Tran and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 3600

Tran and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3600 (16 September 2020)
Division:GENERAL DIVISION
File Number(s): 2020/3949
Re:Thi Doan Trang Tran
APPLICANT

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

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:16 September 2020
Place:Sydney

The decision under review is affirmed.
..............................[sgd]..............................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of visa – failure to pass character test – substantial criminal record – whether there is another reason for the mandatory cancellation to be revoked – ministerial Direction no. 79 – primary considerations – protection of the Australian community – the best interests of minor children – expectations of the Australian community – other considerations – extent of impediments if removed – strength, nature and duration of ties – weighing of primary and other considerations – Melbourne Corporation principle – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 43
Australian Citizenship Act 2007 (Cth) s 12
Children and Young Persons (Care and Protection) Act 1998 (NSW) s 9
Drug Misuse and Trafficking Act 1985 (NSW) ss 3, 33, sch 1
Evidence Act 1995 (Cth) Dictionary
Migration Act 1958 (Cth) ss 189, 196, 198, 499, 500, 501, 501CA, 501E, 501F
Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 79: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (20 December 2018) cl 6, pt C
CASES
Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123
Austin v Commonwealth (2003) 215 CLR 185
BFXK and Minister for Immigration and Border Protection (Migration) [2018] AATA 886
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Dang and Minister for Home Affairs (Migration) [2018] AATA 2095
Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 488
Do and Minister for Immigration and Border Protection (Migration) [2016] AATA 390
Falzon v Minister for Immigration and Border Protection [2018] HCA 2
FCFY v Minister for Home Affairs [2019] FCA 1222
Fortescue Metals Group Ltd v The Commonwealth (2013) 250 CLR 548
Fox v Percy [2003] HCA 22
FYBR v Minister for Home Affairs [2019] FCAFC 185
Georges and Minister for Immigration and Ethnic Affairs [1978] AATA 63
Green v R; Quinn v R [2011] HCA 49
H v Minister for Immigration and Citizenship [2010] FCAFC 119
Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897
Le and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3130
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Lester v State of Western Australia [2011] WASCA 128
Lord Mayor, Councillors and Citizens of the City of Melbourne v Commonwealth and Another (1947) 74 CLR 31
Meyrick v Minister for Home Affairs [2020] FCA 677
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Ngo v The Queen [2017] WASCA 3
PQSM v Minister for Home Affairs [2019] FCA 1540
Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192
Raibevu v Minister for Home Affairs [2018] FCA 2052
Raibevu v Minister for Home Affairs [2020] FCAFC 35
Re Ramazan Ali Babaei Somaghi v Minister of Immigration, Local Government and Ethnic Affairs [1991] FCA 389
Re Walsh and Commissioner of Taxation (2012) 130 ALD 200
Rooney v AGL Energy Ltd (No 2) [2020] FCA 942
SCJD and Minister for Home Affairs (Migration) [2018] AATA 4020
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
The Trustee for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273
Tran, Thi Doan v R [2020] NSWCCA 204
Vu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2876
VXKK and Minister for Home Affairs (Migration) [2018] AATA 3268
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
The Straits Times, ‘Vietnam sentences 11 people to death for drug trafficking’, The Straits Times (online), 8 October 2019 < Adam and Aaron Irving, ‘Practice and procedure: Cross-examination by video in the COVID-19 context’ (2020) 70 Law Society of NSW Journal 76
REASONS FOR DECISION
Chris Puplick AM, Senior Member
16 September 2020
BACKGROUND

After pleading guilty in the Local Court, Ms Thi Doan Trang Tran (Applicant) appeared before the District Court at Parramatta (NSW) on 26 July 2019 where she was sentenced for two counts of the offence ‘supply prohibited drug ˃= commercial quantity-SI’. As part of the sentencing process Bennett J, the sentencing Judge, also took into account the Form 1 offence ‘possess prohibited drug’.
Judge Bennett sentenced her to an aggregate term of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 3 months (expiring on 19 September 2021).
The Applicant was born in 1989 and is a citizen of Vietnam. She first arrived in Australia on 21 June 2012 as the holder of a Student (Temporary) (Class TU) (Subclass 573) visa. On 30 August 2013 she was granted a Bridging A (Class WA) (Subclass 010) visa (Bridging visa). This was granted in connection with the Applicant’s application dated 29 August 2013 for a Partner (Residence) (Class BS) (Subclass 801) and a Partner (Temporary) (Class UK) (Subclass 820) visa sponsored by her husband (Partner visa).
Where visa holders are convicted of an offence and sentenced to a term of imprisonment of 12 months or more, they are taken to have failed the “character test”[1] and their visa is subject to mandatory cancellation under section 501(3A) of the Migration Act 1958 (Cth) (Act). The cancellation of the Applicant’s Bridging visa took place on 4 March 2020 (cancellation decision).
[1] Migration Act 1958 (Cth) (Act) s 501(6)(a) and (7)(c).
At the same time, the application which was pending for her to be granted a Partner visa was consequently refused.[2]
[2] Ibid s 501F(2).
A person whose visa has been cancelled in such circumstances may make representations for that cancellation decision to be revoked on the basis that, although they have failed the character test, there is “another reason” why that revocation should take place.[3] The Applicant made such representations and provided submissions to the Minister (Respondent) in support of the revocation. These were considered by a delegate of the Minister who, on 25 June 2020, decided not to revoke the cancellation (non-revocation decision).[4]
[3] Ibid s 501CA(4)(a) and (b)(ii).
[4] Section 501G documents (G documents) at 13.
On 1 July 2020 the Applicant sought a review of that non-revocation decision in this Tribunal which heard the matter on 26 and 27 August 2020. The hearing was conducted via the Microsoft Teams platform as required by the COVID-19 restrictions imposed upon the Tribunal’s operations. The Applicant, her legal representatives, the legal representative of the Minister and the Tribunal all appeared through this platform, and evidence was taken from witnesses by telephone. The Applicant had the assistance of an interpreter in the Vietnamese language. Although the conduct of proceedings in such manner is less than ideal, the Tribunal is satisfied that all parties were accorded procedural fairness through this mode of hearing. Subsequent to the hearing, both parties provided further written submissions on a point of constitutional law raised by the Applicant’s Counsel.
Under section 500(6L)(c) of the Act, the Tribunal is required to make its determination within a statutory period of 84 days following notification to an applicant of the non-revocation decision. The 84^th day in this instance is 17 September 2020.
It is not contested that the Applicant fails the character test and, as a result, consideration must be given to whether there is “another reason” why the cancellation decision should be revoked. In assessing any such claims, the Tribunal is bound[5] by the terms of ministerial Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction). The Direction came into effect on 28 February 2019.
[5] Act s 499(2A).
THE APPLICANT’S PERSONAL NARRATIVE: PRIOR TO THE OFFENCE
The Applicant was born in Vietnam. Her parents and a younger brother remain resident there. In Vietnam, she completed high school and then undertook a four-year university degree in accounting which she completed in 2011. Thereafter, she undertook some study of English as a second language in Vietnam. She was granted a student visa to continue her studies in Australia. Apparently, she studied English in Australia for some six months before attempting to enroll in a finance course which did not proceed in the end due to lack of student enrolments. The Applicant then enrolled in a finance course at another institution, which she subsequently discontinued due to her poor English skills and consequent inability to keep up with the course.[6]
[6] Transcript dated 26 August 2020 (26 August transcript) at 10 [17]-[38].
On arrival in Australia in 2012 she resided with her uncle (Hoai Giang Nguyen) for about one year, or perhaps somewhat more.[7]
[7] Statement of Hoai Giang Nguyen dated 22 July 2020 at [17].
In July 2012 she met William Le Tran who, it is claimed, is an Australian citizen. The couple married in June 2013. In August 2013 the Applicant applied for a Partner visa sponsored by her husband. The temporary Partner (Subclass 820) visa was granted in March 2014. The couple lived together in the husband’s home which was shared with his mother.
The marriage was marred by acts of domestic violence committed by her husband which resulted in the Applicant leaving their family home in February 2017, at which stage she was seven months pregnant. The domestic violence consisted primarily of verbal and emotional abuse, constant denigration, and controlling and coercive behaviour on the part of the husband. It was the Applicant’s testimony that she was not subject to acts of physical violence. However, what she suffered was undoubtedly domestic violence.
Child S
In May 2017 the Applicant gave birth to a son (Child S). The child was born at Fairfield District Hospital, Prairiewood in NSW. For some reason the child’s birth certificate does not list a father/ male parent. It does indicate that the informant providing necessary details was the child’s mother “T. Tran”.[8]
[8] G documents at 130.
There is no explanation, in evidence, as to why Ms Tran would not list William Le Tran as the child’s father. She was married to, and living with, him at the time the child was conceived. She also knew that William Le Tran was an Australian citizen, although it is understandable that she might have been unaware that such paternity would have conferred Australian citizenship upon the child.
It is also possible that she was, at that stage, aware that the child was not William Le Tran’s child. She was obviously aware of having had extra-marital sexual relations and the Tribunal notes that Mr Watson-Munro, in his psychological assessment (see below), recorded that the Applicant had told him that, in relation to William Le Tran, “we had sexual problems … I could not meet his needs”.[9] It is also possible that she wanted to have nothing further to do with William Le Tran and as a result withheld his name from the birth certificate. There is evidence to the effect that William Le Tran wanted nothing to do with the child,[10] but it is unclear as to when this was first stated or became apparent. It is also the evidence that marital difficulties increased when the Applicant was no longer able to work and when she became pregnant.
[9] Psychological report on Thi Doan Trang Tran by Tim Watson-Munro dated 13 August 2020 (Watson-Munro Report) at 3.
[10] Respondent’s Tender Bundle at 18; Watson-Munro Report at 7.
In any event, the absence of a male parent’s name on the birth certificate led the then-NSW Department of Family and Community Services (FACS), when the child was taken into its care and a Care Plan (dated 31 January 2019) produced, to conduct a paternity test. The test was conducted “for the suspected father of [Child S], which indicated that the suspected father is not the biological father of [Child S]. The biological father of [Child S] is currently unknown to Community Services”.[11]
[11] Documents produced by Parramatta District Court (Applicant’s Tender Bundle) at 49.
The Tribunal presumes that the “suspected father” was William Le Tran[12] and that he either consented to the paternity test or some other method was found to obtain his DNA for matching purposes. It appears that the Applicant indicated to FACS that “the person who sponsored her visa application” (i.e. William Le Tran) was the biological father.[13] In any event he was ruled out as being the child’s biological father.[14]
[12] Further statement of the Applicant dated 19 August 2020 (Applicant’s further statement) at [5].
[13] Respondent’s Tender Bundle at 78 and 94.
[14] Ibid 77.
According to the Applicant, Child S was the child of another person with whom she had “a one-time encounter”.[15]
[15] Applicant’s supplementary statement of facts, issues and contentions dated 21 August 2020 at [5].
It is the Applicant’s testimony that this person (Jason Le) was “considered a part of my family. He is not biologically related to me, but he was and is still connected to my family because his cousin had married my cousin”.[16] The Tribunal rejects the characterisation of this relationship as “incest”[17] but accepts that it may be some culturally-recognised form of familial relationship.
[16] Applicant’s further statement at [15].
[17] Transcript dated 27 August 2020 (27 August transcript) at 66 [47].
The Applicant’s evidence then states that:
While visiting one of our relatives, they claimed that [Child S] deeply resembled a member of their family, who turned out to be Jason Le, and they insisted we carry out DNA testing once [Child S] retuned to Australia.[18]
[18] Applicant’s further statement at [9].
However, this is mere speculation and there is no evidence that such paternity test was undertaken or evidence of the results of such test. In the first place, the phrase “once [Child S] returned to Australia” indicates that these relatives met Child S in Vietnam. If that is the case this could only have come about when the child was taken there by his foster carer in November/ December 2019.[19] Why the foster carer should have breached Child S’s privacy and revealed that the child was not the son of the man to whom the Applicant was married at the time of his conception and birth, is unclear. Unless this breach of the child’s privacy had occurred there would have been no reason for the Vietnamese relatives to doubt the child’s paternity or to speculate on paternity being vested in another distant relative located in Australia.
[19] Respondent’s further submission filed on 26 August 2020: Passenger e-ticket receipt in the name of Child S.
The Applicant then told the Tribunal that some form of DNA testing was carried out that demonstrated the probability of Jason Le being the child’s father. Her exact testimony on this point was:
SENIOR MEMBER: … Now, you’re saying that Ms Tran has positively seen some DNA evidence which confirms the paternity of Jason Le?
MS YU:[20] Those are my instructions, yes.
[20] Counsel for the Applicant.
SENIOR MEMBER: Okay, well let me ask her then directly. Easiest thing isn’t it. Ms Tran, do you know if Mr Jason Le had a DNA test at some stage?
INTERPRETER: Yes, sir. He was tested for DNA.
SENIOR MEMBER: And did he tell you the results of those tests or did you see any documents about those tests?
INTERPRETER: I didn’t talk to him. I didn’t see the paperwork, the testing result, I just talk to the case worker about the DNA testing.
SENIOR MEMBER: Have you ever talked to Jason Le and told him that [Child S] is his child?
INTERPRETER: No.
SENIOR MEMBER: And has Jason Le ever admitted to you that he is the father of [Child S]?
INTERPRETER: Never.
SENIOR MEMBER: Did you ask Jason Le to undertake a DNA test yourself?
INTERPRETER: Never.
SENIOR MEMBER: Okay. Well, Ms Yu, Ms Donald,[21] you’ll understand my difficulty in this matter in terms of why Mr Jason Le would have turned up for a DNA test, who would have told him the result of the DNA test, the fact that there’s no documentation which links Jason Le with [Child S]. While there might be a strong presumption based on Ms Tran’s own evidence about her relationship with Mr Jason Le, there’s actually no physical evidence before the tribunal which establishes Jason Le as the biological father of [Child S].
MS YU: Yes, I agree with that.
SENIOR MEMBER: Yes. Thank you.[22]
[21] Solicitor for the Respondent.
[22] 26 August transcript at 38 [8] – 39 [3].
The best that can be said, in the absence of any acceptable evidence, is that Child S is the son of the Applicant and of an unknown male (other than William Le Tran).
Hence, there is no evidence before the Tribunal as to the immigration or citizenship status of the child’s biological father. In the absence of any such evidence, the only relevant status that the Tribunal can take into account is Child S’ Vietnamese nationality.[23] This is confirmed by the fact that the child has been issued with a Vietnamese passport dated January 2019 via the Consulate General of Vietnam in Sydney, a copy of which was presented in evidence to the Tribunal.
[23] Were it established that the child’s father is an Australian citizen or permanent resident, the child would be entitled to Australian citizenship under s 12(1)(a) of the Australian Citizenship Act 2007 (Cth).
Narrative resumed
When the Applicant left the family home, in February 2017, she stayed briefly with a friend, Thi Huong Le (known as Kat).[24] She was seven months pregnant at the time and gave birth in May at Fairfield District Hospital.[25] It is unclear as to where exactly she resided between May and August 2017 but in that month she moved in with a person who is the ex-wife of her uncle (Hoai Giang Nguyen) in Chippendale[26] where she appears to have remained until April 2018. This “aunt” also provided some initial care for Child S, although she (the aunt) subsequently entered into a relationship of her own which precluded the continuation of this care.[27]
[24] Respondent’s Tender Bundle at 20; Applicant’s Tender Bundle at 40.
[25] At the time of providing information for her child’s birth certificate she gave her address as being in Yagoona, NSW: G documents at 130.
[26] Respondent’s Tender Bundle at 20.
[27] 26 August transcript at 17 [30]-[33].
At about the same time that she concluded her casual employment working in a restaurant in December 2017 she became involved with a drug distribution syndicate which led to her arrest on 13 July 2018.
As a result of her arrest, Child S was removed from her custody under the provisions of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act). An order was made in the Children’s Court of NSW assigning interim parental responsibility for the child to the then-NSW Minister for Family and Community Services on 26 July 2018.[28]
[28] Applicant’s Tender Bundle at 38.
The Applicant was granted bail on 18 August 2018[29] and remained in the community until the date of her sentencing on 26 July 2019 from where she was transferred into custody. During the period of her bail it appears that she was back resident with her uncle.
[29] Ibid 28.
THE OFFENCE

The Applicant was involved in what the sentencing Judge referred to as “a sophisticated enterprise”[30] which involved the supply of cannabis to clients through the Australia Post network. Arrangements were made using the Dark Web and payment made using Bitcoin. In the Applicant’s case she was involved in the supply of 71.393 kilograms of cannabis between 30 January 2018 and 5 April 2018[31] and 35.219 kilograms of cannabis between 11 December 2017 and 3 April 2018.[32] Both amounts are well above the 25 kilograms definition of what constitutes a “commercial quantity” of cannabis leaf under the Drug Misuse and Trafficking Act 1985 (NSW).[33]
[30] G documents at 31.
[31] Respondent’s Tender Bundle at 59.
[32] Respondent’s Tender Bundle at 65.
[33] Subsection 3(1) and sch 1.
At the time of her arrest the Applicant was also found to be in possession of a small amount of cannabis, several mobile phones and several drug ledgers.[34]
[34] Respondent’s Tender Bundle at 64 and 69.
There were at least four persons immediately involved in this drug conspiracy, all of whom appeared before Bennett J in the District Court for sentencing on 26 July 2019.
The co-conspirators were Ms Thi Lan Vu, her husband The Giang Le and Thi Kim Dung Ha.
Ms Vu was sentenced to a term of imprisonment of 2 years and 6 months (non-parole period of 1 year and 3 months). Mr Le was sentenced to a term of imprisonment of 4 years and 6 months (non-parole period of 2 years and 6 months). The Applicant was sentenced to a term of imprisonment of 4 years and 6 months (non-parole period of 2 years and 3 months). Ms Ha was sentenced to a term of imprisonment of 6 years and 9 months (non-parole period of 3 years and 6 months).
The disparity in the sentences reflects that Ms Vu was found to have been a “reluctant participant” in the operations, largely coerced into participation by her husband and playing a relatively lesser role in the operation.[35] She was also only convicted for one offence. By contrast, at the other end of the spectrum, Ms Ha was found to be involved in a “higher level of misconduct that the other offenders” and hence received a substantially higher aggregate sentence.[36]
[35] G documents at 54.
[36] Ibid 80.
Mr Le and the Applicant were found by the Judge to have an equivalent level of involvement in the offences and hence were given the same aggregate sentence. Each pleaded guilty and was convicted and sentenced for two offences. The Applicant appealed her sentence on the basis that she should have been sentenced at a level more equivalent to that of Ms Vu but this submission and her appeal were rejected by the NSW Court of Criminal Appeal.[37] It is noted that while the head sentences for Mr Le and the Applicant were the same, Mr Le’s non-parole period was three months longer than the Applicant’s, although the Court of Criminal Appeal stated:
Any complaint about parity in respect of Le could have no merit. Le received the same head sentence but a longer non-parole period based on the differing subjective cases. It could not be said that in some way the applicant’s role was substantially less than that of Le and the different findings in respect of special circumstances were reflected in differing non-parole periods (the applicant obtaining the benefit of a shorter non-parole period).[38]
[37] Tran, Thi Doan v R [2020] NSWCCA 204.
[38] Ibid [61].
The reason for this shorter non-parole period can be found in the remarks of the sentencing Judge, namely that:
In this case the special circumstances I find are of greater impact than those that were relevant to Mr Le and so the custodial component of the head sentence of four years and six months that I am intending to impose will be slightly less. The additional consideration in her case is the existence of her little boy.[39]
[39] G documents at 78.
Sentencing remarks
The sentencing Judge noted that the Applicant did not give evidence in the proceedings (as was her right) and His Honour was “not troubled by that in the circumstances”[40] because he was able to rely upon the “wealth of material”[41] which His Honour had before him. His Honour noted that the Crown submitted that the Applicant “appeared to minimise her role in the syndicate” and “played something of a managerial role”,[42] although he found this latter point hard to decide.[43] Her principal activity in the syndicate was “securing the cannabis from Ms Ha, including the negotiation of price and quantities”. His Honour stated:
One need only review that facts as I have summarised them and perhaps go to the primary document to read the extent of her involvement in these crimes to see that she had a significant, perhaps as the Crown submitted, substantial role to play in the operation.[44]
[40] Ibid 70 and 74.
[41] Ibid 70.
[42] Ibid.
[43] Ibid 77.
[44] Ibid 73.
In determining her sentence, the Bennett J took into account the separation of the Applicant from her young son, the child’s poor health condition, the Applicant’s experiences as a victim of domestic violence and her guilty plea. His Honour remarked upon the Applicant’s level of anxiety and depression which may have “weakened her resolve and ability to cope”.[45]
[45] G documents at 76.
He noted that the sentence assessment report rated her as having a low risk of reoffending and that her “prospects of rehabilitation are good”.[46] He accepted that she had shown a degree of remorse for her actions.
[46] Ibid 77.
His Honour also drew attention to the fact that she engaged in the offending conduct due to some financial gain for herself and that “she felt pressured to provide financial support for her mother in Vietnam”.[47]
[47] Ibid 73.
APPEALS TO THE TRIBUNAL: VU AND LE
Both Ms Vu and Mr Le sought review by this Tribunal for revocation of the cancellations of their visas which had been mandated upon their sentencing for terms of imprisonment of more than 12 months. Their applications for review were heard separately, and decisions were made independently.
I heard the matter for Ms Vu and on 13 August 2020 I revoked the mandatory cancellation of her visa.[48]
[48] Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2876.
Member S Evans heard the application for review by Mr Le and on 20 August 2020 revoked the mandatory cancellation of his visa.[49]
[49] Le v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3130.
This does not, of course, in any way alter the responsibility of the Tribunal to assess each case on its own particular merits and to be conscious of the unique circumstances of each applicant.
The Applicant’s representative urged upon the Tribunal that it display a degree of “consistent approach” in dealing with the applications of individuals all of whom share a degree of similar circumstances which have brought them before the Tribunal.[50]
[50] 27 August transcript at 72 [42] – 73 [5].
The Tribunal is of course aware of the decision of the High Court in Green, addressing the parity principle, to the effect that:
“Equal justice” embodies the norm expressed in the term “equality before the law”. It is an aspect of the rule of law. It was characterised by Kelsen as “the principle of legality, of lawfulness, which is immanent in every legal order.” It has been called “the starting point of all other liberties.” It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:
“Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.” (emphasis in original)
Consistency in the punishment of offences against the criminal law is “a reflection of the notion of equal justice” and “is a fundamental element in any rational and fair system of criminal justice”. It finds expression in the “parity principle” which requires that like offenders should be treated in a like manner. As with the norm of “equal justice”, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.[51]
[51] Green v R; Quinn v R[2011] HCA 49, [28] per French CJ, Crennan and Kiefel JJ. Footnotes omitted.
Consideration of matters related to a mandatory cancellation of a visa or possible revocation of that cancellation are by definition not matters of punishment and cannot be treated as such.
It has long been recognised that the deportation of aliens does not constitute punishment. The cancellation of a visa as a step necessary to achieve the removal of a person from Australia should be viewed in the same light.[52]
[52] Falzon v Minister for Immigration and Border Protection [2018] HCA 2, [47].
The Respondent’s representative put it clearly to the Tribunal that its responsibility is to deal with each case or application on its specific and individual merits uninfluenced by any need for “parity” where the circumstances of the individuals or applications concerned vary (are not “relevantly identical”) and where their personal circumstances, submissions and responses differ (and so require different outcomes). This is the position adopted by the Tribunal.
EVIDENCE BEFORE THE TRIBUNAL
The Applicant
The Applicant gave extensive oral evidence to the Tribunal and provided written statements on which she was subject to cross-examination.
The Applicant had participated in an ERISP (electronically recorded interview of a suspected person) following her arrest but did not (as was her right) answer any questions.[53] Nor did she give evidence at her sentencing hearing. . As the sentencing Judge remarked, nothing adverse was drawn from this.[54] The result is that her testimony to the Tribunal can only be compared, where necessary, with other documentary material before it.
[53] Tender Bundle at 69.
[54] G documents at 74.
The Applicant gave an outline of her life prior to coming to Australia, the nature of her marriage and experience of domestic violence, her accommodation arrangements prior to her arrest, and the parentage and birth of her son, as recorded in the narrative above.
In testimony the Applicant asserted that she had no idea that cannabis was an illegal drug in Australia and hence that her activities in its distribution were illegal.[55] She told the Tribunal:
INTERPRETER: That person told me that the job is very simple and legal in Australia, it just look like something like - not like tobacco and actually the stuff that I have can help for treatment and cure diseases, such as cancer and epilepsy. And I would get paid about $1000 a week.[56]
[55] 26 August transcript at 22 [16]-[22].
[56] Ibid 21 [33]-[36].
She was, at the time before her offending, earning $300 per week working in a restaurant.[57]
[57] Ibid 14 [31]-[39].
She indicated that a motivation for being involved in the drug syndicate was in order to obtain enough money to help her mother repay certain debts which she had in Vietnam.[58]
[58] 26 August transcript at 16 [21]-[23] and 21 [44]-[47].
The Applicant described her role in the drug syndicate as:
INTERPRETER: I telephone to make orders for quantity and also, I make enquiries about the prices, the costs.[59]
[59] Ibid 19 [46]-[47].
The Applicant told the Tribunal about the continuing contact she had with her son after her incarceration and that her mother in Vietnam also keeps in touch with Child S on a regular basis.[60]
[60] Ibid 40 [22]-[25].
In her final statement to the Tribunal the Applicant spoke of her concerns about being separated from her child, the dangers which she and her child might face if returned to Vietnam, and her concerns about her health and access to medical care and treatment. She also expressed her remorse and deep regret for her actions.[61]
[61] 27 August transcript at 84 [34] – 86 [4].
Mr Watson-Munro
Mr Tim Watson-Munro is a highly experienced consultant psychologist who has provided reports on numerous occasions before the Tribunal specifically related to persons in circumstances similar to the Applicant.
Mr Watson-Munro interviewed the Applicant using telehealth facilities with the assistance of an interpreter and prepared a report dated 13 August 2020. He also gave oral evidence to the Tribunal and was cross-examined by the Respondent’s representative. Apart from taking the Applicant’s history he also made use of the Hare Psychopathy Checklist – Revised (PCL_R).
Mr Watson-Munro’s report described the Applicant as “highly educated”, “co-operative” in the interview and “psychologically troubled”. He reports that prior to her offending “her life was characterised by a high level of education, social endeavour, employment and essentially a pro-social attitude”. He notes that she reported that, in relation to her husband, “he was entirely unsupportive of her, with her gradually losing her sense of independence in the context of her pregnancy, her inability to work and him then allegedly denigrating her, which undermined her self-esteem”.
On this point it should be noted that Mr Watson-Munro’s report does not take account of the fact that the Applicant was pregnant to a person other than her husband, and it is not known if he (the husband) was aware of the fact that the child which she was carrying was not his own. Although his report describes “tensions in the marriage” and reports that her husband described her as “useless”. The report also notes that while the Applicant stated that her husband had been “entirely unsupportive” of her, she also stated that he had provided her with financial support for some “14 weeks” after they separated.
The report also indicates that the Applicant has expressed remorse for her actions, has gained some insight into her offending behaviour as a result of her incarceration and has used her time in custody in a positive fashion. He reports her concerns about potential separation from her son were she to be returned to Vietnam where she fears that she would suffer social disadvantage, discrimination and limited employment prospects. She expressed concerns about the impact of any return to Vietnam on her son were he to accompany her on her return. In his report Mr Watson-Munro makes no mention of the possibility of the Applicant returning to live with her parents or other family members in Vietnam, apart from noting that her father is in poor health, whereas if released to live in the Australian community the Applicant would reside with her uncle in Sydney.
In relation to the offending itself, Mr Watson-Munro described the Applicant as reporting to have been in a situation where she was suffering financial hardship in trying to look after herself and her child and was also stressed over the fact that “her mother had lost a significant sum of money in Vietnam and was having pressure brought to bear to repay the debt of approximately $70,000 Australian”.[62] He then concludes:
The confluence of these issues impacted upon her judgement at a level of significance and it was essentially in this context that she became involved in the offences for which she is now serving time.[63]
[62] This debt, in the sum of A$70,000, is referred to twice in the Watson-Munro’s Report at 4 and 8.
[63] Watson-Munro Report at 8.
The Tribunal notes that Mr Watson-Munro also reports that the Applicant advised him that “she has been diagnosed with abnormal cells, suggesting pre-cervical cancer”.
Mr Watson-Munro’s professional opinion is that “her risk of reoffending is low”, although she would require ongoing treatment for depression and anxiety.[64]
[64] Watson-Munro Report at 9.
Mr Nguyen
The Applicant’s uncle (Hoai Giang Nguyen) provided both a written statement to the Tribunal and appeared by telephone to give oral evidence. He has known the Applicant since she was a child in Vietnam and is the younger brother of the Applicant’s mother. He gave evidence that the Applicant lived with him when she first arrived in Australia and moved out when she formed a relationship with William Le Tran. During that time, he provided some assistance to her, allowing her to live rent-free with him and the other members of his family who were then residing with him and his wife. She then returned to live with him after she was bailed (by which time his own children had left home).
Mr Nguyen has made an application to be appointed as the carer for his great-nephew (Child S) and was insistent that this was something undertaken at his own initiative:
MS DONALD: Now you said - you’ve only told the tribunal that you have applied for care orders for Ms Tran’s son. When did you begin the application process?
INTERPRETER: We started the process four months ago. I attended a course for child care.
MS DONALD: And why did you decide to apply for the care orders? Was it - were you asked to by Ms Tran or can you just explain how this came to be?
INTERPRETER: It is quite for an honorary (sic) decision, I willingly decided to do so because I am her only family member in Australia.
MS DONALD: So, do I understand this correctly that you - it was you who offered to Ms Tran to apply for the care orders and it wasn’t something that was asked of you. Is that right?
INTERPRETER: Yes, it is my intention - my purpose.[65]
[65] 26 August transcript at 56 [17]-[34].
Mr Nguyen stated that “[e]verybody, my family is very close to each other”.[66] However, he professed to being told nothing in detail about the Applicant’s actual offences and he did not know anything of his sisters’ debts in Vietnam.
MS DONALD: … Mr Nguyen, are you aware of whether your - okay, I might withdraw that. Ms (sic) Nguyen, are you aware of the nature of Ms Tran’s offending?
INTERPRETER: I have heard about it but I don’t know much detail.
MS DONALD: So Ms Tran has not discussed the detail of her offending with you?
INTERPRETER: I don’t know all about the details, I just know that she has been sentenced to two years and three months in gaol.
MS DONALD: Thank you. Has your older sister, Ms Tran’s mother, spoken to you about having a financial debt in Vietnam?
INTERPRETER: I don’t know much about her debt, I just know that her life in Vietnam isn’t that comfortable. It’s (indistinct) she goes to work, she has to take care of her parents and her family.
MS DONALD: So she - your older sister has not spoken to you about a debt she owes to another person in Vietnam, is that correct?
INTERPRETER: I don’t know much about her debt. I don’t know much about her debt, I just know that she has a hard time putting food of the table for her family, to take care of her parents, and her husband is sick. [67]
[66] 26 August transcript at 56 [45]-[46].
[67] Ibid 57 [10]-[35].
He also vehemently denied that the Applicant had ever lived with his ex-wife:
SENIOR MEMBER: Okay. You don’t know if your - if Ms Tran ever lived with your ex-wife?
INTERPRETER: It is totally untrue. They have never lived with each other. They just know each other through me, they never lived with each other at any time.[68]
[68] Ibid 58 [20]-[25].
Nor did he have any knowledge of concerns over, or details of, Child S’s paternity:
SENIOR MEMBER: Thank you. Now, Mr Nguyen, were you ever made aware of the fact that William Le was not the father of the baby [Child S]?
INTERPRETER: I don’t know about that.
SENIOR MEMBER: You were never told anything about who [Child S’] biological father was?
INTERPRETER: I don’t know.[69]
[69] Ibid [27]-[35].
CREDIBILITY OF THE APPLICANT
Before consideration of the various criteria of the ministerial Direction, the Tribunal feels obliged to undertake a discussion of the Applicant’s credibility when appearing before it and making submissions. This will, in this instance, necessarily be a lengthy discussion.

The assessment of the credibility of the Applicant has nothing to do with establishing any questions of “good character”. It is a given that the Applicant has failed the character test. Assessment of credibility in this instance goes only to assisting the Tribunal in determining what weight should be given to each of the criteria it is required to consider, to the extent that such an assessment relies upon what the Tribunal has been told by the Applicant or how the Tribunal believes the Applicant will behave in the future.
The Tribunal has been able to observe the Applicant as a witness and weigh what she has told the Tribunal in her oral evidence against the material which is before it in documentary form.
Although the Tribunal is not bound by the rules of evidence,[70] in its approach to the issue of credibility, the Tribunal finds useful guidance in the definition of “credibility” given in the Dictionary of the Evidence Act 1995 (Cth):
credibility of a person who has made a representation that has been admitted in evidence means the credibility of the representation, and includes a person’s ability to observe or remember facts and events about which the person made the representation.[71]
[70] Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(c).
[71] Evidence Act 1995 (Cth) Dictionary pt 1.
The Tribunal appreciates that there is authority on both the utility of seeing a witness directly, especially where an original decision-maker has not[72] and, equally, caution about preferring assumptions drawn therefrom over documentary evidence.[73] The difficulty of assessing evidence and credibility issues, particularly in the context of using remote/ video technology, has been highlighted in several recent cases.[74] In Rooney, Snaden J said, albeit in the context of trial and adversarial proceedings:
A more significant factor warranting vacation of the existing trial dates is the need to expose key witnesses to the processes of in-person examination and cross-examination. Plainly, there are aspects of the trial—openings, closings and secondary witnesses, for example—in respect of which remote hearing technology will likely suffice. Other aspects, however—principally, the oral evidence of the applicant and the key decision makers within the respondent—don’t as easily qualify in that regard. As all parties rightly appreciate, the present matter will turn largely upon contested questions of fact. As with most general protections matters, the court’s assessment of the witnesses who are called to give evidence (or at least the key witnesses amongst them) will be paramount.
I acknowledge that some judges of this court have expressed the view that such assessments can be made as well by remote means as by traditional in-court examination: see, for example, ASIC v Wilson [2020] FCA 873, [35] (Lee J); Tetley v Goldmate Group Pty Ltd [2020] FCA 913, [16] (Bromwich J); and Capic v Ford Motor Company of Australia Limited [2020] FCA 486, [19] (Perram J). Those conclusions are, of course, personal to those who have drawn them. My own experience of present-day remote hearing technology is slightly less positive (although, I stress, not negative). I consider it a good and, in many instances, necessary “Plan B”. However, the available technology cannot fully replicate the court room environment that is so often central to an adversarial system of civil justice. In my experience, the technology inhibits (if not prohibits) the cadence and chemistry—both as between bar and bench, and bar and witness box—that personify well-run causes. Those are traditional forensic benefits of which litigants ought not too lightly be deprived: Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; (2009) 181 FCR 152, 171 [78] (Buchanan J). Further, the technology often begets delay, particularly when documents are to be supplied remotely. Although broadly reliable, it is not uncommon for connections to be momentarily of poor quality, occasionally to the point that they are unusable. All of these factors influence the user experience of a justice system from which all litigants are entitled to benefit.
Moreover, there is a sense of solemnity—perhaps even intimidation—that attaches to the receipt of oral evidence from a courtroom witness box that not even the best technology can replicate. When all witnesses (or crucial witnesses) in a matter are subjected to that same stage, the truth is less easily spun, and unsuccessful parties are less inclined or less able to find fault with the process that delivered their defeat.[75]
[72] Georges and Minister for Immigration and Ethnic Affairs [1978] AATA 63.
[73] Fox v Percy [2003] HCA 22, [30]-[31].
[74] See Adam Zwi and Aaron Irving, ‘Practice and procedure: Cross-examination by video in the COVID-19 context’ (2020) 70 Law Society of NSW Journal 76, 76-77.
[75] Rooney v AGL Energy Ltd (No 2) [2020] FCA 942, [17]-[19].
The Tribunal has also relied on documentary evidence such as the Agreed Facts and other material placed before the Court, the remarks of the sentencing Judge and other material submitted in evidence to the Tribunal which were not challenged. At the commencement of the hearing the Tribunal admitted into evidence certain documents, amongst which was a Tender Bundle submitted by the Respondent. This Tender Bundle contains, inter alia, Case Note Reports recorded by the NSW Department of Corrective Services who conducted a number of interviews with the Applicant while she was on bail, notes recorded by a psychologist (Leatrice Todd) on behalf of CSNSW/GEO[76] Psychology Services, a decision record by a delegate of the then-Minister for Immigration and Border Protection regarding the Applicant’s Partner visa application, correspondence between the federal Department of Home Affairs and the NSW Department of Family and Community Services, together with a statement of the Agreed Facts placed before the sentencing Judge and various reports by the NSW Police. None of this material was challenged by the Applicant.[77]
[76] Corrective Services NSW/ GEO is the private sector operator of the custodial facility.
[77] 26 August transcript at 3 [37] – 4 [18].
Similarly, the Tribunal admitted into evidence a bundle of documents provided under summons from the District Court at Parramatta and tendered by the Applicant. Included in this material was a psychological report by Mr Chafic Awit prepared on behalf of the Applicant and placed before the District Court (and referred to by the Applicant in submissions), and details of the Care and Restoration Plans for Child S.
There is a great deal in this material which calls into question the responses provided by the Applicant when giving her evidence to the Tribunal and where this has occurred the Tribunal prefers to rely upon the documentary evidence contained in the material identified above. Where that documentary evidence is contradicted by the testimony of the Applicant, that testimony has been given lesser weight and credibility.
The matters of concern to the Tribunal are as follows:
Cannabis as an illegal drug
On more than one occasion, the Applicant told the Tribunal that she did not know that cannabis was an illegal drug, and hence supplying it was an unlawful activity. Her evidence was to the effect that she believed it was something used to relieve pain and other medical conditions, such as cancer and epilepsy.[78] The Tribunal does not accept this as credible. The Applicant is, by all accounts, an intelligent person, with tertiary qualifications[79] and has a reasonable comprehension of the English language.[80] She grew up in Vietnam where she cannot have been unaware of the Vietnamese government’s “hard-line” opposition to the use of drugs and the fact that Vietnamese law provides the death penalty for certain drug-related crimes.[81] There is no suggestion that cannabis is not regarded as an illegal drug in Vietnam, however the Applicant professed not to know this.[82] During her 5 years in Australia leading up to her offending it is not credible that she would not have seen in the media (in both English and Vietnamese) that the possession and trafficking of cannabis is illegal.
[78] Ibid 22 [21].
[79] Ibid 40 [40]-[46].
[80] Watson-Munro Report at 3.
[81] In October 2019 eleven people were sentenced to death for drug related crimes in Vietnam: The Straits Times, ‘Vietnam sentences 11 people to death for drug trafficking’, The Straits Times (online), 8 October 2019 < 26 August transcript at 51 [17].
The paternity of Child S
The Tribunal has already outlined its concerns about the narrative presented by the Applicant regarding the paternity of Child S. There is no explanation as to why no male parent was listed by the Applicant on the child’s birth certificate. Concerns about the child’s paternity appear to have been raised as early as 29 November 2016 when the Minister’s delegate wrote to the Applicant stating the reasons why her application for a Partner (Residence) (Class BS) (Subclass 801) visa was being refused. On two occasions in that correspondence the delegate expressed concerns about “the paternity of the unborn child”.[83] The delegate also fundamentally questioned the entire basis of the Applicant’s spousal relationship and was “lead to conclude that these documents [i.e. those submitted by the Applicant) have only been prepared for the Department’s benefit and have been manufactured to project your relationship [with William Le Tran] in a more positive light”.[84] Taken together with the Tribunal’s previous comments about the DNA testing in relation to Jason Le, the Tribunal has concerns that the Applicant may not have been entirely forthcoming in relation to the paternity of Child S.
[83] Respondent’s Tender Bundle at 74 and 75.
[84] Ibid 72.
The role of Thi Huong Le (known as Kat)
It was the Applicant’s evidence that after the birth of her child she lived with Kat before she moved to live with her aunt in August 2017. She described Kat (without naming her) as a friend.[85] However, she was more than that. In the Child S’ Care Plan she is recorded as “SSI Kinship Carer and [Child S’] former Nanny”.[86] It was also Kat (together with Harley David Diepenthal – a person otherwise unknown to the Tribunal) who took Child S overseas in November/ December 2019 as his ”authorised carers”.[87] In July 2020 the psychologist Leatrice Todd records in her notes:
The community program [Child S] was with originally did not support his placement in the program because the foster carer (Thi’s friend) was not supporting it. It appears she was subsequently extorting money from Thi’s mother. [Child S’] placement was then changed again, to a family who have no links to Thi whatsoever, and they are not Vietnamese.[88]
[85] 26 August transcript at 46 [10].
[86] Applicant’s Tender Bundle at 40. SSI = Settlement Services International.
[87] Respondent’s Tender Bundle at 100.
[88] Ibid 55.
The Applicant made no mention of Kat’s role in the care of Child S which makes it difficult for the Tribunal to comprehend a complete picture of the child’s development and welfare when assessing his best interests as required by the ministerial Direction. Nor is there any mention of the alleged extortion of money from the Applicant’s mother by this source in Australia as distinct from any source in Vietnam.
Getting into the drug syndicate
The direct evidence of the Applicant was that she became involved in the drug syndicate through an initial contact with co-offender Le.[89] Her narrative was to the effect that a person who was standing over, or putting pressure on, her mother in relation to a debt of some $60,000 - $70,000[90] contacted her directly and gave her a contact for co-offender Le whom she then liaised with.
[89] 26 August transcript at 20 lines [20]-[45].
[90] The figure of $60,000 comes from conversion of the Applicant’s claim that the debt was “about 1 billion Vietnam dong”: 26 August transcript at 22 [4], and the figure of $70,000 comes from the Applicant’s statement to Mr Watson-Munro in his report at 4.
MS DONALD: What is your relationship with those people?
INTERPRETER: After I was introduced to them to work together, I became friends.
MS DONALD: Who introduced you?
INTERPRETER: The person who I work for.
MS DONALD: Which job are you talking about?
INTERPRETER: The person who my mother owe the money.
…
MS DONALD: So, someone your mother knew in Vietnam introduced you to Mr Le, is that you’re saying?
INTERPRETER: Le and I both work with that person.
…
MS DONALD: How did the person in Vietnam introduce you to Mr Le?
INTERPRETER: That person informed us through a group chat on the internet and told us to connect with each other.[91]
[91] 26 August transcript at 20 [21] – 21 [11].
Under questioning it emerged that this was far from being the origin of her knowledge of Le. In her testimony the Applicant admitted that she knew co-offender Le before this introduction and had actually met him in-person prior to the commencement of their joint illegal activities.[92]
[92] Ibid 27 [7]-[33].
In relation to the start of her contact with co-offender Ha, the Applicant told the Tribunal:
SENIOR MEMBER: And can you just tell me how did you meet Ms Ha?
INTERPRETER: The person whom I work for gave me Mr (sic) Ha phone number and telling me that when I need an order, I should dial this number.
SENIOR MEMBER: So, the person in Vietnam gave you both Ms Ha’s number and he also put you in touch with Mr Le?
INTERPRETER: Yes.[93]
[93] Ibid 23 [8]-[16].
This is entirely contradictory to the Applicant’s statement to the NSW Department of Corrective Services which records:
Thi’s mother is friends with one of the co-offenders HA – reportedly unaware of HA’s business but stated that Thi was in trouble and needed some assistance and organised for Thi to work with HA.[94]
[94] Respondent Tender Bundle at 20.
Ha was a principal of the drug syndicate and was sentenced as such, to a term of imprisonment of 6 years and 9 months, in the same proceedings in which the Applicant was sentenced.
The discrepancies in these two narratives relating to the Applicant’s relationship to Ms Ha was not put directly to the Applicant and she was not given an opportunity to comment upon them. As such, the Tribunal must not assign any weight to this specific aspect of its concerns about the Applicant’s credibility. However, it does independently find that the Applicant’s narrative about how she came into contact with co-offender Le is lacking in credibility.
The operations of the drug syndicate
The Agreed Facts state clearly that the drug syndicate operated by use of the Dark Web and with transactions negotiated in bitcoin.[95] The Agreed Facts were signed by the Applicant[96] and accepted by the Court.
[95] Respondent’s Tender Bundle at 58.
[96] Ibid 69.
In her evidence to the Tribunal the Applicant denied that she was using either the Dark Web[97] or Bitcoins[98] for transactions.
[97] 26 August transcript at 22 [24]-[27].
[98] Ibid 23 [4]-[6]. Example of use of bitcoin transaction recorded on phone used by offenders, including the Applicant: Respondent’s Tender Bundle at 59.
The Agreed Facts also record that the Applicant accompanied her co-offender Vu to a house in Sefton which they both entered, allegedly for the purpose of removing incriminating material before the premises was searched by the police. They then left the house together but thereafter departed in separate cars.[99]
[99] Respondent’s Tender Bundle at 64.
In her evidence to the Tribunal the Applicant outright denied that she had entered the house:[100]
MS DONALD: Did you go in the house?
INTERPRETER: No, I waited outside because I went together with my baby and I know that that stuff was something similar to tobacco. It could be harmful to children.
[100] 26 August transcript at 25 [46] – 26 [3] and [12]-[15].
The sentencing Judge referred, on more than one occasion, to suggestions about the Applicant “minimising her role in the offending behaviour”[101] and to her playing “something of a managerial role”[102] in the whole operation.
[101] G documents at 70 and 73.
[102] Ibid 70.
Her mother’s debt
The Applicant contends that her mother incurred a debt of A$60,000 – $70,000 by borrowing some money to give to a third party to invest on the basis that the interest from that investment would be used to support her daughter in Australia.
Her evidence to Mr Watson-Munro was to the effect that:
Compounding her stress, she stated that her mother had lost a significant sum of money in Vietnam and was having pressure brought to bear to repay the debt of approximately $70,000 Australian. It was essentially against this backdrop that her judgment and consequential thinking faltered, leading to her offending behaviour.[103]
…
She was also financially stressed both in terms of supporting herself and her child, as well as her experiencing some pressures in relation to her mother, who had evidently acquired a debt of approximately $70,000 Australian due to a failed business venture.[104]
[103] Watson-Munro Report at 4.
[104] Ibid 8.
In the psychologist report dated 7 July 2019 prepared for submission to the District Court and undertaken by registered psychologist Mr Chafic Awit it states:
She advised that apart from the financial difficulties she faced after leaving her matrimonial home whilst pregnant, she became aware of her parent’s financial difficulties. She advised that her mother had lent a friend a sizeable amount of money in 2017 and a payment plan had been agreed upon. Ms Tran advised that to date none of this money has been paid. She advised that she was worried that her parents would lose their home.[105]
[105] Applicant’s Tender Bundle at 88.
During His Honour’s sentencing remarks, Bennett J noted:
There is also the proposition that she felt pressured to provide financial support for her mother in Vietnam.[106]
[106] G documents at 73.
Although Bennett J referred to that proposition, His Honour is no more specific on the point, unlike his description of Mr Le’s position. The Tribunal accepts that this may well be the result of Mr Le giving evidence at the sentencing hearing and the Applicant not.
At the sentencing hearing for the Applicant and co-offenders, evidence was given on behalf of each of her three co-offenders. In the sentencing remarks in relation to co-offender Le, the sentencing Judge said:
His parents had borrowed altogether it would appear $70,000. It came from friends, or some of it at least came from friends in Vietnam and they were in need of funds to repay at least some part of the debt they had incurred; that explains why he engaged upon this crime.[107]
[107] G documents at 66.
The Judge noted of co-offender Le that:
His candour with regard to the motivation of committing this offence or these offences are commendable, I might say; it indicates that he went about this in an organised fashion in the sophisticated arrangement in place to make money and the reason he did that, according to his evidence, was to remit funds to his parents who had borrowed money for his progress here in this country. They were in need of funds to repay the debt they had incurred in Vietnam in doing so and that is what he was about when he committed these crimes.[108]
[108] Ibid 64-65.
It utterly strains credulity that two people who, the Applicant claims, were virtually strangers to each other, both have parents in Vietnam who owe a debt of exactly the same amount ($70,000) which each feels a compulsion to help repay.
When she appeared before the District Court the Applicant’s submission, in her then-psychological report (by Mr Awit), was that her mother had lent money which was not being repaid, hence putting her family in financial difficulty and at risk of losing their home. This is inconsistent with the statement which the Applicant made to the NSW Department of Corrective Services dated 3 June 2019 which records that:
Her mother made an arrangement in Vietnam to give her house to the bank in order to support Thi however some activity occurred that resulted in her mother being in large debt that Thi felt responsible for and wanted to pay her mother back.[109]
[109] Respondent’s Tender Bundle at 20.

In May 2020 the Applicant had a conversation with the psychologist Leatrice Todd who recorded that:
She said she felt pressured because her mother was in debt and she was trying to help her. She said the “man” she became involved with in relation to her offence, had threatened her and that he would hurt [Child S]. She states she feels that she now knows she should have just reported this to police/authorities. She is also relieved that the “ma[n]” is no longer “around” and her mother or her have not been contacted by him at all.[110]
[110] Respondent’s Tender Bundle at 52.
By the time the Applicant spoke to Mr Watson-Munro in July 2020 the debt had morphed from being some unspecified lent/ borrowed amount (perhaps with the house as security) to being a debt of precisely the same figure as Le had exposed to the Court.
The discrepancies in the Applicant’s testimony were exposed to the Tribunal in the closing submissions of the Respondent[111] and open to refutation by the Applicant in reply. There was no effective refutation offered.
[111] 27 August transcript at 76 [37] – 77 [9].
The threat to her child and family
In evidence, the Applicant stated that she refused to name the “man” who allegedly introduced her to the co-offender Le and the offending activity because he posed a potential ongoing threat to her family.[112]
[112] 26 August transcript at 60 [15]-[27].
The Tribunal notes that although the Applicant expressed fears of violence from the unnamed source in Vietnam, this was not something which appeared to be of concern to her when she advised both the NSW Correctional authorities and their psychologist, nor the child protection agencies, that she wished to return her child to Vietnam, either with her or in the custody of her mother (see below at 161).
Despite the Applicant stating that her mother’s debt has only been partly repaid by her, without providing any evidence to substantiate this point, the Applicant was nevertheless of the belief that the threatening individual no longer appears to be in contact:
INTERPRETER: I thought I was able to pay back about 11 or 12,000-and something.
MS DONALD: And so there still remains some 48, $49,000?
INTERPRETER: Yes.
SENIOR MEMBER: Ms Tran, does your mother say that she is still expected to pay that money back?
INTERPRETER: Since I got arrested that person has made no contact with my mum.
SENIOR MEMBER: Yes. So in fact this gentleman has not been in contact with you or your mother for some time, is that correct?
INTERPRETER: That’s right.[113]
[113] 26 August transcript at 33 [9]-[25].
It should also be noted, as mentioned above, that Child S has relatively recently travelled to Vietnam. Although the Applicant indicated that she was not aware of this trip until after the fact, she has not raised any concerns about this trip and any alleged threat from the “man” to the child on this occasion.
Relations with her uncle (Mr Nguyen)
The Applicant’s uncle provided a written statement in support of the Applicant and indicated that he was in the process of applying to be the registered carer for Child S, his great-nephew. It is unclear as to the status of this application which appears to be awaiting the decision in this matter before being progressed. In his evidence to the Tribunal, Mr Nguyen indicated that the initiative to become Child S’ carer was his because he was the Applicant’s “only family” (see above).
Other evidence is more equivocal on this point. The NSW Department of Corrective Services’ Case Note Report dated 17 June 2020 states that “[s]he is trying to get her uncle to be the carer and court is pending in Sept 2020 for her child care matters”[114] and her statement to the same authorities in May 2019 was to the effect that “[s]he has one uncle who lives in Cabramatta with limited to no contact”.[115] In October 2019 the Applicant also told the psychologist Ms Todd that she “[h]as family in Australia, such as her cousins, however she said since being arrested they don’t want anything to do with her”.[116]
[114] Respondent’s Tender Bundle at 37.
[115] Ibid 18.
[116] Ibid 49.
In his evidence, Mr Nguyen made it clear that he had little or no knowledge of the nature of the Applicant’s offences. He described the family as being “very close” but had no knowledge of his sister’s debts in Vietnam or any knowledge about his great-nephew’s paternity. He also vehemently denied that the Applicant had ever lived with his ex-wife.
The Applicant offered an explanation for the discrepancy in testimony as to this latter point as being due to the fact that Mr Nguyen and his ex-wife were somewhat hostile after their divorce and so the Applicant did not want to upset him by telling him of her previous relationship with the ex-wife.[117]
[117] 26 August transcript at 60 [29]-[34].
Summary of concerns
Nearly all of these matters of concern were raised expressly with the Applicant as part of her giving testimony to the Tribunal. Others arise from a comparison of her differing statements given at different times to different authorities, all of which were in evidence. The critical issues of inconsistency were drawn to her attention and others were assessed on “an obvious and natural evaluation of that material”[118] which was before the Tribunal.
[118] Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074, [29]; Re Ramazan Ali Babaei Somaghi v Minister of Immigration, Local Government and Ethnic Affairs [1991] FCA 389, [9].
Consideration of all these matters, with no one concern determinative but rather all concerns taken together, lead the Tribunal to have grave reservations about the truthfulness and candour of the Applicant and the veracity of significant parts of her testimony and submissions.
MINISTERIAL DIRECTION NO. 79
Decision-makers are required to give consideration to each of a series of criteria outlined in the Direction which is prefaced by a statement of principles to guide in its interpretation. Those principles provide that:
(a)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(b)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.
(c)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 to forfeit the privilege of staying in, Australia.
(d)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 these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(e)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.
(f)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 should be allowed to come to, or remain permanently in, Australia.
(g)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 their visa application refused.[119]
[119] Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 79: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (20 December 2018) (Direction) para 6.3.
Guided by these principles, the decision-maker must take into account the “primary considerations” in Part C of the Direction in deciding whether to revoke a mandatory visa cancellation.
The primary considerations are listed as:
(a)protection of the Australian community from criminal and other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
The decision-maker must also take into account “other considerations”, some of which may be relevant and others potentially not. These include but are not limited to:
(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 is required to consider each issue in turn. However, it is important to emphasise other aspects of the deliberative process:
(a)While the Tribunal must be guided by the ministerial Direction and give effect to its provisions and requirements, when considering the totality of the evidence “[t]he choice of, and weight given to, the material before a Tribunal is a matter for it”[120] and “[t]he Tribunal is entitled to accept or reject or give such weight to the evidence provided as it thinks appropriate in all the circumstances”.[121]
(b)Although some considerations are listed as “primary” and others as “other” in the Direction, this is not to be taken to imply that “primary” considerations necessarily carry more weight or authority than “other” considerations,[122] and indeed the weight of “other” considerations may overbear those designated as “primary”.[123] In this respect it may be better to think of the “other” considerations rather as simply “non-primary”.[124]
(c)This was made more explicit in CFHQ where Deputy President Redfern, referencing Suleiman, stated:
… factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.[125]
[120] Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123, [45] per Spender, Moore and Foster JJ. Emphasis added.
[121] Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464, [27] per French J.
[122] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23]-[26] per Colvin J; PQSM v Minister for Home Affairs [2019] FCA 1540, [51] per Colvin J; Minister for Home Affairs v HSKJ [2018] FCAFC 217, [24] and [37] per Greenwood, McKerracher and Burley JJ.
[123] FCFY v Minister for Home Affairs [2019] FCA 1222, [50] per Thawley J.
[124] Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897, [18]-[19] and [21] per Drummond J when considering the terms of Direction no. 17 (a predecessor direction in similar terms).
[125] CHFQ and Minister for Home Affairs (Migration) [2018] AATA 3858, [88].
Indeed, in Meyrick, the Federal Court stated that “[d]eterminations as to weight are quintessentially matters for the Tribunal”.[126]
[126] Meyrick v Minister for Home Affairs [2020] FCA 677, [141] per Jackson J.
Turning then to consideration of the “primary” criteria:
Protection of the Australian community
Paragraph 13.1 of the Direction identifies two particular issues for consideration, namely the nature and seriousness of the Applicant’s conduct to date and the risk to the community were an offender to commit further offences. The Direction also refers to “other serious conduct” and is not restricted to repetition of the original offence.
The importance of this criterion was made clear by the Full Court of the Federal Court in Djalic where it said that “[t]he authorities recognise that the protection of the Australian community lies at the heart of the discretionary power to cancel the visa of, or deport a non-citizen convicted of serious criminal offences”.[127]
[127] Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 488, 505.
There is no doubt as to the seriousness of the conduct here in question. The amount of cannabis was significant, and the seriousness was remarked upon by the sentencing Judge.[128]
[128] G documents at 31 and 71.
In Ngo v The Queen,[129] the WA Court of Appeal stated that the victim of trafficking or attempted trafficking in illicit drugs was the Australian community generally and that:
[t]he illicit drug trade is a scourge. It inflicts very significant damage on the people who consume the drugs. Also, the deleterious effects of illicit drug consumption extend to the families, friends and associates of the consumers and society generally.
[129] [2017] WASCA 3, [63].
The decisions of this Tribunal in recording its abhorrence of the drug trade are too numerous to list but are best summarised in the remarks of Senior Member Cameron in SCJD as follows:
The seriousness of drug trafficking is well known. It has been commented on by several of the trial judges before whom the Applicant has come.
The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person’s drug dependency. There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.
There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.[130]
[130] SCJD and Minister for Home Affairs (Migration) [2018] AATA 4020, [80]-[83].
The Respondent submitted a paper prepared by the Australian Institute of Health and Welfare titled Alcohol, tobacco & other drugs in Australia (updated 26 June 2020) (AIHW Report).[131]
[131] Respondent’s Tender Bundle at 129-141.
The figures contained in the AIHW Report regarding the use and impact of cannabis show that cannabis contributed to 0.2% of the total burden of disease and injury in 2015 and 8.3% of the total burden due to illicit drugs, and that 3% (or less) of the burden of schizophrenia, poisoning, anxiety, road traffic injuries and depressive disorders was attributable to cannabis use. While the short-term effects of cannabis include perceptual alterations, panic reactions, confusion and feelings of paranoia, nausea, headache, increased heart rate and dizziness, the long-term impacts can be serious including upper respiratory tract cancers, chronic bronchitis and permanent damage to the airway, cardiovascular system damage, mental health conditions and poor adolescent psychosocial development.[132]
[132] Ibid 135.
Judge Bennett dealt with this matter directly in his sentencing remarks wherein His Honour described cannabis as “a harmful drug” and concluded that “it is a dangerous drug, and those who urge otherwise are misguided”.[133]
[133] G documents at 67.
This accords with comments made by McLure P (with whom Newnes JA and Hall J agreed) in the Supreme Court of Western Australia to the effect that:
The court has since 2001 repeatedly stated that it takes a more serious view of the threat the cannabis trade poses to society and the increased prevalence of it. The risk correlation between the use of cannabis and mental illness and progression to harder drugs is a familiar theme in sentencing materials in more recent times.
Deterrence is the main sentencing consideration for dealing in prohibited drugs, including cannabis, and matters personal to the offender are accorded correspondingly less weight. In the past five years at least there has been a tangible, incremental firming up in the sentences imposed for dealing in other types of prohibited drugs. That is not obviously so in the sentencing of offenders for dealing in cannabis, notwithstanding the identified need.[134]
[134] Lester v State of Western Australia [2011] WASCA 128, [21]-[22].
The Tribunal agrees with the proposition that cannabis is a dangerous drug, especially in its potential precursor role to the use of other illicit substances. Hence there would be a real danger to the Australian community were its production, sale and distribution not be curbed and illicit activities associated with it at this level not be subject to sanction.
However, the Tribunal also acknowledges that these were the Applicant’s first, and only, offences and hence there can be no indication of any trend of increasing seriousness in her offending. Furthermore, whilst it is the case that the Applicant was sentenced to a term of imprisonment which is the last resort in the sentencing hierarchy, taking into account any sentencing discounts given, the sentence imposed on the Applicant was towards the lower end of the spectrum compared to the maximum sentence of imprisonment of 15 years.[135]
[135] Drug Misuse and Trafficking Act 1985 (NSW) s 33(2)(b).
The Applicant has completed the EQUIPS Foundation programme in custody[136] where she has also been receiving regular attention from a mental health professional.
[136] Respondent’s Tender Bundle at 33.
The issue of the risk of reoffending must be guided by consideration of what expert opinion is before the Tribunal on this matter.
The obvious starting point is the remarks by the sentencing Judge. His Honour accepted that the Applicant had shown remorse and that her prospects of rehabilitation are good. His Honour also noted that she had been assesses as having a low risk of re-offending.[137]
[137] G documents at 76.
The reports by Mr Chafic Awit and Mr Tim Watson-Munro, whom made assessments of the Applicant’s potential for re-offending, both concluded that it was “low”.[138]
[138] Applicant’s Tender Bundle at 88; Watson-Munro Report at 9.
There is, then, the assessment made by an officer of Corrective Services NSW tendered to the Court as a sentencing assessment report dated 28 June 2019 which, using the Level of Service Inventory – Revised (LSI-R) test, also found the Applicant to be at “a low risk of reoffending”.[139]
[139] Respondent’s Tender Bundle at 41.
The Applicant urges that she has now gained a deeper degree of insight into the seriousness of her offence and the impact of illegal drugs in the community. She is remorseful and now concerned only for the welfare of her child. It is claimed that her commitment to her child constitutes a “protective factor” which would mitigate against further offending behaviour and that her separation from her abusive husband has helped her regain some sense of personal security, now assisted by professional psychiatric care on a (semi) regular basis.

In relation to employment opportunities, the Tribunal does not accept the Applicant’s submission that she would find difficulty obtaining employment. She is fluent in the Vietnamese language and, having lived there for the first 23 years of her life, is aware of its customs, values and mores. She has family support there.[181] She is well educated and has a formal qualification (Bachelor of Accounting)[182] from a higher education institution in Vietnam. In addition, she has a reasonable degree of understanding of the English language from her studies both in Vietnam and Australia. She is described as highly intelligent and by her own claims asserts that she would be assisted in “obtaining gainful employment on release”[183] and that she “will be able to work in a variety of areas and roles”[184] in Australia on the basis of her work experiences in the retail, hospitality and pharmacy industries. In His Honour’s sentencing remarks Bennett J noted that Applicant had “an online business supplying spices to local enterprises”.[185] These are transferrable skills to potential employment in Vietnam, whether as an employee or as an online business owner, despite the Applicant’s denial of this.[186]
[181] Respondent’s Tender Bundle at 18.
[182] G documents at 74; Respondent’s Tender Bundle at 50.
[183] Applicant’s SFIC at [21].
[184] Applicant’s statement at [26].
[185] G documents at 72.
[186] Applicant’s statement at [43].
The Tribunal is also cautious about accepting the Applicant’s claim that it would never be possible to obtain a copy of her university degree if the original were lost.[187]
[187] 26 August transcript at 41 [7]-[17].
While the Applicant asserts that her child would suffer stigmatisation on the basis of his parent’s divorce were he returned to Vietnam there is no evidence that suggests that this would be the case, or that the circumstances of her divorce would even be known in the community. There is also no probative evidence that the Applicant has actually been divorced. It is not an impediment which would be directly suffered by the Applicant and no claim to this effect is made.
On balance the Tribunal finds that this criterion is essentially neutral. It weighs, to any meaningful degree, neither for nor against revocation.
Strength, nature and duration of ties
The Applicant arrived in Australia in June 2012 and so has been resident here for some 8 years, of which the last 14 months have been spent in custody. Prior to that she lived, for 23 years, in Vietnam. In terms of her family, she has parents and a younger brother in Vietnam while her family in Australia consists of her uncle, his wife and their family. The Applicant’s support network in Australia appears to be very small, almost confined to her uncle and his wife, although there is reference to a cousin of the Applicant’s by the name of Jayson.[188] There is also a record by the psychologist Leatrice Todd to the effect that the Applicant:
Has family in Australia, such as her cousins, however she said since being arrested they don’t want anything to do with her.[189]
[188] Applicant’s Tender Bundle at 44.
[189] Respondent’s Tender Bundle at 49.
Conceding that the Applicant’s removal to Vietnam might have some emotional impact on her uncle and aunt, and perhaps also her cousins, it cannot be said that there would be other significant emotional impacts felt beyond theirs.
There is no evidence that, during her time in Australia, the Applicant was an active participant in or contributor to the Australian community, although she was employed casually and ran a small online business importing spices.[190]
[190] 26 August transcript at 17 [9]-[22].
In many ways her experiences in Australia have not been happy ones in terms of not being able to complete her course of study, an abusive marriage, difficulties with her mother-in-law,[191] separation from her husband, and becoming a single mother by another man. She was then drawn into a conspiracy to commit a serious offence resulting in imprisonment and separation from her child who has some health problems.
[191] Watson-Munro Report at 3.
There also appears to be the termination of her relationship with Kat who was, at one stage, close enough to be providing accommodation and support, and then even designated as either “nanny” or carer for Child S. Kat is now identified as having tried to extort money from the Applicant’s mother.
It does not appear that the Applicant has any significant ties to the Australian community or to friends and family (other than as described above), nor is there evidence that she has any significant or continuing social links through her previous employment in Australia.
There is nothing in the Applicant’s personal history to suggest that any weight should be given to this criterion in support of her application. It counts neither for nor against revocation.
CONCLUSIONS
In making the “calculus”[192] of the weight of the various criteria in relation to this application for revocation, the Tribunal has reached the following conclusions:
[192] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47, [52].
Primary:
(a)protection of the Australian community from criminal and other serious conduct: weighs to a medium degree against revocation;
(b)the best interests of minor children in Australia: weighs to a significant degree in favour of revocation;
(c)expectations of the Australian community: weighs to a significant degree against revocation.
Other:
(a)international non-refoulement obligations: not a relevant consideration;
(b)strength, nature and duration of ties: weighs neutrally in relation to revocation;
(c)impact on Australian business interests: not a relevant consideration;
(d)impact on victims: not a relevant consideration;
(e)extent of impediments if removed: weighs neutrally in relation to revocation.
In this instance, assigning no weight to any of the “other” considerations and finding that while there are clear arguments in favour of revocation in terms of the best interests of the minor child, these are overborne by the more substantial weight which has been given to considerations of both the protection, and expectations, of the Australian community against such revocation.
A CONSTITUTIONAL POINT TAKEN
Both at the hearing and in a subsequent written submission the Applicant’s Counsel raised a constitutional point to the effect that were the Tribunal to affirm the decision under review its decision was open to challenge for being constitutionally invalid.
An obvious point needs to be made, namely that the Tribunal “does not have jurisdiction to reach a conclusion having legal effect that legislation is unconstitutional, and such a decision can only be made by a court exercising judicial power”.[193]
[193] ReWalsh and Commissioner of Taxation (2012) 130 ALD 200, 207.
Specifically, it was put on behalf of the Applicant:
MS YU: Essentially the point that will be made is that in the event that the decision is affirmed, it could amount to the tribunal, being a Commonwealth agency, impermissibly imposing a disability or a burden on the operation of a state government body in the execution of its powers.[194]
[194] 27 August transcript at 70 [39]-[42].
As the Tribunal apprehends the Applicant’s argument, it runs as follows:
(a)Child S is in the care and control of the NSW Minister for Families, Communities and Disability Services as a result of an interim order made by the NSW Children’s Court under the Care Act. That interim order was made on 26 July 2018 to the effect that the Child S “is to be placed under the Parental Responsibility of the Minister, until further order”.
(b)This interim order would remain in place until the child reached the age of 18 years or until a further order(s) is made.
(c)In January 2019, a Care Plan and a Restoration Plan were made under the Care Act in which “the intention of the NSW child protection authorities was to restore [Child S] to the Applicant’s care upon her release from prison”.[195]
(d)Were the Tribunal to affirm the decision under review then the Applicant would be rendered (from the date of its decision) an unlawful non-citizen without a valid visa and hence, on release from custody, she would be transferred to immigration detention pursuant to sections 189 and 196 of the Act.
(e)At that stage she would be subject to removal from Australia under section 198 of the Act.
(f)It is unlikely that the NSW authorities would release Child S into the care of the Applicant were she to be in immigration detention as this would not be consistent with section 9(1) of the Care Act which provides that:
This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.
(g)Similarly, the NSW authorities would be unlikely to release Child S into the care of the Applicant were she to be deported back to Vietnam. This is both on the same grounds as stated above and, in addition, because the Applicant has claimed in evidence before the Tribunal that were the child to be returned to Vietnam his life might be physically endangered.[196]
(h)Were the Applicant to be removed from Australia before final orders are made in respect of the Child, the Applicant contends that “the Children’s Court is likely to be put in a position where it is prevented from restoring [Child S] to the Applicant’s care as there is no express power in the Children’s Court Act for the Children’s Court to make Orders that have international operation”.[197]
[195] Applicant’s post-hearing submissions dated 28 August 2020 (Applicant’s post-hearing submissions) at [11]; Details in the Care Plan: Applicant’s Tender Bundle at 47, 52 and 59-62.
[196] 27 August transcript at 85 [1]-[8].
[197] Applicant’s post-hearing submissions at [20].
This leads ultimately to the conclusion in the Applicant’s submission that:
… if the Tribunal were to affirm the decision under review, the Tribunal’s exercise of power under the AAT Act and the Migration Act would attract the operation of the Melbourne Corporation principle. This is because as a consequence of the Tribunal’s decision under s.43(1)(a) of the AAT Act, those pieces of Commonwealth legislation would operate to unlawfully interfere with, and impose a burden on, the capacity of the NSW Government and its courts to properly administer its child protection functions under the Care Act.[198]
[198] Ibid [21].
The constitutional principle upon which the Applicant’s claim is based is found in Melbourne Corporation[199] which held that:
[T]he invalidity of a federal law which seeks to control a State governmental function is brought about by the fact that it is in substance a law with respect to a subject as to which the Commonwealth Parliament has no power to make laws.[200]
[T]he efficacy of the system logically demands that, unless a given legislative power appears from its content, context or subject matter so to intend, it should not be understood as authorizing the Commonwealth to make a law aimed at the restriction or control of a State in the exercise of its executive authority.[201]
[199] Lord Mayor, Councillors and Citizens of the City of Melbourne v Commonwealth and Another (1947) 74 CLR 31.
[200] Ibid 62 per Latham CJ.
[201] Lord Mayor, Councillors and Citizens of the City of Melbourne v Commonwealth and Another (1947) 74 CLR 31, 83 per Dixon J.
The principle in Melbourne Corporation has been followed in numerous cases, although in Austin[202] Kirby J (in dissent) wrote that:
In every case in which the Melbourne Corporation implication is invoked the issue for decision is one of degree. There is no exact formula to determine the extent to which legislation must burden a State before it will be found invalid. However, some guidance may be sought from earlier statements of members of this Court. For example, as Windeyer J put it, a federal law will be invalid where the subject State is "sterilised" or "its status and essential capacities" are "impaired in a substantial degree". The language of "control" and "impact" are unhelpful. It is the capacity of a State to function, rather than the mere ease with which its constitutional functions can be exercised, that is determinative. In order to come to a conclusion on this issue, it is the operation and effect of the federal legislation that must be analysed.
The protection of the continuing existence of the States as political entities is not an abstract notion. It is a concept that addresses the sum of the executive, legislative and judicial arms of government that together constitute the State as a polity. It is unnecessary in this case to consider the outer limits of what represents "the State" for the purposes of the constitutional implication. The agency in question in the first plaintiff's case is the Supreme Court of New South Wales. It was not contested that such a court represents an essential branch of the government of the State. It follows that a substantial impairment of the functions of the Supreme Court or the ability of the State to determine its composition would certainly constitute an impermissible encroachment by the Federal Parliament upon an essential component part of the government of a State. Such an impairment would render invalid any such federal legislation.
[202] Austin v Commonwealth (2003) 215 CLR 185, 302. Footnotes omitted.
Before considering these submissions further, the Tribunal notes:
(a)The indication of the intention of the Care Plan and Restoration Plan to return the care of Child S to the Applicant on her release from custody is reflected in the remarks of the sentencing Judge (see above);
(b)Although the Applicant, if transferred to immigration detention, would be precluded by section 501E of the Act from making an application for any other type of visa, she would not be prevented from applying for a Protection visa (s 501E(2)(a));
(c)The assumption that a person placed in immigration detention would automatically be returned to their country of origin is not necessarily a well-founded assumption as such persons may apply for a Protection visa (noting the claims regarding Child S’s safety already outlined) or for the exercise of ministerial discretion not to proceed with the deportation. However this Tribunal is in no position to speculate on the outcome of any such applications or proceedings.
The essence of Melbourne Corporation is that federal legislation will be invalid to the extent that its effect is to “destroy or curtail the continued existence of the States or their capacity to function as governments”.[203]
[203] Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192, 217; Fortescue Metals Group Ltd v The Commonwealth (2013) 250 CLR 548, 609.
The very point taken by the Applicant was addressed recently by the Full Court of the Federal Court in Raibevu where an appeal was lodged against a decision by the Minister[204] to refuse to revoke a cancellation decision made in the exercise of the power conferred by section 501CA of the Act, which is a power analogous to that being exercised in this instance.
[204] Actually the Assistant Minister for Home Affairs.
The appeal was initially heard by the Federal Court by way of an application for an extension of time to lodge an appeal against the Minister’s decision. The extension of time was granted but the application dismissed for lack of merit.[205] On appeal to the Full Court the application was also dismissed despite the late submission of a constitutionally-based challenge to the Minister’s decision.
[205] Raibevu v Minister for Home Affairs [2018] FCA 2052.
The Full Court characterised this challenge to the Minister’s decision under section 501CA(4) of the Act in the following terms:
The effect of the Minister’s decision to put Mr Raibevu in immigration detention was to frustrate the carefully considered conclusion of the District Court that the administration of justice required the appellant’s release into the community in the following month.
… had the effect of frustrating the exercise of the Parole Board’s power to order Mr Raibevu’s release. The Parole Board was to be seen as a key component in the administration of criminal justice in New South Wales. The administration of criminal justice was a core responsibility of the States. An intrusion into such a core area was invalid to the extent that it destroyed or curtailed the continued existence of the States or their capacity to function: Melbourne Corporation v Commonwealth [1947] HCA 26; (1947) 74 CLR 31.[206]
[206] Raibevu v Minister for Home Affairs [2020] FCAFC 35, [110] per Perram, Markovic and Charlesworth JJ.
In dismissing the appeal, the Court held that:
… to the extent that Mr Raibevu relied on the principles stated in Melbourne Corporation, the submissions did not identify an arguable case that s 501CA(4) was a law of general application which operated to destroy or curtail the continued existence of the State of New South Wales or its capacity to function as a State.[207]
[207] Ibid [121].
Furthermore, and critically, in this instance:
The only challenge in this proceeding is to the Minister’s later non-revocation decision. No challenge was made at first instance to the anterior decision of the delegate to cancel the visa in the first place. That this is so is apparent from the originating application. It sought an order setting aside the Minister’s decision of 24 July 2018 but made no reference at all to the delegate’s decision of 1 February 2017. Before the Full Court no submission was received to the effect that Mr Raibevu should now be permitted to amend his originating application to include a challenge to the delegate’s cancellation decision.
This has unavoidable consequences for the constitutional challenges. The only power exercised by the Minister was the power under s 501CA(4). Even if the constitutional challenge to those provisions were sound, it would only mean that s 501CA(4) was invalid to the extent that it authorised the Minister not to revoke the cancellation. A finding to that effect would leave the delegate’s cancellation decision in place because no challenge has been brought to it; i.e. the visa would remain cancelled even if this Court upheld the challenge to s 501CA(4).
Such an outcome would have no utility. To put it another way, Mr Raibevu’s constitutional challenge is incapable of yielding any relief.[208]
[208] Ibid [113]-[115].
In its submission on this matter, the Respondent states:
First, the Tribunal is reviewing a decision of a delegate of the Minister not to revoke an earlier decision made on 4 March 2020 to cancel the applicant’s visa under s 501(3A). If the Tribunal affirms the decision under review, it will be the cancellation decision that will operate in a practical sense to bring about her detention and removal from Australia pursuant to ss 189 and 198 of the Act, not the decision under s 501CA(4).
Secondly, and in any event, the power to cancel a visa under s 501(3A), and the power to revoke such a cancellation under s 501CA(4), do not operate to destroy or curtail the continued existence of the State of New South Wales or its capacity to function as a State. The High Court has drawn a distinction between a provision that merely impacts the exercise of State sovereign power and a provision that impairs the capacity of a State to function as a government. In the present case, while child protection may be a very important component of State policy, that policy area does not relate to the capacity to function as a government. At its highest, the applicant’s argument seems to be a complaint about the ease with which the Children’s Court functions are exercised, which does not engage the Melbourne Corporation principle.
Sections 501(3A) and 501CA(4) are directed at regulating, in the national interest, the coming into, and presence in, Australia of non-citizens pursuant to the power conferred by s 51(xix) of the Constitution. The most that can be said is that the provisions may have an indirect and speculative effect such that a State Children’s Court may decide not to return a child under State care to the care of an unlawful non-citizen parent in circumstances where the non-citizen is held in immigration detention or removed from Australia. A similar outcome may follow from the ordinary operation of other Commonwealth laws. For example, the options available to the Children’s Court may be constrained by a parent being sent to prison under a Commonwealth criminal law, or by the operation of the Family Law Act 1975 (Cth). It also does not necessarily follow that the Children’s Court would be precluded from returning the applicant’s child to her care if she were to be removed from Australia.[209]
[209] Respondent’s post-hearing submissions in reply dated 10 September 2020 at [10]-[12].

The Tribunal has outlined its understanding of the various scenarios which might occur in relation to the status and care of Child S in its prior discussion and agrees that any attempt to make a definitive finding in this regard is idle, speculative and unproductive.
Following the reasoning in Raibevu and accepting the gravamen of the Respondent’s argument, the Tribunal forms the opinion that the relevant Commonwealth legislation in this case can apply within constitutional limits to the Applicant in her circumstances.[210] The Tribunal does not accept that it is in any way precluded from making a determination in this matter including making a decision to either affirm, vary or set aside the non-revocation decision..
[210] ReWalsh and Commissioner of Taxation (2012) 130 ALD 200, 207.
DECISION
The decision under review is affirmed.

I certify that the preceding 219 (two hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

..............................[sgd]..............................
Associate
Dated: 16 September 2020

Date(s) of hearing: 26 and 27 August 2020

Date final submissions received: 10 September 2020

Counsel for the Applicant: Ms M Yu

Solicitors for the Applicant: TQH Lawyers

Solicitors for the Respondent: Ms M Donald, Sparke Helmore Lawyers

Date(s) of hearing:	26 and 27 August 2020
Date final submissions received:	10 September 2020
Counsel for the Applicant:	Ms M Yu
Solicitors for the Applicant:	TQH Lawyers
Solicitors for the Respondent:	Ms M Donald, Sparke Helmore Lawyers