YPWC and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 1153

YPWC and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1153 (21 May 2024)
Division:GENERAL DIVISION
File Number: 2024/1313
Re:YPWC
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Ms A E Burke AO, Member
Date:21 May 2024
Place:Melbourne

The Tribunal affirms the decision under review.
...........................[sgd].............................................
Ms A E Burke AO, Member
Catchwords
MIGRATION – applicant is a citizen of Vietnam – applicant currently without a valid visa - visa cancellation – mandatory cancellation under s 501(3A) of the Migration Act 1958 – where the applicant does not pass the character test – whether there is ‘another reason’ to revoke the cancellation – consideration of Direction No. 99 – protection of the Australian community – expectations of the Australian community – legal consequences of decision – where applicant has been refused a protection visa - extent of impediments to removal – reviewable decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
Nunez and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 809
Secondary Materials
Migration Act 1958 – direction under s 499 – Direction No. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 3 March 2023)
DFAT Country Information Report: Vietnam, 11 January 2022
REASONS FOR DECISION
Ms A E Burke AO, Member
21 May 2024

On 11 October 2022 a delegate of the Minister, administering the Migration Act 1958 (Cth) (the Minister), cancelled YPWC's Class WE Subclass 050 Bridging E Visa under section 501(3A) of the Migration Act 1958 (Cth) (the Act).
On 26 October 2022 YPWC provided a response to the decision requesting revocation of the decision to cancel his visa for other reasons:
On New year 2013 my friend group. They made a note of 5000 pages of writing against the Communist party of VIET NAM. it’s an organisation that is against the government. At night I fled from them as I was being chased. Until today they harass my sister about me.
I’m currently in the process of her application. Which I borrowed thirty thousand dollars from friend in VIET NAM so I can get her out of there that how much the visa application costs.
I was Orphanage at the age of 9 as I don’t have living parents or relative or even support here or in VIET NAM
…
The reason I offended wich I was wrong to do is because during covid I lost my job temporarily as I needed money to support my sister in Viet nam also I need to pay the person who helped my visa application to bring my sister to Australia which costs thirty thousand dollars.
…
The risk of me re-offending is the lack off finances. But the reason I won’t re-offend is because I have full time job waiting for me when I get released.
…
I have many concerns and fears about going back to VIET NAM because the lack of human right as someone I know has been imprisonment for 15 year just for speaking the mind regarding freedom of speech, religion and basic human right for this reason I’m afraid of going back.
…
the other problems I face is that I have borrowed thirty thousand dollars from the person who lend it to me to do my sister application if I go back I’m in danger, because I don’t have money to pay it back if you allow me to stay and work I can save the money and pay him back. [sic]
On 26 February 2024 a delegate of the Minister made a decision not to revoke the cancellation of YPWC's visa. The delegate found that:
114. I have considered whether there is another reason why the decision to cancel YPWC visa should be revoked, as I am not satisfied that he passes the character test. My findings are as follows.
115. I have found that there is no information before me which indicates that any child in Australia will be affected by a non-revocation decision in this case.
116. I have also found that YPWC ties to Australia, as a primary consideration, weigh to only slightly in favour of revocation, noting in particular that he does not have any family ties to Australia, and that he was not ordinarily resident in Australia during his formative years.
117. In addition, I have found that the impediments if YPWC is removed to his home country also weigh only slightly in favour of a decision to revoke due to his employment prospects and family ties to Vietnam.
118. I have also given significant weight to the nature of the crimes committed by YPWC, which include multiple acts of drug related crime. I find crimes of this nature have the potential to have long lasting negative effects on the lives of the victims, their families and the wider Australian community. Further, I find the frequency of YPWC offending concerning, as when considered cumulatively his offences have had a serious impact on the community.
119. Additionally, I remain concerned YPWC rehabilitation remains limited and the
financial burdens that contributed to his previous offending remain. I therefore have found that on balance there remains a likelihood that YPWC will reoffend.
120. Furthermore, I have considered that the Australian community, as a norm, expects the Government not to allow non-citizens who have engaged in drug related crime to enter or remain in Australia. I give this primary consideration significant weight as well against revocation of the visa cancellation.
121. Moreover, I have considered the principle stated in the Direction that Australia has a low tolerance of criminal conduct by persons holding a limited stay visa.
122. I am cognisant that where great harm could be inflicted on the Australian community, any risk of reoffending may be considered unacceptable.
123. On balance, I find that the factors that weigh against revocation of the cancellation decision outweigh the factors in favour of revocation. Therefore, I am not satisfied that there is another reason why the decision to cancel YPWC Class WE Subclass 050 visa should be revoked. It follows that the condition under s501CA (4)(b)(ii) of the Act is not met.
On 5 March 2024 YPWC applied to the Administrative Appeals Tribunal (the Tribunal) under section 501 of the Act seeking review of the decision to refuse to revoke the cancellation of his visa, stating need to translator hard to explain and need help.
At the hearing of his application on 7 and 8 May 2024 YPWC was self-represented, and Mr Thomas Creedon, solicitor at Australian Government Solicitor, appeared for the Minister. The Minister lodged a set of paginated G-Documents and supplementary G documents. YPWC made written and oral submissions. The Tribunal was assisted by an interpreter in the Vietnamese language.
BACKGROUND
Section 501K of the Act provides that if a person applies to the Administrative Appeals Tribunal for review in the person's capacity as, inter alia, a person who applied for a protection visa, the Tribunal must not publish any information which may identify the person or any relative or other dependant of the person. As the Applicant is currently appealing to the Federal Court the refusal of the grant of a Safe Haven visa, the Tribunal has decided it is appropriate to refer to the Applicant as ‘YPWC’ throughout this decision.
YPWC is a 33-year-old undocumented Vietnamese national who arrived by boat on 22 April 2013 to seek asylum in Australia and was placed in detention. YPWC subsequently was released into the community in 2016 on a Bridging Visa. YPWC worked in Australia for a number of years as a tiler, is currently single and has no children.
YPWC has a complex and precarious migration history:
(a)19 October 2016: YPWC was granted a Temporary Humanitarian Stay visa (subclass 449) and released from detention. YPWC was then granted a subclass 050 Bridging Visa E which ceased on 19 January 2017.
(b)8 March 2017: YPWC was granted a subclass 050 Bridging Visa E which ceased on 8 July 2017.
(c)9 June 2017: the Minister lifted the section 46A bar and YPWC was invited to lodge an application for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa before 1 October 2017.
(d)12 July 2017: YPWC was granted a subclass 050 Bridging visa E which ceased on 2 October 2017.
(e)2 August 2017: YPWC lodged a Safe Haven Enterprise (subclass 790) visa application.
(f)9 August 2017: YPWC was granted a subclass 050 Bridging visa E (associated with his Safe Haven Enterprise (subclass 790) visa application lodged on 2 August 2017).
(g)7 August 2020: YPWC’s Safe Haven Enterprise (subclass 790) visa application lodged on 2 August 2017 was invalidated under section 91K of the Act.
(h)21 August 2020: the Minister lifted the section 91K bar under section 91L of the Act and YPWC was invited to lodge an application for a Temporary Protection (subclass 785) visa or another Safe Haven Enterprise (subclass 790) visa.
(i)10 September 2020: YPWC lodged a Safe Haven Enterprise (subclass 790) visa application.
(j)29 September 2020: YPWC was granted a Bridging visa E (associated with his Safe Haven Enterprise (subclass 790) visa application lodged on 10 September 2020.
(k)11 October 2022: YPWC was notified that his visa had been mandatorily cancelled under section 501(3A) of the Act.
(l)2 October 2023: YPWC’s application for a Safe Haven Enterprise (Subclass 790) visa was refused.
(m)8 January 2024: the MRD division of the AAT affirmed the decision of the delegate to refuse the Safe Haven Enterprise (Subclass 790) visa.
(n)12 February 2024: YPWC’s Bridging visa E expired (by virtue of r 050.511(1)(b)(iii) in schedule 2 of the Migration Regulations 1994 (Cth) being 35 days after the Tribunal's decision to not grant a safe haven visa).
(o)26 February 2024: the delegate made a non-revocation decision.
In His Honour Judge Wraight’s sentencing remarks of 30 April 2020, he described YPWC’s personal circumstances:
You were born in Vietnam and you have a younger sister. When you were nine years of age, your father passed away and approximately one year after your father's death, your mother abandoned you and your sister. You and your sister were taken in by family friend and you have had no further contact with your mother. You attended a Catholic school and it would seem that you learned limited English as part of your education.
In 2004, at the age of 13, you moved to another province in Vietnam to work. You lived with a friend in that province and worked on a farm.
Your sister remained in your hometown and eventually became a Catholic nun. You remained in contact with her up until the time of your arrest, however you have been unable to contact her since you have been on remand.
In 2013, while you were visiting your hometown, police became aware that you had been distributing anti-Communist leaflets. As a result, you fled the country in fear of being arrested because of your political beliefs. You travelled to Australia by boat as an asylum seeker, arriving in 2013. You were detained in various immigration detention centres for approximately three and a half years while you waited for your visa. You were granted a visa in 2017 and subsequently moved to Queensland.
In early 2019, you moved to Melbourne to pursue a relationship. You worked as a tiler in Melbourne and lived with your partner at her address in Sunshine West before moving to another address in the same suburb.
You have worked consistently since the age of 13, predominately in farming work in Vietnam, and since arriving in Australia you have worked as a tiler and have been involved in other handiwork.
Since being on remand you have completed a number of courses and certificates in relation to those courses were tendered on the plea.
You have no physical or mental health issues, nor do you have any issues with drugs or alcohol.
YPWC in his Statement of Facts, Issues and Contentions to the Tribunal, dated 15 April 2024, provided the following background to his offending:
I was born in Vietnam, I came to Australia alone on the April 2013 by boat and lived in a detention centre, in October 2016 I was approved to be released from detention with bridging visa E, I lived and worked in Brisbane for almost three years, I am a tiler. I work for …. company
In March 2019, I went to Melbourne to visit my girlfriend who lives in Sunshine West and I decided to stay permanently with her at … Sunshine West, after two weeks of being in Melbourne,
a. I started working for a man name … working in the tiling industry/trade. This only lasted for one month,
b. I then changed employers' continuing tiling for ….. After working for about a week for….. I went to collect my salary of one thousand three hundred dollars ($1300). Once I got home I realised that one hundred ($100) out of the one thousand three hundred ($1300) was different colour and it didn't feel like usual Australian currency, I came to conclusion it could be counterfeit money, I told him about situation and he suggested that I …. send him the picture of the money and he will replace it when we next meet.
c. After living in Melbourne for two months I bumped a man who I has met in a detention centre, He asked me if I able to stay at his place and look after his property for two nights he would pay me six hundred dollars ($600) plus buy me a brand new phone X and I agree to this only thinking about my financial benefit.
COMMUNITY RETURN
On April 30, 2020, I was released on time served, and I live at …. Saint Albans. After one week, I started working for a man name …. Company. And I saved money to buy a car In July 2020 with ($7300) after three days of transferring the car under my name, my car was stolen On July 20, 2020 without insurance I lost my car and only got it back ($363) from the registration plate. I was really shocked.
REOFFEND.
Not long after the Covid-19 lockdown, I returned to work and followed the Victoria stages until June 2021. I wanted to apply for a visa to bring my sister to Australia so she could have a better life, because during the Covid-19 pandemic, I temporarily lost my job, as I needed some money to support my sister and I also needed to pay the person who helped my application to bring my sister to Australia which cost of thirty thousand dollars ($30,000).
ISSUES
In his Statement of Facts, Issues and Contentions filed on 15 April 2024 YPWC conceded that he did not pass the character test for the purposes of section 501CA(4)(b)(i) of the Act and he confirmed this at the hearing. The Tribunal is satisfied that YPWC does not satisfy the character test under section 501 on account of his substantial criminal record as defined under section 501(7) being sentenced to a term of imprisonment of 12 months or more.
Accordingly, the issue for consideration by the Tribunal is whether the cancellation of YPWC’s visa should be revoked, taking into account the relevant considerations in Ministerial Direction No 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA. In essence, the Tribunal must be satisfied there is another reason why the original decision should be revoked.
LEGISLATIVE FRAMEWORK
The Tribunal operates under the Administrative Appeals Tribunal Act 1975 (the AAT Act). Section 25 of the AAT Act allows the Tribunal to conduct a review of decisions made under other pieces of Commonwealth legislation, including the original decision made concerning YPWC. Under section 43(1) of the AAT Act, when making a decision, the Tribunal may exercise all of the powers of the original decision-maker. The Tribunal must review the merits of the matter under review and come to the correct or preferable decision.
Visa cancellation on character grounds is established in section 501 of the Act. Under section 501(3A)(a)(i) the Minister must cancel a visa if satisfied a person has a substantial criminal record. This requirement is provided for in section 501(6)(a), and a substantial criminal record comprised of a sentence to a term of imprisonment of 12 months or more is provided for in section 501(7)(c).
The power to revoke (or reverse) this mandatory cancellation is found in section 501CA of the Act. The mandatory cancellation may be revoked if a person either passes the character test, or the Minister is satisfied that there is another reason why the original decision should be revoked (section 501CA(4)(b)).
A Direction has been made under section 499 of the Act that provides guidance a decision-maker must take into account when considering revocation under section 501CA. This document is known as Direction No. 99, issued on 23 January 2023, which came into effect on 3 March 2023 (the Direction). Part 2 of the Direction sets out ‘primary’ and ‘other’ considerations that must be considered, and each one is accompanied by specific factors that inform the making of a decision.
Part 1 of the Direction includes a Preamble, that identifies Objectives and Principles. The Principles (5.2) provide the framework for decision making and are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
EVIDENCE
YPWC’s Offending

The following table has been derived from a national criminal history check relating to YPWC produced by the Australian Criminal Intelligence Commission on 21 October 2022:

COURT DATE

OFFENCE

COURT RESULT

8 Sep 2022

CULTIVATE NARCOTIC PLANTCANNABIS

2 YEARS IMPRISONMENT.

8 Sep 2022
ESCAPE FROM CUSTODY FROM

POLICE MEMBER

1 YEAR IMPRISONMENT.
9 MONTHS OF SENTENCE

CONCURRENT.

30 April 2020

CULTIVATE NARCOTIC PLANTCANNABIS

363 DAYSIMPRISONMENT.

30 April 2020

POSSESS COUNTERFEIT MONEY

CONVICTED AND FINED $500.00.

In his sentencing remarks on 8 September 2022 His Honour Judge Rozen described YPWC’s offending:
As a result of information provided to police by Powercor, on Friday 16 July 2021 Detective Senior Constable … of Victoria Police attended at …. Whilst at the premises DSC … was made aware by Powercor that they had seen a suspicious white van driving past the premises in the last hour or so. The van was said to have been driven by an Asian male wearing a high-vis top. A Powercor worker advised DSC …that a man standing in the park across the road looked like the same Asian man who was seen previously in the white van driving suspiciously past the premises.
DSC … then observed an Asian male standing in the park. The man was wearing a blue baseball cap and a yellow high-vis top over a blue jumper and black tracksuit pants. DSC ... approached the man, who was you, and identified himself as a member of Victoria Police and produced his Victoria Police identification on a lanyard that was around his neck. He then asked you what you were doing. You produced a proof of age card in your name and you then pointed down the street and said you were visiting a friend but could not provide any further details. You appeared nervous and you were averting your eyes.
Whist DSC … was inspecting your proof of age card you ran away. DSC …. gave chase and yelled, 'It's the police; stop running'. You did not comply with the direction and continued running. DSC …. continued to give chase. DSC Symons followed you down numerous streets in, but was unable to catch up to you. A member of the public, ….., stopped his vehicle to ask if DSC …. was okay and offered him a lift. DSC …. got into the passenger side of Mr … vehicle and the pursuit was continued.
Upon catching up to you, still running, DSC … exited the vehicle and again began chasing you. DSC … was again unsuccessful in apprehending you. Mr … had continued to follow in his vehicle and when he pulled alongside DSC … he was asked by DSC … for assistance to stop you. Mr … got out of his vehicle and caught up to you. Once he caught up to you you immediately stopped running and broke down crying. DSC …. then arrested you and placed you on the ground, handcuffed behind your back. He advised that you were under arrest for cultivating cannabis.
When DSC ….. searched you he found a garage remote and regular keys, including a black Ford vehicle key. He also took possession of an Apple iPhone and a wallet. DSC … then walked you to Mr … vehicle and placed you flat on the ground. While DSC … was returning to Mr … vehicle to obtain his details you sprung to your feet and again ran away, still handcuffed to the rear. DSC …. again gave chase, following you through numerous streets in Caroline Springs, whilst directing you to stop. DSC …. attempted to deploy OC capsicum spray to no avail.
You began running away again and DSC …. was unable to continue chasing you and lost sight of you. DSC … borrowed a mobile phone from a member of the public and used it to call Melton CIU to request assistance. Numerous police units were deployed to assist with the search. At approximately 1 pm you were found hiding in the backyard of…., where you were arrested.
Police attended …. and executed a search warrant under the Drugs, Poisons and Controlled Substances Act. No one was present at the premises and a hydroponic setup was located. During the search police located 115 cannabis plants growing hydroponically throughout the house:
The plants were analysed and confirmed to be cannabis, weighing approximately 59.5 kilograms.
The hydroponic system was quite sophisticated. Each of the plants was being grown in a large black plastic pot with a drip watering configuration affixed into the bottom of each pot. Various 500-watt light globes were connected to light shrouds that were affixed to the ceiling. Each light socket was powered by electrical transformers that were, in turn, powered by a master power board which was located at the entrance of room 3 in a cupboard. Each room had silver foil ducts attached to the ceiling and fitted to a charcoal filter which assisted in concealing the overpowering odour of cannabis emanating from each plant caused by the heat generated from each light globe. The mature cannabis plants were observed to have a significant number of cannabis buds growing from each branch.
In his sentencing remarks on 30 April 2020 His Honour Judge Wraight described YPWC’s offending:
Upon entry, police observed you inside at the rear of the property, hiding behind a black tent set up in the main living area. Once you saw the police, you attempted to flee by running outside through the rear door. Police pursued you and secured you in the backyard before arresting you.
You were searched and a black leather wallet was located in your pants pocket, containing an identification card in your name and a counterfeit $100 note.
Police searched the property and located 84 cannabis plants of varying maturity growing in hydroponic conditions.
Each room had been modified with multiple light shrouds with high wattage globes, pots, electrical wiring, power transformers and watering systems. Air filters had been installed to cover the scent of the cannabis, and windows and doors had been covered to conceal the grow rooms.
Each room had been modified with multiple light shrouds with high wattage globes, pots, electrical wiring, power transformers and watering systems. Air filters had been installed to cover the scent of the cannabis, and windows and doors had been covered to conceal the grow rooms.
Police located various bottles of chemicals and what appeared to be a watering system in the bathroom. The bathtub was full of a brown watery substance and there were black hoses leading from the bathtub to the corridor nearby.
On 10 May 2019, the seized cannabis plants were examined by a botanist and confirmed to be Cannabis L, weighing a total of 62.28 kilograms.
Police investigations confirmed that the property had been tenanted since 18 March 2019. The purported tenants on the rental documents are suspected by police to be falsified identities, and the contracted tenants have not been identified.
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)
The Direction requires the Tribunal to keep in mind 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 (8.1(1)). The Tribunal must have particular regard to the principle that remaining in Australia is a privilege given the expectation that non-citizens are law-abiding, respect important institutions and will not cause or threaten harm to individuals or the Australian community.
This primary consideration also requires the Tribunal to consider two specific elements: the nature and seriousness of a non-citizen’s conduct to date; and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct (8.1(2)(a)-(b)).
The nature and seriousness of the conduct (paragraph 8.1.1)
YPWC did not contest he had committed serious crimes and accepted that he failed the character test.
Submissions
YPWC in his written and oral evidence to the Tribunal stated:
·He does not dispute that he does not satisfy the character test.
·He was orphaned in Vietnam when he was 9 years old and had no family and asked that his circumstances of a difficult upbringing be taken into consideration.
·The death of his father when he was 9 years of age and his mother leaving them never to return greatly impacted him and his sister; as a consequence of this he had to leave school at year 4 as he could not meet the expense; he and his sister lived with a friend of his father whom he helped around the house and in his rice fields until he was 12 years of age when he went to work in another village looking after cattle; then at 15 he went to work on a coffee plantation.
·He hoped to continue to live and work in this great country Australia, which has great human rights.
·He committed to comply with all laws and conditions of the Australian Department of Home Affairs.
·The reason he offended, which he understood was wrong to do, is because during Covid-19 he lost his job temporarily and he needed money to support his sister in Vietnam.
·He also needed to pay the person who helped with the visa application to bring his sister to Australia which cost thirty thousand dollars ($30,000).
·He had never hidden anything from the Home Affairs.
The Respondent submitted that YPWC’s offending should be viewed particularly seriously for the following reasons:
·YPWC’s drug-related offending for which he was charged was objectively serious, as reflected by the prescribed maximum penalty of 15 years’ imprisonment under the Drugs, Poisons and Controlled Substances Act1981 (Vic) (DPCS Act).
·YPWC knowingly and willingly participated in an illicit scheme to cultivate a substantial amount of cannabis plants on two occasions.
·YPWC’s second offending occurred only 14 months after being convicted in the County Court on the first occasion. And while his role in this scheme was described as ‘menial’, by the sentencing Judge; the Judge also observed it was a necessary part of the operation for the ‘crop to flourish.
·The quantity of cannabis plants discovered at the premises on both occasions was well above the weight prescribed as a commercial quantity under Schedule 11 of the DPCS Act, and the County Court found it was related to trafficking.
·The scheme YPWC was involved in for cultivating the cannabis plants was sophisticated: during searches of the two premises, police discovered a hydroponic system in multiple rooms with efforts made to minimise detection.
·The seriousness of YPWC’s offending was reflected in the sentencing remarks made by Judge Rozen sitting in the County Court of Victoria:
oThe offending was motivated by financial gain with seeming disregard for the grave harm caused to victims of the drug trade;
oThe second offending occurred within a short time of being told by the Court when sentenced on the first occasion that the crime was serious;
oTaking into account YPWC’s previous offending, the Court was not willing to accept YPWC was a low risk of reoffending despite being assessed as such in a pre-sentencing assessment report, in relation to which the Judge queried whether the assessor had been aware of YPWC’s prior occasion of offending;
oHis escape from a police member was also characterised as serious.
Findings
The Tribunal found YPWC to be a frank and courteous witness who willingly disclosed his offending, made no attempt to minimise his actions or to seek to apportion blame to others or mitigating factors for his criminal activity. Whilst YPWC offered reasons for his need to turn to crime for fast money he also provided frank admission he had been motivated by greed.
There was no evidence before the Tribunal that YPWC’s criminal offending involved violence. Whilst YPWC did try to evade police on several occasions he never displayed any aggression to officers when he attempted to flee custody.
The Tribunal finds YPWC has received considerable custodial sentences and finds the sentences imposed by the courts is indicative of the seriousness of his actions. The fact the Court determined incarceration was required for his offending instead of community correction orders indicates the gravity of his actions as viewed by the Australian public.
The Tribunal finds YPWC’s offending was escalating and his direct involvement in criminal behaviour was increasing.
Overall, the Tribunal found that the nature and seriousness of YPWC’s conduct weighs heavily against the revocation of the cancellation of his Visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
This part of the primary consideration requires the Tribunal to have regard to the Government’s view that ‘the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases’ (8.1.2(1)).
Submissions
YPWC in a letter date 24 November 2022 as part of his appeal against the revocation of his Visa submitted:
I am sincerely sorry for my stupidity and actions, wasting the courts time regarding these matters.
Whilst incarcerated I have had plenty of time to think about my past and mistakes I have made, it hurt and
embarrassed me and I disrespected the integrity of my sister and friends, I won't ever be led by criminal activity again.
After spending time in detention and prison I treasure the freedom which I took for granted. In prison I have been following my catholic religion, religiously as well as learning more English and getting counselling advice, engaging in all activities and any form of study to better myself. I have learnt my lesson and now I'm willing to put my head down and be a lawful citizen in the Australian community.
I give an oath never to engage in criminal activity again, and am hopeful to get one more chance to prove myself, and thank the immigration office for the opportunity to be eligible to write this visa revocation application.
I hope that this information will provide enough evidence to outlay my suitability to be an Australian citizen and I hope to gain your favorable reply.
YPWC submitted in his written and oral evidence to the Tribunal:
·There was no need to worry about him being a financial burden:
·He would not reoffend because he would not face the financial burdens that contributed to his previous offending.
·He was a good tiler, with four years of experience in the job, and he can earn a pretty high salary because everywhere in Australia, construction and tiling jobs were very popular.
·If he is allowed to return to the Australian community, his friend has promised to support him with accommodation and work in her business; he also had a work offer as a tiler from his former boss and he would prefer tiling than working in his friend’s fish and chip shop;
·His sister had a hard life in Vietnam where she lived and worked for free in a Catholic orphanage but was not a nun; he had wanted to bring his sister to Australia for a better life.
·A friend had put him in touch with a migration agent based in Vietnam who advised him he was not able to sponsor his sister to Australia as he was not a citizen or permeant resident; the agent had advised his sister would have to apply by other means and it would cost $30,000; as he did not have the money his friend offered to help him pay the agent and he had been paying it back until he went to jail – he thinks he has paid back $3,000.
·When he went to jail he and his sister lost contact with the migration agent and his sister’s application has not progressed and he was unsure if he still owed his friend or the migration agent the remainder of the $30,000 but if he did his friend who has offered him accommodation and worked for has also offered to help him pay off all his debt.
·He would not reoffend as he needed to work to pay his debt and to see if he could assist his sister to come to Australia.
The Respondent submitted:
·Should YPWC reoffend in a similar manner, he would cause not only financial harm, but also serious social and physical harm to the broader Australian community.
·The illegal cultivation of cannabis plants encourages and facilitates the sale and distribution of cannabis in Australia through organised crime, which in turn undermine Australian drug and criminal laws.
·The Tribunal should be guided by the Court in relation to YPWC’s risk of recidivism, noting the Court did not accept an assessment made on 29 August 2022 that YPWC was a ‘low’ risk of re-offending.
·Whilst the assessment report cited was not before the Tribunal; the Tribunal nevertheless had the courts’ assessment of YPWC’s risk of reoffending as evidenced by its determination to impose a custodial sentence.
·While YPWC has expressed remorse for his offending, he has not provided any evidence to support his claim that he would not reoffend if faced with the same set of pressures in the community that contributed to his prior offending.
·It was unclear from the evidence if the factual circumstances that led to YPWC’s offending continue to exist: the goal of bringing his sister to Australia, and the associated $30,000 debt.
·However, the evidence did indicate that YPWC continued to earn money during COVID-19 and was not in financial stress.
·The Tribunal therefore could have no faith YPWC would not reoffend as the evidence indicated he had engaged in illegal cultivation of cannabis for purely financial gain and could easily be tempted again.
·This fact should give the Tribunal great concern as YPWC had reoffended some 14 months after he had been released from prison; demonstrating he had gained no insight into his offending, had not taken concrete steps to rehabilitate and understood completely that his reoffending would put his migration status at risk.
The Responded conceded there were no matters which indicated YPWC had engaged in behaviour of concern whilst imprisoned or detention.
The Responded conceded YPWC had engaged in programmes during his time in prison, with Crossroads Australia, the Prison Fellowship and Gospel Group, and Kangan TAFE.
The Respondent accepted that YPWC had support from friends with accommodation and work if he was allowed to remain in Australia.
The Respondent contends that Primary Consideration 1 weighs significantly against the revocation of the cancellation of YPWC ’s visa.
Findings
The evidence before the Tribunal does not give it comfort that YPWC is a low risk of reoffending or that he has learnt from his time in prison. The Tribunal did not find YPWC has gained insight into his offending or has rehabilitated so that he will not be tempted again by the prospect of easy financial gains through criminal enterprise.
The Tribunal arrived at this conclusion based on the remarks of His Honour Judge Wraight which made no impression on YPWC as he reoffended some 14 months later and was again in custody. His Honour’s sentencing remarks on 30 April 2020 concluded that he did not consider specific deterrence carry weight in his sentencing discretion of YPWC as he had assessed YPWC’s prospect of rehabilitation as very strong:
You wrote a letter to the Court which provides some background history in relation to your life in Vietnam and the experience of spending time in detent for a number of years. You state that you were naive and that was why you became involved in the offending. You state that being in custody for approximately 12 months has made you a more tolerant and mature person and has taught you to be more responsible. You confirm that you have engaged in a number of courses in custody. You also state that you attend mass in the prison every week and have developed close friendships with others who you pray with every night.
You come before the court with no prior criminal convictions, you have an excellent work history and have demonstrated good character, which is supported by the character references that have been provided.
Since being in custody, rather than simply waiting for your matter to be determined, you have engaged in education and have been involved in the church community within the prison system. You also have strong community support. Thus, in my view, your prospects of rehabilitation, in all the circumstances, are able to be assessed as very strong.
General deterrence is of course a prominent sentencing consideration in cases such as this. A message needs to be sent to others in your position who may be tempted to engage in the cultivation of cannabis, even as a crop sitter, that they will face gaol terms. Just punishment and denunciation of your conduct are also relevant sentencing considerations, so much was conceded by your counsel. However, in the circumstances for the reasons already outlined in relation to your prospects of rehabilitation, in my view, specific deterrence need not carry weight in the sentencing discretion.
It was also submitted on your behalf that the circumstances in relation to your visa have created great uncertainty for you, given you face the prospect of deportation. I accept this concern has weighed heavily during your time on remand, and that the principles in in Guden v The Queen application in this instance.

The Tribunal relied upon His Honour Judge Rozen’s sentencing remarks of 8 September 2022, where he concluded that only a custodial sentence would act as a deterrent to YPWC’s risk of reoffending. His Honour did not accept YPWC was a low risk of reoffending:
You are 31 years old and were 30 at the time of your offending. You have one relevant prior conviction. On 30 April 2020, this court sentenced you to 363 days imprisonment for one charge of cultivation of a narcotic plant. The circumstances of that offending were strikingly similar to your current offending. In May 2019, you were found hiding at a property in Point Cook which was being used to grow a large number of cannabis plants hydroponically. The seized plants weighed 62 kg.
His Honour Judge Wraight sentenced you on the basis that your role in the enterprise was limited and that you were at the premises on one day to water the plants. His Honour noted your lack of prior convictions and the references tendered on your behalf that described your involvement in the offending as ‘entirely out of character’. You wrote a letter to the Court explaining that you were ‘naïve and that was why you became involved in the offending’. In the letter, you told the Court that ‘being in custody for approximately 12 months [had] made you a more tolerant person and [had] taught you to be more responsible’.
His Honour concluded that your prospects of rehabilitation were ‘very strong’ and that specific deterrence ‘need not carry weight in the sentencing discretion’. Taking into account all relevant considerations the court sentenced you to the time you had served on remand which was slightly less than one year in prison.
I note that the current offending occurred within 15 months of your release from jail.
You were assessed and a report dated 29 August 2022 was provided to the court. Somewhat surprisingly you were assessed as a low risk of reoffending according to the level of service risk assessment tool. On this basis, and your willingness to engage with a community correction order, you were assessed as suitable for such an order. It is unclear whether the assessor was aware of your prior conviction. In any event, in light of your past history, and the evidence before the court, I do not accept that you are a low risk of further offending.
The court is required to have regard to the assessment outcome report, but, as the author notes, any sentencing disposition is ultimately a matter for the court. Despite the assessment of you as suitable for a community correction order, and the prosecution concession that a community correction order combined with a term of imprisonment is appropriate, I decline to sentence you to a community correction order. I note that your counsel's submissions did not seek such a disposition.
The reason that I have not sentenced you to a community correction order is that the principal sentencing considerations in your case are deterrents, both specific and general, and just punishment. The previous sentence imposed by this court failed to deter you from offending. It seems unlikely that a sentence served in the community will achieve that this time. As has been recognised by the Court of Appeal, although a community correction order clearly has punitive aspects, it clearly is also considerably less punitive than a period of imprisonment.
I consider that the punitive purpose of your sentence cannot be achieved other than by a sentence of imprisonment. There is no need in your case for me to impose the sorts of conditions that are frequently imposed as part of a community correction order to promote the rehabilitation of the offender. You suffer from no mental health issues and you have no history of drug addiction.
The only condition identified in the assessment report as appropriate is an unpaid community work condition which is essentially punitive in character. As noted, I consider that the punitive component of your sentence is better addressed by a custodial sentence.
The Tribunal also had evidence from prison and detention records that YPWC has been a model prisoner; the Serco - Individual Management Plan – YPWC 10 September 2023 stated:
Upon observation detainee YPWC is a very polite and respectful person. He is always smiling and laughing. He gets along with everyone in the …. compound.
He spends most of his time playing pool with all of the detainees in the …. compound. He appears to be very happy when playing. He attends all the activities set throughout the week. He mostly enjoys attending the sports activity and the coffee club activity. I believe that YPWC is very approachable and always loves to make jokes. He always attends the mess for lunch and dinner. He has not complained about the food as of yet. He does not attend NORTH Medical to see IHMS for medication. He has also not been a part of any major Incident as of yet.
The Tribunal did place some weight on YPWC’s friend’s testimony to the Tribunal. YPWC’s friend gave frank evidence to the Tribunal about her disappointment at YPWC’s offending. She had also found him to be a friendly hard-working person, willing to help others. She conceded that she had not had an opportunity to visit YPWC whilst in prison or detention as she was very busy with her 2 small children and running her own business. The Tribunal accepted her offer of accommodation and work was genuine and would provide stability to YPWC if he was allowed to remain in Australia.
However, on balance the Tribunal found the evidence did not give it confidence YPWC was a low risk of reoffending and whilst they found YPWC to be a pleasant amiable witness it was not convinced he would not once again become involved in criminal activity for financial gain.
The Tribunal did not accept the Respondent’s conclusion that YPWC had been misleading about his capacity to work and earn during COVID-19 as YPCW’s statement clearly indicates he temporarily lost his job in the COVID-19 lockdown. The Tribunal did not find YPCW had claimed he was in financial stress because he had no work during the lockdown, but that he was in financial distress because for a period he had been unable to work because of the lockdown rules. The Tribunal found YPCW’s friend evidence corroborated this finding.
The Tribunal considered the nature and seriousness of YPWC’s offences, weighs against revoking the mandatory cancellation of the visa.
Primary Consideration 2: Family violence committed by the non-citizen (paragraph 8.2)
The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence.
Submissions
YPWC made no submissions in respect of this consideration.
The Respondent submitted there was no evidence that YPWC had engaged in family violence and accordingly, contended this consideration should be assigned neutral weight.
Findings
The Tribunal finds there is no evidence that this primary consideration is engaged.
Primary Consideration 3: Strength, nature and duration of ties to Australia (paragraph 8.3)
There are several elements to this consideration. It requires consideration of any impact of a decision on a non-citizen’s immediate family members in Australia who are citizens or have a right to permanently reside (8.3(1)). The Tribunal should give more weight to ties where they have a child who is a citizen, or resides here permanently, and consideration to family or social links more generally (8.3(2)-(3)).
The Tribunal must also give consideration to a non-citizen’s ties to the community more broadly, having regard to the length of residence in Australia (8.3(4)). The Tribunal must give considerable weight to the fact that a non-citizen has resided in Australia during and since their formative years, regardless of when their offending commenced or its severity, with more weight given to any positive contribution to the community in this time (8.3(4)(a) (i-iii)).
Submissions
YPWC submitted in his written and oral evidence to the Tribunal that:
·He had a long-standing connection to Australia, having lived here for 11 years.
·Since arriving in Australia, he has worked continuously, contributing his skills and paying taxes.
·If allowed to stay he will continue to contribute to assist with addressing the skilled labour shortage in Australia and pay Australian tax under his registered ABN number.
·Because of the skilled worker shortage in Australia, if his visa was cancelled, it would only add to the shortage.
·He had many supportive friends in the community and strong ties to the Catholic church in Australia.
The Respondent submitted:
·YPWC is single and has no children.
·That whilst YPWC has lived in Australia for 11 years he has spent limited time in the community having been imprisoned and in detention for considerable periods of time.
·Notwithstanding, YPWC has friends in the Australian community who may be affected if he is removed from Australia the Tribunal should give limited weight on these ties due to the relatively short time he has been in the Australian community, noting that he was not ordinarily resident in Australia during his formative years.
·While YPWC did not begin offending soon after his arrival in Australia, his arrest in 2019 demonstrated that he spent less than 6 years in Australia before engaging in criminal activity.
The Respondent contended that the Tribunal should assign limited weight to this Primary Consideration.
Findings
The Tribunal found whilst YPWC had lived in Australia for several years, had a small supportive friendship network and a solid work history there was limited evidence of any substantial social or other ties to Australia.
The Tribunal found YPWC had no immediate family members in Australia.
The Tribunal found YPWC had not spent any of his formative years in Australia.
The Tribunal found on the evidence YPWC’s employment and involvement in his community had contributed positively to the Australian community but only to a limited degree.
The Tribunal finds on balance that this consideration weighs slightly in favour of revocation.
Primary Consideration 4: Best interests of minor children in Australia affected by the decision (paragraph 8.4)
The Tribunal must determine whether or not a decision not to revoke the visa cancellation is in the best interests of a child affected by the decision (8.4(1)). The interests of children should be considered individually, and a range of specific factors are identified as relevant (8.4(3)-(4)).
Submissions
YPWC’s evidence was he was single and had no children.
YPWC’s friend, who is married, has 2 small children and runs her own small business, provided a written statement and oral evidence to the hearing. YPWC’s friend described YPWC as a gentle, caring, hardworking man who had been very good with her first child as a baby when they were living in a shared household prior to YPWC’s imprisonment in 2022.
The Respondent submitted there was no evidence of YPWC having any continuing relationship with any minor children in Australia. The Respondent therefore contended this primary consideration should be assigned neutral weight.
Findings
The Tribunal finds as there was no evidence that YPWC played a positive parental role in any minor children’s lives this primary consideration was not engaged.
Primary Consideration 5: Expectations of the Australian Community (paragraph 8.5)
This consideration expresses in normative language that where a non-citizen has breached the expectation that they obey the law, or engage in serious conduct in breach of the expectation, that they not be allowed to remain in Australia (8.5(1)). The Direction also provides that non-revocation may be appropriate due to the particular nature of character concerns that arise, including from acts of family violence, and commission of crimes against government representatives or officials, regardless of whether there is a measurable risk of physical harm to the Australian community (8.5(2)-(3)). The Tribunal is not to conduct an independent assessment of what might constitute community expectations in a particular case (8.5(4)).
The Direction highlights specific categories of identified offences: 8.5(2)(a) - acts of family violence; 8.5(2)(c) - commission of serious crimes against, inter alia, women and children, and serious crimes of a violent or sexual nature; 8.5(2)(d) - commission of crimes against government representatives due to the positions they hold, or in the performance of their duties.
Submissions
YPWC submitted in his Statement of Facts, Issues and Contentions to the Tribunal:
a)This reason I wholeheartedly vow to put my head down sorry to the immigration department, Australian laws and the community, Because I just only thinking about myself and financial benefits that I made wrong decisions, and also I am sincerely sorry for my stupidity an actions wasting your time and court times regarding these matters.
b)and the whole time in prison and detention centre, I have had plenty of time to reflect on my past actions and I am very remorseful for the choices I have made, furthermore I acknowledged that I made wrong decisions which has resulted in consequences hence time in prison, detention centre and loss my visa, as well as put my migration to Australia in jeopardy.
c)Since being in a prison and detention centre, I have participated in all the courses which make me better as well as being a devoted member of the Catholic faith, participating in weekly church service, in group activities and praying for myself to be a better person.
d)and in prison I did some certification courses and I took it to the prison staff and asked them to help me send it to immigration at [email protected], they then did that for me, but I don't see it is on the decision maker by decision record. So I hope you can please take it into consideration.
The Respondent submitted:
·The Direction makes it clear that the Australian community expects non-citizens to obey Australian laws whilst in Australia and that 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’.
·Justice Mortimer has held that this consideration is ‘inextricably linked’ to the protection of the Australian community and that the applicable Direction makes it clear that persons convicted of serious crimes should not be granted or continue to hold a visa. Ultimately, where the expectations of the Australian community fall in favour of non-revocation, the task of the Tribunal is to decide how much weight it should give to those expectations.
·The circumstances of YPWC’s case are not such that a higher level of tolerance may be afforded to him; given he arrived in Australia as an adult in 2013; has spent a total of 11 years in Australia, 3 years of which he was in prison for drug-related offending and offending related to escaping police custody.
·YPWC’s serious offending occurred within 6 years of his arrival in Australia and is of such seriousness that the Australian community would expect that he should not hold a visa to remain in Australia.
The Respondent contended that Primary Consideration 5 weighs significantly against the revocation of the cancellation of YPWC’s visa.
Findings
The Tribunal defers to numerous decision-makers who have grappled with this determination, noting there is not a consistent view of the expectations of the Australian community. Most in the community would clearly consider YPWC has no right to stay in Australia because of his actions while some may evoke the Australian notion of a ‘fair go’ noting YPWC has served his sentence, shown great remorse, and will live with the consequences of his actions for the rest of his life.
The Tribunal considered the matter of FYBR v Minister for Home Affairs [2019] FCAFC 185:
64. As Mortimer J said in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [127], the visa cancellation and refusal powers conferred by s 501 of the Act involves the evaluation of "competing and conflicting interests as between an individual who may be excluded from Australia and the interests of the Australian community". The relative weight to be ascribed to each consideration bearing on the exercise of the discretion is a question in respect of which reasonable minds may differ. The Direction generally requires the decision-maker to give relatively more weight to some considerations than to others so as to achieve like results in like cases, so far as that may be done without imposing impermissible fetters on the discretion conferred on the decision-maker. The expectations of the Australian community is one such consideration.
…
73. Before proceeding further it must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do. The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker's own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl 11.3 of the Direction. The clause implicitly recognises that the decision-maker's assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
74. I have accepted the Minister's submission that cl 11.3 is intended to give effect to the principle that the Minister may make a statement of the government's views about the expectations of the Australian community, which statement may be acted on by the person conferred with the power in a particular case, as recognised in Uelese. In my view, the task of the decision-maker is to identify what is the "government's view" about community expectations in the particular case, to "have due regard" to that view and to "generally" afford that view more weight than other non-primary considerations in accordance with cl 8(4). The phrase "may be appropriate" does not permit the decision-maker to equate the expectations of the Australian community (as expressed in cl 11.3) with the decision-maker's own view as to the preferable outcome in the ultimate exercise of the discretion. To construe cl 11.3 in that way would be to ignore the fact that the clause is intended to express a consideration that is capable of being given more weight relative to "other considerations" in the exercise of the discretion, as cl 8(4) of the Direction generally requires. The primary judge was correct to say that importing into cl 11.3 all countervailing factors bearing on the ultimate decision would render cl 8(4) of the Direction unworkable.
75. Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen's conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
76. The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government's assessment of community expectations is "generally" to be afforded greater weight than the "other considerations" listed non-exhaustively in cl 12. The word "generally" contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors arising for consideration under cl 12. There may be cases in which it is not appropriate to give the community expectations discerned under cl 11.3 any weight at all.
77. In my view, the degrees of tolerance referred to in cl 6.3(5) and cl 6.3(7) are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion. They are factors that may be taken into account in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen's character concerns or offences.
…
103.The community expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of "what would the community expect in this case?" It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in-between the community expectation will not express or require one or the other. That is a matter for the decision-maker.

The Tribunal considered that a finding proportionate to the nature and circumstances of YPWC’s offending, which has resulted in serious harm to the community, is that this consideration weighs heavily against revocation.
The Tribunal does consider given the very serious nature of YPWC’s offending that the Australian community would expect YPWC's visa to remain cancelled simply because of the nature of the offence.
The Tribunal noted there is no evidence that YPWC has ever been charged or convicted of causing physical harm to anyone in the broader Australian community.
Overall, The Tribunal found the Australian community would expect someone with YPWC’s disregard for Australian laws and conventions not to be granted a Visa. Accordingly, the Tribunal found this Primary Consideration weighs strongly in favour of affirming the Reviewable Decision.
OTHER CONSIDERATIONS
In making a decision under sections 501(1), 501(2) or 501CA(4) of the Act, the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(i)legal consequences of the decision;
(ii)extent of impediments if removed;
(iii)impact on victims;
(iv)impact on Australian business interests.
Legal consequences of the decision (paragraph 9.1)
The Direction reminds decision-makers to be mindful that unlawful non-citizens are liable for removal from Australia as soon as reasonably practicable (see section 198 of the Act), noting that section 197C(1) of the Act provides that, for the purposes of section 198, it is irrelevant that Australia has non-refoulement obligations in respect of an unlawful non-citizen.
Submissions
YPWC submitted in his written and oral evidence to the Tribunal:
·He could not possibly return to Vietnam because of everything that has happened in his life, and his life would be in danger because the death penalty could be applied to him.
·He had fled Vietnam in 2013 because he feared the Vietnamese authorities might harm him for distributing flyers that criticised the communist regime.
·As an orphan in Vietnam, he was never registered in a household registration book and did not hold any identity documents, and this impacted his rights, opportunities, and access to services in Vietnam. He feared he would face the same restrictions if he was to return to Vietnam.
·That many things have happened since he arrived in Australia which also made him fearful of returning to Vietnam. As a result of these incidents, the Vietnamese authorities will be aware that he has sought asylum in Australia. First his information was leaked by the Department of Home Affairs (Department) in a data breach. And secondly whilst in detention at Yongah Hill, the Department arranged for the Vietnamese 'A18' to interview him.
·In 2017 and 2018, he was briefly involved with the Viet Tan - a group that promotes democracy in Vietnam.
·He was currently appealing to the Federal Court about the refusal of his Protection Visa.
·Since he had been place in detention again, he was suffering from a great deal of stress and anxiety because of the insecurity of his situation. Having no idea when he would be released or if he would be allowed to stay in Australia was extremely difficult.
YPWC reiterated to the Tribunal in his evidence that he continued to have a great fear of being forced to return to Vietnam. YPWC’s evidence was he firmly believed he would be arrested on his return to Vietnam, tortured and imprisoned for an indefinite period of time. YPWC’s evidence was he held this view for three reasons: his involvement in distributing anti-communist leaflets in 2013, his involvement with Viet Tan in Australia and his drug-related convictions in Australia.
YPWC’s evidence was he had never been persecuted for practicing his Catholic faith in Vietnam and believed if he returned, he would be able to continue to practice his faith openly.
Distributing anti-communist leaflets in 2013
YPWC’s evidence was he had fled Vietnam in 2013 because he feared persecution from the Communist Government andthat he still held this fear 11 years after the event as he believed the Vietnamese authority had identified his involvement in distributing the anti-communist/anti-government flyers. YPWC stated he had fled in 2013 on the advice and with the assistance of a local priest, and he had remained in contact with the priest who came to visit him in Australia in 2019. He had not recently had contact with the priest as he was now critically unwell. YPWC learnt from a friend who had also been involved in the distribution of the leaflets that his friend had become a fugitive as the government had issued a search warrant for him and he had to flee to Thailand and has now been granted asylum in USA.
Involvement with Viet Tan in Australia
He had been actively involved with Viet Tan for about a year in 2017 whilst living in Brisbane as he believed in their cause of opposition to the corrupt communist government in Vietnam. He had attended an anti-Vietnamese government protest and had been photographed at the event. He feared the Vietnamese government would persecute him for his political activity in Australia as the Vietnamese government is very hostile to the activities of Viet Tan.
Drug-related convictions in Australia
YPWC’s evidence was he feared being sent to prison again in Vietnam for his involvement in the cultivation of cannibais in Australia as the Vietnamese government was very anti-drugs. He feared he would be considered a drug user by the Vietnamese Government as he had been to prison in Australia for drug crimes and he would be severely punished as they have no tolerance of illegal drug use in Vietnam.
The Respondent submitted:
·A decision to affirm the decision under review would result in arrangements being made to remove YPWC from Australia to Vietnam.
·YPWC claims to fear harm should he be returned to Vietnam and has raised a number of protection claims in support of his application for a Safe Haven Enterprise (Subclass 790) visa that are relevant to the issue of whether Australia’s non-refoulement obligations are engaged.
·YPWC claims to fear harm on the basis of his religion, his political views, as a failed asylum seeker and for having been convicted of drug-related crimes.
·In light of the MRD’s decision of 8 January 2024, which affirmed a decision of a delegate of the Respondent refusing to grant YPWC a protection visa, the Tribunal should find that these claims have been finally determined and that no protection findings have been made. In particular the MRD:
oFound the Applicant did not face a real chance of serious harm by authorities upon return to Vietnam for his distribution of flyers in January 2023.
oWhile accepting YPWC had engaged in activities with the Viet Tan in Australia, the Tribunal disregarded these claims in accordance with section 5J(6) of the Act because it found he engaged in these activities for the purpose of strengthening his claim to be a refugee.
oFound YPWC could register for household documentation upon his return to Vietnam.
oFound YPWC’s $30,000 loan, of which $27,000 had yet to be repaid, did not raise concerns, as he had borrowed money from a friend who had not threatened him.
oFound that while YPWC may struggle financially, he would not suffer significant economic hardship, nor would he be denied access to basic services.
oAccepted YPWC would continue to be a practising Catholic upon return to Vietnam but did not accept he was involved in anti-Vietnamese government protests and based on country information, found there would be a remote risk that he would face persecution as a Catholic in Vietnam.
oDid not accept YPWC would face a real chance of serious harm based on his criminal convictions in Australia.
oFound that YPWC would not face serious harm upon return to Vietnam as a failed asylum seeker.
·Given these circumstances the Tribunal should consider the potential breach of Australia’s non-refoulement obligations that might arise from its decision; and determine that the MRD’s decision is a reliable and proper basis upon which to find that this is not a case which engages Australia’s non-refoulement obligations such that if YPWC was to be returned to Vietnam, no potential breach of Australia’s non-refoulement obligations arises.
Accordingly, the Respondent contended that this consideration should be given neutral weight as non-refoulement obligations are not owed to YPWC, and a decision to affirm the decision under review would not result in a breach in Australia’s international non-refoulement obligations.
Additionally, the Respondent submitted as YPWC’s current Bridging Visa E has expired that even if the Tribunal found there was another reason to revoke the determination to cancel his Visa, YPWC would be liable to remain in detention.
The Respondent noted YPWC’s Bridging Visa E (BVE) was granted on 29 September 2020 in connection with his application for a Safe Haven Enterprise Visa (SHEV), which he applied for on 10 September 2020. On 8 January 2024, the MRD affirming the decision of the delegate to refuse to grant YPWC a SHEV and by virtue of 050.511(1)(b)(iii) of the Migration Regulations, YPWC’s BVE expired 35 days after the Tribunal’s decision, being the 12 February 2024.
The Respondent noted as YPWC has judicial review proceedings currently before the Federal Court, he is entitled to make an application for a further BVE in connection with those proceedings which would be subject to consideration by a delegate of the Minister.
Findings
The Tribunal accepts the Respondent’s contention that even if the Tribunal decides to revoke the cancellation of YPWC’s Bridging E visa, he will still not hold any visa. The Tribunal notes YPWC would still be liable for detention as an unlawful non-citizen unless he is able to apply for (and satisfy the requirements for the grant of) another visa to remain in the Australian community.
Regardless of the MRD determined that YPWC is not owed protection in Australia the Tribunal must give due consideration to his claims of fear of harm if returned to Vietnam. The Tribunal is required to consider whether Australia has non-refoulment obligations to YPWC.
The Tribunal when considering Australia non-refoulment obligations notes the observations in Nunez and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 809:
96. At paragraph 9.1, the Direction indicates that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
97. The Direction divides the considerations to be applied in this paragraph into two sections:
(1)non-citizens covered by a protection finding; and
(2)non-citizens not covered by a protection finding.
98. Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
99.Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there would be a risk of harm.
100. The Applicant is not subject to a protection finding and on the material before the Tribunal, there do not appear to be protection claims.
101.In case of non-revocation, the Applicant would remain in immigration detention under s 189 of the Act, and the removal obligation in s 198 of the Act would apply.^[88] The Tribunal is satisfied that detention and removal are lawful consequences in the Applicant’s circumstances.
The Tribunal considered the findings of the Member at the MRD hearing of 8 January 2024, whilst not as the Respondent contended determinative for this Tribunal’s consideration, but insightful. The Member found:
Distributing anti- communist leaflets in 2013
For these reasons, the Tribunal finds the applicant does not face a real chance of serious harm by the authorities on return to Vietnam in the foreseeable future because he distributed anti-government flyers on one occasion … on imputed or real political opinion grounds including ‘being a Catholic who is perceived to challenge the authority or interests of the Communist Party of Vietnam’ as submitted. His fears of persecution on this basis are not well founded.
Involvement with Viet Tan in Australia
The Tribunal agrees that the applicant’s reasons for becoming involved in Viet Tan in Australia have been generally consistent, as submitted. However, as noted, he raised them late, and the Tribunal finds that they are generalised and overarching statements. Further, as noted, the Tribunal remains concerned about his motivations given his lack of political activity and interest in the past.
For these reasons, the Tribunal has disregarded the applicant’s conduct in Australia in terms of his involvement with Viet Tan, including attending anti-Vietnamese government protests, as it is not satisfied he engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee.
Drug related convictions in Australia
The Tribunal accepts the applicant has a criminal record in Australia, including for drug related offences. It considers it likely the Vietnamese authorities would become aware of that fact on the applicant’s return to Vietnam, if not before. With respect to the likelihood of the Vietnamese authorities prosecuting the applicant for crimes he committed in Australia, DFAT state as follows (as discussed at hearing):
Double jeopardy would occur when a Vietnamese citizen is charged and convicted with a crime in another country, and then returns (or is returned) to Vietnam and is prosecuted for the same crime. Article 6 of the Penal Code gives broad extraterritorial jurisdiction for crimes, meaning that a crime under Vietnamese law that is committed outside of Vietnam may be punishable under Vietnamese law. In country sources have told DFAT that the provisions may only apply theoretically. DFAT is not aware of cases of double jeopardy in practice.
Given DFAT’s assessment that whilst a crime under Vietnamese law committed outside the country may be punishable under Vietnamese law, in country sources have told DFAT the provisions may only apply theoretically and DFAT is not aware of double jeopardy cases in practice, the Tribunal finds remote the chance the applicant will be prosecuted for his drug convictions in Australia (for which he has been convicted and has completed his sentences). His fear of serious harm, including life imprisonment and the death penalty, from the authorities (or anyone else) on this basis is not well founded.
Having carefully considered YPWC’s claims, the Tribunal is not satisfied that he is a person in respect of whom Australia has non-refoulment obligations.
The Tribunal did not find that YPWC would be at risk of harm from the Vietnamese government for his minor involvement in distribution of anti-government flyers some 11 years ago. The Tribunal found no evidence which indicated that YPWC was of any interest to the Vietnamese government. What was most telling was YPWC had lived in Vietnam for several months after he assumed the secret police were aware of his involvement in this activity and they did not seek to charge or arrest him at the time. The Tribunal did not consider that YPWC would be of concern to the Vietnamese government as he has never been an active political opponent to the Communist Government.
The Tribunal did not consider YPWC had merely gotten involved with Viet Tan to strengthen his claim for protection in Australia. The Tribunal accepted YPWC’s claims he had been involved as he shared the beliefs of the group. The Tribunal placed some weight on YPWC’s claims he may be questioned by the Vietnamese government on his return because he had been photographed attending Viet Tan demonstrations. The Tribunal did not consider that YPWC’s fears of persecution for his involvement with Viet Tan amounted to a claim for non-refoulment, as his involvement was minor. The Tribunal considered YPWC may be questioned if he returned to Vietnam but did not consider there was any evidence to demonstrate he would face persecution for his involvement.
The Tribunal did not consider that YPWC’s fears of persecution for his drug-related crimes amounted to a claim for non-refoulment. The Tribunal considered YPWC may be questioned if he returned to Vietnam about his offending, but the Tribunal did not consider there was any evidence to demonstrate YPWC would face persecution for his crimes. The Tribunal considered the crimes were committed in Australia, he has already served a custodial sentence and he was a minor player in the enterprise, not a ringleader.
The Tribunal does not doubt YPWC’s genuine fear of being returned to Vietnam. The Tribunal accepts YPWC will experience hardship on his return. However, the Tribunal finds there was no concrete evidence to substantiate YPWC’s claim for protection and as such finds this other consideration was not engaged.
Extent of impediments if removed (paragraph 9.2)
The Tribunal must consider the extent of impediments a non-citizen may face if removed to their country of origin, in ‘establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country)’ (9.2(1)). Specific factors to take into account are their age, health, any ‘substantial language or cultural barriers’, and any social, medical or economic help available.
Submissions
YPWC submitted in his written and oral evidence to the Tribunal:
·He will experience significant financial stress if he has to return to Vietnam because he has no household registration and will be unable to obtain one; his lack of identity documents; his criminal record; his debt; and lack of any family support and protection.
·He was unaware of any other family members in Vietnam besides his sister; his family had moved villages when he was 4 years of age, and he was too young to recall any other family members he may have had.
·His father had not been able to obtain a household registration card when they had moved villages.
·At 18 years of age YPWC had attempted to obtain his own identity documents but was unable to as the authorities told him it would require a large sum of money which he simply did not have.
·As an orphan in Vietnam, he was never registered in a household registration book and did not hold any identity documents, and this impacted his rights, opportunities, and access to services in Vietnam. He feared he would face the same restrictions if he was return to Vietnam.
·He would have no housing as he has no family to whom he can turn to support him.
·He would have no work and would find it impossible to get work without identity documents; his evidence was things were much stricter in Vietnam these days and his sister had not been able to get work as she had no identity documents.
·He would also be shunned by many in the community because of his time in prison for drug-related crimes.
·He feared going to the authorities to get identity documents as they would know he was back, and about his anti-government activities and possibly arrest him.
·He simply had not thought about how he would live if he returned to Vietnam because he was too frightened to consider it; he would have nowhere to live; no job; no money; no identity documents and would be hounded by the police.

The Respondent submitted as YPWC lived in Vietnam up until the age of 21, speaks Vietnamese and worked in Vietnam prior to his arrival in Australia that:
·He would be able to establish himself on return to Vietnam and maintain basic living standards in the context of what is generally available to other citizens of Vietnam.
·While he may experience some initial hardship upon return to Vietnam, he is familiar with Vietnam, has worked in Vietnam and has family connections.
·He would be able to register for identity documentation upon arrival.
The Respondent did accept the system in Vietnam would have changed in the 11 years since YPWC had lived there and adapting to it would take time.
The Respondent submitted the Tribunal should also consider any claimed risk of harm to YPWC if he was removed to Vietnam, even where his claims to fear serious harm or a real risk of significant harm have been found not to engage Australia’s international non-refoulement obligations. However, as the MRD has largely rejected his claims, limited weight should be assigned to such claims of harm that fall short of engaging Australia’s non-refoulement obligations.
The Respondent contended having regard to the above, this consideration should be given only some weight in favour of revocation.
Findings
The Tribunal finds that YPWC would have no practical difficulties in re-assimilating if returned to Vietnam as he would have no language or cultural barriers. However, the Tribunal did concur with YPWC that he would face significant difficulty in finding employment and housing if he was forced to return to Vietnam.
The Tribunal also accepted that YPWC would face significant difficulties at the outset as he has no Vietnamese identity documents. The Tribunal considered the Member’s findings at the MRD hearing of 8 January 2024:
Lack of household registration and identity documents
For these reasons, the Tribunal finds (as did the delegate) that the applicant is eligible to register with the authorities and apply for household registration and identity documents on return to Vietnam. There is nothing before it to indicate he would be prevented from doing so because of his criminal history in Australia, or that he would not be able to access any work at all on return given his criminal convictions as claimed. He has work experience in Vietnam and Australia and some limited support in Vietnam to help navigate the process, in the form of … and his sister. Once registered, the applicant will be able to access relevant services and consider more formal employment options. Even if he returns to plantation work as he has done in the past and is not able to access decent pay or labour rights (as claimed), the Tribunal is not satisfied this constitutes persecution (or significant harm).
The Tribunal considered that whilst the Member’s decision is based on current DFAT advice the Tribunal has found that country advice does not always accord with the actual experience of individuals on the ground. The Tribunal accepted YPWC’s evidence he would face significant difficulties in access identity documentation, and he had limited support in Vietnam.
The Tribunal also noted DFAT country advice for Vietnam supported YPWC’s evidence that in the past, to secure identity documents, he had been asked to pay a “large sum of money” and may be required, if returned to Vietnam, to pay a bribe to secure this documentation:
Corruption
2.10 Vietnam ranked 104 out of 180 countries in Transparency International’s 2020 Corruption Perceptions Index. A large anti-corruption campaign in 2017 and 2018 saw thousands of investigations and prosecutions that included senior government officials and senior business leaders.
2.11 Both Transparency International figures and Vietnamese media report that public perceptions of levels of corruption are falling but also that corruption is a key concern of everyday Vietnamese people. Despite significant government efforts to control corruption, it remains ‘rampant’ according to German research foundation Bertelsmann Stiftung’s 2020 report on Vietnam. A 2019 Transparency International report found that 65 per cent of Vietnamese had paid a bribe, or ‘given a gift or done a favour’ for a teacher, health worker, judicial, police or other government official in the preceding 12 months. GAN Integrity, a Danish risk consultancy, notes ‘high’ levels of corruption in the judiciary, police, land and tax services.
The Tribunal finds that YPWC would face significant financial and emotional hardship if he were to have his visa revoked as the evidence indicated he would have no support network in Vietnam. The Tribunal notes this finding is corroborated by DFAT country information:
5.31 DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.
5.32 Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.
Overall, given that the prospects for employment, housing and financial support will be very difficult, the Tribunal finds that this consideration weighs strongly in favour of revoking the mandatory cancellation of the visa.
Impact on victims (paragraph 9.3)
The Tribunal must consider any evidence of the impact of a non-citizen's offending on a member of the Australian community.
Submissions
YPWC made no submission in respect of this consideration.
The Respondent submitted there was no information before the Tribunal as to the impact of a decision on review on the Applicant’s victims or their families.
Findings
Neither party contended, and nor was it apparent on the material before the Tribunal, that this consideration was of relevance in this proceeding.
Impact on Australian business interests (paragraph 9.4)
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501CA would significantly compromise the delivery of a major project or important service in Australia.
Submissions
YPWC submitted as a skilled tiler he was making a contribution to Australian business interest by filling a much-needed skill gap.
The Respondent submitted:
·There was nothing before the Tribunal to suggest that the decision being affirmed would adversely impact on Australian business interests or would significantly compromise the delivery of a major project or important service in Australia.
·While the Applicant has worked as tiler in Australia, his skills and experience are not such that his unavailability as a potential employee would have an adverse impact on Australian business interests more broadly.
·This ‘other consideration’ should be assigned neutral weight.
The Tribunal does not consider that there will be any impact on Australian business interests if YPWC’s visa remains cancelled or is restored. The Tribunal finds that this Other Consideration is therefore not engaged.
CONCLUSION
YPWC contended that any risk to the Australian community is sufficiently low, and outweighed by multiple compelling reasons in favour of revocation, and that the Tribunal should make orders revoking the mandatory cancellation of his visa under section 501CA(4) of the Act
The Respondent contended that YPWC should be found not to pass the character test, and the weight to be assigned to the relevant considerations in deciding whether there is another reason why the mandatory visa cancellation decision should be set aside is as follows:
·Two of the four primary considerations, being the protection and expectations of the Australian community, to weigh significantly against the Applicant.
·Two of the four primary considerations, being family violence and best interests of children, to weigh neutrally.
·The primary consideration of ties to the Australian community to be assigned limited weight in favour of the Applicant.
·The impediments to removal consideration to be assigned only limited weight in favour of the Applicant.
The Respondent contended the cumulative weight that should be assigned to the protection of, and expectations of, the Australian community should be found to substantially outweigh the cumulative weight to be assigned to all countervailing considerations, such that the Tribunal should conclude that the correct or preferable decision in this proceeding is that there is not another reason why the mandatory visa cancellation decision should be set aside.
Consistent with the Direction, the Tribunal has given weight of various degrees to the primary and other considerations. In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations. However, as held in Jagroop v Minister for Immigration and Border Protection [2016) 241 FCR 461, ‘the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501’.
As the Tribunal has found YPWC does not pass the character test it has carefully considered all the evidence before it and weighed up the relevant considerations as guided by the Direction in considering whether there is another reason why the cancellation of the Applicant's visa should be revoked.
Of the Primary Considerations the Tribunal found:
·The Tribunal considered YPWC still presented a risk of reoffending, and his offending was of such a nature that it must be considered serious. The Tribunal therefore considered that protection of the Australian community weighs heavily in favour of discretion being exercised to not to revoke the cancellation of the visa.
·The evidence before the Tribunal demonstrated YPWC had no family violence convictions and found this consideration to be neutral.
·The evidence before the Tribunal demonstrated YPWC had spent 11 years in Australia and had some connections to the community finding the strength, nature and duration of ties to the Australian community weighed slightly in favour of granting the visa.
·The evidence before the Tribunal demonstrated YPWC had no minor children in Australia and found the best interests of children to be a neutral factor in this determination.
·The Australian community would expect someone who had committed such serious offences not to be granted a visa and found this factor weighs heavily in favour of discretion being exercised to refuse to grant the visa.
Of the other considerations, the Tribunal determined that the extent of impediments if removed, was engaged, finding that if YPWC returned to Vietnam this consideration weighed in favour of revocation. The Tribunal considered all the other factors were not engaged.
The Tribunal found YPWC to be a courteous and respectful witness who was at pains to demonstrate to the Tribunal that he had learnt his lesson and would never offend again. The Tribunal found YPWC’s evidence was consistent and honest throughout and agreed with him he had never at any stage sought to mislead the Department about his situation or offending.
The Tribunal found YPWC greatly regretted his criminal offending not because of its impact on the Australian population but on his Visa status. The Tribunal had little faith YPWC would not simply turn to crime again. However, the Tribunal accepted that YPWC held great fears for his personal safety if he was to be returned to Vietnam.
The Tribunal finds that YPWC has not merely breached but violated the expectation that he be a law-abiding citizen who respects Australian institutions. As a general principle, the Direction establishes that on this basis his visa should be cancelled.
Accordingly, the Tribunal finds it was not satisfied there was another reason why the original decision should be revoked.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 130 (one hundred and thirty) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO Member

..............................[sgd]..........................................
Associate
Dated: 21 May 2024

Date(s) of hearing: 7 and 8 May 2024

Applicant: Self-Represented

Advocate for the Respondent: Mr Thomas Creedon

Solicitors for the Respondent: Australian Government Solicitor

COURT DATE	OFFENCE	COURT RESULT
8 Sep 2022	CULTIVATE NARCOTIC PLANTCANNABIS	2 YEARS IMPRISONMENT.
8 Sep 2022	ESCAPE FROM CUSTODY FROM POLICE MEMBER	1 YEAR IMPRISONMENT. 9 MONTHS OF SENTENCE CONCURRENT.
30 April 2020	CULTIVATE NARCOTIC PLANTCANNABIS	363 DAYSIMPRISONMENT.
30 April 2020	POSSESS COUNTERFEIT MONEY	CONVICTED AND FINED $500.00.

Date(s) of hearing:	7 and 8 May 2024
Applicant:	Self-Represented
Advocate for the Respondent:	Mr Thomas Creedon
Solicitors for the Respondent:	Australian Government Solicitor