Afu v Minister for Home Affairs

1. Section 499(1) provides that the Minister may give written directions about the exercise of functions or powers under the Act. On 20 December 2018, the then Minister for Immigration, Citizenship and Multicultural Affairs (who is jointly authorised with the Minister for Home Affairs to administer the Act) made a direction under section 499, namely Direction No.79 (hereinafter referred to as " the Direction") which commenced on 28 February 2019. Section 499(2A) of the Act requires that the Tribunal must comply with the Direction in considering this matter.
2. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[6]
   1. Informed by the principles in paragraph 6.3 above, a decision maker:

(a) must take into account the considerations in .... Part B where relevant in order to determine whether a non-citizen will forfeit the privilege of being granted,... a visa;

1. In paragraph 6.2(3) of the Preamble, the Direction provides:
   1. The principles provide a framework within which decision-makers should approach their task of deciding whether to... refuse a non-citizen's visa under section 501... The relevant factors that must be considered... in making a decision under section 501 are identified in ... Part B ... of this Direction.
2. The principles referred to in paragraph 6.2(3) are found in paragraph 6.3 of the Direction, and may be briefly stated as follows:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizen's in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;

(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;

(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In the circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia.

(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen 's visa should be cancelled, or the visa application refused.

1. Paragraph 7 of the Direction requires a decisionmaker to take into account the considerations in (of present relevance) Part B in order to determine whether a non-citizen will forfeit the privilege of being granted a visa.
2. Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case, and importantly, a visa Applicant should have no expectation that a visa application will be approved. Paragraph 8(2) provides that in applying these considerations, information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 8(3) provides that both primary and other considerations may weigh in favour of, or against, refusal of a visa. Paragraph 8(4) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 8(5) provides that one or more primary considerations may outweigh other primary considerations.
3. Three primary mandatory considerations relevant in the context of a decision to refuse a non-citizen's visa appear in Part B of the Direction at paragraph 11:

(a) Protection of the Australian community from criminal or other serious conduct;

(b) The best interests of minor children in Australia;

1. The Other Considerations which must be taken into account are provided in a

non-exhaustive list in paragraph 12 of the Direction. These considerations are:

1. The Tribunal notes and emphasises the importance of these considerations being "other" considerations, as opposed to "secondary" considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[7]

...Direction 65 [now Direction 79] 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'. Direction 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 the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. 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.

1. The Tribunal now turns to addressing these considerations.

PRIMARY CONSIDERATION A - PROTECTION OF THE AUSTRALIAN COMMUNITY

1. In considering Primary Consideration A, paragraph 11.1(1) of the Direction compels decision-makers to 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, and that there is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. The paragraph also stipulates that decision-makers should also give consideration to:

(a) The nature and seriousness of the non-citizens conducted to date; and

(b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

1. In considering the nature and seriousness of the non-citizen's criminal offending or other serious conduct to date, decision-makers must have regard to factors including those set out in paragraph 11.1.1(1) of the Direction:

(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) where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

(e) the principal that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;

(f) subject to paragraph (b) above, the sentence imposed by the courts for a crime or crimes;

(g) the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;

(i) whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

(j) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

1. The first step is considering the nature and seriousness of the non-citizen's conduct to date. Such conduct must be measured in accordance with paragraph 11.1.1 of the Direction having regard to the Applicant's criminal history. The totality of the Applicant's offending can be gleaned from the following documents before the Tribunal:

(a) his criminal history which appears in a document called "Check Results Report" from the Australian Criminal Intelligence Commission;[8]

(b) the Transcript of Proceedings in the District Court of Queensland on 10 October 2019;[9]

(c) the Integrated Offender Management System Sentence Calculation Details report from the Queensland Department of Corrective Services dated 21 October 2019;[10]

(d) the Queensland Police Service Charge List dated 19 December 2016;[11] and

(e) the Vietnamese Criminal Record Certificate dated 15 March 2016.[12]

1. The Applicant's Statement of Issues Facts and Contentions[13] were as follows:

APPLICANT'S STATEMENT OF FACTS ISSUES AND CONTENTIONS

ISSUE

The issue in this application is whether the correct or preferable decision is to set aside the decision of the respondent's delegate made on 9 November 2020 to refuse the applicant's application for a Bridging E visa under s 501(1) of the Migration Act 1958 (the Act).

FACTS

The chronology sets out the events which are admitted by the applicant and are relevant to this application.

Applicant's partner, Witness A2, born in Vietnam

Applicant first arrives in Australia on a subclass 573 Higher Education Sector visa valid until 30.8.16

Applicant shown on CCTV purchasing vacuum- sealed bags for the purpose of packaging a commercial quantity of cannabis

Police conducting search at Upper Mount Gravatt (Brisbane) find six vacuum-sealed bags containing

1.82 kgs of cannabis. Applicant's fingerprints detected on bags.

Police conducting search in Inala (Brisbane) in the presence of three individuals (not including the applicant)2 find 39.86 kgs of cannabis in vacuum- sealed bags, together with a vacuum-sealing machine with applicant's fingerprints on the base.

Police conducting surveillance in Inala and Sunnybank observe applicant with two others driving Toyota to shopping centre, where 44.61 kgs of cannabis in 100 bags delivered by applicant to two other vehicles, for sale to customers.

Applicant arrested and charged with four offences:

Trafficking in a dangerous drug (cannabis)

Possess dangerous drug (cannabis)

Possess vacuum sealing machine and bags used in connection with trafficking in dangerous drug (cannabis)

Supply dangerous drug (cannabis) Applicant granted watch-house bail.

G-Docs at 33-34

Statement of Facts

Applicant lodged application for Partner visa on basis of relationship with Ms Vu

Applicant ends relationship with Ms Vu Applicant withdraws application for Partner visa

G-Docs at 98

G-Docs at 38

Daughter, Child G [redacted], born in Liverpool to applicant and Witness A2

After pleas of guilty, applicant sentenced in District Court of Queensland (Judge Jarro) on three counts as follows:

Count 1 - Produce dangerous drug (cannabis):

9 months imp., concurrent with sentence on Count 3

Count 2 - Possess vacuum sealing machine used in connection with trafficking in dangerous drug (cannabis):

3 months imp., concurrent with sentence on Count 3

Count 3 - Possess dangerous drug (cannabis) in excess of 500 grms

3 yrs imp., 26 months suspended for 4 years

Applicant released from Brisbane Correctional Centre after serving sentence and transferred to Brisbane Immigration Transit Accommodation Centre

Respondent sends applicant Notice of intention to consider refusal of visa under s 501(1)

Dr Chan, senior clinical psychologist, assesses applicant as being of low risk of reoffending

Respondent makes decision to refuse application for a visa

Applicant lodges application for review with Tribunal

CONTENTIONS

Protection of the Australian community - Direction 79, par 11.1

The nature and seriousness of the applicant's conduct - Direction 79, par. 11.1.1

The applicant accepts the facts which establish the offences for which he was sentenced on 10 October 2019.

It is also noted:

(a) The applicant was originally charged with the very serious offences of traffick (sic) and supply dangerous drug; however these charges were apparently unsustainable on the facts and he eventually pleaded guilty to the three charges referred to in the sentencing remarks.

(b) The applicant played a peripheral role in the overall criminal enterprise. The main target of the Queensland State Drug Squad operation was a syndicate operating multiple cannabis grow houses in South East Queensland which was supplying a Brisbane-based syndicate; the applicant was not the main target. The Facts section in the relevant part of the Queensland Police Court Brief supports this contention; there is no reference to the applicant being a part of the syndicate, nor was he identified as the "Sydney-based courier" who delivered the 100 lbs of cannabis from Sydney to Brisbane; the applicant's only role was to have purchased the vacuum sealed bags for a purpose of packaging a commercial quantity of cannabis (Count 1), possessing a vacuum-sealing machine "at least momentarily" for use in connection with packaging a commercial quantity of cannabis into clipseal bags (Count 2)8, and - the most serious offence - transporting cannabis in the boot of the car from an unknown location to another person for an (unknown) commercial reward because the cannabis was to be onsold to another customer or other customers (Count 3).9

(c) There is no evidence that the applicant acted out of greed or made any large amounts of money from his conduct. He did not participate in the financing of the syndicate or provide any of assistance in setting up the transfer of cannabis. He did not share in any of the profits of the syndicate; the sentencing judge's comment that "perhaps" the applicant's criminal conduct was done "out of desperation for money" (G 29:19-20) is borne out by all of the available evidence, including the applicant's statement (G 39) and what he told the psychologist, Dr [redacted] Chan (G 153).

(d) The applicant pleaded guilty, which is indicative of remorse and was regarded by the sentencing judge as being to his credit (G 28:17-21).

(e) As pointed out by the applicant's former representative (G 58 [4]), the actual sentence imposed on the applicant was very much at the lower end for this type of offence, although it is accepted that any sentence of imprisonment is indicative of serious offending.

In summary, the applicant's criminal conduct may be characterised as a low level example of a serious offence. This is reflected in the actual sentence of three years imposed on the applicant where the maximum penalty was twenty years (G 28:13-15), and the comparatively low non-parole period of ten months. In imposing this comparatively low sentence his Honour gave weight[14] to the applicant's prior clean record, his peripheral role in the criminal enterprise, and the mitigating circumstances which led to his involvement in the criminal conduct.

Risk to the Australian community - Direction 79, par. 11.1.2

The only recent assessment of the applicant's prospects of re-offending has been by Dr Chan in his Report dated 23 October 2020 (G 149-162). Dr Chan, over a period of three days (14, 16 and 21 October 2020), conducted clinical interviews and psychometric assessments of the applicant and concluded that the applicant's risk of recidivism is now "low" (G 160). This is consistent with the finding of the delegate, who at [32] (G-Docs at 21) accepted that the applicant's risk of re-offending is "low".

The Tribunal ought to accept the expert evidence that the applicant is at low risk of reoffending

This is not the sort of case where the conduct of the applicant has been so serious that any prospect of re-offending would represent an unacceptable risk to the Australian community. The applicant was a small cog in an obviously much larger criminal syndicate; his role was not such that there is an unacceptable risk of harm to the Australian community if he is to remain in Australia.

On the first primary consideration, being the protection of the Australian community, the serious nature of the offending will weigh against the applicant; however, this is ameliorated by his low risk of re-offending. It is contended that, overall, this factor will weigh against the applicant, although not very heavily and certainly not decisively.

Best interests of minor children in Australia affected by the decision - Direction 79, par. 11.2

The applicant has a very young daughter, [Child G]. If the applicant is required to leave Australia, his partner is most unlikely to relocate with him, and [Child G] will lose all real contact with her father. While there might not have been much in the way of physical contact between the applicant and [Child G] since his incarceration, that does not negate the likelihood that [Child G] would not be severely affected by the absence of his (sic) father for the rest of his (sic) childhood.

It is trite to observe in removal cases that children will suffer if physically separated from a parent. In their 2014 paper referred to by Dr Chan (G 160), Brabeck, Lykes and Hunter say the following, at 500 (references removed):

The detrimental effects of forced and unexpected parent-child separation, even when children are well cared for in a safe environment, have long been documented in the psychological and psychiatric literature...Unlike separations involved in voluntary migration decisions, which may include economic benefits but social- emotional costs, forced separations owing to deportation incurred the social emotional cost without the economic benefit (in fact, economic situations typically deteriorate further following deportation...Deportations involve a double or triple trauma for children, who may witness the forcible removal of the parent, as they suddenly lose their caregiver and/or abruptly lose their familiar home environment...From the attachment theory perspective..., a child's sense of security is rooted in relationships with familiar caregivers; this secure base is a necessary foundation for developing social, cognitive, and emotional regulation skills that are fundamental throughout life. The physical separation between a parent and child, particularly when unexpected as in the case of deportation, disrupts this essential secure base, risking internalizing symptoms (depression, anxiety), externalizing behaviours (withdrawal, aggression), and social and cognitive difficulties...All learning - whether learning the alphabet, learning to wait one's turn, or learning to tolerate frustration - happens in the context of important relationships, of which the primary caretaker-child relationship is paramount. When these relationships are disrupted, the learning processes and the establishment of the important neuronal pathways also are disrupted.

There is no realistic way that Child G would be able to maintain contact with her father "in other ways": cf, Direction 79 at 9.2(4)(d). There is unlikely to be the resources for the applicant's partner to make visits to Vietnam in anything like the frequency that would be required for [Child G] to maintain an adequate relationship with her father, and alternative communication by such electronic means as telephone or video chat is increasingly being realised by this Tribunal as something that "does not offer a practical solution that would be in the best interests of the children and their development": HMDS and Minister for Immigration [2020] AATA 1634 at [84] (SM Puplick).

The best interests of [Child G] ought to be recognised as an issue of the highest order in this case.

Expectations of the Australian community - Direction 79, par. 11.3

The applicant accepts that the expectations of the Australian community will generally weigh against an applicant. However it is contended that where there is a low prospect of re-offending and where there is an Australian citizen partner and child who will be deprived of the applicant's presence in the event of removal, this factor should not weigh heavily against the applicant.

International non-refoulement obligations - Direction 79, par. 12.1

This is not a relevant factor in the present case.

Impact on family members - Direction 79, par. 12.2

The effect of the removal of the applicant on his daughter has been referred to, above.

Dr Chan at G 160 described the impact of a visa refusal on the applicant's partner as being "very significant":

It is anticipated that Ms. [redacted] mental health would deteriorate which would further interfere her ability to care for her daughter and financially support herself. Given a history of depression and current depression episode, her suicidal risk would increase.

This factor ought to weigh heavily in favour of the applicant.

Impact on victims - Direction 79, par. 12.3

This is not a relevant factor in the present case, since no victims have been identified.

Impact on Australian business interests - Direction 79, par. 12.4

This is not a relevant factor in the present case.

CONCLUSION

The decision under review ought to be set aside and substituted with a decision that applicant's visa ought not be refused under s 501 of the Act.

[Some citations omitted]

1. The Respondent's Statement of Facts Issues and Contentions[15] was as follows:

RESPONDENT'S STATEMENT OF FACTS, ISSUES AND CONTENTIONS DECISION UNDER REVIEW

By an application made on 21 November 2020, the applicant seeks review of a decision of a delegate of the respondent (Minister) dated 9 September 2020 to refuse to grant the applicant a Bridging visa (Class WE) under to s 501(1) of the Migration Act 1958 (Cth) (Act).

The application for review is made in accordance with s 500(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (Tribunal) for review of decisions of a delegate of the Minister under s 501(1) of the Act.

The issues before the Tribunal are whether the applicant meets the character test as defined in s 501(6) of the Act, and if he does not, whether the discretion in s 501(1) of the Act should be exercised to refuse to grant the applicant a visa.

The Minister contends that the applicant does not meet the character test, and that the correct and preferable decision is to exercise the discretion in s 501(1) of the Act to refuse to grant the applicant the visa.

BACKGROUND

The applicant is a 35 year old citizen of Vietnam who made an application for a combined Partner (Temporary) and Partner (Residence) visa on 18 August 2020. In connection with the combined application, the applicant lodged an application for a Bridging visa (Class WE) (the visa). He first arrived in Australian in 2013 as the holder of a student visa.

On 10 October 2019, the applicant was sentenced in the Brisbane District Court in relation to the following offences:

Possessing dangerous drugs schedule 2 quantity of or exceeding schedule 3 - sentenced to three years imprisonment suspended for four years after serving 10 months.

Produce schedule 2 drug - other cases - sentenced to nine months imprisonment (to be served concurrently).

Possessing anything for use in the commission of crime defined in part 2 - sentenced to three months imprisonment (to be served concurrently).

On 10 September 2020, the applicant was sent a notice of intention to consider refusal of the grant of the visa under s 501(1) of the Act (G22). The applicant responded to the notice by providing submissions and evidence.

On 9 November 2020, a delegate refused to grant the visa under s 501(1) of the Act (G3). The applicant was not notified of this decision on 13 November 2020.

On 21 November 2020, the applicant sought review of this decision in the Tribunal (G2).

ISSUES

The issues for the Tribunal are:

Whether the applicant passes the character test (as defined in s 501(6)); and

If he does not, whether the Tribunal should exercise the discretion in s 501(1) to refuse to grant the visa.

LAW

Under s 501(1) of the Act, the Minister (or a delegate) may refuse to grant a visa if that person does not pass the character test prescribed in s 501(6) of the Act. In its terms, s 501(1) of the Act confers a discretion. Even if the applicant does not pass the character test, the Tribunal has a discretion as to whether or not to refuse to grant him a visa.

In deciding whether the applicant passes the character test, and if not then in deciding how to exercise its discretion, the Tribunal must have regard to Ministerial Direction No 79 (Direction 79), being a direction made by the respondent under s 499 of the Act.

Direction 79 is separated into three parts: Part A, B, and C. Part B identifies the considerations relevant to visa applicants in determining whether to exercise the discretion to refuse a non-citizen's visa, and is the section that is applicable to this matter.

Informed by the Principles at paragraph 6.3 of Direction 79, the decision-maker must take into account the primary considerations, set out in section 11 in Part B of Direction 79, in deciding whether to refuse a non-citizen's visa:

Protection of the Australian community from criminal and other serious conduct;

The best interests of minor children in Australia; and

In section 12 of Part B, there are other considerations related to visa applicants which must be taken into account, where relevant. These considerations are:

CONTENTIONS

The character test

Failure of the character test arises as a matter of law.[16] As noted above, the applicant was sentenced to a term of imprisonment for three years for the drug possession offence. The Minister therefore contends that the applicant has a substantial criminal record (as defined by s 501(7)) and does not pass the character test: s 501(6)(a) of the Act.

The Minister contends that the determinative issue for this Tribunal is whether the grant of the visa should be refused. Below, this issue is addressed by reference to the factors set out in Part B of Direction 79.

The Protection of the Australian Community

Pursuant to paragraph 11.1 of Direction 79, this factor involves consideration of (a) the nature and seriousness of the applicant's conduct to date, and (b) the risk to the Australian community should he commit further offences or engage in other serious conduct.

Nature and seriousness of conduct

Paragraph 11.1.1 of Direction 79 sets out the factors to which decision-makers must have regard when considering the nature and seriousness of the applicant's criminal offending or other serious conduct.

Fort (sic) the following reasons, the Minister contends that the applicant's offending should be viewed as serious.

On 10 October 2019, the applicant was sentenced in the Brisbane District Court in relation to the three drug offences referred to above and the sentencing remarks are before the Tribunal. The sentencing judge described the offences as 'very serious offences' and that the offending, particularly in relation to count three, involved 'not an insignificant amount of drugs' (G5/28). In relation to the first count, producing a dangerous drug, police conducted a search on 28 June 2016 and located 1.82 kg of cannabis packaged in six vacuum-sealed bags. The applicant was sentenced on the basis that he purchased the vacuum-sealed bags for a purpose of packaging a commercial quantity of cannabis. In relation to the second count, possessing a thing for use in connection with producing a dangerous drug, the applicant was sentenced on the basis that he possessed a vacuum-sealing machine at least momentarily for use in connection with packaging a commercial quantity of cannabis into clip-seal bags. The most serious offence was the third count and involved the applicant transporting 44.61 kg of cannabis from an unknown location with the purpose of allowing another driver to take possession of it. The applicant was to receive an unknown commercial reward for transporting the drugs and the intended destination for the cannabis was to be sold onto other customers.

Regard must also be had to the sentence imposed by the Court for his crimes (paragraph 11.1.1(1)(f) of Direction 79). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. Accordingly, where a Court has sentenced an offender to a term of custodial imprisonment, this must be viewed as a reflection of the object seriousness of the offences involved. Here, the applicant was sentenced to a lengthy three year sentence for his most serious drug offence.

Risk to the Australian community

In assessing whether the applicant represents an unacceptable risk of harm to the Australian community, regard must be had to paragraph 11.1.2 of Direction 79, which provides that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Decision-makers must have regard to, cumulatively, (a) the nature of the harm to individuals or the Australian community should the non-citizen engage infurther (sic) 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 applicant re-offending.

The nature of the harm should the applicant reoffend in the future is serious, as the consequential effect of the production and possession of large quantities of illicit drugs may result in physical and psychological harm to individual users to whom the drugs are ultimately supplied, crimes committed by users and increased costs to the community in terms of law enforcement, the justice system and the public health system.

Illicit drugs have a significant and deleterious impact on the Australian community. In its National Drug Strategy for 2017-2026, the Commonwealth Government said the following about cannabis use in Australia (citations omitted):

In 2016, 10.4% of Australians over the age of 14 had used cannabis in the last 12 months and 34.8% had used cannabis in their lifetime. As the most widely used of the illicit drugs in Australia, cannabis carries a significant burden of disease. The use of cannabis can result in various health impacts, including mental illness, respiratory illness, and cognitive defects. In particular, cannabis dependence among young adults is correlated with, and probably contributes to, mental disorders such as psychosis.

The Australian Institute of Health and Welfare identified that some of the long- term effects of cannabis use include physical dependence, upper respiratory tract cancers, chronic bronchitis, cardiovascular system damage, mental health conditions including depression and poor adolescent psychosocial development. Cannabis was also the second most common drug identified at toxicology for transport accident deaths.

Appellate Courts have also identified that the correlation between the use of cannabis and mental illness and progression to harder drugs is a familiar theme in sentencing materials in more recent times.[17]

In relation to the risk of reoffending, the applicant has explained that his offending arose in the context of financial desperation (G9/39). The Minister contends that the applicant remains an unacceptable risk of reoffending for these reasons:

The applicant's offending appears to have been motivated by financial distress and there is no evidence before the Tribunal to indicate the applicant has sought any assistance for, nor overcome, these difficulties, which will act as stressors on release and contribute to his risk of reoffending.

Some of the protective factors identified by Dr Chan in the report dated 23 October 2020 - including a stable relationship stable accommodation were in existence whilst the applicant was offending.

Given that the applicant has been in custody or immigration detention since October 2019, the Minister contends that sufficient time has not elapsed where the applicant has not been in an unsupervised environment within the community and the likelihood of his reoffending remains a real possibility.

Given the serious nature of the offending and the possible harm if it were to be repeated, the Minister contends that even a low risk of reoffending is unacceptable. In this regard, the Minister emphasises the general principles of Direction 79 which provide that Australia has a low tolerance of criminal offending by those on limited stay visas, such as the applicant who was the holder of a student visa at the time of his offending (paragraph 6.3(6) of Direction 79).

The Minister contends that the protection of the Australian community weighs heavily against renovation (sic).

Best interests of minor children

Paragraph 11.2 of Direction 79 sets out a number of factors to be considered in assessing the best interests of minor children. These include: the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child; the likely effect that any separation from the person would have on the child; whether there are any other people who fulfil parental roles with the child; any known wishes of the child; and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person's actions.

The applicant has one minor biological daughter, [Child G] (DOB: [redacted] September 2018, aged two) with his partner, Ms [Witness A2].

The Minister contends that lesser weight should be given to the applicant's daughter's best interests because she is cared for by her mother who fulfils the parental role (paragraph 11.2(4)(e) of Direction 79) and there is no reason why the applicant could not continue to communicate with his daughter electronically if he were returned to Vietnam (paragraph 11.2(4)(d) of Direction 79) .

Expectations of the Australian community

This primary consideration weighs in favour of refusal. Regard must be had to the principle that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa.

The Full Court of the Federal Court of Australia considered paragraph 11.3(1) of Direction 65, which provision is analogous to paragraph 11.3(1) of Direction 79, in FYBR.[18] In FYBR, the majority (Charlesworth and Stewart JJ) concluded that:

Paragraph 11.3 contains a statement of the government's views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.4 It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant's circumstances or evidence about those expectations.5

The content of the expectations of the Australian community as expressed in paragraph 11.3 is as follows:

"If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive."[19]

The effect of paragraph 11.3(1) points to the likelihood that community expectation will in most cases call for refusal, without dictating an inflexible conclusion.[20] The question for a decision-maker is the weight to be attached to this consideration.[21]

In accordance with paragraph 11.3(1) and principles 6.3(1)-(3) and (6) of Direction 79, the Australian community would expect that the applicant should not be allowed to remain in Australia. Accordingly, the Minister contends that the primary consideration of the expectations of the Australian community weighs in favour of refusal.

Other considerations

Impact on family members

Paragraph 12.2(1) requires the Tribunal to consider the impact of visa refusal on immediate family members in Australia where those family members are Australian citizens, Australian permanent residents or persons with a right to remain indefinitely.

The Minister acknowledges that the applicant's Australian citizen partner may suffer some hardship in the event that the visa were refused. The applicant's removal to Vietnam would involve a physical separation from his partner, but there is no evidence before the Tribunal to suggest that she would not be permitted to visit him in Vietnam, or relocate there with him if she so decides.

The Minister accepts that this consideration weighs in favour of the applicant, but should only be given limited weight and is not outweighed by any of the primary considerations weighing against refusal.

International non-refoulement obligations, Impact on victims and Impact on Australian business interests

There is no evidence bearing upon these considerations in this case. Nor does the applicant contend that these considerations are relevant.

CONCLUSION

For the reasons outlined above, the factors identified by the applicant do not singularly or cumulatively support the favourable exercise of the discretion in s 501(1) of the Act. The Minister contends that the primary considerations of the protection and expectations of the Australian community weigh heavily in favour of refusal and are not outweighed by any factors in the applicant's favour.

Accordingly, the Minister contends that the delegate's decision is the correct and preferable one and ought to be affirmed.

[Some citations omitted]

1. In considering this application, the Tribunal has had regard for the all of the documentary exhibits listed in the Exhibit register which is annexure A to these reasons.

1. In his statement responding to the notice of intention to consider refusal of his visa[22] the Applicant recounted that he had come to Australia as an international student, changed courses, and had applied for a further visa on 13 September 2016, but this was refused. He appealed this decision to the AAT, but did not attend the hearing.
2. On 2 June 2017, he applied for a partner visa on the basis of a marital relationship, but withdrew it because he had to provide compelling reasons for the visa to be granted as he was an unlawful non-citizen at the time of lodgement.[23] He and his partner subsequently separated after this happened.
3. The Applicant stated that he met his current partner in late 2017, and that they have a daughter born in September 2018.[24]
4. The Applicant stated that in September 2016, he committed "an offence related to drugs in Australia" to which he pleaded guilty and served imprisonment for 10 months, and was released with a suspended sentence for four years.
5. The Applicant stated that in 2016 he changed his school to Melbourne. The Applicant stated:

I was desperate for money because I had to pay the school fees. My parents did not have the financial capacity to pay for my study. I also met my ex wife, [redacted] Vu at that time, although we were in a loving relationship at the time I committed the offences, I felt that I need money for her, and she said that she would sponsor me on a partner program so I was desperate for money to pay for the immigration fees.

I now regret my action. I criminal act is a stupidity. I learned my lesson when I was arrested....

Since I was arrested in September 2016, I have not committed any other offence in Australia. I understand that as a citizen in Australia I have to be a good person.

I promise that I will not commit any other offence in Australia. I will respect the Australian law and its people....

My partner and I first met each other in September 2017...

In early 2018, my partner found out that she was pregnant. My partner and I were really excited to have a child. Our daughter was born on [redacted] September 2018. Her name is [Child G]. I live with my partner and took care of my daughter together with my partner.

Because of my conviction, I had to serve my sentence in October 2019 and cannot continue to live with them. However during my time in prison, I called my partner every day to talk to her and to check up on our daughter if she is doing fine. I worked and earned money in prison. I sent the money to my partner in support her and our daughter.

We plan that if I am granted a bridging visa I will live with her... Because the bridging visa E will have a work restriction condition, so I will stay at home looking after my daughter while my partner will find a full-time job so we will not rely on the Centrelink support.

We plan to build a happy and loving family environment for our daughter. Like any mother and father in this world, we want to give our daughter the care, the love and raise our daughter to become a healthy and good person....

My partner is currently living in New South Wales while I am detained in Brisbane. She could not visit me because it is far away from her home, and especially in this Covid 19 time which makes the visiting extremely difficult.

If my visa is refused it would be difficult for us in terms of finance. My partner is not working at the moment and relying on the Centrelink support. Visiting me would cost a lot of money for the airfare and the transports.

Also the visit will be in a short time, we cannot stay long hours with each other, and we cannot have meaningful care and have a husband's and partners life. Also, I cannot spend a quality and meaningful time with my daughter and provide her the responsibility of a father.

Another difficulty for my partner is that taking my daughter in detention will have an adverse impact on our daughter which my partner has to consider. I believe that a detention place is not a right place for children to be exposed. It will cause trauma for my daughter. My partner and I do not want to do so. If I am deported, it will be difficult for my partner to take my daughter to Vietnam to live with me since her life has been rooted in Australia, and the costs are very expensive which my partner cannot afford while she is a stayed home mother....

Currently, I am detained in Brisbane detention. I am allowed to use my mobile phone. I called my partner every day by video call to see my partner and my daughter. My daughter is very happy when she sees me talking to her on the phone. She wanted to hug and kiss me that she cannot because I was not with her, it was a video call.

My daughter knows that I am her father. We developed a strong father daughter bond before I served my sentence, during the time I serve my sentence and at the present. If my visa is refused, my daughter would suffer the emotional hardship of not having direct contact with her father.

My daughter would suffer the disadvantage of not having the direct care, affection and the love from a father. If my visa is refused, we can contact by phone call or video call, however these contact methods cannot be substituted by the direct contact, which my daughter would feel the love, the affection and the care from her father.

My daughter would emotionally suffer as she would be without the care of her father figure and would not receive the same rights as other Australian citizen children. If my visa is refused, my daughter would not be able to grow up in a family environment with happiness, love and the understanding of both mother and father. My partner and I have built a nurturing family environment for my daughter. We have been living together since [Child G] was born and before I served my sentence.

My daughter is in the development age, it is in her best interest that she has a father to guide and to discipline her for her best development in terms of social behaviour. With the absence of a father this is a huge disadvantage for my daughter.

1. In a statement for a Partner Visa and Bridging Visa E the Applicant reiterated much of what he had stated in his prior statement.[25] He emphasised the importance of not committing any criminal offence and living at a specified address should a visa be granted. He also stated:

About not going to work, my partner will take care of all my expenses including accommodation and food. My partner's mother also provided a statement confirming that she will pay for all my living expenses.[26]

1. The statement of the partner's mother referred to by the Applicant is not in evidence before the Tribunal. The Applicant's partner, Witness A2 made no similar assertion of financial support from her mother in the statutory declaration she placed before the Tribunal. The Tribunal therefore gives this aspect of the Applicant's statement little weight.
2. In his Personal Circumstances Form[27] the Applicant left blank item 10 which related to Criminal History and Risk of Reoffending. He left blank the section which asked if he had completed any courses or programs that would help him to avoid further offending or other serious conduct. The Applicant also left blank item 12 which related to Impediments to his return to his home country. At item 13, he ticked the "No" box which asked if he had any concerns or fears about what would happen to him if he would return to his country of citizenship. He again ticked the "No" box when asked if he faced any criminal charges/convictions in his country of citizenship. The section which asked if there were any other problems he would face if he had to return to his country of citizenship was also left blank.

1. The Applicant's partner Witness A2 provided a statutory declaration[28] dated 18 January 2021, in which she stated that she is in a de facto relationship with the Applicant, and that they have the daughter referred to by the Applicant. Extracts of her statutory declaration included:

6. In 2018, I found out that I was pregnant. My partner and I was (sic) really excited to have a child.

7. However, my family did not accept my partner because they knew that he has criminal offence and was having his matter at the court at that time. It was difficult for us to convince the family.

8. Although we started our de facto relationship, we could not live together because my family did not accept him.

9. My partner has shown to my family that he is a good father and is a caring partner.

10. My mother and family members finally accept him and now wish that we can live together to take care of our daughter.

...

12. My partner and I support each other emotionally. Serving his sentence in prison was a difficult time for our family. We could not see each other and had to live apart from each other.

13. I planned to visit my partner and bring our daughter to see him, but the coronavirus prevented us from doing so.

14. My partner called me twice every day from prison to speak with me and to listen to our daughter's voice. When he was released from prison to the immigration detention centre, we called each other every day by video call.

15. When I knew my husband for the first time, I was aware of his offence. He told me about his offence which involved in supplying cannabis. However, he told me that he really regrets what he has done. To me, my partner has a good character even though he has committed criminal offences. He always tries to change himself to a better person and to be a good father.

16. When he was in prison, he sent me the money he earned from working in prison. Although the amount was small, he wanted to contribute whatever he had at that time to take care of our daughter. I know that my partner is a good partner and a good father.

17. Regarding my partner's criminal offence, I am confident that he will not re-offence (sic). He always shows his remorse to me. We now have a family, a lovely daughter. I am sure that he will not jeopardise his future by committing any other offences. If my partner can stay in Australia, he will work as a baker and will take care of me and our daughter.

18. It is difficult for me to raise our daughter by myself. Our daughter is only two year old (sic). She needs the love and care of both mother and father for her emotional and physical development. My partner is currently detained in Brisbane, it is also very difficult for me and my daughter to visit him. If my partner is removed to Vietnam, it would be much more difficult for us to visit each other. I always want my partner to live with me and my daughter. It is impossible for me to live in Vietnam with my partner because my life has rooted in Australia. Also, the living condition and education system in Australia is better for my daughter compared to Vietnam. As parents, my partner and I always want our children to have a better living environment and better education. Therefore my daughter and I will continue to live in Australia and cannot move to live in Vietnam.

1. The Tribunal has had regard for the Confidential Psychological Report[29] dated 23 October 2020 and prepared by Dr Chan after the Applicant was sentenced. Dr Chan describes himself as a senior clinical psychologist. For the purposes of preparing the report, Dr Chan had contact with the Applicant with the assistance of an interpreter totalling approximately six hours, consisting of four hours of structured clinical interview and two hours of psychometric testing. Dr Chan did not consult with the Applicant's partner for the purposes of his report, and neither did he have any statement from her, or medical reports pertaining to her before him. His sole source of information pertaining to her appears to be the Applicant.
2. Dr Chan reported that the Applicant's original family continue to live in Vietnam, and that he has a good relationship with them.[30] The Applicant's social network is established in Vietnam and he has few friends in Australia. He has distanced himself from those involved with substance abuse and criminal activity in Australia. The Applicant described his childhood as good, and he came from a middle-class family. He came to Australia to continue his study in about 2014. The Applicant reported no history of child abuse, trauma or conduct problems, and was close to both his parents. He reported good relationships with classmates and teachers in both primary and high school, and had no learning difficulties or behavioural problems. His academic performance was average - above average. None of his school friends were involved in any crimes or substance abuse. The Applicant commenced university in Vietnam but chose to terminate his enrolment in civil engineering midway through his second year. In Australia he first studied English and a diploma of hotel management in Queensland. However, he felt he was not capable of completing the diploma, so decided to study in a course of cooking in Melbourne but had never commenced. He had worked as a part-time baker assistant and assisted in roller door and air conditioning installation but ceased employment after being arrested.[31] He reported good relationships with his co-workers and employers, and his job performance was good. He had never been terminated from a job, and had no problems with his employers and colleagues. He plans to study bakery/pastry chef and become a qualified baker profession if he is permitted to remain in Australia. The Applicant told Dr Chan he has never used any illicit drugs. Regarding his criminal offending, Dr Chan reported:

in summary, Mr [GNRK] was studying and working part-time in Brisbane. He found that the course was not suitable to him, thus he planned to change to a cooking course in Melbourne. He stated that the reason he decided to move to Melbourne was because he had friends there and was interested in the course. He met Ms [redacted] Vu in Sydney in 2016. He stated that they decided to marry. As he was also in a process of changing educational institution and applying for a visa to stay in Australia, he needed additional funds for paying tuition and visa application fees. Moreover, Mr [GNRK] reported that he felt obliged to financially support his then girlfriend and younger sister's study in Vietnam, although neither asked him for financial support. Mr [GNRK] explained that in Vietnamese culture, when a man decides to marry a woman, it would be his duty to provide for the woman and it would also be appropriate for a man to financially support his family as much as possible. He further explained that at the time, no one was able to help him and he had no other sources of obtaining finance. He was stressed and worried. He was in need of money to pay for the visa application fee, tuition fee, supporting his ex-girlfriend, his sister, and his own living expenses. He wanted to acquire finance quickly to resolve his financial difficulty.

Upon his friend's recommendation, he approached people who offered him the job. This eventually led to his involvement in the offences.[32]

1. Under the heading Psychological Profile, present psychological state, Dr Chan reported as follows:

Mr [GNRK] reported symptoms of depression, including depressive mood, loss of interest, loss of appetite, fatigue, sense of worthlessness, poor concentration and death wish (sic). He reported that he has experienced an exacerbation of these symptoms in the last 10 days as the decision on his visa application is approaching. He reported no current suicidal thoughts, plans or previous attempts.

Mr [GNRK] has not met the diagnostic criteria for Major Depression at present, as the duration of his symptoms shorter than 2 weeks. However if his symptoms persist longer, it is likely that he would be diagnosed with Major Depression.

He reported that he has experienced symptoms of anxiety for the last two months.. He explained that his anxiety is largely related to his current living condition (in the immigration centre) and waiting for the result of his visa application. However his anxiety symptoms are unspecific and do not match any symptom profiles of clinically identifiable anxiety disorders. His main stressors are his separation from his wife and daughter, current accommodation, and visa application.

Mr [GNRK] reported no symptoms of any other psychiatric conditions, such as Conduct Disorder, Antisocial Personality, Borderline Personality, Gambling, Intermittent Explosive Disorder or ADHD.

Psychiatric history

Mr [GNRK] reported no psychiatric history or trauma history. He reported that he has never seen any mental health professionals.

1. Dr Chan assessed the Applicant for Malingering and Deception. His profile was considered healthy and his responses likely to be honest and valid. Dr Chan also assessed the Applicant's personality, and found there was no indication that the Applicant was attempting to distort test results. The Applicant was a moderate risk of experiencing emotional and behavioural problems of clinical significance. Dr Chan also assessed the Applicant for psycho pathology, and the results indicated the presence of symptoms of depression anxiety and stress at a severe level.
2. The Applicant's prospects of recidivism were assessed using the Level of Service Inventory (LSI-R) as low. Likewise, his prospects of recidivism were assessed using the Self-Assessment Questionnaire (SAQ) as also being low.
3. Dr Chan then proceeded to set out the Applicant's comparison of the differences between the quality of life for his wife and daughter living in Australia and living in Vietnam. He shared his concerns that his wife would struggle to find work, obtain mental healthcare, and the impact on their daughter of the significant differences between Vietnam and Australia.
4. Dr Chan concluded that the Applicant suffered from depression, unspecific anxiety and stress, his major stressors being his separation from his wife and daughter, current accommodation, and visa application. He suffered no other psychiatric conditions.
5. Dr Chan opined that the prospect of recidivism was low, and that the Applicant had very few risk factors.[33]
6. Notwithstanding that he had neither seen nor interviewed the Applicant's wife and daughter, nor viewed any medical reports pertaining to either, Dr Chan accepted the Applicant's reports, and stated:

His wife has suffered depression. She continues to struggle to raise her daughter and support herself financially in the absence of her husband. This in turn exacerbated her mental health problems.

If Mr [GNRK]'s visa to enter Australia is denied, the impact on both his wife and daughter would be very significant. It is anticipated that Ms [Witness A2]'s mental health would deteriorate which would further interfere (sic) her ability to care for her daughter and financially support herself. Given a history of depression and current depression episode, her suicidal risk would increase. These would increase the health care cost to the Australian community.

The impact of Mr [GNRK]'s visa rejection on Miss [Child G] would be very significant. The literature indicates that father's involvement in children's development is very important. Father absence may affect girls' development more than boys', affecting their academic, emotional, social and psychological development as well as reducing their risks in negative adolescence and adult problems. (Citations omitted) father absence in girls' life would lower their self-esteem, [34] academic achievement, impair their emotional development, relationship formation; cause mental health problems; increase risking behaviours; and is related to teenage pregnancy, promiscuity, poverty, and rate of violence. (Citations omitted) it is undoubtedly that with father absence during their childhood, Miss [Child G] will become vulnerable to developing serious emotional, social, psychological and sexual problems in the future.

Difficulty in resettlement for Mr [GNRK]'s wife and daughter in Vietnam

It is anticipated that Mr [GNRK]'s visa rejection would pose a very difficult decision to [Witness A2]: whether she would move to Vietnam with her daughter to reunite with Mr [GNRK], or leave her daughter in the care of her relatives in Australia and return to Vietnam herself, or they remain in Australia and continue to be separated from him. (Citations omitted) ... The impact of ongoing separation is aforementioned. However, moving Miss [Child G] to Vietnam would definitely compromise her future and quality of life. Miss [Child G] was born in Australia, a democratic country with an equitable and well established political, social, economic, education and health care systems. Her future in this country is undoubtedly bright. If she is sent to Vietnam, the opportunities she would enjoy in Australia would be eliminated. It is not in her best interests to be moved to a country in which she will have a lower quality of life and fewer future opportunities (citations omitted). Moreover, the choice of leaving Miss [Child G] in the care of her relatives in Australia would risk major disruption in her attachment with her mother leading to future developmental and mental health problems. None of the choices would serve Miss [Child G]'s best interests.

Returning to Vietnam would be difficult for [Witness A2]. She mostly grew up in Australis (sic) and has no social network or immediate family members in Vietnam. She has achieved many developmental stages in Australia, such as developing intellectual physical and interpersonal competence, autonomy and interdependence, mature interpersonal relationships, self-identity and a sense of purpose (citations omitted). She has achieved many of these in a country of the democratic system which is very much contrary to her country of origin. Her knowledge, skills and social network from Australia may not be applicable to living in Vietnam. If she returns to Vietnam she would lose social connections with her family and friends. She could suffer economic and employment difficulties. Similar to her daughter, she would miss the benefits of Australia's equitable and well-established political, social, economic, education and health care systems (Citations omitted). Thus it is not unreasonable to anticipate that [Witness A2] would have major difficulties re-settling in Vietnam.

Based on the psychometric test results, current findings and literature, it is concluded that Mr [GNRK]'s risk of recidivism is low; that the impact of visa rejection on his wife is very significant and detrimental to his daughter; and that his wife and daughter will experience significant difficulties in re-settling in Vietnam. It is of the author's opinion that to serve Miss [Child G]'s best interest's, Mr [GNRK] should be allowed to live with and support [Witness A2] and Miss [Child G].

1. The hearing in this matter took place on 21 and 22 January, and 2 February 2021, with the assistance of a Vietnamese interpreter. Mr Poynder appeared for the Applicant instructed by Mr Jon of ASN Migration Services. Mr Kyranis of Sparkes Helmore appeared for the Minister.
2. The Applicant gave evidence in chief, and confirmed that he is currently being held in immigration detention. The Applicant was referred to G9,[35] his statement dated 7 October 2020, and confirmed his signature, and that he recognised it as a statement prepared for him in relation to his visa, and that it had been interpreted to Vietnamese before he signed it. He confirmed that he was satisfied that everything in it was true prior to signing.
3. The Applicant was then cross-examined by Mr Kyranis. The Applicant told the Tribunal that he arrived in Australia at the end of 2013 or the beginning of 2014. He was referred to his movement records[36] which showed that he arrived in 2013, and the Applicant agreed with this. He agreed that he arrived as the holder of a student visa to study English. He was referred to G9,[37] where he said that he applied for a further visa on 13 September 2016, which was a student visa to study a course in cookery in a school in Melbourne. He appealed to the AAT when this visa application was refused, and did not attend the AAT hearing, which he thought was December 2016 and was not granted a second student visa. He was referred to his Partner visa application on the basis of a marriage with a Ms Vu.[38] He said that he commenced a relationship with her on 2 June 2017 after having a marriage to her, and was sponsored by her for a Partner visa at the time. He was again asked when that relationship started, and said that he met her in 2016, in a café in Bankstown and they felt for each other and contacted and agreed to marriage. He was unable to be more specific as to the date.
4. The Applicant said that he did not have any other family in Australia other than his wife, and she had sponsored him for a Partner visa application lodged in August 2020. He was not told what the processing time of the visa application would be.
5. The Applicant said that all of his family live in Vietnam. The offences were committed because of his financial needs for his visa application and other expenses. He was not able to borrow money from his family in Vietnam to meet those expenses.
6. The Applicant was taken to Dr Chan's report[39] and agreed he said that he felt obliged to give financial support to his girlfriend and younger sister who had not asked for it, and a reason he committed the offences was because of cultural expectations, and his need to pay his visa and expenses.
7. The Applicant said that he was aware that he would not be allowed to work if granted a bridging visa, and he would stay at home and care for the child so as to enable his wife to work and support the family. The Applicant was referred to G26,[40] where he told Dr Chan that his wife's stress had worsened in the last six month, and confirmed this. He was also referred to Dr Chan's statement and confirmed that the Applicant had told Dr Chan he had discovered a career interest and wanted to become a baker, having worked as a part time baker assistant in Australia. He had done this while he was on bail in December 2016. He said that he developed an interest in baking after he started work, but he had heard about it after he arrived in Australia.
8. The Applicant said that his wife would not return with him were he required to return to Vietnam, owing to her settled lifestyle and opportunities in Australia.
9. The Applicant was referred to G5[41] where the sentencing judge described the Applicant's offences as very serious. He said he was aware that they were serious offences and he had remorse.
10. The Applicant was read the sentencing remarks in respect of each of the three offences and did not contest the remarks. The Applicant was read the references to Count 1 appearing at G5,[42] and agreed that it was a correct summary in relation to the first count, producing a dangerous drug.
11. The Applicant was then read the paragraph in relation to Count 2,[43] and agreed that it was an accurate summary in relation to the second count.
12. The Applicant was then read the paragraph dealing with Count 3,[44] and agreed that it was an accurate summary in relation to the third charge.
13. The Applicant confirmed that he was arrested in December 2016, and was granted bail with conditions one day after being arrested, and that he strictly followed the conditions, and did not commit any offence for the three following years and had surrendered his passport to the court.
14. The Applicant said that the last time he was in the same room with his daughter was 8 October 2019, as he had to go to court the next day.[45] The Applicant agreed that since that time his contact had only been available via telephone calls while he was in prison. He agreed that there was no reason this form of contact could not continue if he returned to Vietnam, as he could contact her via phone or video link, but it would be better if he could be with her.
15. The Applicant told the Tribunal that his relationships in Australia have been de facto relationships. The Applicant also told the Tribunal that his de facto relationship with Witness A2 began in September 2018. He moved into her house on 10 September 2018.[46] He continued to live at her home until he was sentenced to prison.
16. The Applicant said he had a part-time job while he had a student visa, working as a kitchen hand and a bakery assistant. He said that he stopped when he wanted to move to Melbourne, but he never actually moved to Melbourne. He moved to Sydney because of the marihuana job. He made a partial payment for the course in Melbourne, but he could not recall how much, but less than $5,000. He could not recall the total fee for the course, he never started it, but he never received a refund.

1. Witness A2 made an affirmation and gave evidence in chief under questioning from Mr Poynder.
2. Witness A2 told the Tribunal that she would prefer all her evidence to be interpreted. Witness A2 told the Tribunal that she recalled making a statutory declaration dated 18 January 2021. A copy of it was produced to her, and she identified her signature. She also said that she was satisfied that everything in the document was true.
3. Under cross-examination by Mr Kyranis, the witness told the Tribunal that she and the Applicant are not married, and that she is not working at the moment. She said that she is in receipt of social security benefits for parenting. She agreed that it was fair to say that she is in need of financial support at the moment because her child is small, and she cannot work. She said that her plan was that if the Applicant was released, and not allowed to work she will go to work and he will look after the child. She said that she used to do packing for a warehouse and would look for that type of work. She had not worked since July 2018 at which time she was seven months pregnant. She said that she had lived in Vietnam before and was born there. She came to Australia at the age of fourteen or fifteen years, and spent until that time in Vietnam. She confirmed her statement that it would be impossible for her to return to Vietnam, because the living conditions and education in Australia are better and the child would benefit more from living here. She said that she would not consider moving back to Vietnam with him as she wants the best for her child.
4. The witness told the Tribunal that she had relatives living in Vietnam but her parents and siblings are living in Australia. She was referred to paragraph 8 of her statutory declaration, and confirmed that statement. She said that they had never lived together as her parents knew that he had committed a crime.[47]
5. The witness was referred to paragraph 10 of her statutory declaration and when asked when the acceptance of the Applicant by her parents began, said when the child was born, but they still did not live together after the child was born.[48] He came to visit and sometimes he stayed there. She then said that normally he stayed. He stayed there five or six nights. She later said that they lived together continuously following the birth of the child.
6. The witness confirmed that she had not visited the Applicant while he was in prison or immigration detention because of the Coronavirus restrictions. The Tribunal notes that the Applicant had been incarcerated approximately five months prior to the commencement of the Coronavirus travel restrictions.
7. The witness said she is not on medication at the moment. She is not receiving medical treatment for any health conditions. She said that she is stressed because she had to look after the baby all by herself, but had not sought any medical treatment as she was very busy with the child, so she did not go to any practitioner. She has never consulted a doctor in relation to mental illness but had been to see a psychologist a few months ago. It was not the same psychologist seen by the Applicant. No written report has been prepared regarding any mental illness she may have had. She said she had never spoken to a Dr Chan.

1. On day two of the hearing, Dr Chan gave evidence confirming his preparation of the psychological report G26 which was in evidence, and said that the information regarding Witness A2 and her daughter came from the Applicant. His opinion was also based on literature. He was referred to G26[49] and the comment regarding possible impact and the three paragraphs under the heading of impact of visa refusal on the Applicant's wife and daughter.
2. The witness said that he did not interview Witness A2. He was referred to his reference to the impact of father absence and its consequences. He was asked regarding the impact if the daughter were to grow up without having ever met her father at all and said that the daughter was still likely to suffer the described impacts. This extended to circumstances where a woman became pregnant to a stranger and the baby never met the father there was still a possibility, and in general the impact still applied. The severity and the extent of the impact would be subject to multiple factors in the child's development and life, including her biology, family structure and the environment where she lived. It was very hard to say that there would be no impact at all. There was always some level of impact on girls.
3. The witness was told by Mr Poynder that the child is presently 865 days old, and from until she was 395 days old, the Applicant lived with her and spent time with her. He was asked to comment on the bonding during that period in circumstances where the child could not remember, and to what extent the child would bond. Mr Poynder was asked to define the term bonding, and was told that it was different from attachment. The witness was asked that if the Applicant was to return to Vietnam and not see her for 15 or 18 years, how important was the first 395 days. The witness said we are talking more about bonding and attachment which are two different concepts, and said he would like to look at attachment rather than bonding. In terms of attachment, he considered how much the Applicant was involved with her during the first 395 days and whether he was the primary care giver during that time, and whether he did the nappy changing, the feeding, providing care and safety etc. If he was heavily involved the baby would be attached emotionally even though at that stage the baby did not have verbal memory, but would have emotional memory. Emotionally memory would include attachment to her father. The second part of the question was father absence by itself could negatively affect the girl's development throughout her life. Both physical absence and emotional absence would be there.
4. The witness was asked to what extent it was possible to replace absence with remote communication via telephone or video link, and whether it could replace actual presence**.** The doctor said it could just not replace it, as there would be many moments the girl would want to talk to her father, but it would not be possible because the technological connections might not be there. Secondly the experiences being shared physical proximity, e.g. hugging and kissing and comforting would not be there. The witness said that in a child's development it is very important for a child to seek physical comfort in the event of emotional distress.
5. The witness said that the Applicant was actively involved with the baby and the baby would be attached to him to some extent. He was there to provide and to care and was not just a playmate. When asked to comment on the significance of this attachment, the witness said that it could be quite significant, but he was not saying that it was necessarily was, but based on the information he was given, it could be quite significant.
6. In cross-examination, Dr Chan confirmed that he had relied upon the documents given to him and the history reported by the Applicant. He was asked if the history was inaccurate on a key aspect could it impact on his opinion. He responded saying he was not sure what was meant by inaccuracy. The doctor said that he always draws conclusions based on information, and it was assumed that what he was told was accurate, and it was assumed that inaccuracies were quite minor. The assessment was not based 100% on the information, but was also based on the literature.
7. The witness's conclusion as to risk of re-offending was based on tests administered, and the literature, and was found to be low. A face to face interview would have given more opportunity to observe and interact. The witness confirmed that the applicant had told him that he had offended in consequence of financial stress, and was asked if future financial stress whether it could lead to his re-offending in future. He said this would depend on marital, familial and employment circumstances, and said that the probability of re-offending would still be low. The doctor said that he could not comment on the reasons for the Applicant's offences when asked about cultural influences. The witness reported that the Applicant had become married, and that this was one of the factors. Whether the parties had a relationship was the main thing, and how strong the relationship was. He was unable to comment on whether a de facto relationship was a factor, and then said that some de facto relationships were better than marriages, and it was the connection between the couple that was as important as whether they were married or not.
8. He was referred to page 10 of his report and said the assessment of living conditions in Australia and Vietnam was based on what he had been told in other cases as well.
9. In re-examination he was asked if he had taken into account that the applicant's financial stress, in his assessment. He said that he also relied on other factors including employment opportunities, and culture.
10. The witness was asked by the Tribunal about the impact on his patients of marihuana usage. He said that he would like the question re-phrased. He was asked if he had ever treated anyone for marihuana usage, and said that he had treated people in his early career. He has treated people for conditions which arose from or were contributed to by marihuana usage. He treated people for mental health problems because of drug use and self medication. Some had chronic medical conditions. The doctor said that he estimated that 30% of the clinical population reported the use of marihuana. If he saw 1,000 patients, 300 of them would have had a marihuana related problem.
11. In re-examination, the witness said he would not have the confidence to call himself an expert on impact of marihuana usage, but did come across many people using marihuana. He said that he was a drug and alcohol counsellor. The witness said that people use marihuana heavily, and it made their mental health problems worse. He said that marihuana could induce psychosis, which is a condition where people have illusions, hallucinations which could be tactile, visual and auditory. Marihuana worsened prior mental health issues and in others people without mental health issues were induced.
12. At the conclusion of the Applicant's case, the Tribunal raised with counsel the prospect that some evidence given by Dr Chan may have been outside that allowed by section 506(H). Having regard to the nature of the evidence and the High Court's decision in Peter Uelese v Minister for Immigration and Border Protection and anor,[50] the Tribunal adjourned the hearing until 9:00 am 2 February 2021 so as to allow the Applicant to file a timely statutory declaration by Dr Chan exhibiting a transcript of the totality of his evidence.
13. At the resumed hearing on 2 February 2021, the Tribunal received a statutory declaration by Dr Chan dated 28 January 2021 annexing a transcript of his prior evidence and affirming its veracity. The declaration was provided to the Minister on the date it was made, and the Tribunal admitted it as Exhibit A4. Mr Kyranis advised the Tribunal that he did not require Dr Chan to attend for cross-examination.
14. In closing submissions, Mr Poynder said that the evidence of the applicant and his wife should be accepted and were straight forward and unhesitating. There were moments of confusion stemming from language. Mr Poynder conceded the applicant is intending to stay in Australia permanently.[51]
15. Mr Poynder submitted that the applicant was a "bit player involved over a very short time in a much larger criminal enterprise in which he paid (sic) a tiny part."[52] Mr Poynder also conceded that the applicant's conduct was "obviously very serious"[53] and the fact that he only served 10 months was a reflection of leniency, not of additional or extra punishment because of the seriousness of the offence.[54]
16. Mr Poynder took issue with the Respondent's submissions, particularly at paragraph 29, which emphasised the general principles in Direction 79 and paragraph 6.3. He referred the Tribunal to the first document in Exhibit R2, headed "Alcohol, tobacco & other drugs in Australia" and stated that it said that cannabis has a tiny incidence of serious consequences. He took the Tribunal through the document in some detail. An extract of his submissions follows:[55]

MR POYNDER: The National Drug Strategy says little more than we should make all efforts to stop people taking drugs. If this document here which talks about - well, it touches on the risks of taking drugs including cannabis. However, I'm going to just go to several points in relation to this document. Firstly, the opening paragraph says, 'The consumption of alcohol, tobacco, and other drugs, is major cause of preventable disease and illness is Australia. This report consolidates the most recently available information on alcohol, tobacco, and other drug use.' So, we're dealing with three drugs here, alcohol, tobacco, and other drugs. Now, column 2, the second column on page 3 under the heading, 'Findings of this report'. Dot point 1, 'Cannabis is the most widely used illicit drug in Australia.' Dot point 2, 'Tobacco smoking is the leading cause of preventable burden in Australia.' Nothing there on the risks of taking cannabis.

Page 4, two-thirds of the way down page 4 does the tribunal see a sentence beginning with the words, 'The main psychoactive component'?

MEMBER: Sorry, on page 4 whereabouts?

MR POYNDER: Page 4 about two-thirds of the way - - -

MEMBER: Yes, 'The main psychoactive component', yes.

MR POYNDER: The third line, at the end of the third line of that paragraph the report says, 'Cannabis is a central nervous system depressant but it also alters sensory perceptions and may produce hallucinogenic effects when large quantities are used. The use of cannabis for medicinal purposes is legislated by the Australian Parliament in 2016.' All right, well, that's consistent with what Dr Chan was telling us about the effects of cannabis and it is noted that cannabis is actually legal in a medical situation in Australia. The use of cannabis is legal in numerous states in the USA.

MEMBER: But that's in terms of its legality it's a very, very modified - it's not the straight street sale cannabis that client that your client was selling, or distributing.

MR POYNDER: Yes - - -

MEMBER: It's one that's been altered to make it less harmful and they've taken the good parts out and tried hard to leave the bad out, haven't they?

MR POYNDER: Exactly, exactly.

MEMBER: Yes.

MR POYNDER: Page 5 under the heading, 'Consumption', 'Cannabis continues to be the world's most widely used drug with an estimated annual prevalence of 3.9 per cent of the adult population age 15 to 64 years. Or the equivalent to 192,000,000 people having used cannabis at least once since 2018. The reported consumption of cannabis in Australia and New Zealand is in 2018 10.6 per cent was substantially higher than the global average.' Okay, that's an observation, that more than 10 per cent of Australians are taking cannabis at least once. Then a bit further down there's three dot points and the first dot point says, 'For people aged 14 and over in Australia, 36 per cent have used cannabis in their lifetime and 11.6 have used cannabis in the prior 12 months.' So, 36 per cent of people aged 14 and over have used cannabis some time in their life.

Then we come to the harms of cannabis and that's on page 7, halfway down page 7 is the heading, 'Harms'. It says and I think this is quoted in the Minister's submissions, 'The effect of cannabis like all drugs vary from one person to another including, but not limited to, the amount consumed, the mode of administration, the years of previous experience, mood, and body weight.' Going on a little further, two lines down, 'Ongoing regular use of cannabis is associated with a number of negative long-term effects. Regular users of cannabis can become dependent and commonly reported symptoms of withdrawal include, anxiety, sleep difficulties, appetite disturbance and depression.' And then there's a list of short-term and long-term effects in the paragraph underneath.

But none of this says anything about the incidents in these effects, how often do these effects occur, and how badly do they effect people. That's touched on at the top of page 8 under the heading, 'Burden of disease and injury':

Cannabis use contributed to 0.2 of the total burden of disease and injuries in 2015 and 8.3 of the total burden due to illicit drugs. Drug use disorders excluding alcohol contributed most to the burden due to cannabis use but only a small proportion that's 3 per cent or less of the burden of schizophrenia, poisoning, anxiety disorders, and road traffic injuries, and depressive disorders was attributable to cannabis use.

I take from that that the incidents rate a serious injury to a person because of taking cannabis is very low, that is, 3 per cent of 8 per cent of the total burden due to illicit drugs. Well, 3 per cent is 0.2 per cent of the total burden of disease and injury. It's tiny.

MEMBER: Well, not if you're fatally injured in a road accident it's not.

MR POYNDER: Well, that's right but it's tiny in terms of one person. If someone sniffs paint and attacks someone with a knife because they're affected by pain, that's not going to make the seller of the pain responsible for it. The incident is small. Next paragraph down:

Cannabis is highly correlated with the use of tobacco, alcohol, and other drugs, which makes measuring the effects of cannabis alone difficult and potentially increases the risks for users.

So, in other words those figures they're difficulty to ascertain anyway. But then under the heading, 'Deaths', this is about point 5 of that page:

In 2018 there were 264 drug induced deaths where cannabinoids were presents compared with other licit and illicit drugs, cannabinoids are less frequently present in drug inducted deaths. However, cannabis was the second most common drug identified at toxicology for transport accident deaths.

Overall, they're less frequently present in drug induced deaths but after alcohol it's the next one - - -

1. He nevertheless agreed with the Tribunal that if there were no people playing his client's role, the cannabis would not make it to market.[56]
2. A further extract of the transcript of Mr Poynder's submissions included:[57]

And what I'm meeting here is the contention by the respondent that the possible harm arising from a repeat of the applicant's conduct is so serious that even a low risk of reoffending is unacceptable. And I'm suggesting that is wildly overstated. Look, I'm not asking the tribunal to say if cannabis should be legalised, I'm not asking the tribunal to say that cannabis use is not harmful. The tribunal doesn't have to make those findings. I'm asking the tribunal to say that - not to accept the Minister's contention that even a low risk of reoffending in this case is unacceptable. A low risk of reoffending in this case or in a case relates to murder, a low risk of reoffending relates to trafficking in heroin, a low risk of reoffending relates to massive financial fraud. But a low risk of reoffending doesn't relate to playing a relative minor part in a major drug operation and - - -

MEMBER: I would take the view that had he not been packaging it, it wouldn't have made it to the market.

MR POYNDER: Well - - -

MEMBER: What do you say to that?

MR POYNDER: Well, it could be inferred that he's playing an unskilled role in that - - -

MEMBER: But critical, isn't it, I mean they used to say if there were no receivers there'd be no thieves. Well, if there were no people playing his role it wouldn't make it to the market.

MR POYNDER: Well, and that's a valid point, it's a valid point. But what I'm saying is, even given what his role was it is not an accurate thing to say a low risk of reoffending is unacceptable. In other words, if ones going to scale the unacceptability of reoffending to this sort of conduct or criminal offence, then every criminal offence is gong to unacceptable (sic). It overstates. The tribunal will find in my submission that he's at low risk of reoffending. It's not open to the tribunal then to go on and say, and even a low risk of reoffending in something as serious as this is unacceptable. That's in my submission not open on the evidence of - - -

MEMBER: Sorry, let me just make a note there, you're telling me that it's not open to me to find that a low risk is unacceptable?

MR POYNDER: Yes. Because this is cannabis, it's less risky than tobacco, it's less risky than alcohol, but that's not to say that the tribunal is not entitled to frown upon what he did as the court did, that was his punishment. But to say that he is such a major risk to the Australian community that he must be removed from Australia, is something which is not open on this evidence, on my submission.

1. Mr Poynder further submitted that ultimately, the protection of the Australian community weighs against the applicant but is not determinative of the matter.[58]
2. Mr Poynder made submissions regarding the best interests of the minor, presently just over 2 years old, and stressed the adverse impacts which could flow from an absentee father. He also made submissions as to the impact on the applicant's partner should he not be granted a visa, stressing the financial challenges and risks to her mental health.
3. Mr Kyranis made submissions in response on behalf of the Minister. He submitted that there was no issue as to the applicant's failure to satisfy the character test. He described the applicant's offending as "very serious".
4. With regard to paragraph 11.1.1(f) of the Direction, Mr Kyranis pointed out that the applicant had been sentenced to 3 years for possession of 44 kg of cannabis in a total sentence of 48 months in circumstances where he had no prior criminal history, and it was open to the Tribunal to consider that he had been sentenced to a totality of 48 months but was only required to serve ten months.
5. With regard to paragraph 11.1.2(3) Mr Kyranis submitted that the nature of the harm which would flow from re-offending was serious, and that the Tribunal should place heavy weight on the two government documents which made up R2, and were updated in December 2020, and the document that the Tribunal had been taken to by Mr Poynder was a publication of the Australian Institute of Health and Welfare.
6. An extract of his submissions includes:

But I will take the tribunal to the second document. The pagination's unfortunately pixelated in that part but it starts on page 13 of the tender bundle. This document is the National Drug Strategy 2017 to 2026 at a glance.

MEMBER: Yes, I've got that.

MR KYRANIS: But page 3 of the - and this is just I guess a high level - the overarching framework. Page 3 at the top:

The National framework is for building safe, healthy and resilient Australian communities through preventing and minimising alcohol, tobacco and other drug related death, social and economic harms among individuals, families and communities.

So this is a report with the health of the community in mind. The particular section of the report that deals with cannabis is on page 33 of the report up the top. The report's consistent with what the Australian Institute of Health and Welfare in their report provided in terms of the prevalence of cannabis and the possible health impacts that can follow from consumption of cannabis. It also says in the final sentence and the second paragraph that - sorry. The second sentence in the second paragraph:

As the most widely used of the illicit drugs in Australia cannabis carries a significant burden of disease.

It summarises what the other - which I say is consistent with the other report, that there's:

The various health impacts include mental health, respiratory illness and cognitive defects. In particular, cannabis dependence upon young adults is correlated with and probably contributes to mental disorders such as psychosis.

So there's one aspect of the evidence that I wish to take the tribunal to, that's what Dr Chan said. And I think what the tribunal or the tribunal's characterisation or summation of Dr Chan's evidence on the topic of cannabis use is that persons with mental health conditions those conditions can exacerbate conditions by use of cannabis and even induce psychosis. That's generally an accurate summary. Has the tribunal got the transcript of Dr Chan's evidence there and in particular page 60?

MEMBER: Just one moment, please, Mr Kyranis. Page 60, yes.

MR KYRANIS: Approximately line 32 the applicant was asked in re‑examination:

So the last question which the Member asked you was 'Well, no, let me just take you back one step'. When you say people are - are you saying people that are having an existing mental health illness then use cannabis to self-medicate and that makes it worse, is that what you're saying?

Yes, that's one - yes, one area and the other area is that they didn't have any mental health issues but they started using marijuana and then that induced the mental health problem

So I submit that it's not solely - the harm is not solely focused on persons with pre-existing mental conditions that take cannabis and those conditions are - I said "Exacerbated" I'm not - I don't think Dr Chan actually said that, that's my take on his evidence but worsened to the point of psychosis.

Now, just to be clear the Minister's submission in this case is that because of the nature of the harm that would follow if the applicant reoffended and reoffending by committing drug related offences pertaining to cannabis and because the risk of reoffending has been assessed as low that that risk is unacceptable. It's not the case that the Minister's saying that in every case where a person is assessed as low risk of reoffending that that risk is going to be unacceptable. It's a statement made specifically in the context of this case taking into account the nature of the harm were the applicant to reoffend.

1. Regarding the evidence of Dr Chan, Mr Kyranis observed that the Doctor took into account that the applicant and his partner were married and they were not, and that this provided one less protective factor.
2. Mr Kyranis submitted that financial stress had been a factor in the applicant's offending, and if the visa is granted there may be financial stress. Factors which caused or at the very least contributed to the applicant's past offending were still present. Whilst there was a plan for the applicant's partner to work, the execution of the plan may be a problem, as there was no evidence of an offer of employment before the Tribunal. The applicant's financial situation was worse now than it was in 2016 as he now has a child to support. Further financial stress remains a possibility. He also referred to the cultural expectation placed upon the applicant and said that it was not clear how he could modify his behaviour in order to meet that cultural expectation. The applicant had been subject to bail conditions since his arrest, and since October 2019 had been in prison or Immigration detention. Whether the applicant continued to be law abiding remained to be seen notwithstanding the period he had spent in the community after he committed the offences.
3. In addressing Primary Consideration B, the best interests of minor children, Mr Kyranis said that the highest Dr Chan's evidence went to was that there is a possibility that she could suffer the detriments on page 12, and that could be significant. He submitted that there is an element of uncertainty regarding the doctor's opinion, and referred to page 46 of the transcript which referred to a possibility still being there. He also referred to page 47 line 10 of the transcript and said that the impact would be subject to multiple factors. He referred to "an element of uncertainty" as to the impact mentioned at page 52 potential, but submitted that it "could be quite significant." He accepted that the best interests of the minor child weigh in favour of the applicant, however, this should be given less weight as the child is cared for by the mother who has been in the parental role since 2019. The applicant has had limited physical presence in the child's life but has been in contact by phone and could continue to be in Vietnam.
4. Regarding the Primary Consideration C, the expectations of the Australian community under paragraph 11.3 of the Direction, Mr Kyranis referred to the familiar authority of FYBR, and submitted that visa refusal was appropriate because of the expectations in Paragraph 6.3, and in particular principles 2, 5, and 6, and that this primary consideration weighed in favour of refusing the bridging visa.
5. Regarding other considerations, namely impact on family members, Mr Kyranis submitted that aside from his daughter, the applicant's partner is his only family, and the Minister accepted that she may suffer some hardship and this does weigh to some degree in the Applicant's favour.
6. Overall, he submitted that the protection and expectations of the Australian community outweigh the best interests of minor children and family impacts.
7. The Tribunal has considered the submissions made on behalf of the parties.
8. The Tribunal now turns to the application of the evidence to the statutory considerations.

1. Protection of the Australian community from criminal or other serious conduct.

Application of Factors in Paragraph 11.1.1(1) of the Direction The nature and seriousness of the conduct

1. The Tribunal is required to have regard to the Applicant's "criminal offending or other conduct to date" as per paragraph 11.1.1(1) of the Direction.
2. It has not been submitted that there is other specific conduct which requires consideration.
3. Sub-paragraph (a) of paragraph 11.1.1(1) of the Direction provides that without limiting the range of offences that may be considered seriously, crimes of a violent and/or sexual nature are viewed very seriously.
4. The Applicant has been sentenced for three offences against the Drugs Misuse Act 1986 (Qld), and sentenced before the District Court of Queensland on 10 October 2019.
5. Count 1 was producing a dangerous drug contrary to section 8(1)(e) of on a date unknown between 1 May 2016 and 28 June 2016. This offence carried a maximum penalty of 15 years imprisonment.
6. Count 2 was possessing a thing for use in connection with producing a dangerous drug contrary to section 10(1)(a) on a date unknown between 1 May 2016 and 10 August 2016. This offence also carried a maximum penalty of 15 years imprisonment.
7. Count 3 was possessing a dangerous drug in excess of 500 grams contrary to section 9(1)(c) on 14 September 2016. This offence carried a maximum penalty of 20 years imprisonment.
8. Extracts from the Statement of facts tendered to the court include the following:[59]

The defendant's charges emanate from Operation [redacted] a covert operation conducted by the Queensland Police Service and other agencies which commenced in August 2014. The operation targeted Vietnamese cannabis traffickers in South East Queensland. The defendant was not a target of the operation.

From 27 October 2015 two 14 September 2016 the defendant was captured on telephone intercept warrants relating to both Thi Phuong Pham and Tanh Son Nguyen. The defendant was not the subject of a warrant relating to him personally. The conversations captured by these calls were mostly in Vietnamese, requiring the services of a translator. A number of calls recorded during this time show that the defendant was associated with both TP Pham and TS Nguyen, who have been charged with trafficking and dangerous drugs.

On 28 June 2016 police conducted a search at 1729 Logan Road Upper Mount Gravatt. No one was present during the search. Police found a total of 1.82 kilograms of cannabis packaged in six vacuum sealed bags found throughout the house. Three were found in different locations in the kitchen and another three were found packaged together in the roof cavity. Seventeen separate fingerprints belonging to the defendant were found throughout the house.

Police found a receipt for a purchase of three vacuum sealed bags made on 12:58 PM on 24 June 2016 at K-mart Sunnybank. CCTV reveals that the defendant was the purchaser of the vacuum sealed bags.

The defendant is to be sentenced on the basis that his purchase of the vacuum sealed bags was for the purpose of packaging a commercial quantity of cannabis.

Count 2: possessing a thing for use in connection with producing a dangerous drug

On 10 August 2016 police conducted a search at 33 Cormorant Street, Inala. Three individuals were present for the search, none of these being the defendant. A total of 39.589 kilograms of cannabis were located. The cannabis was kept in vacuum sealed bags found in the master bedroom and the boot of a Toyota Aurion at the address. Each bag contained approximately one pound of cannabis.

A vacuum-sealing machine was found in the master bedroom. The defendant's fingerprint was found on its base. He is to be sentenced on the basis that he possessed this item, at least momentarily, for use in connection with packaging a commercial quantity of cannabis into clip seal bags.

Count 3: possessing a dangerous drug in excess of 500 grams

On 14 September 2016 police conducted surveillance on three cars in the Inala and Sunnybank areas. At 3:24 PM the defendant drove a bronze Toyota Camry with two female passengers to a shopping centre in Sunnybank Hills, where police were watching to other cars in the carpark - a Toyota Aurion and a Landcruiser, being driven by Quang Van Nguyen and Anh Tuan Luong respectively. Shortly after the defendant arrived, the three cars left and drove to Bunnings at Slacks Creek. The defendant and his two female passengers exited the Camry and Luong got in, after which Luong drove the car away.

Luong was pulled over in Sunnybank 20 minutes later. Police conducted a search and found seven separate packages, which between them contained 100 bags of cannabis each weighing approximately one pound. The total amount of cannabis in the boot was 44.61 kilograms.

The defendant is to be sentenced on the basis that he transported the cannabis in the boot of the car from an unknown location, with the purpose of allowing Luong to take possession of it. There was a commercial purpose associated with his possession of the cannabis because he was to receive an unknown commercial reward for transporting it, and because the intended destination for the cannabis was to be sold on to another customer or other customers.

The defendant was arrested on 19 December 2016 at the residence of QV Nguyen. He declined to participate in a recorded interview with police. He was granted watch house bail.

1. In the course of his sentencing remarks, District Court Judge Jarro described the offences as follows:

These are very serious offences because they carry with it a maximum penalty of 20 years imprisonment particularly for the possessing a dangerous drug in excess of 500 grams....

Your actions, Mr [GNRK], involved a preparation of a large amount of a schedule 2 drug. Particularly for count 3, it was not an insignificant amount of drugs. 44 kilograms was found. You transported it to another. That offence occurred separately from the other two offences for which you are to be sentenced today. Perhaps because you were not the main target of the police operation and perhaps you did it out of desperation for money does not excuse your involvement with respect to these very serious offences....

You are on a bridging visa at present. I am told that you married last year and you have one child who turned one last month. Your wife is a stay-at-home mother who looks after your child. It is almost certain that you will be deported following your sentence today....

Mr [GNRK], in considering what the appropriate sentence is, I have also considered the purposes for which I am imposing a sentence upon you today, that is, to punish you to an extent and in a way that is just in all of the circumstances and provide any conditions which I consider will help you to be rehabilitated, to deter you and others from committing this or a similar offence and to make it clear that the community, acting through the Court, denounces the sort of conduct in which you were involved....

I have also initialled and it will be placed on the file the forfeiture order and the serious drug offence certificate.

1. The Tribunal gives great weight to his honours sentencing remarks, and respectfully concurs with and adopts his honour's description of the offences as being "very serious".
2. Sub-paragraph (a) of paragraph 11.1.1(1) of the Direction weighs heavily against this application.
3. Sub-paragraph (b) of paragraph 11.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.
4. There is no evidence before the Tribunal that the Applicant has been involved in crimes of the relevant nature.
5. Sub-paragraph (b) of paragraph 11.1.1(1) of the Direction is not presently relevant.
6. Sub-paragraph (c) of paragraph 11.1.1(1) of the Direction provides that "crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious."
7. There is no evidence before the Tribunal that the Applicant has been involved in crimes of the relevant nature.
8. Sub-paragraph (c) of paragraph 11.1.1(1) of the Direction is not presently relevant.
9. Sub-paragraph (d) of paragraph 11.1.1(1) of the Direction directs a decision-maker to have regard to where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
10. There is no evidence before the Tribunal that the Applicant has been involved in crimes of the relevant nature.
11. Sub-paragraph (d) of paragraph 11.1.1(1) of the Direction is not presently relevant.
12. Sub-paragraph (e) of paragraph 11.1.1(1) of the Direction directs a decision-maker to the principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious.
13. No finding has been made under section 501(6)(c).
14. Sub-paragraph (e) of paragraph 11.1.1(1) of the Direction is not presently relevant.
15. Sub-paragraph (f) of paragraph 11.1.1(1) provides that subject to sub-paragraph (b) above, decision makers must have regard to the sentence imposed by the Courts for a crime or crimes of a non-citizen/Applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant's offending.
16. In relation to Count 3, which the judge described as the most serious offence, a conviction was recorded and the applicant was sentenced to a period of three years imprisonment. The judge ordered that the term of imprisonment be suspended after serving a period of 10 months imprisonment. The applicant was further ordered not to commit another further offence punishable by imprisonment within a period of four years if he was to avoid being dealt with for the suspended term of imprisonment.
17. Lesser concurrent sentences were imposed with respect to counts 1 and 2. In respect of count 1, a conviction was recorded, and the applicant was sentenced to a period of nine months imprisonment. In respect of count 2 a conviction was recorded and the applicant was sentenced to a period of three months imprisonment.
18. The Tribunal notes that in total, this applicant has been sentenced to a total of 48 months imprisonment, even though he was only required to actually serve a period of 10 months imprisonment. The sentences imposed on the applicant - who had no prior convictions at the time - demonstrate the seriousness with which the court viewed the applicant's offending.
19. The Tribunal considers that an overall consideration of these sentences having regard to sub-paragraph (f) of paragraph 11.1.1(1) of the Direction weighs heavily against the Applicant.
20. Sub-paragraph (g) of paragraph 11.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen's offending and whether there is any trend of increasing seriousness.
21. As was noted by the sentencing judge, Count 3 occurred separately from the other two offences for which he was sentenced. The two earlier offences attracted sentences of nine months and three months respectively. The separately committed count 3 attracted imprisonment of three years. The Tribunal considers that three offences committed over a period of less than five months amounts to frequent offending. The Tribunal also notes that the most recent offence attracted a maximum penalty of 20 years imprisonment whilst the earlier two offences each attracted a maximum of only 15 years imprisonment. The most recent offence involving 44.61 kilograms of cannabis resulted in a sentence of three years imprisonment which is four times the period for which the applicant was sentenced in respect of count 1 which involved 1.82 kilograms of cannabis, and 12 times the period for which the applicant was sentenced in respect of count 2. The Tribunal considers that there is a demonstrated trend of increasing seriousness in the offences committed by the applicant.
22. An overall consideration of sub-paragraph (g) of paragraph 1.1.1(1) of the Direction weighs heavily against the Applicant.
23. Sub-paragraph (h) of paragraph 11.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant's repeated offending.
24. The cumulative effect of the applicant's offending, is that he has been involved in one way or another with the handling of a large amount of a schedule 2 drug for a commercial purpose within a period of less than five months.
25. The Tribunal regards the cumulative effect of this Applicant's repeated offending extremely seriously and affords it great weight.
26. Sub-paragraph (i) of paragraph 11.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
27. There is no evidence before the Tribunal of the provision of any false or misleading information to the Department by the Applicant, and this consideration is therefore given no weight.
28. Sub-paragraph (i) of paragraph 11.1.1(1) of the Direction is not presently relevant.
29. Sub-paragraph (j) of paragraph 11.1.1(1) of the Direction looks to whether, where the offence or conduct was committed in another country, that offence or conduct is classified as an offence in Australia.
30. There is no evidence before the Tribunal of any relevant offence or conduct committed in another country.
31. Having regard to the totality of the evidence to which the abovementioned sub‑paragraphs (a), (f), (g) and (h) of paragraph 11.1.1(1) of the Direction are relevant, the Tribunal is of the view that the nature and seriousness of the Applicant's offending conduct can be readily characterised as "very serious," and this weighs heavily against the applicant.

Application of Factors in Paragraph 11.1.1(2) of the Direction. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

1. Paragraph 11.1.2(1) requires that in considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principal that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that may be repeated may be unacceptable.
2. Harm which flows from the circulation and use of cannabis in the community is well recognized.[60] Users can become dependent and commonly report symptoms of withdrawal including anxiety, sleep difficulties, appetite disturbance and depression. Short-term effects are:[61]
   • Mild euphoria, relaxation and reduced inhibitions;
   • perceptual alterations, including time distortion and intensification of ordinary experiences;
   • feelings of hunger;
   • panic reactions, confusion and feelings of paranoia;
   • nausea headache and reddened eyes;
   • increased heart rate for up to three hours after smoking;
   • dizziness with impaired balance and coordination.
3. Long-term effects of cannabis usage include:[62]
   • physical dependence;
   • upper respiratory tract cancers, chronic bronchitis and permanent damage to the airways when smoked;
   • cardiovascular system damage;
   • mental health conditions including depression;
   • Poor adolescent psychosocial development.
4. In 2018, there were 264 drug induced deaths were cannabinoids were present[63] and cannabis was the second most common drug identified at toxicology for transport accidents. The short-term effects of cannabis can increase the risks of road traffic crashes, largely due to diminished driving performance in response to emergencies.
5. The National Drug Strategy 2017 - 2026[64] lists cannabis as a priority substance not just as a result of prevalence among the population, but also the increased harm is that such substances bring to an individual and or the community. It is one of the drug types associated with the most harm in Australia.[65] cannabis dependence among young adults is correlated with and probably contributes to mental disorders such as psychosis.[66] It is also the second most common drug identified at toxicology for transport accident deaths.[67]
6. In considering paragraph 11.1.2(1) it is important to bear in mind that paragraph 6.3(4) of the Direction stipulates that decision-makers should be guided by the principle that criminal offending and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable.
7. Regarding Mr Poynder's submissions that cannabis is no more serious than alcohol or tobacco, the Tribunal notes that this proposition is not supported by the evidence before it.
8. There is no evidence before the Tribunal to suggest that tobacco usage is a contributing factor in major transport deaths. There is persuasive evidence before the tribunal that cannabis is. Neither is there any evidence before the Tribunal that either alcohol or tobacco increase the risk of a psychotic episode, either by a factor of 2.6, or at all. There is persuasive evidence before the tribunal that cannabis does. The assertion that cannabis is no more harmful than alcohol or tobacco must therefore be rejected.
9. Indeed, it appears to have been rejected by the Queensland Parliament, which has not mentioned alcohol or tobacco in the Drugs Misuse Act 1986 (Qld).
10. Counsel for the Applicant submitted that cannabis is serious "because parliament says it serious".[68] However, the Queensland parliament has not merely expressed a policy opinion via a resolution. It has enacted the Drugs Misuse Act 1986 (Qld), which provides the offences and serious penalties of present relevance, under which the Applicant has been sentenced. It is not the province of this Tribunal to question the inclusion or exclusion of particular drugs, or the offences and penalties provided in this law any more than it is the province of the Tribunal to question a sentence imposed by the Courts. The Tribunal must accept the laws as enacted, and the sentences as imposed.
11. The Tribunal accepts the submissions of the Respondent that Appellate Courts have also identified that the correlation between the use of cannabis and mental illness and progression to harder drugs is a familiar theme in sentencing materials in more recent times.[69]
12. The seriousness of the potential harm which could flow from a repetition of the applicant's offending is so serious, that the Tribunal considers that the Australian community's tolerance for any risk of this harm would be minimal, if any.
13. Having regard to this, as well as paragraph 6.3(4) of the Direction, the Tribunal considers that any risk of similar conduct by the applicant is unacceptable.
14. A consideration of paragraph 11.1.2(1) therefore weighs heavily against this application.
15. Paragraph 11.1.2(2) requires decision makers to have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
16. As noted in paragraph 11.1.2 (2) visa applicants should have no expectation of a positive outcome to a visa application. This consideration resonates in the circumstances of the present application.
17. A consideration of paragraph 11.1.2(2) weighs heavily against this application.
18. Paragraph 11.1.2(3) requires that in considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

(i) information and evidence from independent and authoritative sources on the likelihood of the non-citizen reoffending; and

(ii) evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and

(iii) the duration of the intended stay in Australia.

1. In considering paragraph 11.1.2 (3)(a), and other relevant consideration, the Tribunal has had regard in particular to exhibits A3 and R2 as submitted and discussed above in these reasons. A consideration of this sub-paragraph weights against the application.
2. Exhibit A3, is an article entitled "Estimating drug harms: a risky business?". This article is written by Professor David Nutt. The points made by Professor Nutt include:[70]
   • cannabis is a harmful drug and there are concerns about widespread use of cannabis amongst young people;
   • a concentrated public health response is required to drastically reduce its use;
   • current evidence suggests a probable but weak causal link between psychotic illness and cannabis use;
   • cannabis use is associated with an increased experience of psychotic disorders;
   • use of a lot of cannabis will make a person more prone to having psychotic experiences that include schizophrenia, but this is relatively rare, and causation is uncertain;
   • smokers of cannabis are 2.6 times more likely to have a psychotic-like experience than non-smokers.
3. Professor Nutt rated cannabis as below alcohol and tobacco in terms of harm ranking, however it is unclear as to whether these rankings included harm from industrial, motor vehicle, and general accidents. Professor Nutt stated[71]:

I think we have to accept young people like to experiment - with drugs and other potentially harmful activities - and what we should be doing in all of this is to protect them from harm at this stage of their lives....

We also have to fully endorse harm reduction approaches at all levels and especially stop the artificial separation of alcohol and tobacco as "non-drugs".

1. The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct is well documented in Exhibit R2 and earlier in these reasons.
2. A consideration of paragraph 11.1.2(3)(a) weighs heavily against this application.
3. In assessing for the purposes of paragraph 11.1.2(3)(b)(i). the likelihood of the applicant engaging in further criminal or other serious conduct, the Tribunal has taken into account the evidence of Dr Chan[72] and accepts that the probability of the applicant reoffending is low, which is consistent with his conduct during the period when he was on bail, and the Tribunal gives this some weight.
4. There is no evidence before the Tribunal that the applicant has undertaken any specific rehabilitation. There is however evidence that he has spent time in the community since offending, albeit whilst on bail and awaiting sentence. The Tribunal nevertheless gives this some weight for the purposes of paragraph 11.1.2(3)(b)(ii) of the Direction. A consideration of the duration of the Applicant's intends stay weighs against the application.
5. In considering the duration of the Applicant's intended stay in Australia for the purposes of paragraph 11.1.2(3)(b)(iii), the Tribunal is mindful of the fact that this Applicant is seeking a bridging visa pending the issue of a Partner visa. Mr Poynder conceded that his client intends to stay in Australia permanently notwithstanding that the visa presently at issue is one of limited but uncertain duration.
6. Paragraph 11.1.2 (4) requires that decision makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-term stay. In the present case, the applicant is seeking the grant of a bridging visa so as to enable him to remain in Australia pending a determination in respect of his pending Partner visa application which would in turn, if granted, entitle him to remain in Australia permanently. The Tribunal considers that the intention to stay permanently, means that the Australian community would be permanently exposed to the risks which would flow from any further offending by the applicant, and this weighs heavily against the Applicant.

1. The Tribunal has had regard to the provisions of paragraphs 11.1.1 and 11.1.2 of the Direction and has also had regard to subparagraph 6.3 of the Direction. The Tribunal finds that the nature of the Applicant's offending conduct is very serious, and that there is at least a low level likelihood that he will engage in further very serious conduct if returned to the Australian community.
2. Having considered the entirety of the evidence and each of the relevant factors contained in the Direction, the Tribunal finds that Primary Consideration A weighs extremely heavily in favour of refusal of the visa application.

PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

1. Paragraph 11.2(1) of the Direction compels a decision-maker to make a determination about whether refusal is or is not in the best interests of a child affected by refusal of the Applicant's visa. Paragraphs 11.2(2) and 11.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision to refuse to grant the visa is expected to be made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
2. Paragraph 11.2(4) requires that the Tribunal in considering the best interests of the child, the following factors must be considered where relevant:

(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

(b) the extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;

(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;

(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

(e) whether there are other persons who already fulfil a parental role in relation to the child;

(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

(g) evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

1. In the present case, there is only one relevant child who will be under the age of 18 years at the expected time of decision. That Child G was born in September 2018. The Applicant is her father. They have not been in each other's physical presence since October 2019 around the time the Applicant was imprisoned. The Tribunal accepts that the Applicant played the asserted role in the child's life up to the time of his imprisonment. For the purposes of paragraph 11.2(4)(a), consideration of the relationship weighs in favour of the Applicant.
2. In regard to paragraph 11.2(4)(b), it will be some sixteen years before the child turns 18. Whether the Applicant is to play a positive role in her future would be very much dependent on his capacity to abstain from criminal activity, and whilst his prospects of re-offending has been assessed as low, it nevertheless remains to be seen. If the Applicant did not abstain from criminal activity, the consequences for the child might or might not be significant. There are no present court orders relating to parental access and child care. The Tribunal gives this consideration some limited weight in favour of the Applicant.
3. In regard to paragraph 11.2(4)(c), the Tribunal considers that provided the Applicant abstains from further offending, which is a matter of some uncertainty, his prior and future conduct would be unlikely to have a negative impact on the child. The Tribunal gives this consideration some limited weight in favour of the Applicant.
4. In regard to paragraph 11.2(4)(d), the Tribunal accepts that should the Applicant's visa be refused this would be likely result in his separation from the child, and this in turn would have an adverse impact on the child, particularly in consequence of absence of physical contact, for which technology presently provides no suitable substitute. The Tribunal gives this consideration weight in favour of the Applicant.
5. In regard to paragraph 11.2(4)(e), the Tribunal notes that the Applicant's partner already fills a parental role in relation to the child. The Tribunal gives this consideration neutral weight.
6. In regard to paragraph 11.2(4)(f), the child's age renders it impossible to ascertain her views. The Tribunal gives this consideration neutral weight.
7. In regard to paragraph 11.2(4)(g), there is no relevant evidence, and the Tribunal gives this consideration neutral weight,
8. In regard to paragraph 11.2(4)(h), there is no relevant evidence and the Tribunal gives this consideration neutral weight,
9. An overall consideration of Primary Consideration B weighs in favour of the granting of the visa application.

PRIMARY CONSIDERATION C: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

1. In making the assessment for weight to be allocated to Primary Consideration C, paragraph 11.3(1)[73] of the Direction provides in no uncertain terms that the Australian community expects non-citizens to obey Australian laws while in Australia. It also provides that where the Applicant has breached, or where there is an unacceptable risk that he will breach, this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. The Tribunal must also have due regard to the Government's views in this respect.

The Evolution of the Australian Community's "Expectations"

1. In 2003, this Tribunal said that in considering weight attributable to this Primary Consideration C, one must look to the expectations of "...the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501."[74]
2. In 2017, Deputy President Forgie of this Tribunal considered that paragraph 13.3(1) (a provision similar to paragraph 11.3 but related to visa cancellation) of the Direction leads a decision-maker to:[75]

102. ...conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia's laws while in Australia but leaves open, for example, what is an 'unacceptable risk' that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa... [Tribunal's underlining]

1. This more circumspect nature of the Australian community's expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection ("YNQY"):[76]

In substance this consideration is adverse to any applicant...In particular, the last two sentences of para 13.3 of the Direction suggest the 'expectations' about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes. [Tribunal's underlining]

1. The learned Justice Mortimer also thought the last two sentences of paragraph 13.3 of the Direction:

...[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

[77] we do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do... [Tribunal's underlining]

1. In Afu v Minister for Home Affairs ("Afu"),[77] Justice Bromwich said:

The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65...The Tribunal was required to give effect to those norms which is precisely what it did. [Tribunal's underlining]

1. In FYBR v Minister for Home Affairs ("FYBR"),[78] Justice Perry observed that:

It follows, in line with the authorities, that cl 11.3 of Direction 65[79] is a statement of the Government's view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant's submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant's circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the "norm" stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...[80] [Tribunal's underlining]

1. The single judge decision in FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld the single judge decision in FYBR, confirming Justice Perry's reasons and approach to the expectations of the Australian community.[81]
2. Thus, the Full Court's decision, along with the existing authorities of YNQY and Afu establish that:

(a) the "expectations of the Australian community" cannot be measured or determined as a provable fact. Rather, it is an assessment of community values made on behalf of that community;[82]

(b) it is not for the Tribunal to determine for itself what such "expectations" are by reference to the Applicant's circumstances or evidence about those expectations;[83]

(c) the Government's views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks the "expectations of the Australian community" are, and the Tribunal should have due regard of those statements, if made; and[84]

(d) in assessing the weight attributable to this Primary Consideration C, decision‑makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision-maker.[85]

Analysis - Allocation of Weight to this Primary Consideration C

1. In weighing this consideration, there is no escaping the clear unequivocal language of the very simple proposition found in paragraph 11.3(1) of the Direction. It is in these words. "The Australian community expects non-citizens to obey Australian laws while in Australia." The language could not be clearer. Neither could the Applicant's failure to meet this expectation.
2. Paragraph 11.3 deals with three alternative scenarios. The first is where the non-citizen has breached the trust of the Australian community. The second is where there is an unacceptable risk that the non-citizen will breach this trust. The third is where the non-citizen has been convicted of offences in Australia or elsewhere. In any of these circumstances alone, "it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because of the nature of the character concerns or offences ..."
3. The Tribunal considers that the Applicant has breached the trust referred to in scenario one. Having regard to the inverse proportionality between the tolerance of the Australian community and the seriousness of offences, even though the likelihood of the Applicant's reoffending has been assessed as low, the Tribunal considers that this level of risk is an unacceptable one. Moreover, it is not disputed that the Applicant has been convicted of three very serious offences which occurred on different dates in Australia.
4. The Government's views in this matter, to which the Tribunal must have due regard are reflected in the submissions, and the materials relied upon by the Respondent.
5. The Tribunal believes the Australian community would strongly expect that this Applicant should be refused a visa.

1. The Tribunal accordingly finds that this Primary Consideration C is to be given weight in favour of affirming the refusal of the visa application.

1. It is necessary to look at the Other Considerations listed at paragraph 12(1) of the Direction. The Tribunal will now consider the non-exclusive list of the four stipulated sub-paragraphs (a), (b), (c), and (d).

1. The Applicant has not claimed to fear harm if returned to Vietnam. None of the evidence suggests a risk of harm were that to occur. This consideration is not relevant to determination of this application, and is given neutral weight.

1. Witness A2 told the Tribunal that she was not on any medication, and was not receiving any medical treatment for any health conditions. She said that she had been stressed caring for the baby by herself, but had not sought medical attention because of that. She said that she had never been treated for mental illness, but then said that she had been to see a psychologist firstly a "long time ago" and then "a few months ago".
2. In her statutory declaration submitted prior to the hearing, Witness A2 made no mention of suffering any mental illness, and there was no expert evidence from any medical practitioner she had consulted to the effect that Witness A2 was suffering from depression.
3. The Tribunal accepts that Witness A2 consulted a psychologist, however there is no satisfactory evidence before the Tribunal so as to establish that she suffers from, or has ever suffered from depression, or any other mental illness.
4. The Applicant told Dr Chan that Witness A2 suffered from depression, and the doctor's professional opinion in respect of the impact of visa refusal was substantially underpinned by an acceptance of the truth of what he had been told. He did not interview Witness A2, or taken any apparent steps to verify what he had been told.
5. The doctor's opinion and evidence as to the impact of visa refusal on Witness A2 was heavily based on a "history of depression and current depression" on her part, which is not supported by other evidence. The Tribunal rejects this aspect of Dr Chan's evidence.
6. The Tribunal is nevertheless prepared to accept Dr Chan's evidence in so far as it relates to the possible impact of visa refusal on the child Child G.
7. The Tribunal also accepts that an absentee father will have an adverse impact on Witness A2.
8. Overall, a consideration of the impact on family members weighs slightly in favour of the Applicant.

1. There is no specific evidence of victims in respect of the offences of which the Applicant has been convicted. A consideration of this factor is therefore irrelevant, and is given neutral weight.

1. There is no evidence before the Tribunal that the refusal of the Applicant's visa would have an impact on Australian business interests, or would significantly compromise the delivery of a major project, or delivery of an important service in Australia. The Tribunal therefore finds that this consideration is not relevant to determination of this application and gives it neutral weight.

1. The application of the Other Considerations criteria in the present matter can be summarised as follows:
   • international non-refoulement obligations: no weight;
   • impact on family members: weighs slightly in favour of revocation;
   • impact on victims: no weight**;** and
   • impact on Australian business interests: no weight.

1. The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.
2. In considering whether there is another reason to exercise the discretion afforded by section 501(1) of the Act to approve or refuse the visa, the Tribunal finds as follows:
   • Primary Consideration A weighs extremely heavily in favour of refusal;
   • Primary Consideration B weighs in favour of approval;
   • Primary Consideration C weighs in favour of refusal;
   • Other Considerations weigh slightly in favour of approval; and
   • To the extent that Other Considerations weigh in favour of approving the visa, they cannot, even when combined with Primary Consideration B, outweigh Primary Considerations A and C.
3. Application of the Direction therefore favours the refusal of the Applicant's visa application.
4. Consequently, the Tribunal cannot exercise the discretion to set aside the decision under review and approve the Applicant's visa.

1. I certify that the preceding 216 (two hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

.............................[SGD]..........................................

Applicant's Statement of Facts, Issues and Contentions

Article entitled "Estimating drug harms: a risky business"

Statement of Dr Chan with exhibited exert of Transcript attached

Respondent's Statement of Facts, Issues and Contentions

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

DECISION: Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 9 November 2020 to refuse to grant the Applicant's visa application.

The Tribunal will give written reasons for this decision within a reasonable time of the decision.

....................[SGD]...................

[1] Exhibit G1, G Documents G12 at page 57.

[2] Exhibit G1, G Documents G2 at page 3-9.

[3] Exhibit G1, G Documents G3 at pages 10-24.

[4] Exhibit G1, G Documents G5 at page 27 - 30 at 30; Ibid G Documents G3 at page 17, para 7; Exhibit G1 G Documents G6 at page 31.

[5] Exhibit G1, G Documents G10 at page 44; Exhibit G1, G Documents G12 at page 58: Exhibit A1, Applicant's Statement of Facts Issues and Contentions

[6] The Direction, sub-paragraph 7(1)(b).

[7] [2018] FCA 594 at [23].

[8] Exhibit G1, G Documents, G4 at pages 25-26.

[9] Exhibit G1, G Documents, G5 at pages 27-30.

[10] Exhibit G1, G Documents, G6 at pages 31-32.

[11] Exhibit G1, G Documents, G7 at pages 33-34.

[12] Exhibit G1, G Documents, G8 at pages 35-36. The Tribunal notes that this document discloses no previous convictions.

[13] Exhibit A1, Applicant's Statement of Facts, Issues and Contentions.

[14] Exhibit G1, G Documents, G5 at pages 27-30.

[15] Exhibit R1, Respondent's Statement of Facts, Issues and Contentions.

[16] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47 at

[17] Lester v The State of Western Australia [2011] WASCA 128 [21]-[22]; cited in Western Australia v Yeates [2018] WASCA 232 at [40]- [42].

[18] FYBR v Minister for Home Affairs [2019] FCAFC 185

[19] YNQY and Minister for Immigration and Border Protection [2017] FCA 1466 at [76] and [77]; also FYBR at [75] (Charlesworth J); Ibid at [66] (Charlesworth J), [91] (Stewart J).

[20] Ibid at [67] (Charlesworth J), [104] (Stewart J).

[21] Ibid at [101], see to a similar effect [75] (Charlesworth J).

[22] Exhibit G1, G Documents, G9 at page 38.

[23] Exhibit G1, G Documents, G14 at page 68.

[24] Exhibit G1, G Documents, G19 at page 111.

[25] Exhibit G1, G Documents, G10 at page 43.

[27] Exhibit G1, G Documents, G11 at page 45.

[28] Exhibit A2, Statement of Witness A2.

[29] Exhibit G1, G Documents, G26 at pages 149 - 162.

[30] Exhibit G1, G Documents, G26 at page 151.

[35] Exhibit G1, G Documents, G9 at pages 38-42.

[36] Exhibit G1, G Documents, G18 at page 106.

[37] Exhibit G1, G Documents, G9 at page 38.

[38] Exhibit G1, G Documents, G9 at page 38.

[39] Exhibit G1, G Documents, G26 at page 153.

[40] Exhibit G1, G Documents, G26 at page 151.

[41] Exhibit G1, G Documents, G5 at page 28.

[42] Exhibit G1, G Documents, G5 at page 28, line 30.

[43] Exhibit G1, G Documents, G5 at page 28, line 37- 46,

[44] Exhibit G1, G Documents, G5 at page 28-29, line 3.

[45] Transcript dated 21 January 2021, page 20, line 31.

[47] Transcript date 21 January 2021, page 31, lines 20-37.

[48] Transcript date 21 January 2021, page 31 lines 38-46; page 32 lines 1-8.

[49] Exhibit G1, G Documents, G26 at page 160.

[50] (2015) 156 CLR 203, [2015] HCA 15.

[51] Transcript dated 2 February 2021, page 94 at line 35 - 39.

[52] Transcript dated 2 February 2021, page 92 lines 15-18.

[53] Transcript dated 2 February 2021, page 96 lines 25-28.

[54] Transcript dated 2 February 2021, page 97 lines 35-39.

[55] Transcript dated 2 February 2021, pages 102-104.

[56] Transcript dated 2 February 2021, page 113 at lines 35 - 38.

[57] Transcript dated 2 February 2021, page 113 at lines 40-46.

[58] Transcript dated 2 February 2021, page 114 at lines 23-25.

[59] Exhibit R2, Respondent's Tender Bundle, page 1.

[60] Exhibit R2, Respondent's Tender Bundle.

[61] Exhibit R2, Respondent's Tender Bundle at page 7.

[68] Transcript dated 2 February 2021, page 96, lines 25-31.

[69] Exhibit R1, Respondent's Statement of Facts, Issues and Contentions; Lester v The State of Western Australia [2011] WASCA 128 [21]-[22]; cited in Western Australia v Yeates [2018] WASCA 232 at [40]- [42].

[70] Exhibit A3 at page 4, under the heading Cannabis - a potent problem.

[72] Exhibit G1, G Documents G26 at page 159.

[73] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.

[74] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] (per DP Block).

[75] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].

[76] [2017] FCA 1466 at [76]- [77].

[77] [2018] FCA 1311 at [85].

[78] [2019] FCA 500.

[79] Note: "the Direction" is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to "expectations of the Australian community" remains the same as per Direction 65 - that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.

[81] See FYBR v Minister for Home Affairs [2019] FCAFC 185.

[84] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.

[85] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).