1. Pursuant to s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because he or she has a substantial criminal record, on the basis of s 501(7)(a),(b) or (c), and 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.
2. Section 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more.
3. Under s 501CA(3), the Minister is obliged to give notice of a cancellation decision as soon as practicable after making it and invite the affected person to make representations to the Minister about revocation of the decision.
4. Section 501CA(4) provides that the Minister has a discretionary power to revoke a decision under s 501(3A) to cancel a visa that has been granted to a person if the person makes representations, and the Minister is satisfied the person passes the character test, or there is another reason why the original decision should be revoked.
5. Section 500(1)(ba) provides that an application may be made to the Tribunal for review of a decision made by a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
6. Pursuant to s 500(6L) of the Act, the Tribunal must decide this application within 84 days of the applicant being notified of the non-revocation decision in accordance with s 501(G)(1). If the Tribunal has not made a decision within that period, it is taken, at the end of that period, to have made a decision to affirm the decision under review. The 84th day in this application is 13 February 2026.

1. The issues to be determined in the review are those in section 501CA(4). The section provides as follows regarding revocation of the cancellation 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: > > 1. that the person passes the character test (as defined by section 501); or > 2. that there is another reason why the original decision should be revoked.

2. In regard to s 501CA(4)(a), the Applicant made representations in accordance with the invitation.[2] The delegate was satisfied the Applicant had made representations in accordance with the invitation.[3] The Respondent did not suggest otherwise. Accordingly, the Tribunal is satisfied that the Applicant made representations as specified in s 501CA(4)(a) of the Act.
3. The Tribunal turns to consider whether the Applicant passes the character test. As set out above, the Applicant was sentenced to a term of imprisonment of 12 months or more on 27 June 2025.[4] The Applicant has a substantial criminal record as defined by s 501(7)(c) and does not pass the character test set out in s 501(6).
4. The remaining issue is whether there is another reason why the original cancellation decision should be revoked.

1. Section 499(1) of the Act provides that the Minister may give directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Pursuant to s 499(2A) a person or body must comply with a direction under s 499(1). The Minister has issued, under s 499(1), Direction No. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110).
2. The Direction provides guidance on the making of decisions under s 501 or 501CA of the Act. It is expressed to apply to the Tribunal in making a decision under s 501 or s 501CA of the Act, and the Tribunal must comply with the Direction. It does not purport to limit the considerations to which a decision maker may have regard.[5]

1. Clause 5.2 of the Direction provides principles to provide a framework to approach decision making. These are:

(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 safety of the Australian Community is the highest priority of the Australian Government.

(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[6]

1. The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:

(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(2) The primary consideration ... (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

(3) One or more primary considerations may outweigh other primary considerations.[7]

1. The Direction contains five primary considerations, which are:

(1) protection of the Australian community from criminal or other serious conduct;

(2) whether the conduct engaged in constituted family violence;

(3) the strength, nature and duration of ties to Australia;

(4) the best interests of minor children in Australia;

(5) expectations of the Australian community.[8]

1. The Tribunal has considered each one in turn, keeping in mind the principles in cl 5.2 of the Direction.

1. The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and 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.[9]
2. The Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[10]
3. 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. [11]

1. The Applicant's criminal offending is set out in his National Criminal History check dated 26 September 2025.[12] He accepted in his evidence in the hearing that his offending is serious.
2. Clause 8.1.1 of the Direction states that decision makers must have regard in considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date to factors including the following:

a) the sentence imposed by the courts for a crime or crimes (cl. 8.1.1(1)(c)); > > b) the frequency of the offending and/or whether there is any trend of increasing seriousness (cl. 8.1.1(1)(e)); > > c) the cumulative risk of repeated offending (cl. 8.1.1(1)(f)); and > > d) whether the Applicant re-offended since being formally warned in writing about the consequences of further offending in terms of the Applicant's migration status (cl. 8.1.1(1)(h)).

3. There is nothing before the Tribunal suggesting that the remaining factors in cl. 8.1.1(1) of the Direction are relevant.
4. On 4 June 2021 in the District Court of South Australia at Adelaide following a plea of guilty the Applicant was convicted of the following offences:

a) 2 charges of cultivating a large commercial quantity of cannabis for sale, concerning 222 cannabis plants in one location and 183 cannabis plants in another. > > b) 2 charges of cultivating a commercial quantity of cannabis for sale, concerning 90 cannabis plants in one location and 35 cannabis plants in another. > > c) 4 charges of possessing prescribed equipment.

5. The sentencing remarks set out the circumstances of the Applicant's offending.[13] The Applicant was sentenced alongside three other offenders involved in cannabis cultivation. The crops were discovered by police in Adelaide between February 2018 and September 2019 in various suburbs in Adelaide. The Applicant's offending occurred in four properties with the cultivation charge concerning 35 cannabis plants said to be factually separate from the other matters. The sentencing judge considered it likely that the Applicant had limited involvement with the site containing 183 plants.
6. The sentencing remarks record that the evidence indicated the involvement of a sophisticated commercial cannabis syndicate. This was context for the offending. The Applicant was not said to have involvement in or knowledge of the syndicate beyond the charged offending. It was accepted the Applicant had a more limited role than the other offenders and was mainly involved in caring for the crops. He was not said to play an organisational role. He had however been sufficiently trusted by others involved to have keys for one of the properties in use for cultivation.
7. The Court observed that the role of each offender including the Applicant was integral to the success of the criminal enterprise. It found that the offenders including the Applicant would ultimately each be substantially rewarded. The applicant accepted in the hearing before the Tribunal that he expected to be paid. The sentencing remarks observe that the maximum penalties for the offending, which included life imprisonment, reflect community concern regarding such large-scale offending. The Applicant was sentenced to a term of imprisonment, as set out above, with a head sentence of 4 years, 4 months and 26 days, with a non-parole period of 3 years, 6 months and 9 days.
8. On 27 June 2025 following a plea of guilty, the Applicant was convicted in the Supreme Court of the Northern Territory on a charge of supplying a commercial quantity of cannabis, relating to 7 pounds (around 3 kg) of cannabis said to be possessed with intent to supply.[14] The Court noted the maximum penalty for the offence was 14 years imprisonment. The offending occurred between around 8 May 2024 and 16 May 2024. The Applicant hired a vehicle in Adelaide and drove to Darwin where he stayed in a suburban home. Another person travelled from Adelaide to Darwin and collected the car hired by the Applicant, and that person was later found by police driving in the direction of Adelaide with almost $300,000 in cash in the vehicle.
9. A warrant was executed at the premises where the Applicant was residing and the cannabis was located. In the course of the warrant, $12,000 cash was located which was ordered to be forfeited on the basis that it was related to the offence.
10. It was not said the Applicant knew of all the activities of the syndicate and he was sentenced on the basis that he had a relatively low position in it. The broader presence of the syndicate in the facts was a matter of context for the charged offending only. The Court observed that the type of offending causes significant harm in the community, is prevalent, and the Applicant was motivated by commercial gain.
11. The Applicant was sentenced to a term of imprisonment, as set out above, with a head sentence of 2 years and 4 months, to be suspended after serving 14 months subject to the Applicant leaving the Northern Territory on his release and not returning during the currency of the suspended sentence.
12. The Tribunal considered the totality of the Applicant's offending. He took part in cultivating very significant amounts of cannabis around 2018 and 2019. He did this in several separate locations in Adelaide. His conduct was characterised as caring for the crops, which is not isolated or one-off conduct. He later possessed around 3kg of cannabis with intent to supply in the Northern Territory in May 2024. This took place around 13 months after he had been released from detention on 31 March 2023. The Tribunal is satisfied that after commencing offending in 2018 the offending was frequent while the Applicant was in the community. It does not accept that the offending escalated in seriousness given the more limited scope of offending in Darwin. The Tribunal considers that the cumulative effect of the repeated offending constituted a contribution to the functioning of the illicit cannabis trade in Australia.
13. Prior to his offending in May 2024, on 31 March 2023 the Applicant was sent correspondence from an officer of the Department of Home Affairs notifying him of a decision to revoke his first visa cancellation.[15] The body of the letter contained a warning to the Applicant including the following information:

a) If the Applicant engages in further criminal or other serious conduct, this may result in his visa being cancelled on character grounds. > > b) Any such offending will be dealt with very seriously, with the real possibility of being removed from Australia. > > c) The Applicant should be aware that any similar crimes or other serious offending in future will not likely be met with the same degree of leniency.

14. The Applicant accepted in the hearing that he had received the written warning from the Department of the consequences of further offending in terms of his migration status. He said he didn't learn much from his first prison sentence. He committed further offences and is really remorseful for what he did. He said that he didn't think things through and it has resulted in bad consequences for him and his family.
15. The Direction specifies at cl 4(2) that serious conduct includes behaviour or conduct of concern that does not constitute any criminal offence. It is not suggested that the Applicant has engaged in serious conduct including behaviour or conduct of concern that does not constitute any criminal offence.

Conclusion on the nature and seriousness of the conduct

1. The Tribunal considers that imprisonment is a sentence of last resort. The length of the sentences imposed on the Applicant amply convey the seriousness of the offending, even in the context of higher maximum penalties for the offences.
2. The Tribunal finds the totality of the Applicant's offending is serious.

Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

1. The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Clause 8.1.2 of the Direction states, in part:

(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. 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 assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

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

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

1. information and evidence on the risk of the non­citizen re-offending; and
2. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). ...

1. The task requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[16] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[17] There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[18]

1. As detailed above, the Applicant has been convicted of illicit drug offending which is considered to be serious. The sentencing remarks in the Supreme Court of the Northern Territory observe that the Court has repeatedly stated that the supply of large amounts of cannabis causes significant harm in the community.[19] The Applicant gave evidence in the hearing that he now realises his drug offending causes harm to individuals and the community. The Tribunal considers that, should the Applicant reoffend in a similar manner to his past serious offending, significant physical and psychological harm may result to the downstream users of illicit drugs. The community may also be significantly harmed by the costs of the illicit drug trade including the financial costs of law enforcement activity and the burden on healthcare caused by treating health issues arising from illicit drug use and dependency.

Likelihood of the non-citizen engaging in further criminal or serious conduct

1. The Applicant's evidence in the hearing was that he is remorseful for the offending and he feels shame. He said he learned a lot of lessons while serving his term of imprisonment. He denied that he would offend again and said that he would no longer associate with people he said led him into his episodes of offending. The Minister contends that the Applicant presents a real and not insignificant risk of engaging in further criminal conduct.[20]
2. The Tribunal had regard to the remarks of both sentencing judges relevant to this consideration. In the 2021 remarks of Tracey J in the District Court of South Australia, it is noted the Applicant was before the court as a man then nearly 30 years of age with no prior convictions.[21] The Applicant told the Court he appreciated that becoming involved in the offending was very foolish, and after assisting with the first property he felt compromised and in a position where he was unable to say no. He received a discount on his sentence in recognition of pleas of guilty. His offending was motivated by a desire to make large amounts of money quickly.
3. In the 2025 remarks of Grant CJ in the Supreme Court of the Northern Territory, it was accepted the Applicant pleaded guilty at a relatively early stage, in so doing accepting criminal responsibility and facilitating the resolution of the proceedings without the need for a trial by jury.[22] The sentencing judge did not however consider the Applicant to be genuinely remorseful in the sense of understanding the seriousness of the offence and regretting the harm caused to the community by the supply of large amounts of cannabis.
4. The Tribunal also had regard to a risk assessment measure and parole report in South Australia dated 10 August 2022.[23] The report records that a 'Risk of Recidivism' screening tool placed the Applicant as presenting a low risk of general recidivism. The 'Risk of Recidivism' assessment was carried out some time ago in June 2021. The Respondent contends that the assessment should be given minimal weight due to the Applicant's reoffending.[24] The Tribunal accepts that the Applicant was not yet a repeat offender in 2022 as he is now and this is a significant change in circumstances. These concerns cause the Tribunal to place minimal weight on the 'Risk of Recidivism' assessment and the reliance on it in the parole report.
5. The parole case officer recommended managing the risk of reoffending by not permitting the Applicant contact with his co-offenders and requiring him to comply with a direction from his Community Correction Officer regarding with whom he may associate. The case officer further recommended the applicant seek out financial and budget advice so that he would not feel he needed to reoffend for money. There is no evidence that the Applicant has received financial and budget advice. There is no evidence that the Applicant continued to associate with his co-offenders however the circumstances of his reoffending involved associating with another offender.
6. The Tribunal considered the Applicant's completion of a course in barista training at Charles Darwin University in 2025.[25] He earlier completed a Charles Darwin University certificate in food handling.[26] While in jail in 2024 and 2025 the Applicant worked as a kitchen hand.[27] He gave evidence that he also did painting work. He worked as a barber during his term in South Australia.[28] The Tribunal takes into account that the Applicant used his time in custody to take steps toward rehabilitation by preparing for employment.
7. The Applicant's wife agreed in her evidence in the hearing that he became involved in his offending through friends. She said he is a good man, and he would reside with her if he returns to the community. In a written statement she reported that the Applicant deeply regrets what he has done and expressed her faith in him and belief that he would not reoffend.[29] The witness Mr V gave evidence that he previously employed the applicant in farm work and would offer him the same work if he is released. In a written statement, he stated that the Applicant had many positive attributes as an employee.[30] Further, that the Applicant is polite, honest, and showed good character in the way he treats other people. The witness was aware of the Applicant's offending but would give the Applicant another chance and believes he will not reoffend. The witness Ms O gave evidence that she is a cousin to the Applicant. She stated that she is aware of the Applicant's offending.[31] In her view his recent offending was brought about by the influence of another unnamed person. She believes the Applicant's wife continues to fully support him and he is fully capable of becoming a responsible, law-abiding member of society.
8. There are protective factors in the Applicant's circumstances. He is still a relatively youthful man. If the visa cancellation is revoked and he returns to the community, he will have the emotional support of his wife and the children and a place of residence. He has the personal support of his cousin Ms O. The weight given to these factors is reduced in circumstances where the Applicant had benefit of them at the time of his past episodes of offending. He will also have employment available as a farm hand with Mr V. This weighs in his favour. The Applicant gave evidence that he will not commit any crimes if he is employed. Ms L gave evidence that the family is presently in financial difficulty and she has borrowed money from friends to survive. In the Tribunal's view even with employment income as a farmhand, the Applicant will experience periods of financial stress in his household increasing the risk of him reoffending.
9. The Tribunal considers the Applicant to have developed limited insight into the seriousness of his offending. The Applicant's evidence was that he is very remorseful and he now understands those harms, and he has learned better. The Minister contended, and the Tribunal accepts, that the Applicant could be expected to have had such insight prior to committing his most recent offence.[32] The Applicant had already been sentenced to significant term of imprisonment. He had the benefit of remarks from the sentencing judge explaining that the offending was serious.
10. The Tribunal observes that the Applicant told the District Court in Adelaide in his sentencing proceedings in 2021 that he appreciated that becoming involved in the relevant offending was very foolish. The Tribunal understands that to be an expression of regret and insight. As the facts show, after being released from detention on 31 March 2023 the Applicant committed a further serious drug offence in May 2024 notwithstanding his prior acknowledgement of the foolishness of such offending. The Tribunal considers this undermines the Applicant's evidence and the evidence of the witnesses that he is now genuinely remorseful regarding his offending and will not reoffend.
11. The Applicant also gave evidence that he will not socialise with his past criminal associates and if they seek him out he will stay away from them. He said he has disconnected from them and would never want to be involved with them. He gave evidence that his first offending was initiated by some of his bad friends. He met them at a festival and they asked him to be involved. His second offending occurred after he encountered a different old friend in a restaurant. He was asked to rent a car to take to Darwin. He said he was motivated to help his friend although acknowledged he was to receive $3,000. It was put to the Applicant in cross-examination that he would offend if he was asked to again and the Applicant denied that he would. He was asked how he would avoid being in a similar situation with his friends and he said he will stay away from them.
12. The Tribunal observes that the Applicant would be returning to reside in Adelaide and this is the same city he resided in when maintaining these friendships. The Applicant on his account previously encountered these individuals socially without prior arrangement and there is a realistic chance this could recur. The Applicant has no plan in mind to reduce his risk of falling back in with anti-social contacts beyond forming an intention not to do so. His history causes the Tribunal to place less weight on his evidence in that respect.
13. Based on the evidence before it, the Tribunal assesses the Applicant's risk of reoffending to be real and not insignificant. If the Applicant's offending was to reoccur, the consequences are serious.

Conclusion on the protection of the Australian community

1. Given the nature and seriousness of the Applicant's offending, and the risk to the Australian community should he commit further offences, the Tribunal weighs this primary consideration strongly in favour of not revoking the cancellation of the visa.

1. Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
2. The Direction states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.[33]
3. It is not contended, and there is nothing to suggest, the Applicant has committed any family violence. Accordingly, this is a neutral factor.

The strength, nature and duration of ties to Australia

1. This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant's ties to Australia. Clause 8.3 of the Direction provides that:

(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community

b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

1. The Minister accepts this consideration weighs moderately in favour of revoking the visa cancellation.[34]

1. The Applicant has a wife and 2 stepdaughters aged 14 and 21 years old. His wife and the children are Australian citizens.[35] The marriage began on 22 November 2014.[36] The couple met some time less than one year earlier.[37] The Applicant gave evidence that when he was in the community the family resided together. While detained he speaks to his wife and younger daughter sometimes daily or perhaps every 2 days. He said he is a member of the family, he is father to his stepdaughters, and they will be sad and distressed if he cannot remain in Australia. When he was residing with the family he took his stepdaughters out on activities. He took his younger stepdaughter to the park. He bought clothes for her and would sometimes buy her food or take her to school. He would sometimes take the children to the cinema, dinner, or shopping. He said his wife will lose the prospect of his financial support in the household. The Applicant said he has shame for his offending and the chaos it caused for his family and that his stepdaughters want him to stay in Australia and not re-offend.
2. The Applicant's wife gave evidence that she would have to get a second job and having the Applicant home would be a relief for her. In her written statement Ms L stated that she receives emotional support from the Applicant.[38] She said in evidence this is more difficult over the telephone. She accepted she would be able to maintain telephone and video contact with the Applicant if he returns to Vietnam.
3. The Applicant's wife said that her mother formerly helped support the household, but she is now deceased. She has recently taken up work to support the family and suffers from pain in her back and knees. She visited the Applicant frequently when he was in jail.[39] She said that she has seen the Applicant in person only once since he went into detention. The Applicant was taken into detention on 15 July 2025.[40] His wife is not comfortable visiting the centre, so contact has been maintained on the telephone around 2 to 3 times a week. Her daughters get along well with the Applicant. She said that the children suffer from social anxiety but have no related medical diagnosis.
4. The Tribunal observes that the Applicant commenced his first prison sentence on 7 June 2019.[41] Following his release he was subsequently in immigration detention until 31 March 2023.[42] He commenced his second prison sentence on 16 May 2024 and was subsequently taken into immigration detention where he remains.[43] It can be seen that in the years following June 2019 the Applicant resided with his family for around 13 months.
5. The Tribunal accepts that the Applicant's wife and his 2 stepdaughters will be impacted by a decision not to revoke the cancelation of the visa. The nature of the impact is emotional, in losing the returned physical presence of the Applicant in their daily lives, financial, in losing resumed financial contributions to the running of the household, and practical, in losing the Applicant's assistance in the running of the household.

1. The Applicant arrived in Australia on 30 December 2012.[44] At the time of decision he resided in Australia for 13 years and 6 weeks. He was 21 years old when he arrived and is presently 34 years of age. The Applicant's offending, commenced in 2018, is not said to have begun soon after his arrival and the Tribunal finds it did not.
2. The Applicant's remaining ties in evidence are his relationships with the witnesses; his cousin Ms O and former employer Mr V. They gave evidence in his support of his character and it was apparent they have an ongoing relationship with him. The Tribunal accepts these witnesses have significant and enduring ties to the Applicant.

Conclusion on the strength, nature and duration of ties to Australia

1. The Applicant has firm ties to his immediate family, particularly his wife and his younger stepdaughter and significant and enduring ties to his cousin Ms O and his former employer Mr V. The Tribunal finds that the strength, nature and duration of the Applicant's ties to Australia weigh moderately in favour of revoking of the decision to cancel his visa.

Best interests of minor children in Australia affected by the decision

1. Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under cl 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501 of the Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made.
2. Clause 8.4(4) of the Direction goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors include:
   • The nature and duration of the relationship between the child and the non-citizen, noting less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
   • The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements;
   • The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
   • The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
   • Whether there are other persons who already fulfil a parental role in relation to the child;
   • Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
   • Evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
   • Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.[45]
3. The Australian courts have held that there is no error with the Tribunal proceeding from the commonly held assumption that in most cases the child's best interests are served by remaining with their parents where that is possible.[46]
4. The Applicant's 14-year-old stepdaughter is a minor. The Applicant said in evidence that he would like to stay in Australia to help her as she is isolated and lonely. He would concentrate on working to look after her. The Tribunal accepts that the Applicant would like to further support the child from within the home.
5. The Tribunal considered the nature and duration of the relationship between the Applicant and the minor child. The Applicant commenced his parenting role when the child was an infant of 2-3 years age. As described above, the evidence from the Applicant and his wife is that the Applicant is a father to the child. When he resided with the family, he took part in supporting her, sometimes bought clothes for her, would sometimes buy her food or take her to school and regularly visited the park. The Applicant speaks to the child on the telephone frequently. The Applicant accepted in evidence that the child has not visited him in person in jail or detention.
6. The Tribunal accepts the relationship between the Applicant and the child is parental. It finds however that less weight should be given because there have been long periods of absence in the period following June 2019. As set out above, the Applicant resided with his family for only a single period of around 13 months. The Tribunal finds that this has diminished the relationship the Applicant has with the child as compared to earlier years.
7. The Tribunal accepts that the Applicant would play a positive parenting role in supporting the child emotionally and practically based on the history of his involvement. The child will reach the age of 18 in around 4 years. She is some way from no longer being a minor but is no longer an infant. There is no evidence of the impact of the Applicant's conduct on the child. The Tribunal considered any known views of the child. The Applicant's wife said the minor will miss the Applicant terribly if he does not return and the Applicant said the child would be sad and distressed. The Tribunal accepts that the child will be negatively impacted emotionally by the Applicant not returning to the home as the family hoped. This is in the context however of the long periods of absence of the Applicant from the home. The Tribunal accepts the Minister's contention that the Applicant will be able to continue telephone and video contact with the minor from Vietnam.
8. The child has the ongoing support of her mother the Applicant's wife who has raised her from infancy, and her evidence was that her older daughter also resides in the home. The child has not been reliant on the Applicant to subsist while he has been in jail or detention. The Applicant gave evidence that the child's biological father recently initiated contact and sees the child every 3 months. There is no evidence of financial or other support from him, or any contact between the child and her biological mother. There is no evidence of any family violence, abuse, or neglect or a risk of any of those things occurring. There is also no evidence that the child has been traumatised by the Applicant's conduct.

Conclusion on the best interests of minor children in Australia affected by the decision

1. The Tribunal finds that the best interests of the child are served by revocation of the visa cancellation. Given the Tribunal's finding that the relationship has been diminished by the Applicant's periods of absence it finds that the best interests of the minor child weigh moderately in favour of revoking the decision to cancel the visa.

1. The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Clause 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.
2. Clause 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
3. Clause 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4. This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
5. Clause 8.5(4) provides that decision-makers should proceed on the views as articulated in cl. 8.5 without independently assessing the community's expectations in this particular case.
6. The Respondent contended that the application of the norm in cl. 8.5(1) of the Direction should result in very significant weight against revocation.[47] The Applicant in his evidence said he would like to express his remorse to the Australian community and, if he is allowed to stay in Australia, he will turn his life around and work legally to contribute to the community. The reasons above consider remorse and the risk of reoffending, and in the present consideration the Tribunal is not to independently assess the community's expectations in this particular case.[48]
7. The Tribunal has found above the Applicant engaged in serious criminal offending. He breached the Australian community's expectations by his criminal offending which involved serious breaches of Australian laws. The Australian community 'as a norm' expects the Australian Government not to allow him to remain in Australia.

Conclusion on expectations of the Australian Community

1. The Tribunal is satisfied that the Applicant has failed to meet the expectation of the Australian community that he would obey its laws. Based on the Applicant's convictions and his repeated offending, the Tribunal finds that the Australian community expects that the applicant should not hold a visa. In weighing this consideration, the Tribunal is guided by the principles in cl 5.2 of the Direction. The safety of the Australian community is the highest priority of the Government and the Tribunal has found there is a real and not insignificant risk of the Applicant reoffending with serious consequences.[49] The Applicant has not lived in Australia for most of his life or from a young age.[50] The Tribunal finds this consideration weighs strongly in favour of not revoking the cancellation of the visa.

Legal consequences of decision under section 501 or 501CA

1. The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia's non-refoulement obligations in respect of unlawful non-citizens.[51] The Applicant does not claim Australia's non-refoulment obligations arise for consideration in his case and there is nothing suggesting they may be engaged.
2. There are a range of legal consequences of a decision not to revoke the cancellation of the Applicant's visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
   • Unlawful status;
   • The likelihood of becoming subject to detention and/or removal;[52]
   • Refusal of other visa applications and cancellation of other visas;[53]
   • A prohibition on applying for other visas;[54] and
   • Periods of exclusion and special return criteria may apply.[55]
3. The Respondent contends that this consideration should be given neutral weight.[56] The Applicant's evidence when asked about this consideration was that he is asking for leniency. The Tribunal accepts the identified legal consequences are intended by Parliament while the Applicant is a non-citizen.[57] Those consequences are only intended if the Tribunal decides to affirm the non-revocation decision.[58] The Tribunal has regard to the effects on the Applicant and his family in Australia. In this case the legal consequences involve the Applicant's detention and removal from Australia, his separation from his children and his inability to return.

Conclusion on legal consequences of the decision under section 501 or 501CA

1. The Tribunal finds that this consideration should be afforded some weight in favour of revoking the cancellation of the visa.

1. Clause 9.2 of the Direction provides that taking into account the matters identified in sub-clauses 9.2(1)(a), (b) and (c) of the Direction, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under sub-clauses 9.2(1)(a), (b) and (c) are:
   • The Applicant's age and health;
   • Whether there are substantial language or cultural barriers; and
   • Any social, medical and/or economic support available to the Applicant in their country.

1. The Applicant is a 34-year-old male. There is nothing to suggest he suffers from any health conditions, psychological or physical.[59] In his evidence he said he had no health concerns. Although he had involvement in drug offending, he stated at the time he is not a drug user and there is no evidence otherwise.

1. The Applicant faces little to no anticipated language or cultural barrier in Vietnam having resided there until the age of 21. He also returned to Vietnam in 2018 for 2 weeks.[60] The Applicant gave evidence that this trip was to attend his brother's funeral and he stayed at his parent's house.

Any social, medical and/or economic support available to the Applicant in their country

1. The Applicant's mother, father, and 2 brothers reside in Vietnam.[61] He has 4 uncles and aunts, 5 nieces and nephews and 6 cousins in Vietnam.[62] The Applicant's evidence was that he has been away from Vietnam too long and it is hard to survive there.
2. In his evidence the Applicant said his parents reside in a mortgaged house. He had concerns that they may not be able to pay the mortgage however confirmed he had not been sending them money while he has not been working. The mortgage related to a poor business decision by his brother. He said he is not sure where he will reside if he returns to Vietnam or how he will support himself.
3. The Applicant described his relationship with his family as no longer very good and said he has not been in contact for some time. The Respondent submitted that the Tribunal should find the Applicant continues to have a relationship with his family. An 'Offender Plan' dated 16 March 2022 records that the Applicant told a case worker he would return to his parents and brothers in Vietnam if his first visa cancellation was not revoked.[63] His jail visiting history shows visits from his mother and brother in 2021 and 2022.[64] The Applicant's representations record that his family will be sad if his visa cancellation is not revoked.[65]
4. The Tribunal accepts the Applicant's evidence that he has fallen out of touch with his family. In the hearing he ultimately said he did not think there would be room for him to reside with his parents. The Tribunal considers there would be capacity in the short term as the Applicant resided there for 2 weeks in 2018. The Applicant did not suggest he no longer has any remaining relationship at all with his parents, and the Tribunal considers there is no bar to him reinstating contact. The Applicant also has extended family members to call upon. He will be able to seek employment using his experience in farming or his certificates in barista training and food handling.[66]
5. The Applicant said in his evidence that there is no medical support from the government in Vietnam. He confirmed he had no health issues. The Tribunal accepts the Applicant's evidence that the government do not provide healthcare in Vietnam but gives this only some weight because of the Applicant's good health.
6. The Respondent accepts that the Applicant will face some emotional hardship on his return to Vietnam.[67] The Respondent contends that the Applicant will be able to maintain contact with his family in Australia on telephone and video calls, and his family can visit him in Vietnam.[68] The Tribunal accepts that to be the case albeit the prospect of visiting is a longer term proposition given the family's current financial position.

Conclusion on the extent of impediments if removed

1. The Tribunal assesses that this consideration carries a small weight toward revoking the visa cancellation.

(1) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

1. There is no suggestion that Australian business interests will be impacted in the manner described in cl. 9.3. The Tribunal finds this to be a neutral factor.

1. The Applicant does not pass the character test under s 501 of the Act, and the Tribunal must consider whether there is another reason why the decision to cancel his visa should be revoked, having regard to the primary and other considerations in the Direction.
2. Clause 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed.
3. There has been extensive judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Ministerial Directions (considering a number of Ministerial Directions preceding the Direction).[69]
4. The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs ('CRNL') said '[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [at that time the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.'[70]
5. The Tribunal engages in the process described in Demir v Minister for Immigration, Citizenship and Multicultural Affairs:[71]

The metaphor of "weighing" relevant considerations should not be taken too literally. The exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger. The conclusion as to whether there is "another reason" for the purposes of s 501CA(4)(b)(ii) necessarily involves persuasion of a human decision-maker, whose thought processes cannot be reflected in lines of code, as to what is the right result in the circumstances. That persuasion flows from the decision‑maker's personal understanding as to the significance of each of the factors they are required or permitted to take into account, in the light of all the material they have considered.

1. In determining the weight to be applied to each consideration, the Tribunal has considered the primary and other considerations and weighed them in light of the evidence and findings using the guidance provided by the Direction.
2. Greater weight must generally be given to the protection of the Australian community than other primary considerations. Greater weight will also generally be given to primary considerations. In examining what this requires, the Full Court in CRNL states that this means greater weight will be given unless there is some reason why that general approach should not be adopted.[72] In the circumstances of this case the Tribunal considers the general approach should be adopted that greater weight is given to the protection of the Australian community, and to the primary considerations.
3. In reaching its decision, the Tribunal gives the primary consideration of the protection of the community greater weight than the other primary considerations. It has found the protection of the Australian community and expectations of the Australian community weigh strongly in favour of not revoking the visa cancellation. It has found the strength, nature and duration of ties, and the best interest of a minor child to weigh moderately in favour of revoking the visa cancellation. It has found the legal consequences of the non-revocation decision to bear some weight in favour of revoking the cancelation, and the extent of impediments if removed to bear a small weight toward revoking the cancelation.
4. The Tribunal in making its decision concluded that the combined weight of considerations regarding the protection of the Australian community and expectations of the Australian community outweighs the cumulative weight of the other considerations. Based on an integrated view of the considerations the Tribunal finds that it is not satisfied there is another reason to revoke the cancellation decision.

1. The Tribunal affirms the decision under review.

[1] Administrative Review Tribunal Act 2024 (Cth), s 111; Administrative Review Tribunal (Migration, Protection and Character) Practice Direction 2024, 5.12.

[2] Exhibit R1 'Hearing Book' (Hearing Book), 44.

[5] Calvey v MICMSMA [2022] FCAFC 104 [45].

[6] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 ('the Direction')

[18] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.

[46] Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177 [201].

[52] Migration Act 1958 (Cth) ss 189, 196, 197C, 198.

[53] Ibid s 501F.

[54] Ibid s 501E.

[55] Ibid s 503, special return criteria 5001.

[57] Stoneley v MIMA [2025] FCA 143 [35].

[58] Singh v MICMSMA [2024] FCA 1273 [34].

[69] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.

[70] [2023] FCAFC 138, [23].

[71] [2023] FCA 870 [21].