The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

1. The Direction states that in considering the need to protect the Australian Community from harm, I 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.[14]
2. I have regard to the following factors on a cumulative basis:

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

(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and

(c) where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.[15]

Nature of the harm if the Applicant reoffended in a similar manner

1. The Applicant again properly concedes that if he reoffends, the harm posed to the Australian community has the potential to be very serious, as articulated in GNRK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[16] The sale and supply of illicit drugs has significant physical psychological and financial harm to members of the community, particularly when this was part of a commercial enterprise.
2. 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 of the likelihood of the Applicant engaging in such conduct[17]
3. The Tribunal and superior courts have extensively considered the issues surrounding the risk under s 501(6)(d) of the Act, from which paragraphs 8.1.2(1) and (2) of the Direction are drawn.
4. The Tribunal's task is to ascertain the realistic level of risk posed by the Applicant at the time of its decision, "an unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates , what the consequences will be . Whether a risk is unacceptable will depend not only upon the likelihood of it becoming a reality ,but also the seriousness of the consequences if it does."[18]
5. The Tribunal was referred to a number of relevant decisions as to other drug related convictions, for example Bui, in which Senior Member Mercer described 'crop sitting' as '_not in and of itself so serious that any repetition of it would be unacceptabl_e'.[19] However it is my view that while Bui and other cases are helpful to assess risk, each must turn upon its facts. The sentencing Judge found that the that the period of the Applicant's offending was for a limited time between April to July of 2021 and included tending the plants on occasions and possession of cannabis which was to be given to other syndicate bosses or members and was committed at a time of familial financial stress[20]. It is my view that any repetition of this conduct would not fall within the type of risk identified as being unacceptable.

1. The Applicant had lived in Australia for 8 years prior to his offending. He had commenced but did not complete study for a Diploma and also a Master of Business Administration. He met and married his former partner, Ms K in 2018. This relationship came under strain and he relocated to Perth, where he met his current wife, Ms D in or around 2020 and commenced a relationship with her in 2021. She had a child from a previous relationship, R, who has significant disabilities.
2. The Applicant remained in Perth and worked until April 2021 as fence constructor. He was aware that his Mother was hospitalised for 2 to 3 months for renal failure[21] and he felt under considerable pressure to support his Mother, partner and step-son. It was at this time he became involved in the criminal enterprise.
3. He was arrested in July 2021 and after obtaining bail in August 2021, he recommenced work in November 2021 as a cabinetmaker.[22]
4. Ms D gave birth to their daughter, P, in March 2022. Ms D also became an Australian citizen that year and she and the Applicant married on 10 October 2022.
5. On 28 August 2022 the Applicant was remanded in custody (after entering a plea of guilty to the 3 offences). On 18 October 2022 the Applicant was sentenced for the 3 offences.
6. On 27 April 2023 he was approved for transfer to a minimum security at Wooroolo Prison Farm and remained there until his release on parole on 26 August 2024[23].
7. He was then transferred to Yongah Hill immigration Detention Centre where he currently remains.

1. The Applicant undertook 'A Risk of Reoffending - Prison Version (RoR-PV) Assessment' while he was incarcerated. He was 'not recommended for criminogenic programs at this time due to low risk of reoffending.' [24]
2. The sentencing Judge noted the applicant was remorseful for his offending.[25]
3. While he was imprisoned, the Applicant engaged in voluntary programs and was employed. His Individual Management Plan (IMP) from April 2023 did not demonstrate a need 'for General Offending intervention'. He was not further assessed or recommended for criminogenic programs.
4. The Applicant completed the following voluntary programs while incarcerated:
   1. Certificate I in General Education;

1. Certificate II in Workplace Skills and Food Handler Training Program.

1. The order of the Parole Board noted the Applicant's participation in voluntary programs and recorded him as being of low risk of reoffending, noting and that if he was released, he would not pose an unacceptable risk to the community.
2. The Applicant also has a current offer of employment upon release from detention with his wife's employer, Ms T at her nail salon A Nail & Beauty. She confirmed in her oral evidence, that she knew of the Applicant's convictions and was prepared to employ him.

Cummins Report - Independent assessment of risk:

1. Mr Cummins, a clinical and forensic psychologist, formed the opinion that the Applicant's 'offending was situationally motivated and opportunistic, against a background where he and his wife were experiencing financial distress'.[26] The facts of the relevant situation included that the Applicant had recently relocated interstate (seemingly without much preparation), had engaged in a new relationship with a partner who had a child, was seeking work in a new State during the Covid-19 pandemic, and felt shame and embarrassment regarding his ability to financially provide for his family.44
2. While the Applicant was in the community on bail, his wife had a baby and ceased working for a period of time. The Applicant was the sole income earner for his family and he understood turning to crime would only have negatively impacted him, the community and his family. He demonstrated while on bail, notwithstanding financial stress, he was able to resist becoming involved in criminal activity.
3. Mr Cummins' conclusion was that the Applicant's:

...risk for committing another offence was low ... In my opinion, in this situation a Low risk should be equated to being a negligible risk...ln my opinion [the Applicant] does not require any offence specific treatment.

In this regard I formed the opinion [the Applicant] had learnt his lesson. At interview he acknowledged he had already "paid a high price" in relation to his offending, as reflected in him being separated from his wife and their children.. [27]

1. The following are relevant to the Tribunal's assessment of reoffending:

(a) The absence of any offending while on bail for 13 months; > > (b) That his guilty plea was at an early stage, described as a "fast track" plea; > > (c) The sentencing Judge in her remarks recorded that the Applicant had no prior offending, full time employment and was supporting his partner and his family in Vietnam; that he spoke poor English and that imprisonment was possibly a greater hardship on him than on others; > > (d) The sentencing Judge's assessment that he had good prospects of rehabilitation and he was not likely to be involved in further offending;[28] > > (e) His expressed remorse for his offending and his evidence and demeanour whilst giving evidence reflected that; > > (f) The reports of his time in prison and detention are largely uneventful; > > (g) He has the protective factors of his wife and two children, with contact maintained whilst incarcerated. His relationship with his wife and step-son was still relatively recent at the time of his offending . > > (h) Whilst he has undertaken courses, none bear directly upon his ability to identify the ways in which he would respond differently if he finds himself in a similar situation [29] > > (i) The Applicant has avoided the opportunity to be involved in or use illicit drugs while in prison and immigration [30].Whilst some of the sources relied upon in submissions as to the prevalence of drugs are sourced from media articles, the reference to the recommendations made in the Yongah Hill Immigration Detention Centre Inspection Report published by the Australian Human Rights Commission in April 2024 [31] is of significance. It highlighted issues of widespread use of drugs within the detention centre and the risk that poses to the health and safety to detainees and staff.[32]The Tribunal accepts that the Applicant has not been involved in any illegal activity since 2021. > > (j) The Tribunal finds the assessments undertaken of significant assistance in assessing the risk of reoffending

2. Having weighed up the potential harm to the community if the Applicant were to reoffend and the risk posed by him taking into account the above factors, Primary Consideration 1 weighs moderately against revocation of the cancellation of the Applicant's visa.

1. The Direction defines 'family violence' to include violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes them to be fearful. The Direction provides that a member of a person's family includes a person who has, or has had, an intimate personal relationship with the relevant person.
2. Paragraph 8.2(1) of 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 in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
3. There is no evidence before the Tribunal that the Applicant has been convicted of an offence, found guilty of an offence, or had charges proven, that involve family violence. There is also no information or evidence from independent and authoritative sources indicating that the Applicant is, or has been, involved in the perpetration of family violence. This Primary Consideration is not relevant.
4. Primary Consideration 2 is of neutral weight against revocation of the cancellation of the Applicant's visa.

Primary Consideration 3: strength nature and duration of ties to Australia

1. Paragraph 8.3 of the Direction says I must consider any impact of the decision on the Applicant'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. I should also consider the strength, nature and duration of any other ties that the Applicant has to the Australian community, having regard to:

(a) how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that:

• less weight should be given where the Applicant began offending soon after arriving in Australia; and
• more weight should be given to time the Applicant 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. I find that the Applicant has lived in Australia for the past 12 years since the age of 21. He was was employed as a waiter, in retail and as a cabinet maker before and after the offending in 2021. He was also involved in a sporting team. He has contributed positively to the Australian community.
2. His immediate family in Australia consists of his wife Ms D and two children, R and P aged 7 and 3. Ms D has resided in Australia for the last 13 years and gained citizenship in 2022.
3. Ms D would be unable to accompany him to Vietnam:- both children are settled and R has challenging health difficulties and consequential needs. Ms D works to support the family and has practical and logistical challenges in parenting the children. P will start kindergarten next year. R is of school age .
4. Ms D's mental health has been fragile, including an attempted suicide whilst pregnant with R, described as being overwhelmed with the prospect of being a single parent and coping on her own. Things improved when she formed a relationship with the Applicant and R had a father figure. There was expert evidence before the sentencing Judge from a clinical psychologist.[33] Since October 2022, Ms D has coped with being a single parent with 2 young children with assistance from her parents. Her Mother's visa expired on 24 July 2025 and her Father has ill health and may need to return to Vietnam should he deteriorate. Concerns are held by the Applicant and Ms D's family and friends for her welfare.
5. The impact upon on Ms D and her inability to have his support, practically and emotionally, should the Applicant being deported, has been described as 'catastrophic'.
6. I accept that the Applicant, having lived in Australia continuously since the age of 21, has significant ties to his community in Australia. Taking into account the impact of any non-revocation decision on the Applicant's immediate family members in Australia, I give this Primary Consideration very significant weight in favour of the revocation of the cancellation of the Applicant's visa.

Primary Consideration 4: best interests of minor children in Australia

1. Paragraph 8.4 of the Direction requires me to determine whether a non-revocation decision is or is not in the best interests of a child (under the age of 18 at the time) affected by the decision.
2. Paragraph 8.4(4) of the Direction sets out a number of factors to take into consideration, which relevantly include:
   • the nature and duration of the relationship between the child and the Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
   • the extent to which the Applicant 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 Applicant'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 Applicant would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways; and
   • whether there are other persons who already fulfil a parental role in relation to the child;
3. The Applicant has 2 minor children in Australia:- R and P. R has had no contact with his biological father and the Applicant is the only Father he has known. I find that the Applicant has a parental relationship with R and P.
4. R was born with an eye condition and has had four surgeries since to correct his vision (the most recent being in 2019).
5. In January 2024 R was assessed by the Koondoola Child Development Service (speech pathology) following referral in August 2022, as having 'moderate receptive language difficulty and severe expressive language difficulty'15 and a Service Plan was developed. He was further waitlisted for social work.16
6. If the Applicant were permitted to remain in Australia, he would continue to play a positive parental role to R. If he was removed from Australia, the Applicant would be unable to continue supporting R (financially, educationally, emotionally, practically or otherwise) or to maintain a meaningful relationship with R, as he would be unable to visit Australia, even for short periods of time.
7. P and is three years old. Her father was involved in her care for the first 6 months of her life and will expect to do so if allowed to remain in Australia.
8. It is accepted that she is not of an age to understand her Father's absence; obviously she would benefit from her father's ongoing presence in her life. Both children's ability to develop and maintain a meaningful, ongoing relationship with him would effectively all but sever their relationship given their ages.
9. The Respondent accepts that there will be adverse impacts on the Applicant's immediate family and concedes this consideration ought be given moderate weight.
10. I find that both children would each be significantly detrimentally affected by the absence of their father in their lives.
11. Taking into account the best interests of the children mentioned above cumulatively, this Primary Consideration weighs very significantly in favour of the revocation of the cancellation of the Applicant's visa.

Primary Consideration 5: expectations of the Australian community

1. Paragraph 8.5(1) of the Direction says that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.[34]
2. Paragraph 8.5(2) of the Direction says 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 are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind, relevantly:

(a) acts of family violence; or

(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

(f) worker exploitation.[35]

1. The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[36]
2. Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined[37]:

This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case_._

3. The Applicant has engaged in unlawful conduct resulting in his convictions on drug related offences, and in so doing, shown a disregard for the laws regulating the community that he seeks to return to.
4. The Applicant has breached the community's expectation for non-citizens to abide by the law and, as per paragraph 8.5(2) of the Direction, the community expects that the Australian Government can and should cancel the visas of non-citizens if they raise serious character concerns through conduct of the type undertaken by the Applicant.
5. Primary Consideration 5 weighs significantly against revocation of the cancellation of the Applicant's visa.

Other Consideration 1 - legal consequences of the decision

1. There is no claim, and otherwise nothing on the material to suggest that Australia's non-refoulement obligation are enlivened in relation to the Applicant.
2. The consequence of affirming the non-revocation decision would be that the Applicant:

(a) will be liable to be removed from Australia as soon as reasonably practicable[38]; > > (b) must remain in detention until removal[39]; > > (c) will be prohibited from applying for another visa while in Australia, except for a Protection visa or Bridging visa[40]; and > > (d) will be indefinitely excluded from Australia[41].

3. The Tribunal ought to take into account the legal consequences of a decision because those consequences are part of the legal framework in which the decision is made[42] The Federal Court in Rana v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003 made the following comments regarding this factor (albeit in relation to a section 501 (3) decision):

It follows that the subject matter, scope and purpose of legislation may well require a decision­ maker to take into account indirect and non-immediate legal consequences that form part of the legal framework of a discretionary decision under that legislation where those consequences flow from the decision by operation of the Act. Consideration of legal consequences does not take place in a vacuum. Relevantly, it is the legal consequences for the person affected by the decision under consideration. Legal consequences may have practical realities in human terms for the person so affected.[43]

1. I give this Other Consideration some weight in favour of revocation of the cancellation of the Applicant's visa.

Other Consideration 2 - extent of impediments if removed

1. I must take into account the extent of any impediments that the Applicant may face if removed from Australia in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of Vietnam), taking into account:

(a) the Applicant's age and health; > > (b) whether there are any substantial language or cultural barriers; and > > (c) any social, medical and/or economic support available to the Applicant.

2. The Applicant accepts he is unlikely to face any significant cultural barriers if returned to Vietnam. However, his wife and 2 young children live here, and he would suffer emotional, practical and financial distress were he to be returned to Vietnam and permanently banned from re-entering. This weighs in favour of revoking the cancellation decision.
3. This Other Consideration weighs slightly in favour of revocation of the cancellation of the Applicant's visa.

Other Consideration 3 - impact on Australian business interests

1. The Tribunal must consider any impact on Australian business interests of a decision to affirm the reviewable decision. However, Direction 110 makes clear that this consideration should only be given weight where a decision to cancel the Applicant's visa 'would significantly compromise the delivery of a major project, or delivery of an important service in Australia'.
2. The Applicant has not identified any Australian business interests that are affected by a decision.
3. I give this other consideration neutral weight in favour of revocation of the cancellation of the Applicant's visa_._

1. No new considerations outside of those listed in the Direction were raised by the Applicant or Respondent.

1. The Tribunal has assessed the considerations as follows:

(a) Primary Consideration 1, Protection of the Australian community, should weigh moderately against revocation of the cancellation decision; > > (b) Primary Consideration 3, Strength, nature, and duration of ties to Australia, should weigh significantly in favour of revocation of the cancellation decision; > > (c) Primary Consideration 4, Best interest of minor children in Australia, should weigh heavily in favour of revocation of the cancellation decision; > > (d) Primary Consideration 5, Expectations of the Australian community, should weigh significantly against revocation of the cancellation decision; > > (e) Other Consideration 1, Legal Consequences, weighs moderately in favour of revocation of the cancellation decision; and > > (f) Other Consideration 2, Extent of the impediments, weighs slightly in favour of revocation of the cancellation decision.

2. The task of weighing the considerations must be undertaken noting paragraph 7 of the Direction regarding the weight to be given to primary consideration 1 and that one or more primary considerations may outweigh other primary considerations. I have determined that the weight I give to Primary Considerations 3 and 4, together with Other Considerations 1 and 2 outweigh the weight I give to Primary Considerations 1 and 5.
3. Application of the Direction therefore favours the revocation of the cancellation of the Applicant's visa. As a result, the Tribunal finds that there is another reason to revoke the mandatory cancellation of the Applicant's visa.
4. Pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal sets aside the decision under review made by a delegate of the Respondent on 23 May 2025 and substitutes it with a decision to revoke the mandatory cancellation of the Applicant's Class BS Subclass 801 Partner Visa.

Respondent's Statement of Facts, Issues and Contentions

G-Documents - lodged in Administrative Appeals Tribunal proceedings 2025/3752

• - Documents produced under summons: Western Australia Department of Justice
• - Documents produced under summons: Western Australia Police Service

Applicant's Statement of Facts, Issues and Contentions

a) Referral from Community Health Services - Ryan Dang

b) Marriage certificate

c) Notice to tenant of rent increase

d) ASETS Transcript

e) Centrelink - Your family assistance - Dung P Dang

f) Payslips - Sung Phuong Nguyen Dang

g) Statement - Tho Thanh Thanh LE

h) Statement - Van Do Nguyen

1. Statutory Declaration - Dung Phuong Nguyen DANG

j) Statutory Declaration - Thi Thao DAO

k) Thi Kim Lien Nguyen Photographs

Agreed Schedule of the Applicant's Family and Contacts in Australia

[1] It is the term of imprisonment to which the applicant was sentenced, not the term actually served, that is relevant when determining the term of imprisonment - See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.

[4] Minister for Home Affairs v Buadromo [2018] FCAFC 151.

[6] Migration Act, s 501CA(4).

[7] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 27; [2022] 275 CLR 582 at [22]. See also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398 at [13]-[15]; Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 94 ALJR 594 at [6].

[8] Gray v Minister for Immigration and Border Protection (2024) AATA 3363

[14] Paragraph 8.1.2(1) of the Direction.

[15] Paragraph 8.1.2(2) of the Direction.

[16] [2021] AATA 250 at [145-147].

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

[18] Nigro v Secretary to the Department of Justice[2013] VSCA 213; 41 VR 359at 389[111] and cited with approval by Mortimer J( as she then was ) in Tanielu v Minister Immigration and Broder Protection [2014] FCA 673; and

[19] Bui and Minister for immigration and Multicultural Affairs [2025] ARTA 217 per Senior Member Mercer at [127]

[30] There appears to be no testing whilst in detention or prison

[31] Yongah Hill Immigration Detention Inspection Report (22 April 2024) Australian Human Rights Commission

[33] GD Psychological Report from "Psychological Health Care" written by Ms Heather Whitchurch, Clinical Psychologist, on 24 May 2022

[34] Paragraph 8.4(1) of the Direction.

[35] Paragraph 8.5(2) of the Direction.

[36] Paragraph 8.5(3) of the Direction.

[37] This approach is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185

[41] See Special Return Criteria 500(1)(c) in Schedule 2 to the Migration Regulations 1994 (Cth),

[42] Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 at [84]. See also Singh v Minister for Immigration, Migrant Services and Multicultural Affairs [2024] FCA 1273.