1. I have decided that the applicant is not a person whom I consider to be a danger to the Australian community. It follows, in my view, that I should set aside the decision under review and substitute a decision to this effect. I set out below the background facts and my reasons for this conclusion.

1. The applicant was born in 1973 in Vietnam. He arrived in Australia in 1980 at the age of seven with his uncle and brother on a small fishing boat. They had fled Vietnam. The applicant was granted a visa after arriving in Australia. The applicant has most recently held a Return Resident (subclass 155) visa, which was granted to him in 2013.[5] The applicant has two children from a former partner, born in 2001 and 2002, respectively.

1. The applicant has a long criminal history. His record was before me.[6] The offending began in 1994, and the record extends over some six-and-a-half pages. The applicant gave evidence, which I accept, that he has had ongoing heroin-addiction problems that have caused him to commit crimes in order to obtain money.[7]

1. The respondent has set out the applicant's offending history in a helpful table, which forms part of its Statement of Facts, Issues and Contentions.[8] The history extends over 30 years. Among the crimes are multiple thefts from, and of, motor vehicles; multiple offences of handling, receiving or retaining stolen goods; multiple offences of larceny, burglary, or false pretences; multiple offences of possession of an unlawful drug; and multiple offences of driving whilst disqualified or unlicensed. There is also an instance of armed robbery in 1996. There are also road offences involving driving without due care and driving whilst under the influence of drugs; forgery of prescriptions to obtain drugs; and breaches of bail and community orders.

1. It would serve no purpose to recapitulate in detail this extensive offending history. Clearly enough, there have been very many offences - exceeding 200 - over decades.[9] It is accepted by the applicant that much of the offending was induced by his dependence upon heroin.

1. Importantly, as is made clear in the respondent's table, there have been occasions when the applicant was required to serve a sentence of imprisonment in jail. The first period exceeding a month occurred as long ago as in 1995. There were further periods of 15 months in 1996 for armed robbery, four months in 1999, and twelve months in 2001. In 2017, there was a further 140 days' imprisonment, before a lengthy term of imprisonment was imposed in respect of the applicant's most recent offending (to which I shall shortly come). I mention this history of incarceration because jail has not proved a sufficient deterrent at earlier stages in the applicant's life.

1. I turn now to the most recent offending that resulted in a term of imprisonment of two years and ten months (approximately) with a non-parole period of one year and nine months. That offending involved trafficking in heroin. The District Court of South Australia's sentencing remarks were before me and I accept and rely on them.[10] The applicant pleaded guilty to two counts of trafficking in a controlled drug in a prescribed area on 21 and 27 February 2017.

1. In respect of the first count, the applicant was at a heroin dealer's premises which an undercover operative attended. The undercover operative spoke to the applicant and asked about getting - and I quote from the sentencing remarks - '1'.[11] The applicant gave the undercover operative the dealer's phone number. The operative later obtained 0.22 g of heroin from the dealer in a public hotel for $100. On the second occasion, it was the applicant who met the undercover operative at the same hotel and sold her 0.23 g of heroin for $100.

1. The Court referred to the applicant's troubled background, which it summarised as follows. The applicant had come to Australia aged seven with his brother and uncle (as I have previously indicated). They escaped by boat from communist Vietnam and were picked up by a tanker and brought into Port Adelaide harbour. It is further recorded in the sentencing remarks that the applicant's uncle was constantly hostile to the applicant and his brother; so much so in fact, the neighbours reported the abuse to the appropriate authorities. The applicant had very limited formal education, left school at about 15 and took up factory work. The applicant was introduced to drugs, and in particular heroin, at age 17 and he quickly became addicted.[12] The Court referred to previous trafficking offences in Victoria in 1999 as well as a number of breaches of bond.[13]

1. The Court referred to the role of the courier in the drug rate trade as 'an extremely important one'.[14] I accept that assessment. Couriers participate directly in the supply of drugs to community members. In this case, the drug in question, heroin, was an extremely dangerous and addictive one.

1. Were it not for the pleas of guilty, the sentencing Court would have imposed a sentence of four years' imprisonment; but the Court reduced the sentence by 30 per cent to two years, nine months and 18 days (to give credit for the guilty plea). A non-parole period of one year and nine months was fixed.[15]

1. The Court noted that the applicant's history of offending, particularly his breaches of bail and community-based orders, showed his rehabilitation prospects were poor.[16] That is an assessment I take into account although it is some years old now. There was found to be a risk of reoffending, and the risk was serious enough to make it inappropriate that the applicant be permitted to serve his sentence on home detention.[17] I take this into account as well.

1. As a further matter of background, I note that the applicant's visa was subsequently cancelled under s 501(3A) of the Act as a result of his imprisonment on this occasion. The applicant's attempts to have the visa cancellation revoked were unsuccessful (including those in the Administrative Appeals Tribunal and the Federal Court).

1. The applicant served his non-parole period in jail, was released on parole, but was then taken into immigration detention (since he no longer had a visa permitting him to reside in the community at that point). The applicant spent a very long period of time in jail and immigration detention. He entered jail on 27 May 2017; he was released on parole and immediately entered immigration detention on 26 February 2019; and he was only released from immigration detention on 5 December 2024 (on a bridging visa). The total time spent in jail or immigration detention, from May 2017 to December 2024, amounts, therefore, to just over seven-and-a-half years.

1. The sole question before me in this review is whether the criterion for the grant of a protection visa that is specified in s 36(1C)(b) of the Act is satisfied.

1. I agree with the delegate that the applicant has been convicted of a particularly serious crime, and this was not contested by the applicant. Relevantly, a 'particularly serious crime' for the purposes of the Act consists of the commission of a 'serious Australian offence': see s 5M. A 'serious Australian offence' is in turn defined in s 5(1) to include 'a serious drug offence' against State law. I agree with the delegate that the applicant was convicted of a serious drug offence against South Australian law because the offence involved the unlawful trafficking of heroin, and the offending received a significant sentence.[18] As I say, this conclusion was not disputed by the applicant.

1. The contested issue was whether the applicant is 'a danger to the Australian community'. Given the drafting of s 36(1C)(b), the precise criterion for the grant of a protection visa in this regard is that the applicant not be a person whom the Minister considers on reasonable grounds is a danger to the Australian community. So the question I must answer is whether I consider on reasonable grounds that the applicant is a danger to the Australian community. If he is not a person whom I consider to be a danger to the Australian community, the criterion for the grant of a protection visa in section 36(1C)(b) will be satisfied.

1. The word 'danger' is, as has been pointed out, one of ordinary meaning.[19] It is not helpful or necessary to seek to define the word in reasons: its meaning is well understood. In making my decision, I must weigh what I assess to be the risk of reoffending in conjunction with the harm that would potentially arise if the offending conduct in question were repeated. It is also the case that my assessment in this regard is to be made as of the date of my decision. That is an aspect of my de novo review in this case.

1. I do not doubt that the most recent offending, involving trafficking, was induced by the applicant's dependence on heroin at that time.[20] I agree with the delegate's view that 'the applicant's criminal offending in Australia has been directly linked to his drug usage'.[21] As the sentencing Court recorded, the applicant had also been found guilty of trafficking at an earlier time in 1999.[22] There have been, of course, other antisocial acts of offending, many of which were related to the need by the applicant to obtain funds for drugs.

1. In my opinion, if the applicant returned to heroin use, he would be a danger to the community. I agree with the delegate in this regard. There would be a substantial risk that he would engage in trafficking (which is a serious threat to the safety of the Australian community) as the price he must pay for obtaining heroin, or he might engage in armed robbery as he has done once before in the past. The applicant has been convicted of other offences (for example, those involving theft and dishonesty) related to his drug addiction. I take these into account as well as clearly antisocial acts.

1. On the other hand, I do not think that the applicant will pose a danger to the Australian community if he does not resume a heroin habit (or become dependent on any other illicit drug). I do not think that in that case he will be likely to reoffend in a way that would make him a danger to the community. I accept that some offences in the applicant's record may have had little to do with his ongoing addiction. I refer here to driving whilst disqualified or unlicensed as examples. If these offences were to be repeated, I do not think there would be a danger to the community as such. But I would conclude in any event that the applicant well understands that any further offending of any type could well lead to jail, which could well involve the cancellation of any visa he then had. I do not believe the applicant would ever risk that consequence while his judgment remains unclouded by an illicit drug dependence.

1. It follows, then, that the question before me involves a careful assessment of the risk of the applicant's resumption of a heroin habit. I must ask myself in this review whether, as at the date of my decision, there is a sufficient risk of the applicant resuming that habit, which would make him a danger to the community (because heroin use would lead to a substantial risk of the applicant committing a crime that poses a danger to the community). Here the delegate concluded that 'the applicant's issues with drug addiction and use are ongoing'.[23] The delegate continued that 'given the recurring link between his drug usage and his criminal offending', 'the applicant is likely to relapse into crime'. He concluded that the applicant was a danger to the community.[24]

1. My conclusion differs from the delegate's. The assessment is not easy to make; but when I weigh what I regard as his low risk of taking heroin together with the harm to which the Australian community would be exposed were he to return to heroin, I have decided that the applicant is not 'a danger to the Australian community' as at the date of my decision. In my own assessment, I have followed what the President of this Tribunal has said about the need for an evidence-based approach and a close attention to the facts of the case at hand.[25]

1. First, I note that I regard the threat the heroin trade poses to the Australian community as very serious indeed. This drug is very dangerous. A person who participates in the trafficking of this particular drug assists the spread of a highly addictive substance that can have life-threatening consequences for an end-consumer.[26] I proceed on that basis in weighing the question of 'danger'.

1. As for the risk of the applicant relapsing into heroin use and resuming his participation in crime, I received a very helpful report from Mr Coffey, a clinical psychologist, dated 6 March 2025.[27] This report was not, of course, before the delegate. Mr Coffey also gave very useful oral evidence as well. I have considered the evidence given by Mr Coffey carefully. Mr Coffey sets out the following matters in his report with which I generally agree:

[52] [The applicant] began using cannabis when 13 years old. He began drinking heavily when 15 years old. He commenced intravenous heroin use when 17 years old at which time his heavy drinking ceased but he continued to smoke cannabis. His heroin use became daily from 18 years old. Besides when in custody or immigration detention the applicant said he has never been abstinent of heroin during his childhood for more than three or four months.

[53] On occasions when he couldn't obtain heroin he injected himself with a liquid form of benzodiazepine which caused the veins in his arms to collapse; after that he injected heroin into veins in his groin.

[54] [The applicant] said he has undertaken a residential drug detoxification on a number of occasions, the last time being in late 2016. However following this program he fell back into heavy heroin use; in the months prior to his arrest in May 2017 he was injecting heroin several times a day.

[55] For most of the time while in prison he received methadone. He also completed a 'Smart recovery program', a group program of about six sessions. When he was transferred to immigration detention he continued to be treated with methadone. He ceased methadone in May 2020 and recommenced on his request in August 2021. He was receiving methadone at the time of his release from detention.

[56] [The applicant] smoked buprenorphine illicitly while in prison. He said he did this while withdrawing from heroin and before commencing a methadone program.

[57] In immigration detention he saw a counsellor. He said that the sessions were intermittent, that the staff taking them changed, and that they tended to be superficial and not that helpful. He said he made up his mind to cease heroin himself.

[58] [The applicant] told me he used substances on a number of occasions while in immigration detention. He said he illicitly obtained and smoked buprenorphine on a few occasions when he was not being treated with methadone. He said he used methamphetamine three or four times while in detention, the last time in 2024.

[59] There were about eleven incidents reported between November 2019 March 2024 at least some of which strongly suggest [the applicant] was involved in drug use at that time. In August 2021 he told medical staff he had smoked cannabis and used buprenorphine illicitly. [The applicant]'s recollection of his drug use in detention and what is documented appear to be broadly aligned.[28]

1. Furthermore, I broadly accept certain of Mr Coffey's conclusions in his report. I accept that the applicant's offending is directly linked to drug use. It would appear that the applicant has not used heroin since his arrest in May 2017 on trafficking charges. I agree with Mr Coffey that the records available to him and the Tribunal disclose a number of occasions when the applicant has used other illicit substances whilst in immigration detention. I agree with Mr Coffey that it is appropriate to draw an inference that the applicant's commitment to abstinence 'wavered' while in detention.[29]

1. In particular, I agree with what appears at [79] - [81] of the report:

[79] His failure to completely abstain however should be seen in context of the difficulties posed by the detention environment for a drug addicted person. In many ways that environment is unconducive to recovery from addiction. Indefinite confinement is stressful and demoralising and over time most detainees' mental health deteriorates. Violence between detainees is common. There is little structured activity available - unlike prison there is no work and study programs are limited. Relationships with friends and family are difficult to maintain. Illicit drug use and availability is ubiquitous; the applicant told me the majority of detainees were consuming drugs or alcohol. There are some drug rehabilitation services but they are far less comprehensive than what a specialist drug service offers. In my experience detained persons' pre-existing substance addictions have often continued unabated in immigration detention and some without addictions have acquired them.

[80] On the available evidence [the applicant]'s abstinence in detention was punctuated by lapses which appear to be isolated and not leading to ongoing drug use, but they were recurrent. Had [the applicant]'s drug use been persistent the applicant would have regularly been in an intoxicated state and this would have been recorded by medical staff and detention officers.

[81] Notwithstanding his failures, [the applicant]'s commitment to abstinence during immigration detention is demonstrable. For most of his detention he adhered to an opioid substitution therapy program. When he commenced immigration detention he requested resumption of methadone, because, a clinician noted, '[he] has concerns [he] will go back to using drugs again'. In August 2021 he told medical staff that he had smoked cannabis and illicitly used buprenorphine, was concerned that he would use buprenorphine again or other illicit substances, and asked for his methadone to be recommenced. Overall, despite recurrent feelings of hopelessness and demoralisation due to his extended detention and the prospect of repatriation, he did not resume sustained drug use.[30]

1. It is significant that the applicant decided of his own accord to re-enter a methadone program, having earlier withdrawn from it. This demonstrates, in my opinion, quite significant insight and quite some determination on his part to resist the lure to resume a drug habit. The applicant did not resume drug use in immigration detention in a sustained way although there were 'self-contained' but 'recurrent' lapses.[31] I note further that the applicant is now taking monthly 'depot' injections of buprenorphine, instead of daily doses of methadone, as part of his ongoing therapy. This is convenient, involves a far-reduced risk of missing doses, and provides even control of cravings. The monthly visits with his GP where he receives the depot injection of buprenorphine are recorded as useful to the applicant.[32]

1. The applicant presently resides in the community with a family friend, and I am satisfied that there is a stable home environment in which the applicant can live. He has regular visits from one of his children, and contact with the other. I acknowledge that these factors did not prevent recidivism in the past, but they are nevertheless helpful to him.

1. The overall conclusion that was reached by Mr Coffey in respect of risk appears in his report as follows:

[99] In my opinion the likelihood of abstinence and no further offending, compared to relapse and consequent offending, are approximately evenly balanced. A relapse is likely to be followed by further offending, most likely property and drug possession offences. If, over the next two years there is continued abstinence or abstinence punctuated by brief relapses after which within days abstinence is re-established and treatment re-instigated - if that is achieved I believe the probability of further offending will be reduced to a low level, albeit still higher than for a person who has never offended. [33]

1. It is here that I find that I do not agree with Mr Coffey. First, I believe a relapse could also be followed by trafficking or violence, not simply property and drug possession offences. I do not understand Mr Coffey to disagree with that as such. Furthermore, my estimation of the applicant's risk of relapse into heroin use differs from Mr Coffey's. In his oral evidence to the Tribunal, Mr Coffey indicated in respect of [99] of his report (quoted above), that he used available objective/statistical data to inform his conclusion. A heroin addiction is a very difficult addiction to leave behind permanently: few people manage to leave heroin for good.[34] Mr Coffey's assessment of the applicant was informed by starting from that undoubted statistical fact; and he then asked whether there was something in the applicant's case to cause him to diverge from the assessment the statistics would indicate as appropriate. Mr Coffey believed that in time, if the applicant engaged with available services that are outlined in his report, a greater degree of optimism would be justified. In that event, the applicant's recidivism risks would become low; but currently they are evenly balanced.

1. Mr Coffey's assessment of the likelihood of the applicant re-resuming a heroin habit was informed by reliable statistical evidence about rates of recovery from heroin addiction. That information is certainly relevant; but I am not satisfied that Mr Coffey's conclusion gives an accurate picture in respect of this particular applicant, which is where the approach of a clinician and that of a Tribunal may differ.

1. Of course, I agree with the general proposition that an addiction to heroin is a very difficult dependence to throw over completely. I also agree with the general proposition that few people manage to overcome that challenge. I also think that it is appropriate to bear in mind that the applicant's addiction was of many years' standing and that he had tried unsuccessfully on previous occasions to reform himself. I bear in mind also that jail has not proved to be a sufficient deterrent. These are all matters that bear on the applicant's future risk.

1. But in the assessment of the applicant's risk of relapse, it is important in my opinion to address, and given due emphasis to, his precise history and somewhat unusual circumstances. The applicant has not taken heroin for approximately eight years as at the date of the hearing before me; and there was no continuous dependence on another drug or drugs whilst he was in immigration detention for many years, despite the pressures of that environment that are alluded to in Mr Coffey's report.

1. The applicant had to spend a very long time in immigration detention. That period must have appeared entirely open-ended in one sense because the applicant entered detention on 26 February 2019 and was only released on a bridging visa in December 2024, a period of almost six years.[35] Importantly, in my opinion, this period was not one in which the applicant ever had a clear date which he knew in advance was the final date by which he would be released into the community.[36]

1. So, my conclusion is that the period of detention was particularly burdensome for this applicant both in terms of its length and because no end date was prescribed in advance. Like Mr Coffey, I do not regard the applicant's illicit drug use in detention as evidence of a resumption of a drug habit, but rather as examples of isolated or self-contained lapses, even if recurrent. In some ways, given the very lengthy period of detention, which dwarfed the head sentence imposed by the District Court, the applicant has shown quite remarkable resilience and determination in coping with his adverse circumstances without resuming a drug dependence.

1. This is a significant factor that does need to be weighed carefully. The fact that the applicant did not resume a drug dependence (whether upon cannabis or methamphetamine) whilst in detention over those many years is a significant factor that I have decided it is appropriate to weigh carefully in this particular applicant's case.

1. I also accept that the applicant has a settled and regular home environment at the present time, in which he has lived since his release from detention, and that he genuinely fears the potential consequences of remaining on an uncertain bridging visa. There is a deterrent factor involved here, which is entirely beneficial for the applicant. I believe the applicant does appreciate that this is his last effective opportunity to throw over his drug habit finally and lead a normal life with prosocial choices.

1. In all the circumstances, my assessment is that this particular applicant's risk profile in respect of a resumption of a drug habit is, at the present time, low.

1. I acknowledge that the nature of the harm with which the Australian community could be threatened were the applicant to resume a heroin habit would be grave as I have made clear. There are also his other offences to weigh. But in particular trafficking in heroin is a very serious offence, and heroin is a highly destructive drug. I also weigh that there are unresolved traumas arising from the applicant's childhood that need to be addressed and have not yet been.[37]

1. My overall conclusion, however, is that this applicant is not a person whom I consider to be a danger to the Australian community at the present time. From this conclusion, it follows that I should set aside the decision under review and substitute a decision to this effect.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for the decision herein of Senior Member Manetta.

....................[SGND]...............................................

[1] The delegate's decision was before me at Hearing Book ('HB'), 720ff.

[2] He had applied for a Class XA - Protection visa (subclass 866).

[3] This paragraph is one I regularly use in my decisions in this area.

[4] See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51]. This decision concerned the Tribunal's predecessor, the Administrative Appeals Tribunal, but the same principles apply to the Tribunal's exercise of jurisdiction.

[5] That visa was subsequently cancelled after the applicant's most recent jailing.

[7] One sentencing Court (see HB, 704, and 705) referred to the direct link between the applicant's offending on that occasion and his drug dependence.

[9] See respondent's submission at HB, 786 [34].

[19] SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104; (2023) 299 FCR 148. See also WKBF and the Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3728 at [64] (Kyrou P).

[20] It would appear that he was given a small amount of heroin for his role as a courier: HB, 712.

[25] WKBF and the Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3728 at [17] (Kyrou P).

[26] I further accept the respondent's contentions in this regard at HB, 786 [30].

[36] The applicant was apparently released only as a consequence of the High Court's decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 97 ALJR 1005, a fortuitous event for the applicant. Had the High Court not reached the decision it in fact reached, there would have been no legal requirement mandating his release.

[37] See HB, 855 [101] (first dash point on this page).