) of the Act, the Tribunal is bound by section 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[17] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[18]
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[17] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[18] The Direction, sub-paragraph 7(1)(b).
In paragraph 6.2(3) of the Preamble, the Direction provides:
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to… revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered… in making a revocation decision are identified in Part C of this Direction.
The principles referred to in paragraph 6.2(3) are found in paragraph 6.3 of the Direction, and 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-citizen’s in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In the circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen ’s visa should be cancelled, or the visa application refused.

Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case. Paragraph 8(2) provides that in applying these considerations, information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 8(3) provides that both primary and other considerations may weigh in favour of, or against, whether or not to revoke a mandatory cancellation of a visa. Paragraph 8(4) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 8(5) provides that one or more primary considerations may outweigh other primary considerations.
Three primary mandatory considerations relevant in the context of a revocation decision appear in Part C of the Direction at paragraph 13:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
The Tribunal notes and emphasises the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[19]
…Direction 65 [now Direction 79] 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] [2018] FCA 594 at [23].
The Tribunal now turns to addressing these considerations.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens 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 whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, paragraph 13.1 of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (1) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (2) those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction provides that decision-makers should 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.
In considering the nature and seriousness of the non-citizen ’s criminal offending or other conduct to date, decision-makers must have regard to several factors including those set out in paragraph 13.1.1 of the Direction:
(a)the principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)the principle that 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, are serious;
(d)subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act.
The first step is considering the nature and seriousness of the non-citizen’s conduct to date. Such conduct must be measured in accordance with paragraph 13.1.1 of the Direction having regard to the Applicant’s criminal history. The totality of the Applicant’s more serious offending can be gleaned from the following documents before the Tribunal:
(a)his criminal history which appears in a document called “Check Results Report” from the Australian Criminal Intelligence Commission;[20]
(b)the Transcript of Proceedings before Morzone DCJ who presided in the District Court of Queensland on 26 November 2014;[21]
(c)the Transcript of Proceedings before Ryan J who presided in the Supreme Court of Queensland on 10 September 2019;[22]
(d)the undated statement of facts in The Queen v Trung Nghia Tran and Thi Bup Mai;[23] and
(e)the Extract of records summonsed from the Queensland Police Service.[24]
Evidence
[20] Exhibit G1, G Documents, G15 at pages 71-72.
[21] Exhibit R2, Respondent's Supplementary Documents S15 at pages 64-72.
[22] Exhibit G1, G Documents G16 at pages 73 – 98.
[23] Exhibit R2, Respondent’s Supplementary Documents, S16 at pages 73 – 78.
[24] Exhibit R2, Respondent’s Supplementary Documents, S1 – S5 pages 1 – 48.
Applicant’s Criminal History
The Tribunal now turns to consider the specific transcripts referred to above.
When the Applicant appeared before Judge Morzone on 26 November 2014, he was charged with unlawful possession of the dangerous drug heroin, and pleaded guilty. The prosecutor’s remarks to the court show that police had located 1.06 gram of heroin contained in 6.8 grams of otherwise unidentified substance. The Applicant claimed to have been given the drug by an unknown male and told to go to Woolworths at Inala where he would be given money for the item. At the time, the Applicant had no serious criminal history. His Honour he had given answers to police which were “implausible” and “not candid”. The heroin was “packaged into saleable amounts of 1.7 grams, which is half of what’s called an eight-ball on the street and they’re worth a little bit, which is $1600. So they have a commercial potential”.[25]
[25] Exhibit R2, Respondent’s Supplementary Documents S15 at page 66.
Counsel for the Applicant told the court that his client knew that the packages that he had were drugs, and that they were illegal, but he did not know exactly what type of drug it was. He instructed his Counsel that he himself was not to be paid, but he accepted that there would have been a payment occurred between the two other parties. The Applicant accepted that what he had told the police was untrue other than for the part that he was transporting drugs. His Counsel stated “he essentially says ‘look, I’m a courier. I’m not involved in the business end of the trade.’ But I accept that he accepts that he knew that it had a commercial nature”.[26]
[26] Exhibit R2, Respondent’s Supplementary Documents S15 at page 67.
The prosecutor described the Applicant’s offence as “a low level commercial possession of a schedule 1 drug”. The prosecutor observed that “what is interesting is he has initially told police implausibly that he was just given it without knowing what it was, that he was going to get some money – $50 – and now he says he does know what it is, but he wasn’t going to get anything”. The prosecutor referred to the “dangerous nature of the drugs and that they’re going to find their way into the community and could harm others…”[27] The prosecutor also told the court that “The defendant today’s possession has a commercial element, which is a serious element”.[28]
[27] Exhibit R2, Respondent’s Supplementary Documents S15 at page 67.
[28] Exhibit R2, Respondent’s Supplementary Documents S15 at page 68.
Counsel for the Applicant (then the defendant) repeatedly stated and emphasised that his client was not a user of heroin, and was not a drug dependent person.[29] Counsel went so far as to say “He doesn’t have a drug addiction that he can aspire to defeat or to beat or to get away from so there will never be the factor of rehabilitation in his life. It doesn’t appear on any view of the circumstances that he would require some sort of supervision in the community for exactly the same reason. He’s essentially an elderly man who’s made a very silly decision and entered an early plea”.[30] Counsel for the Applicant concluded with the submission “one could only hope that a man without an addiction might be well aware of the precarious position that he has placed himself in.”[31]
[29] Exhibit R2, Respondent’s Supplementary Documents S15 at page 69, at line7-12; line 45-46.
[30] Exhibit R2, Respondent’s Supplementary Documents S15 at page 70, lines 20-25.
[31] Exhibit R2, Respondent’s Supplementary Documents S15 at page 70, lines 42-44.
Specific sentencing remarks of Morzone DCJ are not before the Tribunal.
On 10 September 2019, the Applicant was sentenced by Ryan J in the Supreme Court of Queensland on serious drug offences. Extracts of the Statement of Facts tendered to the Court include:[32]
[32] Exhibit R2, Respondent’s Supplementary Documents S15 at page 73.
During 2017, the State Drug Squad commenced operation Licorice, as part of ongoing operations, targeting the distribution and supply of heroin and methylamphetamine within the Brisbane region. The operation used various investigative techniques including lawfully intercepted telecommunication information, covert surveillance, mobile phone downloads, targeted intercepts and search warrants. During the investigation the defendants became targets of the operation.
The investigation uncovered TRAN was involved in carrying on a business of trafficking heroin and methylamphetamine during between 17 May 2017 and 02 August 2017 (76 day period) (Count 1 – TRAN only). The investigation ceased on 1 August 2017, (being the end of the trafficking period) when police executed a search warrant at the residence of both defendants. During the search, police found mobile phones, a large quantity of heroin, large sums of money and a hard drive storing CCTV footage.
Telecommunication intercepts
During the investigation, police obtained telecommunication warrants to intercept TRAN’s calls, and text messages, from 18 May 2017 (being the start of the trafficking period) to 9 August 2017. The intercepted information showed the following:
TRAN had established customer relationships
Customers often returned to him to purchase drugs
TRAN sold drugs on 130 occasions to 46 customers
Drug sales were conducted at TRAN’s residence and in public places such as Woolworths shops, at restaurants and TRAN’s business.
TRAN conducted his business using code to refer to drugs including:
Small one, one, 100, 1 Dong to refer to $100 amounts of a drug
Big one, two biggen, 2 Dong, 200 refer to $200 amounts of a drug.
350, 3.5, 35 to refer to 3.5 grams (“eight ball”) quantity
TRAN used multiple phones to conduct his drug business
TRAN sold drugs for cash and on credit
TRAN followed up outstanding debts
TRAN was aware he was selling drugs who were on selling the drugs.
Targeted intercepts
During the operation, police conducted targeted intercepts on 3 days being 6 June 2017, 20 June 2017 and 27 June 2017. The targeted intercepts establish the types of drugs TRAN was trafficking, the quantities and purity. The targeted intercepts establish TRAN conducted his business from various location in public places and his residence (sic).
6 June 2017
6 June 2017, telecommunication intercepts showed customer [Redacted] Tran (no relation) contacted TRAN and asked for two. TRAN agreed to supply [Redacted] Tran. They met at [Redacted] on Darra Station Road, Darra. Police surveillance saw TRAN and [Redacted]Tran enter the store. A short time later, [Redacted] Tran exited the store and drove away in a black Holden Vectra (QLD rego: [Redacted]). Subsequently, police intercepted the car, which was driven by [Redacted] LE and [Redacted] Tran was seated in the passenger seat. Police detained the car and both occupants.…
TRAN supplied heroin (Count 2 –TRAN only) and methylamphetamine (count 3 –TRAN only) to [Redacted] Tran. Prior to the drug transaction, TRAN possessed the drugs for a commercial purpose.…
20 June 2017
On 20 June 2017, telecommunication intercepts showed customer [Redacted] DUONG contacted TRAN and asked for “2 Dong”. They met at TRAN’s residence. … About 3 minutes later, police surveillance saw [Redacted] exit the house and enter the front passenger side of a Mazda CX-9 (Qld Rego: [Redacted]) and drive away. A short time later, police intercepted the Mazda … and found a tobacco pouch … containing an off white powder….
27 June 2017
On 27 June 2017, police intercepted TRAN driving along Poinciana Street Inala in response to information that TRAN was going to meet another person to supply drugs. Police saw 3 mobile phones in the car. The car and TRAN were detained. Police conducted a pat down search of the defendant and found a clip seal bag containing 5 off white coloured rocks wrapped in cling plastic (Count 5-TRAN only) and $605 (summary charge TRAN) Police asked TRAN what was in the plastic bag and he told them ‘it is for my hand it’s very sore’. Police arrested the defendant and took him to Inala Police Station. Police returned the mobile phones to TRAN and he was issued with a Notice to Appear for the drugs and money.
The Crown allege TRAN possessed the drugs for a commercial purpose based on the circumstances of arrest, the number of packages, the cutting agents present in substances, the similar purity of each package and the context of the operation in which police identified TRAN had drugs in his possession.
…
Detection and arrest
On 1 August 2017, police attended [Redacted] and TRAN’s residence to execute a search warrant. When police arrived they found…
A small plastic bag containing a while (sic) rock substance…
2 mobile phones…
An iPhone in TRAN’s pocket…
$100 in TRAN’s pocket…
A mobile phone inside a Louis Vuiton bag…
An iPhone inside a 12 volt mini air compressor box…
$300…
A mobile phone
an iPhone…
$1,340 in TRAN’s wallet
CCTV hard drive…
4 round discs and a small package…
1 round disc, a small bag containing 2 plastic bags and a plastic clip seal bag containing 8 smaller packages containing an off-white coloured rock substance…
TRAN on average made one (1) to six (6) sales per day and the type of drug sold varied depending on the transaction. TRAN commonly sold in $100 and $200 amounts.
Due to the multiple phones and phone numbers TRAN used the total number of transactions that occurred during the trafficking period cannot be precisely quantified. As the defendant’s expenditure and purchase price of the drugs could not be ascertained his total profit cannot be accurately quantified.
[underling represents heading in original report]
A transcript of submissions by Counsel on 10 September 2019 when the Applicant was sentenced on indictment for seven counts and two summary offences in the Supreme Court by Ryan J is before the Tribunal. The actual sentencing remarks of the judge are however, not before the Tribunal.[33]
[33] Exhibit G1, G Documents G16 at pages 73-98.
The Applicant was convicted on his plea of guilty of one count of trafficking in drugs, three counts of supplying a dangerous drug, one count of possessing a dangerous drug, one count of possessing a dangerous drug in excess of 2 g, one count of possessing a thing used in connection with trafficking in drugs, and in respect of bench charge sheet number 1187 of 2019, one charge of receiving tainted property and one charge of possession of property suspected of being the proceeds of an offence under the Drugs Misuse Act1986 (Qld). At sentence, the sentencing submissions made before Morzone DCJ were tendered.
Ryan J noted that the Applicant had previously been sentenced on the basis that he was not a heroin dependent person. The prosecutor observed “now I understand now he instructs that he has been an intermittent drug user of the heroin over 14 years. So it is a matter for your Honour as to what is now accepted as his level of drug use”.[34]
[34] Exhibit G1, G Documents G16 at page 82.
The prosecutor observed with regard to penalty:
Turning to penalty. The maximum penalty is 25 years (sic) imprisonment for trafficking in a schedule 1 drug and for possessing a schedule 1 drug over two grams on the basis the defendant is not a drug dependent person at the time of the offending.… If he was drug dependent, it’s 20 years. In my submission the aggravating features of the offending are that he has a relevant prior conviction for commercial possession of heroin. This is a sharp escalation of his prior offending.… This is a sharp escalation of his prior offending. The defendant was involved in trafficking two schedule 1 drugs. There was a very large quantity of drugs found in his possession, of which 55 grams was high purity, and the potential value of such an amount is between 5000 and 11,500 dollars per ounce. If the drugs are sold in gram quantities, the cost – or the value doubles.
…
He had a minor drug history of offending and a lengthy traffic offence history and he had demonstrated evidence of attempted rehabilitation at sentence.[35]
[Tribunal’s emphasis in bold]
[35] Exhibit G1, G Documents G16 at page 88.
Extracts of submissions made to the court by Counsel for the Applicant are as follows:[36]
[36] Exhibit G1, G Documents G16 at page 92 et seq.
So the defendant was 61 at the time of the offending. He is a permanent resident of Australia, having fled to Australia from Vietnam in 1985, first to Sydney and then on to Brisbane a year later. He’d previously had a wife, with four children, later six grandchildren, but that resulted in a divorce around about 10 years ago. He also has another son to another woman, who lives in Vietnam, who is three years old. He’s been back to Vietnam a few times, but his primary contact with his son is through FaceTime. And he also has FaceTime contact with his elderly mother who is aged 96 and resides in Vietnam.
When he got here, he worked primarily as a wine maker, but then in a shoe factory. In 1992 his hand became stuck in a machine at the shoe factory and he lost two fingers and had tendon damage, which had resulted in his diagnosis [of Kienbock’s disease]. After that he was provided a modest sum of money, which he lived off, but then went on to the Disability Support Pension. He has also had some casual work over the years in a bakery and other minor casual employment to do with light labouring.
As a result of him being a permanent resident, his Disability Support Pension was expired because he hadn’t updated his medical material or continued his medical material. So at the time of the trafficking, he had no income.
…
Her Honour: … It is astonishing that he wasn’t required to update it between then and whenever it was that it expired. You said just prior to the trafficking…
Counsel: Yes. I understand he had been updating, but he didn’t on that occasion about the trafficking.…
Her Honour. Yes. So when you say he had no income, that was because he didn’t update his medical…
Counsel: Yes, yes exactly.
Her Honour: So he wasn’t in dire straits for any reason to do with the cutting off of his welfare?
Counsel: No.
…
After his workplace injury, he was prescribed opiates and… then, approximately 14 years ago, commenced the use of heroin in lieu of those pain medications. He has had periods of abstinence from heroin, sometimes lengthy periods, but he does continue to struggle with the continued addiction. His addiction at times has been as bad as twice a day through to only requiring heroine once a week. More recently, he has used methamphetamine, but not with any of the regularity that he used heroin. I can indicate to the court that he’s been on bail since the 2^nd of August 2017, a period of about two years, one month and eight days, and he has no offending or breaches of bail in that time. On the advice…
Her Honour: How do I – sorry, Mr Cook, but how do I reconcile what you’ve just told me about that addiction with the submissions made to his Honour Judge Morzone?
Counsel: I’m told that at the time I have raised this with the defendant and received his instructions at that time, he was not addicted to heroin and he has had…
Her Honour: But you told me he developed an addiction to prescribed opiates…
Counsel: Yes.
Her Honour: … 14 years ago and then – which he took for – what did you say – six years?
Counsel: twenty years ago, so 1992 was the date of his injury.
Her Honour: Yes. He took…
Counsel: For about five or six years, he was on prescription opiates and then he developed an addiction…
Her Honour [indistinct] heroin.
Counsel: … From about 14 years ago. It’s been an on – and – of addiction, but there have been lengthy periods of abstinence. He instructs that is one of the periods.
Her Honour: Right.[37]
[37] Exhibit G1, G Documents G16 page 94 at line 35.

The Tribunal notes with concern the inconsistency between the account that the Applicant gave via his counsel to his honour Judge Morzone in the District Court on 26 November 2014, and the account given to Ryan J in the Supreme Court of Queensland on 10 September 2019. Whilst the Tribunal notes the explanation offered as to this inconsistency before the Supreme Court, there are further inconsistencies in the remainder of the material before this Tribunal. In the Application by Prisoner for Parole Order,[38] a Form 29 completed for the purposes of section 180 of the Corrective Services Act 2006 (Qld) in the section headed Substance Abuse, in response to the question “Do you have a problem with drugs or alcohol?” The Applicant replied “I have never had a problem with drugs or alcohol.”[39] Moreover, in the Queensland Corrective Services Rehabilitation Needs Assessment[40] the following appears:
During the interview prisoner Tran took no responsibility for his offence. Prisoner Tran reported that one (1) day when he was attending a local Vietnamese market he was approached by a friend who offered for his son to stay with prisoner Tran to provide lifestyle assistance including grocery shopping. Prisoner Tran reported that this boy offered him some heroin to use to assist with joint pain... Prisoner Tran reported that he used heroin for differing periods; between one (1) or two (2) occasions and over a twelve (12) month period. Prisoner Tran reported that he ceased heroin usage roughly two (2) years prior to coming into custody[41]….
[38] Exhibit R2, Respondent’s Supplementary Documents S27 at pages 101 – 107.
[39] ibid at page 103.
[40] Exhibit R2, Respondent’s Supplementary Documents S37 at page 138.
[41] ibid at page 138.
The Rehabilitation Needs Assessment commented:[42]
Prisoner Tran denied a history of alcohol abuse. He reported that over a period of roughly two (2) years he used heroin in differing period lengths. Prisoner Tran reported that he would use during (sic) the winter months to assist with joint pain. Prisoner Tran reported that he did not use every day but more sporadically (as needed) either over a couple of days, a couple of weeks or a year.
[42] ibid at page 140.
The Rehabilitation Needs Assessment continued to comment further:[43]
During the interview prisoner Tran placed all blame for his offending behaviour on a boy (roughly twenty five (25) years of age), a family friend, who was reportedly living with him. Prisoner Tran reported that the drugs involved in the offence (heroin) belonged to the boy. Prisoner Tran minimised his involvement denying that he knew anything about quantities. …
Prisoner Tran denied having family support in Brisbane. He reported that his now ex-partner resides with their two (2) year old son in Vietnam. Prisoner Tran reported that he helps by sending money home, when he can. Prisoner Tran also reported having three (3) adult children. He reported that the oldest was born in 1975.[44]
[43] ibid at page 141.
[44] ibid at page 141.
The Tribunal notes that the Applicant appears to have given at least four different versions of his heroin usage as well as an outright denial that he had ever “had a problem with drugs or alcohol”[45], and this leaves the Tribunal concerned as to which of these versions – if any – is true.
[45] Exhibit R2, Respondent’s Supplementary Documents S27 page 103.
Written evidence of the Applicant
In his Personal Circumstances Form[46] the Applicant described himself as a male person born in Vietnam. He stated that he first entered Australia on 11 April 1985. He stated that his wife’s name was Ms Pham, and she resided at an address at Goodna, which is where he proposed to live if he is returned to the community. He stated that his wife relies on him for almost all important matters in life from bills to medical health, and mostly, his love and support. He asserted serious health issues, apparently with reference to his wife. The Applicant did not disclose any minor children of his own,[47] neither did he disclose any other minor children in his life.[48]
[46] Exhibit G1, G Documents G7 at pages 33-48.
[47] ibid at page 39.
[48] ibid at page 41.
The Applicant disclosed family in Vietnam comprising his mother, one brother, and seven sisters. He also disclosed a sister living in Australia. He said that he had many relatives in Vietnam and that it was difficult to get details in respect of them. He disclosed two sons born in 1977 and 1979, and two daughters born in 1981 and 1983. When asked to state how many other relatives he had in Australia under the heading in Australia he recorded “too many to remember” and under other country he stated “all in Vietnam”.[49]
[49] ibid at page 43.
When asked to describe the impact of visa cancellation on his family, he stated:
We are a close-knit family – as an elder, I am a very important part of the overall family. They have come to terms with my mistakes and know I will not let them down again. They need me here.
When asked to outline factors he believed would help explain his offending he stated:[50]
As outlined in letter of explanation I desperately wanted to go back to see my very ill father. I did not have the money to go. I was offered the way of making some quick money. Foolishly, I accepted I will not do so again.
[50] ibid at page 44.
When asked if he had completed any courses or programs that would help him to avoid further offending, he stated:[51]
Very difficult for me to do courses – my age and language problems.
[51] ibid at page 44.
When asked to provide information on what he believed to be the risk of his offending in the future, he stated:[52]
No future risk. All I want is to go back to my family, to be a husband, father and grandfather.
[52] ibid at page 44.
The Applicant stated he had not studied in Australia but it worked from 1997 to 2018 as a baker, and from 1985 to 1996 in a shoe factory.[53]
[53] ibid at page 45.
In terms of positive contributions he had made to Australia, the Applicant stated:[54]
I have helped many other refugees with family support and any other help they needed.
[54] ibid at page 46.
The Applicant also asserted that he had helped many people in the community. He went on to say that he did have concerns about what would happen to him where he to return to Vietnam. He said that he left as a refugee and feared retribution. He said that he was far too old to start over again if he had to return to Vietnam. He also stated that he’d been a very good prisoner with no negative case notes. That he had worked hard and done everything he was told, and would have done more if he knew it would have helped him on release.[55]
[55] ibid at page 47.
In a two-page undated handwritten statement[56] the Applicant stated:
I left Vietnam as a refugee in a small fishing boat early in 1985. We eventually landed in Malaysia I flew to Australia on 11^th April 1985. I have lived more than half of my life here. My wife and four children were naturalised as Australians in 1995 I was offered citizenship at the same time, but had travelled back to Vietnam to visit my very ill father, so I missed that opportunity. I have been waiting for another offer to become a citizen since. I did not realise that I had to reapply. I have always tried to live the life of a decent man since I came here. I was tempted into doing the wrong thing when my mother, then my father became seriously ill I did not have the finances available to go back to see them as I desperately wanted to. Foolishly I accepted the offer to make some easy money so that I could go to Vietnam to see them. I regret those decisions every day. My family here need me and I need to be with them very much particularly my wife. She relies on me for most things in her life. Help in paying bills, medical issues, anything she does not understand. I will not offend again. This period in jail has shown me how much I value my freedom. I risked my life and my family’s lives to come here. I will do whatever the parole board or judicial system asked of me upon my release. I thank you very much for the opportunity to make this application to revoke the cancellation of my visa. If there is anything more you require, please let me know at your earliest convenience. It is very difficult for me to get certain information to you accurately while I am incarcerated. All the information I have given you is as accurate as I can provide from here.
Yours respectfully
Trung Nghia Tran
[56] Exhibit G1, G Documents G8 at pages 49 – 50.
The Tribunal has also had regard for a letter dated 7 July 2020[57] signed by the Applicant in which he set out extracts from the transcript of his counsel’s submissions before the Supreme Court, and made some observations in respect of them. For convenience, the Tribunal adopts the Applicant’s usage of font adjustment. Relevant extracts are as follows.
[57] Exhibit G1, G Documents G11 at pages 59 – 63.
Was prescribed opiates for six years that caused him to develop addiction, The defendant then used heroin in lieu of pain medication – This means the defendant was addicted not by his intention but the development pushed him to the addictive circumstance.
The defendant has periods of abstinence – This means the defendant did intentionally try to quit the addiction, wanting to get away from the drug addiction as well as drug commercial (sic) as the latter provided incomes to cover expenses for drug addiction.
The defendant on bail from 2 August 2017 until the Hearing Date with a total of two years, one month and eight days (not counting until today) no offending or breaching of bail in that time – This means the defendant is willing to repent and redress.
CONCLUSION: The above stated show evidence of the defendant is 64 years of age now – the age of managing self-thought of repentance and redressing. It’s for sure that this aged man would not offend or breach any more crime against like in the past (sic).
He is deserved to be permitted entitled his permanent resident visa to continue his life in Australia as the favour is given to the defendant by the Minister for Immigration (sic).
2 - the love of children & grandchildren – the Australian citizens
From the extract of the said Indictment, the defendant is born on 10 May 1956 arriving in Australia in 1985 as a refugee. He has four children with six grandchildren, they offers (sic) their love to him. One of his child, Mr NAM [Redacted] DOB:[Redacted] (M) made Statutory Declaration to request the Department of Home Affairs not cancelling his father (sic), the defendant – TRONG NGHIA TRAN as all children and grandchildren love him very much. They would lost (sic) the great father/grandfather if he would be cancelled his permanent resident visa in Australia (sic).
On the other hand, although he did return to stay in Vietnam with the consequence of having a three-year-old son, he endured in discrimination by local authority in Vietnam as he is a permanent resident in Australia under the refugee (sic).
In addition, the defendant is getting older and aged. He needs the sanitary and the medical circumstance of Australia, from which he has breathed the freedom and democracy for thirty five years. That’s such sanitary and satisfied medical circumstance in Vietnam of course is not fit for the aged person like the defendant.
This means the defendant is permitted to continue his life in Australia for the love and profound relation with his children and grandchildren also for meeting the medical requirement for his aged period (sic).
3 – contribution to Australia
At the early time of arrival in Australia the defendant did ever worked in wine make factory and ensure factory (sic). The injury was the consequence of losing two fingers. The following information disease were seen on two Medical Certificates from Dr [A] TRAN-GP of the defendant (attached but not before Tribunal) this disease and the cause and effect are described in there.
Conclusion is the defendant needs to be followed up and treated his disease with suitable method of treatment of his current treating doctor and with suitable medications (sic). As known that his fingers were cut off at workplace that prevented him from full capacity and energy of working in his life (sic).
The defendant is deserved to be entitled to the privilege of the Minister for Immigration not cancelling his permanent resident visa to allow him to continue living in Australia with his children and grandchildren and entitled the suitable medical and social environments of Australia (sic).
Witness Statements/ Statutory Declarations etc.
Trung Nghia Tran
The Tribunal has before it a document which is described as a “Statement made by the prisoner Trung Nghia Tran”, part of which is expressed in the first person, and part of which is expressed in the third person. The statement is unsigned and undated and then later submitted with siganture[58] with attachments which included the statements of his son Mr N.V. Tran dated 6 December, Mr Le dated 6 December 2020, and Mr Quach dated 6 December 2020, as well as a selection of Queensland Corrective Service records for which the Tribunal has had regard.
[58] Exhibit A5.
The statement records the support that the Applicant had from his family during the two-year bail, and repeated the expressions of remorse repentance and pledges to improve his life. It also referred to the support from friends, and the offer of employment at a restaurant in Inala. The statement also referred to a number of comments recorded in the Queensland Corrective Services documentation, and that he was regarded as a low security classification, and a low risk of reoffending. The statement also recorded that the Applicant “took no responsibility for his offence”.[59] Regarding the prospect of deportation, the statement provided:[60]
…If being deported to Vietnam in the circumstances of cancelled PR [permanent residency] visa the prisoner TRAN TRUNG NGHIA would encounter with the hard and maltreatment of local police authority, (sic) especially not allowing to register to Household Registration Book not entitled social benefit as a normal Vietnamese, to be monitored and followed up his daily social activities (sic).
In addition, he escaped Vietnam under a refugee and living in Australia for 36 years under the protection of the Australian government, which sent army to have joint military operations against Communist armed forces in Vietnam. He would face the great discrimination, if not hate by the local authority (sic). The prisoner TRAN Trung Nghia is deserved to be allowed to continue his life under the protection of the Australian government for the remaining of his life expectancy.… He need (sic) his medical conditions to be suitable followed and treated by current doctor in Australia and his children, possible his ex-wife to-be-reconciled with suitable cares (sic).
At the age of sixty five (65) years of age, he does not have energy and skill to set up his life again also called by the delegate “start over again”.
[59] Exhibit A5 at page 6.
[60] Exhibit A5 at page 9.
The statement stressed the familial love and support for him, and the support of good friends in the community and described the Applicant as a “refugee under the obligation of the protection of the Australian government”.
Mr N.V. Tran
Mr N.V. Tran provided a statutory declaration[61] dated 7 July 2020 to support his father. The witness declared that he had four siblings with a total of six children living in Australia. He spoke at the love and bond of the families and the feeling of great loss they would suffer if his father were to leave. He expressed concern about his father’s disease, and offered accommodation for his father. He described his father as aged and weak, and in need of his children to provide care and medical requirements in Australia. He said that his father had a good chance of repentance and redressing at his age and pointed to the fact that his father had complied with this bail.
[61] Exhibit G1, G Documents G12 at 64 – 65.
Mr N.V. Tran also provided a further statutory declaration dated 6 December 2020[62] in which he described himself as the Applicant’s second son, and representing all family members in his statement. He recorded the family’s commitment to give the Applicant their love, spiritual and financial support as well as accommodation upon his release from prison. He declared that his father had fallen in the instant circumstances of need of money, and had fallen into the trap of “the people masterminding the drug distribution”. He said that his father had expressed remorse and was repentant during the time that he was on bail. He spoke of his father’s good deeds in sponsoring his mother and siblings to reunite with him in Australia, and the Applicant’s love for his family and grandchildren. The declarant blamed the “bad people masterminding the drug distribution” for his father’s plight, and said they had exploited him. He stated that an unnamed family friend was prepared to offer his father full-time employment in his restaurant upon his release. He stated that with the support of family, it would be no need for his father to repeat his criminal acts, as he would be employed and have weekly wage that could affect his daily life.
Mr Le
[62] Exhibit A2.
Mr Le provided a statutory declaration dated 6 December 2020[63] in which he stated that he was a restaurateur in Inala. He said he had known the Applicant for four years. He stated that the Applicant had repeatedly expressed his remorse and repentance “to the criminal act of drug distribution to the drug addicts under the mastermind of the sly and clever drug trafficker”. He said the Applicant “did it without thinking twice because he was at the wall of poverty that he really needed money for the trip back Vietnam to visit his dying father and sick mother and the other time when he was addicted. This means he was enticed to the devil means by the clever masterminding person.” The declarant recounted the Applicant’s desire to live a normal life with his family. He also declared that he had offered the Applicant a job in his restaurant’s kitchen that he “…ever demonstrated in preparing foods for our small parties. We therefore admire that he is a talented Chef/Chef Assistant”. He declared that a regular wage would release the Applicant from any “enticed to the evil path in the past” and given the opportunity to live a normal life with his family in the Australian community.
[63] Exhibit A3.
Following the hearing, on 16 February 2021 the Tribunal received a further statutory declaration made on that date from Chac Van Le. The substance of the statutory declaration reiterated the declarant’s role as a restaurateur, his friendship with the remorseful Applicant, and his preparedness to offer the Applicant employment should he be placed on parole.
As this statutory declaration had not been provided to the Minister at least 2 business days prior to the hearing of 11 and 12 February 2021, it fell within the purview of s. 501(6)(J) of the Act, which would operate so as to preclude the Tribunal from having regard for it. In the exercise of its discretion, the Tribunal elected to re-list the hearing of this matter for 22 February 2021, for the purpose of receiving this document into evidence and allowing cross-examination in relation to it if required.
At the resumed hearing, the statutory declaration was admitted as Exhibit A10. Mr McLaren did not seek to cross-examine the declarant. The Tribunal has considered this declaration in reaching its decision. Mr McLaren did not seek to cross examine the declarant.
Mr McLaren submitted that the declaration did not take things much further than the original declaration, other than to confirm the offer of employment. This should be given limited weight as to a risk of re-offending in circumstances where the applicant was employed at the time of his offending.
Mr Quach
Mr Quach provided a statutory declaration[64] dated 6 December 2020, and said that he was good friends with the Applicant for over five years, and “used to advise him to stay away from the criminal act during his bail from 2017 to 2019.” He said that the Applicant had told him that it was because of the Applicant’s need for money that he was “drawn into the criminal act by the sly person who masterminded him to drug distribution and drug use.” He said that the Applicant had expressed full remorse and repentance over the phone and during a prison visit, and had pledged to manage a normal life in the community when released from prison. The declarant referred to the support the Applicant had from family members and good friends who would offer him employment. He spoke of the suffering the Applicant had endured during his time on bail and in prison and the benefit that his family members and good friends could provide to prevent him from being a recidivist. He said that the Applicant deserved to be entitled to leniency.
Dr A Tran
[64] Exhibit A4.

The Tribunal has before it a two-page report and accompanying medical certificate from Dr A Tran which, in summary, describe an injury to the left hand of the Applicant due to an accident with a pressure machine at a shoe factory in Melbourne in about 1989 As a result of this, the Applicant had amputations of half his index finger, half his little finger and his tendon in his left hand which is now left permanently weak and he has a very poor left hand grip. Further, a right hand wrist injury from 1997 which led to the development of a vascular necrosis of the right lunate Kienbock’s disease and permanent pain in his right hand and wrist; cervical spondylosis resulting in pain in his neck and pain and paraesthesia in his right arm especially when turning his head; and lumbar spondylosis. The report also listed a range of medical conditions including chronic gastritis and sinusitis, and a fracture of the right facial bone caused by a punch in the face some two years earlier. The report is undated, and the certificate was completed on 5 August 2019.[65]
Ms Pham – Applicant’s Ex Wife
[65] Exhibit G1, G Documents G14 at page 68.
Ms Pham provided a statutory declaration[66] dated 12 December 2020 in which she declared that she was the ex-wife of the Applicant, and that they had two sons, two daughters, and seven grandchildren. She said that she and the Applicant had a period of time living in happiness, but that later on he had travelled to Vietnam and “was enticed with the young beautiful women there”. They divorced, and he later had a son with a Vietnamese lady in Vietnam. She said that she later heard that he was involved in drug use and did “distribute small quantity of drug (sic) to drug users around Inala under the mastermind of the professional drug trafficker. He did it because he wanted to make some money for covering his costs of travelling to Vietnam and for drug for his use (sic)”. The declarant recounted an approach by the Applicant during his bail period, when he expressed his willingness to be a “true member, as husband, father and grandfather of the extended family.” The declarant also stated that the Applicant “pledged to be full remorse, repentant (sic) for the criminal action of drug use and dealing”. The deponent supported the Applicant’s desire to return to the community and have a normal life with his family members.
[66] Exhibit A1.
When the hearing resumed, Mr Nguyen opened his client’s case and said that his client deserved leniency, and requested non-cancellation of his visa. Mr Tran confirmed to the Tribunal that the documents submitted on his behalf were true and correct.
Oral evidence of the Applicant
Mr Nguyen did not lead evidence in chief from his client, but confirmed, the accuracy of the Applicant’s criminal history,[67] which was before the Tribunal.
[67] Exhibit G1, G Documents at pages 23-26.
The Applicant was cross-examined by Mr McLaren and confirmed that he was born in Vietnam at Tra vinh Province in South Vietnam and lived there until he grew up. His family in Vietnam are still there. He is currently 64 years old. In his early life he was a farmer. He married a woman named Ms Phan in 1974. He had a large family. His mother is still alive and is 98 years old. His father passed away in 2006. He was referred to his statement[68] as to how he had offended because his mother then his father had become seriously ill. He said that he visited his mother, and he had another uncle who also got sick. He said that he has a younger brother in Vietnam and has seven sisters living there also. He has a total of nine siblings, one brother and seven sisters in Vietnam and one sister in Australia. He said that his brother and sisters are very poor, and cannot afford to feed his uncles. One uncle has family and the other has a child who lives far away and does not care for the uncle. The Applicant has four adult children born in Vietnam and he sponsored them to Australia. The Applicant came to Australia via Malaysia in 1985. He had been in a refugee camp in Malaysia for about nine months. His purpose for leaving Vietnam was before 1975 he had to join the South Vietnam army and after communist occupation he was put in a concentration camp and escaped and left Vietnam about ten years after. He had unsuccessfully attempted to escaped earlier but was successful the second time. He came to Australia on his own, and did not bring his family, but they joined him about four years later. In Australia he arrived in Sydney and then moved to Melbourne where he sponsored his wife and children. He was referred to his Victorian criminal history,[69] and confirmed his initial contact with police was a drink driving offence with a blood alcohol concentration of .185. He could not recall the event exactly, but recalled he had to go to court. He was then referred to a charge of driving whilst disqualified. He said that he was working the night shift and had no one to take him to or from work, and had to drive. He said that he could not understand English and did not understand that his driver’s licence was cancelled.
[68] Exhibit G1, G Documents G8 at page 49.
[69] Exhibit R2, Respondent’s Supplementary Documents S23 at page 91.
The Applicant was further referred to another drink driving offence on 24 April 1988[70] where his blood alcohol concentration was .160%. He said that he could not recall the details but knew that he had a problem with drink driving. He confirmed that on the same date he provided a false name or address to the police, and was fined for driving unlicensed at that time. He said that his family was so poor he had to work and needed to drive to commute to and from work. He recalled that he was also caught for speeding but could not recall the details. The Applicant confirmed that he had worked for a shoemaker for a few years, and was injured and lost a couple of fingers in an industrial accident. He confirmed that he was again caught drink driving in 1996[71] in Victoria, but again could not recall details. He was also referred to an appearance before the court for unlicensed driving, careless driving, and failing to render assistance after an accident, but could not remember these charges.[72]
[70] Exhibit R2, Respondent’s Supplementary Documents S23 at page 90.
[71] Exhibit R2, Respondent’s Supplementary Documents S23 at page 90.
[72] Transcript pages 33-36.
The Applicant said that he injured his hand when working as a shoemaker. He said that in 1997 his hand was stuck in a machine. He subsequently received worker’s compensation and left his job. He recalled being represented by a barrister at his first hearing on drug charges. He was referred to the G documents,[73] and asked about the prescription of opiates and how he developed an addiction to opiates following his workplace injury. The Applicant said that his workplace injury was one part of it but he also had a back injury and young kids who stayed with him encouraged him to use heroin as a pain killer, and a young guy who shared a room in his house said the back pain would be better. He said that he started using heroin around 2014 until 2017. He was told that his barrister had told the court he had been using heroin for fourteen years, and said that when he was first introduced to marihuana and heroin came later. He was asked to state the year he first took heroin. He gave a lengthy response, and said that it was some time after 2000 but he could not recall the year. He then said that he started using heroin around 2004. He confirmed that he used heroin for fourteen years since 2004. He was referred to his barrister’s submission that there had been breaks in his usage and confirmed that this was correct.
[73] Exhibit G1, G Documents G93; Transcript, page 93.
The Applicant was referred to his movement in the G Documents.[74] The Applicant confirmed that since arriving in Australia he had made 26 trips out of Australia, and that all of those trips were back to Vietnam to visit his family and parents. He did not travel to any other country. He confirmed that between April 4 and 20 June 1996 he spent about two and a half months in Vietnam. He also confirmed that he spent from December 1997 to September 2000 in Vietnam. He said that he was in Vietnam for treatment for a condition similar to gout or arthritis. He had no money to travel back and his brother paid for his ticket to return to Australia. He left his wife and children in Australia when he was away for that period, but they visited him twice. In May 2002 he left for a further stay of seven months. At the time his father was sick and he had to stay and care for him. He also travelled between December 2015 and March 2016. He was asked regarding his stated fear of discrimination back in Vietnam, and that if he genuinely feared this he would not have made so many trips back there over the past 25 years or so. He said that he got an Australian visa and they looked at his personal file, and if he travelled his father had to sign papers to facilitate his stay. After his father passed away his mother had to sign the papers, and his parents had to bribe people so the authorities would leave him alone. He has not been imprisoned or placed in a concentration camp during any of his 26 return trips to Vietnam.
[74] Exhibit G1, G Documents G18 at pages 101-103,
The Applicant told the Tribunal that he started staying in Brisbane in 2000, and his wife and family then moved to Brisbane to stay with him. The Applicant said that he worked in a bakery or as a cook in a Chinese restaurant.
He was referred to his first contact with Queensland Police,[75] which was a further drink driving offence on 6 October 2006 with a blood alcohol content of .200. The Applicant said regarding numerous speeding offences in Queensland, that his friends used to borrow his car to go fishing, and he used to pay fines that came.
[75] Exhibit R2, Respondent’s Supplementary Documents S21 at page 87.
The Applicant was referred to his ex-wife’s statement where she said that they had divorced about ten years ago, and was asked when they had divorced, and said it was around 2009 or 2010. At the time of divorce he lived by himself at Inala. He was referred to his first drug related offence on 9 December 2013, and recalled being caught in possession of heroin on that date, and that he was holding six small rocks of the drug in his underpants. He recalled that he also had a stolen or missing bank card or debit card, and said he thought there was no money in the card, and he did not know how it got into his car. He confirmed that he told the police he had been approached to take the drugs to someone at Woolworths, but that what he told the police was true. He was referred to his barrister’s submission which attested to this.[76] The Applicant initially told Mr McLaren that he did not know the person who had given him the drugs. He said that he had reported the names of two people who gave him the drugs to transport. “Nha”[77] was the name of the person who asked him to deliver the drugs. He confirmed that his lawyer had stated that he was not a user of heroin, and it was put to him that this was not right. The Applicant said that he used to stop using heroin use at times, and that at the time that he went to court he was not using drugs right at that time. He did not recall how long it had been since he had used drugs at that time.
[76] Exhibit R2, Respondent’s Supplementary Documents S15 at page 67.
[77] Transcript, page 49, line 25.
The Applicant was referred to his incoming passenger cards[78] and on each occasion he ticked the box “No” in response to the question whether he had any criminal convictions. He said that one time he ticked yes and was detained, so he subsequently said no.
[78] Exhibit G1, G Documents G19, pages 104, 105, 106
The Applicant confirmed that he had one son living in Vietnam aged five years. He started the relationship with the boy’s mother in 2015 in Vietnam, and continued the relationship for about one year before she got pregnant. It was put to him that he had only been in Vietnam for short periods around this time. He said that he visited the child four times after he was born.
The Applicant was referred to an occasion when he was a robbery victim,[79] and said that his son owed money to the wrong people. He also said that at the time he was living by himself, and that he did not know the reason for the attack.
[79] Exhibit R2, Respondent’s Supplementary Documents S27; Exhibit G1, G Documents G16 at page 92.
The Applicant confirmed his most serious drug offending over a period of two and a half months in 2017. He was referred to the summonsed documents[80] where it was recorded that he was detected over a 76 day period on 130 occasions selling drugs to 46 customers. He said that legal aid lawyers told him to plead guilty to be released earlier. He was asked if he accepted that he was dealing in drugs, and said yes. His co-accused was his girlfriend until when he was arrested. The Applicant accepted that he was distributing drugs to customers, and that on 27 June 2017 he was found in possession of drugs and phones on that date. He also accepted that on 1 August 2017, Police found drugs cash and phones at his premises. The Applicant said that he was still working three hours each day for three days a week for a bakery around this time for $90 per week. He was referred to his lawyer’s statement that he had ceased receiving Disability Service Pension, and said that his pension had been cut, and that he was still receiving income at the time.
[80] Exhibit R2, Respondent’s Supplementary Documents S16 at page 73.
The Applicant said that he had not completed any drug rehabilitation courses in prison, and was not allowed to do any courses. He was referred to his statement where he claimed[81] his plan to live with his partner and daughter in Goodna, and where he stated that he had never had a problem with drugs or alcohol,[82] and it was put to him that this was not correct based on his heroin use.
[81] Exhibit R2, Respondent’s Supplementary Documents S27 at page 104.
[82] Exhibit R2, Respondent’s Supplementary Documents S27 at page 103.
The Applicant was also referred to his notice of placement,[83] where he had articulated “viable plans” should he be deported. The Applicant said that his family is very poor and if he returns to Vietnam he will have to work to support himself, and in Australia he will work in a restaurant.
[83] Exhibit R2, Respondent’s Supplementary Documents S34, at page 121.
The Applicant was also referred to his rehabilitative needs assessment,[84] where he blamed his offending on a boy about 25 years old who lived with him. He said this was correct because he followed the boy’s advice. If he had not followed him, he would have been okay. He was also referred to a statement where he denied trafficking and knowledge of the quantity of drugs involved.[85] He said he did whatever the boy told him. He persisted in denying knowledge of quantities of drugs, and said he was not allowed to receive money.
[84] Exhibit R2, Respondent’s Supplementary Documents S37 at page 141.
[85] Exhibit R2, Respondent’s Supplementary Documents S37 at page 142.
The Applicant was referred to his personal circumstances form,[86] where he said that his ex-wife relies on him for most important matters in her life. It was put to him that this was not correct as he had been apart from her for a number of years as he was in prison for a number of years. The Applicant said that if she gets sick he takes her to hospital. Even in prison he supports her mentally and spiritually, and are still good friends even though they have been divorced for ten years. He said she will look after him if needed, and she will return to live with him if he becomes a good person.
[86] Exhibit G1, G Documents G7 at page 38.
The Applicant was asked about his seven grandchildren six of whom are under the age of 18 years. His grandchildren are well cared for by their own parents. He last saw them before he was put in gaol, 2019.
Mr Nguyen had no questions in re-examination.
Oral evidence Mr N.V. Tran
The witness Mr N.V. Tran asked that his father be given an opportunity to stay in Australia. He said that his father had used his brother in law’s name when he worked for reasons the son did not know, as he could not obtain a tax number or something like that.
The witness said that his father cares for the family, and it is his duty to care for his father as he gets older, and he understands that everyone makes mistakes in their lives. He believes that his father has learned his lesson, and will fix his life up. He and his mother and brother and sister will give him another chance.
Under cross-examination by Mr McLaren, the witness said that he is 42 years old, and has lived in Australia since 1989. He said he was aware of his father’s use of heroin. He thought that it was when his uncle from Melbourne came up around 2000. He was still living at home at that time. He never saw him using drugs. He separated from his mother in about 2010. He said that he had heard about a drug conviction in 2014, but did not ask him about it. He has not seen his father since he has been in prison, and does not know which prison he is in. He has not spoken to him since a week or two before he went to prison.
The witness said his mother has no health issues that he knows of. He has two children and five nieces and nephews in Australia. He went back to Vietnam in 2001 for six months when he met and married his wife. He has been back four or five times since, and still has a lot of family in Vietnam. His father has a brother and six or seven sisters and they all have their own families.
Mr Nguyen made closing submissions on behalf of the Applicant, and said that his client his client could not fully recall some matters. He said that his client would face risk in Vietnam. Owing to accent and audio difficulties, Mr Nguyen’s assistant continued submissions, and said that during the 26 trips the Applicant held an Australian permanent resident’s visa and so the local police did not touch him. In addition he was guaranteed by his parents with bribery to local authorities to leave him alone. This was important as he was an ex-soldier of the armed forces of the Republic of Vietnam (ARVN). This was the main reason why he may be persecuted harmed or isolated in the community as the local police would monitor and follow his daily activities to find out if he should engage in any anti-communist behaviour against the Vietnamese government. Another key reason is that he was captured and imprisoned during his first attempt to escape from Vietnam. This has labelled him as a traitor to the nation as he was running away from his native country. His household registration book is used strictly to restrict the movement of the Vietnamese people and their lawful residence. His client should not have to register his name on such a document as he has already left Vietnam for 36 years. The Applicant has been supported by family members and friends to live a peaceful and normal life in the Australian community. The comments and assessments of the manager of regional sentence management during his period of incarceration show that he was of good character, disciplined and compliant and remorseful from the bottom of his heart. If he is permitted to live in Australia he would not act in such a way as to cause any harm or inconvenience to the community.
In reply, Mr McLaren raised a concern regarding the household registration issue was not provided in relation to this point. He could not recall the point being the subject of evidence. He referred to Household registration mentioned in the summonsed documents.[87] On the subject of non-refoulement, Mr McLaren said that the submissions on this point were vague and unparticularised. The Applicant asserted that he had not had problems because of permanent residence and bribes. But the evidence was extremely limited and not articulated in writing and certainly not in any level of detail. The claims fly in the face of the Applicant’s 26 returns to Vietnam since his arrival in Australia. The Applicant has travelled on a Vietnamese passport as shown in the incoming passenger cards,[88] and appears to have held one continuously over a lengthy period, and discussed in the Delegate’s decision.[89] Claims of fear are difficult in the extreme to reconcile with the number and frequency of his returns, and his evidence that he had never been apprehended or placed in a concentration camp. The Tribunal should find that there is no real risk of harm, and there is insufficient evidence or corroboration of the prospect of harm to engage consideration of Australia’s obligations of non-refoulement particularly having regard to that quite a number of his returns have been for significant periods of time, and should attract neutral weight, and does not weigh as a consideration favouring revocation.
[87] Exhibit R2, Respondent’s Supplementary Documents S45 page 199 and paragraph 5.33 at page 197.
[88] Exhibit G1, G Documents G16 at page 37.
[89] Exhibit G1, G Documents G3 at paragraph [47].

Mr McLaren submitted that the question for the Tribunal is whether there is another reason to revoke the decision to cancel the visa.
He submitted that protection of the Australian community required consideration of the conduct to date, and that all of the conduct relevant in this case is set out in the table of offending in the Respondent’s SFIC.[90] The most significant offending is that for which he was convicted in 2019, and the statement of facts and transcript. The Applicant engaged in drug distribution and trafficking conduct over a period of two and a half months and all of the offences form the basis for the visa cancellation, and this must be viewed very seriously by the Tribunal, and this is borne out by the substantial periods of concurrent imprisonment imposed. His earlier conviction in November 2014 for possession of heroin had a commercial element. The Applicant was a drug user for a period of 14 years with periods of abstinence. The Tribunal should take into account the Applicant’s poor driving record, particularly four separate episodes of drink driving over 20 years with significant blood alcohol readings and various less serious speeding offences, and summary offences committed in conjunction with his other offences – stolen bank card, tainted property, and proceeds of an offence and things used in the commission of a crime were less serious but in the same context.
[90] Ibid at [4].
He submitted that the Tribunal should find that the offending is very serious, and the sentences are very significant and indicative of the seriousness. The most recent offending is the most serious. The cumulative effect is serious, involving multiple instances of drug offences and driving offences.
Mr McLaren submitted that the nature of the harm which would flow from similar re-offending by the Applicant was self-evident in terms of the potential distribution of drugs in the community and personal and property harm. He also submitted that drink driving risks harm to the individual and others, as does speeding. As to likelihood of re-offending, Mr McLaren submitted that the Applicant says he is remorseful and compliant as a prisoner. However he sought to minimise his role in the offending, acting at the behest of others, but this was not borne out by the statements put to the Court, and he clearly well understood what was going on, employing different codes etc in his dealing, and the circumstances of his apprehension. The course of conduct in 2017 was not his only drug related offence. The Applicant has been around heroin for fourteen years, albeit with claimed periods of abstinence. Regarding the Applicant’s personal drug use, Mr McLaren said there were seemingly inconsistent stories, on the one hand it was because he was struggling financially, and did not have access to his pension when he wanted to return home to visit his parents and that this was inconsistent with the date of his father’s death. If his personal drug use was a risk factor, it must be accepted that there is a risk that he may return to drug use were he in the community. The evidence is that he has been a long term user with periods of abstinence followed by periods of relapse, and it must be found that there is some evidence of risk of slipping back into drug usage, and he has not completed any rehabilitation programs. There is a risk that he may face financial pressures in the future. He may have familial support in the form of accommodation and support, but he was working at the time of his prior offending, and his family support was previously available to him at the time of his offending, and did not dissuade him from offending in the past.
Were the Applicant to be released into the community he would be in circumstances similar to those which prevailed at the time of his offending. It was accepted that he had been a compliant prisoner and had a very general assessment of a low risk of offending, but that assessment did not take into account of all of the Applicant’s history. He submitted that the Tribunal should find that there is a real risk of the Applicant re-offending, and even if the risk of re-offending is low, it is unacceptable.
Regarding the best interests of children under the age of 18, Mr McLaren said that there is no suggestion that the Applicant has minor children of his own in Australia. His six minor grandchildren in Australia and any impact on them was the subject of a lack of evidence. The prima facie position is that it weighs in favour of the revocation of the visa cancellation. Considered in context he has not had a close relationship with the children, certainly before he went to prison. He is not in a parental role, and the children are well cared for by their parents. There is no evidence that the Applicant is likely to play a positive role into the future with respect to the children or the impact of his prior conduct or likely future conduct. There is no evidence that there will be any negative impact, and it may be accepted that modern means of communication would allow continued communication. There would be no legal impediment to the children visiting the Applicant were he to be removed. The Applicant’s children are filling the parental role, and there are no known views of the children, but there is a general statement that the children very much love their grandfather, and there is no evidence of adverse conduct by the Applicant This consideration should attract no, or extremely limited weight.
Mr McLaren’s submissions regarding the expectations of the Australian community were as per the Respondent’s SFIC, and that they weighed heavily in favour of non-revocation.
Mr McLaren referred the Tribunal to Paragraph 8(4) of the Direction, and submitted in accordance with it, greater weight should be given to the Primary considerations.
Regarding the consideration of the Applicant’s strength nature and duration of ties to Australia he submitted that the Applicant has resided in Australia for about 35 years apart from substantial periods in Vietnam, and he has clearly maintained significant ties to Vietnam. He has a large portion of his immediate family in Australia. The contention that his ex-wife relies on him appears farfetched, and is not supported by circumstances prior to his imprisonment. Relatively limited weight was to be given to this consideration and it does not outweigh protection.
Regarding the consideration of impediments faced by the Applicant if he is to be removed. Mr McLaren submitted the Applicant is a Vietnamese citizen, proficient in the language and there should be no cultural issues for him. His health is generally good but he does have hand issues. The Applicant is likely to have access to services broadly comparable to other citizens but probably not to the same level as Australia. He has substantial family remaining in Vietnam. This consideration should only attract limited weight in support of the Applicant’s case.
He concluded by submitting that primary considerations A and C should be given substantial weight and outweigh other considerations, and the decision under review ought to be affirmed.
Application of Factors in Paragraph 13.1.1(1) of the Direction
Paragraph 13.1.1(1) requires the Tribunal to give consideration to the nature and seriousness of the noncitizen’s criminal offending or other conduct to date. The Tribunal notes that the Applicant has a very serious traffic history including high range convictions for drink-driving offences. In addition to this, he has given differing accounts to police and courts of his conduct, provided a false name to police, and denied the prior commission of offences on incoming passenger cards. He has blamed a young family friend for his drug-related behaviour, and attributed his speeding fines to fishermen friends. He has sought to minimise his responsibility for his offences, but had not reported a willingness to complete recommended programs aligned with denial of all responsibility for his offending behaviour The Tribunal finds that a consideration of the Applicant’s criminal offending or other conduct weighs against revocation of the decision under review.
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously.
There is no evidence before the Tribunal that the Applicant has been involved in crimes of a violent and/or sexual nature.
Accordingly, sub-paragraph (a) of paragraph 13.1.1(1) of the Direction is given no weight.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.
There is no clear evidence that any victim of the Applicant’s violent crimes has been a woman or child.
An overall consideration of sub-paragraph (b) of paragraph 13.1.1(1) of the Direction is given no weight.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.”
There is no clear evidence before the Tribunal that the Applicant has committed crimes which fall into this category.
An overall consideration of sub-paragraph (c) of paragraph 13.1.1(1) of the Direction is given no weight.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes.
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 sentenced to two substantial periods of imprisonment of four years and six years for his serious drug-related crimes albeit to be served concurrently and further lesser sentences for his other convictions.
An overall consideration of sub-paragraph (d) of paragraph 13.1.1(1) of the Direction weighs extremely heavily against the Applicant.
Sub-paragraph (e) of paragraph 13.1.1(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.
Whilst there has been a lengthy period of years between the initial drug offence of the Applicant, has offended on multiple occasions, and his most recent series of offences occurred over a relatively short period of time. His most recent offending was described as being a “sharp escalation of his prior offending”,[91] a description with which this Tribunal respectfully concurs.
[91] Exhibit G1, G Documents G16 at page 85.
The Tribunal considers there is a trend of increasing seriousness in regard to the offending of this Applicant.
An overall consideration of sub-paragraph (e) of paragraph 13.1.1(1) of the Direction weighs extremely heavily against the Applicant.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
This Applicant has committed multiple serious drug-related offences and serious high level drink-driving offences. His offending in each instance was very serious, and this is exacerbated by the fact that it occurred on multiple occasions.
An overall consideration of sub-paragraph (f) of paragraph 13.1.1(1) of the Direction weighs extremely heavily against the Applicant.
Sub-paragraph (g) of paragraph 13.1.1(1) of the Direction points to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
The G documents contain a number of incoming passenger cards completed by the Applicant on entry to Australia between 2010 and 2016, in which the Applicant provided false information by failing to disclose his prior criminal offending. The Applicant’s oral evidence was to the effect that he did this knowingly so as to avoid delay or detention on entry. The Tribunal regards this conduct as being of an extremely serious nature.
An overall consideration of sub-paragraph (g) of paragraph 13.1.1(1) of the Direction weighs extremely heavily against the Applicant.
Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction requires consideration of whether the Applicant had received a formal warning from the Minister before the cancellation of his visa. There is no evidence of such a warning being delivered and the Tribunal assigns no weight to sub-paragraph (h).
Sub-paragraph (i) of paragraph 13.1.1(1) of the Direction requires the decision maker to assign weight to offences committed whilst the Applicant was in immigration detention. As this Applicant is currently still incarcerated in a prison, sub-paragraph (i) is not relevant.
Having regard to the totality of the evidence to which the abovementioned sub‑paragraphs (d), (e), (f), and (g) of paragraph 13.1.1(1) of the Direction are relevant, the Tribunal is of the view that the nature and seriousness of the Applicant’s offending conduct can be readily characterised as extremely serious.
Application of Factors in Paragraph 13.1.2 of the Direction
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2(2) respectively provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non‑citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
13.1.2 (a) The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Further criminal or other serious conduct on the part of this Applicant could well result in significant harm to individuals or the broader Australian community in the form of the potential for physical harm or death not only to drug users, but also to the victims of any further offences which might flow from drug usage or from other dangerous drug induced conduct such as operation of a motor vehicle whilst under the influence of drugs. Likewise, were the Applicant to again reoffend with a further high level drink-driving offence, there is a real risk of serious harm to other road users and members of the community.
Paragraph 6.3(4) of the Direction stipulates that decision-makers should be guided by the principle that criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa. On the basis of this paragraph 6.3(4), the Tribunal considers that the risk of similar conduct is unacceptable.
13.1.2 (b) The likelihood of the non-citizen engaging in further criminal or other serious conduct
Paragraph 6.3(4) of the Direction stipulates that decision-makers should be guided by the principle that criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa. On the basis of this paragraph 6.3(4), the Tribunal considers that the risk of similar conduct is unacceptable.
The Tribunal notes that the Applicant’s first serious drug offence occurred a number of years before his most recent offending, and it might be observed that one would have thought after that period of time his prospects of further offending were minimal, and could safely be discounted. However his 14 year history of intermittent heroin usage which preceded his most recent serious offending raises a strong concern that he may well commit further serious offences, even perhaps after a significant interval of good behaviour. Of great concern to the Tribunal is that the very serious drug related offending of this Applicant has occurred at a time when he was already a man of mature years, and at which many offenders have grown out of that sort of conduct. His capacity to distance himself from his former associates is untested in the community. Much of the familial and social support which he says he intends to rely upon was available to him when he previously offended. The Tribunal is concerned as to the extent to which the Applicant has owned up to and taken responsibility for his offending, or, more to the point, failed to.
There is no evidence that he has undertaken any significant rehabilitative program so as to assist him to leave his addiction and criminality in his past. The Tribunal is concerned as to his identified “rehabilitation needs in the areas of substance abuse, relationships, pro-criminal attitudes, and use of time …” and the fact that he “did not report a willingness to complete recommended programs, aligned with a denial of all responsibility for his offending behaviour.”[92] The Tribunal gives great weight to these observations, and considers that they detract from the assessment that the Applicant is a low risk of re-offending. The Tribunal considers that the Applicant is a serious risk of re-offending.
[92] Exhibit R2, Respondent’s Supplementary Documents S38 at page 144.
The Tribunal considers that having regard to the totality of the evidence before it, the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct is serious.
Conclusion: Primary Consideration A – Protection of the Australian community
The Tribunal has had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and has also had regard to subparagraph 6.3(4) of the Direction. The Tribunal finds that the nature of the Applicant’s offending conduct is very serious, and that there is an unacceptable risk that he will engage in further very serious conduct if returned to the Australian community.
Having considered the entirety of the evidence and each of the relevant factors contained in the Direction, the Tribunal finds that Primary Consideration A weighs extremely heavily in favour of non-revocation.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether cancellation is or is not in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(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 cancel the subject visa is expected to be 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.
It is first necessary to identify the children actually or possible relevant to this proceeding.
The Applicant is not the father to any minor children.
There is very limited evidence before the Tribunal regarding the Applicant’s interaction with minor children, and no statement from any minor child. The lack of evidence makes it difficult for this Tribunal to formulate any detailed reasons in regard to this consideration.
The extent of the Applicant’s relationship with his grandchildren has something of a question mark over it in consequence of his initial failure to even mention that he had any.[93]
[93] Exhibit G1, G Documents G7 at page 41.

In any event, the relevant minor children are apparently being well cared for by their respective parents, and appear to have been separated from the Applicant for a lengthy period while he has been incarcerated.
Notwithstanding the lack of evidence, the Tribunal is prepared to accept that the best interests of these children do weigh in favour of revocation of the decision under review.
Overall, the Tribunal considers that some limited weight in favour of revocation should be given to Primary Consideration B.
PRIMARY CONSIDERATION C: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1)[94] of the Direction provides that the Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. The Tribunal must also have regard to (1) the Government’s views in this respect and (2) any overarching principles and guidance provided by the Direction.[95] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that he/she should not hold a visa.
[94] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.
[95] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).
The Evolution of the Australian Community’s “Expectations”
In 2003, this Tribunal said that in considering weight attributable to this Primary Consideration C, one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[96]
[96] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] (per DP Block).
In 2017, Deputy President Forgie of this Tribunal considered that paragraph 13.3(1) of the Direction leads a decision-maker to:[97]
102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa… [Tribunal’s underlining]
[97] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
This more circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection (“YNQY”):[98]
In substance this consideration is adverse to any Applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any Applicant who has failed the character test and has been convicted of serious crimes.
[Tribunal’s underlining]
[98] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer also thought the last two sentences of paragraph 13.3 of the Direction:
…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] we do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…
[Tribunal’s underlining]
In Afu v Minister for Home Affairs (“Afu”),[99] Justice Bromwich said:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.
[Tribunal’s underlining]
[99] [2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs (“FYBR”),[100] Justice Perry observed that:
It follows, in line with the authorities, that cl 11.3 of Direction 65[101] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, 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. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...[102]
[Tribunal’s underlining]
[100] [2019] FCA 500.
[101] Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[102] See FYBR, paragraph [42] (Perry J).
The single judge decision in FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld the single judge decision in FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian community.[103]
[103] See FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a)the “expectations of the Australian community” cannot be measured or determined as a provable fact. Rather, it is an assessment of community values made on behalf of that community;[104]
(b)it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[105]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks the “expectations of the Australian community” are, and the Tribunal should have due regard of those statements, if made; and[106]
(d)in assessing the weight attributable to this Primary Consideration C, decision‑makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision-maker.[107]
[104] See Afu at paragraph [85].
[105] FYBR at paragraph [42].
[106] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[107] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
In weighing this consideration, there is no escaping the clear unequivocal language of the very simple proposition found in paragraph 13.3 (1) of the Direction. It is in these words. “The Australian community expects non-citizens to obey Australian laws while in Australia.” The language could not be clearer. Neither could the Applicant’s failure to meet this expectation.
This Applicant has significant breached his obligation to obey Australian law, on numerous occasions. He has been convicted of serious drink driving offences, and very serious drug offences. There is an unacceptable risk that he will do so again given the opportunity. The Tribunal believes the Australian community would strongly expect that this Applicant should not hold a visa.
Conclusion: Primary Consideration C
The Tribunal accordingly finds that this Primary Consideration C is to be given heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. The Tribunal will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant has claimed to fear harm if returned to Vietnam. This harm is said to stem from the fact that he is seen as a traitor and has previously escaped from a concentration camp. The Tribunal notes there is no corroborating evidence to support these claims.
The Tribunal has earlier expressed concerns about the credibility of this Applicant. One would have thought that if the stated fears were genuinely held, he would never have returned to Vietnam, not even once. Instead of that, he has given evidence that he has returned on no less than 26 occasions, sometimes, for quite lengthy stays. He gave evidence that he has never been incarcerated or placed in a concentration camp during any of these stays, and that this was because his parents had vouched for him and bribed local officials. Whether this evidence is true or not, it is clear that no ill has befallen the Applicant during any one of his visits so as to deter him from paying further visits. He has previously been able to “articulate viable plans” should he be deported, and reported that his “parents and siblings remain in Vietnam and will support” him.[108] The frequency and duration of his stays in Vietnam together with the fact that his wife and children even visited him there, suggests that his fears of returning are overstated. To the extent that they may be genuine, the Applicant’s evidence leads to the conclusion that he and his family know how to, and have a long track record, of successfully managing and minimising those concerns.
[108] Exhibit R2, Respondent’s Supplementary Documents, S34 at page 121.
The Tribunal is not satisfied that the Applicant has any real fears of returning to Vietnam, or that he would face any real risk of serious harm upon return to Vietnam.
In consideration of all of the circumstances, the Tribunal considers that the evidence does not lead to a conclusion that Australia’s non-refoulement obligations arise in this case.
This consideration does not weigh in favour of revocation of the decision under review, and the Tribunal gives it neutral weight.
(b) Strength, nature and duration of ties
The Tribunal accepts that this Applicant came to Australia as a 28-year-old, and although he has left and re-entered Australia on 26 occasions since arriving on 11 April 1985, he has lived in Australia for the great bulk of that time. The Applicant has a number of family members living in Australia, including his ex-wife, four adult children and seven grandchildren. He nevertheless maintains strong ties to Vietnam as is evidenced by the frequency and duration of his visits there. The Tribunal accepts that should the Applicant be deported, there will be significant emotional impact for him and all who are close to him. The Tribunal also accepts that the Applicant has social links in the Australian community, and appears to be well regarded by some people. He says that he has spent time contributing positively to the Australian community, and this may be true.
In having regard for this consideration, the Tribunal has had regard for the principles in favour of revocation of the decision under review 6.3 of the Direction, and in particular at subparagraph (5) where it is stated “However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.” The Tribunal accepts that the Applicant has resided in Australia for a substantial part of his adult life, and that many of his close friends and relatives are in Australia.
The Tribunal gives this consideration some limited weight in favour of revocation of the decision under review.
(c) Impact on Australian business interests
There is no evidence before the Tribunal that the cancellation of the Applicant’s visa would have an impact on Australian business interests, or would significantly compromise the delivery of a major project, or delivery of an important service in Australia. The Tribunal therefore finds that this consideration is not relevant to determination of this application, and gives it neutral weight.
(d) Impact on victims
There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any of his victims, and the Tribunal therefore makes no finding in relation to this consideration, and gives it neutral weight.
(e) Extent of impediments if removed
The Applicant was born and raised in Vietnam. He speaks the language, can be assumed to know his way around to understand the culture, and general life and systems there. His 26 return visits since coming to Australia as a refugee, suggest that he is not without a fondness for aspects of life there. He has many relatives there including a young son.
The Applicant is now a 64-year-old man, who appears to be generally in reasonable health although he does have issues with his hands and Kienbock’s disease discussed above. The Applicant is likely to have access to social, medical, and economic support in Vietnam comparable to that available to other citizens, although most likely not have the same standard as are available in Australia.
The Tribunal accepts that many of the Applicant’s friends and close relatives reside in Australia. However, he also has a significant family network in Vietnam.
The Tribunal considers that any difficulties he encounters adapting to life in Vietnam are likely to be short-term.
Overall the Tribunal views this consideration as being of slight weight in favour of revocation.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, with each weighing in favour of non‑revocation. The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: neutral;
(b)strength nature and duration of ties: some limited weight in favour of revocation;
(c)impact on Australian business interests: neutral;
(d)impact on victims: neutral; and
(e)extent of impediments if removed: slight weight in favour of revocation.
CONCLUSION
The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by section 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal finds as follows:
·Primary Consideration A weighs extremely heavily in favour of non-revocation;
·Primary Consideration B carries some limited weight in favour of revocation;
·Primary Consideration C weighs heavily in favour of non-revocation; and
·To the extent that Other Considerations (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 190 (one hundred and ninety) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

..............................[SGD]..........................................
Associate
Dated: 26 February 2021

Date(s) of hearing: 3 February 2021, 11 February 2021, 12 February 2021, and 22 February 2021

Date final submissions received:

16 February 2021

Advocate for the Applicant:

Mr T.V. Nguyen

Solicitors for the Respondent:

Mr D. McLaren, Minter Ellison

Annexure A – Exhibit Register

EXHIBIT No

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (G1 to G22 pages 1 to 156)

R

-

15 DEC 2020

A1

Statement of Mr Pham

A

12 DEC 2020

6 JAN 2021

A2

Statement of N.V Tran

Including attached citizenship certificate

A

6 DEC 2020

6 JAN 2021

A3

Statement of Mr Le

Including attached passport scan

A

6 DEC 2020

6 JAN 2021

A4

Statement of Mr Quach

A

6 DEC 2020

6 JAN 2021

A5

Statement of Tran Trung Nghia

Including attached:

Queensland Criminal History

Security Classification History

Statement of N.V. Tran

Statement of Ms Pham

Statement of Mr Le

Statement of Mr Quach

Trung Tran offender case file

Trung Tran Security Classification

Trung Tran notice of placement decision

Trung Tran rehabilitative assessment

A

-

20 JAN 2021

A6

Transcript of remarks of Ryan J (Supreme Court of QLD)

Included in G Documents (Ex G1)

A

-

7 JAN 2021

A7

Materials produced by QPS

A

-

7 JAN 2021

A8

Signed statement of Applicant

See document as Exhibit A5

A

28 JAN 2021

1 FEB 2021

A9

Signed List of Applicant’s Grandchildren

A

4 FEB 2021

4 FEB 2021

R1

Respondent’s Statement of Facts, Issues and Contentions (16 pages)

R

25 JAN 2021

25 JAN 2021

R2

Respondent’s Supplementary Documents (pages 1 – 200)

R

-

25 JAN 2021

Annexure B – Original Decision
Administrative Appeals Tribunal

EXHIBIT No	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G22 pages 1 to 156)	R	-	15 DEC 2020
A1	Statement of Mr Pham	A	12 DEC 2020	6 JAN 2021
A2	Statement of N.V Tran Including attached citizenship certificate	A	6 DEC 2020	6 JAN 2021
A3	Statement of Mr Le Including attached passport scan	A	6 DEC 2020	6 JAN 2021
A4	Statement of Mr Quach	A	6 DEC 2020	6 JAN 2021
A5	Statement of Tran Trung Nghia Including attached: Queensland Criminal History Security Classification History Statement of N.V. Tran Statement of Ms Pham Statement of Mr Le Statement of Mr Quach Trung Tran offender case file Trung Tran Security Classification Trung Tran notice of placement decision Trung Tran rehabilitative assessment	A	-	20 JAN 2021
A6	Transcript of remarks of Ryan J (Supreme Court of QLD) Included in G Documents (Ex G1)	A	-	7 JAN 2021
A7	Materials produced by QPS	A	-	7 JAN 2021
A8	Signed statement of Applicant See document as Exhibit A5	A	28 JAN 2021	1 FEB 2021
A9	Signed List of Applicant’s Grandchildren	A	4 FEB 2021	4 FEB 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (16 pages)	R	25 JAN 2021	25 JAN 2021
R2	Respondent’s Supplementary Documents (pages 1 – 200)	R	-	25 JAN 2021

ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2020/7684

GENERAL DIVISION )

Re: GNRK
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DECISION
TRIBUNAL:              Member R Maguire
DATE:   22 February 2021
PLACE:                    Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 26 November 2020 to not revoke the cancellation of the Applicant's visa.

The Tribunal will give written reasons for this decision within a reasonable time of the decision.

....................[SGD]...................
Member R Maguire

Date(s) of hearing:	3 February 2021, 11 February 2021, 12 February 2021, and 22 February 2021
Date final submissions received:	16 February 2021
Advocate for the Applicant:	Mr T.V. Nguyen
Solicitors for the Respondent:	Mr D. McLaren, Minter Ellison