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

Vu and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 2989 (13 September 2023)
Division:GENERAL DIVISION
File Number: 2023/4699
Re:Long Hai Vu
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:              Mr S Evans, Member
Date of decision:               13 September 2023
Date of Written Reasons:      19 September 2023
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal decides that the decision under review, being the decision of a delegate of the Minister dated 19 June 2023 not to revoke the mandatory cancellation of the Applicant’s visa is affirmed.
..............[Sgd]..........................................................
Mr S Evans, Member
Catchwords
MIGRATION – visa refused under subsection 501(1) of the Migration Act 1958 (Cth) – where the applicant has a substantial criminal record – where the applicant does not pass the character test – issue: is there a reason why the visa should not be refused on character grounds – Pearson affected – return to immigration detention - Direction no. 99 considered – reviewable decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Aggregate Sentences) Act 2023 (Cth)
Cases
Pearson v Ministers for Home Affairs [2022] FCAFC 203
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SCJD and Minister for Home Affairs (Migration) [2018] AATA 4020
Suleiman and Minister for Immigration, and Border Protection [2018] FCA 594
Secondary Materials
Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C
REASONS FOR DECISION
19 September 2023
INTRODUCTION

The applicant, Long Hai Vu, seeks review of a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) dated 19 June 2023 not to revoke the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return visa (the visa) pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (the Act).
Mr Vu was born in Vietnam and is a citizen of that country. He arrived in Australia in December 1999 aged 11.[1] On 30 October 2020 Mr Vu was sentenced to eight years imprisonment for drug and firearm offences.
[1] G14/111
On 7 December 2020 Mr Vu’s visa was cancelled pursuant to subsection 501(3A) of the Act because he had a ‘substantial criminal record’ on the basis of having been sentenced to a term of imprisonment of 12 months or more and was 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.[2]
[2] G16/116
On 12 December 2020 Mr Vu made written submission to the Respondent requesting revocation of the mandatory cancellation of the visa.[3] Following his release from prison on 15 December 2022 Mr Vu was transferred to immigration detention.[4]
[3] G24/158-163
[4] S37/284
‘Pearson’ affected and release from immigration detention
On 22 December 2022, the Full Court of the Federal Court of Australia in Pearson v Minister for Home Affairs (Pearson) found that a single aggregate sentence imposed for multiple offences cannot be relied upon when assessing whether a person has a ‘substantial criminal record’ under subsection 501(7) of the Act.[5]
[5] [2022] FCAFC 203, [45] – [49] per Allsop CJ, Rangiah and Derrington JJ
In response to the decision, Mr Vu’s visa was reinstated and he was released from detention on 24 December 2022.
On 17 February 2023 the Respondent wrote to Mr Vu notifying him that following the passage of the Migration Amendment (Aggregate Sentences) Act 2023 (the Aggregate Sentences Act), an aggregate sentence can be relied upon for the purpose of considering if a person has a substantial criminal record under subsection 501(7) of the Act. The Aggregate Sentences Act also validates, with retrospective operation, past decisions that would otherwise have been invalid because of the Pearson decision. The correspondence stated in part:
The effect of the Aggregate Sentences Act is that the original decision to cancel your visa remains valid and you do not hold a valid visa to remain in Australia.
If you have sought revocation of the mandatory cancellation and the Department has not yet reached a decision, there is no need to submit a new request. You are welcome to make additional representations and/or submit any additional information in support of your revocation request to [email]
Your visa status
Your visa cancellation under section 501 of the Migration Act has been validated by operation of the Aggregate Sentences Act and is legally effective, and you no longer hold a visa. As such, you are an unlawful non-citizen and may be detained and removed from Australia. We encourage you to consider information provided in the original Notice of Cancellation pertaining to the reasons and consequences of the cancellation of your visa.
Your options
As you no longer hold a valid visa to remain in Australia, you are liable for immigration detention and we encourage you to self-report to the Australia Border Force. You can do so by contacting [email]
Alternatively, it is open to you to depart Australia voluntarily. You may wish to seek independent advice on how departing Australia will impact you, based on your individual circumstances.[6]
[6] G19/130-131
Mr Vu did not pursue the options set out in the notice but instead remained in the community. A report before the Tribunal confirms that a search warrant was issued under section 251 of the Act which was executed on 17 March 2023 by Australian Border Force (ABF).[7] ABF was unable to locate Mr Vu and another search was conducted at a different premises on 28 March 2023 which also failed to locate Mr Vu.[8]
[7] ‘MCP2 – Report on the use of Search Warrant under s. 251 of Migration Act 1958’ dated 29 March 2023 (MCP2), 2
[8] MCP 2, 10-11
Mr Vu was represented by Mr Turner of Ray Turner Immigration Lawyers. The hearing was scheduled to be heard over two days 23 and 24 August 2023 in person. Mr Vu did not attend on the first day and Mr Turner confirmed that he was unable to be contacted before the hearing. Mr Vu did, however, appear in person at the hearing on the second day during which he gave his evidence in chief.
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.
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. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 99).
Paragraph 5.2 of Direction 99 provides overarching principles which I have considered when reviewing the Applicant’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) 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 non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) 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 8.55(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 measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more primary consideration may outweigh other primary considerations. However, other considerations should not be considered ‘secondary’ or of inherently less importance than primary considerations, and in certain circumstances one or more other considerations may outweigh primary considerations.[9]
[9] Suleiman and Minister for Immigration, and Border Protection [2018] FCA 594, [23] per Colvin J
The primary considerations in the Direction are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)family violence committed by the non-citizen;
(3)strength, nature and duration of ties of the non-citizen to Australia;
(4)best interests of minor children in Australia affected by the decision; and
(5)expectations of the Australian community.
The other considerations set out in Direction 99 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 victims; and
d)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 the Applicant’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.
As Mr Vu was sentenced to a term of imprisonment greater than 12 months in the District Court of NSW in October 2020, I am satisfied that he does not pass the character test by operation of paragraphs 501(6)(a) and 501(7)(c) of the Act.
Having found that 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.
Mr Vu was born in Vietnam in 1988 and his younger brother was born two years later. Regarding Mr Vu’s childhood, Dr Borenstein writes:
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] S12/52
Until he was 7 years old Mr Vu attended boarding school seven days a week. He attended extra classes after school and was pressured to succeed academically. A superior student, Mr Vu attended a selective school from age 7. Mr Vu had few friends was forced to adhere to a strict timetable which prevented socialising.[11]
[11] S12/53
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 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.[12]
[12] S12/53
Shortly after arriving in Australia Mr Vu and his mother began to clash. He recalls his mother was under financial pressure and she ‘took it out’ on him. Mr Vu left the house, wandering the streets before living with a friend for a period of two months.[13] Mr Vu continued his schooling and worked part-time until he was able to access social security.
[13] S12/53
Mr Vu returned to the family home when he was in year 9 after his mother had separated from his stepfather. He lived with his mother for two or three nights a week and the rest of the time stayed with friends. Though he was an above average student he felt compelled to leave school in year 10 to support himself financially.
Mr Vu did not know his mother ‘as a person’ and felt he was abandoned by his parents. Dr Borenstein writes:
Mr Vu's relationship with his mother has "completely deteriorated'. Mr Vu has had no contact with his son for the last five months due to the nature of his charges. Mr Vu says his mother tricked him "I signed documents, now my mother has everything". Mr Vu described feeling is resentful toward his mother and says his parents are considerably wealthy but not generous or supportive, "I don t want to speak to my mother again. She's taken my property and now she's taken my son".
Mr Vu's younger brother lives with his girlfriend. He is a non-drug user, but suffers a Gambling Disorder, as Mr Vu did up until six months prior to consultation, "my brother is stuck in the gambling problem. I see him every week to help. Sometimes I give him money".[14]
[14] S12/54
Dr Borenstein considered Mr Vu’s life had been unsettled and largely directionless. He had considerable academic potential and moving to Australia led to a forced adaption away from the strict timetable established by his father in Vietnam. Mr Vu 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.[15]
Mr Vu’s criminal history
[15] S12/56
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.[16]
[16] G6/51
2016 Conviction
On 5 August 2016 Mr Vu appeared before the Local Court Bankstown where he was sentenced to 9 months imprisonment with a non-parole period of 4 months for Contravene prohibition/restriction in AVO (Domestic), Possess prohibited drug, Stalk/intimidate intend fear physical etc hard (Domestic)-T2 and Possession of equipment for administering prohibited drugs.[17]
[17] G6/50-51
The details of the offending are set out in the court transcript and sentencing remarks of Magistrate Connell.[18]
[18] G12/78-87
In an incident that took place on 20 April 2016 Mr Vu was arguing with his wife Ms Shan at their family home. During the dispute Mr Vu threw the contents of a glass of water over Ms Shan. 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. Ms Shan was concerned that her child, who was present during the incident, would also be harmed.[19]
[19] G12/83
In a separate incident on 12 May 2016 Mr Vu had an argument with his mother in which he yelled ‘[f]uck you, you think you do everything, fuck you.’ His mother became frightened by Mr Vu’s actions and ran outside the location 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] G12/84
In sentencing Mr Vu the Court noted that the offending was aggravated by the fact that he was on bail at the time and an apprehended domestic violence order (AVO) was in place.[21]
[21] G12/86
2018 conviction
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.[22] As a result of his offending he was in breach of the judicial order imposed on 5 August 2016 and sentenced to one month imprisonment.[23]
[22] G7/55
[23] G11/75
2020 conviction
On 30 October 2020 Mr Vu appeared in the District Court of NSW where he was convicted of offences including two counts of supply prohibited drug >=commercial quantity-SI, manufacture prohibited drug >=commercial quantity-SI, three counts of supply prohibited drug >indict. quantity (not cannabis)-SI, supply pistol to person unauthorised to possess it-SI and supply shortened firearm (not pistol) to other-T2.[24] He was sentenced to eight years imprisonment with a non-parole period of five years commencing on 16 December 2017 and expiring on 15 December 2022:
[24] G6/48
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. In the sentencing remarks Justice 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’.[25] He found that the supply of methamphetamine was at the lower end of mid-range seriousness.[26]
[25] G13/97
[26] G13/98
Evidence of Thi Thu ha Duong, Mr Vu’s mother

Ms Duong provided a statement dated 16 July 2023 and gave evidence at the hearing. When Ms Duong immigrated to Australia, Mr Vu remained in Vietnam where he was raised by his grandmother. When Mr Vu was 11 years old, Ms Duong sponsored him and his brother to join her in Australia.
Ms Duong loves her son and believes he has changed completely in the years since his offending. Following his release from immigration detention, she has observed him ‘getting better everyday’.
Since December 2022 Mr Vu has been residing with his current partner Dao Ngoc Nguyen and the couple’s 5 year-old daughter. Ms Duong has observed Mr Vu trying his best to be a good father to his three children. His two eldest children live with Mr Vu’s former wife Xueying Shan. Though he does not reside with Ms Shan, Mr Vu does all he can to maintain regular contact with the children. Ms Duong understands that Mr Vu supports Ms Shan and their children financially and has been working in the building industry to do so. She believes his goal is to work, pay taxes and support his family.
She gave evidence that while he was in prison, Mr Vu was visited regularly by Ms Shan and their children. Since being released from detention Mr Vu has continued to maintain weekly contact with Shan who facilitates his regularly using Facetime to communicate with their two children.
In July 2019 Ms Duong provided a statement in which she stated Mr Vu was a good son but ‘hot tempered’.[27] Ms Duong does not dispute that she and her son have had a troubled relationship in the past. She attributes this to her attempting to dissuade him from keeping bad company, which made him angry. Having served a lengthy prison sentence, Ms Duong is confident Mr Vu has changed. He is now calmer and acknowledges when he has done something wrong.
[27] G49/261
In September 2017 Ms Duong asked for and obtained a guardianship order for Mr Vu’s son who I will refer to as Child A. She did so as the child had been taken into the care of the NSW Department of Community Services (DOCS). Child A has since returned to the care of Ms Shan. Ms Duong confirmed that Mr Vu was prohibited from contacting with the child when the guardianship order was in place but DOCS allowed Mr Vu to speak to his son and she took the child to visit Mr Vu while he was in prison.
Ms Duong is not aware of the exact nature of Mr Vu’s offending because she has been focussed on her work. However, she is aware Mr Vu’s visa has been cancelled and she confirmed that on 17 March 2023 ABF officers visited her home looking for Mr Vu. She gave evidence that Mr Vu was not at her home but she had met with him subsequently and told him ABF were attempting to locate him.
Evidence of Attila Bujdoso, family friend
Mr Bujdoso has known Ms Duong and her family for approximately 10 years. He provided a written statement dated 22 July 2023 and gave evidence at the hearing. He has previously observed Mr Vu’s interaction with Ms Duong to be argumentative, but stated Mr Vu is calmer now. In Mr Bujdoso’s experience, Mr Vu has consistently been polite.
He gave evidence Ms Duong has always been concerned about Mr Vu and in his opinion there was miscommunication between them that is less prevalent now. Mr Bujdoso speculated that Mr Vu did not attend the first day of the hearing because he feared being ‘arrested’. He conceded that he had limited interaction with Mr Vu but believes him to be genuinely remorseful for his offending and the impact it has had on his children.
Mr Vu’s evidence
Mr Vu appeared on the second day of the hearing to give evidence. He also provided a statement dated 21 July 2023.
Mr Vu acknowledged his past behaviour which he considers unacceptable. He regrets the effect it has had on his mother, partner and children. The experience of being imprisoned provided Mr Vu an opportunity to consider his life and to reflect on what he had done in the past and what might happen to his children if their father was not present. While in custody, Mr Vu determined to leave his past behind and build a better life for himself. A practicing Catholic, Mr Vu attended Church weekly while in prison. Should he return to Vietnam he intends to continue practicing his religion.
In prison Mr Vu received the news that his father and his maternal grandmother who raised him as a child in Vietnam had both passed away. He understands his father would have been disappointed that he was in prison and he regrets not having had an opportunity to apologise to him or to see him again before he died.
Regarding his offending, Mr Vu stated that the 2020 convictions related to offences committed in 2017. At the time he committed the offences he had an active gambling addiction and argued a lot with Ms Shan. While pregnant with their second child, Ms Shan visited her parents in China which made Mr Vu feel rejected and sad. He began spending more time with his friends. He was using drugs and alcohol and in Ms Shan’s absence he became more heavily involved with his friends and his drug and alcohol use escalated.
Asked about the 2016 offending, Mr Vu was able to recall some specific details but not others. Nonetheless, he acknowledged the offending included acts of family violence which he regrets. He is ashamed of his actions because he was always taught to treat women with respect. He conceded knowing an AVO was in place at the time of the offending and the conditions of the order, and that he had committed an offence while on bail.
Mr Vu and Ms Shan are now separated. Mr Vu has been in a relationship with Dao Ngoc Nguyen since 2017. A daughter, Child C, was born to the couple in 2018 and Ms Nguyen is currently pregnant with their second child. Mr Vu expressed confidence in their relationship and confirmed he has never been violent towards Ms Nguyen.
Mr Vu has had a troubled relationship with his mother since arriving in Australia as a child. He explained that when he arrived in Australia he did not respect his mother or understand her because she was preoccupied with work. Over time their relationship has improved and they have become closer. He now shares his feelings with her and no longer keeps things from her. Mr Vu’s younger brother is also in Australia. They lead separate lives and are not particularly close despite growing up together.
Since being released into the community on 24 December 2022 Mr Vu has been in paid employment.
On 17 February 2023 the Respondent wrote to Mr Vu regarding the validation of the decision to cancel his visa by operation of the Aggregate Sentences Act. Mr Vu recalls receiving the correspondence and stated that he understood he was encouraged to self-report. He says he tried to do so a couple of times but was unable to because he was scared.
After receiving notification from the Respondent that the cancellation of his visa was legally effective and he no longer held a visa, Mr Vu’s employer could no longer provide him with work. Mr Vu continued to perform similar work for cash payment but when asked during the hearing, he appreciates he is not entitled to work.
Evidence of Dao Ngoc Nguyen, current partner
Dao Ngoc Nguyen is Mr Vu’s current partner and mother of Child C, Mr Vu’s third child. She provided a statement dated 20 July 2023 and also gave evidence at the hearing. Since his release from prison Ms Nguyen has observed change in Mr Vu who is now more involved in looking after and raising his children.
Ms Nguyen has observed Mr Vu has a special bond with Child C. Mr Vu regularly takes her to the park when he has free time. Child C suffers from both eczema and behavioural issues and Ms Nguyen has observed her health problems have eased since Mr Vu returned home. Child C also has fewer problems communicating and socialising with others and often asks after Mr Vu. At night, she often asks where Mr Vu is when he is not home.
Ms Nguyen stated she and Mr Vu met at a party, and their relationship commenced in 2017. She confirmed that Mr Vu currently lives with her full-time. Ms Nguyen and Mr Vu were co-offenders and when he was initially imprisoned in 2017, she was prohibited from contacting him. They were subsequently able to speak by phone and eventually she was permitted to visit. Ms Nguyen made sure Child C was able to maintain contact with Mr Vu throughout his imprisonment.
Should his visa remain cancelled, Ms Nguyen would not accompany Mr Vu to Vietnam. Her teenage son from another relationship has ADHD and lives with her, and Child C’s skin condition is best treated in Australia. The couples’ second child, and Mr Vu’s fourth, is due in December 2023.
Other character references
Other character references are in evidence. Long-time family friend Le Ngoc Vuu writes in a statement dated 15 July 2023 that Mr Vu is a good father who regrets his past offending.
Parish Priest Father Van Vuong Nguyen of the St Felix de Valois Parish writes on 19 July 2023 that Ms Duong is a ‘practising catholic and good hard-working citizen who has lived in Australia for over 27 years’. He believes she can provide proper guidance to Mr Vu. He described Mr Vu as ‘trying his best to look after his family’, but does not appear to have had meaningful interaction with Mr Vu himself.
In a statement to the Respondent dated 25 July 2019 Ms Shan wrote of having visited Mr Vu almost every week in prison and that he expressed his remorse and promised ‘to rebuild happiness for our family’.
Primary consideration 1 – Protection of the Australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, Direction 99 requires decision-makers to have regard 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 Applicant’s conduct to date
In considering the nature and seriousness of the Applicant’s conduct I am required to have regard to the factors set out in paragraph 8.1.1(1) of the Direction.
Mr Vu’s offending includes crimes of a violent nature against his wife and mother which are to be viewed very seriously. Direction 99 provides that crimes of a violent nature against women are necessarily to be considered very serious in nature.
Mr Vu’s October 2020 convictions involved serious drug and firearm offences and he was on a section 9 bond at the time of the offending in 2017.[28] The seriousness of his offending was outlined by Justice Hanley in his sentencing remarks. With regards to the firearm offences, Justice Hanley state ‘the distribution of illegal firearms within the community is one of grave concern’ and observed the fact that it ‘was a firearm in working order and capable of inflicting fatal injuries’.[29] Regarding the drug offences, Justice Hanley observed:
Offences of this kind are abhorred by the community and are extremely concerning. The manufacturing of methylamphetamine has had a damaging impact upon members of the community.[30]
[28] G13/90
[29] G13/97-98
[30] G13/106
The seriousness of Mr Vu’s offending has increased over time. The offending commenced with resisting and assaulting police officers in the execution of their duty in 2008 culminating in the significant drug and firearm offences committed in November 2017.[31] I accept the Respondent’s contention that the seriousness of Mr Vu’s offending is reflected in the prison sentence imposed upon him.[32]
[31] G7/52-56
[32] Respondent’s Statement of Facts, Issues and Contentions (RSFIC), [25]
The Respondent notes that Mr Vu provided false information to the Department when he did not declare his convictions in incoming passenger cards. Mr Vu has explained that he did not know how serious the convictions were as he had only ever been fined. He says he was ‘young, immature and unaware’.[33]
[33] G30/219
The Respondent wrote to Mr Vu on 17 February 2023 to advise the cancellation of his visa was valid and as such he was an unlawful non-citizen. Mr Vu’s decision to remain an unlawful non-citizen demonstrates poor compliance with the instructions of authorities.[34]
[34] RSFIC, [29]
Overall, having regard to the Direction I consider Mr Vu’s conduct to be very serious.
Subparagraph 8.1.2(1) of Direction 99 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. Subparagraph 8.1.2(2) provides that in assessing the risk posed by a non-citizen to the Australian community, I should consider, 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 available information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending.
The nature of future harm
Should Mr Vu commit similar offences in the future, the nature of the harm would be very serious, having the potential to cause physical or psychological harm to the Australian community including members of his own family.
The manufacture and trafficking of drugs is noted as having a ‘corrupting’ effect on many facets of a community, and caused harm to both individuals and families, increasing the burden on the state through impacts on mental and physical health, and causes criminal activities to flourish.[35] A repetition of offences relating to the manufacturing of illicit drugs or distribution of illegal firearms may have harmful or even fatal consequences to members of the Australian community.
[35] SCJD and Minister for Home Affairs (Migration) [2018] AATA 4020, [80] – [83]
The likelihood of Mr Vu engaging in further criminal or other serious conduct
Having learnt from his past mistakes and served a lengthy term of imprisonment, Mr Vu contends that the risk of his reoffending is negligible. In written submissions he states that he is deeply remorseful for his offending behaviour, which he considers were in large part the result of having a drug addiction. In a personal circumstances form dated 12 December 2020 Mr Vu details how in 2017 he was ‘in a wrong state of mind’, depressed and sad when his wife returned to China to visit her parents. During a two-month period, he became involved ‘in the wrong crowd’, started using drugs and did not realise the seriousness of what he was doing.[36]
[36] G23/143
The specifics of Mr Vu’s illicit drug use are unclear based on the inconsistent accounts provided in various reports over time. At the hearing he explained that his drug use had commenced age 20 with his using MDMA and remained infrequent until age 24. As he began to use methamphetamine as a coping mechanism and to avoid dealing with his problems, his drug use became more frequent. When Ms Shan returned to China for two months in 2017, his drug use increased substantially and he was using up to 0.5 milligrams of methamphetamine each day. By his evidence, which I accept, Mr Vu last used illicit drugs in 2019 whilst in prison.
In sentencing Mr Vu, Judge Hanley acknowledged Mr Vu’s drug addiction problem may explain ‘to some extent’ Mr Vu’s ‘susceptibility to committing offences of this kind, and for that reason explain his behaviour.’[37] Judge Hanley also observed that a Sentence Assessment Report by Christopher Baker dated 3 June 2020 concluded Mr Vu was at ‘medium to high risk of re-offending’.[38] Mr Baker’s report is in evidence and details an extensive history of methamphetamine use by Mr Vu and ‘no record of having successfully completed an appropriate treatment program’. He noted there had been no mental health diagnosis for Mr Vu and he was not taking medication, but Mr Baker stated Mr Vu may benefit from psychological support.[39]
[37] G13/103
[38] G9/70
[39] G9/69
Judge Hanley also refers to a report prepared by Forensic Psychiatrist Dr Gerald Chew on 6 October 2020. Dr Chew observed Mr Vu was remorseful throughout his interview and demonstrated ‘good insight into his issues.’ In his report Dr Chew acknowledges Mr Vu’s diagnosis of Severe Methamphetamine Use Disorder in remission in a controlled environment and Adjustment disorder with depressed mood.[40] He recommends Mr Vu attended a community or residential rehabilitation facility and that if Mr Vu is imprisoned, as he was, that he receive specific treatment of his psychological issues and drug issues.[41]
[40] S22/215
[41] S22/216
A pre-release report dated 12 September 2022 prepared by Windsor Community Corrections confirms that during his time in custody Mr Vu had been subject to ongoing urine testing as part of the Intensive Drug and Alcohol Treatment Program (IDAPT). Out of 94 tests undertaken he had received nil positive samples.[42]
[42] G9/63
The pre-release report states that Mr Vu had been assessed at a Medium-High risk of reoffending according to the Level of Service Inventory – Revised.[43] Should Mr Vu be granted parole, the author recommends a supervision plan which includes a referral to alcohol and other drug counselling, referral to a local GP to attain a mental health care plan, referral to gambling counselling, referral to the EQUIPS suite of programs and random drug testing to monitor compliance with abstinence.[44]
[43] G9/65
[44] G9/65
The report also notes that upon his release from custody on 22 May 2017 to a 12-month section 9 bond for previous offending, Mr Vu had reportedly ‘responded poorly to supervision and maintained minimal contact with Community Corrections during his time of supervision.’[45] When questioned about this at the hearing, Mr Vu conceded that the observation was accurate and that he had taken the supervision lightly as he was young at the time.
[45] G9/61
In his November 2017 report Dr Borenstein opined Mr Vu’s criminal history suggests a propensity to rely on compulsive or addictive behaviours such as gambling or drug use and to act impulsively. Dr Borenstein diagnosed Mr Vu as having Adjustment Disorder with mixed anxiety and Depressed Mood and considered that psychological treatment would instruct Mr Vu in more effective ways of managing mood and affect dysregulation and prevent compulsive and impulsive defences. Psychological treatment would also address the issue of Mr Vu using substances as a form of self-medication with an emphasis on relapse prevention.
In addition to his expression of remorse for his past conduct, Mr Vu has taken measures to enhance his prospects of rehabilitation.[46] He no longer uses illicit drugs and used his time in prison and immigration detention to undertake programs including completion of The Criminal Conduct & Substance Abuse Treatment “Pathways” program.[47]
[46] G23/143
[47] G44/252
NSW Corrective Services records confirm Mr Vu completed IDATP and progressed to Pathways in July 2021 and completed the program in August 2022.[48] He was reported to have engaged well and shown a good level of insight. A parole conduct report provided in June 2023 states that Mr Vu had recently accepted a referral to alcohol and other drug counselling at Odyssey house.[49] When asked about this at the hearing, Mr Vu confirmed having contacted the provider but not having commenced counselling.
[48]
[49] G10/72
In prison Mr Vu attended Chapel and weekly bible study, which is verified by a certificate from Crossroads Australia dated 12 October 2018 for completing the Great Truths of the Bible course, and a certificate dated 13 June 2019 for Survey of the Bible.[50] A certificate dated 12 July 2021 confirms Mr Vu completed the real understanding of self-help ‘RUSH’ programme of 23 sessions in July 2021.[51] Mr Vu also completed the criminal conduct and substance abuse treatment pathways program phase 1 and phase 2 out of a total of 3 phases in March and July of 2022 respectively.[52]
[50] G41/248-249
[51] G43/251
[52] G44/252-253

Mr Vu gave evidence that his rehabilitation efforts had been beneficial. Previously he did not know how to call for help but he is now able to reach out for help and talk about how he is feeling. Mr Vu had regular sessions with a psychologist while in prison and he accepts that continuing treatment with a psychologist may be beneficial. While he has been ‘too busy’ to see a psychologist since leaving immigration detention, he is now able to speak to both his mother and partner.
Protection of the Australian community – conclusion
Mr Vu has expressed his remorse for his offending behaviour and I accept he has ceased using illicit drugs in 2019. He appears to have engaged positively in rehabilitation during his time in prison. His methamphetamine use disorder has been diagnosed in remission but Mr Vu appears to have dispensed of treatment and meaningful engagement with treatment services since leaving detention. Given his history of addiction and the link Mr Vu has identified between his drug use and criminal offending, his failure to continue treatment is of significant concern in circumstances where he has been assessed as being at Medium-High risk of reoffending.
Mr Vu appears to have been compliant with his probation reporting requirements since his release from immigration detention. Nonetheless, having been made aware of his visa status, his failure to present to ABF officials demonstrates a lack of regard for the law.
Having regard to the evidence, I find that Mr Vu represents a considerable risk to the Australian community and this primary consideration weighs strongly in favour of not revoking the cancellation decision.
Primary consideration 2 - Family violence committed by the non-citizen
The second primary consideration is whether the conduct engaged in by Mr Vu constituted family violence. Family violence is defined in Section 4 of Direction 99 to include 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. Paragraph 8.2(3) of the Direction sets out a list of factors that the Tribunal must consider in assessing the weight to be given to this consideration. They relevantly include the frequency of the conduct, the cumulative effect of repeated acts of family violence and the rehabilitation achieved since the person’s last known act of family violence.
Mr Vu’s 2016 conviction relates to two separate offences involving family violence, the victims being his then wife and his mother. The sentencing remarks of Magistrate Connell detail how Mr Vu threatened both women and physically assaulted his wife in the presence of his then infant son.[53]
[53] G12/84
Having regard to the Direction, there is no evidence of Mr Vu having engaged in specific rehabilitation for domestic violence. However, I acknowledge the extensive rehabilitation he has undertaken would be expected to have provided insight into his criminal conduct in general. Mr Vu accepts responsibility for his actions and presents as genuine in his remorse for the distress caused to his family.
Mr Vu has a single appearance before the courts in relation to family violence, albeit relating to two separate incidents. The evidence does not support acts of family violence by Mr Vu being frequent or of increasing seriousness.
Though this primary consideration weighs against revoking the cancellation of Mr Vu’s visa, it is afforded less weight in recognition of the requirement in the Direction that the weight be proportionate to the seriousness of the family violence.
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 as well as the strength, duration and nature of any family or social links with Australian citizens, permanent residents and people who have a right to remain in Australia indefinitely. Subparagraph 8.3(4) provides that consideration weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years.
Mr Vu has resided in Australia since 1999 when he was 11 years of age. His immediate family including his mother, brother, wife, three minor children and current partner reside in Australia. His three young children reside in Australia, and he is expecting a fourth child who would also be expected to remain in Australia should Mr Vu return to Vietnam. Ms Nguyen is a citizen of Vietnam but stated she needs to remain in Australia to care for her 17 year-old son, who is not biologically related to Mr Vu and has medical needs which require her continued care.
His family members, current partner and Ms Shen have all provided statements in support of Mr Vu. I accept that despite their separation Ms Shen maintains a relationship with Mr Vu whose removal would be detrimental to her. The evidence supports that Mr Vu and his mother have had a difficult relationship. Ms Duong has limited contact with Mr Vu but would prefer her son remaining in Australia with her and is committed to building on their relationship. Ms Duong stated she would not be affected by his returning to Vietnam but is concerned about the impact it would have on his children should Mr Vu not be present to participate in their lives.
Mr Vu gave evidence he and his younger brother Ha Thanh lead separate lives. In a statement dated July 2019 his brother promises to support Mr Vu and but does not indicate the effect on he or his family should Mr Vu return to Vietnam.[54] However, I accept that he would prefer Mr Vu remain in Australia in proximity to him and their mother.
[54] G53/268
Mr Vu has provided little evidence of having established ties to the community outside of his family. Similarly, limited evidence exists of Mr Vu having contributed positively to the Australian community during his residence. However, it is not in question that Mr Vu arrived in Australia as a child and has resided in Australia for most of his life. His entire adult life has been spent in Australia where his remaining family reside. These are significant considerations.
Overall, this primary consideration weighs very heavily in favour of revocation.
Primary consideration 4 – Best interests of minor children affected by the decision
Direction 99 requires the Tribunal to make a determination about whether refusal to grant the Applicant’s visa is in the best interests of any minor children in Australia affected by the decision. The Direction at subparagraph 8.4(4) sets out a number of factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child, the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child, any known views of the child, and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence.
Mr Vu is the father of three children. His son, Child A (born 2015) and first daughter Child B (born 2018) were born to he and Ms Shan.[55] His second daughter, Child C (born 2018), was born to his current partner Ms Nguyen.[56] Ms Nguyen is currently pregnant with Mr Vu’s fourth child.
[55] G25/169
[56] G63/278
As he was imprisoned in 2017, Mr Vu has had limited contact or interaction with his children until his release from immigration detention in December 2022. He claims to have been visited by his children whilst in prison, which is contrary the statement in the pre-release report that he ‘held nil contact with his children since entering custody’. The same report flags possible ongoing restrictions against Mr Vu from residing with his children due to concerns for their safety.[57]
[57] G9/61
Child A was taken into the care of Mr Vu’s mother Ms Duong for some time. Correspondence from the Benevolent Society dated 16 October 2018 explained that Child A and Child B ‘have experienced previous trauma,’ and that Child A was under kinship care.[58] A parole conduct report provided 5 June 2023 states Mr Vu is provided supervised contact with Child A.[59]
[58] G67/283
[59] G10/73
In a statement dated 6 October 2020 Ms Shan writes that she has missed out on Mr Vu’s support when she gave birth to Child B.[60] Child A and Child B are currently in her care but it is apparent that she required assistance to care for the children when Mr Vu was in prison. Mr Vu and Ms Shan are now separated but Mr Vu is committed to continuing to care for Child A and B.
[60] G48/260
Since his return to the community, Mr Vu claims to regularly spend time with all his children. He visits Child A and Child B at least once a week and with Ms Shen’s assistance he is able to facetimes them regularly.
Mr Vu is particularly concerned about Child C who suffers from severe eczema and a speech abnormality which may be related to developmental issues. He plays a caring role for Child C and teaches her to speak, reads to her and plays with her. There is also evidence Mr Vu played the primary role in securing specialist medical appointments for Child C’s skin condition.[61] Upon his release into the community he takes her to school and does what he can to make her life better and develop the same abilities as other children her age.
[61] G73/314; G74/315-316
Ms Nguyen has a 17 year old son from previous relationship who has learning difficulties. Despite Mr Vu’s efforts to establish a relationship with the child, she said progress has been limited.
I accept Mr Vu’s evidence that he in intends to perform an active role in the lives of all his children and while working he has made a financial contribution to their support. However, I take into account he has been separated from the children for an extended period of time due to imprisonment and detention, meaning there is a limited existing relationship.
All three children have parental care provided by their mothers but I take into account Ms Shen’s difficulties in caring for the children and the earlier need for external support from DOCS and associated providers. Ms Nguyen states she needs Mr Vu’s support to raise Child C and I take into account the future needs of their unborn child and the challenges Ms Nguyen would be expected to face caring for Child C, her 17 year old son and a newborn child without the assistance of Mr Vu.
I note Mr Vu’s brother has a son. Though no evidence regarding the role Mr Vu plays in his life is provided, it is expected that his nephew’s best interests are served by having Mr Vu remain in Australian.
Overall, I am satisfied that the best interests of the minor children are served by revocation of the cancellation of Mr Vu’s visa. In particular I note that Child C is reported to respond well to Mr Vu and has special needs which he has helped address. However, the weight of this consideration is reduced by Mr Vu’s limited contact with the children until his release from detention and the availability of the children’s mothers to fulfill the parental role.
Primary consideration 5 - Expectations of the Australian community
Paragraph 8.5 of Direction 99 requires me to consider the expectations of the Australian community. Subparagraph 8.5(1) relevantly states:
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.
In FYBR v Minister for Home Affairs[62] the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, 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 expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.5 of Direction 99.
[62] [2019] FCAFC 185, [75]
The Direction lists specific conduct which the Australian community as a whole expects would raise serious character concerns and an expectation that the person would not hold an Australian visa. I accept that Mr Vu’s criminal conduct and acts of family violence is inconsistent with the values of the Australian community and the Australian community as a norm expects his visa to be cancelled.
Having regard to the provisions of Direction 99 and Mr Vu’s criminal offending, I find that the community’s expectations weigh in favor of not revoking the cancellation of the visa.
Other consideration A - Legal consequences of the decision
I am required to consider the legal consequences of the decision having regard to Australia’s non-refoulment obligations. Should Mr Vu’s visa remain cancelled, by operation of sections 189 and 198 of the Act he will be liable for removal from Australia as soon as reasonably practicable.
There is no finding that Mr Vu is owed protection but he has stated that should he be returned to Vietnam he fears he would be vulnerable persecution and imprisonment as he is a devout Catholic who opposes communism.[63]
[63] G28/216
Claims which may give rise to international non-refoulement obligations must be considered. The Direction at subparagraph 9.1.2.(2) provides the choice whether to defer consideration of non-refoulement issues or to proceed to consider them:
(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person's representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
Mr Vu has not made an application for a protection visa but is able to do so if he chooses. The information before the Tribunal to substantiate Mr Vu’s stated concerns is insufficient to determine whether non-refoulment obligations may be owed to him. Having regard to the High Court decision in Plaintiff M1/2021 v Minister for Home Affairs[64] the appropriate course of action is to allow Mr Vu’s claims to be more fully assessed in a protection visa assessment.
[64] [2022] HCA 17, [30] per Kiefel CJ, Keane, Gordon and Steward JJ
Should he make an application for a protection visa, subject to Mr Vu being ‘re-detained’, he would be liable to remain in immigration detention until the protection visa process if finalised.
For these reasons, the legal consequences of the decision are afforded neutral weight.
Other consideration B - Extent of Impediments if removed
I am required to consider the extent of any impediments that Mr Vu may face if removed from Australia in establishing himself and maintaining basic living standards in Vietnam in the context of what is generally available to other citizens of that country.
Should he be returned to Vietnam, Mr Vu contends he would be without employment and face hardship as his family and support network are all in Australia. His father and maternal grandmother have now passed away leaving no family members in Vietnam who would support him. Ms Duong confirmed in her evidence that there are not relatives or others known to the family who may be able to support Mr Vu should he return to Vietnam.
Movement records confirm Mr Vu returned to Vietnam in 2003, 2009, 2012, 2013 and 2014 which I take to indicate some existing connection and familiarity with that country as an adult.[65] However, I accept that given how long Mr Vu has resided in Australia and not having resided in Vietnam as an adult, readjusting to life in Vietnam would pose some practical difficulties and present short-term hardships.
[65] G14/111
Mr Vu is a young man who presents as intelligent and resourceful. In the absence of substantial cultural or language barriers I do not consider he would be prevented from maintain basic living standards comparable to other citizens of Vietnam.
Mr Vu has been diagnosed as suffering from severe methamphetamine use disorder in remission and depression and he fears the emotional impact returning to Vietnam alone may place him at risk of ‘going down the wrong path’ again.[66] Should he seek to address his drug use disorder and mental health conditions there is no evidence to indicate that he would not have access to physical and mental health treatment which is generally available to other citizens of Vietnam. That said, I acknowledge he would be absent protective factors including his family and required to navigate an unfamiliar support system should he choose to continue treatment for these conditions.
[66] S22/215
Based primarily on the absence of close family members in Vietnam who may be able to assist with his readjustment, this consideration supports revocation of the visa cancellation and is afforded significant weight.
Other consideration C - Impact on victims
Paragraph 9.3 of the Direction requires me to consider the impact of a decision not to revoke the mandatory cancellation of an Applicant’s visa on the victims of the non-citizen’s criminal behaviour and the family members of the victims where information in this regard is available.
Ms Duong and Ms Shan - the victims of Mr Vu’s 2016 domestic violence offending - have both provided statements in support of Mr Vu’s application and indicated his removal would be contrary to their interests. I have taken their views into account in primary consideration 3 and the views of other victims are unknown.
This consideration weighs neutrally.
CONCLUSION
In balancing the considerations, the protection of the Australian community weighs in favour of not revoking the mandatory cancellation of Mr Vu’s visa. Despite having completed rehabilitation training in prison, Mr Vu was assessed as being at medium to high risk of reoffending. In not pursuing the community rehabilitation recommendations provided as part of his parole, that level of risk remains. His failure to present to ABF following the execution of warrants casts doubt on his assurances that he has learnt to have respect for the law. Given the seriousness of his offending and the nature and risk of future harm should he reoffend, the protection of the community weighs very heavily against revocation.
The expectations of the Australian community are taken to weigh against revocation of the cancellation decision. Primary consideration 2 regarding family violence also weighs against revocation. Both are afforded medium weight.
The strength, nature and duration of Mr Vu’s ties to Australia weighs heavily in favour of Mr Vu in recognition of his arrival in Australia age 11. I also afford particular weight to his relationships with Ms Nguyen, his mother, Ms Shen and brother.
Overall, the interests of Mr Vu’s children weigh in favour of his application. The evidence supports his having a genuine desire to remain so that he can play an active and positive role in the lives of his children. Despite inconsistent accounts, it appears Mr Vu was visited by his children while in prison. However, both Child B and Child C were born while he was incarcerated. Child A’s existing relationship with Mr Vu is complicated by his having previously been taken into care and Mr Vu’s access remains supervised. These factors reduce the weight afforded this primary consideration which weighs in favour of revocation.

The impediments Mr Vu would be expected to face on his return to Vietnam are not insurmountable, but they are genuine and his re-establishing himself in the absence of immediate family support will be challenging. This consideration is afforded medium weight in favour of revoking the cancellation decision.
In weighing the relevant considerations, I am satisfied that the factors that weigh against revocation of the cancellation decision outweigh the factors in favour of revocation. As there is not another reason to why the decision should be revoked, the reviewable decision will be affirmed.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal decides that the decision under review, being the decision of a delegate of the Minister dated 19 June 2023 not to revoke the mandatory cancellation of the Applicant’s visa is affirmed.

I certify that the preceding 141 (one hundred and forty-one) paragraphs are a true copy of the reasons for the decision herein of

....................[Sgd]....................................................
Associate
Dated: 19 September 2023

Date(s) of hearing: 23, 24 & 28 August 2023

Solicitors for the Applicant: Mr R Turner, Ray Turner Immigration Lawyers

Solicitors for the Respondent: Ms S Frankel, Minter Ellison

[2023] AATA 2989

13 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Date(s) of hearing:	23, 24 & 28 August 2023
Solicitors for the Applicant:	Mr R Turner, Ray Turner Immigration Lawyers
Solicitors for the Respondent:	Ms S Frankel, Minter Ellison