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

VZKW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4959 (7 December 2020)
Division:GENERAL DIVISION
File Number: 2020/5735
Re:VZKW
APPLICANT

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

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:7 December 2020
Place:Melbourne

The Tribunal affirms the decision under review.
..............[sgd]..........................................................
The Hon. Matthew Groom, Senior Member
Catchwords
MIGRATION – visa mandatorily cancelled - serving sentence of imprisonment of more than 12 months – commercial quantity of border-controlled drug – heroin – citizen of Vietnam - Resident Return (Class BB) (Subclass 155) visa - whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
Legislation
Commonwealth Criminal Code
Migration Act 1958 (Cth)
Vietnamese Penal Code 1999
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185.
Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303.
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466.
Secondary Materials
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
7 December 2020
INTRODUCTION

This matter involves a review of a decision by a delegate of the respondent to not revoke the mandatory cancellation of the applicant’s Resident Return (Class BB) (Subclass 155) visa (the “visa”).
The applicant’s visa was mandatorily cancelled on 31 May 2019 under section 501(3A) of the Migration Act 1958 (the “Act”).
On 1 July 2019 the applicant made representations to the respondent seeking revocation of the visa cancellation decision.
On 14 September 2020 a delegate of the respondent decided not to revoke the visa cancellation.
On 21 September 2020 the applicant sought review of the delegate’s decision by this Tribunal.
BACKGROUND
The applicant is 50 year old citizen of Vietnam. He was born and raised in Vietnam. The applicant lived in Vietnam until the age of 19 and following that lived in Malaysia for three years. The applicant migrated to Australia in May 1992 through the sponsorship of family members already resident in Australia.
The applicant has predominantly resided in Australia since 1992 although he has travelled back to Vietnam and spent significant periods of time in Vietnam during the intervening period. The respondent calculated that the applicant had spent a total of approximately nine and a half years in Vietnam since 1992. The applicant did not challenge this calculation and the Tribunal accepts it as an accurate assessment.
The applicant’s wife, Ms ML, is 36 years of age and an Australian citizen. Ms ML was born in raised in Vietnam and lived there until sponsored by the applicant to come to Australia in 2012. The couple commenced their relationship in 2007 while the applicant was in Vietnam as a tourist. The couple were married in Australia in January 2013. The applicant and Ms ML have two children together, AL and HL. The applicant’s wife and children are all Australian citizens. In addition, the applicant has an adult child from his former marriage, CL, who is also an Australian citizen.
In addition to his immediate family, the applicant has four brothers, two sisters and more than 16 extended family members currently residing in Australia. He also has four sisters currently residing in Vietnam and also a sister living in Norway.
The applicant completed schooling in Vietnam through to year nine and commenced year 10 in Australia although he did not complete his studies for that year.
CRIMINAL HISTORY
The applicant has committed two criminal offences.
The first offence was committed in Vietnam in 2005. The applicant was convicted of abusing trust to appropriate property contravening Article 140(1) of the Vietnamese Penal Code 1999. The applicant pleaded guilty to the charge. The applicant was sentenced to 12 months imprisonment which he served out in a Vietnamese immigration prison before subsequently returning to Australia.
The second offence was committed in Australia. On 24 July 2018 the applicant was convicted of importing a commercial quantity of a border control drug. The applicant pleaded guilty to the charge. The applicant was sentenced to a term of eight years imprisonment with a five year non-parole period. The offending involved importation of three consignments of heroin contained in three separate cardboard boxes from Thailand. The street value of each consignment was estimated to be in the range of $800,000-$1,040,000.
ISSUES
The Tribunal is satisfied that, on the basis of his offending history, the applicant has a substantial criminal record for the purpose of section 501(7) of the Act and, for that reason, does not pass the character test for the purpose of section 501CA(4)(b)(i) of the Act.
Therefore, the residual issue for the Tribunal to determine is whether it is satisfied that there is another reason why the cancellation of the applicant’s visa should be revoked in accordance with section 501CA(4)(b)(ii) of the Act.
Direction No. 79
Section 499 of the Act provides the Minister with the power to make and give directions to individuals exercising powers under the Act. A person exercising such power (including the Tribunal) must comply with such a direction.
On 20 December 2018 the then Minister issued Direction No. 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA - in accordance with section 499 of the Act (the “Direction”). The Direction came into effect on 28 February 2019.
The Tribunal accepts that the Direction is consistent with the Act and the Tribunal has therefore applied the Direction in making its decision in this matter.
Paragraph 6.1(1) of the Direction states that “[t]he objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”.
Paragraph 6.2 of the Direction sets out general guidance for decision-makers as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about the future.
(3)The principles provide a framework within which decision-makers should approach this task of deciding whether to refusal or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
The Principles referred to are set out in paragraph 6.3 of the Direction as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1)(b) of the Direction requires that a decision-maker, informed by the principles in paragraph 6.3, 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.
Paragraph 8 of the Direction provides that:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary consideration should generally be given greater weight than other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
While the Direction provides that primary considerations should generally be given more weight, it is now well-established that the Tribunal, in exercising its discretion, can give equal or greater weight to any consideration.[1]
CONSIDERATION
[1] Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303.
Primary considerations
Paragraph 13(2) of the Direction provides that in deciding whether to revoke the mandatory cancellation of the non-citizen’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
The protection of the Australian community
Paragraph 13.1 of the Direction provides that:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)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.
Paragraph 13.1.1 the Direction provides that:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
In assessing the seriousness of the applicant’s criminal history, it is appropriate to set out in further detail the facts and circumstances surrounding each of his offences.
Vietnamese offence
According to the information included in the Tribunal materials the applicant’s Vietnamese offence to which he pleaded guilty was “abusing trust in order to appropriate property” in breach of Article 140(1) of the Vietnamese Penal Code 1999. The Tribunal did not have the benefit of anything in the form of sentencing comments or any other broader description of the circumstances of the offending from the Vietnamese authorities.
In both his written statement and in his direct evidence to the Tribunal the applicant accepted that he had pleaded guilty to the charge and had been sentenced to 12 months imprisonment which he served in immigration prison in Vietnam.
In his evidence the applicant described the offence as follows. He had been visiting Vietnam to spend time with his then girlfriend and wanted to purchase a motorcycle to get around on. The applicant told the Tribunal that he was unable to purchase a motorcycle in his own name due to the fact that he did not have current Vietnamese citizenship papers. In order to avoid this constraint, the applicant arranged to put the motorcycle into his girlfriend’s mother’s name. He told the Tribunal that he knew that this was legally wrong.
The applicant told the Tribunal that he had sold the motorcycle because he had broken up with his girlfriend and was planning on returning to Australia. The applicant told the Tribunal that when he sold the motorcycle his girlfriend’s mother had objected to the sale and contacted the police and accused him of misappropriating her property. He told the Tribunal that he pleaded guilty to the charge because he had realised that it was unlawful to purchase the motorcycle in someone else’s name. Under cross-examination the applicant was unable to recall some significant details in relation to the offence in particular whether he had been arrested before returning to Australia or subsequently on his return.
The Tribunal accepts that the applicant did acknowledge that he was guilty of the charge and that he had been sentenced to and served a term of imprisonment of 12 months. On the basis of the evidence before it the Tribunal is satisfied that the Vietnamese offence involved a willingness on the part of the applicant to disregard the law for his own personal benefit. For these reasons and given the not insignificant sentence imposed in respect of the offence, the Tribunal assesses the offence as a not insignificant offence but at the lower end of seriousness.
Australian offence
The Australian offence involves a conviction for importing a commercial quantity of a border controlled drug in breach of section 307.1.1 of the Commonwealth Criminal Code (the Code). The applicant was convicted and sentenced to eight years imprisonment with a non-parole period of five years.
The conviction relates to three consignments of heroin that were imported into Australia from Thailand between April 2016 and June 2016. The more specific details of the offence as described in the sentencing comments are as follows:
(a)On 1 April 2016 a cardboard box arrived in Melbourne from Thailand containing a number of vases. The cavities of the box’s walls contained eight heat sealed plastic bags with 2807.7 g of white powder, 72.8% of which was heroin. The total weight of pure heroin was 2044 g. The cardboard box was addressed to the applicant’s wife and listed the applicant and his wife’s home address as the relevant delivery address.
(b)On 3 April 2016 a similar package containing vases arrived in Melbourne from Thailand. Again, within the walls of the box were a further eight heat sealed plastic bags containing 2087.4 g of white powder, 74.2% of which was heroin. The total weight of pure heroin was 2083 g. The details of the addressee included a phone number which was included in a number of mobile phones which were subsequently found at the applicant’s house.
(c)On 1 June 2016 another cardboard box arrived in Melbourne from Thailand. Again, the walls of the box contained a further eight sealed plastic bags containing 2808.1 g of white powder 73.3% of which was heroin. The total weight of pure heroin was 2058.3 g. In this instance the cardboard box had been addressed to the name and address of the applicant’s sister.

According to the sentencing comments, the wholesale value of the imported heroin in each of the three consignments was between $800,000 and $1,040,000.
A commercial quantity of heroin for the purpose of the Code is 1500 grams. The maximum penalty for the offence is life imprisonment and/or a fine of approximately $1.35 million.
In respect of the third of the consignments, the AFP obtained authorisation to substitute the contents with an inert substance and a listening device. At about 3 PM on the afternoon of 6 June 2016 an AFP officer posing as a courier rang a phone number ending in 685 which was included on the consignment details. The AFP officer left a message indicating that the package would be delivered the next day. The next morning the police established surveillance of an address in the Western Suburbs of Melbourne which was the delivery address. During that period the applicant was observed on about eight occasions walking from his sister’s home onto the footpath and looking up and down the street.
At about 1:06 PM on 7 June 2016, the AFP officer posing as a courier driver delivered a fully substitute box where it was accepted by the applicant. The applicant provided a driver’s licence as proof of identity and signed for and took possession of the consignment. Shortly after delivery the applicant was seen walking approximately 200m down the road to a blue wagon which he then drove into the driveway of his sister’s house. The consignment was loaded into the wagon and the applicant then drove to his home address. After the applicant was seen arriving at his home, he went inside and then about 10 minutes later he was observed driving his car to a residence in nearby which he attended for only a few minutes before driving back to his home and arriving there at about 1:38 PM.
According to the sentencing comments subsequent investigations revealed a link between that other address (the “third address”) and the person to whom the second assignment had been addressed.
About 1:39 PM the police entered the applicant’s home and the unopened consignment box was found located in a locked bedroom. The applicant was present at his home together with his wife, son and other housemates.
The home was subsequently searched by police were a number of items were located including a key for the locked bedroom, a black Samsung Galaxy Note 3 mobile phone which the applicant acknowledged belong to him and the phone had a number ending in 685 which was the phone number on the details for the third consignment. The police also found phones in the possession of the applicant’s wife’s and son and two other phones located in the draw of the bedroom as well as a large hydraulic press in the garage which was found to contain traces of heroin. The sentencing comments note that the press is of a type that is used to compress heroin into blocks for sale.
The applicant was arrested and undertook a taped interview with the assistance of a Vietnamese interpreter. During the interview the applicant denied involvement in the first two consignments and maintained that the press found in the garage had been left by a previous tenant. The applicant admitted that the Samsung Galaxy Note 3 phone ending in 685 was his and that no one else had used it in the last few years. The applicant maintained that he had ordered the vases online from Thailand and had the package delivered to the address referred to above at [38] because he was concerned that his wife would be upset at him ordering the vases.
The applicant admitted to accepting the delivery of the third consignment and that he had placed the box in a locked room at his house because he was concerned to ensure that his children did not open it. According to the sentencing comments the applicant maintained in the interview that he had not opened the third consignment because it was not important to him and it was very cheap.
The sentencing comments note that the Samsung Galaxy Note 3 phone included a number of Viber chat messages between the name “ongxa” and other persons discussing the importation of other consignments and sending photos of cardboard boxes of similar appearance to those imported in the three consignments.
The sentencing comments note that:
The prosecution does not assert that you should be sentenced in relation to any consignments other than the three that were imported between the dates in the charge. However, those other details were included to indicate that there was evidence of some preplanning and/or to meet any assertion that the three consignments the subject of the charge could be said to be isolated.
According to the sentencing comments, a subsequent examination of one of the phones in the bedroom drawer revealed that it had a phone number ending in 701 and that it was being used between 9 January 2016 and 15 April 2016. The Sentencing Judge notes that this is the same number as the phone number details for the second consignment and a Telstra record shows that number as being subscribed in the name of the applicant at an address in elsewhere in the Western Suburbs. Further, an examination of the phone in the possession of the applicant’s son revealed an image phone message in Vietnamese language which translated to the details of the tracking number that was used for the first consignment.
In his statement and his direct evidence to the Tribunal the applicant acknowledged that he had pleaded guilty to the charges, acknowledged that he had committed the offence and said that he took responsibility for his actions. The applicant did however give evidence to the Tribunal in relation to what he described as being the “context” of his offending.
The applicant told the Tribunal that in 2014 his mother had passed away and that his father had travelled back to Vietnam in order to spread her ashes there. The applicant told the Tribunal that his father had died while in Vietnam. He described being very close to both his parents but in particular his father and that he felt a family obligation to urgently travel to Vietnam in order to show his respects to his father. He said that at the time he did not have the financial capacity to be able to meet the travel costs back to Vietnam and that he had inadvertently run into a former colleague of his who offered to loan him $10,000 for the purpose of the trip. He told the Tribunal that on his return back from Vietnam the colleague had asked him to repay the amount by assisting him in receiving some parcels into Australia.
The applicant told the Tribunal that he was not aware of the likely contents of the parcels but that he had understood through his colleague that would include “hot stuff”. The applicant said that he did not understand exactly what that phrase meant but that he had understood that the consignments were likely to include prohibited goods of some form or another. He told the Tribunal that he did not expect it to contain heroin and that had he understood that he would not have agreed to receive the consignments. He accepted that he did not ask further questions of the colleague in order to understand the precise contents of the consignments.
The applicant’s evidence was that this particular period was a very difficult time in his life due to impact of his father’s death, the financial difficulties he was experiencing at the time as well as some challenges he was having in his marriage. He told the Tribunal that on his return back from Vietnam he and his wife and children had briefly moved in with his sister, NL, and that after a short period he moved back out again into a rental house. He told the Tribunal that he gave his colleague his and his wife’s name and addresses including his sisters address and his new rental address in order to facilitate the consignments.
Under cross-examination by the respondent’s lawyer when asked why he had been observed by the AFP surveillance team walking up and down the street outside his sister’s house on 7 June 2016 the applicant told the Tribunal that he was simply trying to get some exercise. When asked why he had on the day in question parked his car 200 metres down the road and only moved it up into the driveway of his sister’s house after he had received the consignment box the applicant told the Tribunal that he had bought the car from a neighbour and still owed them some money and did not want them to see the car for that reason. When asked if he could explain the presence of the hydraulic press in the garage of the house that he was renting at the time, the applicant told the Tribunal that he could not explain it but that he believed that it had been left there by a former tenant. When asked whether he considers it to be an extraordinary coincidence that the hydraulic press that contained traces of heroin would be found at his house given that he had been involved in receiving consignment boxes containing heroin the applicant indicated to the Tribunal that he could not explain that. When asked why he had locked the third consignment box in his bedroom the applicant told the Tribunal that he did so in order to ensure his son did not open the box.
There was evidence before the Tribunal that the third property that the applicant had briefly visited on the day in question had been connected to the second of the three consignments. When asked why he had travelled to the third property the applicant told the Tribunal that the purpose of his brief visit to the property was to borrow a lawnmower from his brother but that his brother had not been there and so he had left. When specifically asked whether he was aware of the sentencing comment that the third address had been linked to the second consignment he told the Tribunal that he did not know of that.
The Tribunal accepts that the applicant was convicted of one count of importing the commercial quantity of heroin in breach of the Code and accepts the details of that offending as set out in the sentencing comments.
In committing the offence the applicant has been involved in a heroin importation scheme that had the potential to cause extraordinary damage to individuals and the broader Australian community.
The applicant’s counsel submitted that while not wishing to diminish the applicant’s responsibility for his crime he was not a high-level participant in the scheme and that in some respects it was not inappropriate to suggest that the applicant was a fall guy for others higher up in the scheme’s design and planning. The applicant himself told the Tribunal that he was the ‘lowest’ rank in the scheme.
The Tribunal certainly accepts that the applicant was not a participant at the highest levels of the scheme’s design and planning but does not accept any suggestion that the applicant’s involvement was at the periphery or that he could fairly be described as a fall guy. The Tribunal prefers to adopt the sentencing judge’s description of the applicant’s involvement in the offending as involving him playing “an important, essential and trusted role”. The Tribunal does accept that the applicant had no direct involvement with those facilitating importation based overseas and also that the anticipated financial benefit the applicant was expected to receive as a consequence of his participation in the scheme was comparatively modest.
The Tribunal accepts the applicant’s evidence that he was not aware that the consignment boxes would contain heroin. However, on any assessment of the evidence, in not asking further questions of his colleague as to the likely contents of the consignments the applicant demonstrated extraordinary recklessness in agreeing to participate in such a scheme blind as to the contents of the consignments. It is of serious concern to the Tribunal that the applicant was willing to take such a risk for what was, in the scheme of things, a comparatively small amount of money.
While the Tribunal has some doubt about the extent to which the applicant has told the Tribunal of the full context of his involvement in the drug importation scheme it does accept that the applicant was in very difficult financial circumstances at the time of his offending and that those financial circumstances were a significant motivating factor for his involvement in the scheme. The Tribunal does not accept that this in any way reduces the applicant’s level of culpability for his participation in the scheme.
The Tribunal was left with the distinct impression that in answering questions under cross-examination the applicant was seeking to downplay his level of culpability and the full extent of his involvement in and understanding of the offending conduct. The Tribunal found a number of the applicant’s answers under cross-examination to be completely implausible and not credible. The Tribunal also found a number of the answers to be self-serving and an attempt by the applicant to suggest a significantly lower level of interest in and understanding of the scheme than was in fact the case and also to avoid any suggestion of involvement for his brother. In particular, the Tribunal does not accept the applicant’s explanation for why he was seen walking up and down the street outside his sister’s house on the day in question, nor the purpose of parking his car 200 metres down the street, nor the purpose for locking the consignment box in his bedroom, nor the purpose of his brief visit to the third house on that day. In reaching this conclusion the Tribunal has been careful in assessing the applicant’s evidence in light of the fact that the applicant was giving his evidence through an interpreter.
In the Tribunal’s view these answers demonstrate a willingness of the applicant to not be truthful in relation to the nature and full extent of his offending. This is deeply troubling to the Tribunal. In addition, it mitigates to a real degree the extent of the applicant’s genuine acceptance of responsibility and remorse for his conduct notwithstanding his statements to that effect. Also, these answers are, in the view of the Tribunal, a further example of the applicant’s willingness to engage in a manner inconsistent with his legal obligations where he considers it to offer some level of personal benefit.
In the Tribunal’s view the applicant’s involvement in the importation of commercial quantities of heroin is very serious conduct. The damage that can be caused through commercial quantities of heroin is well documented. Heroin has the potential to destroy lives and wreak havoc through families and communities. Trade in illicit drugs such as heroin exploits weak and vulnerable members of our community and also puts significant strain on law enforcement and health resources. The direct and indirect impacts of a crime of this kind have the potential to be truly devastating for a great many people.
For these reasons, the Tribunal is satisfied that the applicant’s Australian offence is very serious.
In reaching this conclusion the Tribunal acknowledges that the applicant’s offending does not involve violent crimes, sexual crimes, crimes against government representatives or officials. Neither does the applicant’s offending involve any elements of frequency or any trend of increasing seriousness.
In the course of the hearing the respondent contended that the applicant had facilitated the provision of false information to the sentencing court for his Australian offence regarding him having no prior Vietnamese convictions. In addition, the respondent contended that the applicant had engaged in a pattern of domestic violence against his wife including by choking her in the course of an argument over a mobile phone and also by insulting her and otherwise acting in a demeaning and controlling manner towards her.
The respondent contends that each of these instances amounts to a further example of serious conduct committed by the applicant which should be factored into the Tribunal’s consideration in assessing the protection of the Australian community consideration.
In the Tribunal’s view the evidence in support of these contentions was either limited or conflicting. The Tribunal accepts that the sentencing court was provided with incorrect information in relation to the absence of prior Vietnamese convictions however whether that was a consequence of the provision of information from the applicant directly with the intention to deliberately mislead the court is another question. In assessing this issue, the Tribunal has been mindful of the fact that the applicant engaged in that court process through an interpreter. On the basis of the evidence before it the Tribunal is not satisfied the applicant engaged in positive conduct intended to mislead the sentencing court in relation to the absence of prior Vietnamese convictions.
Further, the Tribunal accepts that the applicant and his wife have from time to time engaged in arguments and that on at least one occasion an argument resulted in a physical tussle over a mobile phone. The Tribunal also accepts that the applicant has raised his voice to his wife on occasions. While in no way condoning the applicant’s conduct in this respect, in the absence of more substantive evidence, the Tribunal is not satisfied that the applicant has engaged in conduct that constitutes a pattern of domestic violence against his wife. More specifically, the Tribunal is not satisfied that the applicant choked his wife in the course of the dispute over the mobile phone nor is it satisfied that the applicant cursed his wife’s mother or called her and their children “parasites” as contended by the respondent.
The risk to the Australian community
In considering the risk to the Australian community, the Direction provides that decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
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 re-offending (noting that decision should not be delayed in order for rehabilitative courses to be undertaken).
The Tribunal is satisfied that if the applicant’s offending was repeated it has the potential to cause harm to innocent members of the Australian community. This is particularly so in respect of the applicant’s Australian offence given the particularly significant impact such offending can indirectly cause for many people including serious physical and psychological harm or even death.
The applicant’s contention is that he is a low risk to the Australian community. More specifically the applicant claims that:
(a)his offending occurred at a very difficult time of his life and was out of character;
(b)he has accepted responsibility for his offending, pleaded guilty to the charges, has demonstrated insight, regret and remorse for his offending and has a genuine appreciation of the impact his offending has had on his family as well as the effects his offending could have had on the Australian community;
(c)the applicant has had time in prison to reflect on his offending and now understands the importance of relying on other family members and in particular his wife, for support during times of hardship or personal challenges;
(d)the applicant claims that he now has real insight into the importance of family life and is committed to doing all he can to support his family and secure a positive future for them here in Australia. The applicant stated that he is determined to be a positive role model for his children and a good husband to his wife;
(e)the applicant will have the benefit of strong family support and other friends to assist him to remain offence free;
(f)if released the applicant would be subject to parole which would involve additional protections which further mitigate the risk of reoffending;
(g)the applicant has significant deterrents against reoffending including the very serious risk that if he were to be released and then reoffend, he would be sent back to prison and subsequently removed to Vietnam and risk losing his marriage and family in Australia; and
(h)the applicant has positive plans for the future including a stated commitment to secure work on his release and noting that the applicant has undertaken various courses while in custody to assist in employment opportunities on release.

It was submitted on behalf of the applicant that he is a low risk of reoffending given the protective factors on release, the absence of any other criminal convictions apart from his earlier Australian and Vietnamese offences, his insight and remorse and the lack of any significant factors increasing his risk of reoffending such as drug and alcohol dependency or other mental health issues. It was further submitted this contention is supported by the observation of the sentencing judge who, having had regard to the context of the offending and the personal circumstances of the applicant, concluded that the applicant’s “rehabilitation prospects are good”.
The Tribunal accepts that there are a number of factors that mitigate against the applicant reoffending including that:
(a)the applicant does not suffer from drug or alcohol dependency or any other mental health conditions;
(b)the applicant has strong deterrents against reoffending including the risk of going back to prison, the risk of being removed from Australia and the risk of the breakup of his family. In his direct evidence to the Tribunal the applicant expressed strong motivation to be released back into the community to be reunited with his family. He told the Tribunal that he was determined not to commit crime again. He also said that he had been living in Australia for 28 years now and that he considers Australia to be his home country and his family’s home country;
(c)there was evidence before the Tribunal of the extent to which prison impacted on the applicant. For example, his sister NL told the Tribunal that prison had changed the applicant for the better including in the way he talks about his wife and family;
(d)the applicant has positive plans for the future if released back into the community including a stated commitment to taking up employment on his release as evidenced by him having undertaken a number of courses while in prison. In the course of his evidence the applicant stated his strong commitment to take up employment on his release. He told the Tribunal that he been offered employment from previous employers if released back into the community however there was no documentary evidence in support of this before the Tribunal and the Tribunal does not accept that the applicant has firm commitments of employment. While the Tribunal accepts the applicant’s stated commitment to taking up employment is genuine the Tribunal accepts the respondent’s contention that the applicant may find securing reliable full-time employment in the short-term challenging given his criminal history and also his history employment;
(e)that the applicant is genuinely committed to playing a significant and positive role in supporting his family if released into the community. The Tribunal accepts that the applicant is genuine in his love and affection for his family and determined to be positive influence on their lives. The Tribunal also accepts that if released back into the community the applicant would have the support of his broader family in Australia and, in particular, his wife, children and two Australian based sisters. The applicant’s sisters, wife and adult daughter told the Tribunal that they would support the applicant if released back into the Australian community and expressed their belief that he would not reoffend and that he regrets what he has done and knows that what he has done is wrong;
(f)the applicant’s stated commitment to not reassociate with his former colleague who facilitated his participation in the offending;
(g)the applicant’s stated commitment to not reoffend;
(h)that if released back into the community the applicant would be subject to additional controls as a consequence of his parole status and that this would further mitigate this risk of reoffending;
(i)that the applicant has used his time in prison to reflect on his offending and the circumstances that gave rise to his offending and now demonstrates a greater understanding of the importance of sharing personal difficulties including financial difficulties with his wife and other support networks;
(j)the applicant has demonstrated positive behaviour while in prison including maintaining various employment activities, demonstrating positive interactions with fellow prisoners and staff members and mentoring younger people in relation to the dangers of drugs. The Tribunal accepts that during his time in prison the applicant has taken the opportunity to better inform himself in relation to the impacts of drugs; and
(k)the applicant has expressed remorse for his offending and the impact that had the potential to have on the community. He told the Tribunal that he was sorry for his offending and that he wanted another chance and to have the opportunity to be reunited with his family.
The Tribunal also recognises that the applicant had a very difficult upbringing in Vietnam both as a consequence of the financial constraints experienced by the family and also as a consequence of his father having been sent to a re-education camp in 1975 for three years. The applicant told the Tribunal that his father had been significantly impacted by the war including losing a leg and that when his father was sent to the re-education camp the applicant was around eight years old. He also told the Tribunal that he had had a different experience to other kids at school while growing up as a consequence of his father having been an officer in the former government. When asked why he had left Vietnam the applicant told the Tribunal that his father had told him to leave Vietnam to “find a better future”.
The evidence in relation to the applicant’s employment history was somewhat imprecise. The applicant told the Tribunal that he had worked as a forklift operator at a textile factory for a year, a delivery driver for “a few years” at a chicken factory and then as a salesman in a Chinese grocery store. There was also evidence that the applicant had worked as a forklift operator at a wholesale market, as a labourer from time to time and had also worked informally from time to time to supplement his social security payments during periods of unemployment. When pressed under cross-examination the applicant told the Tribunal that he could not remember exactly what he had done for employment for significant periods of time because it had been informal.
The applicant’s materials also included a psychiatric report from Dr Lisa Jackson dated 3 November 2020. Ms Jackson is a registered psychologist. Ms Jackson also gave direct evidence at the hearing.
In her report Ms Jackson made a number of observations in respect of the applicant including that:
(a)the applicant has had positive reports regarding his behaviour in prison including in relation to his interaction with other inmates, prison staff and also in respect of employment activities in prison;
(b)the applicant has engaged in various employment activities in prison including sewing, as a laundry billet and in horticulture, food packing and in cleaning. The applicant has also completed a Certificate 2 in Cleaning Operations as well as an induction course in relevant Occupational Health & Safety;
(c)there was evidence that the applicant had been observed to be punctual, polite and work focused;
(d)there was evidence that the applicant had taken on cooking responsibilities for his shared section and also helping other prisoners with weekly budgeting;
(e)there was evidence that the applicant had focused on maintaining good health and fitness while in prison and also saw himself as a mentor for younger prisoners with drug issues;
(f)the applicant is very concerned about the impact of being deported to Vietnam including in particular the impact it would have for his wife and children; and
(g)the loss of both parents had reinforced the bonds the applicant has with his siblings and that the applicant is anxious that these bonds will be impacted if he were deported to Vietnam.
In undertaking a risk assessment in relation to the applicant reoffending, Ms Jackson utilised the Level of Service Inventory – Revised (the LSI-R) test. In her direct evidence Ms Jackson described the test as having multiple purposes including in identifying further treatment and management needs and also in assessing the risk of recidivism within one year. Ms Jackson explained that the test identifies major risk factors which can then be used to direct attention to areas of concern and appropriate intervention strategies.
In her written report Ms Jackson gave the applicant a score of eight on the LSI-R test which would put the applicant in the low risk/needs category. Again, in her written report Ms Jackson put the applicant at the 5.1% percentile rank indicating that 94.9% of male offending populations in custody scored higher risks and needs than the applicant.
In her direct evidence Ms Jackson conceded that she had miscalculated the applicant’s score by one mark but she stood by her conclusion that the applicant would still fall within the low risk/needs category. Ms Jackson concluded that on the basis of the test result the risk of the applicant reoffending again within 12 months of release from custody was very low.
In her written report Ms Jackson identified a number of factors in particular that she considered to be relevant to the applicant’s low risk of recidivism including the sentencing judge’s conclusion is that the applicant was “low in the chain” and had good chances of rehabilitation, that the applicant recognises the seriousness of the offence, is remorseful and has demonstrated excellent progress in custody with positive interactions with other prisoners and staff. Ms Jackson also noted in particular the applicant’s protective factors including strong family support and his attachment to them, prosocial beliefs and attitudes that do not condone drug use, and his capacity for resilience in prison. Ms Jackson concluded in her written report that if the applicant were released “he would become a useful member of society, resuming work and family duties with next to no reoffending risks.”
In the course of cross-examination Ms Jackson conceded that her assessment factored in the applicant’s stable employment while in prison and that a change in employment status on his release from prison could result in an additional point in the applicant’s score. Ms Jackson also indicated that her assessment of the applicant was on the basis that the applicant had not previously suffered from chronic financial problems. Ms Jackson also conceded that she had, in part, formed her view on the basis that the applicant’s involvement in his Australian offending was “low in the chain” was based on of her interpretation of the sentencing judge’s comments. When pressed on this point Ms Jackson accepted that the reference to “low in the chain” was a reference to the applicant’s lawyer’s submission and not the actual conclusion of the judge although she told the Tribunal that she did not know that it would change her view of the applicant’s reoffending risk.
When asked under cross-examination whether she would consider an attempt by the applicant to play down his offending as relevant to her assessment of risk Ms Jackson stated that she considered that it would be relevant to her assessment.
When Ms Jackson was asked whether her LSI-R test assessment could be relied upon to assess risk more broadly beyond the first year after release she told the Tribunal that “no, the test only assesses risk for just one year” although she went on to say that it might be possible to make assumptions beyond that and that “history is a good indicator” and that in her view the risk in respect of the applicant would “most probably” remain low unless there were significant changes post release. Ms Jackson also accepted that parole on release provides a level of further control which would “probably” reduce the risk even further.
The Tribunal accepts the respondent’s contention, which was conceded by the applicant and Ms Jackson herself, that Ms Jackson had inadvertently miscalculated her points assessment of the applicant. The Tribunal is satisfied that nothing significant turns on this point given that Ms Jackson confirmed that in any case she would still assess the applicant as being in the low needs/risk category. While the Tribunal accepts that there was evidence of the applicant having experienced significant financial difficulties through the course of his life, the Tribunal accepts that Ms Jackson did not have sufficient details regarding the applicant’s financial history to form a view as to whether that history would constitute chronic financial problems for the purpose of the LSI-R test.
Notwithstanding Ms Jackson’s assessment that the applicant represents a very low risk of reoffending, as well as a number of mitigating factors as described above, having considered all of the evidence before it, the Tribunal is satisfied that there are a number of significant factors which strongly suggest that there remains a not insignificant or immaterial risk of the applicant reoffending again in a similar manner.
The Tribunal accepts that the applicant’s Australian offences occurred during a period of very difficult personal circumstances for the applicant. The Tribunal accepts that some of those circumstances were time specific, for example, the death of the applicant’s parents. Other of those circumstances have the potential to re-emerge at some point in the future, for example, difficulties in the applicant’s marriage or financial pressures.
It is clear from the evidence that the applicant’s financial difficulties were not isolated to the time of his Australian offence. In her evidence to the Tribunal the applicant’s wife ML described having a general concern regarding the applicant’s spending habits and his capacity to appropriately manage the family’s finances.
The Tribunal accepts that the applicant has acknowledged the importance of better managing his finances and responding to financial pressures. As an example of this, the applicant has taken the opportunity to develop experience in budgeting by assuming responsibility for that role in his prison section. The applicant has also demonstrated insight to these issues through his acknowledgement of the importance of sharing his personal challenges more openly with his wife and broader support network.
The applicant has also demonstrated a commitment to be a better husband to his wife by being more open with her.
Notwithstanding these factors, the applicant’s application of his new approach to responsibly managing his finances and responding to financial or marriage pressures has not yet been tested in the community.
While the Tribunal recognises the applicant’s stated commitment to seeking employment on release the Tribunal is satisfied that the applicant is likely to find doing so more challenging in practice given his recent incarceration and his somewhat sporadic employment history. The Tribunal considers there to be a real risk that the applicant will again face periods of unemployment or underemployment. In addition, while the Tribunal acknowledges the stated commitment of ML to learn English in order to secure employment if required, the Tribunal is also satisfied that despite her best efforts ML is also likely to face significant challenges in securing employment in practice.
For these reasons, the Tribunal is satisfied that the applicant is highly likely to face significant financial pressures again in the future.
Against this backdrop the Tribunal remains very concerned about the apparent willingness of the applicant to circumvent his legal responsibilities for personal gain. The applicant has a history of engaging in such behaviour in relation to both of his offences. In the Tribunal’s view the applicant demonstrated an ongoing willingness to engage in such behaviour in not being truthful with the Tribunal regarding certain aspects of his offending in the evidence he gave at the hearing. This is deeply troubling to the Tribunal.
In addition, in the Tribunal’s view, the applicant’s willingness to not be truthful in his evidence to the Tribunal mitigates to a real degree his expressions of remorse, regret and acceptance of responsibility for his offending. In the Tribunal’s view, this in turn also increases the risk of him reoffending.
While the Tribunal acknowledges Ms Jackson’s conclusions in relation to the risk of the applicant reoffending, Ms Jackson did not have the benefit of hearing all of the applicant’s evidence in the Tribunal and significantly she has explicitly acknowledged that she would consider any attempt by the applicant to downplay his offending as relevant in her assessment of his risk of reoffending.
The Tribunal also acknowledges the observations of the sentencing judge that the applicant’s prospects of rehabilitation were good. Again, however, the sentencing judge did not have the benefit of hearing the applicant’s evidence before the Tribunal. In addition, the sentencing judge was not aware of the applicant having an earlier offence that also demonstrated a willingness to circumvent the law for personal gain.
For these reasons the Tribunal is satisfied that the risk of the applicant reoffending again including in a similar manner to his Australian offence is not so low as to be insignificant or immaterial but rather represents a real and tangible risk. Given the very serious nature of his Australian offence the Tribunal is satisfied that the risk of harm to the Australian community is unacceptable.
Accordingly, the protection of the Australian community consideration weighs very heavily against revocation of the cancelation of the visa.
The best interests of minor children in Australia
Paragraph 13.2(4) of the Direction provides that in 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 in the 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 fulfill 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 has two biological children with his wife ML who are relevant to this consideration, namely, AL aged 13 and HL aged 7. Both are Australian citizens.
The evidence before the Tribunal was that the applicant has a very genuine love and affection for his children and had played a significant role in their lives in particular during the period prior to him going to prison. The evidence was that prior to the restrictions imposed as a consequence of COVID-19, the children had visited the applicant together with ML on a weekly basis and on a number of occasions had had extended visits with him. Both the applicant and ML confirmed that the applicant speaks with the children on an almost daily basis by telephone. The applicant told the Tribunal that following the imposition of COVID-19 restrictions they had maintained contact by video link two times a week.

In his direct evidence to the Tribunal the applicant said that he had a good father and son relationship with both AL and HL. He described being particularly close to AL and having taught him maths, going out together watching films together and carrying him around on his shoulders.
The applicant described also having a close relationship with HL but noted that HL had been very young when he was arrested. The applicant told the Tribunal HL was present when he was arrested and handcuffed but that he was naïve and did not understand. The applicant told the Tribunal that he enjoyed playing with HL and would let him climb onto his back and ride around.
The applicant told the Tribunal that family was very important to him. He told the Tribunal that “we love each other very much, we are inseparable”.
The applicant also told the Tribunal that during his time in prison he had undertaken a parenting course where he had learnt more about how to look after children and open up when children are seeking to understand something.
The applicant’s wife ML also described a close relationship between the applicant and AL and HL. She told the Tribunal that the applicant had been present when both of the children were born. She told the Tribunal that the applicant had taught AL to speak English and that he cared for them, cooked for them, bathed them and took them out of the house for activities. ML said that the applicant loved the children and that AL in particular looked up to the applicant and considered him to be his hero. ML described AL as being very excited about the prospect of the applicant being released but that when he discovered that his father could be sent back to Vietnam he said he wanted to commit suicide. ML told the Tribunal that more recently AL had become more withdrawn and that he stayed in his room and did not want to go to school. ML told the Tribunal that HL had also been very upset when he had discovered that his father could be sent back to Vietnam and that he cried a lot.
ML told the Tribunal that if the applicant is sent back to Vietnam she will struggle to cope supporting the children by herself. She told the Tribunal that she very much relied on the applicant and she did not believe that the applicant’s sisters will be able to continue to assist her on an ongoing basis if the applicant is forced to relocate back to Vietnam. She told the Tribunal “we rely on the father” and that “the children will have no father to take them to school”. She told the Tribunal that she would have to be “both mother and father” and that “it is difficult because I have not worked and have no English”.
There was evidence before the Tribunal in relation to the significant challenges that both AL and HL have had during the time their father has been in prison and in particular more recently when the children discovered the possibility that the applicant is at risk of being forced to return to Vietnam.
There was evidence before the Tribunal in relation to mental health issues that both of the children, but in particular AL, have been managing over recent years. There was evidence that both of the children regularly visit their school psychologist and that AL has been referred to a specialist by his family doctor.
The Tribunal materials include a psychiatric report from Ms Pamela Loughnan dated 28 October 2020. Ms Loughnan also gave direct evidence at the hearing. Ms Loughnan is a registered psychologist who works with the Department of Education and Training Victoria and provides counselling services through a number of schools. Ms Loughnan told the Tribunal that she had been referred to AL around two years ago in November 2018 as consequence of emotional issues he was dealing with at that time which were identified by a speech therapist. Ms Loughnan described AL at that time as displaying a nervousness and a sense of “carrying the burden” which she attributed to his separation from his father and his sense of shame associated with his father being in prison. She also told the Tribunal that she had also referred AL to an organisation called Shine which offers mentor services for children of a person in custody and that HL had also been referred to Shine. Ms Loughnan noted that as AL was now in high school, he was no longer eligible to receive services through Shine.
Ms Loughnan told the Tribunal that since her initial referral, other than for a period when she was on extended leave, she has maintained regular contact with AL. She told the Tribunal that during the course of 2019 AL had made significant progress which she described as being a consequence of him being able to speak more openly about his situation including having the opportunity to do so in English. She described him during that time as having demonstrated less anguish and nervousness and that she believed that her sessions with him had helped break down his sense of isolation and shame associated with his father being in prison.
Ms Loughnan told the Tribunal that AL was now attending high school and that there had been some issues with his transition into high school as a consequence of him feeling isolated because a number of his friends went to another school. She also described AL as having a sense of responsibility for his younger brother HL stating that AL considers himself to be a father like figure to HL.
In her written report Ms Loughnan described AL as being easy to build rapport with and a very respectful, cooperative and kind child. She described AL as discussing the “frightening time” when the police came to his home and he and his little brother were put into foster care and also the significant impact his father’s arrest has had on his mother and family more broadly.
Ms Loughnan told the Tribunal that she had identified a particular shift in AL’s behaviour once it became evident that his father risked being deported. She described AL as becoming very stressed. When asked how she would assess the level of his stress on a scale she responded “10, he had suicidal thoughts”. She told the Tribunal that the uncertainty around the prospect of his father being deported has caused AL sustained pressure, he cannot sleep and is totally preoccupied with it.
Ms Loughnan told the Tribunal that in the event the applicant is deported, AL would be devastated. When asked whether she believed AL would recover from such an outcome she told the Tribunal that it was “difficult to say” and that she believed there would be ongoing implications and that he would not recover easily. In her written report Ms Loughnan states that in her view it is possible AL may never recover from such an outcome. She described the potential for that experience to be similar to someone dying and that it was likely to have a profound effect on his life. When asked whether she believed AL’s suicidal thoughts should be treated seriously she stated “I would not dismiss it” and that it “should be taken seriously”.
Under cross-examination Ms Loughnan told the Tribunal that AL had first expressed thoughts of suicide to a teacher in the playground and that following the incident she had met with AL together with his mother. She told the Tribunal that AL had engaged in talk of taking his life by using a rope or knives. She told the Tribunal that she did not think AL had provided that detail to the teacher but that she had asked for further details. She told the Tribunal that the incident had occurred on or around 29 October 2020 which was around the time of her report.
In her written report Ms Loughnan states that:
The current report writer believes the consequences for the boys of their father being permanently removed from their lives in Australia is highly likely to do untold damage to their mental health and their lives.
The applicant’s adult daughter, CL, also gave evidence in relation to AL’s response to their father’s predicament. CL was a particularly impressive witness. When asked under cross-examination whether she was aware that AL had said he wanted to commit suicide CL told the Tribunal that AL had expressed those thoughts on a number of occasions including when their father was first arrested in 2016, during the hearing of his criminal case and then more recently a couple of months ago. CL told the Tribunal that AL misses his father and that he finds it hard to understand the present circumstances, that he feels the burden and wants to help but that he cannot. He feels responsibility. CL told the Tribunal that AL looked up to his father and was his “father’s boy”.
The Tribunal material also included a statement from AL himself which reads as follows:
My name is AL and I am 12 years old. I am in year 7 at <a secondary school in the Western Suburbs of Melbourne>. I live with my mum and brother, HL in <the Western Suburbs>.
My father is <the applicant>. I understand that he is in prison and now he may be evicted from Australia.
I remember when the police came to our house and arrested my parents. It was such a scary experience and I was so confused. The police took us and then our relatives picked us up but they couldn’t take care of us so we had to go into foster care. When my mum came home, we moved to another house together and my father stayed in prison.
I started high school this year and I really enjoy it as it takes away the stress at home. My favourite subject his history. I have some friends but I like to walk around with the teachers at lunch time. My friends don’t know what is happening with my family. I prefer to be by myself so I can hide the situation from my friends.
I speak to my psychologist… at school. I trust <the Psychologist> and like speaking to her otherwise I have bad thoughts in my head which affects my mental health and I can’t concentrate on other things.
School is a good place for me as I can speak to the teachers and <the Psychologist> in English. My English is much better than my Vietnamese. I can’t talk to my Mum about my problems as I can’t explain it and I also want to hide my feelings from her so she does not worry.
I am close with HL who is 7 years old. He knows my dad isn’t here but doesn’t know the full story. We spend a lot of time together and I am protective of him and want him to have a father and a better childhood than me.
I don’t know the details of why my dad is in prison but I have my suspicions. My mum explained to me that he may be evicted back to Vietnam a few weeks ago. I don’t want my dad to leave.
It has been 5 years without him and I miss him a lot. We used to go to the prison to visit him but now we just speak to him on the phone every day. I was looking forward to my dad coming home and for us to be a family again.
I want to tell the court to please let him stay here as I need him here.
Having considered the evidence in relation to the impact a decision would have on the applicant’s two biological children the Tribunal is satisfied that it is in the best interests of both AL and HL for the applicant’s visa cancellation to be revoked. There is no question in the mind of the Tribunal that the love and affection the applicant has for his two youngest children as well as for his wife is genuine and deeply felt. In addition, the Tribunal accepts the applicant’s evidence regarding his commitment to each of the children and doing all he can on release to play a positive parental type role in their lives.
While the Tribunal acknowledges that both the applicant and ML have indicated that they have not directly discussed whether ML and the children would remain in Australia in the event that the applicant’s visa cancellation is not revoked, the Tribunal accepts the strong evidence given by both the applicant and ML that ML and the children would stay in Australia in these circumstances. When asked whether ML and the children would go back to Vietnam with him the applicant told the Tribunal “no, never”. He said they would stay in Australia as they are Australian citizens and this is their future. Similarly when asked ML said that she wanted the children to stay in Australia with her because this is their home and so that the children could complete their education.
The Tribunal accepts that given ML’s limited English and likely difficulty she will continue to have in securing employment, ML and the family more broadly are likely to be materially adversely impacted in the event that the applicant is forced to relocate back to Vietnam and ML chooses to remain in Australia with the children. This impact is likely to be both financial as well as involve the absence of a father and husband’s face-to-face emotional support. There is no question it will cause a material and long lasting dislocation of the family. The children face the prospect of being raised by their mother in Australia without the immediate face to face support of their father. The Tribunal reaches this conclusion acknowledging the capacity of the applicant to maintain some level of contact with his two youngest children through phone or other electronic means.
The Tribunal is satisfied that each of AL and HL are currently experiencing significant stress and anxiety as a consequence of their exposure to their father’s current predicament and have done so during the entire period he has been in prison and also at the time of his initial arrest. The Tribunal accepts the evidence of Ms Loughnan that the impact on the children is likely to be very significant and particularly so in the case of AL who has clearly suffered significantly during this period and will likely do so in the event the applicant’s visa cancellation is not revoked. The Tribunal accepts that AL has recently expressed thoughts of suicide although it also accepts CL’s evidence that he has done so on a number of occasions over the course of the last four years.
The Tribunal rejects the contention put by the respondent that the suicidal thoughts expressed by AL should be viewed as young person engaging in an outburst rather than something more serious. There is no question in the mind of the Tribunal that such thoughts must be taken very seriously and that the supports that have been put in place as described by Ms Loughnan will be very important in managing AL’s ongoing mental health.
Notwithstanding this, the Tribunal is not satisfied that the issues that AL is currently experiencing are likely to be fully resolved on the outcome of this Tribunal’s decision irrespective of which decision that is. The Tribunal is satisfied that the issues AL is having to manage from a mental health perspective are more complex than that.
While the Tribunal accepts that an adverse outcome in this matter is likely to cause AL significant additional stress the Tribunal does not accept that such an outcome is beyond AL’s capacity to cope. It is clear from the evidence that AL has been living with a heightened sense of stress and anxiety for some time. In addition, without in any way seeking to diminish the seriousness of the issues AL is having to manage, the Tribunal is satisfied that the evidence before it indicates a level of strength and resilience demonstrated by AL. In addition, Ms Loughnan confirmed that there are supports in place to assist AL in managing his way though the outcome of this matter and that AL has demonstrated a willingness to take advantage of the supports on offer. CL’s evidence made clear that AL has experienced similar thoughts before which when considered together with Ms Loughnan’s evidence of AL making good progress following her intervention would strongly suggest that AL has a demonstrated capacity to work through such issues. Nonetheless, the Tribunal acknowledges that irrespective of the outcome of this decision, AL is likely to face an ongoing challenge in the effective management of his mental health concerns and that the risks associated with such concerns are real.
The Tribunal’s conclusions regarding the best interests of each of AL and HL are tempered to a very slight degree by the fact that the applicant has had more limited contact with the children during his time in prison and also due to the adverse impact his offending has had on them including the ongoing mental anguish it has clearly caused them.
In addition, while the Tribunal is satisfied that the ongoing support able to be provided by the applicant’s siblings and eldest daughter is limited due to their own independent personal obligations the Tribunal is satisfied that they would continue to offer some level of support to both ML and the children. In addition, it is also tempered as a consequence of the Tribunal’s conclusion that the applicant represents a real risk of reoffending again in the future.
There was also evidence before the Tribunal in relation to NT’s (the applicant’s sister) three young children KL, AN and RL who are aged 10, four and three respectively. The Tribunal is satisfied that the applicant’s role in relation to each of NT’s children is nonparental and there is very limited evidence of any meaningful contact between them. This was reinforced by the applicant’s own evidence where the struggled to state the names of the two youngest children. The applicant told the Tribunal that the eldest child had visited him on one occasion. The Tribunal is satisfied that in the event the applicant is forced to relocate back to Vietnam the potential future relationship each of NT’s children will have with the applicant is likely to be significantly curtailed as a consequence of the geographic dislocation. For this reason, the Tribunal accepts that it’s in the best interests of each of NT’s children for the applicant’s visa cancellation to be revoked although in the circumstances this has only limited weight.
For these reasons, and in particular due to the likely impact of a decision on the applicant’s two youngest children, the Tribunal finds that this consideration weighs very heavily in favour of a decision to revoke the cancellation of the applicant’s visa.
Expectation of the Australian community
Paragraph 13.3(1) of the Direction provides that:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Tribunal has approached this consideration consistent with the reasoning in YNQY v Minister for Immigration and Border Protection[2] (YNQY) as well as the more recent Full Federal Court decision in FYBR v Minister for Home Affairs (FYBR).[3]
[2] [2017] FCA 1466.
[3] [2019] FCAFC 185.
In applying this consideration, the Tribunal has had due regard for Government’s stated views as set out in the Direction including those described in paragraph 13.3(1) referred to above as well as the general principles set out in paragraph 6.3 of the Direction.
There is no question in the mind of the Tribunal that the applicant’s Australian offences amounts to a significant breach of Australian law which is fundamentally inconsistent with the expectation that the Australian community that a non-citizen abide by Australian laws while in Australia. In addition, the Tribunal is satisfied that the seriousness of the Australian offence is such that the Australian community would expect the applicant not hold an Australian visa. This is especially so given the Tribunal’s conclusion that the applicant continues to pose an unacceptable risk of harm to the Australian community. Notwithstanding these considerations, the Tribunal has also been mindful of factors relevant to the applicant’s specific circumstances in undertaking this assessment including:
(a)the significant ties that the applicant has established with the Australian community given the very considerable period of time he has lived in Australia; and
(b)the fact that the applicant has made some contribution to the Australian community through his employment activities as well as helping care for his elderly parents before they passed away.

In assessing this consideration, the Tribunal has been particularly mindful of the very significant impact a decision not to revoke the cancellation of the applicant’s visa would have for the applicant’s family including especially the applicant’s wife and two youngest children.
For these reasons, the Tribunal is satisfied that this consideration weighs against revocation of the cancellation of the applicant’s visa but, in light of the mitigating factors, not heavily so.
Other considerations
International-non-refoulment obligations
Notwithstanding a number of claims in the applicant’s written materials regarding international non-refoulement obligations being owed to the applicant, the applicant’s counsel made clear in his closing submissions that no reliance was being placed on those claims as the evidence did not bear them out. The Tribunal agrees and accordingly this consideration weighs neither for nor against the revocation of the cancellation of the visa.
Strength, nature and duration of ties
Paragraph 14.2 of the Direction provides that:
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to the time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The applicant has resided in Australia since 1992. Despite having travelled back to Vietnam on a regular basis including spending significant periods of time in Vietnam the applicant has nonetheless spent a very significant period of time living in Australia. As a consequence, the Tribunal is satisfied that the applicant has developed significant ties in Australia during that period.
In addition to his immediate family, the applicant has strong relationships with his sisters who resided in Australia and also has a number of brothers and further extended family and friends residing in Australia. The Tribunal accepts that in the event that the applicant is required to relocate back to Vietnam, each of these family members will have their relationship with the applicant adversely impacted as a consequence of geographic dislocation.
The Tribunal heard directly from the applicant’s two Australian resident sisters NL and BL. BL told the Tribunal that her relationship with the applicant as a “very good” brother sister relationship. BL described the applicant as a family man who had always been a good son to his parents. BL told the Tribunal that she had maintained contact with the applicant while he has been in prison including by visiting him before restrictions were imposed as a consequence of COVID-19. BL told the Tribunal that she maintains contact with the applicant by phone every two or three weeks. When asked what impact the applicant’s deportation to Vietnam would have for her she told the Tribunal that she had never thought of it and that she is shocked by the thought.
In her direct evidence to the Tribunal NL said that she had maintained a connection to the applicant during the time that he had been in prison by phone. When asked how often she spoke by phone NL told the Tribunal “more than a few times”.
NL also told the Tribunal that the applicant had demonstrated a strong commitment to his elderly parents before they had passed away. She told the Tribunal that he cared for them and cooked for them that he had loved them very much.
In her direct evidence to the Tribunal the applicant’s adult daughter CL told the Tribunal that she had had limited contact with the applicant for a period after her parents had divorced but more recently had reconnected with the applicant and that they now have a better and developing relationship. CL told the Tribunal that the applicant had changed significantly since he has been in prison including by becoming a lot more family orientated and wanting to spend more time with her and be more open. CL told the Tribunal that she now speaks to the applicant by phone on a weekly basis and before COVID-19 restrictions she had tried to visit the applicant every couple of weeks. CL told the Tribunal that if the applicant is required to relocate back to Vietnam it will impact her greatly and that it will impact on her relationship with the applicant. She told the Tribunal that having the applicant back in her life had been very helpful and a positive experience.
In her evidence to the Tribunal, the applicant’s wife ML made clear the significant reliance she has had on the applicant both from a financial and emotional support perspective. When asked about her relationship with the applicant ML stated that “we always loved each other”. She told the Tribunal that the applicant had always cared for her and the children. When asked what impact a decision requiring the applicant to relocate back to Vietnam would have her ML told the Tribunal that she had never thought about it but that it would be very difficult for her and the children because of the important role he plays in their lives.
The Tribunal is satisfied on the basis of the evidence before it that the applicant’s family members residing in Australia and, in particular, his wife and children, two sisters and his adult daughter are likely to be very significantly adversely impacted in the event that a decision is made that requires the applicant to relocate back to Vietnam as a consequence of the geographic dislocation that would result. In reaching this conclusion the Tribunal recognises that it is likely that the applicant can maintain some level of connection to his family members by telephone or other digital means. Nonetheless there is no question that the relationship the applicant would be able to maintain with each of those family members will be significantly curtailed.
The Tribunal recognises that the impact for his wife ML and his two youngest children would be particularly significant given the applicant’s and ML’s stated intent for ML and the children to remain in Australia in the event that the applicant is required to relocate back to Vietnam. While the applicant has a proven capacity to be able to maintain a strong connection to his immediate family through electronic means there is no doubting the profound impact that such a scenario is likely to have both individually for each of them and together as a family unit. It is clear to the Tribunal that ML is strongly dependent on the applicant to assist her in caring for their children and that being required to support the children in Australia in the absence of her husband would be extremely challenging for ML.
There was also some evidence before the Tribunal of the contribution that the applicant has made to the Australian community through his various employment activities and through the contribution the applicant made in caring for his elderly parents prior to their death. While it was clear on the evidence that the applicant has had some significant periods of unemployment or underemployment there was evidence that he had engaged in formal employment for a number of years including as a forklift driver, salesman, labourer and as a delivery driver. There was also evidence that the applicant had made some contribution through employment activities while in prison. The Tribunal was given some limited weight to the contribution made by the applicant in this respect.
For these reasons, and particularly the impact a removal from Australia is likely to have on his immediate family and wider family in Australia and especially his wife and adult daughter, the Tribunal is satisfied that this consideration weighs heavily in favour of revocation of the cancellation of the applicant’s visa.
Impact of Australian business interests
There was no evidence before the Tribunal that Australian business interests would be impacted in the sense contemplated by the Direction if cancellation of the applicant’s visa is not revoked. Therefore, this consideration weighs neither for nor against revoking the cancellation of the visa.
Impact on victims
There was no specific evidence before the Tribunal as to the impact a revocation of the applicant’s visa would have on any victim of his offending. Accordingly, this consideration weighs neither for nor against revoking the cancellation of the visa.
Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
The Tribunal accepts that in the event the applicant is required to relocate back to Vietnam it will involve a significant period of transition in seeking to re-establish himself there which will no doubt be challenging. More specifically the Tribunal accepts that the applicant may face some difficulty in securing reliable employment at least in the short term in particular given his comparatively limited formal education and his somewhat sporadic employment history in Australia.
The Tribunal accepts that these challenges are likely to be exacerbated as a consequence of the applicant undertaking such a transition in the absence of the face-to-face support of his immediate family members. The Tribunal acknowledges that this scenario is likely to cause the applicant significant emotional hardship as a consequence of being separated from his wife and children as well as other family members in Australia.
The Tribunal accepts the applicant’s evidence that his relationship with his four sisters who currently reside in Vietnam is distant and that he does not maintain regular contact with them. The Tribunal accepts the evidence before it that the capacity of the applicant’s sisters living in Vietnam to assist the applicant in his transition back into life in Vietnam is effectively non-existent.
The applicant’s two sisters based in Australia told the Tribunal that they believed that the applicant would find returning to Vietnam very difficult because his family is in Australia and that they would not be able to assist him there. When asked whether they believed that the applicant’s other sisters based in Vietnam could assist, BL told the Tribunal that she did not believe that they could because they live very difficult lives. She described the Vietnamese based sisters as being in their 50s and 60s with no social security and no capacity to support anyone other than themselves. She described them as living “day-to-day”.
Notwithstanding these challenges, the Tribunal also recognises that the applicant has grown up in Vietnam and has also spent significant periods of time there on a regular basis since migrating to Australia in 1992 and that therefore Vietnam is certainly not unfamiliar to him.
There is no evidence of the applicant having any significant language barriers and the Tribunal does not accept the contention put by the applicant’s counsel that the applicant is likely to be impeded to some degree by a level of cultural unfamiliarity. It is clear from the evidence that the applicant has spent a very significant time in the country including quite recently and that he is particularly comfortable spending extended periods of time there.
The applicant is still comparatively young at approximately 50 years of age and in relatively good physical health although the applicant complained of poor vision.
As stated in the section dealing with international non-refoulement, the applicant’s written claims of potentially suffering impediments in Vietnam as a consequence of his father’s history with the former government, the circumstances of his departure from Vietnam or potential future adverse consequences for him in Vietnam resulting from his drug conviction was not substantiated by the evidence that was before the Tribunal. To the contrary, it was clear from the applicant’s evidence and the evidence more broadly that the applicant feels very comfortable spending time in Vietnam as reflected in his regular travel to Vietnam since his migration to Australia in 1992. The applicant gave evidence that he believed his experience in Vietnam would be different if he were to migrate back to Vietnam particularly as a former drug offender, but again the Tribunal found the applicant’s evidence in this respect to be completely unpersuasive. There was no independent evidence before the Tribunal to substantiate such a claim.
In addition, in his closing submissions the applicant’s counsel referred the Tribunal to paragraph 5.33 of the DFAT Country Report for Vietnam dated 13 December 2019. The applicant’s counsel submitted that the applicant was likely to experience some impediments on his return to Vietnam consistent with that paragraph. The paragraph in question refers to potential impediments on return for returnees including “failed asylum seekers, labour migrants and trafficking victims”. The paragraph goes on to describe potential consequences for such returnees including unemployment or underemployment, challenges accessing social services, particularly in circumstances where household registration has ceased.
The respondent contends that the applicant does not fit within each of the subcategories of returnees described in the paragraph. The Tribunal accepts that contention. Nonetheless the Tribunal accepts that as returnee, the applicant is likely to face some challenges in the short term in undertaking his transition back into life in Vietnam as already described above. The Tribunal accepts that this could also include periods of unemployment or underemployment as well as some challenges in accessing social services in the shorter term. The Tribunal is satisfied that there is no evidence before it that would support a contention that the applicant is likely to be deprived of government services on his return to Vietnam in the medium to longer term that would generally otherwise be available to other citizens. The Tribunal is satisfied that the challenges the applicant is likely to face are transitional only.
In the Tribunal’s view, notwithstanding some challenges in seeking to re-establish himself in Vietnam it is likely that over the medium term the applicant would be successful in his transition and be able to maintain basic living standards comparable to other citizens of Vietnam.
For these reasons, the Tribunal is satisfied that the impediments if removed consideration weighs in favour of the revocation of cancellation of the applicant’s visa but not significantly so.
CONCLUSION
The Tribunal is satisfied that the applicant does not pass the character test as set out in section 501(6)(a) by reason of his substantial criminal record. Therefore, the Tribunal is required to consider whether or not to exercise the discretion in section 501CA(4)(b)(ii) of the Act to revoke the cancellation of the applicant’s visa for “another reason”.
In considering whether or not to exercise its discretion the Tribunal has been particularly mindful of the significant impact a decision not to revoke the cancellation of the applicant’s visa would have for his wife, his children and his broader family in Australia. There is no question in the mind of the Tribunal that the impact on each of them is likely to be very significant and particularly so for the applicant’s wife and his children.
The Tribunal accepts that in the event the applicant is returned to Vietnam the applicant’s eldest daughter would have her capacity to continue with the re-establishment of a close relationship with her father significantly constrained as a consequence of her geographic dislocation from him.
The Tribunal recognises that the potential implications that a decision not to revoke the cancellation of the visa would have for the applicant’s wife and children are extremely significant. The applicant’s wife’s reliance on the applicant for financial and emotional support is quite apparent. The Tribunal accepts that in the event the applicant relocates back to Vietnam, ML and the children will remain in Australia. Such an outcome will cause the family to be separated. In those circumstances ML will find the task of caring for the children and raising them in the absence of the in-person support of her husband extremely challenging.
The evidence in relation to the mental health impact that the applicant’s current predicament has had for his two youngest children is extremely concerning. The Tribunal recognises the potential for an adverse outcome in this matter to be extremely confronting for the children and that such an outcome has the potential to exacerbate to some real degree the current mental health challenges they are having to manage.
In addition, the Tribunal acknowledges the potential adverse impacts that an adverse decision would have for the applicant himself including the challenges of having to transition back into life in Vietnam. The Tribunal accepts that in undertaking such a transition in the absence of his wife and children the applicant is likely to experience significant adverse emotional impact as a consequence.
For the reasons set out earlier, the Tribunal is satisfied that the expectations of the Australian community consideration weighs in favour of not revoking the cancellation of the applicant’s visa although the Tribunal acknowledges that the weighting given to this consideration is tempered to some degree by the applicant’s broader circumstances and the implications a decision in this matter is likely to have for the applicant’s family.
In assessing whether or not to exercise the discretion the Tribunal has also had careful regard to the very serious nature of the applicant’s Australian offence and the risk of reoffending. As described earlier in these reasons, the Tribunal is satisfied that if such an offence were to be repeated it has the potential to cause very serious damage in the lives of individuals, families and the community. Such an offense if repeated has the potential to impact very adversely on a great many lives.
For reasons set out above, the Tribunal is satisfied that the risk of the applicant reoffending again in a similar manner cannot be dismissed as being insignificant or immaterial but rather remains a real risk. Given the very serious harm that could be inflicted on innocent members of the Australian community if such an offence were repeated, the Tribunal is satisfied that the risk of harm to the Australian community is an unacceptable one. The Tribunal is satisfied that in the circumstances of this case this particular consideration is determinative.
For these reasons the decision under review is affirmed.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 176 (one hundred and seventy-six) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

...................[sgd].....................................................
Associate
Dated: 7 December 2020

Dates of hearing: 30 November, 1 & 2 December 2020

Counsel for the Applicant: Mr Greg Hughan

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Advocate for the Respondent: Mr Keith Sypott

Solicitors for the Respondent: Australian Government Solicitor

[2020] AATA 4959

7 December 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Dates of hearing:	30 November, 1 & 2 December 2020
Counsel for the Applicant:	Mr Greg Hughan
Solicitors for the Applicant:	Carina Ford Immigration Lawyers
Advocate for the Respondent:	Mr Keith Sypott
Solicitors for the Respondent:	Australian Government Solicitor