Trinh and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Trinh and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2876 (30 August 2022)
Division:GENERAL DIVISION
File Numbers: 2022/5046
Re:Thi Chi Trinh
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Deputy President Britten-Jones
Date:30 August 2022
Place:Sydney

The decision of the Tribunal is to set aside the non-revocation decision of 9 June 2022 and to substitute a decision that the cancellation decision dated 3 October 2018 is revoked.
.................[SGD].......................................................
Deputy President Britten-Jones
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – repeated offending of shoplifting and other less serious crimes over a 25 year period – criminal offending linked to applicant’s drug addiction which is now overcome - whether discretion to revoke mandatory cancellation should be exercised – the applicant and her family came to Australia in 1975 – the decision under review is set aside and substituted by a decision revoking the cancellation of her visa
Legislation
Migration Act 1958 (Cth)
Cases
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338; [2016] FCA 1166
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56; [2016] FCAFC 120
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17.
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673.
Secondary Materials
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).
REASONS FOR DECISION
Deputy President Britten-Jones
30 August 2022

This is an application for review of a decision to not revoke the mandatory cancellation of the applicant’s Class BF transitional (permanent) visa (the visa).
The decision to cancel the visa AND SUBSEQUENT PROCEDURAL HISTORY
On 3 October 2018, the applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) of the Migration Act 1958 (Cth)[1] on character grounds due to her substantial criminal record and because she was serving a sentence of imprisonment. The applicant was invited to make a representation seeking to revoke the cancellation decision.
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
On 16 January 2019, soon after the applicant was transferred from prison into immigration detention, the applicant sought revocation of the cancellation decision and made representations in support of that request.
On 22 December 2021, the applicant was served with a further notice of visa cancellation under s 501(3A) because the invitation made with the cancellation decision did not comply with the Act. Consequently, the applicant was invited to make further representations to the Minister about revoking the cancellation decision. The applicant took up this invitation and requested revocation of the cancellation decision on 18 January 2022.
A delegate of the Minister decided on 9 June 2022 under s 501CA(4) not to revoke the cancellation decision (the non-revocation decision).
On 17 June 2022, the applicant applied to the Tribunal for review of the non-revocation decision.
On 26 July 2022, the applicant was released from immigration detention after the Minister had exercised an intervention power under s195A to grant the applicant a Bridging E (subclass 050) visa. This bridging visa allows the applicant to stay lawfully in Australia while she awaits this decision
Legislative Framework
Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[2]
[2] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
Issues before the Tribunal
The applicant does not pass the character test prescribed under s 501(6)(a) as she has been sentenced to a term of imprisonment of 12 months or more, and therefore has “a substantial criminal record” as defined under s 501(7). Therefore, the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is another reason why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which I am required to read, identify, understand and evaluate.[3] If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must decide to revoke the decision.[4] Deciding whether or not to be satisfied that “another reason” exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.[5]
[3] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].
[4] Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, 345 at [38]; [2016] FCA 1166.
[5] Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [14].
The applicant does not pass the character test. The only issue for the Tribunal is whether there is another reason to revoke the cancellation decision having regard to the principles and considerations in Direction 90.[6]
[6] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).
Direction 90
The purpose of Direction 90 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.
The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 90 as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
In making a decision under s 501CA(4), the following are primary considerations:
(i)protection of the Australian community from criminal or other serious conduct;
(ii)whether the conduct engaged in constituted family violence;
(iii)the best interests of minor children in Australia; and
(iv)expectations of the Australian community.
In making a decision under s 501CA(4), other considerations must also be taken into account, including (but not limited to):
(i)international non-refoulement obligations;
(ii)extent of impediments if removed;
(iii)impact on victims; and
(iv)links to the Australian community, including:
a)strength, nature and duration of ties to Australia; and
b)impact on Australian business interests.
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[7]
[7] Direction 90 at 7.
SOME BACKGROUND FACTS
The applicant has had a difficult life since arriving in Australia from Vietnam as a young girl. She was born in 1971 and was about three or four years old when she and her family fled the war in Vietnam. After completing primary school and some years in high school she began associating with the wrong people and getting into trouble. Her criminal record shows over 100 convictions commencing from 1991 until November 2018. Most of the convictions are for larceny and shoplifting because she was supporting her addiction to heroin. She is now 51 years old and has spent the majority of her life in and out of prison. She has four children and one grandson. Her youngest child is 14 years old but he and the next oldest child have been in foster care for most of their lives. She has been married twice. Her second husband died in 2016. He is the father to three of her four children. She said that he was a good father but he too had a problem with drugs and when he came out of prison in 2015 he held her hostage for two weeks and physically assaulted her causing her to be hospitalised. He died soon after.
CONSIDERATION
Protection of the Australian community – 8.1 of Direction 90
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. As required by paragraph 8.1(2) of Direction 90, I give consideration below to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 90
The applicant has an extremely long criminal record with over 100 convictions from 1991 to 2018. She stole to support her drug habit. The vast majority of convictions are for larceny and shoplifting of items with a relatively small value. There are also convictions of possessing cannabis and heroin and driving under the influence and without a licence. On 23 August 2018 she was convicted for shoplifting and sentenced to 18 months imprisonment with a non-parole period of 6 months. The sentencing Magistrate noted her particularly long history of shoplifting and her deep seated drug abuse problem. She was released from prison in January 2019 and taken to immigration detention.
Each of the offences committed by the applicant are not serious but the cumulative effect of frequent and repeated offending over more than 25 years is serious. She received a formal counselling letter in July 2007 which warned her that further criminal convictions could lead to the cancellation of her visa, but she continued to shoplift with convictions in 2008, 2010 and 2012. She received another written warning in January 2014 which gave notice that her visa may be cancelled. On 5 May 2014, the Department of Immigration and Border Protection gave notice of their decision to not cancel her visa. The applicant did not take advantage of that indulgence and she continued to shoplift until her incarceration in 2018 when her visa was finally cancelled.
The applicant’s offending must be seen in the context of her addiction to heroin but it is nevertheless serious offending when looked at cumulatively.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 90
In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.[8] As required by paragraph 8.1.2(2) of Direction 90, I also have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[8] Direction 90 at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[9] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[9] (2014) 225 FCR 424; [2014] FCA 673.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 90
If the applicant were to engage in further similar criminal offending, then the nature of the harm would not be trivial because of the significant economic impact that such extensive shoplifting has on the retail community, but there is no prospect of any harm to the community beyond the direct impact of the shoplifting which is mainly economic.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 90
The applicant said that she will not re-offend because she has been drug free from late 2020 and she has had time to reflect and learn her lesson while in prison and detention for the last four years. There is no doubt that the applicant’s offending was closely linked to her drug addiction. I heard evidence from the applicant and her remorse was genuine. She introduced me to her elderly mother, her daughter and grandson. Her family is very close to her and provide a stable network. I consider that she is unlikely to re-offend if she remains drug free. The International Health and Medical Services (IHMS) records from her time in detention show that she started an opiate substitution treatment program on 11 March 2019. She continued illicit drug use in 2019 and up to about June 2020. The applicant told the Tribunal that she had been drug free from late 2020 and there is no evidence to the contrary. I accept the evidence from the applicant. She was an honest and candid witness who had clearly had a very hard life.
The IHMS report dated 24 May 2022 confirms that she was generally compliant with the program in 2021 and early 2022. It said that the applicant:
… has a history of drug misuse, for which she commenced on the opiate substitution treatment program (OSTP) in March 2019. During this reporting period, [the applicant] has engaged with the drug and alcohol team for 0STP reviews and is noted to be compliant with the program with no concerns being reported. [The applicant] has denied any use of illicit substances whilst in detention during this reporting period and is currently attending monthly for her prescribed injections, the next injection being due on 27 May 2022.

The applicant refused her monthly Buvidal injection on 29 May 2022 and told the detention nursing staff on 14 June 2022 that she felt that she could exit the program. She experienced mild withdrawals in the first week of not taking the Buvidal but has since had no withdrawal symptoms. I consider her exit from the program to be a positive development in terms of her journey away from drug dependency. A further positive development is that the applicant was discharged from detention in late July 2022 and has been living with her family for about three weeks. The support from her family and being near her grandson and young nieces and nephews will help her to remain in good spirits and drug free.
I find that the likelihood of her re-offending is low because she is drug free and is likely to remain so because of her positive family environment.
Conclusion as to protection of the Australian community – 8.1 of Direction 90
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[10] The applicant has committed crimes over a lengthy period of time but most of the offending was not serious and was caused by the need to support her drug habit. She has been drug free for almost 2 years and she has the support of a large and close family. In circumstances where the harm arising from re-offending is mainly economic harm and the likelihood of re-offending is low, I consider that the protection of the Australian community is a factor that only weighs marginally in favour of not revoking the cancellation decision.
[10] Direction 90 at 8.1(1).
Family Violence – 8.2 of Direction 90
The offending did not involve family violence. This consideration is neutral.
Best interests of minor children – 8.3 of Direction 90
I must determine whether non-revocation of the cancellation of the visa is, or is not, in the best interests of a child who is affected by the decision. The best interests of each child should be given individual consideration to the extent that their interests may differ. The following factors that we must consider and are relevant to this application include:
(a)The nature and duration of the relationship between the child and the applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
(b)the extent to which the applicant is likely to play a positive parental role in the future;
(c)the impact of the applicant’s prior conduct and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the applicant would have on a child, taking into account ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The applicant has a son who is 14 years old, a grandson who is about 18 months old and several nieces and nephews who are minors.
The son was taken into state care when only 10 months old because both of his parents, the applicant and her partner, were drug addicts and apparently incapable of providing a safe environment for the children. The son will remain in the care of the state until he turns 18. It is unlikely that the applicant will play any role in his upbringing. Whilst the relationship is parental, it is unlikely that she will play a parental role in the future. The applicant has been out of detention for about three weeks and has not seen her son. There was very little evidence about the arrangements that apply to the son but if his mother remains drug free and out of prison then I consider it would be in the best interests of the child for his mother to remain in Australia on a visa. However, in the above circumstances, I give this very little weight.
The grandson is only 18 months old and has had no relationship with his grandmother until very recently. Since being released from detention, the applicant has been able to help her daughter with her son so I am able to find that it would be in the best interests of the grandson if the applicant remains in Australia. However, in the above circumstances, I give this very little weight.
Very little evidence was given about the nieces and nephews and I am not able to make a finding that they would be affected by my decision.
The best interests of minor children is a factor that weighs in favour of revoking the cancellation decision but I give it very little weight.
Expectations of the Australian community – 8.4 of Direction 90
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[11] However, I do not consider the circumstances of the applicant present an unacceptable risk because of my findings with respect to the protection of the Australian community set out above.
[11] Direction 90 at 8.4(1).
Paragraph 8.4(4) of Direction 90 provides that, as a decision-maker, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed therein, without independently assessing the community’s expectations in the particular case. The character concerns relating to the applicant and her past criminal behaviour mean that the expectations of the Australian community is a factor weighing marginally in favour of non-revocation. This is not a decisive factor in terms of whether to revoke the cancellation decision because of the particular circumstances of the applicant.
My conclusion as to the expectations of the Australian community is that it is a factor that weighs against revoking the cancellation decision, but I give it little weight.
Other Considerations
In deciding whether there is “another reason” to revoke the cancellation of the applicant’s visa, I must also take into account the other considerations listed in Direction 90, where relevant, but these considerations are not exhaustive.[12] I must consider and understand the representations received from the applicant.[13] I must also consider the consequences that would flow from not revoking the cancellation decision.[14]
[12] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
[13] See above at [11].
[14] Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 70-71 at [61]; [2016] FCAFC 244.
International non-refoulement obligations – 9.1 of Direction 90
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.[15] The applicant gave evidence that members of her family had regularly returned to Vietnam and she said that it was a beautiful country which she would like to visit again. Her father and her brother are buried in Vietnam. I consider that non-refoulement obligations are not a relevant consideration in this matter. The respondent does not contend to the contrary.
[15] Direction 90 at 9.1(1).
Extent of Impediments if Removed – 9.2 of Direction 90
Direction 90 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to her home country of Vietnam in establishing herself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
The applicant would face impediments if returned to Vietnam. She is 51 years old and is a recovering drug addict who is receiving significant support from her extended family now that she is out of detention. She has been diagnosed with PTSD and has other health issues. While she speaks some Vietnamese to her family, she is not fluent and that would present some minor difficulties for her if returned. She left Vietnam at a very young age and has never returned and therefore the whole environment would be foreign to her. There would be a significant period of adjustment, but it would not be insurmountable. It was not clear from the applicant’s evidence if she still has some more distant relatives in Vietnam but it was apparent that her family in Australia had maintained some links because they had all returned to visit. The applicant’s father did this every year and, although he died in Australia, his ashes were interred in Vietnam.
The applicant spoke favourably about Vietnam but I do consider there would be some minor impediments for her if returned because of her health issues and because she left at such a young age and all her immediate family are in Australia. This is a factor that weighs in favour of revoking the cancellation decision but I give it little weight.
Impact on victims – 9.3 of Direction 90
There was no evidence of impact on victims within the meaning of the Direction. This factor is neutral.
Links to the Australian community – 9.4 of Direction 90
The applicant’s immediate family members in Australia are her elderly mother, her four children and her grandson. There would be a negative impact on these family members if the applicant had to leave. Since being released from detention, the applicant has been able to help her mother (with whom she lives) and her daughter with her child.
The applicant came to Australia aged 4 years old in 1975 with her parents and siblings. She has lived here ever since and has four children and one grandson living in Australia. She lives with her mother and brother. She managed to gain employment at various times and in particular from 2012 to 2015 as a shop assistant, cleaner and factory hand. She said that she got every job that she applied for. This represents a period of positive contribution to the Australian community.
The strength, duration and nature of the applicant’s links with family are very significant. This is a factor that weighs heavily in favour of revoking the cancellation decision.
Conclusion as to whether to exercise the discretion to revoke the cancellation of the visa
I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether to revoke the cancellation decision.
The primary considerations of the protection and expectations of the Australian community weigh in favour of not revoking the cancellation decision but not decisively. The nature and seriousness of the applicant’s offending is not such that any risk of further offending is unacceptable. Direction 90 provides that a non-citizen who engages in criminal conduct should expect to forfeit the privilege of staying in Australia, but in this case there are significant countervailing factors. The applicant has very close ties to Australia because she fled her home country with all her immediate family when only 4 years old and has lived in Australia ever since. She has a 14 year old and an 18 month year old grandchild whose interests would best be served by her remaining in Australia. It was very unfortunate that she became a drug addict when older and engaged in a life of crime to support that habit. However, the nature of her offending was generally not violent and was primarily connected to her drug habit. The applicant should be congratulated for overcoming her drug addiction by participating in the opiate substitution treatment program. It was apparent from the applicant’s evidence that this had not been easy and that she was very proud of this achievement, as she should be. She has been drug free for about 2 years and is now surrounded by her extended family which will provide a stable, caring and supportive environment for her into the future. In addition, the applicant can now provide support to her elderly mother and help her daughter with her toddler. The applicant would face some minor impediments if removed to Vietnam primarily because of her health issues, her lack of family and other supports in Vietnam because she has not been there for about 47 years.
Having weighed the factors for and against revocation, I conclude that the protection and expectations of the Australian community are outweighed by the countervailing factors. I am satisfied that there is another reason to revoke the cancellation decision. The cancellation decision should be revoked so that the applicant can remain in Australia.
Decision
The decision of the Tribunal is set aside the non-revocation decision of 9 June 2022 and to substitute a decision that the cancellation decision dated 3 October 2018 is revoked.

I certify that the preceding 55 (fifty -five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

........................[SGD]................................................
Associate
Dated: 30 August 2022

Date of hearing: 17 August 2022

Applicant: By videoconference

Advocate for the Respondent: J. Vetter

Solicitors for the Respondent: HWL Ebsworth

[2022] AATA 2876

30 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Appeal

Date of hearing:	17 August 2022
Applicant:	By videoconference
Advocate for the Respondent:	J. Vetter
Solicitors for the Respondent:	HWL Ebsworth