Tran and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 2179

Tran and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2179 (10 July 2020)
Division:GENERAL DIVISION
File Number(s): 2020/2276
Re:Pham Minh Thoai Tran
APPLICANT

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

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:10 July 2020
Place:Sydney

The decision under review is affirmed.
............................[sgd]............................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of Partner 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 – international non-refoulement obligations – fear of harm if returned to country of origin – strength, nature and duration of ties – impact on Australian business interests – impact on victims – extent of impediments if removed – weighing of primary and other considerations – reviewable decision is affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
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) Preamble, Part C
CASES
Abebe v Commonwealth [1999] HCA 14
Ali v Minister for Home Affairs [2020] FCAFC 109
Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123
BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54
BFXK and Minister for Immigration and Border Protection (Migration) [2018] AATA 886
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Dang and Minister for Home Affairs (Migration) [2018] AATA 2095
DFNM and Minister for Home Affairs (Migration) [2019] AATA 3769
Do and Minister for Immigration and Border Protection [2016] AATA 390
DQM18 v Minister for Home Affairs [2020] FCAFC 110
FCFY v Minister for Home Affairs [2019] FCA 1222
Ferreira and Minister for Home Affairs (Migration) [2018] AATA 2599
Ferreira v Minister for Home Affairs [2019] FCA 1657
FYBR v Minister for Home Affairs [2019] FCAFC 185
GBV18 v Minister for Home Affairs [2019] FCA 1132
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Hopkins v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 33
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Meyrick v Minister for Home Affairs [2020] FCA 677
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Home Affairs v Omar [2019] FCAFC 188
Minister for Immigration and Citizenship v Buadromo [2012] FCAFC 101
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Minister for Immigration and Multicultural and Indigenous Affairs v Stefan Nystrom [2006] HCA 50
MNLR v Minister for Home Affairs [2020] FCA 948
Ngo v R [2017] WASCA 3
PQSM v Minister for Home Affairs [2019] FCA 1540
SCJD and Minister for Home Affairs (Migration) [2018] AATA 4020
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
The Republic of Nauru v WET040 [No 2] [2018] HCA 60
The Trustee for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273
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
1512955 (Refugee) [2018] AATA 2927
1216820, 1216828 [2014] RRTA 209
SECONDARY MATERIALS
Clark, Helen, Vietnam defies the odds on Covid-19 (12 May 2020) The Lowy Institute < align="left">Dabla-Norris, Era, Anne-Marie Gulde-Wolf and Francois Painchaud, Vietnam's Success in Containing COVID-19 Offers Roadmap for Other Developing Countries (29 June 2020) International Monetary Fund < align="left">The Economist, ‘Your loss, my grain: As covid-19 saps Vietnam’s economy, private charity is blossoming’, The Economist (online), 4 July 2020 < align="left">VOA News, ‘How Did Vietnam Become Biggest Nation Without Coronavirus Deaths?’, VOA News (online), 21 June 2020 < FOR DECISION
Chris Puplick AM, Senior Member
10 July 2020
THE APPLICATION

Mr Pham Minh Thoai TRAN (Applicant), born in August 1991, has applied to this Tribunal for a review of a decision made by a delegate of the Minister (Respondent) to not revoke the original decision to cancel his Partner visa (Class BS) (Subclass 801).
The Applicant first arrived in Australia from Vietnam (where he holds citizenship) in 2008 on a student visa. His Partner visa was granted on 13 December 2013 and mandatorily cancelled on 6 December 2018 (cancellation decision).
The basis of the cancellation decision was that the Applicant had been convicted of a serious criminal offence and, as such, failed to pass the “character test” as required under section 501(3A) of the Migration Act 1958 (Cth) (Act).
The offence for which the Applicant was convicted, and that was taken into consideration for the cancellation decision, was that of possession of prohibited drugs with intent to sell or supply (heroin) for which he was sentenced to a term of imprisonment of 8 years (with a non-parole period of 6 years) by the District Court of Western Australia on 16 December 2014.
The Applicant, on 7 December 2018, applied to the Department to have this mandatory visa cancellation revoked but his request was denied by the Minister’s delegate on 16 April 2020 (non-revocation decision). On 20 April 2020, the same day that the Applicant was notified of the non-revocation decision, he applied to the Tribunal for a review of that decision.
The matter was heard by the Tribunal on 2 and 3 July 2020 and, as provided by section 500(6L)(c) of the Act, the Tribunal’s decision must be made by 13 July 2020 otherwise the non-revocation decision is taken to be affirmed.
Due to the COVID-19 restrictions, the hearing was conducted by use of Microsoft Teams video-conferencing. While there were occasional interruptions to the technology the Tribunal is satisfied that procedural fairness was afforded to all parties.
THE LEGISLATIVE SCHEMA
The schema of the Act is that it is mandatory for the Minister to cancel the visa of any visa holder if he/ she fails the “character test” set out in the Act.[1] A person, by definition, fails the character test if he/ she has a “substantial criminal record”.[2] A “substantial criminal record” is defined as existing where a person “has been sentenced to a term of imprisonment of 12 months or more”.[3]
[1] Migration Act 1958 (Cth) (Act) s 501(3A)(a).
[2] Act s 501(6)(a).
[3] Ibid s 501(7)(c).
There is no dispute between the parties that the Applicant fails the character test.
The Act then provides that a mandatory visa cancellation decision may be revoked if there is “another reason” to do so.[4]
[4] Ibid s 501CA(4)(b)(ii).
The matters which must be considered by a decision-maker, including this Tribunal, in determining whether or not “another reason” exists are set out in ministerial Direction no. 79 (Direction).[5] This Direction is made pursuant to section 499 of the Act and is binding on any decision-maker in making their final determination.
[5] 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 made on 20 December 2018 and effective from 28 February 2019 (Direction no. 79). Direction no. 79 supersedes Direction no. 65 which was made on 22 December 2014.
As will be explained below, the Direction lists three “primary” and five “other” considerations which must be addressed by the Tribunal. Although designated as “primary” or “other” considerations, this is not to be taken to imply that “primary” considerations necessarily carry more weight or authority than “other” considerations.[6] Indeed, the combined weight of “other” considerations may outweigh those designated as “primary”.[7] In this respect it may be better to think of the “other” considerations as rather simply “non-primary”.[8]
[6] 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.
[7] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858, [88]; FCFY v Minister for Home Affairs [2019] FCA 1222, [50] per Thawley J.
[8] 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 the Direction in the same terms).
While the Tribunal must be guided by the Direction and give effect to its provisions and requirements, when considering the totality of the evidence:
(a)“[t]he choice of, and weight given to, the material before a Tribunal is a matter for it.”[9]
(b)“[t]he Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”[10]
(c)“[t]he weighing of various pieces of evidence is a matter for the Tribunal.”[11]
(d)“[i]n the end, the criticisms made by the applicant of the Tribunal’s reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.”[12]
[9] Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123, [45] per Spender, Moore and Foster JJ. Citations have been omitted. Emphasis added.
[10] Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464, [27] per French J.
[11] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48, [33]: unanimous decision of the High Court.
[12] Abebe v Commonwealth [1999] HCA 14, [197] per Gummow and Hayne JJ.
Indeed, in Meyrick the Federal Court stated that “[d]eterminations as to weight are quintessentially matters for the Tribunal”.[13]
[13] Meyrick v Minister for Home Affairs [2020] FCA 677, [141] per Jackson J.
THE APPLICANT’S OFFENCE AND SENTENCE
The Applicant grew up in Vietnam and appears to have had a somewhat harsh upbringing by a father who was a senior police officer and mother who was a restaurateur. He does not appear to have had a close relationship with his father and reported being beaten by him. His father is also a member of the ruling Communist Party of Vietnam. In August 2008, aged 16, he arrived in Australia on a student visa.
He completed secondary education at Randwick Boys High School and had enrolled in a Bachelor of Commerce degree at the University of New South Wales although he did not eventually attend.[14] Prior to his offending, Prior to his offending, the Applicant had been employed at a fast food outlet and restaurant, and also worked as a baker.
[14] Respondent’s Tender Bundle (Tender Bundle) at 45.
According to the Applicant, at some stage towards the end of 2013, he found himself under both financial and emotional pressure. He was married to Ms Thi Tuyet Nhi Luong, also known as Rachel Luong, but this then three-year marriage was in the process of breaking down. At the same time he had been in a relationship for some 10 months with Ms Thi Kieu Oanh Ha who then became pregnant. He was providing financial support to both. The Applicant’s son Anthony Khoi Trieu Tran was born in Sydney on 8 April 2014 while he was in custody in Western Australia.
Around this time he was approached by Mr Trung Tan Nguyen, who was a friend of the family and who the Applicant describes as an “uncle” (although not in a biological sense). Mr Nguyen offered the Applicant money if he would assist him in the transportation to and distribution of drugs in Perth. The Applicant agreed and was motivated to assist by a desire for financial gain.[15]
[15] Applicant’s statement dated 18 June 2020.
Although the Applicant claims that he never actually received any money from this activity,[16] in his Personal Circumstances Form he wrote “[m]y stupid mistake only for 5000 dollars cost me my life in prison”. He told the Tribunal in oral evidence that this figure was not true and that “I just put a number in there”.[17]
[16] Ibid.
[17] Section 501G documents (G documents) at 56.
The sentencing Judge (Judge Stone) outlined in his sentencing remarks[18] what was obviously a well-planned arrangement in which the Applicant and Mr Nguyen both flew to Perth on 30 December 2013 on separate flights. The Applicant arrived first and checked in at a hotel where Mr Nguyen joined him in the same room some hours later. Between them they transported some 689 grams of high grade (77-80% pure) heroin. The heroin was in a variety of separate packages. The Applicant and Mr Nguyen left the hotel room to go shopping and at some stage the Applicant bought some (digital) scales. They had been followed since departure from the hotel by the police who then arrested them later in the afternoon and undertook a search of their hotel room and subjected them to questioning.
[18] Ibid at 25-31.
Both men pleaded guilty to the offence of possession of prohibited drugs with intent to sell or supply (heroin) and were sentenced on 16 December 2014. In His Honour’s sentencing remarks, Judge Stone noted in relation to the Applicant that he had shown remorse and acted under negative peer pressure and on the basis of poor decision making but that he had nevertheless acted for “financial reward”. His Honour took note of the Applicant’s “relative youth”, his early guilty plea and remorse in determining a sentence of eight years with a six-year non-parole period.[19] The maximum sentence for the offence was 25 years imprisonment and/or a $100,000 fine.
[19] G documents at 25-31. Non-parole period expired on 29 December 2019: Respondent’s Supplementary Tender Bundle (Supplementary Tender Bundle) at 373.
There is an extensive record of the Applicant’s interview with the police immediately following his arrest and throughout that interview the Applicant lied to the Police about the extent of his knowledge of aspects of the offence including the nature of the material he was transporting or the arrangements for its subsequent distribution.[20]
[20] Tender Bundle at 127-161.
Mr Nguyen was also interviewed by the Police at the same time. In Mr Nguyen’s interview he was much more forthright about the circumstances and made what the sentencing Judge described as “limited admissions”,[21] (as had, to a lesser extent, the Applicant).
[21] G documents at 29.
In his interview, Mr Nguyen accepted primary responsibility for the offence and on several occasions minimised the role of the Applicant:
Well, it was in the, um, paper bag in the black bag. I had pain in my leg. That’s why I asked my nephew to carry it for me, um, to the door, but he’s actually just, well, just accompanying me.[22]
[22] Tender Bundle at 167.
…
Senior Constable: And what was your nephew’s involvement in this?
Mr Nguyen (via an Interpreter): He just went for a trip, because he’s on holiday.[23]
…
Senior Constable: We spoke to your nephew, and he said you told him to buy the scales …
Mr Nguyen: No. Or he doesn’t know.
Senior Constable: Today in David Jones.
Mr Nguyen: No. He doesn’t know anything. He just goes on holiday to keep me company. He doesn’t, he completely is unaware of what I am doing.
Senior Constable: Why did he buy the scales for you today from David Jones then?
Mr Nguyen: People make arrangement just like that. I don’t know.
Senior Constable: So do you, are you still saying that somebody handed you those scales, the person that handed the packages to you?
Mr Nguyen: Oh, they told me to buy the scale ---- And they told me to buy the scale. So they met, when they met me I told my nephew to go and buy me a scale. He’s not aware.[24]
[23] Ibid at 178.
[24] Tender Bundle at 190-191.
THE APPLICANT’S RECORD IN PRISON
The Applicant commenced his sentence in the Acacia Prison in Perth[25] and was later transferred to the minimum security section of Bunbury Regional Prison.[26] From there he was granted an interstate transfer back to New South Wales[27] where he arrived in May 2018 and was incarcerated in various facilities at Berkshire Park and Silverwater.[28] With the expiry of his non-parole period on 29 December 2019 he was taken from the correctional facility to the Immigration Detention Centre at Villawood.
[25] Ibid at 6. Acacia is a medium security facility.
[26] Ibid at 28.
[27] Ibid at 31.
[28] Ibid at 38 and 67.
On 18 September 2016, while at Acacia Prison the Applicant was found in possession of five strips of Suboxone, each strip containing 8 milligrams of the prescription drug buprenorphine. Buprenorphine is an opioid, prescribed as part of an opiate substitution programme used to treat drug addiction. It has become the standard treatment in place of the use of methadone in many correctional institutions.
In the police statement of material facts tendered to the Midland Magistrates Court, where the Applicant was fined $500,[29] it is recorded that:
The accused agreed to participate in an Electronic Record of Interview where he made admissions to possessing the Suboxone for his own personal use.[30]
[29] G documents at 24. The offence was possessed a prohibited drug (Misuse of Drugs Act 1981 (WA)).
[30] Tender Bundle at 6.
Non-prescribed sublingual buprenorphine (in the form of strips) is the most commonly used illicit substance in NSW correctional centres.
However, in both written and oral submissions to the Tribunal the Applicant denied that the suboxone was his or that it was for his personal use. Rather, he asserted, the drug was found, as a result of a targeted search, in clothes that he was wearing which actually belonged to his cellmate.[31] Furthermore, the Applicant alleges that the custodial officer involved assaulted him, in effect (to use the argot) “framed” him and was later himself subject to disciplinary proceedings. None of the latter claims can be verified by the Tribunal.
[31] Email containing Applicant’s text messages to his legal representative dated 17 June 2020. He claimed that his own clothes were in the laundry at the time.
In the Incident Description Report, the submitting officer writes:
I said to prisoner TRAN “what were you thinking” and he stated “they aren’t mine I am trafficking”.[32]
[32] Tender Bundle at 117.
In relation to the words allegedly spoken by the Applicant, the Tribunal is inclined to believe the Applicant’s denial. In the first place, there is no evidence that the Applicant ever used illicit drugs while in prison and he had a “clean” record in relation to all his random urine tests.[33] Secondly, buprenorphine is more likely to be used by people who are unable to access heroin – that is the purpose for which it is prescribed – and there is no evidence of the Applicant ever being a heroin user. Finally, from real world “common human experience”,[34] the “probabilities of ordinary human experience”[35] teach that no prisoner, conscious of his own safety, “dogs” on other prisoners by revealing them as a perpetrator. Similarly, the likelihood of a person such as the Applicant using the exact phrase “I am trafficking” seriously strains credulity and would not be consonant with the use of language which the Applicant exhibited during lengthy participation in the Tribunal’s hearing. On the other hand, the excuse of wearing a cellmate’s clothes is equally implausible. Inmates tend to be protective of personal possessions and have limited clothing available to them.
[33] Applicant’s undated statement filed with the Tribunal on 28 May 2020. Tender Bundle at 22-23 and 107.
[34] BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54, [55].
[35] The Republic of Nauru v WET040 [No 2] [2018] HCA 60, [35] per Gageler, Nettle and Edelman JJ.

In any event, the Applicant was convicted in the Magistrates Court of a possession offence (a matter which cannot be called into question)[36] and it follows that, if he was not personally using suboxone, the most likely probability is that he was taking part in some sort of distribution activity.
[36] Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649; Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
The Tribunal notes that the Applicant’s transfer from Acacia to Bunbury is recorded as being on “an earned level of supervision” and that he is “considered to be a polite and respectful prisoner who follows the rules of the prison and is not considered to be a management problem”.[37]
[37] Tender Bundle at 28.
That same assessment report notes the suboxone offence and further records that the Applicant had committed a number of minor breaches while in custody (misuse of telephone system, tampering with security seals on his Xbox and being out of bounds) which had resulted in punishment by way of loss of privileges.[38]
[38] Ibid.
While in custody in Western Australia the Applicant completed the Think First programme on 13 January 2016. It is reported that:
The program completion report indicates that Mr Tran was an engaged, insightful member of the group who participated in activities and completed written work to a satisfactory level. He was reported to have demonstrated significant treatment gains in relation to his identified treatment needs including an improvement in his problem solving skills, change in his pro-criminal attitude and improvement in his consequential thinking and decision making.[39]
[39] Ibid at 28.
Matters arising from this completion report are discussed below and are of some significance in relation to the Tribunal’s final determination.
During his time in custody the Applicant also completed a number of other prison-based courses in areas such as food hygiene and safety, work safety, Certificate 1 in Entry to General Education and a Shine for Kids session.[40] He was also enrolled in studying for the Certificate IV in Small Business.[41]
[40] G documents at 70-74.
[41] Tender Bundle at 22.
While in custody in NSW the Applicant was subject to one charge of “possess prohibited goods”, namely a USB device which he claimed he was “minding for another inmate”, and was dealt with by a temporary suspension of buy-up and contact visit privileges.[42] He was assessed by correctional authorities as having a medium-low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R) scale. This in turn meant that the Applicant was not eligible to undertake any offence-related programmes which a corrections Unit Leader described as “unfortunate”.[43] He has demonstrated sufficient compliance with prison arrangements as to have been made a sweeper in education since April 2019 and also a sweeper in parole.[44]
[42] Ibid at 37.
[43] Ibid at 41.
[44] Ibid at 55.
There have been no adverse reports of the Applicant’s behaviour while being held in immigration detention.[45]
PSYCHOLOGICAL REPORT OF MR HASAN CINAR[46]
[45] Supplementary Tender Bundle at 371-390.
[46] Confidential psychological report of Pham Minh Thoai Tran by Hasan Cinar (Mindways Psychological Services) dated 14 June 2020 (Cinar report).
At the request of the Applicant’s legal representative, a detailed psychological report was prepared on the Applicant by Mr Hasan Cinar, a well-credentialed and experienced registered psychologist. The report, dated 14 June 2020, was based upon a considerable amount of written material supplied to Mr Cinar, supplemented by 2.5 hours of direct video contact involving 1.5 hours of clinical interview and 1 hour of psychometric testing. The written material, which is listed in the report, included (inter alia) a report from the NSW Department of Corrective Services, the WA District Court sentencing remarks, a national criminal history check, d correspondence with the Department related to the visa cancellation, to which was added the Applicant’s self-reporting and psychometric tests carried out by Mr Cinar.
Mr Cinar’s conclusions regarding the Applicant included the following:
(a)The Applicant was concerned about potentially being sent back to Vietnam as he had no level of family support there and that his father had refused to accord him “forgiveness” for the embarrassment caused to the family by his criminal conviction in Australia and the fact that this might be used by the Vietnamese authorities to deny his father promotion within the police force.
(b)He took responsibility for his offending behaviour and did not “minimise or glorify his behaviour at the time of assessment”, expressing guilt “due to the psychological impact his offending had on his values of being a family man. He added that his value of being a family man would be null and void if he was deported”.
(c)It was only in prison that he had come to appreciate the devastating impact that drugs could have on people and communities, and he expressed remorse for what might have happened in the distribution process.
(d)There was no evidence of any misuse of drugs or alcohol by the Applicant.
(e)This, taken together with his opportunities to use his values as a family man, support received from some family members and good employment prospects, constituted a “number of protective factors” reducing his risk of recidivism.
(f)He exhibited a level of stress due to his concerns about his partner having to take responsibility for their son alone, particularly because his son had recently been involved in a “traumatic car accident”.
(g)As a result of the interview and the extensive psychometric testing, the Applicant should be rated “in the low risk range for overall risk needs offences”.
Mr Cinar’s report concluded:
[8.2] The author asserts that according to his criminal history and the scores on the LSI-R, Mr. Tran is congruent to an individual with low risk for future recidivism. This is further indicated by a relative absence of risk factors in addition to the presence of several protective factors as outlined earlier in this report. Should risks [be] changed in the future, interventions aimed at addressing his risk would be advised.
[8.3] Given his current situation, Mr. Tran presents symptoms congruent to anxiety, poor sleep hygiene and general stress. His fear of deportation is highlighted by the inability to implement his values as a family man. This involves not being able to financially support his son, or unburden his ex-partner’s domestic responsibilities and provide assistance as such. Furthermore, given the current COVID-19 pandemic, Mr. Tran expressed fear of increased likelihood of contracting the virus should he be exposed to unsanitary conditions.
Mr Cinar was subject to forensic cross-examination by the Respondent’s legal representative, Ms Donald. Ms Donald put to Mr Cinar a proposition to the effect that the Applicant had a more extensive history of drug dealing and gambling which had not been exposed to Mr Cinar prior to his arriving at his conclusions and asked whether, if this material had been before him, it would have altered his final risk assessment. Mr Cinar’s response was quite clear that it might have resulted in raising the risk assessment from low to medium-low but it would not in any way have exceeded that level.
When asked to comment on the NSW Corrective Services’ assessment of the Applicant’s “medium-low” risk[47] using the same LSI-R tool that he had used and through which he had made a “low” finding, he indicated that interpretations of various aspects of the test are not always identical. He did not resile from his own finding.
[47] Tender Bundle at 38.
When pressed at length about his assessment of the Applicant’s concerns about being deported to Vietnam, Mr Cinar stressed that this turned primarily upon issues of his fear that he would not be able to discharge his family duties, that his father in Vietnam would again disown him and may himself suffer as a result of the Applicant’s return, and that he has no level of family support there. Mr Cinar confirmed the Respondent’s assertion that the Applicant had not raised with him any fear of physical harm arising from his involvement in the drug offence for which he had been sentenced to imprisonment.
PERSONAL STATEMENTS AND EVIDENCE OF SUPPORT
The Applicant supplied a number of personal references or statements of support, one of which (Ms Tran Phan) was supported by oral evidence to the Tribunal.
(a)Ms Tran PHAN is a cousin of the Applicant’s wife and has known him since they both lived in Vietnam.[48] She confirmed that she knew the details of the Applicant’s drug offence and that she felt shocked by news of it. She stated that the Applicant was a hard-working, decent and caring man and that she believed he would never re-offend as this would risk separation from his son and his son’s mother. She told the Tribunal that she and her family would be prepared to provide support for the Applicant in Australia, were he to be released from detention, in the form of accommodation and that she would also provide him with limited regular financial support until he re-establishes himself and get a job. However, she did not believe that it would be practically possible for her to do this were the Applicant to be returned to Vietnam. She regards him as her “younger brother”. She confirmed to the Tribunal that the Applicant’s wife still resides in Australia and that she has met his son and the son’s mother. She reports that the son suffers epileptic seizures and is very thin and frail, and she also told the Tribunal that neither Anthony nor his mother appear to speak often about the Applicant.
(b)Mrs Tuyet Suong LUONG mother of Ms Phan, wrote in support of the Applicant to confirm offers of family support. She also noted that the Applicant had problems with his marital relationship and had been taken advantage of by a “very bad family friend”[49] who involved him in the drug offence.
(c)Mr Kim Hoang NGUYEN is the partner of Ms Phan, wrote in support of the Applicant stressing his commitment to his son and his being deserving of a second chance. He indicated that he maintained regular contact with the Applicant by phone to the Villawood Immigration Detention Centre and that he has a close relationship with Anthony and his mother.[50]
(d)Ms Thi Kieu Oanh HA is the mother of Anthony and the former partner of the Applicant. It is stated in other evidence that at the time of the Applicant’s arrest she and the Applicant had made arrangements to travel to Vietnam in order to conduct some form of ceremony to recognise their relationship.[51] Once the Applicant was imprisoned, Ms Ha made several visits to see him in prison in Perth. Apparently after the birth of her son, Anthony also accompanied her to the prison visits as a small baby. These visits continued until such time as they became financially and emotionally no longer possible. The reports of the Western Australian correctional authorities take note of these visits and made recommendations in support of the Applicant’s transfer back to New South Wales, in part, on the basis of allowing such supporting visits to continue.[52] Ms Ha says that visits to the Applicant in detention in Sydney ceased only as a result of the COVID-19 restrictions. Ms Ha outlined that Anthony suffers from epilepsy and needs daily medication. She wrote of the stress of maintaining support for Anthony as a single parent and the need for some parental support from the Applicant. She stated her belief that the Applicant had “changed to become a better person”, had “learn from his past mistakes and willingly to rebuild his life”, and that she forgave him “for those years absence from family which caused me very rough time”. On the other hand, she confirmed that their relationship was “like roller coasters” and that they are no longer a couple. She says “[w]e currently don’t talk much to each other but we still play parental role. I want him to come back home, prove to me he is a good father as he always does in prison”.[53]
[48] Statement of Tran Phan dated 27 May 2020 (Tran Phan statement).
[49] Statement of Van Truong Phan and Tuyet Suong Luong dated 27 May 2020.
[50] Statement of Kim Hoang Nguyen dated 27 May 2020.
[51] Tran Phan statement describing it as a “married ceremony in Vietnam”.
[52] Tender Bundle at 29-31.
[53] Statement of Thi Kieu Oanh Ha dated 27 March 2020 (Statement of Thi Kieu Oanh Ha): quotes as they appear in the original statement.
Regarding the relationship with Ms Ha, the Tribunal notes that the Applicant is still legally married to Ms Luong and there is no evidence that formal divorce proceedings have been commenced. He told the Respondent that Ms Ha’s father had slapped him when he found out that his daughter was pregnant and that this led to the putative visit to Vietnam for some sort of a ceremony to recognise/ acknowledge their relationship. When questioned, the Applicant could not say where Ms Ha or Anthony were living. He agreed with the Respondent that the relationship had ended by mid-2019 (“I wouldn’t deny it”) and that he and Ms Ha had disagreements about the way in which Anthony should be raised.
The Applicant also told the Tribunal that Ms Ha had expressed concerns about his leaving with Mr Nguyen to go to Perth but that he had ignored those concerns. He described her as being “sensitive” about this trip but that “I did it away from her”.
On the other hand, he also indicated that he had paid some $3,200 towards Anthony’s school fees but had stopped paying as a result of the COVID-19 crisis and the temporary suspension of classes.
CONSIDERATION OF DIRECTION NO. 79
Direction no. 79 provides that decision-making in these matters is to be approached within the framework of the principles set out in paragraph 6.3 of the Direction. These principles (inter alia) emphasise the fact that entry into, and the right to remain in, Australia is a privilege and that non-citizens are expected to abide by the law and not cause harm to the Australian community. They provide that people who commit serious crimes should generally expect to be denied the privilege of entering or remaining in Australia. They also indicate that credit should be given to individuals who have made a contribution to the community (especially over extended periods of time) and that the impact on immediate family members of any forced removal of a non-citizen should be given consideration. Crimes against women, children or vulnerable members of the community are identified as being of a particularly serious character. None of the Applicant’s offences, although serious, fall into this latter category.
Guided by these principles, the decision-maker must take into account the “primary considerations” in Part C of Direction no. 79, 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.
Protection of the Australian community
Paragraph 13.1 of the Direction identifies two particular issues for consideration, namely the nature and seriousness of the offending conduct under review and the risk to the community were an offender to commit further offences. The Direction also refers to engaging in “other serious conduct” and is not restricted to repetition of the original offence.
There is no doubt as to the seriousness of the conduct here in question. The amount of heroin trafficked was substantial and its quality was of a high grade. It was trafficked for financial reward and was noted as a serious offence by the sentencing Judge.[54]
[54] G documents at 26 and 29.
In Ngo v R[55], the Court of Appeal of the Supreme Court of Western Australia 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.[56]
[55] [2017] WASCA 3.
[56] Ibid [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.[57]
[57] SCJD and Minister for Home Affairs (Migration) [2018] AATA 4020, [80]-[83].
The Respondent attached to its statement of facts, issues and contentions (SFIC), a paper prepared by the Australian Institute of Health and Welfare titled Alcohol, tobacco & other drugs in Australia (updated 23 April 2020) which drew attention to the fact that risks of overdosing on heroin were increasing and that heroin accounted for 25% (438) of the drug-induced deaths in Australia in 2018.
The sentencing Judge determined that imprisonment was the “only appropriate disposition” in view of “the seriousness of the offence”.[58] Although the sentence imposed was only 8 years out of a maximum of 25 years for the offence, this tariff was reached by giving the Applicant a considerable discount for his early guilty plea, with some consideration given to his relative youth at the time and the fact that this was his first offence. The Tribunal adopts the court’s position that this was a “serious” offence.
[58] G documents at 30.

The question of the risk of reoffending must be addressed by consideration of what expert opinion is before the Tribunal on this matter. The report of Mr Cinar assesses the risk of reoffending as low as does the assessment from the WA Department of Corrective Services,[59] whereas the NSW correctional authorities place the risk level as “medium-low”.[60] The Respondent, relying on aspects of the completion report for Think First (discussed below) and the NSW assessment, urges the Tribunal to find that the risk level is “moderate” or “medium-low”.
[59] Tender Bundle at 25
[60] Ibid at 38.
The Tribunal notes the repeated statements by the Applicant about what he came to understand as the impact of drugs on people and communities, which he only realised once in custody, as being indicative of an attitude which would militate against further involvement in such activities. On the other hand, the Tribunal is also aware of the fact that the Applicant saw drug dealing as a way to solve his financial problems and is not persuaded that should similar financial problems or stresses arise in the future that the Applicant would necessarily eschew non-lawful methods of addressing them, albeit not necessarily involving drug dealing.
Such a conclusion arises from the fact that the Tribunal has considerable concerns about the veracity of some of the Applicant’s evidence regarding the extent of his involvement with illegal drug activities. This arises from consideration of the Completion Report – Think First dated 8 February 2016 (Completion Report).
The Think First programme is conducted by the custodial authorities in Western Australia and is a cognitive skills programme which focuses on problem solving “and views offending as a problem to be solved”.[61] At the end of the programme a completion report is compiled by two programme facilitators and signed off by a senior psychologist. The report is based on the Applicant’s “Case Conference Report, Treatment Assessment Report, the pre-program interview, participant workbooks and facilitators’ observations and evaluation notes”.[62] The Applicant participated in 25 of 30 sessions held between 13 October 2015 and 13 January 2016.
[61] Tender Bundle at 74.
[62] Ibid.
The Completion Report contains (inter alia) a recital of the Applicant’s family history and background, all of which the Applicant agrees is correct and accurate. It also notes the Applicant’s range of external interests and his general state of emotional wellbeing. Again, the Applicant takes no issue with this material in the report. The report indicates positive gains made by the Applicant during his participation in the programme as quoted above in paragraph 35. The Applicant agreed with this assessment of his progress and learning experience.
However, there is a paragraph in the report which reads as follows:
He stated that prior to his offence he was working part time and struggling to pay for study fees and accommodation. He also outlined precipitating factors to his offending stating losing a lot of money due to gambling in order to aid his financial situation and reported not wanting to ask his parents for financial help with either, as it would “just cause another argument.” He mentioned another motivator for his offending stating “I could not afford accommodation, I slept at the train station and my boss picked me up one day and I started working in a bar and then I started selling drugs for him. He would pay my school fees, give me a place to stay and give me enough money to live.” He reported that after doing this for a period of time his “boss” passed away and he took over his “business” and continued his operations. At this time he moved in with an “uncle” (a friend of his mother’s) who offered him accommodation. He reported he began selling drugs with his “uncle” for a period of time until meeting his current partner. He stated he did not want that kind of lifestyle with his partner and refrained from any criminal activity for 3 years until his current offence. Mr Tran reported “my uncle just rocked up at my house one day and wanted me to start selling with him again” he stated “my girlfriend tried to stop me, but my ego was too big.”[63]
[63] Tender Bundle at 75.
In this paragraph, the statements underlined are independently supported by other evidence which has been noted by the Tribunal while those in bold are disputed by the Applicant.
In relation to the issue of gambling, the Completion Report further states “[h]e also named gambling as a minor issue that may need to be supported post release”.[64] In relation to references to a gambling habit, the Applicant flatly denied that such a problem existed, that any reference to it in the report should be interpreted as a reference to role-playing during course sessions, that it may have been mixed up with another participant’s report and that the report is plainly wrong.
[64] Ibid at 77.
In relation to comments about selling drugs, either initially or with his uncle (other than in relation to the one-off offence for which they were arrested), the Applicant states that the report is inaccurate and false and that the direct quotations attributed to him are either false or else result from confusion with another participant in the programme.
The Tribunal does not accept the Applicant’s denials.
Firstly, there is no reason to believe that three professional officers responsible for the compilation of this report would either deliberately falsify their report or be so incompetent as to mix up one programme participant with another in various parts of the Completion Report. Secondly, the embedding of the disputed comments within a paragraph otherwise containing accurate information which could only have been given by the Applicant himself reinforces the claim to their credibility. Thirdly, the use of direct quotations indicates that the source relied upon was personal and direct rather than as a result of the authors of the report summarising or drawing their own conclusions.
The Tribunal has no difficulty in concluding that the report as presented is an accurate reflection and reporting of the information provided to the authors by the Applicant.
The Tribunal can understand why the Applicant might seek to deny that he had any involvement in illegal drug activity prior to the single instance which resulted in his arrest, but what the Tribunal assesses to be his lack of truthfulness in his sworn evidence does him no credit.
Whether or not this evidence, if presented to either Mr Cinar or the custodial authorities in Western Australia or New South Wales, would likely have altered their risk assessment of the Applicant must remain a moot point. To the extent that it was put to Mr Cinar, his response was that he might raise his assessment only from low to medium-low which is the level otherwise assessed by the NSW corrective services authorities on the LSI-R scale.
The Tribunal notes that the trafficking offence, according to the Applicant, resulted from his inability to cope with financial pressures. Upon release from custody he would, at least in the short run, still face these. Although he might have accommodation and limited financial support from Ms Phan and her family, he would nevertheless be under pressure to provide, at least, for his ex-partner and child, presuming that there will be no financial commitments to his wife.
These assessments and the Tribunal’s conclusions about the Applicant’s truthfulness lead it to assess the Applicant’s risk of offending as medium or moderate. This is a higher rating than those given by other assessors and is based upon the Tribunal’s taking into consideration the content of the Completion Report which was not before either Mr Cinar nor apparently before the New South Wales corrective services authorities.[65]
[65] Tender Bundle at 35.
However, there is no gainsaying the seriousness of the offence of drug trafficking for financial reward and, taken together with the Tribunal’s risk assessment, this criteria of the Direction counts moderately against the Applicant.
Best interests of minor children
There is only one child whose interests need to be considered, none others having been identified by the parties.
Anthony Tran is now some 6 years of age. The Applicant, his mother and Ms Phan have all referred to the fact that the child suffers from epilepsy and the Tribunal accepts this, although there is no evidence before it to determine the severity of the condition (the Applicant stated that the child’s last seizure was in 2018) nor the effectiveness of any medication regime.
Anthony was born when his father was already in custody and has had very limited physical contact with him. Anthony and his father have never been in contact outside a correction or detention environment. In his Personal Circumstances Form the Applicant writes:
My son is still young, he has no idea his father is locked away but not because of that he doesn’t love me. Even though we are apart, he always remembers me and I am so proud when I hear him call me daddy.[66]
[66] G documents at 54.
There has been some communication between the Applicant and his son by telephone although it is unclear when this last occurred. It was the evidence of Ms Phan that she had not heard Anthony speak often about his father and the Applicant himself was, when questioned by the Tribunal, unable to state where his son was then living.
The Applicant has made some financial contribution to his son’s educational expenses and Ms Ha (as the child’s mother) clearly indicates that she wishes to have some degree of support from the Applicant in the raising of the child. Nevertheless, the Applicant and Ms Ha no longer appear to be a couple and, as the Tribunal has already noted, the Applicant indicated that he and Ms Ha had disagreements about the child’s upbringing. Again in his Personal Circumstances Form the Applicant noted that, at the time he completed the form (7 December 2018), the child’s primary carer was Ms Thi Ut Nho LE who is Ms Ha’s mother.[67] Although Ms Ha now appears to be the primary carer, it is clear that to this date the Applicant has played no meaningful role in Anthony’s life or development.
[67] G documents at 53.
Clause 13.2(4)(a) of the Direction requires the decision-maker to give consideration to “[t]he nature and duration of the relationship between the child and the non-citizen”. Clause 13.2(4)(b) requires a decision-maker to take account of “[t]he extent to which the non-citizen is likely to play a positive parental role in the future” while 13.2(4)(d) focusses upon “[t]he likely effect that any separation from the non-citizen would have on the child, taking into the child’s or the non-citizen’s ability to maintain contact in other ways”.
On none of these criteria does the Applicant rate highly. The nature of their relationship to date has been limited and sporadic. There is no compelling evidence from Ms Ha that she expects a lasting relationship between herself and the Applicant to be re-established, as distinct from looking to him for financial support. She states “I need him to come back because he has to do his responsibilities to us, Anthony and I, to help me looking after our son and rebuild our family from this destruction”.[68] It should also be borne in mind that the Applicant is still legally married to Ms Luong. Young Anthony does not appear to have developed such a bond with the Applicant that separation would have a traumatic effect upon him.
[68] Statement of Thi Kieu Oanh Ha.
The Tribunal accepts that, prima facie, it should give weight to this consideration in favour of the Applicant. In MNLR, Markovic J made it clear that:
[i]n considering those factors, the decision-maker, in this instance the Tribunal, must come to a view about whether revocation is in the best interests of the minor children and, in doing so, may, as happened here, reach a conclusion about the degree to which the decision will affect the interests of those children.[69]
[69] MNLR v Minister for Home Affairs [2020] FCA 948, [93].
What was before Her Honour was an appeal against the finding of the Tribunal to assign only “minimal weight” to that consideration. Her Honour made it clear that such a course of action was open to the Tribunal, remarking:
That the best interests of minor children are specified as a primary consideration in Direction 79 does not mean that the Tribunal is required to give that consideration, or any of the other primary considerations, greater weight nor must they always be given significant weight. It was entitled to give the interests of the minor children, as a primary consideration, the weight that it considered it should, having regard to the representations made and the material before it. Direction 79 does not require it to do otherwise.[70]
[70] Ibid [96].
The same point was made by the Full Court of the Federal Court in Buadromo[71] and in this instance the Tribunal determines that the weight to be given to the best interests of the minor child is only limited.
[71] Minister for Immigration and Citizenship v Buadromo [2012] FCAFC 101, [20].
Expectations of the Australian community
Determination of what these expectations may be has long bedevilled this Tribunal and various decision-makers.
In cases such as YNQY and BFXK the Federal Court and this Tribunal have noted that this criterion starts off from a position of being, ipso facto and indeed by intention, unfavourable to the applicant.[72] However, as was stated in BFXK the degree of this unfavourability is to be assessed in relation to the individual circumstances of each applicant and each case.
[72] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, [76]; BFXK and Minister for Immigration and Border Protection (Migration) [2018] AATA 886, [126].
In FYBR the Full Court of the Federal Court gave a definitive ruling[73] (by majority) as to the interpretation of this criterion. It stated (per Charlesworth J):
To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”, in the sense explained by Mortimer J in the limited passage from YNQY upon which the Tribunal relied at [54] of its reasons (extracted at [20] above). It is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”. I do not understand the judgment of Griffiths J in DKXY to differ from that of Mortimer J in YNQY in that respect. For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[74]
[73] On 24 April 2020, an application for special leave to appeal this decision was dismissed by the High Court.
[74] FYBR v Minister for Home Affairs [2019] FCAFC 185, [67]. Emphasis added.
The other judgment of the majority (per Stewart J) put it in these terms:
… it is not the decision-maker who makes an assessment of community values on behalf of the community, and that those values are expressed as norms in Direction 65.[75]
[75] Ibid 104. Direction no. 79 is in identical terms to Direction no. 65 on this point.
His Honour also said:
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.” This limited expression of “community expectations” by the Government is, one would expect, quite uncontroversial which is an attractive feature given the heterogeneity of views in this area.[76]
[76] Ibid 101.
Charlesworth J, on the same matter, stated:
Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.[77]
[77] Ibid 75. Clause 11 of Direction no. 65 (which was the direction before the Court at the time) is in identical terms to the current clause 13 of Direction no. 79.
It is thus clear that the Tribunal must find that the expectations of the Australian community weigh against the Applicant once it is established that they have committed a serious offence.
However, as noted above, it is a matter for the Tribunal to assign the weight to that negative conclusion that it sees fit. What may militate in favour of an Applicant (that is, result in this consideration being given little or less weight than might otherwise be the case) is the repeated position of the Tribunal that although community expectations may be negative they are not necessarily punitive[78] and that the idea of people having a “second chance” and a chance at rehabilitation is something which is quintessentially Australian.[79]
[78] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336, [36].
[79] Do and Minister for Immigration and Border Protection [2016] AATA 390, [23]; The Trustee for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273, [65]; VXKK and Minister for Home Affairs (Migration) [2018] AATA 3268, [138]; Dang and Minister for Home Affairs (Migration) [2018] AATA 2095, [91].
The Tribunal has noted the expressions of remorse on the part of the Applicant and, indeed, his assertions that he was “glad that I was arrested”[80] so that he could have a chance to change his life and behaviour.
[80] Applicant’s statement dated 18 June 2020.
Nevertheless, what must be weighed is the extent to which the expectations of the community are to be held against the Applicant (as per Stewart J’s formulation) and given that this Tribunal, the Courts, the government and the community consider drug trafficking a serious and a reprehensible crime, this consideration must weigh significantly against the Applicant.
International non-refoulement obligations
As with the issue of community expectations, there has been recent authoritative guidance by the Full Court of the Federal Court, after a bewildering variety of previous court decisions, as to how this criterion is to be interpreted.[81]
[81] In GBV18 v Minister for Home Affairs [2019] FCA 1132, [59] Anderson J lists 19 such cases in the period 2016 to 2019.
There had been previous cases where the Tribunal or the Court had been aware of a claim made by an applicant in relation to a fear of being refouled, but the decision-maker had not examined those claims in detail, instead relying upon the fact that should a non-revocation decision be upheld an applicant then had a right to apply for a Protection visa. Those protection claims would then be assessed fully within that context. That approach has been specifically disapproved by the Full Court.
In Minister for Home Affairs v Omar, a bench of five Judges stated:
That is particularly the case here where representations were clearly made on the respondent’s behalf on a significant matter, namely the risk of harm (and serious harm) if the respondent was returned to Somalia given his individual circumstances and the treatment of persons with mental illness in that country. It is difficult to think of a more serious claim than that a person is at risk of harm because it was likely that the person would be chained, imprisoned and at risk of physical injury because of Somalia’s treatment of the mentally ill, which claim was supported by the WHO 2010 report. As Robertson J stated in DOB18 at [190] (with whom Logan J agreed), “the nature and content of submissions made to the Minister” in support of a revocation request under s 501CA(4) is relevant. There had to be an active intellectual engagement with the matters raised on the respondent’s behalf relating to the risk of harm.
The failure to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim raised by the representations actually made and the acceptance of which could, in the present statutory context, constitute “another reason” for revoking the visa cancellation, may constitute a failure to carry out the statutory task and give rise to jurisdictional error.[82]
[82] Minister for Home Affairs v Omar [2019] FCAFC 188, [40]-[41] per Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ. Citations omitted in paragraph 41.

This and subsequent cases[83] make it clear that where any claim(s) of harm is made by an applicant, regardless of an applicant’s continuing ability to make an application for a Protection visa, this Tribunal must give its attention to such claim(s) and come to a conclusion about it after a process of “active intellectual engagement” with the claim(s).
[83] Ali v Minister for Home Affairs [2020] FCAFC 109 per Collier, Reeves and Derrington JJ; DQM18 v Minister for Home Affairs [2020] FCAFC 110 per Bromberg, Mortimer and Snaden JJ.
In this instance, the Applicant has made a series of claims in relation to the prospect of his being refouled to Vietnam.
(a)In his Personal Circumstances Form the Applicant wrote that “[m]y country is full of corruption that I am really afraid to be back. I don’t know for sure what they really are going to do with me, or maybe prison time or sort of heavy punish”.[84] This concern is repeated in his statement of 18 June 2020 where he expresses a concern about being detained by the authorities at the airport if deported and subject to questioning or the extraction of bribes.
(b)The Applicant expressed concerns about having no place to live and no means of support in Vietnam. In relation to his family he wrote that “[t]hey would not accept me as [a] family member for what I have caused even though I deeply am sorry. I have nowhere to live as I do not know where about is my father. They never forgive me for being stupid. Also my father is [a] high ranking policeman who is in service for more than 25 years, I bring shame to my family. I can’t go back because of what I had done”.[85]
(c)In the Applicant’s Personal Circumstances Form he also wrote, in relation to a question about problems he would likely face on return, that “I am not so sure at the moment. I am worried that because I lost the drug, there is some people [who] will look for me”.[86]
(d)The concern expressed in the Personal Circumstances Form in relation to the consequences of the “loss” of the drugs which he was trafficking is elaborated in considerable detail in the Applicant’s statement of 18 June 2020 and was discussed at length at the Tribunal hearing.
In his June statement the Applicant wrote that Mr Nguyen made threats against him while they were both in Acacia Prison, threatening to kill him and that if he (the Applicant) could not find a way to recover the money lost in the failed drug deal “his people would come after me”. He then writes that “I am fearful for my life if I go back” and “I don’t know where Mr Nguyen is, I don’t know who his boss is, I don’t have any idea of their gangs. But I know Mr Nguyen would know my return, if I deported to Vietnam, through family and friends’ connections. If I would go back, I fear for my life and my safety because I know there is at least Mr Nguyen [who] is waiting for me in Vietnam to settle the money I “owed” him”.
During the hearing the Applicant stated that at some time after his return to NSW he made contact with a person who was the “nephew” of Mr Nguyen, who he described as a personal friend or indeed a “brother”. From this person he received information to the effect that Mr Nguyen had returned to Vietnam and was also told that “by the way, Uncle is waiting for you in Vietnam” with the implication that this was to “sort it out” in relation to the failed drug deal. The Applicant stated that this conversation scared him so much so that he ceased contact with this “brother” and deleted him from his Facebook account.
(e)In his interview with Mr Cinar the Applicant expressed a fear of contracting COVID-19 if he is returned because he would “be exposed to unsanitary conditions”.[87]
[84] G documents at 59.
[85] Ibid at 55.
[86] Ibid.
[87] Cinar report at [8.3].
The Tribunal must give consideration to each of these claims. Indeed:
if the decision-maker overlooks a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked, which if accepted would or could be dispositive of the decision, the decision-maker may, depending on the seriousness of the error, commit a jurisdictional error.[88]
[88] GBV18 v Minister for Home Affairs [2019] FCA 1132, [74].
The threat from the Vietnamese Government
The Applicant offers no basis for making the claim that he would suffer persecution at the hands of the government on his return. Had this practice occurred in the past, given the number of non-citizens refouled to Vietnam, it is almost certain that there would have been some noting of this in Australia. Refugee, human rights and other advocates would have been expected to identify such instances and draw them to the attention of the Australian authorities but there is no evidence that this has been the case. The Tribunal cannot accept, without corroborative or credible evidence, that this threat should be taken as real.
The threat from Mr Nguyen or other drug-related parties
In relation to this claim the Respondent makes the point that the claim, in detail, appears to be advanced only late into the Tribunal’s proceedings. The Respondent draws attention to the fact that in a statement (undated but filed with the Tribunal on 28 May 2020) the Applicant makes no mention of the threat from Mr Nguyen. This claim appears in detail only in his statement of 18 June 2020, which is otherwise in identical terms to that of the 28 May statement, where it appears to have been added onto the end of the first statement. In response, the Applicant submits that the 28 May statement was only a draft and that the 18 June statement was the completed document which he actually seeks to rely on. Following an examination of the style and format of the two documents and the internal structure of the narrative (the use of terms such as “secondly” and “thirdly”) the Tribunal is inclined to accept this explanation. It is also to be remembered that the suggestion of some possible retribution arising from the failed drug deal had already been raised by the Applicant in his Personal Circumstances Form of 7 December 2018.
Of greater concern, however, are two matters which are independently in evidence before the Tribunal. The first of these is the record of the police interview which took place on 30 December 2013. As quoted above in paragraph 24, the interview with Mr Nguyen reveals that on several occasions he was at pains to exculpate the Applicant from any responsibility for the drug offence. He repeatedly told the police that the Applicant had little knowledge of what was going on and merely accompanied him in the whole exercise. Although the Tribunal does not accept that the Applicant had no idea he was drug dealing it, nevertheless, reads Mr Nguyen’s statements as being essentially protective of the Applicant. There was no attempt to blame him in any way for the events which took place. Similarly, the events which took place in Perth, leading to the arrest of the pair, in no way indicated that the Applicant had done anything himself which caused the deal to fall apart or be discovered. No one could rationally “blame” the Applicant for what occurred and there is no evidence that the Applicant in any way “owed” Mr Nguyen (or any principals behind him) any money in relation to the failed deal.
The second matter is the report of Mr Cinar. The Respondent rightly points out that in the report itself, when discussing the Applicant’s concerns about being returned to Vietnam, no mention is made of fear of physical harm. The relevant passages speak only of what might be termed the “inconveniences” of refoulement. In his evidence to the Tribunal Mr Cinar was pressed on this matter and confirmed quite clearly that the fear of physical harm on refoulement was never raised by the Applicant. The Applicant submits that this was merely the result of the Applicant doing no more than responding to the questions put to him by Mr Cinar. The Tribunal does not accept this. The report arose, in part from a 1.5 hour personal interview in which the Applicant was free to raise any matter and clearly he was invited to comment on his concerns about refoulement. Frankly, if he had enough concern to mention to Mr Cinar that he was worried about catching the COVID-19 virus, then his failure to mention his fear of being killed by drug-related or gang members is inexplicable.
The Applicant himself states that he has no idea of Mr Nguyen’s whereabouts and relies on a conversation with the nephew to confirm that he is back in Vietnam. Mr Nguyen may well be, provided that he was deported following his release on parole (presuming that he was released on parole), or otherwise allowed to leave the country.
The Tribunal accepts that the Applicant first mentioned his fears in this regard in December 2018 but at that stage they were vague and unformed (“I am not so sure… some people…”). Their subsequent detailed elaboration does not persuade the Tribunal that they are real. In any event it would be perverse logic to hold that, once a serious crime has been committed, fear of retribution from other criminals should constitute a strong basis for not applying the provisions of the Act and Direction against the original offender.
The lack of family and other support
There is no evidence proffered that the Applicant’s family would do him harm were he to be refouled. At best it appears that they would want to have nothing to do with him and in any event it is the Applicant’s testimony that he has no idea where his father is in any case. His mother appears to be in Vietnam at the moment, although his parents are divorced and she normally resides in Canada. The Tribunal has, on previous occasions, recognised that threats from members of a family or community to the wellbeing of a refouled individual can be real and should be taken into account.[89] This is not the case in this instance. The concerns about being without accommodation or support are not unusual in such cases. At least in this instance the Applicant is familiar with Vietnam. He grew up there, he speaks the language and he has employable skills. In this respect, he is far better placed than Mr Nystrom whose deportation was upheld by the High Court despite the fact he was being sent back to a country where he had never lived, did not speak the language and had no employable skills.[90]
[89] 1512955 (Refugee) [2018] AATA 2927; 1216820, 1216828 [2014] RRTA 209: see general discussion of such cases in DFNM and Minister for Home Affairs (Migration) [2019] AATA 3769 per Deputy President Forgie.
[90] Minister for Immigration and Multicultural and Indigenous Affairs v Stefan Nystrom [2006] HCA 50. See also: Ferreira and Minister for Home Affairs (Migration) [2018] AATA 2599 upheld on appeal Ferreira v Minister for Home Affairs [2019] FCA 1657 and subsequently Hopkins v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 33.
Fear of COVID-19 infection
The truth of the matter is that the Applicant may well be safer from COVID-19 infection in Vietnam than he is in Australia. At the time of writing, Australia (population c. 25 million) had recorded 109 deaths from COVID-19 and there were over 8,500 confirmed cases. By contrast, in Vietnam (population c. 95 million) has recorded 349 cases and zero (nil) deaths.[91]
[91] Era Dabla-Norris, Anne-Marie Gulde-Wolf and Francois Painchaud, Vietnam's Success in Containing COVID-19 Offers Roadmap for Other Developing Countries (29 June 2020) International Monetary Fund < Helen Clark, Vietnam defies the odds on Covid-19 (12 May 2020) The Lowy Institute < VOA News, ‘How Did Vietnam Become Biggest Nation Without Coronavirus Deaths?’, VOA News (online), 21 June 2020 < The Economist, ‘Your loss, my grain: As covid-19 saps Vietnam’s economy, private charity is blossoming’, The Economist (online), 4 July 2020 <>
Having considered all the Applicant’s claims in relation to fears about being returned to Vietnam the Tribunal does not believe that any sustainable case has been made out to engage Australia’s non-refoulement obligations towards him.
This criterion does not count either for or against the Applicant.
Strength, nature and duration of ties
The Tribunal accepts that the Applicant has spent a reasonable amount of time in Australia having lived here since 2008. However, approximately half of those 12 years have been spent in custody. In that time he has established himself in gainful employment, and he has clearly developed a network of friends and has both been married and has also fathered a child. He also has some family members (cousins) in Australia.[92]
[92] G documents at 51-53.
There is evidence from the Applicant’s own statements that he has contributed to charity work in Australia and been a member of the Hillsong Church although, with only six years at liberty in the community, there is little basis to assess the full extent (if any) of a meaningful contribution to the Australian community.
The Tribunal accepts that were the Applicant to be refouled to Vietnam there would be an impact upon his family members, upon his partner and his son and there may be an impact upon his wife whose marital status would be complicated by his removal. However, since there is no evidence that the Applicant has made a significant or ongoing financial contribution to his family members (apart from the $3,200 of school fees for his son) this impact would be predominantly emotional, not that that is to be discounted. There is no suggestion that either Ms Ha or Anthony would be deprived of access to social and health support for their needs were the Applicant to be refouled and there is no suggestion that contact could not be maintained, as it is at the moment, by telephone or electronic means.
The Tribunal accepts that this criterion weighs in favour of the Applicant but only to a limited degree.
Impact on Australian business interest or on victims
There are no matters arsing in relation to either of these criteria for consideration.
Extent of impediments if removed
The Tribunal has already made mention of the Applicant’s claims in relation to lack of family, social or economic support if refouled to Vietnam and it accepts that these would have an impact in the short term. Nevertheless, the Applicant is an intelligent, energetic, fit young man with skills both in a trade (bakery) and with a firm grasp of the English (as well as Vietnamese) languages. There is no reason to believe that he would not be able to secure employment and eventually establish social ties and relationships. As a Vietnamese citizen he would have access to support services, health services and entitlements from his government and while they may not be at the same level as those available in Australia, Vietnam is not a country suffering the degree of desperate poverty, violence and deprivation as many other less fortunate nations in the world today.
The Tribunal accepts that the Applicant would suffer some impediments if refouled, that this must be counted in his favour, but that the weight given to this consideration is not great.
CONCLUSIONS
In weighing the various criterion of Direction no. 79, the Tribunal has concluded:
(a)Protection of the Australian community: this counts to a moderate degree against the Applicant.
(b)The best interests of minor children: this counts to a limited degree in favour of the Applicant.
(c)Expectations of the Australian community: this counts to a significant degree against the Applicant.
(d)International non-refoulement obligations: this counts neither for nor against the Applicant.
(e)Strength, nature and duration of ties to Australia: this counts to a limited degree in favour of the Applicant.
(f)Impact on Australian business interests: not relevant and there is no assessment required.
(g)Impact on victims: not relevant and there is no assessment required.
(h)Extent of impediments if removed: this counts in favour of the Applicant but not to a great degree.
In undertaking a most difficult “calculus”[93] of weighing up the factors for and against the Applicant the Tribunal is mindful of the exhortation of Chief Justice Allsop in Hands:[94]
By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
[93] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47, [52].
[94] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, [3]. Citations omitted.
Nevertheless, the Tribunal must make a decision one way or the other and in this case it believes that the protection, and expectations, of the Australian community taken together, significantly outweigh all the other criteria which favour the Applicant.
This point was made in MNLR where Markovic J noted:
While reasonable minds might differ in relation to the difficult decision which the Tribunal faced, it was open to the Tribunal to weigh up the competing considerations and reach the conclusion that the risk of harm to the Australian community outweighed the danger and hardship that the applicant will face as a result of non-revocation of the Cancellation Decision.[95]
[95] MNLR v Minister for Home Affairs [2020] FCA 948, [84].
There are no immediate consequences of the Tribunal’s decision in relation to the deportation or refoulement of the Applicant, although he will remain in detention until his final status is determined. He has the right to seek a Protection visa[96] and any such application would be considered in the normal course of events and are “not matters about which the Tribunal was required to speculate”.[97]
[96] Applicant’s statement of facts, issues and contentions at [31].
[97] MNLR v Minister for Home Affairs [2020] FCA 948, [71].
DECISION
The decision under review is affirmed.

I certify that the preceding 125 (one hundred and twenty-five) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

............................[sgd]............................
Associate
Dated: 10 July 2020

Date(s) of hearing: 2 and 3 July 2020

Solicitors for the Applicant: Mr F Nikjoo, Nikjoo Lawyers

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

Date(s) of hearing:	2 and 3 July 2020
Solicitors for the Applicant:	Mr F Nikjoo, Nikjoo Lawyers
Solicitors for the Respondent:	Ms M Donald, Sparke Helmore Lawyers