(a) the Minister is satisfied that the person does not pass the character test because of the operation of:

(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

...; and

(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

1. Section 501(6)(a) of the Act then provides that a person does not pass the character test if they have a substantial criminal record. Relevantly for this application, section 501(7)(c) provides than a person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
2. With regard to the revocation of a mandatory cancellation decision, section 501CA relevantly provides:

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

...

(3) As soon as practicable after making the original decision, the Minister must:

(a) give the person, in the way the Minister considers appropriate in the circumstances:

(i) a written notice that sets out the original decision; and

(ii) particulars of the relevant information; and

(b) invite the person to make representations to the Minister within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

(5) If the Minister revokes the original decision, the original decision is taken not to have been made.

...

1. Where a decision has been made by a delegate of the Minister under section 501CA(4) not to revoke a mandatory cancellation of a visa, the affected person may make an application to the Tribunal seeking a review of that decision under section 500(1)(ba) of the Act. The Applicant filed this application for review with the Tribunal on 7 February 2018.
2. Under section 499(1) of the Act the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act such as the Tribunal must comply with such direction (section 499(2A) of the Act). Currently, the applicable direction is Direction No. 65 ("the Ministerial Direction").

1. It is appropriate to record several of the sections of the Ministerial Direction that are applicable with respect to this Application. Paragraph 6.2 is entitled "General Guidance" and relevantly provides:

(1) The Government is committed to protecting the Australian community from harm as a result of the criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

...

(3) The principles provide a framework within which decision-makers should approach their task of deciding... whether to revoke a mandatory cancellation under section 501CA. The relevant... factors that must be considered in making a revocation decision are identified in Part C of this Direction.

1. The principles referred to in paragraph 6.2 are contained in paragraph 6.3, which relevantly provides:

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

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

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

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

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

...

(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 noncitizen is visa should be cancelled, or their Visa application refused.

1. Part C of the Ministerial Direction provides guidance for decision makers regarding the revocation of cancellation decisions and contains a number of primary and other considerations (outlined later in these reasons for decision). Finally, paragraph 8(4) of the Ministerial Direction provides that Primary considerations should generally be given greater weight than the other considerations and paragraph 8(5) states that One or more primary considerations may outweigh other primary considerations.

1. The Applicant and the Respondent consider that the issue to be decided is whether under section 501(4)(b) of the Act there is "another reason why" the mandatory cancellation of the Applicant's visa should be revoked.[1]
2. However, under section 501CA(4) the character test comes into play. Whilst no contention has been made on the part of the Applicant that he passes the character test, no formal concession has been made by him that he actually fails it. (Although, it is implicit in his submissions). The Tribunal considers for the sake of completeness the question should be adjudicated on.

THE EVIDENCE AND OTHER MATERIALS BEFORE THE TRIBUNAL

1. There was both documentary and viva voce evidence before the Tribunal.
2. It is not intended to identify all the documentary evidence before the Tribunal which is known to the parties however the following documents were tendered into evidence:
3. Witness statements from the following individuals:
   • (a) The Applicant;
   • (b) The Applicant's brother-in-law;
   • (c) A friend of the Applicant;
   • (d) The Applicant's brother; and
   • (e) The Applicant's sister
4. The "G" documents and two volumes of the "Supplementary G" documents..
5. A report of psychologist Dr Annie Cantwell-Bartl of 19 September 2018.
6. Copies of certificates of achievement for various courses that the Applicant has recently completed.
7. A variety of other reports, learned articles and sundry documents.

1. The Applicant arrived in Australia in 1981 when he was 13 years old. He came to Australia as a refugee. He left Vietnam by boat with his mother, brother and two sisters. They fled Vietnam following the imprisonment of his father for six years by the Communist regime that had taken control in Vietnam because he had served in the South Vietnamese army. The Applicant's family had faced threats to their safety. An uncle had resettled in Australia so they made their way here.
2. Unfortunately, they embarked upon a particularly perilous voyage. The boat was crammed with people seeking to escape. The weather was not particularly good with the boat taking on water which required those on board to bail repeatedly to stop it from sinking. Most of those on board also were repeatedly seasick and surviving the voyage was difficult. To add to the conditions just described in the course of the voyage the captain of the boat committed suicide by jumping into the sea in the belief that he would not survive the journey. The Applicant gave evidence that he witnessed the captain jump overboard and refuse to be rescued. The boat was also robbed by Thai pirates. Eventually, the boat reached Malaysia and the Applicant and his family were sent to a refugee camp prior to their acceptance for resettlement and subsequent travel to Australia. The evidence before the Tribunal indicates that what the Applicant experienced on this voyage has had a lasting effect upon him and caused him to suffer from stress, depression and Post-Traumatic Stress Disorder (PTSD). This is canvassed in the several psychologists' reports and other material in evidence before the Tribunal.
3. Following his arrival in Australia the family initially lived in Springvale before moving to Richmond where permanent accommodation was found. The Applicant attended Richmond High School from years 7 to 10. Additionally, he attended special English classes. Subsequently he transferred to Collingwood Technical School but left at the end of year 11 so that he could go to work to assist his family. The jobs that he got included working in his mother's sewing business and also in restaurants. He also had a job making jewellery and belts for a firm in Richmond. His employment then became somewhat punctuated due to his convictions in early adulthood.

1. The specific details of the Applicant's offending are contained in a schedule annexed to these reasons. The details of the offences are derived from the National Police Certificate which is in evidence before the Tribunal and Victoria Police records. The Applicant both in his witness statement, his oral evidence from the witness box both in evidence in chief and cross examination and through his counsel conceded the offending as described in the National Police Certificate and the police records.
2. The offending commenced with a conviction in the Sunshine Children's Court for theft in 1983 and concluded with a conviction of the common law offence of riot in the County Court of Victoria at Melbourne this year.
3. His first conviction for an offence involving drugs was in the County Court of Victoria in 1991 for the possession of heroin for which he was sentenced to a term of imprisonment of 18 months. His last drug conviction was in 2016 in the County Court of Victoria at Melbourne when he was convicted of trafficking methylamphetamine (ice) and sentenced to a term of four years imprisonment. There were four other drug trafficking convictions in the County Court of Victoria at Melbourne between 1997 and 2004.
4. The Applicant also has several convictions in 1993 and 2016 for firearms offences including the possession of handguns.
5. There was a significant gap between his conviction in 2004 and the later conviction in 2016. (This gap was described by the sentencing judge in his reasons for sentencing the Applicant in 2016 as "a large break between his criminality, some 11 years.")
6. The Applicant contends that his criminal background is due to his drug dependency, especially in respect of his drug and drug related crimes. This contention was largely accepted by the Respondent throughout the course of the hearing and in the closing submissions made to the Tribunal. The Respondent conceded that there was clearly a relationship between the Applicant's drug use and his offending. The Applicant contended that his serious drug problem was the underlying cause of his offending.
7. The evidence given by the Applicant in his witness statement, from the witness box and to various professionals who have prepared reports over many years, reveals that the Applicant's heroin dependency emerged after he faced murder charges in 1987. He was held on remand for a murder charge which was ultimately dismissed at a committal hearing in November 1987. It was whilst in prison on remand that he was introduced to heroin.
8. The link between the Applicant's drug dependency and offending is borne out by much of the evidence before the Tribunal. The reasons of the sentencing judges for some of the earlier convictions imposed on the Applicant are not in evidence. However, there are reasons for the decision of an earlier decision of the Tribunal in which the Applicant successfully sought review and revocation of a decision of a delegate of the Minister to deport him made in 1997. In those reasons it records the observations of several sentencing judges that the Applicant was involved in drug dealing to feed his drug addiction.
9. It also noted that a Judge imposed a sentence of 15 months imprisonment wholly suspended for two years on the condition he undergo treatment at Odyssey House. It was observed that the judge was satisfied the Applicant had a drug addiction and this had contributed to the commission of the offence. Indeed, this conclusion is supported by some of the other documentary evidence before the Tribunal. A Forensic Alcohol and Drug Assessment under Section 28(1)(d) of the Sentencing Act 1991 (Sentencing Act) is in evidence before the Tribunal.[2] That report was prepared by Lisa Jackson, Case Coordinator, of the Forensic Drug and Alcohol Program. It was reviewed by consultant psychiatrist Dr Chris Walsh at the Western Hospital, with a recommendation that he was suitable for a section 28 conditionally suspended sentence. Section 28 (as it then applied) of the Sentencing Act provided that if a court which had convicted a person of an offence punishable by imprisonment was satisfied that drug addiction contributed to the commission of the offence, and that such offender was a drug dependent person, and it has considered a report by medical officer of an assessment centre, it may if it imposed a sentence of imprisonment make an order wholly suspending the sentence irrespective of its length. There can be no doubt that the judge considered that the Applicant was drug dependent.
10. Also in the Tribunal's earlier reasons there was reference to several other professionals from the Brosnan Centre, Odyssey House, and Port Philip Prison concerning the Applicant's drug addiction. Amongst those witnesses was one Neos Zavrou a clinical psychologist and manager of clinical services at Odyssey House who had prepared two reports and specifically referred to his addiction, proposed treatment and what steps could be taken for his reintegration into the community following such treatment.
11. Bernard Healy, a clinical psychologist prepared a report following a consultation with the Applicant on 22 February 2003 in which he recorded the history of the Applicant's heroin addiction since 1987[3]. He described him as having "been in the grip of addiction ever since." He also observed that the Applicant's "offending since 1991 has been in the context of his heroin addiction".
12. Dr Cantwell-Bartl expressed similar sentiments and acknowledged his drug addiction in her report and in the evidence that she gave orally before the Tribunal.
13. The Applicant's drug addiction was also referred to by the sentencing judges in their reasons.
14. The Tribunal accepts that the Applicant's offending was closely related to his drug dependency. Certainly, this is evident on the preponderance of the evidence since his incarceration in 1987.

1. Whilst it is implicit in the Applicant's Statement of Issues, Facts and Contentions that he fails the character test, as noted above no such formal concession has actually been made. Therefore, the Tribunal considers it should determine this question.
2. Under section 501(6) of the Act, a person does not pass the character test if they have a substantial criminal record (as defined by subsection (7)). Under section 501(7)(c) a person has a substantial criminal record where the person has been sentenced to a term of imprisonment of 12 months or more; or under section 501(7)(d) the person has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.
3. As has been explained earlier in these reasons the Applicant concedes and the evidence reveals that he has several convictions where the term of imprisonment imposed was 12 months or more.[4] He is accordingly deemed to have a substantial criminal record within the meaning of section 501(7)(c) of the Act and the Tribunal must therefore find that he does not pass the character test.

1. Paragraph 13(2) of the Ministerial Direction with respect to revocation requests prescribes the Primary considerations to be taken into account by the decision maker. It states:

...

(2) In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations:

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

b) The best interests of minor children in Australia;

c) Expectations of the Australian community.

1. Paragraph 13.1(1) of the Ministerial Direction requires the Tribunal, when considering the protection of the Australian community, to acknowledge 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. Paragraph 13.1(2) further states:

(2) Decision-makers should also give consideration to:

(a) The nature and seriousness of the non-citizen's conduct to date; and

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

Nature and seriousness of the Applicant's conduct

1. Paragraph 13.1.1 of the Ministerial Direction relevantly provides that:

(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:

1. The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
2. The principle that crimes committed against vulnerable members of the community (such as minors, 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;

c) The sentence imposed by the courts for a crime or crimes;

1. The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;

e) The cumulative effect of repeated offending;

...

1. Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).

1. There does not seem to be any doubt from all the available material that the conduct engaged in by the Applicant is serious. (His counsel in his opening acknowledged that the Applicant's past crimes were serious. In his statement the Applicant acknowledged his criminal history and in the witness box admitted his convictions.) If one looks at the other material available to the Tribunal this is readily evident. The starting point of course is the National Police Certificate itself together with the nature of the Applicant's offending.[5]
2. In undertaking the analysis required by this primary consideration considerable weight must be placed by the Tribunal on the comments made by the respective trial judges when imposing the sentences that they did on the Applicant.
3. In his appearance in the County Court of Victoria in 2016 the sentencing judge described the Applicant's offending as a "serious crime". Referring to a previous decision of R v Wilson in the Court of Appeal he also stated that such a case "shows unambiguously how seriously the community through its Parliament views this particular crime."
4. In sentencing remarks in 2004 the judge observed that he felt there should be a period of parole supervision as part of the sentence imposed. He stated that this was to achieve the aim of acknowledging the seriousness of the Applicant's offending which had not been attended by any indication of remorse.[6]
5. In her sentencing remarks in 2003 the judge made the following observations:

"The facts in this case are very disturbing. The impact of drug trafficking in our community is enormous. Trafficking in drugs is regarded as very serious. Courts have said that when apprehended those who traffic in drugs of dependence can expect to receive salutary punishment. In 1988 Mr Justice Tadgell, as he then was, said in the Supreme Court of Victoria:

"It must be understood by all those who attempt to indulge in the wicked practice of trafficking in drugs of dependence which have a corrupting effect on other members of the community that they must expect to receive or experience the full force of the criminal law."

1. She also observed that she was called upon by the provisions of the Sentencing Act to manifest the community's denunciation of the Applicant's conduct and generally to impose a just punishment.
2. The frequency of the Applicant's offending is also of concern. His offending has occurred over a period of well in excess of 30 years. It is notable that he has had five separate appearances in the County Court of Victoria for drug trafficking. These appearances occurred between 1997 and 2016. On each of these occasions he was sentenced to lengthy terms of imprisonment. (The last appearance for drug trafficking before Judge McInerney led to a sentence being imposed of a total term of five years and one month with a minimum non-parole period of three years and five months.) He also had an earlier appearance in the Melbourne County Court in 1991 in which he was sentenced to 18 months imprisonment for possession of heroin. The sentencing judge in that matter found that the Applicant was in possession of heroin for purposes related to trafficking and he was sentenced by reason of that finding under the provisions of section 73(1)(c) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
3. The Tribunal does not have a transcript of the sentencing remarks other than those referred to above. The comments made by judges when sentencing the Applicant in 1991, 1997 and in the County Court of Victoria in 1997 are referred to by the Tribunal in its "Decision and Reasons for Decision" of 1998. Such application successfully sought the review of a decision made in 1997 by a delegate of the Minister under the Act ordering that the Applicant be deported. The Tribunal reproduced some of the comments of the sentencing judge and noted the findings that the Applicant possessed the drug of dependence, namely heroin, for purposes related to trafficking and concluded that the offending was serious.
4. The matters where the Applicant had been convicted of trafficking heroin involved the sale of heroin to undercover police in three transactions for a total of $29,600 between December 1995 and January 1996. The second offence of trafficking in hashish occurred in January 1996 when the Applicant was arrested as he paid undercover police $43,500 for 5 kg of hashish (by any measure a large quanity). In addition to imposing a sentence of 24 months imprisonment the judge noted that the Applicant (according to his own description to undercover police) was a middleman in the drug hierarchy, concerned as much to make money as to feed his drug addiction.
5. It perhaps should be noted that in commenting on this offending the Tribunal observed that the subsequent criminal behaviour was relevant to the question of recidivism. It was also observed that there is a manifest danger to the community of a heroin addict reverting to his addiction and dealing in drugs to support his former lifestyle by reason of which only a low level risk of recidivism is acceptable. Unfortunately, these observations accurately foreshadowed what the Applicant did in the future as is apparent from his convictions in the years following the Tribunal's decision in 1998.
6. Another factor to be considered by the Tribunal is that the Applicant has seven convictions for the possession of firearms, ammunition and prohibited weapons. The first conviction was for the possession of a handgun at the Williamstown Magistrates' Court in 1993 and the last conviction was at the County Court in 2016. These firearms were a hand gun, a sawn off shot gun, a 44 calibre handgun, a .22 calibre rifle, a Derringer and a ballistic vest (not to mention possession of ammunition and a samurai sword). The benefits to society as a whole from these laws have been significant. They lead to a safer community, they save lives and mean that less demands are made on the healthcare and social welfare systems dealing with the consequences of death and injuries suffered by gunshot victims.
7. Another dimension to the Applicant's offending which is problematic for him is his most recent conviction in 2018 for the common law offence of riot for which he was sentenced to 18 months imprisonment. Nine months of that sentence was expressed to be concurrent with his existing sentence giving him a new non-parole period of 10 months. He conceded in his evidence that he was involved in the riot. Unfortunately, the Tribunal does not have the sentencing remarks of the judge who imposed the relevant penalty. The Applicant stated that he became involved in the riot when he followed a group who were doing the wrong things. He said he was wrong and very sorry about it. He explained or sought to explain, his involvement in the riot by reason of the fact that if he did not cooperate with his fellow prisoners joined in the riot he could be in some kind of trouble. He expressed regret that had it not been for the riot he would have finished his previous sentence by now.
8. Regarding the offence of common law riot, the Applicant's preparedness to engage in further criminal activity whilst in prison reflects poorly upon him. It does so in several ways. Initially, it reflects a level of disobedience to authority which does not give one confidence as to his future prospects of non-recidivism. It is also a concern given the fact that there had been previous visa proceedings against him and it surely must have occurred to him that this behaviour might weigh very heavily against him in any subsequent proceedings concerning his visa status.
9. Another dimension to his conviction for the common law offence of riot arises from the fact that on his own evidence it occurred when he asserted he was largely drug free[7]. This was in contrast to his evidence about his other offending which largely occurred when he was addicted to and under the influence of drugs. That he was prepared to offend in such a serious way when not under the influence of drugs raises questions about what his approach to obedience to the law might be were he to be released into the community. This concern particularly arises if he were to resume his association with undesirable characters as he has done in the past.
10. A further issue that arises from his period in prison that was dealt with in cross-examination was the contents of paragraph 40 of a letter from his lawyers to the Respondent on 2 February 2018. That paragraph states that the Applicant has remained drug free since returning to prison. On his own admission this is false. He admitted in the witness box that whilst in prison he had once taken ice, an illegal drug, and twice a prescription drug for which he had no prescription called "bup" (its correct pharmaceutical name is "buprenorphine" and is used to treat people with opioid dependency.[8]) He said that he told his solicitor he was using drugs. The Tribunal cannot accept this evidence from the Applicant. A legal practitioner who is an officer of the court and has ethical obligations, would be most unlikely to proffer a false statement to a government authority.
11. There was no reference in his Witness Statement filed with the Tribunal tendered in evidence to taking drugs in prison as he subsequently admitted to in the witness box. This is unfortunate.
12. Also Dr. Cantwell-Bartl observed in her report that he uses no drugs[9]. In her oral evidence before the Tribunal she said that he had told her he was taking a drug that was an opioid substitute but did not identify whether it was prescribed. He did not tell her that he had taken an illicit drug. One would have expected him to do so.
13. Given this evidence there is a concern about the fact that the Applicant has resorted to the use of drugs whilst in prison, albeit in a relatively small way.
14. Much time was occupied in the course of the hearing about other matters arising from the Applicant's conduct whilst he has been most recently in prison. They include being convicted before Governor's Disciplinary Hearings. The Applicant disputed most of the matters alleged concerning his conduct contained in prison records which were in evidence before the Tribunal, usually in the form of a documented "Incident Report"[10]. The Tribunal does not take these matters into account for several reasons. There was no evidence before the Tribunal describing how Governor's Hearings are conducted. The Tribunal observes that under "Part 7-Prison discipline", of the Corrections Act 1986 (Vic)[11] a system of Governor's hearings of "prison offences" (under that Act or regulations made thereunder) are established. The Corrections Regulations 2009 "Division 2-Governor's hearing"[12] prescribe the format for the conduct of Governor's hearings. These Regulations do not prescribe the standard of proof that must be met in such a hearing. All they prescribe is that if a prisoner pleads not guilty the Governor must decide whether the prisoner is guilty or not guilty of the prison offence after hearing all the evidence presented in accordance with that regulation.[13] Additionally, under Regulation 52(c) in conducting a Governor's hearing the Governor is not bound by the rules of evidence but may be informed on any matter in such manner as he thinks appropriate.
15. This is a considerably different procedure to that adopted in the conduct of a criminal trial which are bound by the rules of evidence (including the Evidence Act 2008 (Vic)), any applicable rules of criminal procedure (including the Criminal Procedure Act 2009 (Vic), which provides an extensive procedural regime for the conduct of any prosecution in any court), and a standard of proof is that of beyond reasonable doubt.
16. Also, the Tribunal acknowledges that it should be viewed with a degree of some reality that prison is a harsh environment. Prison rules may well be, and probably are imposed for good reason to deal with such an environment. However, given their nature and effect (let alone their legal status) they must stand in a different position to the criminal law which it will be recalled was applied to the Applicant with full force and effect arising from his involvement in a riot for which he was convicted and punished in the County Court in March of 2018.
17. The inference to be drawn from the frequency and pattern of the Applicant's offending is that he has not learned his lesson. It is also concerning given the fact that during several periods of custody, and after his release, there is evidence before the Tribunal that he had access to various counselling and psychological services that were designed to assist him get his life on track. He also undoubtedly had the support of his family. It is regrettable that he did not avail himself of these opportunities.
18. There is also evidence before the Tribunal that the Applicant has had his visa previously cancelled twice and had been formally warned in writing about the consequences of further offending in terms of his migration status. Despite these several warnings he continued to commit offences that resulted in lengthy prison sentences. It is of concern to the Tribunal as it reflects a disregard for the law and a degree of indifference that cannot be excused.
19. In 1997 a delegate of the Minister for Immigration and Multicultural Affairs made a decision under section 200 of the Act ordering that the Applicant be deported from Australia. The offence relied upon in making the deportation order was the conviction in the County Court of Victoria in 1991 for possession of heroin for which he was sentenced to 18 months imprisonment. He applied to this Tribunal and after a hearing it was ordered in 1998 that the decision should be set aside.
20. In 2000 the Applicant's visa was cancelled by the Minister under section 501(2) of the Act. Following the cancellation of his visa the Applicant appealed to the Federal Court and in 2003 such proceedings were resolved by consent setting the decision of the Minister to cancel his visa aside.
21. In the decision of the Tribunal in 1998 it was found that on face value, the Applicant's history of increasingly serious criminal behaviour did "little to inspire rehabilitation". In that paragraph the Tribunal found that the Applicant was given a warning in a letter dated in 1994 while he was serving a prison sentence that he faced the possibility of deportation and that it had no apparent effect. A finding was made that the Tribunal was satisfied the Applicant received that written warning and "basically ignored it.[14]
22. There is evidence that notices of intention to consider cancelling his visa were served upon him on or about 27 April 1999[15], 30 June 1999[16], 28 September 1999,[17] 21 October 2004[18], 24 January 2006,[19] 28 September 2006[20], 10 November 2006[21]. It should be observed that from 1999 to 2016 he was convicted of 13 offences from four appearances in court. From 2006 the year of the last warning he was convicted of 8 offences from three appearances including the common law offence of riot.
23. In his submission to the Respondent dated 26 April 2005[22] in response to the Further Notice of Intention to Consider Cancelling a Visa under Subsection 501(2) of the Migration Act" under the heading "6. Rehabilitation, good conduct" the Applicant stated a commitment to restart his life after several mistakes. He stated that he had learned a huge lesson in his life. He expressed support from his relatives after his release. He expressed a commitment to be a good person and undertook that he would never make any mistakes again. Regrettably, notwithstanding these promises he offended again.
24. The number of these notices that were sent to the Applicant must have alerted him to the fact that if he continued to offend there could be significant consequences including a potential cancellation of his visa. The fact that he did offend after these notices were served upon him over several years indicates that he has a tendency to disregard authority. It is also a significant factor to take into account when considering the factors identified in clause 13.1.1 (1)(g) of the Ministerial Direction.
25. By a letter dated 27 August 2007 the Applicant was warned that visa cancellation could be reconsidered if he offended again in the future[23] and on 9 September 2007 the Applicant signed an acknowledgement that he had received the "Notice of decision not to cancel Visa under section 501(2) of the Migration Act 1958", and that he understood he could again be considered for refusal or cancellation of any visa granted to him if further information of relevance came to the attention of the Department.[24] The warning was in clear and unequivocal language that could not have left the reader in any doubt as to the consequences for him if he were to reoffend in the future.
26. Lest it needs to be said he has had four further convictions in the County Court after the 1999 notices were given and two further convictions in the County Court after the Notices were given to him from 2004 to 2006 and the warning in 2007.
27. The Applicant has a substantial criminal record including several convictions for trafficking in drugs, weapons and firearms offences, possession of drugs and other offences. These offences for which he has been convicted have occurred over many years. They have occurred in several instances after two previous cancellations of his visa and several formal warnings and notices of intention to consider cancelling his visa had been given. They are offences which are serious and of the nature and type that the Ministerial Direction is directed to. Overall, the nature and seriousness of these offences evidence a degree of disregard or recklessness towards the well-being of the Australian community which cannot be ignored.
28. The Tribunal considers overall that the nature of the Applicant's offending is very serious in all respects.

Risk to the Australian community should the Applicant reoffend

1. Paragraph 13.1.2 of the Ministerial Direction provides that:

(1) 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 principle 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 risk that it may be repeated may be unacceptable.

(2) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

1. The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
2. The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

1. The comments of Justice Tadgell referred to with approval by the judge in the County Court in her sentencing remarks concerning the nature and effect of drug trafficking are apposite to a consideration of this paragraph of the Ministerial Direction.
2. The pattern of offending that has been engaged in by the Applicant in excess of 30 years has involved drug trafficking. It is of concern to the Tribunal that despite the heavy penalties of imprisonment imposed upon him on several occasions in the County Court he has returned to commit the same crime. He has committed these crimes when he must have known the consequences for him in the event that he were apprehended and convicted again of drug trafficking. He has trafficked heroin, amphetamines, hashish and marijuana.
3. The seriousness of drug trafficking is well known. It has been commented on by several of the trial judges before whom the Applicant has come.
4. The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person's drug dependency. There is a massive toll on the nation's mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
5. In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.
6. There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.
7. Also, the pattern of the Applicant having resort to firearms is of concern. The Australian community has no tolerance whatsoever for the illegal possession of and misuse of firearms.. In his evidence he conceded that he was convicted in 1993 of possession of a handgun. When probed as to how this happened he stated that he was stupid because someone gave him the handgun that he kept and he didn't know what to do with it. It was a thoroughly implausible explanation. His explanation concerning the possession of the firearms for which he was convicted in 2016 was equally as implausible. He stated that the firearms were not his but belonged to the previous tenants of the property concerned. The Derringer was found in a "bum bag" on the lounge room of of the property. Despite the fact that he had been an occupant of the property for some time his evidence was that he did not look inside the bag to see what was in it. He stated he did not know it was there. The other firearms and ammunition were located throughout the house, some in concealed locations. Similarly, he stated that he did not know they were there. His evidence concerning this matter was inconsistent. He stated that the police executed the search warrant at the property only a few days after he had moved in. When tackled about that evidence he stated that the bag had been on the floor for "a couple of weeks". Then when it was put to him that a police statement from a neighbour stated he had moved into the house some months before in August 2014 (Victoria Police executed a Drugs, Poisons and Controlled substance warrant at the house in January 2015) he said he couldn't remember. The Tribunal cannot accept this evidence that the firearms were not his. He pleaded guilty to the charges. It is an admission. He did not inform the police who the previous tenants were. Nowhere in the reasons for sentence was the explanation that the firearms belonged to someone else offered. In his evidence before the Tribunal the Applicant did not explain why this was so. A conviction and sentence such as his firearm convictions are conclusive before the Tribunal. In considering the offending behaviour for the purposes of the decision under review the Tribunal must take the conviction and sentence as its starting point[25]. In the circumstances the Applicant's evidence concerning the firearms belonging to another person and remaining there when he moved in to the residence has all the hallmarks of a recent invention.
8. The nature and risk of harm to individuals and the community as a whole from firearms (especially handguns and sawn off weapons) need not be amplified any further.
9. In the context of this paragraph of the Ministerial Direction the community's tolerance for any risk of future harm as a result of offending by the Applicant must become lower due to the seriousness of the offending including drug trafficking and firearms offences on his part over many years.
10. The likelihood of the Applicant reoffending if he to be released into the community must be high. As noted earlier notwithstanding numerous court appearances he has not learned his lesson. He has had access to psychologists and other professional assistance that may have enabled him to gain an insight into his offending and rehabilitate his life. He has chosen not to do so. It should be recalled that there was evidence before the Tribunal that the Applicant had reports or professional appraisals from the following:
    • (a) Lisa Jackson, Case Coordinator, Forensic Drug and Alcohol Program with the Department of Human services on 24 February 1997 (which was reviewed by Dr Chris Walsh, consultant Psychiatrist, Western Hospital on 4 July 1997);
    • (b) Neos Zavrou clinical psychologist on 25 July 1997 and 8 June 1998;
    • (c) Bernard Healy clinical psychologist on 22 February 2003.
11. In 1993 whilst the Applicant was at the Melbourne Remand Centre on the advice of a youth social worker Heiu Tan Nguyen from the Brosnan Centre who was working with Vietnamese offenders, he undertook drug rehabilitation courses while in custody and then attended Odyssey House.
12. He attended Odyssey House Residential Program following the completion of a drug education program at the Melbourne Remand Centre in April 1996 and was admitted to such Odyssey House program in August 1996. Completion of that program was interrupted by his subsequent jailing on 27 May 1997.
13. The Applicant has unquestionably had the full support of his family throughout the period that he has suffered from his drug addiction.
14. The Applicant raised a number of other considerations which he contended made it less likely that he would reoffend in the future. These factors he stated had changed his life. Firstly, there was the death of his grandmother which he said had a profound effect on him both by reason of his strong personal bond with her and the current cultural significance of this event to him and his family. Secondly, there was the issue of his age. He is now 51 years old and in short believes that he has matured or with the passage of age is just less likely to be inclined to wish to reoffend. Thirdly, there was the fact that his mother and father were also ageing and he believes he has a responsibility to them to provide assistance in any way he can and also in effect a moral obligation not to reoffend. Fourthly, there is a desire to reconnect with his son who he has not seen for many years. This desire provides an incentive for him to remain drug free and crime free in the hope that his son can realise the benefits of a re-established connection. Collectively, he also contends that these factors have given him a greater insight into his offending and provide the wisdom that he needs to avoid reoffending in the future.
15. The Tribunal accepts that these are relevant factors and have taken them into account. He gave evidence to this effect which by and large the Tribunal accepts. However, there is a distinction to be drawn between evidence given whilst one is in custody facing a hearing such as this and how it will translate in the Applicant's conduct were he to be released into the community.
16. Notwithstanding the goodwill of his family from time to time the Applicant has let them down. There was evidence before the Tribunal that when he was married he used the shed of the family home to hide drug trafficking from his wife. (There was also evidence that drugs were hidden in a jewellery box belonging to his wife, of which she had no knowledge). Upon the breakdown of his marriage he was given another chance and moved in with his mother and grandmother. He ultimately did not act upon the family support and returned to using and dealing in drugs whilst hiding it from his family.
17. The Tribunal cannot accept the Applicant's contention that his risk of recidivism is low[26]. Dr Cantwell-Bartl in her report prepared for this application, concluded that it is hard to know whether the Applicant is at risk again of recidivism. She did opine that if he was given a chance to remain in Australia with family and psychological support together with ongoing counselling, long-term psychotherapy and other support he had a good chance of not offending again. She also expressed the opinion in her evidence that she detected genuineness in the Applicant's desire to rehabilitate himself. Other terms she used in her viva voce evidence were that he is "authentic" and committed to helping his parents, connecting with his son and rehabilitating himself. She acknowledged to her credit, that there is always a concern about how genuine some people might be but overall she expressed the view that he was very committed to rehabilitating himself. This uncertainty she stated arose from the fragility of his mental health over some time. However, it is all dependent on the Applicant's willingness to avail himself of available support. A willingness that he has not demonstrated in the past. It is also dependent upon the Applicant continuing to realise the risks and adopt all the appropriate measures to ensure that there will be no relapse into the spiral of drug taking and consequent criminal activity. There is uncertainty about how he would progress in the future. His past conduct of relapsing, notwithstanding the lengthy gap between 2004 and 2016, do not give the Tribunal confidence.
18. In the hearing before the Tribunal 20 years ago the Applicant advanced similar evidence and contentions to those he did in this case in support of his case to remain in Australia. The Tribunal found slightly in favour of the Applicant in that hearing because it considered there was sufficient objective indication of genuine efforts at rehabilitation on the part of the Applicant. He expressed a strong desire to change his lifestyle and undertake rehabilitation. A range of other witnesses, including a youth social worker with the Brosnan Centre working with Vietnamese offenders (as noted previously), a facility manager at Odyssey House, a clinical psychologist and the Chaplaincy Coordinator at Port Philip Prison and family members gave evidence in support of the Applicant in similar terms about his remorse, desire to change his lifestyle and the support they were prepared to offer. It was contended by reason of this support that his prospects of rehabilitation were favourable and risk of recidivism correspondingly low. The Applicant's subsequent offending amply demonstrates that this expectation by him and those witnesses concerning his risk of recidivism was not fulfilled.
19. In spite of several warnings and no less than three previous visa cancellation proceedings he continued to offend. The conclusions of the Tribunal over 20 years ago that the Applicant's history of increasingly serious criminal behaviour does little to inspire confidence of rehabilitation is as applicable today as it was then. The present risk to the Australian community if the Applicant engages in further criminal conduct is unacceptable. His offending exhibited an attitude of recklessness if not indifference to the Australian community. They are offences of the type that have the potential to endanger lives in the Australian community.
20. Given the nature and seriousness of the Applicant's past conduct, and the very real risk that he will commit further offences in the future which may inflict significant harm on the Australian community, the Tribunal finds that the protection of the Australian community is a consideration that weighs heavily in favour of refusing to revoke the mandatory cancellation of his visa.

1. The Applicant is the father of a son born in Australia in 2001 to his ex-wife.
2. The Respondent concedes that it would be in the child's best interests for the Applicant's mandatory visa cancellation to be revoked. Further, it invites the Tribunal to make a clear and positive finding to that effect. The Tribunal does so.
3. The Applicant and his ex-wife have long been estranged. They separated during one of his periods in custody. The Applicant stated in his evidence that his ex-wife has never let him see his son notwithstanding the fact that there is a consent order in place made by the Federal Magistrates Court in early 2005.
4. The Applicant has conceded that he has had no contact with his son because of the time that he has spent in jail. He expresses a desire to take steps to have access to his son in the event that he is released into the community.
5. It should be observed that the son who is about to turn 17 years of age will ultimately have the final say on whether or not he wishes to allow the Applicant to resume contact with him. One can only speculate whether or not this will come to pass.
6. The Respondent contends that notwithstanding the finding that it would be in the child's best interests for the Applicant's visa cancellation to be revoked, minimal weight should be given to this consideration. The grounds relied upon by the Respondent in making this contention are that there has been little contact and no suggestion of any ongoing relationship between the Applicant and his son. It is further contended that there is no evidence of any attempt to initiate contact with his son between the date that the Consent Orders were made by the Federal Magistrates Court in 2005 and the time of his imprisonment in January 2015. Presumably, if attempts had been made, most likely by an application to an appropriate court of competent jurisdiction (most likely the Federal Circuit Court) there would have been evidence adduced before the Tribunal at this hearing. The fact that such evidence was not adduced leads the Tribunal to conclude that no such attempts were made by the Applicant. The Tribunal accepts this contention. It also has to be observed that the Applicant's pattern of offending over many years not to mention his continuing consumption of drugs, do not make him a particularly good role model for his son.
7. Also there is no evidence as to what the attitude of the Applicant's ex-wife and for that matter, his son would be to any attempt by him to secure access to his son. It is as observed above a matter ultimately for the son and without this evidence it is purely speculative.
8. For these reasons the Tribunal places little weight upon this consideration.

1. Paragraph 13.3 of the Ministerial Direction relevantly provides:

(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.

1. In applying this paragraph of the Ministerial Direction one has to construe the language used. The expectation contained in the first sentence of this paragraph requiring obedience to Australian laws is not an unrealistic expectation, nor is it difficult to understand. Where the debate sometimes arises is in the subsequent sentences where one has to consider what the expectations of the Australian community might be in the circumstances facing the Tribunal.
2. In Re Do v Minister for Immigration and Border Protection[27], McCabe DP provided some guidance:

"A decision-maker is, to some extent, required to guess at the community's expectations...As I begin my deliberations, I assume the Australian community would be fair-minded and mature.... The community would certainly not be vengeful. The Applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community be conscious of the length of time the Applicant has lived in Australia and other circumstances which might assist the community to form a proper judgement about the individual and what should be done."

1. In Re Waits v Minister for Immigration and Multicultural and Indigenous Affairs[28] Block DP also helpfully observed:

"The expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501".

1. Recently, Mortimer J in YNQY v Minister for Immigration and Border Protection[29] made the observation that, in substance, this consideration (paragraph 13.3(1) of the Ministerial Direction) is adverse to any person who has failed the character test and has been convicted of serious crimes. Her Honour further noted that this paragraph of the Ministerial Direction was in effect a deeming provision about how the executive government wishes to articulate community expectations, whether or not there is any objective basis for such belief. Her Honour concluded that it was inevitable that such a consideration will weigh against revocation and indeed that was the intention of such paragraph in the Ministerial Direction. However, the Tribunal does not consider that it is always appropriate to apply this consideration in this way.
2. Each person's circumstances must be individually considered on their merits. There are also the other factors that should be (and are) considered including the relevant sentences imposed by the courts on the Applicant for his offending, the time served, the time he has lived in Australia, his family ties, his son who is an Australian citizen, prospects for rehabilitation, mental health issues and drug dependency. In substance this consideration will generally weigh against revocation in circumstances where a person has been convicted of serious crimes, but sight must not be lost of the use of the phrase "may be appropriate" in paragraph 13.3(1) of the Ministerial Direction and the overall discretionary nature of the power to revoke. The effect of this is that, although this consideration is "inextricably linked to the other primary consideration of protection of the Australian community"[30] and a person's previous offending, the Australian community may nonetheless expect revocation having regard to other relevant matters.
3. The informed, reasonable and decent members of the Australian community would have considerable sympathy for the Applicant with respect to his history prior to his arrival in Australia. The Australian community has long been generous and sympathetic to those who have arrived from far-off lands avoiding persecution and conflict. Indeed, it is almost woven into the fabric of this nation the history of people who have arrived, been welcomed by the Australian community and have lived here leading positive lives and made a contribution to society.
4. There is no doubt that those informed, reasonable and decent members of the Australian community would also have some sympathy if not considerable sympathy, for the Applicant's battles with his drug addiction. It will recognise the challenges that he must have faced in adjusting to life in Australia. There is also, the added factor of the mystery disappearance of his sister which has never been resolved. One could not begin to imagine the effect this would have had upon him and the rest of his family. It is unquestionably a family that has overcome many hurdles to make a new life in Australia after having come here from a land of conflict.
5. From the time he commenced offending the Applicant was given another chance on several occasions. Those other chances had several dimensions. Initially, he was placed on supervision orders, and subsequently, had a term of imprisonment suspended. With later offences upon his release from prison, there was the support of family and friends that was recounted as previously noted as long ago as the hearing at the Tribunal in 1998. In those reasons it also was noted that he had attended Odyssey House and had the benefit of treatment from the clinical psychologist and manager of clinical services that such organisation. There was other support offered. He had several job opportunities that he recounted in his evidence.
6. However, he did not avail himself of the opportunities that were extended to him by the courts of this nation (and this Tribunal) acting with such humanity and compassion taking into account the predicament that the Applicant had been in. These factors combined went beyond the limits of the generosity and sympathy that the fair-minded, mature, informed and reasonable member of the Australian community would be prepared to extend. Such members of the community would not see visa cancellation as vengeful or the infliction of further punishment.
7. It is in this way that the conclusion must be reached that the community expectations weigh heavily against the revocation of the decision to cancel the Applicants Visa.

1. There are other considerations that should be considered in revocation matters which are identified in paragraph 14 (1) of the Ministerial Direction. It provides that:

(1) ... These considerations include (but are not limited to):

a) International non-refoulement obligations;

b) Strength, nature and duration of ties;

c) Impact on Australian business interests;

d) Impact on victims;

e) Extent of impediments if removed.

1. Paragraph 14.1 of the Ministerial Direction provides as follows in relation to Australia's non-refoulement obligations:

(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

(2) The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).

(4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48 A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).

(6) In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

1. In addressing this consideration the task of the Tribunal is to consider whether there is another reason to revoke the mandatory cancellation of the Applicant's visa under section 501CA(4). The language used in paragraph 14.1 of the Ministerial Direction requires the Tribunal to assess whether the Applicant will be at risk of a specific type of harm such that it would trigger the application of Australia's international non-refoulement obligations.
2. In assessing whether any non-refoulement obligations are owed and what they may be the level of analysis required by the Tribunal in this application is less than that required when assessing a claim for a Protection Visa.[31] Additionally, the Tribunal cannot in this application engage in the level of evidentiary analysis that would be undertaken if a Protection Visa application were claimed in the conventional way by those tasked with processing such claims. The application before this Tribunal which is an expedited hearing, requires such an assessment to be undertaken within a limited time span and therefore, it cannot and does not have access to the extensive amount of evidence normally laid before it during the course of a Protection Visa hearing.
3. The Applicant contends that Australia's International Non-Refoulement obligations are engaged because he fears harm on several grounds.
4. The first contention advanced by the Applicant in support of this position is that if one assumes he does have a drug problem, there is no evidence before the Tribunal or perhaps limited evidence if any, that appropriate pharmaceutical products including the drug buprenorphine, which is used to treat drug addiction, is available in Vietnam. It is also asserted that whilst there may be some kind of limited drug treatment program or programs available in Vietnam to deal with someone who has an opioid dependency such programs are very few and far between and of limited, if any capacity to properly treat someone with such an addiction.
5. There is no evidence before the before the Tribunal that he has been prescribed any anti-addiction drug including buprenorphine whilst in prison[32] or at any other time. Indeed, although not a medical practitioner, Dr Cantwell-Bartl made no recommendation that such treatment take place. There is no evidence from an appropriately qualified practitioner that the Applicant would have a need for pharmaceutical products to treat drug addiction were he to be returned to Vietnam.
6. A further feature it is asserted of the approach to drug addiction in Vietnam is that it is primarily punitive. As a result of this punitive approach people in Vietnam who suffer from drug addiction generally fear seeking help. It was submitted that the Vietnamese Government's primary approach to drug addiction issues is to engage in a punishment program. This punishment program it is contended includes torture, beatings and lengthy periods of custody or detention without a trial or appropriate form of due process[33]. This punishment program poses the risk of harm which triggers the International Non-Refoulement obligations as contemplated by paragraph 14.1 of the Ministerial Direction. Assuming the Applicant is classified as a "drug user" by the Vietnamese authorities the Tribunal is prepared to accept that the Applicant faces some risk of harm if returned to Vietnam.
7. Another limb of the submission that raises non-refoulement obligations as contemplated by the Ministerial Direction was advanced by the Applicant. Apparently, he suffers from the hepatitis C virus. There is no reference to suffering from hepatitis C in his witness statement which appears to have been drafted in conjunction with his lawyers, and was certainly filed with the Tribunal by his lawyers. No evidence was given by the Applicant when he was in the witness box that he suffered from hepatitis C. The only evidence of this fact came from an entry in a bundle of what appear to be medical records for the Applicant under the heading "Patient Details"[34]. An entry in those records for August 2018 apparently made by a medical officer at the prison recorded a "Blood result" revealing that he had hepatitis C. There is also an entry in those records which notes that the Applicant did not know he had hepatitis C and he did not use a needle. The report of Dr Cantwell-Bartl dated 19 September 2018 made no reference to the Applicant suffering hepatitis C. It is surprising to the Tribunal that the Applicant did not give evidence to that effect on the several opportunities that he had to do so, or provide those details to the psychologist he consulted. He had two sessions with Dr. Cantwell-Bartl on 12 and 18 September 2018. Given the proximity of those consultations to the diagnosis recorded in the medical records of the prison, one would have expected him to raise this issue with her as it may have been relevant to an evaluation of his mental health (not to mention his addiction issues) and prospects for its treatment in the future.
8. It is also puzzling to the Tribunal that when he was asked questions in both evidence in chief and cross examination about what he feared in returning to Vietnam he did not mention the fact that he suffered from hepatitis C nor the fact that he may have difficulty accessing treatment and drugs for this condition. The fears that he expressed concern about were not seeing his parents, not seeing his son and not knowing anyone over there. The fact of his suffering from hepatitis C was only raised by his counsel in his closing submissions. Save for the medical record containing a pathology report that the Applicant suffers from hepatitis C there is no other medical opinion or expert report in evidence that identifies what treatment requirements the Applicant has for his hepatitis C condition, including the prescription of anti-viral medication. This does restrict the capacity of the Tribunal in undertaking an assessment under this section of the Ministerial Direction. Nonetheless, there is evidence and it will be considered.
9. It was highlighted by the Applicant in the course of his submissions from counsel that anti-viral medication which can very effectively treat this virus is extremely costly. There was material before the Tribunal which identified current challenges in treating hepatitis C in Vietnam. These challenges included limited availability of anti-viral medication together with its very high cost. There is limited access to health insurance, the charitable provision of such anti-viral treatments and clinics that are established to dispense it. There were also identified what could be generically described as "red-tape issues" with gaining access to such treatment in any event. In short the contention of the Applicant is that he would not get access to the treatment he needs for hepatitis C were he removed to Vietnam. Material from the World Health Organization was referred to which states that not getting treatment amounts to significant harm and therefore, raises non-refoulement issues within the definition of the relevant paragraph of the Ministerial Direction.
10. The Respondent conceded that pharmaceuticals necessary to treat hepatitis C are not freely available in Vietnam in the way that they are in Australia. However, it was contended that there was no evidence that any medication that the Applicant requires for treatment of his condition is not available in Vietnam. On the limited evidence available it appears to the Tribunal that people affected with hepatitis C in Vietnam have difficulty accessing treatment due to the high cost of anti-viral medication.[35] Also on top of such cost the evidence reveals that, bureaucratic support for importation and overall a lack of health insurance cover as is known in Australia limit access to such medication.
11. Given this material which is extremely limited, the Tribunal is prepared to accept that the Applicant faces some risk of harm if returned to Vietnam because of his suffering of hepatitis C.
12. The Applicant also quite properly submitted that the Tribunal is required to consider the legal consequences of not revoking the mandatory cancellation when undertaking an analysis of this consideration. In the context of non-refoulement obligations the Applicant also raised the question of whether or not he is able to make an application for a Protection Visa (as had been contended for with some force by the Respondent). His counsel firmly stated that if he did he was not making such a concession.
13. Having reserved such position he then undertook an analysis of the relevant steps that the Applicant had to satisfy under Ministerial Direction 75 and the relevant sections of the Act. There are three steps or "criteria" that must be satisfied under section 36 (being sections 36(1A), (1B) and (1C) which are referred to in their entirety for the full force and effect). Section 36(1C) provides that a criterion for a Protection Visa is that the applicant is not a person whom the Minister considers on reasonable grounds as being convicted of a particularly serious crime and is therefore a danger to the Australian community. Whilst the term "particularly serious crime" is not specifically defined in the Act the term "serious Australian offence" is defined to include a serious drug offence punishable by imprisonment for a fixed term of not less than three years. By reason of the length of prison sentences that have been imposed upon him the Applicant contends that would fail at step 3. Therefore, he would be refused a Protection Visa as a matter of course. The legal consequence of not obtaining a Protection Visa is that section 197C of the Act would be invoked leading to an obligation for his removal from Australia. Once that occurs international non-refoulement obligations are engaged. The Tribunal accepts this contention. It then becomes a question of what harm is he exposed to? Presumably, the harm identified above.
14. The consequences of these findings weigh in some considerable degree in favour of revoking the decision to cancel the Applicant's Visa.

STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

1. The Ministerial Direction at paragraph 14.2 addresses the matters to be taken into account for this consideration:

(1) The Strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision makers must have regard to:

1. How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
   1. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
      1. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
2. The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

1. The Applicant has lived in Australia since 1981. He was approximately 13 years of age upon his arrival. In his witness statement he states that he had an uncle in Australia who sponsored him for a visa. He arrived in Australia with his mother, brother and two sisters. The remainder of his family, including his father, grandmother and remaining siblings arrived in approximately 1992.
2. His first recorded criminal convictions were in the Children's Court approximately two years after his arrival for six charges of theft, for which he was placed on a one-year supervision order. This offending commenced while he was at school.
3. He was educated to year 11 at Richmond High School and then briefly spent some time at Collingwood Technical College.
4. After leaving school he spent some time working with his mother who had a self-employed sewing business or as has been described in some of the material a clothes factory. He obtained other employment in subsequent years at a belt factory, restaurants and in the retail sector. The Tribunal accepts that particularly for the first 10 or 11 years of his time in Australia he did provide assistance to his mother (as did his other siblings) due to the absence of his father who did not arrive until sometime afterwards.
5. His son, three sisters, brother and parents all reside in Australia and are Australian citizens.
6. The family was challenged by the disappearance of his sister shortly after her birthday in 1998. She has never been found and it is generally believed that she was murdered.
7. He was married in October 1999 and his son was born in 2001. This occurred whilst he was in prison. The evidence is that he has had limited contact with his son. He was paroled in December 2004 and took steps to gain access to his son. An order was made in the Federal Magistrates Court giving him access to the child. However, he gave evidence that his wife has simply refused to comply with it and he has had no access to the child in many years. Indeed, he gave evidence that the last time he saw him was in 2005.
8. The Applicant has also contended that particularly during the period between his convictions in 2004 and subsequent release in 2016 he had demonstrated that he was capable of residing in the Australian community for a sustained time without incident. He gave evidence that throughout most of this time he did work predominantly as a waiter.
9. In support of his contentions concerning the strength, nature and duration of his ties to Australia there was evidence in oral form and various statements. There was the evidence of his younger brother.[36] In addition to endorsing what he said to be worthy qualities of the Applicant he also corroborated the Applicant's contribution to his family and gave additional evidence about his regret for his criminal actions. The expectation is that upon his release he would undertake the role of support for his father and mother who are now of advancing years. He stated that he could assist the Applicant financially and would employ him in his business that he runs in the event that he were released into the community. He expressed a strong belief that the Applicant would not reoffend for several reasons including the fact that the loss of his grandmother had a deep impact on him, that he is no longer a young man and that he has had time to reflect upon his offending.
10. The Applicant's brother-in-law also gave evidence in similar terms. He presented to the Tribunal as a kindly and decent man who was quite prepared to assist the Applicant in any way he could. He expressed the opinion that the Applicant has learned his lesson during his time in jail. He offered any support that he could give. He also corroborated the evidence given by others as to the Applicant's relationship with his grandmother.
11. There was other evidence in support from several people including the Applicant's younger sister and his father. Four other personal references that had been submitted to the Respondent that were contained in the G documents were also submitted. One of these references was from the Abbot of the "Lien Tri Temple" being described as the Vietnamese Buddhist Temple in Victoria. These personal references also attested to the various personal qualities of the Applicant.
12. The Respondent conceded that the Applicant comes from a loving family. The Tribunal agrees with this assessment and had the opportunity to observe the members of his family who attended throughout the hearing to offer their support. This was in addition to those family members who gave evidence both from the witness box and in statement form. They were decent hard-working people who arrived in this country and rebuilt their lives in a way that was most impressive.
13. The Tribunal finds that the Applicant does have ties of considerable strength, nature and duration to the Australian community and this does weigh in his favour. The Tribunal does have sympathy for his family who have made good lives in this country.
14. However, on the evidence the Tribunal cannot find that this consideration outweighs the findings on the primary considerations made above.

1. Paragraph 14.5 (1) of Ministerial Direction 65 requires the Tribunal to consider the extent of any impediments if the Applicant is removed from Australia as follows:
   • (1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
   • (a) The non-citizen's age and health;
   • (b) Whether there are substantial language or cultural barriers; and
   • (c) Any social, medical and/or economic support available to them in that country.
2. The Applicant contends that he will face a number of impediments were he to be returned to Vietnam.
3. The matters previously referred to concerning issues arising from his drug addiction and its treatment together with his condition of hepatitis C are referred to and repeated. They also constitute impediments that he will face if he were returned to Vietnam.
4. The Respondent contends that the provisions of clause 14.1 of the Ministerial Direction limit a consideration of impediments that would be faced by the Applicant if returned to Vietnam to be confined to establishing themselves and maintaining basic living standards in the context of what is generally available to other citizens of that country. In effect this turns on whether or not the Applicant would be treated any differently to any other citizen of Vietnam suffering from hepatitis C.
5. The Applicant in response to the Respondent's contention puts it differently; that it is not about maintenance of basic living standards generally available to other citizens, but that the treatment he requires to remain alive is not readily available in Vietnam. It matters not that such treatment is hard to get and concerns the life threatening impact of the illness which constitutes an impediment under clause 14.1 of the Ministerial Direction.
6. There are several other impediments to his return relied upon by the Applicant. They will be identified in these reasons in no particular order of priority.
7. He faces language difficulties both in Vietnamese and English. His understanding of Vietnamese is apparently reasonably poor with a limited ability to read and write. He also has difficulties with English.
8. He will be residing by himself over there as he has no remaining family that he knows of in Vietnam. He is unlikely to see his parents again as they are too elderly and infirm to be likely to be capable of travelling there.
9. He has not lived in Vietnam since 1980 and it is a different country today in comparison to then.
10. Whilst it is likely that his family would endeavour to support him, such support is likely to be limited in whatever form it may take whether that be financially or in person.
11. It is not altogether apparent what he would be able to do for accommodation and most likely there would be difficulty in securing a roof over his head.
12. Employment opportunities are likely to be limited for him given his language difficulties and health issues not to mention that he has no connections that might provide openings for him.
13. He has returned to Vietnam on several occasions since he came to Australia in 1981. In its reasons for decision in 1998 the Tribunal recorded that the Applicant had by that time returned to Vietnam on two occasions, once in 1989 and again in 1990. The visits on each occasion were approximately 46 weeks each. It was observed that no suggestion was made during the hearing of any threat to the Applicant's life or freedom for a convention[37] reason when he returned to Vietnam. It was also recorded that there was no objective or subjective evidence that there then existed a fear of persecution for a convention reason.
14. The Applicant gave evidence that he returned there in the year 2010 when he was suffering from extreme back pain after he found the treatment options in Australia did not work. Following recommendations from a friend he went to Vietnam to see if the treatment suggested by that friend might assist. It did help him to some extent and he returned to Australia after that treatment.
15. The Tribunal overall accepts the Applicant's contentions concerning impediments that he would face if he were returned to Vietnam. This finding weighs in favour of revoking the mandatory cancellation of his Visa.

1. The Applicant has resided in Australia since 1981. His history of criminal offending now spans 35 years. It is acknowledged that there have been some significant gaps between that offending, however it has continued. He has received several lengthy terms of imprisonment. The terms of imprisonment imposed have exceeded 12 months. He has a substantial criminal record and does not pass the character test prescribed by section 501(6) of the Act.
2. Whilst serving a minimum term of three years and five months for drug trafficking and firearms offences, amongst others, he committed a further offence of riot for which he was sentenced to a term of 18 months imprisonment with an additional non-parole period of 10 months.
3. The sentencing judges in their reasons for sentence in 2003, 2004 and 2016 identified the Applicant's offending as serious. The Applicant has now had seven appearances between 1991 and 2018 in the County Court of Victoria. That such charges were dealt with by the County Court reflects the seriousness of such charges in any event. Six of those hearings in the County Court have related to drug offences. The dangers of drugs and drug trafficking have been well ventilated in the course of these reasons.
4. The following factors as specified in clause 13.1.1 of Ministerial Direction 65 have been taken into account:
   • (a) The length of sentence (including the fact that his offending was caused by his drug dependency);
   • (b) The frequency of the Applicant's offending;
   • (c) The cumulative effect of repeated offending; and
   • (d) Whether the Applicant has reoffended since being formally warned, or since otherwise being made aware, in writing about the consequences of further offending in terms of his migration status (noting that on two previous occasions his visa had indeed been cancelled and such decisions were only set aside by an application to this Tribunal in the Federal Court).
5. Applying clause 6.1 of the Ministerial Direction the Applicant should expect to be denied or forfeit the privilege of staying in Australia. Further, the criminal offending and harm that it would cause if it were to be repeated may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even such other strong countervailing considerations may be insufficient to justify not cancelling the visa.
6. The Tribunal finds that the risk of reoffending is just too high to justify permitting the Applicant to remain in Australia. It acknowledges the evidence that has been tendered on his behalf. It acknowledges his expressions of a genuine desire to rehabilitate and the reasons relied upon in doing so. This includes the evidence of Dr Cantwell-Bartl. However, his extensive criminal history ultimately presents an unacceptable risk as noted above. There is also the concern that these promises and expressions of a desire to rehabilitate have been made before over many years. They were genuinely made at various hearings before courts and tribunals. They were made whilst the Applicant had the benefit of being in the structured environment of a prison or other facilities such as Odyssey House. However, upon his release there inevitably seems to be a relapse. As the Tribunal observed 20 years ago there is a manifest danger to the community of a heroin addict reverting to his addiction and dealing in drugs to support his former lifestyle.
7. The primary considerations in favour of confirming the reviewable decision outweigh all other considerations. The only other primary consideration weighing in the Applicant's favour is the best interests of minor children. However for the reasons articulated above given the limited contact that the Applicant has had with his son for many years little weight can be placed upon this consideration.
8. The Tribunal acknowledges the considerable force with which the Applicant raises the other considerations being international non-refoulement obligations, the strength, nature and duration of ties to Australia and the extent of impediments if returned to Vietnam. The reasons of the Tribunal and the consideration of these matters are referred to and repeated.
9. There is no doubt that the Australian community would feel very sympathetic to the Applicant in many ways. The history of his life prior to his arrival in Australia, the harrowing story of his trip to this country do go in many ways to form part of an explanation for his offending. The PTSD suffered as a result of those experiences and consequent drug addiction cannot be ignored.
10. However, there is a limit to how far such sympathy will extend given the number of chances that the Applicant has had before, and the serious nature of the Applicant's offending.
11. The primary considerations of the protection of the Australian community together with the risk to the Australian community should the Applicant reoffend outweigh all the other considerations relied upon by the Applicant.
12. Therefore, the findings above weigh in favour of refusal to revoke the mandatory cancellation of the Applicant's visa.

1. For the reasons provided the decision under review is affirmed.

I certify that the preceding 175 (one hundred and seventy-five) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

.............................[sgd]...........................................

9 months of sentence concurrent with sentence now serving

Possess cartridge ammunition without a license/permit

15 months imprisonment, sentence suspended for 2 years under section 28 of the Sentencing Act

4 months imprisonment. Sentence suspended for 24 months under section 27 of Sentencing Act

3 months imprisonment. Sentence suspended for 12 months under section 21 of Penalties and Sentences Act

[1] The Applicant and the Respondent in their respective Statements of Facts, Issues and Contentions reach an almost similar conclusion on the issue to be decided. Paragraph 9 of the Applicant's Statement and paragraph 5 of the Respondent's Statement are referred to.

[4] Lest it needs to be repeated the Applicant was sentenced to a term of imprisonment of 12 months or more at the County Court of Victoria in 2018 (common law riot); 2016, 2004, 2003, 1997, 1997 (convictions for, amongst other things, trafficking drugs) and 1991 (possessing heroin).

[5] Which as noted earlier the precise details of his convictions are recorded in the Schedule attached to these reasons.

[6] The sentencing remarks concerned are to be found in paragraph 4 on page 46 of the G documents.

[7] He did in his evidence from the witness box admit to taking some drugs in a limited way, details of which will be considered subsequently in these reasons.

[8] There was in evidence before the Tribunal a comparatively lengthy document prepared by the Australian Government as part of its National Drug Strategy, "National clinical guidelines and procedures for the use of buprenorphine in the maintenance treatment of opioid dependency". It is a most helpful document. Part 1.1 "General Information" is referred to. Buprenorphine is described as a drug that diminishes cravings for heroine, and prevents or alleviates opioid withdrawal in dependent heroin users.

[9] Page 3 of her report under the heading "Depression."

[10] There were extensive prison records in evidence apart from Incident Reports and included, amongst other things, lengthy file notes, checklists, reception forms and plans, medical and induction documents.

[13] Regulation 55 "Procedure of prisoner pleads not guilty" of the Corrections Regulations 2009.

[14] The paragraph concerning the written warning is on page 117 of the G documents and forms part of document G4.

[15] The evidence of this is to be found in a letter from the Character and Cancellation Section of the Department of Immigration and Multicultural and Indigenous Affairs of 21 October 2004 (document SG 16 pages 955 to 958 of the SG documents) and its receipt was admitted by the Applicant in his "Submission", "Comments on grounds for further notice of intention to consider cancelling a Visa under sub-sec 501(2) of the Migration Act 1958 dated 26 April 2005 (page 1013 of the SG documents.)

[17] The existence of this Notice of Intention to Cancel Visa dated 28 September 1999 is found in the notice sent to the Applicant on 12 October 2005. This notice in addition to referring to 4 previous Notices of Intention to Cancel Visa also referred to a Criminal History Report from Victoria Police dated 21 July 2005 comprising four pages and the sentencing remarks of the judge in 2004 in the County Court of Victoria.

[18] Page 955 of the SG documents. It is considered that this is the notice referred to in the Applicant's "Submission", "Comments on grounds for further notice of intention to consider cancelling a Visa under sub-sc. 501 (2) of the Migration Act 1958" filed with the Respondent on 26 April 2005. (Pages 1013 to 1021 of the SG documents which in the first sentence on the first page acknowledges receipt of a "Further Notice of Intention to Consider Cancelling a Visa under Subsection 501 (2) of the migration act 1958" in "October 2003". It is most likely a typographical error. The reason for this is that he referred to the sentence imposed on him, which it will be recalled took place in 2004, not 2003.

[19] The letter entitled "FURTHER NOTICE OF INTENTION TO CONSIDER CANCELLING A VISA UNDER SUBSECTION 501 (2) OF THE MIGRATION ACT 1958" was dated 12 October 2005 and had attached to it a copy of a letter apparently sent in the same form on 21 October 2004. (Pages 973 to 976 of the SG documents.) In the SG documents on page 977 there is apparently attached to this letter an acknowledgement of receipt signed by the Applicant.

[20] A "NOTICE OF INTENTION TO CONSIDER CANCELLATION OF YOUR VISA UNDER SUBSECTION 501 (2) OF THE MIGRATION ACT 1958" dated 28 September 2006 is found at page 978 of the SG documents. It contains a reference to the previous visa cancellations in 1997 when the deportation order previously referred to under section 200 of the Act was made. This is the deportation order subsequently set aside by the Tribunal in September 1998. It also recorded the decision of the Minister in 2000 to cancel the Applicant's visa and the subsequent application to the Federal Court.

[21] A "NOTICE OF INTENTION TO CONSIDER CANCELLATION OF YOUR VISA UNDER SECTION 501 (2) OF THE MIGRATION ACT 1958" dated 10 November 2006 is found at page 984 of the SG documents. It also refers to the "Previous Visa cancellation" and refers to the deportation order made in 1997 that was set aside by this Tribunal and the cancellation of the Applicant's visa in 2000 by the Minister.

[22] Pages 1013 to 1021 of the SG documents.

[23] The letter "NOTICE OF DECISION NOT TO CANCEL VISA UNDER SECTION 501 OF THE MIGRATION ACT 1958" is on page 919 of the G documents it repeated what was described as a "formal warning" that had previously been given to the Applicant by a delegate of the Minister in the following terms:

"[Applicant] should be advised that while his offences up to 2001 are considered by the government to be very serious and would normally warrant cancellation of his Visa his behaviour since then ways in his favour. He should think of his child and family and he should be warned that if he repeats his earlier pattern of behaviour and defends again he may not be so fortunate."

The contents of the letter are referred to in their entirety for the full force and effect.

[24] The document is at page 100 of the G documents.

[25] The observations of the Full Court of the Federal Court of Australia in Minister for Immigration & Multicultural Affairs v SRT [1999] FCA 1197 at paragraphs [44] to [46] are referred to concerning this question.

[26] This contention is made at paragraph 28 of his Statement of Facts, Issues and Contentions. It was also contended for by the Applicant in his evidence and in his submissions throughout the course of the hearing.

[27] [2016] AATA 390 at [23].

[28] [2003] AATA 1336 at [36].

[29] [2017] FCA 1466 at [75]- [77]. The approach of Mortimer J in YNQY was also helpfully considered by Forgie DP in Re: Ayache and Minister for Immigration and Border Protection [2018] AATA 310 at [60]- [75].

[30] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].

[31] See Ayoub v Minister for Immigration and Border Protection [2015] FCAC 83.

[32] It should be observed that in evidence were a bundle of medical and nursing documents generated whilst the Applicant had been in custody from 2015 until August 2018. One would have expected to have seen reference to the prescription of such drugs to treat addiction if there were a need for them on his part.

[33] The evidence before the Tribunal on this question is relatively limited. However, it does indicate that the treatment of drug users is comparatively harsh. This of course assumes that the Applicant would be classified as a "drug user" the material before the Tribunal included the "DFAT COUNTRY INFORMATION REPORT VIETNAM" June 2017 (paragraph 4.12), an article from the "International Journal of Drug Policy" of July 2017 and an article from "Advances in Preventative Medicine" October 2012.

[34] These records were tendered by the Respondent.

[35] There was limited material before the Tribunal concerning this question. It was confined to documentary evidence. It included the World Health Organisation "Fact Sheet" concerning hepatitis C in Vietnam. There was also an article in evidence written by several doctors some of whom were from Vietnam entitled "Current challenges and possible solutions to improve access to care and treatment for hepatitis C infection in Vietnam: a systematic review".

[36] He also made a statement on 12 December 2017 that was submitted to the Respondent in support of the revocation application.

[37] The 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees.