Vu and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 94
•5 February 2025
Vu and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 94 (5 February 2025)
Applicant/s: Long Hai Vu
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2023/4699
Tribunal:General Member S Evans
Place:Sydney
Date:5 February 2025
Decision:The Tribunal affirms the decision under review.
..............................[SGD]..........................................
General Member S Evans
CATCHWORDS
MIGRATION – Applicant citizen of Vietnam - Mandatory cancellation of Applicant’s visa – substantial criminal record – history of drug related and domestic violence offences – Direction 110 – whether there is ‘another reason’ to revoke mandatory cancellation –decision under review affirmed.
LEGISLATION
Migration Act 1958 (Cth)
Migration Amendment (aggregate sentences) Act 2023 (Cth)
CASES
Pearson v Minister for Home Affairs [2022] FCAFC 203
Price v Minister for Immigration, Citizenship & Multicultural Affairs [2023] FCAFC 171
Singh v Minister for Immigration, Citizenship & Multicultural Affairs (2023) 296 FCR 582Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17
SECONDARY MATERIALS
Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
The applicant, Long Hai Vu, seeks review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the Respondent) not to revoke the mandatory cancellation of his visa pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act).
For the reasons that follow, the reviewable decision will be affirmed.
BACKGROUND
Mr Vu is a citizen of Vietnam who first arrived in Australia on 22 December 1999 as the holder of a Child (Migrant) (Class AH) (subclass 101) visa. On 7 December 2020, Mr Vu’s visa was cancelled under subsection 501(3A) of the Act because he had been convicted of offences for which he was sentenced to 8 years imprisonment.[1]
[1] RB1, p.117; p.122-123.
On 12 December 2020, Mr Vu made representations to have the cancellation of his visa revoked under section 501 CA of the Act.[2]
[2] RB1, p.164-169.
On 17 February 2023, Mr Vu was advised the Migration Amendment (aggregate sentences) Act 2023 (Cth) was passed to address the decision in Pearson v Minister for Home Affairs.[3] The effects of that amendment were that the decision to cancel the Mr Vu’s visa was valid. On 19 June 2023, a delegate found that the power under subsection 501CA(4) of the Act to revoke the cancellation under subsection 501(3A) of the Act was not enlivened and Mr Vu was notified of this decision on 21 June 2023.[4]
[3] Pearson v Minister for Home Affairs [2022] FCAFC 203.
[4] RB1, p.17-19; p.26-52.
On 29 June 2023, Mr Vu applied to the Tribunal for review of that decision.[5] On 13 September 2023, the Administrative Appeals Tribunal affirmed the Minister’s decision.[6] Mr Vu appealed the Tribunal’s decision and on 29 February 2024 the Federal court set aside the decision and remitted the matter to the Tribunal to be re-heard.[7]
[5] RB1, p.10-16.
[6] RB17, p.793-824.
[7] RB18, p.825-827.
At the time of the hearing Mr Vu was being held in custody. On the basis of the current evidence, the Respondent did not seek to rely on any charges pending against Mr Vu. Consistent with the submissions of both parties, I have not taken Mr Vu’s pending charges and his being held in custody into account in reaching my decision.
RELEVANT LAW AND MINISTERIAL DIRECTION
Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6)(a) and 501(7)(c).
Paragraph 501(6)(a) provides that a person does not pass the character test if they have a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(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.
Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
DIRECTION 110
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 110).
Section 499 of the Act provides the Minister may give directions about the exercise of the powers in the Act. Subsection 499(2) provides that the Minister is not empowered to give directions that would be inconsistent with the Act or the regulations. Mr Turner, appearing for Mr Vu, submits that Direction 110 is ‘invalid’ because it attempts to ‘fetter’ the discretion by having “primary considerations, highest priority considerations, other considerations and elevating the ‘expectations of the Australian community’ to a status where it must always be against revocation of the cancellation”. He contends that the example powers set out in subsection 499(1)(a) demonstrates the Act does not envisage a direction with the breadth of Direction 110.
The extent to which an earlier iteration of Direction 110 compels the Tribunal to reach a decision was considered by Federal Court in Price v Minister for Immigration, Citizenship & Multicultural Affairs [2023] FCAFC 171 where the Court observed at [71].
As a direction made under s 499, the Tribunal was bound to have regard to Direction 90. However, Direction 90 cannot compel a decision-maker to reach a particular decision or to give particular weight to a matter if, in the individual circumstances of the case, the decision-maker considers that different weight should be given….
In Singh v Minister for Immigration, Citizenship & Multicultural Affairs,[8] the Federal Court confirmed that directions made under section 499 of the Act ‘bind administrative decision-makers, including the Tribunal’ and ‘they must be taken into account and accurately understood’. That said, the direction provides no more than guidance on the exercise of discretionary powers. At [23] the Court observed:
Such directions cannot compel a repository of a power to reach a particular outcome, or compel specific weight to be given to a particular matter if, in the individual circumstances of the case, the administrative decision-maker’s view is that different weight should be given to a particular matter. The statutory power in respect of an individual visa holder is being exercised by the administrative decision-maker, not by the Minister who made the directions.
[8] [2023] FCAFC 46.
The authority makes clear that the Tribunal is only required to take the considerations in the Direction into account ‘where relevant’, and ‘it is for the decision maker to determine the weight that should be afforded to those considerations’. In my view, they do not support Mr Turner’s claim that Direction 110 limits the considerations to which the Tribunal may have regard or fetters the Tribunal’s discretion in any way.
Paragraph 5.2 of Direction 110 provides overarching principles which I have considered when reviewing Mr Vu’s application. It relevantly provides:
(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)The safety of the Australian Community is the highest priority of the Australian Government.
(3)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.
(4)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.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)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.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction identifies the considerations the Tribunal must take into account where relevant to a decision.
In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.
The primary considerations in the Direction are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations set out in Direction 110 which must be taken into account where relevant include, but are not limited to:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
ISSUE TO BE DETERMINED
The issue for the Tribunal to consider is whether to revoke the original decision to cancel Mr Vu’s visa pursuant to subsection 501CA(4) of the Act.
Subparagraph 501CA(4)(b) of the Act provides that the Tribunal may revoke the original decision if it is satisfied:
(a)that the Applicant passes the character test; or
(b)that there is another reason why the original decision should be revoked.
It is not in dispute that Mr Vu does not pass the character test by operation of s 501(6)(a) and s 501(7)(c) of the Act. As Mr Vu does not pass the character test, the sole issue for determination is whether the Tribunal can be satisfied that there is another reason why the mandatory cancellation of the visa should be revoked.
EVIDENCE
Background
A report prepared by clinical psychologist Sam Borenstein, dated 15 November 2017, details Mr Vu’s background and the circumstances of his arrival in Australia.[9]
[9] RB12, p.431-439.
Mr Vu was born in Vietnam in 1988 and his younger brother was born two years later. Regarding Mr Vu’s childhood, Dr Borenstein reported:
“Mr Vu described his childhood as ‘strict’ and his parents as ‘wealthy’. Mr Vu saw his mother twice a year and his father every fortnight. Mr Vu [senior] would leave a very detailed timetable for him to follow, to be supervised by housekeepers/tutors in the house Mr Vu and his younger brother resided. Mr Vu's mother constantly travelled and he had no knowledge of her whereabouts”.[10]
[10] Ibid, p.433.
At age 11 Mr Vu travelled to Australia with his mother and younger brother. His mother and father told him it was for a holiday. Upon his arrival in Australia, Mr Vu learned his mother had remarried and that his parents had divorced many years earlier. Mr Vu recalled wanting to return to Vietnam but being forced to remain in Australia with his mother and stepfather.[11]
[11] Ibid, p.434.
Shortly after arriving in Australia Mr Vu and his mother began to clash. Mr Vu recalls his mother was under financial pressure and she ‘took it out’ on him. Mr Vu left his mother’s house and eventually lived with a family friend. He partly returned to the family home when he was in year 9, by which time his mother and stepfather had divorced. Despite being an above average student, Mr Vu felt compelled to leave school in year 10 to support himself financially.[12]
[12] Ibid.
Dr Borenstein considered Mr Vu’s life had been unsettled and largely directionless. He had considerable academic potential and upon moving to Australia he experienced new-found freedoms which he was emotionally ill-equipped to manage. He gravitated towards older peers and was introduced to drugs which he used recreationally when he was distressed and felt directionless.[13]
[13] Ibid, p.437.
Mr Vu’s offending
Mr Vu’s criminal history is set out in a ‘New South Wales Police Force Criminal History - Bail Report’ and summarised in the Respondent’s Statement of Facts, Issues and Contentions.[14]
[14] Respondent’s Amended Supplementary Documents, S4, p.8-18; Respondent’s Statement of Facts, Issues and Contentions dated 7 August 2024.
October 2008 conviction
On 1 October 2008, Mr Vu was fined for ‘Resist or hinder police in the execution of duty and Assault police officer in execution of duty without actual bodily harm’.[15]
[15] RB1, p.62.
February 2016 conviction
On 11 February 2016, Mr Vu appeared before the Local Court where he was convicted of ‘Common assault (DV)-T2’.[16]
[16] Ibid.
August 2016 convictions
On 5 August 2016, Mr Vu was convicted and sentenced in the Bankstown Local Court of NSW for the following offences:
(a)possession of equipment for administering prohibited drugs for which he received a s9 bond for 12 months;
(b)stalk/ intimidate intend fear physical etc harm (domestic)-T2 for which he received a s9 bond for two years;
(c)possess prohibited drug for which he received a s9 bond for 12 months;
(d)contravene prohibition/ restriction in AVO (domestic) for which he was imprisoned for nine months; and
(e)common assault for which he was imprisoned for nine months.[17]
[17] Ibid, p.61-62.
The details of the offending are set out in the sentencing remarks of Magistrate Connell.[18]
[18] RB1, p.84-93.
In an incident that took place on 20 April 2016, Mr Vu was arguing with his wife at their family home. During the dispute Mr Vu threw the contents of a glass of water over his wife. Mr Vu admitted in a recorded interview with the police that he pulled his wife's leg to get her out of the bedroom and then pulled her hair and grabbed her and pushed her out. His wife was concerned that their child, who was present during the incident, would also be harmed.[19]
[19] Ibid, p.89-90.
Police facts record that in a separate incident on 11 May 2016, Mr Vu had an argument with his mother about the cleanliness of their home in which he yelled ‘Fuck you, you think you do everything, fuck you’. His mother became frightened by Mr Vu’s actions and ran outside before calling police, who arrived shortly after. When police arrived, they found in Mr Vu’s possession the drug ‘ice’ and an ‘ice pipe’.[20]
[20] Ibid.
In sentencing Mr Vu, the Court noted that the offending was aggravated by the fact that he was on bail at the time of the offending and an apprehended domestic violence order (AVO) was in place.[21]
[21] Ibid, p.90.
March 2018 convictions
On 21 March 2018, Mr Vu was convicted of ‘Possess prohibited drug, Possession of equipment for administering prohibited drugs’ and ‘Stalk/intimidate intend fear physical etc harm (domestic)-T2’. The offending was in breach of the judicial order imposed on 5 August 2016 and Mr Vu was sentenced to one month imprisonment.[22]
[22] Ibid, p.61.
October 2020 convictions
On 30 October 2020, Mr Vu appeared in the District Court of NSW where he was sentenced to eight years imprisonment for the following offences:
(a)two counts of supply prohibited drug >=commercial quantity-SI;
(b)manufacture prohibited drug >=commercial quantity-SI;
(c)three counts of supply prohibited drug >indict. quantity (not cannabis)-SI;
(d)supply pistol to person unauthorised to possess it-SI; and
(e)supply shortened firearm (not pistol) to other-T2.
In sentencing Mr Vu, Judge Hanley found Mr Vu and his co-offenders were manufacturing and supplying methamphetamine and identified as being involved in the supply of illegal firearms. Judge Hanley stated that the offending was aggravated by the fact it was motivated ‘to a significant degree’ by financial renumeration and the fact Mr Vu was on a section 9 bond at the time of the offences. He found that the manufacturing commercial quantity of methamphetamine was in the mid-range of objective seriousness for offences of this kind and noted that the distribution of illegal firearms within the community was of ‘grave concern’. He found that the supply of methamphetamine was at the lower end of mid-range seriousness.[23]
[23] Ibid, p.94-116.
Mr Vu’s evidence
Mr Vu gave evidence at the hearing and has provided statements in support of his application. Mr Vu said he had a difficult childhood. In a submission dated 23 December 2020, he sets out his personal history, the circumstances that led to his offending and his remorse for his offending.[24]
I was lucky enough to come to Australia when I was 11 years old with my younger brother, our mum brought us here in 1999. And instantly I fell in love with this country, I love being involved with the community, the weekly Sunday church gatherings, weekend community markets, fundraising events, Sydney convention centre and especially participating in cultural activities (Christmas, New years etc…) As far as I can remember, Australia has always been my way of life, my family is here, this is where I grown up, went to school, then High school, then Tafe, getting my first job. All the people I knew, my friends and everyone I’ve grown up with, my entire childhood to adulthood. Everything that I known, learned, have and own has come from my Australian values. Also than to this beautiful country I met my wife, the love of my life and have 2 wonderful kids. Australia is where my heart and soul belongs.
In 2017, I made a serious mistake which lead me to where I am now. At that time, I was in a wrong state of mind, as I was depressed and sadden when my wife and I had some issues. She felt the need to go back to see her parents in China while she was pregnant.
During that 2 months period, I felt lost and got myself involved in the wrong crowd, I started using drugs, abusing it and I didn’t realise the seriousness of what I was getting myself into. I am ashamed of myself, embarrassed when I think of it and I am truly, truly sorry for my actions for breaking the law and the damage I did to the community. This is not the person that I wanted to be, I wish I could take it all back. It's already 3 years that I have been in custody, I wake up everyday regretting what I had done. Feeling lonely, missing my family and kids, I miss being with them, being there for them. I am not a bad person as my family and friends can state, in fact I love to help other people and I feel happy when I do so. I never thought of myself ending up like this but I could not blame anyone except my foolishness.
While in custody, I tried everything I could do to improve myself, I kept up with my religious study, trying to do as much programs as the Centre provided, even enrolled myself to a intensive program as IDAPT, I just want to prove to myself that it was a mistake that I will never repeat again.
I am torn apart when I think about everything, that will be taken away from me, this is a great motivator to make sure I don’t fall into the same mistakes again if I’m given a chance. A chance in life and myself, a chance for me to be a dutiful son, a caring husband and a loving father to my kids. A chance for me to be a good Australian and give back to the community.
Once I’m released from prison, I have a job waiting for me which I have included and attached the offer of letter.
I’m very fond of this country, and if I’m lucky enough to get a second chance to stay in this country, I will be committed to be a law abiding citizen and be involved and contribute into the community. And the most important thing for myself is to be a part of my children’s life and teach them Australian values.
[Errors in original]
[24] Ibid, p.146-163.
Mr Vu was asked about his offending and illicit drug use during his evidence in chief. He was taken to a psychiatric report dated 6 October 2020 prepared by forensic psychiatrist Dr Gerald Chew.[25] Dr Chew formally diagnosed Mr Vu with ‘Severe Methamphetamine Use Disorder in remission in a controlled environment and ‘Adjustment disorder with depressed mood’.[26] Mr Vu acknowledged having been addicted to methamphetamine and his compulsive gambling in the past.
[25] RB12, p.592-598.
[26] Ibid, p.596.
Dr Chew noted that Mr Vu had a significant methamphetamine problem using up to 1g per day by way of smoking. He also reported Mr Vu had told him he became involved in the methamphetamine trade because he was unable to fund his drug habit that had escalated. Mr Vu agreed that he had used methamphetamine on and off since age 22 and his use escalated when he experienced marital difficulties.[27] Mr Vu said that his drug use was in part a way to deal with problems that he had in his life including his wife and mother not getting along.
[27] Ibid, p.594.
Mr Vu said that although he had long had problems with methamphetamine for a long time, he was in denial about the extent of the problem. He wrongly believed he could control his drug use and thought that he was having fun when he was actually in the throes of addiction.
Mr Vu was asked about a letter dated 21 March 2018 written by his wife and presented to the Burwood local Court in which she writes Mr Vu is a good person, husband and father.[28] She writes that their, son Child A, was taken into care by the Department of Families and Community in March 2017 as their relationship had become ‘very strained’. She knew Mr Vu had been smoking ice at the time and his drug use caused him to be short tempered. In his evidence, Mr Vu disputed being short tempered and said he was ‘impatient’. Mr Vu maintains that he had not used ice in his son’s presence, but conceded having kept the drug in the house. He believes that Child A was taken into care because he was an irresponsible father.
[28] RB12, p.440.
When asked about the cost of his drug addiction, Mr Vu said that he was not particularly concerned about the cost because after his wife left home to stay in China, his friends would come to his house and provided him with free drugs. He explained he wanted people to be there during the two-month period in 2017 in which Ms Shan was in China as he was in a vulnerable state.
At the previous hearing, Mr Vu gave evidence that his participation in the manufacture of drugs was partly driven by the need to provide money for his family.[29] Mr Vu confirmed that after being released into the community in December 2022, he did not seek intervention or assistance to deal with his drug problem. He said he could not afford to see a psychologist at that time.
[29] RB15, p.734.
Mr Vu has observed how his absence while in prison and detention has affected his children. He wants his children to have a better life and upbringing than he did. He appreciates his children have been affected by his interactions with the criminal justice system and he has had to explain to his children why he cannot be there for them.
In the past Mr Vu has had a difficult relationship with his mother, but they have since developed a strong bond. He said their relationship improved in 2021 when he was in custody. He plans to care for his mother and to show her that she can rely on him. This is in part motivated by her having been diagnosed with cancer.
Evidence of Xueying Shan, Mr Vu’s first wife
Ms Shan has provided a statement dated 23 July 2024 and gave evidence at the hearing.[30] Ms Shan married Mr Vu in December 2014. They separated in 2023 and as of July 2024 Ms Shan had applied for divorce.[31] Both of their children – Child A and Child B live with Ms Shan. Ms Shan confirmed that despite her separation from Mr Vu, she and their two children treat him as family and love him.
[30] Statement of Xueying Shan dated 23 July 2024.
[31] Applicant's Statement of Facts, Issues and Contentions dated 12 July 2024.
Ms Shan said that if Mr Vu’s visa remains cancelled it will be a big shock to the children who will be sad and miss their father. Ms Shan was asked about a statement she had written in support of Mr Vu dated 25 July 2019 in which she had stated that Mr Vu was a good husband despite occasionally having differences with both her and his mother.[32] In the statement Ms Shan refers to Mr Vu being in ‘his hot temper’. Ms Shan gave evidence that Mr Vu was not a person of hot temper, but that they had occasionally experienced differences over relatively small things.
[32] RB1, p.264-265.
Ms Shan was questioned about Mr Vu’s 2016 convictions which include a charge of common assault against her. It was Ms Shan’s evidence that she was unable to recall the events clearly. She was asked about information in the police facts sheet including that Mr Vu had threatened her and pulled her hair and hit her on the back on the neck.[33] Ms Shan gave evidence that some of the police facts were misleading. While there had been verbal altercations, and she had called the police, she said she was the one who lost her temper.
[33] RB12, p.403-406.
Ms Shan, when asked about her statement dated 25 July 2019, confirmed having signed the letter, but her evidence was that she was unable to recall the detail of what she had written. When asked about Child A being taken into care, Ms Shan said that doctors were worried about the child, but did not provide specific details.
Ms Shan was questioned about Mr Vu’s substance use and if he had a ‘drug problem’. She claimed to have little knowledge and limited awareness of his drug use. When questioned about Mr Vu’s gambling, Ms Shan denied there were any indications that his gambling was problematic. Where money was taken from the family budget to gamble, she said it was within a ‘normal range’.
Ms Shan denied ever having been afraid of Mr Vu. She said that should he be removed to Vietnam she would support her children maintaining their relationship with Mr Vu as he is a good father.
Evidence of Thi Thu Ha Duong, Mr Vu’s mother
Ms Duong is Mr Vu’s mother. In a statement dated 22 May 2024 she writes that Mr Vu was a good child. Since returning from prison, Ms Duong said that he has been a good father who cares for his children, especially child C. Ms Duong writes that Child C was unable to talk at five years of age, but that has improved recently. Child C has started to speak and tells her that she loves her father, and her father loves her. She said that Mr Vu makes all of his children happy.[34]
[34] Statement of Thi Thu Ha Duong dated 22 May 2024.
Should Mr Vu return to Vietnam, Ms Duong expects the impact on her grandchildren to be significant as they love their father and become very excited when they see him.
When asked about Mr Vu’s drug use, she said that had she known about it at the time, she would have monitored him more closely. She said she had limited understanding of his criminal record. She said she had stomach cancer in remission.
Statement of Dao Ngoc Nguyen, Mr Vu’s current partner
Ms Nguyen is Mr Vu’s current partner. She provided a statement on 20 July 2023 and gave evidence at the hearing.[35] Ms Nguyen explained in her evidence that she has observed a difference in Mr Vu since his being released from prison. She feels happy and secure when Mr Vu is living with her and that he helps care for their daughter, Child C. Ms Nguyen confirmed that she and Mr Vu now have a second child, Child D.
[35] RB7, p.358.
Ms Nguyen gave evidence she is currently subject to an intensive corrections order (ICO). Consequently, she would be unable to visit Mr Vu for at least two years should he return to Vietnam. When asked about the ICO at the hearing, Ms Nguyen confirmed it related to a conviction for supplying methylamphetamine.
Other statements of support
Further statements of support have been provided on behalf of Mr Vu. Notably, Attila Bujdoso has known Mr Vu for over 10 years and observed him to be very active in his children’s lives. He believes it is important that Mr Vu be afforded the opportunity to contribute and make amends for his past offending.[36]
[36] Statement of Attila Bujdoso dated 18 May 2024.
Father Van Vuong Nguyen is parish priest at St Felix de Valois Parish. He writes that Thi Thu Ha Duong loves her son and his children very much. He believes that she can continue to help her son to be a good citizen, work and look after his family.[37]
[37] Statement of Father Van Vuong Nguyen dated 22 May 2024.
Ms Shan and her daughter’s general practitioner Dr Mary Le writes that it would be beneficial for the Mr Vu to be able to remain in Australia so he can be present for his children.[38]
CONSIDERATIONS AND REASONING
[38] RB1, p.283.
Primary Consideration 1: Protection of the Australian Community
I must have regard to the protection of the Australia community from criminal or other serious conduct. Relevantly, paragraph 8.1.(1) of the Direction states:
When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in 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.
Paragraph 8.1.1. provides that decision-makers should also give consideration to the ‘nature and seriousness of the non-citizen’s conduct to date’ and paragraph 8.1.2. requires consideration of ‘the risk to the Australian community, should the non-citizen commit further offending or engage in other serious conduct’.
Nature and seriousness of the conduct to date
Paragraph 8.1.1 of Direction 110 provides that “in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following”:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii.crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv.where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
I have set out Mr Vu’s offending above. Having regard to the factors identified in the Direction, I consider that Mr Vu’s conduct to date is very serious. Mr Vu has committed violent offences against his former wife and contravened AVOs. The October 2020 conviction relates to serious drug and firearm offences that occurred while he was on a three-year section 9 bond. The seriousness of Mr Vu’s offending was identified by Justice Hanley who said that the distribution of illegal firearms within the community was of grave concern. Judge Hanley also noted that the firearm was in working order and capable of inflicting serious injuries. The seriousness of this offending is also reflected in the significant term of imprisonment imposed in October 2020.[39]
[39] RB1, p.94-116.
Mr Vu’s offending has shown a pattern of increasing seriousness over time. His first convictions for resisting and assaulting police officers in the execution of their duty were followed by the family violence offences of August 2016 and most recently the 2020 conviction for drug and firearms offences which occurred in late 2017.[40]
[40] Ibid, p.58-62.
Mr Vu has provided false information to the Department by failing to declare his convictions on incoming passenger cards presented on 12 April 2009, 6 July 2012, 4 January 2013 and 5 July 2014. By way of explanation, Mr Vu said he did not appreciate the seriousness of the convictions for which he had been fined, and his youth and immaturity at that time.[41]
[41] Ibid, p.225.
Having regard to Mr Vu’s criminal convictions and the Direction, I consider his offending to date to be very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction provides in part:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; 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).
The nature of future harm
The nature of the harm to the Australian community should Mr Vu commit similar offending is very serious, having the potential to cause physical or psychological harm to members of the Australian community.
The likelihood of Mr Vu engaging in further criminal or other serious conduct
Mr Vu has expressed deep remorse for his offending and notes his drug use was a significant contributor. I acknowledge that when sentencing Mr Vu on 30 October 2020, Judge Henley accepted that Mr Vu’s drug addiction may explain to some extent his susceptibility of committing offences of this kind and explain his behaviour.[42]
[42] RB1, p.109.
Mr Vu submits he is a changed man who has realised the consequences of his actions and taken steps to reform and rehabilitate himself. Mr Vu has provided steps he has taken to address his drug addiction including completion of the ‘Intensive Drug and Alcohol Treatment Program’, ‘Real Understanding of Self-Help’ and ‘Criminal Conduct & Substance Abuse Treatment “Pathways” Program’. He has also obtained a certificate in ‘NEXUS: Planning your release’ and completed Bible study courses.[43] Mr Vu identifies protective factors that will reduce the risk of further drug use and reoffending including the support of his current partner Ms Nguyen, his four minor children, brother and Ms Shan. He notes that regular drug testing confirms he has not taken drugs since 2019.
[43] Applicant's Statement of Facts, Issues and Contentions dated 12 July 2024 at [20].
Mr Vu explained that he was in denial about his drug addiction for a long time, but now understands the extent to which he was addicted ice. In his report of 15 November 2017, psychologist Sam Borenstein recommended psychological treatment to address Mr Vu’s mood and prevent impulsive and compulsive defences.[44] Psychiatrist Dr Gerald Chew also recommended psychological therapy in his report of 6 October 2020.[45]
[44] RB12, p.431-439.
[45] Ibid, p.592-598
Mr Vu claims to have seen a psychologist regularly while in prison. He gave evidence at the first hearing that seeing a psychologist would assist in his rehabilitation. He did not seek psychological support when he was most recently in the community because he has learnt he can talk to his partner and his mother. He says he understands the importance of reaching out for support and being open with his family.
The Respondent contends that Mr Vu has sought to downplay his culpability for his offending and taken minimal ownership of his role in his offending for which he has been convicted. To this end, a pre-sentencing report of 5 August 2016 states that Mr Vu did not accept responsibility for his behaviour, did not display any regret for his actions or express any remorse.[46]
[46] RB12, p.412
I accept that Mr Vu’s drug use has contributed to his offending and that he has made some efforts at rehabilitation in this regard. Mr Vu claims he last used illicit drugs in 2019 while in prison and regular drug testing in prison supports this assertion. A pre-sentencing report prepared July 2016 states that Mr Vu had a significant gambling addiction, losing between $5,000 and $10,000 at a time. It also notes that at that time Mr Vu had not completed an appropriate treatment program despite having an extensive history of methylamphetamine use.[47] Mr Vu previously gave evidence he had been addicted to gambling but that he no longer gambles. In November 2017 Dr Borenstein reported that Mr Vu had a gambling addiction in remission.[48]
[47] Ibid, p.411-414.
[48] RB12, p.438.
It appears that Mr Vu’s addictions to drugs and gambling are in remission and have been for a number of years. However, the evidence does not support a finding he is committed to meaningful ongoing treatment, which is of concern given the nature of his offending and his extensive history of drug use.
The sentencing assessment report prepared on 3 June 2020 notes that Mr Vu had failed to follow directions in relation to counselling and used illicit drugs while under supervision in 2016/17.[49] The report notes he was assessed as at a Medium to High risk of reoffending according to the ‘Level of Service Inventory – Revised (LSI-R)’. Based on the evidence, I accept that Mr Vu’s drug use and gambling addiction are currently in remission. However, it is of concern that he is not committed to ongoing psychological support.
[49] Ibid, p.584-587.
Mr Vu was assessed as a medium-high risk of reoffending in accordance with the Level of Service Inventory – Revised (LSI-R) in a pre-release report dated 12 September 2022. The report notes Mr Vu initially sought to minimise his role in the offending, but was more forthcoming about his involvement in more recent conversations.[50] The officer writes that Mr Vu demonstrated insight into his index offences, and was taking ownership in his role around the drugs and sale of a weapon.
[50] Ibid, p.652-659.
Having regard to the evidence, including his rehabilitation, stated remorse and the protective factors Mr Vu has cited, I find there is a medium to high risk that Mr Vu may reoffend.
Protection of the Australian community – conclusion
Having regard to the totality of the evidence, I find there is a considerable risk that Mr Vu may reoffend should he return to the Australian community. The harm brought by further offending of a similar nature would be significant. The primary consideration of the risk to the Australian community weighs heavily in favour of not revoking the cancellation decision.
Primary consideration 2: Family Violence committed by the non-citizen
Paragraph 4(1) of Direction 110 defines family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
Subsection 8.2(1) of Direction 110 provides that the Australian government has ‘serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia’.
Subsection 8.2(3) of the Direction specifies the following factors must be considered where relevant when considering the seriousness of family violence:
(a)the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person's last known act of family violence, including:
(i) the extent to which the person accepts responsibility for their family violence related conduct;
(ii) the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii) efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non citizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.
Mr Vu’s August 2016 conviction included conduct constituting family violence. The circumstances of Mr Vu’s family violence related offending are set out in the police facts. The victims of his offending were his wife, Ms Shan, and his mother, Ms Duong.[51]
[51] Ibid, p.403-406.
The police facts record that at about 7.00am on 20 of April 2016, Mr Vu and Ms Shan became involved in a verbal argument about money and the current care of their 8-month-old son. This argument bas occurred while in the bedroom of their family home and has continued intermittently throughout the morning. Ms Shan alleges that Mr Vu picked up a glass of water and ice before throwing the contents at her.
About 12.30pm the victim and accused were in their bedroom while the accused's mother was looking after their son out in the front yard. At this time the victim has heard her son crying and has walked from the room to console him. The victim then walked back into the bedroom and holding her son, has sat down on the end of the bed. The accused and victim have again engaged in a heated argument in relation to their finances.
The victim alleges that during this argument the accused has referred to her as a "bitch" and a "slut" and said "Don't believe I will punch you, l will kill you" before walking up to her and punching her right thigh and then walking out of the room. The accused returned a short time later and has again said to the victim “So believe l will punch you" and then grabbed hold of her hair at the top of her head and pulled it forwards. This has caused immediate pain to the victim and concern that her child would also be harmed. As such the victim has moved her body around her son to shield him from the accused. The accused has then left the room. Afraid the accused would return to the bedroom the victim has carried her son outside and contacted Police.[52]
[52] Ibid.
On 11 May 2016, Mr Vu and Ms Duong were at home together when an argument occurred. Mr Vu yelled at Ms Duong who became frightened and called police. In a separate incident, police facts state Mr Vu and Ms Shan had been arguing. When police arrived, Mr Vu said ‘I had an argument with my Mrs, she was complaining about my aunty. I slapped her in the face’. Mr Vu was on bail for breaching an AVO at the time.[53]
[53] Ibid, p.407-410.
Mr Vu has undertaken some rehabilitation, but there is no evidence of him having engaged in specific rehabilitation for domestic violence. I note one of the incidents of family violence occurred in the direct presence of his minor child. Regarding the frequency of the family violence conduct, I accept the family violence conduct was isolated to 2015 and 2016. I also acknowledge that Ms Shan gave evidence that it was she that lost her temper during the incidents of family violence, but I afford her account little weight given her poor memory of events and the inconsistency with her earlier statements. That said, when considering the impact of the offending on Ms Shan and Ms Duong, I acknowledge their ongoing support for Mr Vu and the evidence supports a finding that the impact on the victims has been limited at most.
Having regard to the frequency and nature of the family violence conduct, this consideration is afforded moderate weight against revocation of the mandatory cancellation decision.
Primary Consideration 3: The strength, nature and duration of ties to Australia
I am required to consider the impact of the decision on Mr Vu’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. I am also required to consider the strength, nature and duration of any other ties that Mr Vu has to the Australian community having regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Mr Vu has resided in Australia since he was 11 years of age. His immediate family, including his mother, brother, wife, four minor children and current partner reside in Australia. Statements of support from Mr Vu’s mother, Ms Shan and current partner speak to the extent to which his removal would be detrimental to them as individuals and the functioning of the family. The detrimental impact of Mr Vu’s removal on his family members is emphasised in statements from others who know the family.
Although the evidence is that Mr Vu in the past had a strained relationship with his mother and wife, I accept they are genuine in their affection for him and his removal to Vietnam would be significantly detrimental to their interests. I note the relationship between Mr Vu and his mother has improved significantly since his imprisonment. While Mr Vu is not close to his younger brother, his brother has committed to supporting him in the past and would prefer he remain in Australia.
Although he is reported to have held paid employment at various times, overall, there is limited evidence of Mr Vu having made a positive contribution to the community through paid employment or relationships outside his family.
Based primarily on the impact of the decision on Mr Vu’s family in Australia and his having arrived as a child, this primary consideration is given heavy weight in favour of revocation of the cancellation decision.
Primary Consideration 4: Best interests of minor children affected by the decision
Paragraph 8.4 of the Direction requires decision-makers to decide whether the cancellation is, or is not, in the best interests of minor children in Australia affected by the decision. This consideration applies only if the child is under 18 years old at the time of the decision. In considering the best interests of each child, the factors that must be considered where relevant include:
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(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;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
Mr Vu has identified four minor children who will be affected by the decision. A son, Child A who is age 9, and a daughter Child B were born to Ms Shan. His current partner Dao Ngoc Nguyen and Mr Vu have two children together – their daughter, Child C, is 6 years old and Child D is 1 year old.
Child A and Child B reside with Ms Shan. Mr Vu gave evidence that that he speaks to Child A multiple times each day and visits regularly. He sees Child B once a fortnight and speaks to her every day. Mr Vu’s second daughter Child C, and infant son Child D, reside with their mother Ms Duong and Mr Vu when he is in the community.
Mr Vu regrets being absent from the lives of his children and aspires to provide an upbringing which includes involvement of both their parents. He wishes to spend time with his children and play a positive parental role in their lives. He is particularly concerned about Child C, with who he is particularly close, due to her eczema and difficulties with speaking and communicating. Child D was born premature but is now healthy.
In a statement dated 18 December 2022, Mr Vu’s mother Thi Thu Ha Duong writes that Child A and Child B talk about Mr Vu and ask a lot of questions about him. Child A said he wished his father was present so he could play soccer with him like his friends can. Child B was missing Mr Vu and Ms Duong believes that the children deserve to have their father around.[54] In his original request for revocation, Mr Vu said that the children do tell him they do not want to leave him when they visit him.[55] In a letter dated 14 March 2023, Ms Doung writes that the children ask every day when their father will be home and express a desire to play with him.[56] In a statement dated 16 July 2023, she writes that the children were happy to see their father who can play with them every day. They were excited and when they came back to school they asked where he was and told their friends they were too busy playing with their dad to play with them. They said they loved their dad.[57]
[54] RB1, p.272.
[55] Ibid, p.176.
[56] Ibid, p.286.
[57] RB5, p.356.
In a written statement dated 2 October 2020 family friend Attila Bujdoso writes that both Child A and Child B miss Mr Vu and Child A expressed anguish when told he could not give his father a Father’s Day card.[58]
[58] RB1, p.277.
Ms Shan gave evidence that the two older children may be able to visit Mr Vu in Vietnam if he is removed. I accept that Mr Vu has established and maintained a relationship with the children who visited or spoke to him regularly when he was not in the community.
Ms Nguyen also has a 17 year-old son who is not Mr Vu’s biological child who Mr Vu has worked to establish a relationship with limited success. Mr Vu’s brother also has a child, and it would be expected it is in his interests that Mr Vu remain in Australia.
There is limited evidence as to the extent to which Mr Vu has been filling a parental role for his children, but he has an established relationship with his children who have expressed a strong attachment to him and a desire for his physical presence. It is apparent that Mr Vu cares for his children and is genuine in his intention to play an active role in their lives.
Child A was exposed to family violence taken into care by the Department of Families and Communities and then cared for by Mr Vu’s mother for a time while he was an infant. He is now being cared for by Ms Shan.
While the children’s mothers have been filling a parental role for the children, I accept that Mr Vu’s presence would be practically and emotionally beneficial for the children. Ms Shen has expressed difficulty raising both children without Mr Vu’s support. It is likely that the separation of Mr Vu from his children would be emotionally distressing for them, particularly the eldest three children, notably Child C with whom Mr Vu has a particularly close bond. The children are all of a young age, and building and maintaining a relationship with the children through other means would be challenging.
The best interests of each of Mr Vu’s children are served by revoking the cancellation of his visa and this consideration is afforded significant weight.
Primary Consideration 5: Expectations of the Australian community
Paragraph 8.5 of the Direction relevantly provides:
(1) 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 enter or remain in Australia.
Paragraph 8.5(3) of Direction 110 states that these expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather the Tribunal must give effect to the ‘norm’ stipulated in the Direction.
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
Mr Vu has failed to obey the law and his criminal offending was very serious and would be expected to be removed from the community. His offending includes acts of family violence committed against a woman: paragraphs 8.5(2) of Direction 110, which the Australian community considers particularly serious.
Having regard to his serious offending, this consideration weighs heavily against revocation.
Legal consequence of decision under section 501 or 501CA
Paragraph 9.1 of Direction 110 states that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
Paragraph 9.1(2) of the Direction defines a non-refoulement obligation as 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. Paragraph 9.1.2(2) of the Direction provides that where it is open to a non-citizen to apply for a protection visa, it is not necessary to consider non-refoulement obligations to the same level of detail as those type of issues are considered in a protection visa application. However, I am required to ‘read, identify, understand and evaluate’ the representations.[59]
[59] See Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17 at [24]-[25].
Mr Vu claims he is owed protection obligations on the basis that if he were to return to Vietnam, he will face persecution and imprisonment on account of being a devout Catholic and holding anti-communist views. Mr Vu’s assertions regarding his fear of harm should he return to Vietnam are not supported by meaningful or specific evidence which would realistically enable the Tribunal to evaluate them.
Mr Vu has not applied for a protection visa, but it is open for him to do so. In the circumstances, it is appropriate that Mr Vu’s claims are more fully assessed in a protection visa assessment.
For these reasons, the legal consequences of the decision are afforded neutral weight.
Extent of impediments if removed
Paragraph 9.2 of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
Mr Vu submits that he would face considerable difficulty should he return to Vietnam as he considers himself Australian.
Mr Vu is a relatively young man in good health who can be expected to maintain a basic living standard in Vietnam. He has previously been diagnosed with severe methylamphetamine use disorder in remission and adjustment disorder with depressive mood. I accept the Respondent’s submission that there is no evidence to indicate that Mr Vu will not have access to physical and mental health treatment that is generally available to other citizens of Vietnam, but acknowledge it may not be of the same high standard as that available in Australia.
Mr Vu is not expected to face any language or cultural barriers in Vietnam as he resided in that country until he was age 11 and has returned on occasion since migrating to Australia. Despite having travelled to Vietnam as recently as 2014, I accept that Mr Vu has a very limited existing support network in Vietnam who he can rely on for practical, financial and emotional support. Consequently, Mr Vu would be expected to face emotional hardship upon returning to Vietnam as he would be separated from his family and children in Australia. He would also be expected to face some financial difficulty until he re-establishes himself.
This consideration is afforded moderate weight in favour of revocation.
Impact on Australian business interests
I am required to consider any impact on Australian business interests of a decision to affirm the reviewable decision. Direction 110 also makes clear that an employment link would generally only be given weight where a decision to cancel the Applicant’s visa ‘would significantly compromise the delivery of a major project, or delivery of an important service in Australia’.
As there is no evidence that his consideration applies, it is afforded neutral weight.
CONCLUSION
In balancing the primary and other considerations, the protection of the Australian community weighs against revocation and is afforded very significant weight in recognition of the nature of Mr Vu’s conduct to date and the risk of reoffending. The expectations of the Australian community weigh heavily against revocation. The primary consideration of family violence is relevant and weighs against revocation, but is afforded less weight as the family violence occurred some time ago and were at the lower end in terms of their seriousness.
The best interests of Mr Vu’s children weigh heavily in favour of revocation and are afforded very significant weight. The children are young, and although others will fulfil a parental role for the children, their separation from Mr Vu would not be in their interest. Mr Vu has resided in Australia since he was 11 years old and has limited, but significant ties in the Australian community, notably his wife, former wife and mother. Their interests lend the primary consideration of the strength, nature and duration of ties to Australia heavy weight in favour of revoking the cancellation decision.
Mr Vu will be expected to face some practical and emotional difficulties readjusting to life in Vietnam without support of family. These impediments are afforded moderate weight in favour of revocation as he has not lived in Vietnam since age 11. The legal consequences of this decision weigh neutrally, as do the impact on business interests.
On balance, I am not satisfied there is another reason to revoke the cancellation of Mr Vu’s visa and the reviewable decision will be affirmed.
DECISION
For the reasons outlined above, the reviewable decision is affirmed.
Date(s) of hearing: 18, 19 and 28 November 2024 Date final submissions received: 28 November 2024 Solicitors for the Applicant: R. Turner, Ray Turner Immigration Solicitors for the Respondent: S. Edmondstone, Minter Ellison
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