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

Vu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1013 (30 April 2020)
Division:GENERAL DIVISION
File Number(s): 2020/0693
Re:Manh Vu
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:30 April 2020
Place:Sydney

The decision under review is affirmed.
.............[sgd]........................................................
Mr S Evans, Member
CATCHWORDS
MIGRATION – cancellation of Applicant’s Class BC, Subclass 100 Partner (Migrant) permanent visa – Applicant is a citizen of Vietnam – failure of the character test – whether there is another reason to revoke the visa cancellation – Direction No. 79 – protection of the Australian community – expectations of the Australian community – strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed
LEGISLATION
Migration Act (1958) (Cth) ss, 501, 501CA
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Ministerial Direction No. 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Mr S Evans, Member
30 April 2020

The Applicant in this case is a citizen of Vietnam, Mr Manh Toan Vu, who arrived in Australia on 29 December 2006 as the holder of a Class UF Subclass 309 Partner (Provisional) Visa and was later granted a Class BC Subclass 100 Partner (Migrant) Permanent Visa.
On 9 August 2019 a delegate of the Minister cancelled the Applicant’s Visa under section 501(3A) of the Migration Act (1958) (Cth) (“The Act”) (“the original decision”). On 5 February 2020 a delegate of the Minister (“the Respondent”) made the decision under 501CA(4) of the Act not to revoke the original decision. On 10 February 2020 the Applicant applied to the Administrative Appeals Tribunal for review of the decision of the delegate on 5 February 2020 not to revoke the original decision.
The matter was heard on 16 and 17 April 2020 at the Administrative Appeals Tribunal in Sydney. The Applicant appeared by video link and was represented by counsel. The Tribunal received evidence on behalf of the Applicant from two witnesses, the Applicant’s consultant psychologist Mr David Green and his partner Ms Nguyen; and has before it written evidence and submissions. The totality of the evidence has been carefully considered.
THE RELEVANT LAW
Section 501(3A) of the Act states:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this 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.
Ministerial Direction No. 79
When considering whether or not to revoke a mandatory cancellation decision under section 501CA(4), paragraph 7(1) of Ministerial Direction No. 79 (“the Direction”) sets out how the discretion is to be exercised. It states:
(1) Informed by the principles in paragraph 6.3…, a decision-maker:
...
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Part C of the Direction sets out the primary and other considerations that must be taken into account, where relevant, when deciding whether to revoke a mandatory cancellation. The primary considerations should generally be given greater weight than the other considerations. The primary considerations as set out in paragraph 13(2) of the Direction are as follows:
(a)protection of the Australian community from criminal and other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
The other considerations which must be taken into account where relevant are outlined at paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
ISSUES BEFORE THE TRIBUNAL
There is no question that the Applicant made the representations required by section 501CA(4)(a). Consequently, it must be determined whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised.
Therefore, the two issues presently before the Tribunal are:
(a) whether the Applicant passes the character test; and
(b) whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked. I will address each of these grounds in turn.
BACKGROUND AND EVIDENCE
The Applicant was born in Hai Phong in Vietnam on 17 May 1984 and is one of four siblings. The Applicant studied to the year 12 equivalent in Vietnam and then completed a diploma in maritime shipping.
He was introduced to his first wife by his elder sister in 2005. An Australian citizen, she travelled to Vietnam to meet the Applicant in 2005 and they married in 2006. When he first arrived in Australia on 29 December 2006, the Applicant and his then wife joined his sister who had immigrated before him. Subsequently the Applicant and his sister were joined in Australia by their parents and their brother. The Applicant’s mother is now an Australian citizen and his father is a permanent resident as of July 2012. He currently has three uncles and aunts three nieces and nephews and 19 cousins living in Australia.
Since arriving in Australia the Applicant has maintained consistent employment, primarily in roles related to meat processing including as a chicken boner and butcher. He also worked briefly as a painter.
The Applicant’s offending
2014 Offences
On 6 March 2014 the Applicant was arrested and admitted that he had planted cannabis at two premises in Bexley and Hurstville, and he had agreed to grow and take care of cannabis plants in exchange for money.
The police executed search warrants at each of the houses. Inside the Bexley house they found the front two bedrooms converted for the purpose of cultivating cannabis via enhanced indoor means. The rooms had equipment to assist with the cultivation process, and police found 52 cannabis plants, 15 of those plants over one metre in height. At the Hurstville premises, the police located two rooms which had been converted for the purpose of cultivating cannabis via enhanced indoor means. The windows are both rooms were covered in black sheeting, and police found equipment used for the purpose of cultivation, 42 cannabis plants, 18 of those plants over one metre high, and 20 grams of dried cannabis leaf. Both premises were found to have an illegal electrical bypass fitted.
The Applicant stated that in late 2013 he met a man named Vinh at a café and agreed to grow and take care of the cannabis plants in exchange for money. He was paid between $800 and $1000 weekly. The Applicant had keys to both houses and would attend the residences, one after the other, about three to four times a week to water and fertilise the plants, and when they were fully grown he would cut the flowers and dry them.
Once they were dried the Applicant would call Vinh to pick them up. No one lived at the houses and the Applicant did not know the owner of either residence. He stated that initially he did not realise the plants were cannabis and that Vinh had told him they were herbal plants. He claims that he was not suspicious and needed the money. The Applicant’s father would sometimes accompany him when he was attending to the crops and was charged separately.
The Applicant realised the plants were cannabis about a month before his arrest, and wanted to stop but Vinh told him he would report into the police.
On 17 July 2015 the Applicant was convicted by the Downing Centre District Court of NSW of cultivating prohibited plant to commercial quantity, 18 months imprisonment, enhanced indoor cultivation of plant for commercial purposes, 18 months imprisonment, and two counts of using electricity without authority, three months imprisonment on each count. The sentences were to be served by way of an intensive corrections order (“ICO”) commencing on 24 July 2015, with the sentence for using electricity expiring on 23 October 2015 and the drug the sentences for the drug cultivation offences expiring on 23 January 2017. The Applicant also convicted of possess prohibited drug and received a $300 fine.
In sentencing Judge Flannery said that each of the offences was extremely serious and noted that the maximum penalty for the two cultivation offences is 15 years imprisonment and/or a large fine and the maximum penalty for the other offences is five years imprisonment.
2018 Offences
On 2 February 2018 police conducted a search of the Applicant’s house and located gold bullion weighing 11 ounces in a wardrobe and $39,050 in cash located in a locked suitcase in the bottom of a wardrobe. They also found two black garbage bags which contained cannabis leaf with a total weight of 2.85 kilograms in addition to a small amount of cannabis weighing 32.2 grams which the Applicant admitted was for his personal use.
The Applicant agreed that he allowed the cash, gold bullion and the cannabis leaf located in the front and rear bedroom to be kept at the premises for safe keeping. He says he did not know the precise amount of cash or gold bullion and nor did he know the precise weight of the cannabis. Neither his fingerprints nor DNA were located on any of the items. He confirmed to police that the premises were leased to both his parents and that he had been staying there for three to four weeks.
On 10 September 2018 at Liverpool Local Court the Applicant was convicted of supply cannabis indictable and commercial quantity and two charges of deal with property proceeds of crime, for which he was sentenced to an aggregate term of 21 months imprisonment with a non-parole period of 14 months. He was also convicted of possess prohibited drug for which he received a $400 fine.
Relationships and drug use
Since his arrival in Australia the Applicant has had three substantive relationships. The particulars of the Applicant’s relationships are detailed in the report of Mr David Green, a psychologist, dated 6 March 2020. He writes:
34. Mr Vu was introduced to his first wife through his eldest sister. His sister had a friend who was the cousin of his first wife. His wife is an Australian citizen who had come to Australia when she was about four years of age with their parents who were fleeing Vietnam as refugees. They were both twenty-one years of age when they met during Tet in February 2005. She was working in a real estate agency, possibly doing administrative tasks. She later worked as a croupier in the Treasury Casino in Brisbane. She came to Vietnam to meet him in early 2005, they spent time together and in about mid 2005 decided to marry.
…
38. …In 2008 she had an extramarital affair and then initiated and filed for a divorce. We divorced in 2009 and she married that man. When I knew she was with the other man I moved to Sydney.
52. Mr Vu met his second wife at a party. He was 28 years of age, she was 20 years of age. She was born in Vietnam and came to Australia on a student visa, to study accountancy. They married in June 2013…
…
54… Mr Vu said that in about September or October 2017 his wife left him because she had formed a relationship with another man.
…
59. Mr Vu moved into a house his parents had rented … In about December 2017, after his [second] wife had left him…
…
78. Mr Vu said he commenced a new relationship after he moved to his parent’s house. His girlfriend was a friend whilst he was married. After the separation from his wife, he began confiding in her and a relationship developed. He said it has been difficult for her to visit him as she is studying and working part-time. She visited him four times in Glen Innes. See has visits him at Villawood. They speak every day by phone.
(errors in original)
Mr Green’s account of the Applicant’s relationships was provided to the Tribunal by the Applicant’s representative and is based on a three hour interview that Mr Green conducted with the Applicant on 26 February 2020. Elements of Dr Green’s account of the Applicant’s relationship are confirmed in a statutory declaration made by the Applicant dated 4 October 2019 in which he writes:
5. in late 2017 I found out that my wife had an affair and it was terrible. I felt as though my life was falling apart. I decided to leave home and move into my parents’ home in Cabramatta…
The Applicant is currently in a relationship with Ms Thi Ny Ny Nguyen. Regarding his relationship with Ms Nguyen, he writes:
11. [Ms Nguyen] and I were planning to start a family together prior to my arrest. I am 35 years old and did not have any children. I want to start our own family. I was looking forward to my release on parole in November. I wish to save up money so that we can buy a business…
Ms Nguyen provided testimony at the hearing by phone and confirmed that she is currently the partner of the Applicant. She has lived in Australia since 2013, works part time as a manicurist and is the holder of a temporary student Visa.
The Applicant’s representative highlighted to the Tribunal Mr Green’s report in which he expresses an opinion that on each of the two occasions where he has offended, it has arisen from his dependence on cannabis as a form of self-medication for undiagnosed major depressive disorder.
It is also the case that the Applicant’s drug use was acknowledged in the context of the breakdown of his first marriage in the sentencing remarks of Judge Flannery from May 2015. Judge Flannery reported that a psychologist, Ms McInnis, provided a report to the court. Judge Flannery stated that it was clear from the material before the court that the Applicant had a supportive family background but had “something of a serious hiccup in his life when he discovered his first wife was unfaithful”. Relevantly, Judge Flannery determined that the Applicant “became addicted to marijuana following the breakdown of his marriage and started spending time with unsatisfactory companions which is how he met Vinh and came to commit the offence”.
Judge Flannery accepted that the Applicant had not used prohibited drugs for three months at the time, noting that he had benefited from treatment he received from Fairfield Drug Health Services, has good prospects of rehabilitation, was remorseful and had insight into the serious nature of his offending.
Similarly, the Applicant submits that his offending in 2018 was related to his cannabis use and that his cannabis use had been triggered by the breakdown of his second marriage. In relation to his resumption of drug use and subsequent offending in 2018 he writes in his 2019 statutory declaration:
5. In late 2017 I found out that my wife had an affair and it was terrible. I felt as though my life was falling apart. I decided to leave home and move into my parents’ home in Cabramatta… My parents had gone to Vietnam… I commenced a relationship with my close friend [Ms Nguyen]. But because of my problems with my ex-wife, I felt overwhelmed and upset. I was alone, and I became tempted to use cannabis again so I could have some relief from the pain. I became involved with my past associates, and one thing lead to another. I am extremely ashamed of my actions. I did not own the money or the drugs, but I made the mistake of allowing them to stay in my house from time to time and I knew they were storing bad things in my house. In return, they would pay me some board, but more importantly they would give me some cannabis.
(emphasis added, errors in original)
The Applicant contends in his statutory declaration, and gave oral evidence to the effect, that he has not used cannabis since February 2018.
Report of Mr Green
As mentioned, the Applicant has submitted a report dated 6 March 2020 by psychologist David Green. Mr Green is a registered psychologist with the Psychology Board of Australia. He has been practising full-time since 1986 and he has many clients from and familiarity with the Australian Vietnamese community.
Mr Green’s report is comprehensive and runs to 16 pages. The report was completed following a three-hour psychological assessment with the Applicant and reference to documents including the sentencing remarks of Magistrate Stewart from September 2018, criminal results report, sentencing remarks of Judge Flannery from 1 May 2015 and 17 July 2015 and a report from Damec counselling services.
Mr Green provided evidence to the tribunal by telephone during which he confirmed that he has diagnosed the Applicant with a depressive disorder. He also determined that the Applicant was clinically depressed in February 2018 when he committed the second offence. He said that the Applicant was experiencing a range of symptoms which were consistent with major depressive disorder and that those symptoms were present when he committed the offence. It was his conclusion that the Applicant’s depression was a reaction to the breakdown of his marriages.
Mr Green’s professional opinion was that the Applicant’s cannabis use was linked to the major depression with the depressive disorder commencing prior to the cannabis use. Based on his experience with clients of Vietnamese background, Mr Green’s opinion was that there is a stigma around depression which he says is a cultural issue. He told the hearing that it is “considered a little bit shameful for people in Vietnam to seek psychological treatment”.
He testified that in the midst of clinical depression the symptoms can be debilitating and those who are suffering may become quite desperate to alleviate the symptoms. He said these behaviours can include gambling, womanising, drinking too much or substance use, and that it depends on the person’s individual circumstances.
The Applicant was asked about his depression during the hearing. He told the Tribunal that following his meeting with Dr Green he has a better insight into the condition and his experience with it. He says if he experiences the symptoms of depression again he would make himself available to see a psychiatrist or psychologist for treatment. Asked what symptoms he would be looking out for he said “extreme and prolonged bouts of sadness and having a lot of thoughts in my head and having constant headaches… Just want [sic] to be on my own and not wanting to associate or to go out or to speak to anyone…”.

He submits that he had suffered his first bout of depression when his first wife left them and the second time he suffered from depression was when his second wife “betrayed” him. He also added that the stress of being in jail may have made him depressed at the start of his sentence and he experienced similar symptoms after receiving the divorce papers from his second wife whilst in prison.
The Applicant claims that cannabis alleviated all of his symptoms of depression. He says that if he had he known about the symptoms of depression earlier he could have “sought medical help so that the depression did not drag [him] down much further … so he had to rely on drugs”.
Evidence of Ms Nguyen
In a statutory declaration dated 3 October 2019, the Applicant’s current partner Ms Nguyen writes that the Applicant had been honest about his past criminal conduct but that she was surprised when he was arrested for the 2018 offending. When she spoke to him about the offending he told her that he had been struggling with the temptation to return to using cannabis again in early 2018. She writes:
5. …[the Applicant] was ashamed of himself and kept a secret from me… [he] has told me how hard he worked to overcome his drug use and rehabilitate himself after his offence in 2014. He had been doing very well until we went through a difficult time early last year. I remember that there were arguments between us because my parents in Vietnam and him had some disagreements. I did not realise that it could lead him to being tempted again.
Ms Nguyen stated that whilst the Applicant was in prison she visited him on four occasions, a considerable undertaking as the driving time from Sydney to Glen Innis is almost nine hours. She would stay at a hotel and visit him the next day and then drive another nine hours back again. It would require her to take a day off work. She writes that she has not seen the Applicant alone since September last year when he was taken into custody. She says that she feels very sad and very stressed because she is worried about how the time apart will affect their relationship.
She writes that the Applicant has “found his time in prison to be very scary” and that he “is more grateful for the things that he has in life, his family” and her. Ms Ngyuen makes the point that that this is the Applicant’s first time in prison and she truly believes it is been a life changing experience for him.
Prior to his arrest the couple had been planning a future together and they wanted to save up to buy a house and start their own family. Because of the Applicant’s “poor decisions and becoming involved with bad people we have wasted two years of our life”, she writes. That said, she believes the Applicant when he tells her that he will do everything he can to make up for his past and he has promised to never break the law again. She writes that the Applicant “has promised me that he will seek regular drug rehabilitation support, and will talk to me openly if he is tempted in the future”.
At the hearing Ms Nguyen was asked about her own visa status and testified that she intends to apply for another visa when her current visa expires in December. Her evidence is that she had never considered the possibility that she may not be able to get another visa but that she has no intention of returning to Vietnam.
Status of the current relationship
During the hearing the Applicant was asked about his relationships under cross examination by the Respondent’s representative. He confirmed that he separated from his first wife in 2009 and his second wife whilst he was in custody in 2018, though they had stopped living together in late 2017 when he found out that she was having an affair.
The Applicant contends that he began his relationship with Ms Nguyen at the end of 2017. Around February 2018 he told Ms Nguyen that he was going to go back to his second wife and that she had agreed for him to resume his relationship with his second wife. He moved back in with his second wife until he was taken into custody in September 2018. After his second wife sent the divorce papers to the Applicant whilst he was in jail, he decided to resume his relationship with Ms Nguyen, and they have been together since.
It is a series of events which appear to me to be unlikely. The Respondent’s representative contends that they are less credible given that Mr Green was unaware the Applicant had returned to his second wife for a period and that it had not been mentioned before the hearing in any of the submissions made on behalf of the Applicant.
At the hearing the Applicant confirmed that he and Ms Nguyen have not lived together. He told the Tribunal that he did not mention reconciling with his with his second wife because he “want[ed] to protect her in case someone knew about her being unfaithful to me, and it’s not good for her”. The Respondent submits the actual explanation is that the Applicant did not separate from his second wife until after the offending.
This would certainly explain why, for example, the July 2018 Bankstown Community Corrections report states that he “attended with his wife” and the 10 September 2018 sentencing remarks of Magistrate Stewart where he observed “I note that he [The Applicant] is married, his wife’s in court today, support him”. I accept that Ms Nguyen and the Applicant are in a relationship of sorts as notably demonstrated by the visits she made whilst he was in jail and her willingness to testify on his behalf. The precise length of the relationship is difficult to determine given the evidence before the Tribunal. However, on the balance of probability the Tribunal accepts the Respondent’s contention that the Applicant’s second wife was an active participant in his life right through until his imprisonment in 2018.
CONSIDERATION
Primary Consideration A: Protection of the Australian community
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that decision-makers should also give consideration 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
It is submitted on behalf of the Applicant that his offending and his involvement in each commercial enterprise was at the “lower end of seriousness”. In relation to the 2018 offences it was noted that the extent of the Applicant’s role was that he agreed to allow the bullion, cash and cannabis to be kept at the premises for safe keeping. Given such a limited role, it is argued that that the Australian community would show relatively higher level of tolerance for any repeat of such an offence.
The Tribunal notes Magistrate Stewart’s sentencing remarks in relation to the 2018 offences where he states:
“…the objective seriousness of the knowingly take part offence is in the upper part of the low range in my opinion. The proceeds of crime matters are both below the mid-range. The S5 [section 5] threshold is crossed, that is conceded by Mr Steward who appears for the offender. I have already noted that he is working, I consider he has reasonable prospects of rehabilitation but in my view a further intensive corrections order is simply not appropriate. It has not been effective, there is a need for specific deterrence as well is general deterrence and specific deterrence of an ICO clearly has not worked”.
The Respondent argues that that the Applicant’s first sentence expired in January 2017 and that he was offending again by February 2018, making him a relatively frequent offender, which the Tribunal accepts.
It is submitted by the Applicant that the offending pattern is of decreasing seriousness of offending, whilst the Respondent argues that the trend is of increasing seriousness. It is difficult for the Tribunal to discern a trend across two offences each involving cannabis, but the fact that there was reoffending and in such similar circumstances is serious. It is a measure of the seriousness of his offending that he has graduated from an ICO to a not insignificant term of imprisonment.
I note that the Applicant has not committed violent or sexual crimes or crimes against vulnerable members of the community and that there is no indication before the Tribunal that he has committed any further offences in prison or immigration detention. The Applicant also submits that he has been gainfully employed whilst incarcerated and was even granted a pay rise in jail.
I find that the nature and seriousness of the Applicant’s offending weighs in favour of not revoking the visa cancellation.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Applicant argues that there is a low risk of him reoffending and it is submitted on his behalf that he has strong prospects of rehabilitation, particularly now that he has an insight into his depression, a proposition which was supported by Mr Green.
During the hearing it was put to Mr Green whether the Applicant’s risk of reoffending would remain low if he finds himself in similar circumstances to those which preceded previous offending, such as the breakdown of his current relationship with Ms Nguyen. Mr Green told the Tribunal that it would depend on the circumstances the breakdown of that relationship. He said the Applicant would benefit from having a psychologist or a drug and alcohol counsellor who speaks Vietnamese that he could establish some sort of therapeutic relationship with. He said it was important for the Applicant to know that if something deleterious happens to him and he starts to become depressed again that he would have that person to return to see to consult and to provide treatment.
When assessing the risks of reoffending Mr Green said the number one risk factor is the person’s criminal history. He said he also considers the attitudes of the person and if there is evidence of antisocial personality traits. Mr Green said that the Applicant does not have these as risk factors, and believes that he is at low risk of reoffending.
He opined that the Applicant is an individual who has an undiagnosed and untreated major depressive disorder who would benefit from a trial on an antidepressant medication to lift his mood. Mr Green testified:
…the first and obvious benefit [of taking medication] is that his mood improves, and that enables him [the Applicant] to make better choices in life. The second thing is knowing that - if you do happen to find yourself in a situation where you become depressed again… knowing that previously he has received beneficial effects from taking an antidepressant gives him the confidence to be able to take action to treat the state of depression in a more constructive way than self-medicating with cannabis.
Mr Green told the Tribunal that the Applicant did have some understanding that he was depressed at the time of his offending and his clinical impression is that the Applicant was “chastened” by having his visa cancelled.
The Applicant told the Tribunal that he last used cannabis in February 2018. This is consistent with his statutory declaration where he writes “I am very proud to confirm that since my arrest in February 2018 I have not used cannabis”.
The evidence before the Tribunal paints a more opaque picture. It was explored in some detail because it is an important consideration given his contention that his offending stems from his use of cannabis and that he is no longer a user.
The Applicant admitted at the hearing to telling a community case officer on 17 July 2019 that “he smokes cannabis with his friends once a week… he would like to stop and would see a counsellor”. He maintains this was not actually true, but that he was acting on the advice of his lawyer at the time who was hoping he would be eligible to appear before the Drug Court in relation to the 2018 offences.
Further doubt is cast on his claim of abstinence by a Drug and Alcohol Screening Assessment dated 11 September 2018 where it is recorded that in the four weeks prior to incarceration the Applicant smoked cannabis daily. The Applicant told the Tribunal that he does not recall saying that.
During the hearing the Minister’s representative took the Applicant to a letter of service attendance from a drug and alcohol counsellor dated 4 March 2015. It states that he had attended 12 sessions between September 2014 and March 2015 of a counselling support program with Fairfield Drug Health Services. The letter states that “Mr. Vu reported that he has been drug-free for more than three months” and that he “is fully aware of the consequences of relapse”.
Asked if, in light of this when he used cannabis again in late 2017 after his second marriage broke down, he had sought any counselling or support from any organisation, the Applicant confirmed that he had not.
When asked why the Tribunal can have confidence that he would not use drugs again, the Applicant responded:
This is the first time I have been put in a detention – in custody. When I am staying in jail, I feeling remorse, and I accept to pay my penalty and when I was in the custody, I have got the opportunity … the Buddha teaching. Something like if you do the bad things, you will receive the consequence, very bad for you. That’s why when I did the wrong thing – when I feel remorse, I have to pay my penalty back by being put in jail. That’s why if I luckily allowed to come back to live in the community, I will do my best to be the good people I will never commit any wrong thing like before”.
When asked for more information, the Applicant said that whilst in jail he helped a lot of people who had done the wrong thing and that he had seen the damage caused to people through drug addiction.
Based on the evidence before the Tribunal, I find that if the Applicant were to engage in similar criminal conduct it is likely that harm would come to members of the Australian community through the use of cannabis and criminal activities associated with its illegal production.
Conclusion as to the protection of the Australian community
The Applicant contends that he now has an insight into his offending and the nexus between his depression, drug use and offending. There is no evidence that any practical measures have been put in place to act on this understanding in order to prevent a relapse. Furthermore, I am cognisant of his previous exposure to drug and alcohol counselling which resulted in a similar expectation of abstinence but was followed by relapse and reoffending.
It was submitted on behalf of the Applicant that Magistrate Stewart’s sentence of imprisonment was directed in order for the Applicant to be deterred, and that deterrence has worked. It was noted in both the 2015 and 2018 sentencing remarks that the Applicant had reasonable prospects of rehabilitation. Added to this, Mr Green opines in his report that imprisonment and possible deportation have been very significant deterrence factors. The Applicant himself said this is the first time he has been put in custody and he had a good opportunity to think during his sentence.
I have carefully considered Mr Green’s report and oral evidence, in particular his assessment that the Applicant does not have the profile of someone who is likely to reoffend. However, I must also consider the possibility that the Applicant may reoffend in future if he suffers another major depressive episode, as happened in 2014 and again in 2018. On the weight of the evidence, I consider that there is a moderate risk of the Applicant reoffending if he were to be released into the Australian community.
The government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens. Given the serious nature of the harm that flows from repeated offences of the nature committed by the Applicant, I consider that a moderate risk of further harm of a similar nature is unacceptable. I conclude that the primary consideration of protection of the Australian community weighs strongly in favour of non-revocation of the cancellation decision.
Primary Consideration B: Best interests of minor children
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 13.2(4) of the Direction further stipulates that when considering the best interests of the child, the following factors must be considered where relevant:
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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)    Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant does not have any children of his own but submitted to the delegate that the best interest of his 17 year old nephew would be negatively impacted by his removal from Australia, but as his nephew is now 18 so this is no longer a consideration for the Tribunal.
The Applicant does have a relationship with his brother’s daughter who is seven years old. He told the Tribunal that he and his niece liked to play together but that he had not seen her since he went to jail.
In these circumstances, I find that this consideration weights in favour of the Applicant, but I place minimal weight on this factor when considering whether to exercise the discretion to revoke the cancellation decision.
Primary Consideration C – The Expectations of the Australian Community
The relevant paragraphs in the Direction
In making an assessment of the weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that the Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to (1) the Government’s views in this respect, and (2) any overarching principles and guidance provided by the Direction. Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that a non-citizen should not hold a visa.
The evolution of the Australian community’s “expectations”

Since the early 2000s, courts and tribunals have been defining formulae to assist a decision-maker in reaching a decision that accords with the expectations of the Australian community.
In 2003, Deputy President Block of this Tribunal said that one must look to the expectations of “… the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[1]
[1] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at paragraph [36].
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[2] The learned Deputy President thought this paragraph leads a decision-maker to:
…conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times.[3]
[2] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at paragraphs [102]-[103].
[3] Ibid at para [102].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Mortimer J in YNQY v Minister for Immigration and Border Protection:[4]
In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.[5]
[4] [2017] FCA 1466 (“YNQY”).
[5] Ibid at paragraph [76].
The learned Mortimer J also thought the last two sentences of paragraph 13.3 of the Direction:
… [are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.[6]
…
I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…[7]
[6] Ibid at paragraph [76].
[7] Ibid at paragraph [77].
In Afu v Minister for Home Affairs,[8] Bromwich J said:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.[9]
[8] [2018] FCA 1311, [85] (“Afu”).
[9] Ibid at paragraph [85].
In FYBR v Minister for Home Affairs,[10] Perry J observed that:
“It follows, in line with the authorities, that cl 11.3 of Direction 65[11] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, 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 cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...”[12]
[10] [2019] FCA 500 (“FYBR”).
[11] Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[12] FYBR, [42].
FYBR was appealed to the Full Federal Court. On 24 October 2019, the Full Court upheld FYBR, confirming Perry J’s reasons and approach to the expectations of the Australian Community: see FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a)the ‘expectations of the Australian community’ cannot be measured or determined as if a provable fact. It is an assessment of community values made on behalf of that community;[13]
(b)the Tribunal cannot determine for itself what such ‘expectations’ are by reference to the Applicant’s circumstances or evidence about those expectations;[14]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the ‘expectations of the Australian community’, and the Tribunal should have “due regard” of those statements, if made;[15]
(d)in assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles appearing in paragraph 6.3 of the Direction, in particular subparagraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[16]
[13] Afu, [85].
[14] FYBR, [42].
[15] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[16] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
The Australian community expects non-citizens to obey Australian laws while in Australia and the Respondent contends that this primary consideration weighs heavily against the Applicant’s application. The Respondent identifies the amount of police work that went into the detection of the Applicant’s offending with the judgement indicating a significant amount of surveillance of the applicant by police over a significant period of time. In relation to the 2018 offending it is submitted that the sentence of imprisonment being 21 months with a non-parole period of 14 months is a reflection of the seriousness of the applicant’s offences particularly in circumstances where the applicant pled guilty.
In relation to this consideration, the Applicant contends that his overall lack of criminal conduct in his life, and his low risk of reoffending combined with his close family ties in Australia, suggests that the Australian community would not necessarily expect that he should have his visa cancelled.
Taking into account the relevant factors I find that the expectations of the Australian community weigh strongly in favour of non-revocation of the cancellation decision.
OTHER CONSIDERATIONS:
When deciding whether to cancel a Visa, Other Considerations must be taken into account where relevant. These considerations, as set out in paragraph 14(1) of the Direction, include, but are not limited to:
(a)International non-refoulement obligations
(b)Strength, nature and duration of ties
(c)Impact on victims
(d)Impact on Australian business interests
(e)Extent of impediments if removed
Other consideration A: International non-refoulement obligations
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
No evidence was advanced that is relevant to this other consideration. Accordingly, this other consideration is afforded no weight.
Other consideration B: Strength, nature and duration of ties
Paragraph 14.2 of the Direction provides that decision-makers are to have regard to how long the non-citizen has resided in Australia. The Applicant has lived in Australia since December 2006 and during that time his family has established itself here. It was best described by his sister, Ms Dang.
Ms Dang, an Australian citizen, provided a statutory declaration dated 3 October 2019. In it she writes that she is 10 years older than the Applicant and that she first moved to Australia in 1995. She separated from her husband in 2000 and when the Applicant first came to Australia in 2006 he moved to Brisbane to be close to her.
She writes that the Applicant spent a lot of time with her children and he helped her by taking into school childcare and running household errands. When she moved to Sydney in 2007, the Applicant moved to Sydney to be with her and her children. They lived separately but nearby. She submits that the Applicant is one of the closest people to her in her life and that her children love him very much.
In 2011 the Ms Dang and the Applicant sponsored their parents to migrate to Australia and they arrived in July 2012. She currently lives with her children, her parents, and another brother and his family. She has one sister left in Vietnam, who is married and has children. The Applicant says he is not close to his sister in Vietnam.
The Applicant wishes to live with his parents and take care of them as they age. I accept that the Applicant wishes to spend time with his aging parents partly to atone for his offending and to redress his father’s long absences during his childhood.
Movement records confirm that the Applicant regularly returned to Vietnam since arriving in Australia on 29 December 2006. He visited Vietnam in 2008, 2009, 2010, 2011, 2013, and again in 2017.
The last time the Applicant returned to Vietnam was three years ago, less than a year before his arrest in February 2018, and his parents also return regularly.
The Applicant has provided a family statement in support of his application to have his visa cancellation revoked, signed by over 30 relatives who state that they are there to support him if and when he is released. Mindful of the issues raised previously regarding the nature and strength of the Applicant’s relationship with Ms Nguyen, it is clearly a relationship of some significance. However, I note that Ms Nguyen herself does not currently have a right to remain indefinitely in Australia.
I accept the Respondent’s submission that there is limited evidence that the Applicant has social connections in Australia. But I note also that that the connections he does have are generously supportive of him. The Applicant has provided a reference from Vu Manh Nguyen dated 4 October 2019 who is the owner of Kim Phat Butchery and a citizen of Australia. Mr Nguyen confirms that he would be happy to employ the applicant as a butcher on a full-time basis upon his release from custody. He also confirms in his letter that he is aware of the applicant’s past criminal conduct but that he understands he is a changed person after serving his prison sentence.
Particularly in reference to his family connections, I find that this is a factor that weighs heavily in favour of revoking the cancellation decision.
Other consideration C: Impact on Australian business interests
This part of the Direction stipulates that this consideration should only generally be given weight where non-revocation would significantly compromise the delivery of a major project or the delivery of a major service in Australia. There is no evidence from either party that this was the case in the Applicant’s particular circumstances.
Other consideration D: Impact on victims
The Direction provides that decision-makers should take into account the impact on victims where information is available. There is no evidence before me of any victims of the Applicant’s crimes and consequently this consideration weighs neutrally.
Other consideration E: Extent of impediments if removed
This part of the Direction requires the Tribunal to consider the extent of impediments the Applicant may face if he is repatriated to Vietnam, and maintaining basic living standards, in the context of what is generally available to other citizens of that country. Factors that should be taken into account are a non-citizen’s age or health, any substantial language or cultural barriers and any social or medical support available to them in that country.
The Applicant is a relatively young man aged 35 with no health issues though he has had a drug addiction. He was educated in Vietnam and lived there until the age of 22. He is likely to face a lack of social support and it will be extremely difficult for him to restart his life.
Ms Nguyen is a temporarily resident in Australia and studying but she is also a Vietnamese national, though she stated she does not wish to return to Vietnam, it is an option for her. The Applicant does have a sister in Vietnam but she has her own family and will be unable to support him.
Mr Green says that he has seen a significant number of clients born in Vietnam for assessment over the past 10 years and takes particular attention of their background. He notes that a common description of Vietnam is how difficult it is to find employment and how hard people have to work in Vietnam to survive. In Ms Dang’s statutory declaration, she states that if the Applicant is repatriated to Vietnam, he will have to move to Ho Chi Minh City to find employment, which is far from their sister in Hai Phong.
Certainly it is to be expected that the Applicant will face practical and emotional hardship upon a return to Vietnam due to his separation from his family members. He will however be able to speak the language and not face any cultural barriers given that his first language is Vietnamese and he lived in Vietnam until adulthood.
The Applicant also have access to health services, treatment and welfare services in Vietnam, although the standard and ease of access may not be the same high standard and is widely available as those services that are available to the applicant in Australia.
Overall, this factor mitigates in favour of revocation of the cancellation decision but to a limited degree.
Conclusion as to whether there is another reason to revoke the original decision
I have considered the specific circumstances relating to the Applicant as part of my consideration whether to revoke the cancellation decision. I am now required to weigh up those considerations so as to determine whether there is another reason to revoke the cancellation decision.
The primary considerations relating to the protection of the Australian community and the expectations of the Australian community weigh in favour of not revoking the cancellation decision. The primary consideration in relation to the best interest of minor children weighs marginally in favour of the Applicant but is afforded limited weight.
Of the other considerations his ties to the Australian community, particularly his family, weigh strongly in favour of revocation.
Having considered all the relevant considerations in this matter and the weight I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the protection of the Australian community and expectations of the Australian community outweigh all considerations in the Applicant’s favour.
DECISION
The decision under review is affirmed.

I certify that the preceding 121 (one hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

..........[sgd]......................................................
Associate
Dated: 30 April 2020

Dates of hearing: 16 & 17 April 2020

Counsel for the Applicant: Mr N Poynder

Solicitors for the Applicant: Ms C Khurana

Solicitors for the Respondent: Mr T Aviram

[2020] AATA 1013

30 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Dates of hearing:	16 & 17 April 2020
Counsel for the Applicant:	Mr N Poynder
Solicitors for the Applicant:	Ms C Khurana
Solicitors for the Respondent:	Mr T Aviram