ZFHM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 1642

ZFHM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1642 (5 June 2020)
Division: General Division
File Number: 2018/7105
Re:ZFHM
APPLICANT

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

DECISION
Tribunal:Deputy President J Sosso
Date:5 June 2020
Place:Brisbane

The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked.
......................[sgd]...............................
Deputy President J Sosso
Catchwords
MIGRATION – decision on remittal - mandatory cancellation of applicant’s visa under s 501(3A) - where Applicant does not pass the character test – whether there is another reason why cancellation decision should be revoked – consideration of Ministerial Direction No. 79 – decision under review set aside and substituted
Legislation
Migration Act 1958
Cases
Akpata v Minister for Immigration & Indigenous Affairs [2004] FCAFC 65
Director of Public Prosecutions (WA) v GTR [2007] WASC 318
Director of Public Prosecutions (WA) v Moolarvie [2008] WASC 37
Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCAFC 185
Lester v Western Australia [2011] WASCA 128
Marzano v Minister for Immigration & Border Protection (Marzano) [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 16
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296
Secondary Materials
Cocozza and Steadman, ‘The Failure of Psychiatric Predictions of Dangerousness: Clear and Convincing Evidence’ (1976) 29 Rutgers Law Review 1084
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
5 June 2020
Deputy President J Sosso
INTRODUCTION

On 1 August 2019, his Honour Justice Griffiths set aside the first decision of the Administrative Appeals Tribunal (the Tribunal) in this matter of 18 February 2019 and remitted the matter to the Tribunal for reconsideration according to law.
ZFHM (the Applicant) is a 36 year old Vietnamese citizen who was born in 1983. The Applicant first arrived in Australia on 31 December 2013 on a Student (TU 573) Visa – Exhibit 12 G39 p. 153.
The Applicant is the fourth born in a family of four boys and was raised in the city of Hai Phong in Vietnam. His eldest brother migrated to Australia in circa 2007 while the remaining brothers continue to reside in Vietnam. After completing high school, the Applicant moved to Hanoi to live with one of his brothers. His first job was with a pest control company and subsequently he worked as a masseur for five years and then decided to obtain tertiary education. In 2006 the Applicant enrolled in a business course at Cong Doan University in Hanoi and graduated in 2011 with a Bachelor of Economics – Exhibit 11 TB3 pp. 46 - 47.
After graduating from University the Applicant moved back to Hai Phong and, with the assistance of a brother, obtained employment in a clerical role with a maritime company. Subsequently the Applicant assumed the role of an agent with the maritime company, and excelled in his new role. His employer decided to send the Applicant to Australia to further his studies and enhance his skills. In that regard his employer agreed to pay his tuition fees provided he worked for the company for a minimum of five years on his return to Vietnam – Exhibit 11 TB3 pp. 47 - 48.
The Applicant arrived in Australia on 24 December 2013. His intention was to enrol in a Masters of Business Management degree at the University of Western Sydney (UWS), but the University assessed that his Vietnamese qualifications were not sufficient for him to undertake post-graduate study. Instead UWS suggested that the Applicant enrol in a Bachelor of Business Management, subject to him upgrading his English language competency – Exhibit TB3 p. 48.
The Applicant found it difficult to master the English language and failed to pass his UWS assessment. He was subsequently required to enrol in a further 20-week English course commencing late 2014. Unfortunately, the Applicant failed the UWS assessment a second time, and commenced a third course in mid-2015.
The Applicant informed Mr David Green, Psychologist, in January 2016 that he had found it difficult to understand spoken English – Exhibit 11 TB3 p. 49. The Applicant’s poor grasp of the English language was also specifically referred to by Judge Whitford when sentencing him for drug offences – Exhibit 12 G24 p. 101.
On 6 June 2014 the Applicant met his future wife, TL. TL had been previously married and had five children, one of whom, CN, who was born in 2013, was living with her. The Applicant and TL were married on 1 February 2015 – Exhibit 11 TB1 pp. 19 - 26.
In December 2015 the Applicant’s daughter FD was born – Exhibit 8 p. 4.
From the time that the Applicant commenced living with TL, he was under considerable financial stress. He was supporting his wife and his step-daughter while only earning approximately $700 per week – Exhibit 8 p. 4. The Applicant found it difficult to pay for the food, rent and other expenses for his family – Exhibit 12 G24 p. 100.
The Applicant was arrested on 3 July 2015 in respect of his involvement with illegal drug activities at a property which had been under police surveillance since June 2015. The Applicant’s role comprised assisting in the moving of cannabis from the premises on one occasion. No evidence was presented that he was engaged in the cultivation of cannabis and the only occasion the Applicant was observed at the premises was on 3 July 2015. His Honour Judge Whitford of the New South Wales District Court, when sentencing the Applicant, specifically referred to his “limited role” in the criminal enterprise – Exhibit 12 G24 p. 96.
The Applicant was charged with supplying a prohibited drug and cultivating a prohibited plant and he pleaded guilty to both counts. On 21 January 2016 Judge Whitford sentenced the Applicant to two years imprisonment – Exhibit 12 G23 pp. 92 – 93.
On 2 March 2016 the Applicant was released from gaol on parole – Exhibit 12 G25 p. 107, but was then taken into immigration detention until July 2016 when he was released into the community. It is not disputed that the Applicant was drugged and raped by two men whilst he was in immigration detention.
It would appear that the Applicant was severely traumatised by his rape, and following his release he was admitted on two occasions to hospital for treatment of his psychological issues – Exhibit 11 TB4 pp. 142 – 143. It was during this time that he failed to abide by his parole conditions.
On 2 February 2017 the New South Wales State Parole Authority revoked the Applicant’s parole and a warrant was issued – Exhibit 12 G25 p. 106. Despite a warrant having been issued in February 2017, the Applicant was not admitted into custody until 15 November 2017 – Exhibit 12 G25 p. 107. Ironically, the Parole Authority rescinded the revocation of the Applicant’s parole on 9 January 2018 on the basis that the breach was explained. The State Parole Authority ordered that the Applicant was to be released as soon as possible but not later than 4 pm on Wednesday, 10 January 2018 – Exhibit 12 G34 p. 145.
On 8 December 2016 the Applicant was granted a Partner (Temporary) (Subclass 820) visa which was cancelled on 30 November 2017 under s 501(3A) of the Migration Act 1958 (the Act). The delegate of the Minister was satisfied that the Applicant did not pass the character test because he had a substantial criminal record as he had been sentenced to two years imprisonment on the abovementioned drug charges and that his parole had been revoked and he was serving full-time imprisonment at the Dawn De Loas Correctional Centre - Exhibit 12 G3 pp. 10 – 15.
The Applicant subsequently requested revocation of the cancellation of his visa - Exhibit 12 G29 pp. 116 – 119. On 26 November 2018, a delegate of the Minister decided, pursuant to s 501CA(4) of the Act, not to revoke the visa cancellation decision - Exhibit 12 G22 pp. 82 – 91.
On 4 December 2018 the Applicant sought review of this decision by the Tribunal – Exhibit 12 G2 pp. 3 – 8. As previously noted, the Tribunal affirmed the decision under review but the Federal Court subsequently set aside that decision and remitted the matter for reconsideration according to law.
THE LAW
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act, which provides:
4The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied;
(i) that the person passes the character test (as defined by s 501); or
(ii) that there is another reason why the original decision should be revoked.
When considering s 501CA(4) the starting point is whether an applicant has made representations in accordance with the invitation given. It is not disputed in this matter that the Applicant has made the requisite representations.
It will be noted that the word “may” is used at the outset in s 501CA(4). The implications of the use of the word “may” were considered by the Full Court of the Federal Court in Minister for Home Affairs v Buadromo [2018] FCAFC 16 where the following observation was made (at [21]):
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view….”
Accordingly, there are two issues to be determined by the Tribunal:
(a)whether the Applicant passes the character test as defined by s 501 of the Act; and
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, then the cancellation of the Applicant’s visa must be revoked – Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66 (Marzano) at [31] per Collier J.
Further, the “reason” in s 501CA(4)(b)(i) is not any reason but rather the determinative reason for revocation arrived at after a balancing exercise. Her Honour Collier J made the following observations in Marzano (at [32]):
“In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38] – [39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds ‘any’ reason why the cancellation decision ‘could’ be revoked. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case…”
(emphasis in the original)
THE CHARACTER TEST
Section 501 of the Act empowers the Minister to both refuse to grant a visa and also to cancel a visa already granted, if the Minister forms the opinion that the person does not pass the character test.
In turn, the character test is defined in s 501(6). Importantly, a person does not pass the character test if “the person has a substantial criminal record” – s 501(6)(a). A “substantial criminal record” is defined by s 501(7) and includes:
(c)the person has been sentenced to a term of imprisonment of 12 months or more…
As Tamberlin J observed in Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 (Djalic) at [68]/310:
“The authorities recognise that the protection of the Australian community lies at the heart of the discretionary power to cancel the visa of, or deport a non-citizen convicted of serious criminal offences.”
In the earlier Full Federal Court decision of Akpata v Minister for Immigration & Indigenous Affairs [2004] FCAFC 65 Lander J quoted with apparent approval part of Ministerial Direction 21. Lander J’s reasoning was agreed to by both Carr and Sundberg JJ. As Tamberlin J observed in Djalic ([71]/310) this suggested that their Honours “considered that the Direction accurately (or at least not inaccurately) summarises both the general object of the legislation and the principal purpose of the power to cancel a visa conferred by s 501.” Lander J observed (at [104]):
“In Direction No 21 the Minister says:
‘The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to refuse or cancel a visa where the visa applicant or visa holder does not pass the Character Test. In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it. The powers conferred under section 499 enable directions to be given, in exercising directions under section 501, for the protection of the Australian community.
…
2.The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community.”
After quoting the above extract from Direction No 21, Lander J then observed:
105The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia. Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister’s discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia.
106Where the applicant has failed to pass the character test because the applicant has a substantial criminal record (as in this case), the seriousness of the offences; the circumstances of the offences for which convictions have been recorded; any mitigating facts or circumstances relating to the convictions; the degree of remorse or contrition of the applicant; the sentencing remarks of the sentencing court; the applicant’s history before and after the convictions; the applicant’s personal circumstances; the effect of an order under s 501 on the applicant’s dependents and his family; the prospects of the applicant’s rehabilitation; and the chances of the applicant committing further offences would usually be relevant factors to which the Minister would have regard.
107In short, any matter that would move the Minister to allow a person of proven bad character (as it is defined in the Act) to travel to or remain in Australia, notwithstanding that proven bad character, would be relevant to a decision by the Minister.”
THE HEARING
A Hearing was convened in Brisbane on 26 March 2020.
The Applicant was represented by Mr Poynder of Counsel instructed by Mr Northam. The Respondent was represented by Ms Donald.
Due to the impact of the coronavirus pandemic the Hearing was convened by videoconference and telephone, with the legal representatives linked by videoconference from Sydney and the Applicant from Western Australia. The Vietnamese translator was linked in by telephone from Melbourne. Whilst the Applicant was able to participate by videoconference for the entire proceedings, the legal representatives participated by telephone during the latter part of the proceedings.
Apart from the Applicant, the Tribunal heard evidence from Mr Tim Watson-Monro, the Applicant’s wife and Mr Giang Son Nguyen.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As discussed above, a person will not pass the character test if they have a “substantial criminal record” which term is defined to include the circumstance where a person has been sentenced to a term of imprisonment of 12 months or more – s 501(7)(c).
As previously noted, the Applicant pleaded guilty to two drug related charges and was sentenced to two years imprisonment. His Honour Judge Whitford made the following observations during the sentencing of the Applicant - Exhibit 12 G24 p. 94:
“The offender [ZFHM] was committed for sentence on 12 November 2015 in respect of one count of supply a prohibited drug being cannabis leaf and one count of knowingly take part in the cultivation of a commercial quantity of cannabis. [ZFHM] maintains his pleas of guilty in this Court. He also asks that when I sentence him in respect of the offence of knowingly take part in the cultivation of a commercial quantity of cannabis that I take into account an offence of goods in custody on a Form 1. He has acknowledged his guilt to that offence and I consider it appropriate to take it into account when sentencing him for the relevant offence and will do so.
The seriousness of each of the offences for which [ZFHM] stands to be sentenced is reflected in the maximum penalty which Parliament has prescribed for each, the offence of supply of prohibited drug carries a maximum penalty of ten years imprisonment and the offence of knowing participation in the cultivation of a commercial quantity of cannabis carries a maximum penalty of 15 years imprisonment.”
The Tribunal is satisfied that the Applicant has a substantial criminal record (s 501(6)(a)) as defined by s 501(7)(c) as he was sentenced to a term of imprisonment of more than 12 months. Consequently, the Tribunal is satisfied that the Applicant does not pass the character test.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
Subsection 501CA(4) provides for the revocation of the initial decision to cancel a visa, if, inter alia, there is another reason why the original decision should be revoked – s 501CA(4)(b)(ii).
In considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked, the Tribunal is required to comply with any Directions made by the Minister under s 499 – s 499(2A), Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
In this matter Direction No 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction) applies. Prior to the Direction coming into force, Direction No 65 applied. In some of the Court and Tribunal decisions reference is made to Direction No 65. No material difference exists between the two Directions in the decision quoted below.
The Direction makes clear that its central objective is the protection of the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens - cl. 6.2(1).

The Direction is intended to provide a framework within which decision-makers approach the task, inter alia, of deciding whether to cancel a non-citizen’s visa. The relevant factors that must be considered in making such a decision are identified in Part C – cl. 6.2(3).
Part C of the Direction identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa.
Paragraph 6.3 of the Direction set out the Principles underpinning its operation.
Subparagraph 6.3(1) states that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia. Remaining in Australia is a privilege conferred on non-citizens and is done so with the expectation that they will be law-abiding and not cause or threaten harm to either individuals or, more generally, the Australian community.
Subparagraph 6.3(2) observes that the Australian community expects the Australian Government to cancel the visa of a non-citizen who has committed serious crimes in Australia or elsewhere.
Also of relevance is cl. 6.3(5) which notes that Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have participated and contributed to the Australian community for only a short period of time. Conversely, a higher level of tolerance is given to a non-citizen who has lived in the Australian community for most of their life or from a very young age. In this matter, the Applicant came to Australia as an adult, and lived the vast majority of his life in Vietnam.
Attention must be given to cl. 6.3(6) which states that Australia has a low tolerance of any criminal or other serious conduct by those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to remain permanently in Australia.
Conversely, cl. 6.3(7), inter alia, draws to a decision-maker’s attention the consequences of the cancellation of a visa for minor children or other immediate family members of an applicant in Australia.
The Direction also provides specific guidance on how to exercise the discretion. Relevantly, cl. 7(1)(b) provides that a decision maker must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Further, cl. 8 of the Direction provides guidance on taking the relevant considerations into account.
This paragraph provides that primary considerations should generally be given greater weight than the other considerations – cl. 8(4). Further, one or more primary considerations may outweigh other primary considerations – cl. 8(5).
Before turning to the primary and other considerations, it is important to consider the evaluative task required of a decision-maker. Reference can be made to the following observations of Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:
“The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non-refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Directions 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that other considerations be treated as secondary in all cases. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
This interpretation is consistent with the observations of the Full Federal Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [34] – [35].
Subparagraph 13(2) sets out the three primary considerations in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
The other considerations are set out in cl. 14 of the Direction, namely:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments, if removed.
I will consider each of the primary considerations and other considerations in turn.
PRIMARY CONSIDERATION A – THE PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Introduction
Subparagraph 13.1 of the Direction provides the following general guidance to a decision-maker when considering the protection of the Australian community:
1When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
2Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
As will be noted, whilst cl. 13.1(1) outlines broad public policy considerations, cl. 13.1(2) focuses the attention of a decision-maker on two specific considerations. Each of these will be dealt with below.
First, a decision-maker must consider the nature and seriousness of a non-citizen’s conduct to date. Subparagraph 13.1.1 outlines the following factors that a decision-maker must have regard to:
(a)the principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)the principle that crimes of a violent nature against women or children, are viewed very seriously, regardless of the sentence imposed;
(c)the principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)subject to subparagraph (b), the sentence imposed by the courts for a crime or crimes;
(e)the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen re-offended since being formally warned, or since being made otherwise aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status;
(i)where the non-citizen is in the Australia, a crime was committed in immigration detention, during an escape from immigration detention or after the non-citizen escaped from immigration detention.
Second, a decision-maker is required to consider the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Subparagraph 13.1.2(1) provides that when a decision-maker is evaluating the risk posed to the Australian community, regard must had to, cumulatively:
(a)the nature of harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
Nature and seriousness of the conduct
There is no evidence before the Tribunal that the Applicant has committed any crimes of a sexual nature. Furthermore, the Applicant has no history of conviction for crimes of violence against women, children or vulnerable members of the community. In short, in the Applicant’s favour, he has no record of violent behaviour towards women, children, the elderly or the disabled nor a history of committing crimes generally.
There is also no evidence before the Tribunal that the Applicant engaged in any criminal conduct whilst he was living in Vietnam.
When sentencing the Applicant, Judge Whitford observed - Exhibit 12, G24, page 100:
“[ZFHM] does not have any convictions for prior criminal conduct in this State and reportedly he has not committed any offences in Vietnam.”
In short, the Applicant has apparently led a law-abiding life until he was charged with the drug offences previously outlined.
Attention will now be given to each of the considerations outlined in cl. 13.1.1.
Cl. 13.1.1.(1)(a) – violent or sexual crimes
There is no evidence before the Tribunal that the Applicant has ever been convicted of committing any crimes of violence or sexual crimes.
Cl. 13.1.1(1)(b) – crimes of violence against women or children
The Tribunal has been presented with no evidence that the Applicant has ever been convicted of crimes of a violent nature against women or children.
Cl. 13.1.1(1)(c) – crimes against vulnerable members of the community or government representatives or officials
There is no evidence before the Tribunal that the Applicant has ever been convicted of crimes against vulnerable members of the community or against government representatives or officials due to the position they hold, or in the performance of their duties.
Cl. 13.1.1(1)(d) – sentence imposed
This subparagraph draws a decision-maker’s attention to the sentence imposed.
The Applicant, as previously noted, pleaded guilty to supplying a prohibited drug and knowingly taking part in the cultivation of a commercial quantity of cannabis. As Judge Whitford observed, the maximum penalty for the supply charge is 10 years imprisonment and the participation in the cultivation of a commercial quantity charge carries a maximum penalty of 15 years imprisonment – Exhibit 12 G24 p. 94.
His Honour Judge Whitford made the following remarks about the Applicant’s degree of involvement in the supply and cultivation of cannabis – Exhibit 12 G24 pp. 96 -98:
“In terms of the role of [ZFHM] in respect of the offence of participation in cultivation it seems to be common ground that his role comprised primarily of assisting in removing cannabis from the premises on one occasion. The facts reveal that the premises came under notice at some time in June 2015 although precisely when is not identified and the operation was terminated by the intervention of the police and the arrest of two offenders on 3 July 2015.
…The only occasion on which the offender [ZFHM] was observed at the premises was on 3 July which stands to support the inference it was the only occasion that he attended the premises underlying again his limited role. There is no evidence that the offender [ZFHM] intended to profit from the enterprise reflected in the outfit at Fullers Road. The evidence seems to suggest that he received a modest payment for acting as a courier of some of the produce. It seems to me it cannot be suggested on the evidence before me that [ZFHM’s] role was that of a principal or even close to having a role of significant responsibility in respect of the enterprise. As I have said there is no evidence that suggest he contributed financially to the cost of setting up the operation nor that he stood to share in the profit or any evidence that he had any management or decision making role in respect of the enterprise at all.
A fair analysis of the agreed facts leads to the conclusion that he offender [ZFHM] visited the premises on one occasion only and that he knowingly took part in the cultivation of the cannabis by removing the product from the premises and providing plastic bags for that purpose. Accordingly I accept the submission made on behalf of [ZFHM] that his role was very limited and towards the bottom of any hierarchy of whatever organisation lay behind the enterprise reflected in the outfit at Fullers Road.
In respect of the second offence to which [ZFHM] has pleaded guilty, the offence of supply as I have indicated the acts relied upon in respect of the offence of knowing participation in the cultivation are essentially the same acts that support the offence of supply. Again all the evidence supports the conclusion that his offending was an isolated act engaged in at what might sensibly be described as the bottom of the hierarchy of any organisation that stands behind the enterprise. Some of the matters that support the conclusion as to the minimal involvement of the offender [ZFHM] in any chain of supply are the fact that no significant assets were seized following his arrest. There is no evidence the van driven by him was owned by him. He was apparently acting at the direction of an unidentified co-offender. Whilst no doubt intended for dissemination in the community it can at least be noted that the drugs the subject of the supply charge were not disseminated into the community through the intervention of the police. Consideration that I am permitted to take into account in the offender’s favour on sentence.
The motivation for the offending conduct appears from all the evidence to have been motivated by a degree of financial desperation or as described in the written submissions on [ZFHM’s] behalf, necessity rather than a motivation of unfettered greed.”
His Honour imposed a term of imprisonment, comprising a non-parole period of 16 months for the offence of supplying a prohibited drug and imprisonment comprising a non-parole period of 16 months for knowingly take part in cultivation of a commercial quantity of cannabis. The sentences were wholly concurrent, and having regard to their commencement dates, it resulted in an effective sentence of two years and a total effective non-parole period of 16 months - Exhibit 12 G23 pp. 92 – 93 & G24 p. 103.
Counsel for the Applicant submitted (Applicant’s Statement of Facts Issues and Contentions (ASFIC) para 15) that the Applicant’s criminal conduct may be characterised as a low level example of a serious offence. This, it was submitted, was reflected in the sentences imposed being 20% of the ten years available on the supply charge and 13% of the 15 years available on the cultivate charge. It was also submitted that it was reflected in the comparatively low non-parole period of 8 months.
Whitford J, when sentencing the Applicant, took into account the following factors - Exhibit 12 G24 pp. 100 – 101.:
(a)the absence of any previous criminal history;
(b)low level and peripheral involvement in the criminal enterprise;
(c)good prospects of rehabilitation;
(d)as a foreign national incarceration would be more burdensome; and
(e)English language difficulties.
The Respondent contends (Respondent’s Statement of Facts, Issues and Contentions (RSFIC) para 29) that the objective seriousness of the offending is that the Court considered it necessary to impose a significant term of imprisonment. It was also contended that that terms of imprisonment are the last resort in the sentencing hierarchy and in this case the Applicant was sentenced to a term of two years imprisonment even though he had no prior criminal offences.
The Tribunal agrees with the Respondent that the fact that the Court imposed a term of imprisonment is a reflection of the objective seriousness of the offences involved. The production, distribution and sale of illegal drugs is an ongoing social problem. The use of illegal drugs has a corrupting influence on our society with the users of the illegal drugs facing a range of serious health issues and, at the same time, often resorting to criminal activity to support their habit. The use of illegal drugs often results in the destruction of families, the degradation of the addicted users and concomitant pressures on both our medical and law enforcement agencies. In short, the illegal drug industry is an ongoing danger to our society, and every effort is required to combat this industry which corrodes the underpinnings of our body politic.
In these circumstances it is significant that the Applicant received a sentence at the lower end of the sentencing scale. It is not surprising that the offences the Applicant was charged with carry maximum penalties of 10 and 15 years imprisonment respectively. Yet despite the objective seriousness of the offences, Whitford J, having weighed up all of the evidence presented, sentenced the Applicant to relatively short periods of imprisonment. No doubt, having read the sentencing remarks, this was due in no small part to the peripheral and insignificant role the Applicant played in the criminal enterprise and the fact that he had no criminal record.
In summary, the Tribunal notes that although the Applicant was sentenced to terms of imprisonment, the Court imposed penalties at the lower end of the scale due to the Applicant’s minor role in the criminal enterprise and previous good behaviour.
Cl. 13.1.1(1)(e) – frequency of offending
This subparagraph focuses on the frequency of offending and whether there is any trend of increased seriousness.
As previously noted, the Applicant had no criminal history prior to his drug convictions. All of the evidence suggests that until his conviction for the drug offences the Applicant led a law-abiding life in both Vietnam and Australia.
Cl. 13.1.1(f) – cumulative effect of repeat offending
The Applicant has no history of repeat offending.
Cl. 13.1.1(1)(g) - provision of false or misleading information
This subparagraph focuses on the provision of false or misleading information to the Department, including by not disclosing prior criminal offending.
There is no evidence before the Tribunal that the Applicant has provided false or misleading information to the Department.
Cl 13.1.1(1)(h) – reoffending after provision of warning
This subparagraph focuses on whether the non-citizen has reoffended since being formally warned, or otherwise being made aware, in writing, about the consequences of further offending.
There is no evidence before the Tribunal that the Applicant has reoffended.
Cl 13.1.1(1)(i) – crimes committed while in immigration detention or escaping from detention
No evidence has been presented to the Tribunal that the Applicant has been convicted of committing any crimes whilst in immigration detention.
Conclusion
As previously noted, cl. 13.1.1 of the Direction lists nine factors that a decision-maker must take into account when considering the nature and seriousness of a non-citizen’s criminal offending.
It is relevant that in this matter almost all of the listed factors have no relevance to the Applicant’s history. The Applicant does not have a history of criminal behaviour nor has he engaged in false and misleading conduct. All of the evidence points to the Applicant being a law-abiding citizen who became involved in a criminal enterprise due to financial pressures and who was at the bottom of the hierarchy of the criminal enterprise. In short, the evidence suggests that the Applicant has led a good life but because of financial desperation foolishly agreed to become a low level operative in a cannabis production and sale enterprise.

Offences involving the production and supply of commercial quantities of a prohibited drug are serious. Further, the Tribunal accepts that it is not appropriate to classify different prohibited drugs as more or less serious. The Tribunal’s attention to drawn to the following observations of Wood CJ in R v Bimahendali (1999) 109 A Crim R 355:
16…I am quite unpersuaded that it is appropriate, let alone helpful, to attempt any greater gradation of seriousness between drugs falling into the broad categories of soft drugs (eg cannabis) middle range drugs (amphetamines in their various forms) and high range drugs (heroin and cocaine). In the absence of detailed expert evidence based on pharmacological and toxicological studies as to their addictive qualities, risks of overdose, the incidence of drug induced psychosis and other psycho-social effects, no such exercise could profitably or responsibly be undertaken by the Court. Moreover, such an exercise would become extremely problematic given the constant introduction of new designer drugs and of their analogues.
17Ultimately, the best guide is that given by the legislature as to the available penalty, dependent upon whether the drug in question is more or less than the trafficable or commercial quantity proscribed, and not upon an impression or judgment as to its perniciousness when compared to other substances, as to which expert opinion may well differ.
The Tribunal agrees with description given by the legal representatives of the Applicant (ASFIC para 15), namely that his criminal conduct may be characterised as a low level example of a serious offence. Consequently, the Tribunal concludes that insofar as the Applicant was sentenced for two serious drug offences it weighs in favour of non-revocation. However, as the sentencing judge pointed out, the Applicant was only a peripheral member of the criminal enterprise and had no criminal history. In these circumstances then the Applicant’s drug convictions do not weigh heavily against him.
Risk to the Australian community
As previously explained, a decision-maker is required when considering the risk to the Australian community to have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
(a) The nature of the harm
The first task of the Tribunal is to ascertain the nature of the harm should the Applicant reoffend. This can sometimes be a difficult task where a non-citizen has a long and varied criminal history. However, the Applicant has only been sentenced for two drug-related offences. In both instances his offences involved the physical movement of cannabis from one location to another. There is no suggestion from the sentencing remarks of Whitford J that the Applicant played any additional role in the criminal enterprise, such as in the cultivation of cannabis or with funding the criminal enterprise.
In these circumstances, when assessing the nature of the harm, the Tribunal is required to consider the implications of the Applicant reoffending in a similar way. In short, what would be the nature of the harm if he were again to play a similar role in any future criminal enterprise.
The legal representatives of the Applicant made the following submissions – ASFIC paras 17 - 18:
17The delegate’s suggestion, at [26], that ‘Should [the applicant] reoffend in a similar manner, it may result in physical, psychological and fiscal harm to members of the Australian community’, is unsustainable.
18There is no evidence to suggest that the applicant would have any wherewithal to cause prohibited drugs to make their way to members of the Australian community. The applicant was a small, easily replaceable cog in an obviously much larger criminal enterprise; it is simply too remote to suggest that the applicant might, directly or indirectly, cause harm to the Australian community because of this conduct.
The Tribunal does not accept this contention as it does not address the issue before the Tribunal.
The question is not whether the Applicant has the wherewithal to cause prohibited drugs to be trafficked, but what harm would be caused to individuals and the Australian community if he again became a transporter of cannabis.
Clearly, the answer to the question is that substantial damage would be caused to the Australian community if the Applicant assisted in the transportation of prohibited drugs. Transportation of prohibited drugs is a key element in the supply chain, and without cannabis being moved from the place of production to places of supply, there would be no large-scale distribution of the prohibited drug into the community.
The Tribunal was provided a report by the Australian Institute of Health and Welfare, last updated 13 December 2018, entitled “Alcohol, tobacco & other drugs in Australia” – Exhibit 11 TB7 pp. 205 – 215.
The report lists the following long-term effects of cannabis usage – Exhibit 11 TB7 p. 209:
·physical dependence;
·upper respiratory tract cancers, chronic bronchitis and permanent damage to the airways when smoked;
·cardiovascular system damage;
·mental health problems including depression; and
·poor adolescent psychosocial development.
The Tribunal finds that if the Applicant were to re-engage in similar criminal conduct, it is likely that harm would be caused to members of the Australian community through the use of cannabis. It is not necessary for the Tribunal to enter into the debate about the physical and psychological consequences of cannabis usage. Such an exercise is unnecessary because the Parliament of New South Wales determined that the cultivation and supply of cannabis carry heavy maximum terms of imprisonment. It is clear that the Parliament determined that harsh penalties be prescribed because the cultivation and supply of cannabis poses a risk to society. The nature of that risk is clearly set out in the report of the Australian Institute of Health and Welfare referred to above and has been the subject of numerous Court decisions – see, for example, Lester v Western Australia [2011] WASCA 128 at [21] – [22].
(b) The likelihood of engaging in further criminal or other serious conduct
The legal representatives of the Applicant made the following submission (ASFIC paras 21 - 24):
21Of greatest significance, however, is that the applicant is highly unlikely to reoffend. Almost four years ago, at the time of sentencing in January 2016, Judge Whitford SC at p. 8 of the remarks found that the applicant’s ‘prospects of rehabilitation are good’.
22The sentencing judge also had access to the Green Report, which assessed the applicant’s prospects of reoffending as ‘low to moderate’. Two comments may be made about the Green Report:
(a)A primary factor in Mr Green’s assessment was that the applicant might again find himself in financial difficulty and unable to provide for his family. This is overcome with the firm offer of employment currently available to the applicant.
(b)The Green Report is now well out of date, having been completed almost four years ago. It has been superseded by the reports and oral evidence of Mr Tim Watson-Munro, who comprehensively assessed the applicant through clinical observation and psychometric testing and firmly stated that “the risk associated with him reoffending is low and his prospects of rehabilitation are high”.
23Finally, it is highly significant that the respondent’s own National Character Consideration Centre has previously made a decision not to cancel the applicant’s bridging visa under s 501 of the Act, in full knowledge of the applicant’s criminal conduct. This decision was notified to the applicant by letter dated 14 July 2016, almost six months after the applicant had been convicted and sentenced. The decision could not have been made if the respondent’s delegate had considered that the applicant was a risk to the Australian community. Nothing of relevance to alter this assessment has occurred since then.
24The risk factor is, therefore, firmly in favour of the applicant.
The Respondent contended that the Applicant’s offending appeared to be motivated by financial desperation and also referred to the Green Report. The Respondent contended that the Green Report remains highly probative to the Tribunal’s assessment of the Applicant’s risk of reoffending – RSFIC para 35.
First, the Respondent made the following submissions – RSFIC para 36:
“The applicant has provided no evidence of any rehabilitative treatment or financial counselling undertaken to address the underlying causes of his offending. For example, the most recent report of Mr Watson-Munro observes the applicant ‘has minimal treatment whilst in custody’ and that ‘there has been little change in [ZFHM’s] circumstances since I examined him in January 2019’. Nor has he identified how he proposes to deal with any financial pressure in the future without resorting to criminal conduct. In the absence of any evidence of rehabilitation, the Minister contends that there is an unacceptable risk of the applicant reoffending.”
Second, the Respondent referred to Mr Watson-Munro’s report of 30 January 2019 and his assessment that the Applicant’s risk of reoffending was low and that the Applicant had expressed significant and appropriate remorse for his accounts. The Respondent, however, drew the Tribunal’s attention to the various versions of events the Applicant had given of his offending and contended it was an attempt to downplay the seriousness of his offending and demonstrated a lack of insight and therefore increased risk – RSFIC para 37.
Third, the Respondent drew the Tribunal’s attention to the abortive Mental Health Review conducted by Dr Jillian Spencer, a psychiatrist, on 19 June 2018. Dr Spencer reported that the Applicant “became agitated very quickly and started shouting about his unfair treatment from ABF. He terminated the interview before I could ask him much. Didn’t tolerate questions” – Exhibit 11 TB5 p. 202. The Tribunal’s attention was also drawn to an incident on 7 May 2019 when the Applicant was reported to be agitated and swearing at another person for interrupting his viewing of the television news – Exhibit 11 TB6 p. 204.
The Respondent contends that these incidents demonstrate that the Applicant continues to display the same “considerable psychological vulnerability” present at the time of his offending, and this inherently increases the Applicant’s risk of reoffending – RSFIC para 38.
Fourth, the Respondent referred to the submission of the legal representatives of the Applicant that it was highly relevant that the Department did not cancel the Applicant’s bridging visa under s 501 of the Act notwithstanding the Applicant’s criminal conduct. The Respondent made the following submission – RSFIC para 39:
“However, the notification letter dated 14 July 2016 confirms that the delegate had decided not to refuse the application for a bridging visa under s 501 of the Act. The Minister notes that the considerations in Direction 79 when considering refusal of a visa (Part B) are different to those considerations when considering a non-revocation request (Part C). In particular, in considering the risk to the Australian community should the non-citizen commit further offences in the context of a visa refusal, decision-makers must have regard to the duration of the intended stay in Australia (paragraph 11.1.2(3)(b)(iii)) and the risk of harm in the context of the purpose of the intended stay, and type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa (paragraph 11.1.2(4)). Given that the type of visa being applied for was a Bridging Visa E, nothing turns on the delegate’s decision not to exercise her discretion to refuse to grant the visa under s 501 of the Act.”
Fifth, the Respondent submitted that the “root cause” of the Applicant’s offending was financial distress, but he had not undergone financial counselling or in any way attempted to address the “trigger” for his offending. While conceding there was an offer of employment from Mr Giang Son Nguyen, nonetheless the Applicant’s immediate financial situation was strained. Further, the Applicant’s wife survives on Centrelink benefits and if the Applicant is released from detention “he is likely to continue to face financial strain…as he did prior to his offending” – RSFIC para 40.
The Respondent concluded by noting that the Applicant has been in custody or immigration detention at various times since July 2015 and his resolve not to reoffend is untested in an unsupervised environment. In these circumstances the Respondent submitted that there was a real possibility of reoffending – RSFIC para 41.
Before turning to the medical evidence, two submissions of the Respondent can be addressed.
First, the Tribunal does not accept that the Applicant’s aborted interview with Dr Spencer nor the incident of 7 May 2019 demonstrate that the Applicant suffers from a psychological vulnerability of the type claimed.
Dr Spencer made the following observations – Exhibit 11 TB5 p. 202:
“Discussion with MH nurse: poor sleep appears to be a big feature of [ZFHM’s] difficulties currently. Distressed by detention. No apparent risk issues currently.”
It would appear that the Applicant was suffering from poor sleep and distress because of his ongoing detention. This is, with respect, not surprising and does not support the proposition that the Applicant suffers from constitutional psychological vulnerabilities. Rather, his mental issues appear to be situational, in that his incarceration in immigration detention has caused him stress with concomitant sleep problems.
The incident of 7 May 2019 also does not support the proposition advanced by the Respondent. The short notes of the incident simply state that the Applicant was swearing at a Program and Activities staff member because either that person or another detainee had interrupted his viewing of the news. Many conclusions could be drawn from this minor incident, but the Tribunal is not satisfied that it could be sensibly concluded that this provides a sound basis for concluding that the Applicant has psychological vulnerabilities.
Second, the Tribunal accepts the submissions of the Respondent on the non-cancellation of the Applicant’s bridging visa. The decision not to refuse the bridging visa was made pursuant to a different part of the Direction, and with different considerations. The Tribunal therefore places no weight on the decision not to refuse the Applicant’s bridging visa.
The Tribunal has before it reports prepared by two psychologists. The first report is that of Mr David Green dated 17 January 2016, and which was considered during the sentencing of the Applicant – Exhibit 11 TB3 pp. 45 - 55. Mr Green noted that the briefing law firm was interested, inter alia, in his opinion on the risk of reoffending, prospects for rehabilitation and the degree of contrition Exhibit 11 TB3 p. 45.
Mr Green conducted a “structured clinical interview” of the Applicant on 8 January 2016 (the report incorrectly states it is 2015), assisted by a professional Vietnamese translator. The interview took three hours, and Mr Green noted that it was prepared for the benefit of the Court - Exhibit 11 TB3 p. 46.
Mr Green did not administer psychometric tests because of the Applicant’s difficulty with the English language - Exhibit 11 TB3 p. 51.
Under the heading “Risk Factors for Re-Offending” Mr Green set out a number of factors he took into account when reaching his conclusion on this topic.
First, after noting that it was the Applicant’s first offence and the highest risk of reoffending is, when a person has a history of convictions, Mr Green concluded “this is regarded as representing a low risk of re-offending” - Exhibit 11 TB3 p. 51.
Second, apart from the two persons involved in the drug trade, the Applicant had no anti-social associates and did not want to continue to associate with such people, telling Mr Green “Once is enough” - Exhibit 11 TB3 p. 51.
Third, Mr Green stated – Exhibit 11 TB3 p. 52:
“In so far as I could assess during the interview, [ZFHM] does not appear to hold anti-social attitudes and beliefs, other than being prepared to commit an offence to obtain financial benefit.”
Fourth, Mr Green noted that the Applicant did not appear to have significant anti-social personality traits - Exhibit 11 TB3 p. 52.
Fifth, Mr Green observed that the Applicant has limited employment skills in the Australian market, had poor English language skills and had no formal vocational qualifications - Exhibit 11 TB3 p. 52.
Sixth, Mr Green opined that the Applicant appeared to have satisfactory relationships with family members and romantic partners - Exhibit 11 TB3 p. 52.
Seventh, with the exception of one experimentation with cannabis in Vietnam, the Applicant denied using or experimenting with illicit drugs, was a moderate drinker of alcohol and a non-gambler - Exhibit 11 TB3 p. 52.
Finally, the Applicant claimed that, in the main, he made good decisions – Exhibit 11 TB3 p. 52.
With respect to the Applicant’s potential for rehabilitation, Mr Green noted that the Applicant’s wife had, at that time, visited him seven times since he was in detention and remained supportive. The Applicant’s wife gave birth to a baby girl in December 2015, and the Applicant was looking forward to seeing her. In addition, the Applicant expressed a desire to return to his university studies and improve his English language skills. Finally, the Applicant and his wife had considered owning a bakery – Exhibit 11 TB3 pp. 52 – 53.
The Applicant expressed contrition for his criminal behaviour. He had met many people in prison who were drug users and he realised that prohibited drugs “damage ourselves first and destroy the community we live”. Mr Green noted that the Applicant realised he had made a bad mistake and was sorry for what he did, saying that his criminal behaviour not only impacted on himself but his “loved ones, family, the people around us” – Exhibit 11 TB3 p. 53.
While Mr Green doubted the Applicant was suffering from a mental disorder, he opined that at the time of his offence he was under a lot of stress and was worried about his financial situation and the need to provide for his wife and children - Exhibit 11 TB3 pp. 53 – 54.
Mr Green then made the following observations - Exhibit 11 TB3 p. 54:
71It is my opinion that [ZFHM] committed the offences for financial reasons.
72It is my opinion [ZFHM] has a ‘Low to Moderate’ risk of re-offending.
73His main risk of re-offending is if he finds himself in financial difficulty and is not able to provide for his family.
74In my opinion, the risk of him re-offending may be reduced by intervention in his rehabilitation….
75In the first instance, I would like to see [ZFHM] improve his English skills. It is important for him to improve his English skills so he will become likely to obtain meaningful employment.
…
77[ZFHM] appears to have an interest and aptitude for working in commercial sales…,
78It is, therefore my opinion the goal for him is to be, ultimately, working in a sales role. There is good reason to be optimistic about his future should he eventually obtain such a role.
Unfortunately, Mr Green was not called to give evidence and, as such, the Tribunal was not in a position to observe his testimony, nor was the Applicant’s legal representatives afforded the opportunity to cross-examine him.
The Applicant was also interviewed and assessed on 29 January 2019 by Mr Tim Watson-Munro, consultant Psychologist, who provided a report dated 30 January 2019 – Exhibit 8.

Mr Watson-Munro undertook the interview and assessment with the aid of a Vietnamese interpreter. At the outset Mr Watson-Munro made the following observation – Exhibit 8 p. 2:
“At examination, [ZFHM] expressed significant and appropriate remorse for his actions. It is clear that his time in prison and subsequent period in the Brisbane Immigration Transit Centre has had a galvanising impact upon his resolve to remain free from future criminal activity should he be given an opportunity to remain in Australia.”
The Applicant told Mr Watson-Munro that at the time of his offending he was the sole provider for his family working as a tiler. The Applicant claimed he was under financial duress at the time only earning $700 per week. It was on this basis that the Applicant agreed to become involved in the transportation of cannabis in return for payment of between $1000 and $2000 - Exhibit 8 p. 4.
As for the Applicant’s insight into his criminal behaviour, Mr Watson-Munro made the following the following observations – Exhibit 8 p. 5:
“…[ZFHM] stated that he has insight to the fact that he was experiencing considerable psychological vulnerability at the time of his offending both in terms of anxiety and depression, as well as low self-esteem which made him vulnerable to the solicitations of an adverse peer group.. He reported that he now has the skills and insight to keep away from any bad influences in the community.”
Mr Watson-Munro opined that the Applicant was then suffering a Depressive Disorder according to DSM-5 criteria and made the following observations about the Applicant’s mental health - Exhibit 8 p. 6:
“[ZFHM] described a broad spectrum of symptoms reflective of an ongoing Depressive Disorder. He acknowledged very poor sleep with early morning wakening and diurnal variation of mood during the day. His appetite is impaired and he has lost weight.
He describes cognitive intrusion referable to decision-making and concentration arising from his anxiety. When questioned further he stated “I do not have a good mind.” Of concern, he reported some suicidal ideation but has no plan. He acknowledges tearfulness and indeed at times during the interview welled up when describing his feelings. He acknowledges ongoing fatigue stating “I’m always tired”. His self-esteem is still low reflected in his acknowledgements of feelings of failure.
When seen [ZFHM] was well oriented in time, place and person with no indications of major psychiatric disturbance. He specifically denied experiencing delusions of reference, formal thought disorder or auditory or visual hallucinations.”
Mr Watson-Munro referred to the sentencing remarks of Whitford J, in particular that the Applicant’s offending was “an isolated act” engaged in “at the bottom of the hierarchy” of the criminal organisation and that the motivation for the offending by financial desperation, and stated he “respectfully concur with this view” - Exhibit 8 pp. 6 – 7. Then Mr Watson-Munro made the following observation - Exhibit 8 p. 7:
“Arising from this, it is respectfully suggested that the Judge felt that the prospects for [ZFHM] was positive on the presumed basis of these issues being satisfactorily addressed. This is further reflective of the sentence which he received in my opinion.”
Later in his report Mr Watson-Munro described the Applicant as a “psychologically troubled man” who during the assessment made “repeated expressions of remorse” - Exhibit 8 p. 7.
The Applicant maintained a “solid bond and relationship” with his wife and children and feared that his daughters were disadvantaged by his absence as a father figure and as a financial provider. The Applicant’s insight into this dynamic, according to Mr Watson-Munro - Exhibit 8 p. 8:
”has galvanised his strong resolve to not reoffend with a view to remaining a pro-social and contributing member of the Australian community. Although he remains depressed and anxious, this is a function of his concerns regarding the future rather than being reflective of the earlier pressures he endured in terms of adjusting to a divergent culture and language upon his arrival in Australia, as well as financial issues as described.”
On the question of recidivism, Mr Watson-Munro noted that the Applicant had no prior forensic history, had positive aspirations for future employment and caring for his family. Moreover, the Applicant “embraced” the suggestion of undertaking treatment if released back into the community including a Cognitive Behaviour Therapy model focused on social skills training, systematic desensitisation for anxiety and supportive and motivational psychotherapy - Exhibit 8 p. 8.
After noting that the Applicant had no involvement with illicit drugs and does not abuse alcohol, Mr Watson-Munro concluded - Exhibit 8 p. 8:
“…which in my opinion further optimises the likelihood of positive prognosis characterised by by absence of further offending. Arising from these issues, I believe the risk of recidivism in this case is low.”
Mr Watson-Munro was briefed to prepare a supplementary report which is dated 22 November 2019 - Exhibit 7. In preparing this report, Mr Watson-Munro re-examined the Applicant on 11 November 2019, spoke to the Applicant’s wife on 19 November 2019 and was briefed with further background material including, for the first time, with the report of Mr Green.
Mr Watson-Munro remained of the opinion that the risk of the Applicant reoffending was low - Exhibit 7 p. 3:
“It is apparent that [ZFHM] continues to make solid progress in terms of his rehabilitation. In this regard, whilst I accept the opinion of Mr Green regarding [ZFHM’s] level of risk in January 2016, I remain firmly of the view, as articulated in my viva voce evidence, that the risk is now Low. I further note that Mr Green did not administer any risk assessment tests, legitimately on the basis of language and cultural nuances. I have however assessed [ZFHM’s] pattern of behaving over the years using The Hare Psychopathy Checklist – Revised (PCL _R), which indicates that [ZFHM] cannot be considered to fall within the clinically significant range of psychopathy and in this regard, his prospects of maintaining a crime free, pro-social existence, if given the opportunity in Australia, are positive.”
The Applicant expressed significant remorse for his actions and Mr Watson-Murno opined that “his extensive time in custody, including detention, has had a salutary impact upon him” – Exhibit 7 p. 3.
The Applicant expressed ongoing feelings of concern for his wife and family, and his detention in Western Australia had resulted in no physical contact which added to his sense of despair and depression but nonetheless he expressed to Mr Watson-Munro solid plans for reconstituting the family unit, gaining employment with the aim of being a solid provider for his wife and children - Exhibit 7 p. 3.
Next, Mr Watson-Munro outlined his discussions with TL who gave her view about the chances of the Applicant reoffending and the state of family relations – Exhibit 7 p. 5:
“[TL] stated that her husband has expressed remorse for his actions. Attendant to this, she is firmly of the view that he will not reoffend and that he has learnt his lesson. The basis for this in part relates to his expressed and continued desire to assist the family and the love that he has for her and their children. When pressed on this issue, [TL] added ”100% he will not do it again”. She stated that their marriage is as strong as ever despite his history, adding “me and the kids are waiting for him to come home”.
She reported that she believes her husband is capable of securing employment and as noted in the report of Mr Green, it would appear that he has a strong capacity in sales.”
Mr Watson-Munro provided a comprehensive account of the psychometric testing of the Applicant. As previously noted he utilised the Hare Psychopathy Checklist which is designed to determine the risk of a person reoffending and the probability of rehabilitation. The checklist comprises 20 personality traits divided into four groups. The maximum score is 40, with a score of 30 or over regarded as a positive diagnosis of psychopathy. Average scores fall between three and six and non-psychopathic criminals usually score between 16 and 22. Mr Watson-Munro then provided this assessment – Exhibit 7 p. 7:
“[ZFHM’s] score is unremarkable and certainly is consistent with my view that he is not a psychopath. Consequently, the risk associated with him reoffending is low and his prospects for rehabilitation are high. I say this advisedly, notwithstanding a prior offence for a similar matter. Beyond that and the current sentence, [ZFHM’s] general functioning in the community has been pro-social. He is well supported by his family unit and has a strong desire to gain employment with a view to integrating into the community and providing as best he can for his wife and children. There is no history of substance use in this case and beyond his period of offending in the past, does not associate with the criminal milieu.”
After noting that the Applicant had repeatedly expressed remorse for his actions and had a strong desire to move forward with a life in Australia in a pro-social and non-offending way, Mr Watson-Munro provided the following assessment - Exhibit 7 pp. 7 - 8:
2Consistent with my earlier opinion, I believe that [ZFHM’s] risk falls in the Low category. I say this advisedly, notwithstanding the earlier opinion of Mr Green, which placed him in the Moderate to Low category. Mr Green examined [ZFHM] in 2016 and it is clear, that with the effluxion of time, that [ZFHM] has matured, reflected upon his circumstances and developed an even stronger resolve to remain free from future criminal activity. I say this advisedly notwithstanding a prior conviction for matters of a similar nature.
3In addition no psychometric testing was undertaken by Mr Green. The basis for this in my view is valid, although it would appear that he nonetheless undertook a factor analysis of various factors associated with major risk of offending. These dynamics are not similar to those described in The Hare Psychopathy Checklist, which I have now used to assess [ZFHM’s] pattern of conduct, his attitude to the offending and other variables which may impact upon risk. Arising from this, there is nothing from The Hare Psychopathy Checklist – Revised (PCL_R) to suggest that [ZFHM] is in anyway redisposed towards psychopathic behaviour. This is consistent with the opinion expressed by Mr Green and indeed in my own view, that [ZFHM’s] offending was essentially a function of financial duress subsequent to his marriage and establishing a family.”
The Tribunal also had the benefit of Mr Watson-Munro giving testimony and being subject to cross-examination by Ms Donald.
It is not necessary to set out at length the testimony of Mr Watson-Munro as he repeated his assessment of the Applicant as outlined earlier.
Ms Donald asked a series of questions about the psychometric testing the Applicant underwent. Although Mr Watson-Munro could not recall what score the Applicant received he testified that it was less than 30 and was “insignificant” – Tr. 26.3.2020 p. 41. Further, Ms Donald questioned whether a person achieving a score within the range of non-pathological criminals would be at risk of recidivism, Mr Watson-Munro provided the following response – Tr. 26.3.2020 p. 42:
“…Yes, they can. They can be – they can still be at risk and that’s where other dynamics that I have describe become important, beyond the psychometric aspects of the assessment, to determine what’s going on in the future. This man’s offending is some years ago now. He spent a period of time, some would say a significant period of time, both in prison and in detention, and he has utilised that time as best he can, as I can see it, to focus on the future. He has focused on maintaining his marriage, his relationship with his children. He’s an intelligent man who is well-qualified, and consistent with earlier opinions, and indeed the sentencing remarks of Judge Whitford, his criminal activity appears to have been born of frustration and financial pressure, rather, in my view, than reflecting, you know, a propensity towards serial offending, because that’s not the case here.”
Mr Poynder referred Mr Watson-Munro to the previous Tribunal determination where the Member preferred the conclusions of Mr Green on the risk of reoffending based, in part, on Mr Green spending almost three times as much time with the Applicant as did Mr Watson-Munro. Since the first Hearing of the Tribunal Mr Watson-Munro again interviewed the Applicant as well as his wife. Nonetheless, Mr Watson-Munro gave this response - Tr. 26.3.2020 p. 45:
“My response is, look, I’ve been doing this for a very long time, I have assessed in excess of 20,000 people, I started my career working in Parramatta Gaol in 1978, that time was considered the most – it was a multi-recidivist end-of-the-line gaol, some argued the worst in Australia. And I am satisfied with the amount of time that I spent with him to obtain the history that I have to formulate the opinion that I have, and, you know, some people take longer, some people might take less time, but I’m generally able to undertake a thorough assessment, taking into account beyond the time spent with the individual, the analysis of the documentation, and look at those sorts of issues. So it would be misleading to suggest that the time spent on assessing this man was merely an hour and a quarter, an hour and a half, was in fact many more hours than that, but the face-to-face time fell within that parameter, in addition to the material that I’ve looked at.”
The Tribunal formed a positive view of the testimony given by Mr Watson-Munro. His answers to the questions posed were clear and to the point and he did not appear to be an advocate for the Applicant. Clearly Mr Watson-Munro is a very experienced psychologist and he has a long history of assessing persons who have been convicted of criminal offences.
The prediction of the risk or likelihood of future offending is a difficult and imprecise exercise. It has long been recognised that unstructured clinical opinions by both psychiatrists and psychologists on the risk of future offending are marked by high rates of false-negative findings - Cocozza and Steadman, ‘The Failure of Psychiatric Predictions of Dangerousness: Clear and Convincing Evidence’ (1976) 29 Rutgers Law Review 1084.
As a result of these concerns, various instruments of risk prediction have been developed. These actuarial approaches to risk assessment have generally found to be more accurate than unstructured clinical judgments and are designed to promote predictive validity and reliability.
There are numerous Australian judgments which, while accepting the utility of using psychometric testing tools, nonetheless recognise that these tools cannot guarantee the risk assessment will on all occasions be accurate and reliable; see Director of Public Prosecutions (WA) v Moolarvie [2008] WASC 37 at [41] and Director of Public Prosecutions (WA) v GTR [2007] WASC 318 at [111].
In this matter, the Tribunal has before it assessments of risk of the Applicant reoffending from two experienced and respected psychologists.
The Tribunal prefers the assessment of Mr Watson-Munro to that of Mr Green for the following reasons:
(a)Mr Green’s report was prepared more than four years ago, whilst the reports of Mr Watson-Munro are more contemporary and provide an assessment of the Applicant at this point of time rather than prior to his sentencing;
(b)Mr Watson-Munro utilised psychometric testing to assist in providing a more reliable and accurate assessment of the risk of the Applicant reoffending;
(c)Mr Watson-Munro has assessed the Applicant on more than one occasion;
(d)Mr Watson-Munro interviewed and received further information from the Applicant’s wife;
(e)Mr Watson-Munro has an extensive history of assessing the risk of convicted persons reoffending;
(f)Mr Watson-Munro provided testimony and was subject to cross-examination; and
(g)the Tribunal formed a positive view of Mr Watson-Munro’s testimony.
The evidence before the Tribunal suggests that the biggest risk factor for the Applicant reoffending is financial distress. His Honour Judge Whitford, when sentencing the Applicant, found that the motivation for the offending was “financial desperation” or “necessity, rather than a motivation of unfettered greed” - Exhibit 12 G24 p. 98.
In her summing up on 26 March 2020 Ms Donald submitted that the Applicant may not have been in financial distress at the time he committed the drug offences. Ms Donald referred to the fact that at time of his arrest the Applicant was earning approximately $700 per week and his wife was receiving Centrelink payments of approximately $350 per week. At the same time their rent was only $250 per week. Ms Donald concluded - Tr. 26.3.2020 pp. 92 - 93:
“So, it’s far from certain that he was actually under any financial desperation at the time that he made the decision to commit this offence.”
As has previously been highlighted, when the Applicant was sentenced the sentencing judge accepted that the Applicant had been motivated by financial desperation. With due respect to Ms Donald, the evidence presented to the Tribunal is consistent with that conclusion. It is not appropriate for the Tribunal to question the conclusions reached by the sentencing judge unless later evidence clearly contradicts those conclusions. Here the evidence presented is broadly consistent with the proposition that the Applicant and his family were experiencing financial problems at the time of the drug offences, and the Tribunal proceeds on that assumption.
The Tribunal had the benefit of receiving two statements from Mr Giang Son Nguyen dated 12 January and 23 November 2019 (Exhibits 5 and 6) and also hearing him give testimony.
Mr Nguyen’s family knew the Applicant’s family in Vietnam for a “long time”. Mr Nguyen is the owner of a business named Panda Building Materials, and he provided the following information in his statement of 23 November 2019 - Exhibit 5:
“I am running this business by myself and I am up to my ears in it. Thus, I need a person who not only can work but also make me trust in, because this job will trade directly with customers, bargain and take cash from them. The particularity of this position is working with cash and finance, it needs a reliable person.
In addition, I plan to open another shop in a regional area which can help me spread my business. Therefore, I really need a reliable person who can support me.
I have known [ZFHM] since he was in Vietnam. He is reliable, hardworking and enthusiastic. He also has skills and knowledge in using handy tools and our building materials while he was a handyman.
After consideration, I hereby offer [ZFHM] in this position as a full-time storeman and I am willing to give him a training course whenever he is ready.”
Mr Nguyen testified that his business normally employed five people, but following COVID–19 restrictions, he was employing three people as at 26 March 2020. There is an ongoing need for staff to maintain all the items, including stacking and checking for stock. Although much of the business is conducted online, there is also a delivery component. Mr Nguyen testified that staff were paid approximately $1000 per week after tax and this was for a five day work week – Tr. 26.3.2020 pp. 75 – 76.
Under cross-examination, Mr Nguyen provided the following information – Tr. 26.3.2020 pp. 76 – 77:
Ms Donald: …So what is the actual job that you’ve offered him?
Mr Nguyen: Okay, I offer him work like the storeman and sometimes if the job’s very busy he can do the cashier for me.
Ms Donald: What does a storeman do?
Mr Nguyen: The storeman is the person who maintain the items. Who check out which one is really needed. They can also order for me and he is the person who knows where I get the items from.
Ms Donald: So does the storeman sell, actually sell the items or he just maintains the---?
Mr Nguyen:---If the shop is very busy sometimes he has to sell the items also like the cashier.

In this instance the Tribunal formed the view that the nature of the Applicant’s criminal offending is not so serious that it falls within the category of criminal offending outlined in cl. 6(4).
On the other hand, it is the case that the Applicant has only resided in Australia for a very short period of time. The Applicant does not have a long history of living in Australia, and the commission of his drug offences occurred within two years of his arrival in Australia. This fact counts against the Applicant.
Also counting against the Applicant is that he held a temporary visa and that there is no expectation that he should be allowed to remain permanently in Australia – cl. 6.3(6). The Tribunal does not accept the submissions of the legal representatives of the Applicant that there is any expectation that the Applicant would be permitted to remain in Australia for the duration of that visa - (ASFIC para 29).
Finally, and importantly, is assessing the consequences for a visa cancellation on his two children and his wife.
The consequences of the removal of the Applicant on his children has been set out at length previously. It need only be repeated that the removal of the Applicant is likely to have a devastating impact on both children, and that FD, in particular, is emotionally and physically fragile. The absence of her father guiding and helping her in her formative years, and in her fragile state, will likely lead to negative consequences that she will bear for the rest of her life.
Of perhaps even greater concern is the impact the removal of the Applicant from Australia will have on his wife. In his second report, Mr Watson-Munro made the following observations - Exhibit 7 p. 8:
5It is clear that [ZFHM] will suffer if he is returned to Vietnam but even more so, is wife and children will be significantly destabilised. He stated that she is managing to cope in the present in the hope that [ZFHM] will be permitted to remain in the Australian community. Should this not occur, I suspect that she will experience a significant psychological decompensation and will require substantial support for her mental health.
In his summing up, Mr Poynder made these submissions - Tr. 26.3.2020 p. 90:
“And it’s my submission that she’s hanging on for dear life at the moment in the hope that her husband’s going to be released and come back and support her and the kids and reunite the family after such a long time.”
It was clear to the Tribunal when listening to TL’s testimony that she is a sick person and was noticeably anxious and stressed. The stress of bringing up two young children alone, in difficult financial circumstances and with both her and FD suffering ongoing health issues, is clearly having a deleterious impact on her. The Tribunal accepts Mr Watson-Munro’s observations that if the Applicant is removed from Australia, TL will suffer a significant psychological decompensation. This will not only be devastating for her, but also for her two young daughters.
The likely serious consequences for the Applicant’s family if he is removed from Australia, weigh in favour of him not being returned to Vietnam.
Conclusion: Primary Consideration C
The following matters weigh against the Applicant:
(a)conviction for drug offences is a serious matter;
(b)the Applicant has not lived in Australia for most of his life or for a very long period;
(c)the Applicant committed drug offences within two years of his arrival in Australia; and
(d)as the holder of a limited stay visa, there should be no expectation that the Applicant should be allowed to remain permanently in Australia.
The following matters weigh in favour of the Applicant:
(a)the Applicant has no criminal history other than his drug offences;
(b)the Tribunal accepts there is a low risk of him reoffending;
(c)the Applicant has repeatedly expressed remorse for his criminal conduct;
(d)the sentencing judge accepted that the Applicant had a very limited role and minimal involvement in the criminal enterprise;
(e)the sentences imposed on the Applicant were at the lower end of the scale; and
(f)the consequences for his family if the Applicant is removed from Australia are likely to be serious, and, in the case of his wife, potentially devastating.
The expectations of the Australian community are linked to the protection of the Australian community. At its core, Primary Consideration C requires a decision-maker to weigh up and evaluate the evidence presented with a view to determining if the personal circumstances of a non-citizen weigh more heavily than the criminal history of the non-citizen and the risk of the non-citizen reoffending. The focus of a decision-maker is, at the end of the day, the best interests of the Australian community.
Here, the Applicant has breached the trust of the community by engaging in criminal conduct, and doing so within only a short period after being given the privilege of living, studying and working in Australia. However, the Tribunal accepts that his criminal conduct was driven by financial need and the desire to support his young family. The Applicant’s level of involvement was minimal and of short duration. The sentencing judge recognised this by giving the Applicant relatively short sentences.
The Tribunal also accepts that there is only a low risk of the Applicant reoffending, and, importantly, if he removed from Australia, his family will suffer greatly.
In conclusion, the Tribunal has formed the view that the expectations of the Australian community in this instance weight in favour of the revocation of the cancellation of the Applicant’s visa. Although the Applicant has breached the trust of the Australian community, he has paid a very heavy price. He was raped while in immigration detention and suffered immediately thereafter psychological problems. The Applicant has been physically removed from his family, and this removal has had deleterious impacts on his daughters and his wife. The evidence before the Tribunal supports the proposition that he is at a low risk of reoffending, and with the offer of employment made by Mr Nguyen, it is likely that the Applicant will become a productive member of the community and a financial contributor to his family.
The Tribunal therefore finds that consideration weighs in favour of revocation of the cancellation of the Applicant’s visa. The Tribunal places moderate weight on this consideration.
OTHER CONSIDERATIONS
Introduction
Paragraph 14 of the Direction contains a non-exhaustive list of other considerations, which include:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed.
International non-refoulement obligations
Subparagraph 14.1 relevantly explains that a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
Neither party has raised non-refoulement as an issue and independently of the lack of submissions the Tribunal has determined that no issue arises on the evidence presented. Accordingly, this consideration is not relevant in this matter.
Strength, nature and duration of ties
Subparagraph 14.2 of the Direction provides that decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to the time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The legal representatives of the Applicant made the following submission - ASFIC para 30(a):
(a)The strength, nature and duration of ties to Australia weighs heavily in favour of the applicant. He has an Australian citizen wife and two Australian citizen children, which give him a close and continuing ties to Australia.
(emphasis in the original)
The Respondent made the following submissions – RSFIC paras 53 – 54:
53The applicant has resided in Australia for almost six years. In circumstances where the applicant began offending soon after arriving in Australia, the Minister submits that less weight should be given to the time he has resided here (paragraph 14.2(1)(a)(i)). Further, There is nothing to indicate that he has made any positive contribution to the Australian community (paragraph14.2(a)(ii)), noting in particular that he has spent more than half of his time in Australia in custody or immigration detention (since July 2015).
54Furthermore, aside from his wife and two daughters, the applicant has not identified any other family living in Australia. The Minister acknowledges that removal of the applicant will have an emotional impact on his wife and daughters. However, there is nothing to indicate that the applicant maintain contact with his immediate family through digital means or his family visiting him in Vietnam. Insofar as this consideration weighs in favour of revocation, it should be given limited weight and does not outweigh the primary considerations weighing heavily against revocation.
It is clear that the considerations outlined in cl. 14.2(a) weigh against the Applicant, namely:
(a)the Applicant arrived in Australia on 31 December 2013 when he was 30 years of age. Accordingly, the Applicant has only resided in Australia for approximately 6 ½ years, and all of his formative years were spent in Vietnam;
(b)the offences for which the Applicant was convicted were committed in July 2015. In short, the Applicant had only resided in Australia for 1 ½ years before he committed the serious offences for which he was convicted; and
(c)there is no evidence that the Applicant has made any particular positive contribution to the Australian community. This is not a criticism of the Applicant, but simply an acknowledgement of the fact that most of the time he has spent in Australia has been in gaol or immigration detention. When the Applicant was not in detention he was either mentally unwell following his rape, or a struggling student and then a struggling father of two young children.
Conversely, the considerations outlined in cl. 14.2(1)(b) weigh in favour of the Applicant, namely:
(a)The Applicant has other family members living in Australia. The Applicant testified at the second Hearing that his eldest brother lives in Sydney, is an Australian citizen and keeps in contact with his family – Tr. 26.3.2020 p. 67:
Ms Donald:                Your eldest brother is an Australian citizen living in Australia?
ZFHM:   Yes, he is.
…
Ms Donald:                He has children?
ZFHM:  No, he doesn’t have any children with his wife but then the children are from his wife’s previous relationship.
Ms Donald:               I see. Does your brother and his family spend time with your wife and your daughters?
ZFHM:   Yes, but sometimes they ring my wife.
Ms Donald:                Do they spend time with your daughters?
ZFHM:   Yes, yes.
Ms Donald:                How often does your brother see your daughters?
ZFHM:   About once every fortnight or once every month.
Ms Donald:                He has a good relationship with your daughters?
ZFHM:   Yes, a good relationship, yes.
(b)the Tribunal has received into evidence, and considered, a number of testimonials provided by the Applicant’s relatives and friends, all of whom reside in Australia and who support the links he has to Australia, namely: Giang Son Nguyen (Exhibit 12 G15 p. 42; Exhibit 5 & 6), Manh Van Tran (Exhibit 12 G15 pp. 43, 47), AD (Exhibit 12 G15 p. 44), Thanh (Exhibit 12 G15 p. 45) and Quang Hoc Hoang (Exhibit 12 G15 p. 46);
(c)as previously discussed the Applicant’s wife and two daughters are all Australian citizens;
(d)the undisputed evidence is that the Applicant has a very close and loving relationship with his wife and children;
(e)the removal of the Applicant from Australia will have a negative impact on his family, with Mr Watson-Munro opining that his wife may suffer significant psychological issues, which in turn will negatively impact on her daughters;
(f)TL has never worked and is totally reliant on Centrelink payments. She lives with her mother and stepfather, and at times the relationship between TL and her parents is strained because of FD’s constant crying – Tr. 26.3.2020 p. 54. Further TL’s mother receives a disability allowance and is not able to financially help her – Exhibit 11 TB4 p. 143. TL testified that she would prefer not to live with her parents, but cannot afford to do so but would move out as soon as the Applicant is released from detention - Tr. 26.3.2020 p. 54;
(g)If the Applicant is removed to Vietnam, the evidence suggests that TL and his daughters will not be able to visit him unless they receive funding. At the first Hearing TL gave the following testimony – Exhibit 11 TB4 pp. 158 – 159:
Member:                   You travelled to Vietnam and you were there for some time, from November 2017. Before you left you were living - you were living with the applicant?
TL:Yes.
Member:So, now how were you able to afford to go to Vietnam?
TL:The ticket payment was my Centrelink payment and also his family, his mother, the grandma, gave me a little bit and I support…with my Centrelink payment because they give me six weeks payment, yes.
Member:The reason I am asking that is if he has to go back will you be able to visit him in Vietnam?
TL: No I can’t,
Member:Because?
TL:Because, then I will have to pay everything, look after the kids, I can’t afford it.
Member:Because you did it before, Centrelink, some help from his family and so on?
TL:Because that time I was sick. I was sick too. That’s why my family helped me a bit too because I’m sick too.
Member:All I am asking is will you try to go and visit your husband if he is non longer able to come to Australia or not?
TL:will try but I know there’s no hope.
The Tribunal finds that the removal of the Applicant to Vietnam will have a negative impact on his wife and two children.
The Tribunal also finds that the Applicant has close links with his eldest brother and his family all of whom, the evidence suggests, are Australian citizens.
The removal of the Applicant to Vietnam is likely to also have a negative impact on the Applicant. It is clear that the Applicant has a close and loving relationship with his wife and children. The commission of the criminal offences that led to the cancellation of his visa was motivated by financial desperation and his desire to care for his family. In short, it was the love for his family that led the Applicant to commit criminal offences that were apparently totally out of character.
If the Applicant is removed from Australia, it is likely that under the current legislative regime, he will be permanently barred from returning. Insofar as TL is totally dependent on social security and has no independent means of support, she will find it difficult to visit the Applicant in Vietnam. This would, no doubt, cause the Applicant considerable anguish.
Conversely, the Tribunal has also taken into account that the Applicant offended shortly after arriving in Australia, and was the holder of a temporary visa. The brevity of time the Applicant has spent not in detention whilst residing in Australia necessarily means that his positive contribution to the Australian community is minimal.
Overall, then, the Tribunal finds that this consideration weighs in favour of the revocation of the cancellation of the Applicant’s visa, but only moderate weigh can be placed on it.
Impact on Australian business interests
No submissions were made on this consideration. There is no evidence, for example, that the Applicant has been involved in the delivery of a major project or delivery of an important service in Australia. The only evidence of any relevance was that of Mr Nguyen and his offer of employment for the Applicant. Insofar as the Applicant has never worked for Mr Nguyen, and the offer of employment is prospective only, no weight can given to this offer for the purposes of this consideration.
In the circumstances, the Tribunal places no weight on this consideration.
Impact on victims
The legal representatives of the Applicant submitted that this consideration does not arise in this case as the cannabis the subject of the charges was not disseminated into the community - ASFIC para 30(b).
The Tribunal agrees with the Applicant that this consideration does not arise, and, accordingly, the Tribunal places no weight on this consideration.
Extent of impediments if removed
Subparagraph 14.5(1) of the Direction provides that a decision-maker must take into account the extent of any impediments that the Applicant may face if removed from Australia to Vietnam, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of Vietnam) taking into account:
(a)the Applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to the Applicant in Vietnam.
The Respondent made the following submissions - RSFIC para 56:
“There is no substantial language or cultural barriers for the applicant to overcome, particularly in circumstances where he lived and worked in Vietnam for some 30 years prior to arriving in Australia. Further, as a citizen of Vietnam, the applicant has the same access to social and economic support as other citizens (including eligibility to social security benefits). While the applicant may face some difficulty in re-establishing himself in Vietnam due to his short residence in Australia, there is nothing to indicate that any hardship would be insurmountable.”
The Tribunal agrees in part with this submission and finds:
(a)the Applicant is still a young man, and apart from the psychological problems he experienced in the period immediately following his rape, is now in relatively good physical health;
(b)the Applicant continues to be highly anxious and stressed - Exhibit 7 p. 4;
(c)there are no substantial language or cultural barriers if he returned to Vietnam. Insofar as the Applicant has lived in Vietnam for the first 30 years of his life, and has only resided in Australia for the last 6 ½ years, there is no evidence that suggests he would experience any difficulties re-integrating into Vietnamese society;
(d)the Applicant’s mother and two brothers, as well as members of his extended family live in Vietnam. Previously his brothers have helped the Applicant find employment. Accordingly, the preponderance of evidence suggests that if he returned to Vietnam, the Applicant would have social and economic support from his immediate and extended family - Exhibit 11 TB3 pp. 46 – 47;
(e)the Applicant successfully completed a business degree at the Cong Doan University in Hanoi, graduating in 2011. Further, the Applicant has a solid history of gaining and maintaining employment in Vietnam, in particular in the shipping industry - Exhibit 11 TB3 pp. 47 – 48. This suggests that the Applicant would be likely to obtain appropriate employment if he was returned to Vietnam;
(f)there is no evidence before the Tribunal concerning the economic or medical support that would be accorded to the Applicant as a citizen of Vietnam. Importantly, there is no evidence as to whether the Applicant could readily obtain the services of mental health professionals; and
(g)the Applicant has continually expressed his distress at the prospects of being separated form his wife and children. Whilst, in theory, he should be able to easily re-integrate into Vietnamese society for the reasons outlined above, nonetheless the evidence of Mr Watson-Munro and the Applicant’s own testimony, leads to the conclusion that such separation will have potentially devastating effects. In such circumstances, it is likely that the Applicant will face difficulties in re-establishing himself in Vietnam.

The Tribunal finds that this consideration weighs slightly in favour of revocation. The Tribunal attributes only moderate weight to this consideration.
CONCLUSION
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the considerations prescribed in the Direction.
The Tribunal makes the following findings:
(a)Primary Consideration A is of neutral weight;
(b)Primary Consideration B weighs heavily in favour of revocation;
(c)Primary Consideration C weighs moderately in favour of revocation;
(d)Other Considerations – International non-refoulement obligations is of neutral weight;
(e)Other Considerations – Strength, nature and duration of ties weighs moderately in favour of revocation;
(f)Other Considerations -Impact on Australian business interests is of neutral weight;
(g)Other Considerations - Impact on victims – is of neutral weight; and
(h)Other Considerations – Extent of impediments if removed weighs only moderately in favour of revocation.
This is a tragic and sad matter. The Applicant came to Australia with high hopes of completing his university studies but language problems prevented him starting his course. Then he met TL. She arrived in Australia as a child from Vietnam and started a family when she was very young. When her marriage broke down she returned to Vietnam met a man and fell pregnant. It would appear their relationship also broke down and she returned to Australia and gave birth to CN. Shortly after that she met the Applicant and they quickly became inseparable.
TL has never been in the workforce and the Applicant found it difficult to financially support his family. This was compounded when TL fell pregnant with FD. A degree of financial desperation afflicted the family, and the Applicant foolishly agreed to transport a shipment of cannabis. The sentencing judge found that this was the first time the Applicant had been involved in the criminal enterprise and was a minor player. The Applicant was arrested before the cannabis was released into the community. The sentencing judge gave the Applicant relatively lenient sentences.
The Applicant was first incarcerated and then placed in immigration detention. Whilst he was in immigration detention he was raped by two men. When he was released from immigration detention he was mentally unwell, and was hospitalised on two occasions.
It was during this time that the Applicant failed to comply with his parole obligations and on 2 February 2017 the New South Wales State Parole Authority revoked the Applicant’s parole. This eventually was the catalyst for the revocation of his visa. Ironically, on 9 January 2018 the State Parole Authority rescinded its decision when the reason for the breach was explained.
Despite the State Parole Authority rescinding its decision, the Applicant’s request for revocation of the cancellation of his visa was refused on 26 November 2018 by the delegate of the Minister – Exhibit 12 G22 pp 82 – 91.
Further misfortune visited the family when TL and FD were injured when they were involved in a traffic accident. It would appear that FD suffered both physical and psychological injuries and has speech problems. The evidence suggests that FD suffers from nightmares and cries constantly.
The removal of the Applicant from his family has had deleterious impacts on all concerned. TL described her state of health in the following terms - Exhibit 12 G38 p. 152.
“I am just a lady with weak physical personality, who is in a sick situation of 7 days out of 10, therefore, I am familiar with a state that having my husband to be by my side, every day, as my carer, whenever I was sick. But in fact, my family is facing with a big incident, that caused me to be upset and exhausted, being stress, and couldn’t find any relaxation and happy time for myself, of having my husband by my side.
I myself, had to worry about daily financial matters, taking care of my 2 young kids, most of the time, I am in hopeless because I haven’t got the sharing of duties and assistances from my husband as before.”
The Tribunal has accepted the conclusions of Mr Watson-Munro that the Applicant poses only a low risk of reoffending.
The Tribunal has also accepted the genuineness of the employment offer of Mr Nguyen.
Clearly, the commission of any drug offence is a serious matter and does not fulfil the expectations of the Australian community that a non-citizen who is given the privilege of residing here will obey the law.
It is a matter of concern that the Applicant committed his drug offences only shortly after arriving in Australia. That, in most circumstances, would count heavily in favour of non-revocation. However, the circumstances of this matter lead the Tribunal to the conclusion that the cancellation decision should be revoked.
First, the Applicant does not have a criminal history here or in Vietnam other than the two drug offences. In addition, the Applicant has been in constant employment in Vietnam and attempted to gain ongoing employment in Australia. Further, the Applicant successfully graduated from university in Vietnam with a business degree. In short, the Applicant has been a productive member of society in both Vietnam and Australia.
Second, the Applicant was involved in a one-off and relatively minor role as a prohibited drug courier. As noted on previous occasions, his minor role and that the fact it was his first time in transporting cannabis was reflected in light sentences he received.
Third, and most importantly, the Tribunal accepts Mr Watson-Munro’s conclusion that the Applicant poses only a low risk of reoffending.
Fourth, the removal of the Applicant will have devastating impacts on his family. TL and FD are both physically and psychologically fragile. The removal of the Applicant to Vietnam will have immediate and ongoing deleterious impacts on TL and both children.
After considering each of the relevant considerations and according them due weight, I have decided that the interests of the Applicant’s minor children and the expectations of the Australian community, together the with other considerations, weigh in favour of revocation of the cancellation decision.
DECISION
The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked.

I certify that the preceding 330 (three hundred and thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President John Sosso.

.............................[sgd]...........................................
Associate
Dated: 5 June 2020

Date of hearing: 26 March 2020

Applicant:

Solicitors for the Applicant:

Appeared via videolink

Mr M Northam

Counsel for the Applicant: Mr N Poynder

Solicitors for the Respondent: Ms M Donald

Date of hearing:	26 March 2020
Applicant: Solicitors for the Applicant:	Appeared via videolink Mr M Northam
Counsel for the Applicant:	Mr N Poynder
Solicitors for the Respondent:	Ms M Donald