MIGRATION - mandatory visa cancellation - failure to pass character test - representations - review of decision not to revoke visa cancellation - Ministerial Direction No. 110 - primary and other relevant considerations - protection of Australian community - seriousness of conduct ‑- risk of reoffending - insight, remorse and rehabilitation - strength, nature and duration of ties to Australia - expectations of the Australian community - legal consequences of non-revocation - extent of impediments if removed from Australia - balance of considerations - decision set aside and substituted

Migration Act 1958 (Cth), ss 198, 499, 500, 501, 501CA

FYBR v Minister for Home Affairs [2019] FCAFC 185

Minister for Immigration and Citizenship v Obele [2010] FCA 1445

NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38

Nigro v Secretary to the Department of Justice [2013] VSCA 213

Plaintiff S22-2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36

Tanielu v Minister for Immigration and Border Protection [2014] FCA 673

Direction no. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)

1. Trung Pham is a Vietnamese citizen. He was granted a Class BC Subclass 100 Partner visa (Visa). The Visa was cancelled under s 501(3A) of the Migration Act 1958 (Act). Mr Pham made representations and sought revocation of the decision to cancel his Visa. A delegate of the Minister decided not to revoke the cancellation. Mr Pham lodged an application for review of this decision by the Tribunal.
2. The review is subject to legislative procedures set out in s 500(6) to (6L) of the Act.

1. I am satisfied the following background facts are established by the documentary and oral evidence before the Tribunal.
2. In 2009, Mr Pham met Thy Vo (his wife), at an oncology hospital in Vietnam where Mr Pham's mother and Ms Vo's father were being treated. In Ms Vo's words, they found comfort in each other.[1]
3. Ms Vo was studying in Australia. She subsequently found employment and was granted Australian citizenship.
4. On 14 September 2015, Mr Pham first entered Australia from Vietnam on a TU-573 student visa.[2] He was 28 years old. He supported himself by working in restaurants while he was studying. His sister and her husband sold their house in Vietnam to support Mr Pham to complete his studies at La Trobe University in Australia.[3] In 2019, Mr Pham completed a Bachelor of Business degree.
5. On 6 May 2017, he and Ms Vo married.[4]
6. Mr Pham alleges he engaged a migration agent to lodge a partner visa application but, contrary to advice provided to Mr Pham, the migration agent failed to do so. Subsequently, Mr Pham was granted a WE-050 bridging visa and he departed from Australia on 6 November 2019.[5]
7. From Vietnam, Mr Pham applied for grant of a partner visa. This was granted on 26 November 2020.[6]
8. At that time, Mr Pham was not able to return to Australia due to the coronavirus public health restrictions. He returned to Australia on 22 March 2021.[7]
9. On 1 December 2022, Mr Pham was arrested and subsequently charged with cultivation of a narcotic plant in not less than a commercial quantity.[8]
10. On 1 November 2023, Mr Pham was sentenced to a term of imprisonment of 5 years and 6 months with a non-parole period of 3 years and 6 months.[9]
11. On 3 September 2024, Mr Pham's Visa was cancelled under s 501(3A) of the Migration Act 1958 (Act).[10]
12. On 14 September 2024, Mr Pham requested revocation of this decision and made representations consistent with the invitation to do so.[11] Further representations were made on 17 and 20 April 2025.[12]
13. On 13 August 2025, a delegate of the Minister decided not to revoke the decision to cancel Mr Pham's Visa.[13]
14. On 20 August 2025, Mr Pham lodged an application for review of this decision by the Tribunal.[14]

1. The issues to be decided in the review arise under s 501CA(4) of the Act:

(4) The Minister may revoke the original decision if: > > (a) the person makes representations in accordance with the invitation; and > > (b) the Minister is satisfied: > > (i) that the person passes the character test (as defined by section 501); or > > (ii) that there is another reason why the original decision should be revoked.

2. As Mr Pham made representations in accordance with the invitation to do so, there is no dispute that paragraph 501CA(4)(a) is met. This is correct.
3. Mr Pham accepts he does not pass the character test defined in s 501(6) and (7). As he was sentenced to a term of imprisonment of more than 12 months, I am satisfied this, too, is correct.
4. The key issue in dispute is whether, for the purposes of s 501CA(4)(b)(ii) there is 'another reason' to revoke the decision to cancel Mr Pham's Visa.

1. The Minister has issued directions under s 499(1), namely 'Direction No. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA' (Direction). This is presently in effect. By operation of s 499(2A) of the Act, the Direction must be complied with.
2. Nevertheless, the Direction does not direct the outcome, and it does not limit the matters of relevance a decision-maker is able to consider, in the specific circumstances of any case.
3. Section 5.2 of the Direction sets out a framework of principles within which decision-makers should approach the task of deciding whether to revoke a mandatory cancellation under s 501(3A) of the Act:
   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 measureable 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 measureable risk of causing physical harm to the Australian community.
4. Part 2 of the Directions sets out factors which must be considered where they are relevant in any case. The following instructions are given:

Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

5. Taking the relevant considerations into account

(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 at 8.1 below (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.

6. Primary considerations In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:

(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. > > ...

(1) In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

(a) legal consequences of the decision;

(b) extent of impediments if removed;

(c) impact on Australian business interest

1. Paragraph 8.1(1) reinforces the principle that the safety of the Australian community is the highest priority of the Australian Government. It states the Government is committed to protecting the community from harm resulting from criminal conduct or other serious conduct by non-citizens. Regard is to be had to the principle that remaining in Australia is a privilege conferred on non-citizens in the expectation they are law abiding, will respect important institutions and do not cause or threaten harm to individuals or the Australian community. These matters should be kept squarely in mind when considering protection of the Australian community.
2. Decision-makers are required to consider the nature and seriousness of Mr Pham's conduct and the risk to the Australian community should he commit further offences or engage in other serious conduct.

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

(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community: > > > (i) violent and/or sexual crimes; > > > > (ii) crimes of a violent nature against women or children, regardless of the sentence imposed; > > > > (iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed; > > (b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious: > > > (i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed; > > > > (ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties; > > > > (iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c)); > > > > (iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again,, or an offence against section 197A of the Act, which prohibits escape from immigration detention; > > (c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes; > > (d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness; > > (e) the cumulative effect of repeated offending; > > (f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending; > > (g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour). > > (h) where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

2. Mr Pham's offending conduct is not within the express terms of paragraph 8.1.1(a).
3. The Minister contends, correctly, the conception of 'very serious' conduct is not limited to the types of crimes or conduct expressly referred to in the paragraph. The Minister asserts Mr Pham's crime is of such nature that it is properly considered to be 'very serious' for the purposes of s 8.1.1 of the Direction.
4. The nature of Mr Pham's conduct involved him undertaking paid work as a 'crop sitter', tending to a hydroponic cannabis crop in a factory leased by others. His role was shared with another person. It did not extend beyond the care, feeding and watering of the 1,280 cannabis plants police discovered in a search of the factory premises on 1 December 2022. There is no evidence Mr Pham was a principal in the illicit enterprise or that he was instrumental in organising, financing, setting up or planting the hydroponic crop. There is no evidence Mr Pham was likely to be involved in the distribution or sale of cannabis the crop might have produced, or that he stood to benefit financially from such distribution or sale.
5. On the sentencing remarks of Wischusen J,[15] Mr Pham's involvement was at the lower end of the hierarchy and did not extend beyond tending the crop for modest wages and accommodation.[16] It can be accepted, nevertheless, the role Mr Pham played tending to the crop was necessary and crucial to the intended purpose of the very large and sophisticated operation.[17]
6. With regard to the seriousness of Mr Pham's offending, his criminal conduct was not of a sexual or violent nature, and his crimes were not against vulnerable members of the community or government officials. His criminal conduct is not within the express terms of s 8.1.1(1)(a) or (b)(i) of the Direction. Nonetheless, the role he played in the cultivation of the narcotic plants in the factory premises was instrumental in the success of the cultivation, as well as the security of the crop. Even though it is probable Mr Pham was a low-level functionary in the criminal enterprise, the seriousness of his conduct is increased by the scale of the cultivation. I accept, as Judge Wischusen observed, the cultivation of narcotic plants causes great damage to members of our community, particularly its young.[18]
7. The seriousness of Mr Pham's offending conduct is reflected in the 5 years and 6 months prison sentence he was given.
8. On the available materials, Mr Pham has no prior record of criminal or offending conduct. His offending conduct is a singular departure from an otherwise unblemished record. Mr Pham has no record of misbehaviour during the period of his incarceration.
9. Noting the expansive defined meaning of 'serious conduct' in s 4(2) of the Direction, I am satisfied his singular offence demonstrates disregard for the law and it is 'serious' conduct for the purposes of s 8.1.1 of the Direction.

1. Paragraph 8.1.2(1) states 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. The matters set out in 8.1.2.(2) must be considered separately and cumulatively:

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

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

(i) information and evidence on the risk of the non-citizen re-offending; and

(ii) 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).

(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.

1. Should Mr Pham engage in further criminal or serious conduct of a similar kind, the Minister asserts the Australian community would be exposed to significant physical, psychological and financial harm and alleges such harm is so serious that any risk that it may be repeated is unacceptable.[19]
2. The consideration of harm in this context is prospective. The gravity of the consequences of Mr Pham's offending should it be repeated is drawn from an evaluation of the particular circumstances which pertain to his offending conduct,[20] rather than generalisations about the character of the offence.[21]
3. In this context, Mr Pham's actual role and position in the cultivation operation should be kept squarely in mind. Even though his involvement in the cultivation was as a crop sitter or a low-level functionary, his role was critical to the cultivation operation which, if successful, would have yielded 572 kilograms of leaves and flowering heads.[22]
4. There is no direct evidence of the likely harm such a quantity of cannabis might cause to the Australian community. I accept Judge Wischusen's observation that cultivation of narcotic plants causes great damage to members of the community, particularly the young. The likely harm includes the direct physical, financial and psychological harm caused to individuals as a result of the distribution, sale and consumption of the cannabis produced and the related public expenditure on policing, health services and the administration of justice.
5. With regard to the likelihood of Mr Pham engaging in further serious conduct, the risk of him doing so is low. Nevertheless, risk has a chameleon-like quality which is affected by static and dynamic factors which should be considered when determining if the level of risk is unacceptable:

It is well established that, where the harm which might be caused by future conduct is particularly serious, a lesser likelihood of the conduct occurring may be required for the risk to be identified at a level requiring a particular decision to be made. It is also well established that the likelihood of a person engaging in conduct in the future is affected by both static and dynamic factors: that is, factors which can be assessed objectively against statistical models to predict the risk category a person falls into, and dynamic factors personal to an individual which may moderate or exacerbate the risk the person otherwise could be said to pose. Those factors might include family support, alcohol and drug abuse patterns, employment and the like. [23]

6. On 6 November 2023, a risk assessment was undertaken using the Level of Service Inventory - Revised: Screening Version. Mr Pham's level of risk was reported to be Low.[24] This is consistent with Judge Wischusen's sentencing remarks,[25] and it is reinforced by Dr Sandra Nguyen, a clinical psychologist, who reported Mr Pham has many protective factors which reduce the risk of reoffending.[26] The protective factors Dr Nguyen identified include offers of employment should he be released into the community from previous employers[27] and personal and future oriented goals with his wife ... in that they want to build on their family unit and have a child together. They are committed to paying off their mortgage and provide a safe and secure home for their child in the future.[28]
7. Mr Pham has engaged in rehabilitation activities while he has been in prison. He completed drug-related programs, including a 24-hour Substance Awareness Program, a Cannabis and Me program and a Know the Score drug and alcohol program. He has also completed a large number of vocational courses.[29] I am satisfied these courses increase his vocational skills in hospitality, supply chain management, civil construction (including a forklift ticket) and English language.
8. There are letters of support from Mr Pham's sister, brother-in-law, aunt, uncle and several long-term friends in Vietnam which contextualise his offending conduct and attest to good qualities in his character.[30] This material reinforces the singular nature of Mr Pham's offence, and it paints a picture of Mr Pham as a thoughtful, caring, respectful person[31] who is kind-hearted, well-mannered, diligent and responsible towards his family.[32] This picture is buttressed by statements from people who have known Mr Pham in Australia,[33] who describe him as a gentle, thoughtful, and responsible person[34] who is hardworking, diligent, exemplary and trustworthy,[35] with a sense of responsibility, integrity and a strong will to correct his past mistakes.[36] Mr Pham's previous employers have each stated they will offer him employment should he be released into the community. On Dr Nguyen's evidence, future employment is likely to be a protective factor against Mr Pham reoffending.
9. Dr Nguyen reported Mr Pham has accepted responsibility for his offending conduct and sincere remorse for his offence.[37] She reported Mr Pham described his sorrow and shame as he recounted his poor judgment, naivety and the disgrace he has brought to his family by making them "lose face" to their extended family and community.[38] The doctor stated:

[Mr Pham] owned his errors in decision making and judgment as well as showing insight into the impact that his behaviours had to himself, his wife, his family as well as the community at large. His experience of being incarcerated has scared him and made him realise that he needs to change his life and make better choices under stress and pressure. He recognised that the only person he needs to care about and look after is his wife and not be pulled by others who may not have good intentions or his best interest at heart. > > Mr Pham acknowledged that he does need professional help and will seek psychological counselling to help him manage his anxiety as well as depressive symptoms, but also to help him to better understand himself, his decision making and behaviours.[39]

10. It is probable Mr Pham has a history of experiencing depressive and emotional symptoms which were reported in Judge Wischusen's sentencing remarks to support a diagnosis of an adjustment disorder.[40] It is reported Mr Pham subsequently experienced situational anxiety and he was unemployed and distressed by [his] financial situation when he agreed to water and look after plants in return for a sum of money.[41] It is probable his participation in this offending was financially motivated, and that [his] current presentation was partly explained by situational concerns.[42] Mr Pham has no significant history of substance abuse. Despite Mr Pham's avowed intent to seek psychological counselling and, on Dr Nguyen's evidence, the likely benefits of doing so, this is prospective and lacking a concrete plan.
11. It is probable the situational concerns included difficulties his wife experienced as a result of her enforced separation from Mr Pham. It is reported her mental health suffered when, for visa-related immigration reasons, Mr Pham departed from Australia in 2019 and, until 22 March 2021, he was unable to return while Covid-19 public health restrictions were in effect. On the evidence of Dr Syed Arif Ahmed (a general practitioner),[43] Radanika Molligoda (Ms Vo's treating psychologist) and Dr Nguyen, it is probable Ms Vo's mental health significantly deteriorated when Mr Pham was taken into custody and imprisoned.[44] I accept, as did Judge Wischusen, that Mr Pham's concerns for Ms Vo's health weigh upon him during the sentence imposed.[45] It is likely Mr Pham has been scared by his incarceration and the prospect of being sent back to Vietnam, and he is presently suffering from the Major Depressive Disorder with Anxious Distress Dr Nguyen diagnosed.[46] I am satisfied Mr Pham's close bond with and concern for his wife, with whom he intends to reside should he be released into the community, is a protective factor which reduces the risk of him reoffending.
12. Considering these matters, including the serious nature of his singular offence and the low level of risk of him reoffending, I am satisfied there is a low risk of harm to the Australian community should Mr Pham engage in further serious conduct.
13. Mr Pham is eligible for parole on 30 May 2026. Planning is underway.[47] In the event he is released on parole on the first eligible date, he will be subject to the terms of his parole until the completion of his sentence on 30 May 2028. Consequently, should the decision to cancel his Visa be revoked, Mr Pham would be released from prison into the Australian community under the terms of his parole. A 2-year period would follow in which his conduct and obedience to parole conditions would be monitored. This is a powerful protective factor against the low-level risk of Mr Pham reoffending during the term of his parole.
14. Overall, the primary protection consideration weighs against revocation of the decision to cancel Mr Pham's Visa.

1. The family violence consideration does not arise on the available materials. It does not weigh for or against revocation in this case.

Strength, nature and duration of ties to Australia

1. The strength, nature and duration of Mr Pham's ties to Australia must be considered. Section s 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:

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

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

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

   3. 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. Mr Pham has only one immediate family member in Australia: Ms Vo, who is an Australian citizen.
2. Mr Pham's ties to Australia are anchored by Ms Vo and he is Ms Vo's sole family member in Australia: her rock.[48] Huynh Thu Trang, a previous employer, colleague and friend of Mr Pham, described the bond between Mr Pham and Ms Vo as one of loyalty, kindness, and care.[49]
3. There is no dispute non-revocation of the decision to cancel Mr Pham's Visa is likely to have an adverse impact on Ms Vo. Ms Vo gave powerful evidence her life is in Australia, and she would not return to reside in Vietnam even though her mother and sister reside there and forced separation from Mr Pham would have a negative impact on her life. She explained:

If [Mr Pham's] visa cancellation is not revoked, it is not just him you are punishing. You are sentencing me to a life of loneliness and despair. To permanently separate us would be an act of extreme cruelty. It would destroy the family we have worked so hard to build and leave me to face an uncertain and painful future completely alone, while I struggle with my own serious mental health issues. I honestly do not know if I could survive it ... [50]

4. Mr Pham has spent almost 9 years in Australia after first arriving in September 2015. Of this, approximately 6 years have been spent in the community. Mr Pham has been in custody since December 2022.
5. The four statements of Mr Pham's previous employers and colleagues demonstrate he has a small but robust network of social links with people in Australia. While the immigration status of these four people is not apparent on the available materials, on the basis of the longevity of their association with Mr Pham, it is open to infer they have a right to reside permanently in Australia.
6. During the almost 6 years Mr Pham resided in the Australia community, it is probable he made a positive contribution through employment and legitimate economic participation for most of that time. His positive contributions in employment are demonstrated in the statements of his previous employers.
7. Considering these matters, the relatively short period Mr Pham has resided in Australia and the narrow links he has to the Australian community are offset somewhat by the enduring strength of the ties he has forged. This is so even though Mr Pham admitted he has not been in direct contact with some of the people who support him in these proceedings. On Dr Nguyen's evidence, which I accept, it is likely the shame Mr Pham experiences is reinforced by the significance of 'losing face' in the Vietnamese culture.[51] If this is correct, aside from any logistical difficulties stemming from the restrictions of prison life, it goes some way to explain Mr Pham reticence communicating directly with his previous employers.
8. I am satisfied the strength, nature and duration of Mr Pham's ties to Australia weigh in favour of revoking the decision to cancel his Visa.

1. On the available materials, there are no minor children whose best interests should be considered.
2. Consequently, this consideration is of neutral weight.

1. The expectations of the Australian community must be considered under s 8.5 of the Direction:

1. 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 they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia. 2. In addition, 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. 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:

(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.

(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

(4) 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.

1. The 'norm' expressed in s 8.5(1) is not directive of the outcome in any case even though it is generally adverse to any non-citizen who has breached the expectation they will be law-abiding while in Australia.[52]. The Government's views articulating Australian community expectations be applied. Nevertheless, the relevant facts must be considered when evaluating the character concern stemming from the adverse character assessment and the weight it should be given.[53]
2. The concern arising from Mr Pham's adverse character assessment relates to his disregard for Australian law and the harm which would be caused by the quantity of cannabis under cultivation in the criminal enterprise in which he participated, albeit as a low-level functionary or crop sitter. So much is reinforced by the remarks of Wischusen J when sentencing Mr Pham. The scale and sophistication of the cultivation increases the concern, although this is ameliorated somewhat by the low level of Mr Pham's involvement and his lack of any prior criminal record.
3. The concerns about Mr Pham's character are not attributable to conduct of the particular kinds specified in s 8.5(2) of the Direction. This and the risk of physical harm are not to the point. It is the seriousness of the character concern which is germane to attribution of weight, even though the offending or serious conduct is not within the terms of s 8.5(2).[54]
4. Considering these matters, I am satisfied the concern arising from Mr Pham's adverse character assessment and his serious conduct weighs against revocation of the decision to cancel his Visa, but not determinatively.

1. The 'other considerations' in s 9 of the Direction are generally to be given less weight than 'primary considerations'.

1. The legal consequences of the decision must be considered under s 9.1:

(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

2. The conception of legal consequences in any particular case requires consideration of practical reality for the person, in human terms,[55] of the legal framework of the decision as prescribed by the Parliament.
3. For Mr Pham, should the decision to cancel his Visa not be revoked, in all likelihood he would be taken into immigration detention following his release from prison, pending removal from Australia as soon as reasonably practicable thereafter. The only alternative scenario is for him to be granted another visa which permits him to remain in the Australian community. There is no suggestion the latter is under consideration. There is no evidence of the likely duration of Mr Pham's immigration detention.
4. Once removed from Australia, it is highly unlikely Mr Pham would satisfy the Special Return Criteria in s 5001(c) of Schedule 5 to the Migration Regulations 1994 (Cth) and be permitted to return to Australia.
5. Even though these are the effective consequences of policy, the practical effect in human terms of the legal consequences of a non-revocation decision is that Mr Pham would be held in detention, removed from Australia contrary to his wishes and, in practical terms, physically separated from his wife.
6. I am satisfied this consideration weighs in favour of revocation.

1. Section 9.2 of the Direction requires any impediments a non-citizen would face should they be removed from Australia to their home country to be considered:

(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: > > a) the non-citizen's age and health; > > b) whether there are substantial language or cultural barriers; and > > c) any social, medical and/or economic support available to them in that country.

2. Mr Pham alleges he will face significant impediments if he is returned to Vietnam. In his submission, his mental health is likely to be adversely affected by further separation from his wife and other difficulties re-establishing himself in Vietnam without a support network. He alleges he would not be able to obtain mental healthcare and he would face economic barriers as his skills are not transferable.
3. Mr Pham is 38 years old. He holds a Bachelor Degree in Business from La Trobe University, as well as other vocational qualifications in hospitality, civil construction and supply chain management. He speaks Vietnamese and has some English language skills. Having spent all his formative years in Vietnam, he is familiar with Vietnamese culture and society.
4. Mr Pham has family members in Vietnam, including a sister and an aunt and their families. He has people in Vietnam who provided letters of support.
5. Nevertheless, I accept Mr Pham would likely experience difficulties transitioning from his life in Australia to re-establish himself in Vietnam. It is likely he would experience emotional difficulties being separated from his wife, particularly as they aspire to have a child. The practical difficulties of achieving this aspiration in such circumstances are substantial and potentially lifelong.
6. It can be expected that Mr Pham might experience financial difficulties, at least until he obtains employment.
7. There is no evidence of the mental healthcare available to him in Vietnam. It can be accepted he might experience difficulties with his mental health and obtaining appropriate mental healthcare. On Dr Nguyen's evidence, presently, Mr Pham is not coping with his daily activities and struggles in managing his stress, depression and anxiety.[56] It is likely removal from Australia would have a negative effect on his mental health.
8. Considering these matters, I am satisfied Mr Pham would likely experience some adverse impediments if the decision to cancel his Visa is not revoked and he is removed from Australia to Vietnam.
9. This consideration weighs in favour of revocation.

1. This consideration is directed to Australian business interests:

(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.

2. Even though Mr Pham has offers of employment should he be released into the Australian community, no issues have been raised by either party in respect of any impact on Australian business interests in this case.
3. I am satisfied this consideration does not weigh for or against revocation of the Visa cancellation decision.

1. When weighing the relevant considerations, the protection of the Australian community is generally to be given more weight than other considerations. The safety of the Australian community is the Government's highest priority.
2. The protection consideration weighs against revocation of the decision to cancel Mr Pham's Visa. Mr Pham's offending conduct was serious but the risk he poses to the Australian community is low. Even though the scale and sophistication of the criminal cultivation enterprise was substantial, Mr Pham's role was that of a crop sitter, a low-level functionary who had no involvement setting up the enterprise and he did not stand to profit from the sale and distribution of any narcotic produced.
3. Mr Pham's offending was a singular occurrence in an otherwise unblemished record. It was opportunistic and informed by poor judgment in the context of financial difficulties, probable mental health symptoms, including depression and social anxiety, and a strong motivation to generate income to support the aspiration he and Ms Vo shared to have a child. There are protective factors which reduce the risk of him reoffending and causing harm to members of the Australian community.
4. I accept Mr Pham has been scared by his incarceration and dreads the prospect of being forced to return to Vietnam and separated from Ms Vo. He has completed rehabilitative programs and vocational courses, and he has expressed clear insight into his offending conduct. No concerns have been raised about Mr Pham's conduct and behaviour during the period of his incarceration.
5. Judge Wischusen and Dr Nguyen discussed the adverse effect of Mr Pham's offending conduct on Ms Vo, particularly on her mental health and financial circumstances. On Dr Nguyen's evidence, this has had a powerful effect on Mr Pham and his mental health. The strength of the bond between Mr Pham and Ms Vo and their evident love for each other is a powerful consideration underlying Mr Pham's avowed motivation to avoid causing her further harm or hardship. In the circumstances, this is a strong protective factor.
6. Members of his family and his previous employers have discussed attributes of Mr Pham's character which contextualise his offending conduct and the related adverse character assessment. I accept Mr Pham experiences deep shame for his conduct. I accept his expressions of remorse are genuine. This, too, is a strong protective factor in the circumstances.
7. These considerations reduce the weight of the protection consideration.
8. The consideration of Australian community expectations adds weight against revocation, but not greatly. The 'norm' expressed by the Australian government is attenuated somewhat by the character concern in the particular circumstances of Mr Pham's case. The seriousness of concerns about Mr Pham's character are reduced by the singular nature of his offending conduct in the context of situational concerns and the low level of his involvement in the cultivation enterprise. Mr Pham has no other record of criminality. Mr Pham has a small but robust network of social links to Australia through supportive, pro-social friends in the Vietnamese community, some of whom are his previous employers.
9. These considerations reduce the seriousness of concerns arising from Mr Pham's adverse character assessment and the weight that should be given.
10. Against these primary considerations, the strength, nature and duration of Mr Pham's ties to Australia weigh in favour of revoking the decision to cancel his Visa.
11. Mr Pham's ties to Australia are anchored by his marriage and the strong bond he shares with Ms Vo who is an Australian citizen. I accept the importance of this relationship to Mr Pham and Ms Vo, who has no other family in Australia. Mr Pham and Ms Vo each gave evidence their life is in Australia, together. I am satisfied Ms Vo is likely to experience substantial adverse impacts, including on her mental health, should the decision to cancel Mr Pham's Visa not be revoked. This increases the weight which should be given to this primary consideration.
12. Since first arriving in Australia in 2015, Mr Pham has been present in Australia for almost 9 years. For more than 6 years, he resided in the Australian community and made a positive contribution through employment and economic participation. His previous employers attest to his positive contribution. This is reinforced by their offers to employ Mr Pham should he be released into the Australian community.
13. Considerations relating to family violence and the best interests of minor children do not arise and add weight to the balance, one way or the other.
14. Other considerations are generally given less weight than primary considerations.
15. The legal consequences of not revoking the decision to cancel Mr Pham's Visa weigh in favour of revocation. The legal consequences of such a decision are, in all likelihood, that Mr Pham will be held in immigration detention once he is released from prison, pending removal from Australia. In the event Mr Pham is released on parole in May 2026, he would likely be held in detention until the completion of his sentence in May 2028, whereupon he would be removed from Australia. In human terms, as a matter of practicality, the legal consequences of holding Mr Pham in immigration detention and then removing him from Australia would result in Mr Pham being physically separated from Ms Vo. There is powerful evidence of the effect this is likely to have on her life and well-being.
16. It is probable Mr Pham would experience impediments if he is forcibly removed from Australia to Vietnam. I accept his mental health is likely to be adversely affected, particularly as a result of separation from Ms Vo, and it is possible he might experience difficulties obtaining appropriate treatment in Vietnam, particularly if he is in financially straitened circumstances. Otherwise, Mr Pham has some family members and associates or friends in Vietnam. He is familiar with the culture and society of Vietnam, and he speaks Vietnamese.
17. Consequently, while the impediments Mr Pham is likely to experience if he is removed from Australia to Vietnam add weight in favour of revoking the decision to cancel his Visa, the additional weight attributable to this consideration is slight.
18. Weighing all the relevant considerations, on balance, I am satisfied the primary considerations against revoking the decision to cancel Mr Pham's Visa, including the protection consideration and consideration of Australian community expectations, are outweighed by the primary and other considerations weighing in favour of revoking the Visa cancellation decision, including Mr Pham's ties to Australia, most importantly his ties to Ms Vo and the likely adverse impact on her of a non-revocation decision, as well as the legal consequences of the decision and the extent of impediments if he is removed from Australia to Vietnam.
19. There are no additional matters to consider arising from the materials or the submissions of the parties.
20. In conclusion, even though Mr Pham does not pass the character test, for the purposes of s 501CA(4)(b)(ii), I am satisfied there is another reason to revoke the decision to cancel Mr Pham's Visa.
21. That being so, the decision of the Minister's delegate on 13 August 2025 is set aside and the decision to cancel Mr Pham's Visa is revoked.

1. The decision of the Minister's delegate on 13 August 2025 is set aside and in substitution thereof the Tribunal decides under s 501CA(4) of the Act to revoke the decision to cancel Mr Pham's Class BC Subclass 100 Partner visa.

[20] Minister for Immigration and Citizenship v Obele [2010] FCA 1445, [59].

[21] Nigro v Secretary to the Department of Justice [2013] VSCA 213, [130].

[23] Tanielu v Minister for Immigration and Border Protection [2014] FCA 673, [102].

[52] FYBR v Minister for Home Affairs [2019] FCAFC 185, per Charlesworth J at [75] and Stewart at [89].

[54] Plaintiff S22-2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36, per Gageler CJ, Edelman and Jagot JJ, [26].

[55] NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, [9].