1. Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act. Section 499(2A) provides that a person or body must comply with a direction under s 499(1).
2. Such a direction has been given under s 499 of the Act, being Ministerial Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA ('Direction 110'). The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under s 501 and 501CA of the Act.[1]
3. Paragraph 5.1(2) of Direction 110 provides that under s 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
4. Paragraph 5.2 of the Direction contains principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under s 501. The factors (to the extent they are relevant in a particular case) that must be considered in making a decision under s 501 of the Act are identified in Part 2 of the Direction.
5. The principles as set out under paragraph 5.2 are as follows:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community. > > (2) The safety of the Australian Community is the highest priority of the Australian Government. > > (3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia. > > (4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. > > (5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. > > (6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. > > (7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. > > (8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

6. Paragraph 6 of the Direction provides that 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.
7. Paragraph 7 of the Direction provides guidance in 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.

8. Paragraph 8 of the Direction states that 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.

9. Paragraph 9(1) provides that the following other considerations must also be taken into account where relevant in accordance with their provisions. The other considerations include (but are not limited to):

a) legal consequences of the decision; > > b) extent of impediments if removed; > > c) impact on Australian business interests.

1. The Tribunal needs to determine the following issues in this review:

(a) Whether the Applicant passes the character test as defined by s 501(6) of the Act; and > > (b) If the Tribunal is satisfied that the Applicant does not pass the character test, whether the discretion to refuse to grant the visa under s 501(1) should be exercised.

1. It is useful to set out a comprehensive history of the Applicant's immigration status and offending history in Australia.

1. The Applicant was born in Vietnam in 1990.
2. He first arrived in Australia on a Student visa on 4 October 2013 as a 23-year-old.[2] He has remained in Australia since that time.

1. On 23 September 2014, the Applicant was arrested by Victoria Police for offences relating to cultivation of a narcotic plant (cannabis) at a residential property in Melbourne's north-eastern suburbs.[3]
2. On 12 November 2014, the Applicant was granted bail and taken into immigration detention.[4]
3. On 18 March 2015, the Applicant was sentenced at the Melbourne County Court to one charge of cultivate a narcotic plant (cannabis) in not less than a commercial quantity and one charge of theft of electricity.[5]
4. On the cultivation charge the Applicant was sentenced to 12 months' imprisonment. On the theft of electricity charge the Applicant was sentenced to two months' imprisonment, which was ordered to be served concurrently.[6] The Applicant was also ordered to pay $11,638.21 in compensation representing the amount of electricity stolen at the premises.[7] The head sentence therefore was 12 months' imprisonment. A period of 51 days was declared as pre-sentence detention.
5. At the expiration of his prison sentence on 26 January 2016, the Applicant was taken into immigration detention.[8]
6. On 23 March 2016, the Applicant was released from immigration detention.[9]

1. On 28 May 2021, the Applicant was arrested in relation to the drug trafficking activities of his co-offender.[10]
2. On 15 July 2022, the Applicant was sentenced at the Melbourne County Court to two charges of trafficking a drug of dependence and one charge of possession of a drug of dependence.[11] The first charge relates to the trafficking of heroin.[12] In relation to that charge the Applicant was sentenced to 12 months' imprisonment.[13] The second charge relates to the trafficking of methylamphetamine.[14] In relation to that charge the Applicant was sentenced to eight months' imprisonment, with 45 days of that sentenced ordered to be served cumulatively on the first charge.[15] The final charge relates to the possession of a small quantity of cannabis.[16] On that charge, the Applicant was convicted and discharged.[17] The total effective sentence therefore was one year and 45 days imprisonment. The sentencing judge declared that the Applicant had already served that entire amount by way of pre-sentence detention.[18]
3. The Applicant was therefore released from custody on 15 July 2022. He was taken into immigration detention the same day.[19] He has remained in immigration detention since that time.[20]

1. On 1 June 2023, the Applicant appeared at the Melbourne Magistrates' Court on one charge each of fail oral fluid test w/in 3hr of driving, unlicensed driving and state false name or address.[21] These offences were alleged to have occurred on 17 February 2021.[22] The Applicant appeared via video from immigration detention in relation to this matter.
2. On each of the charges, the Applicant was sentenced to an aggregate fine of $400 without conviction.

1. On 22 January 2015, the Applicant applied for a Protection visa.[23]
2. On 27 February 2015, the Protection visa application was refused by the Department.[24]
3. On 31 August 2022, the Tribunal (differently constituted) affirmed the decision not to grant the Applicant a Protection visa.

1. On 11 October 2019, the Applicant applied for a Partner (Temporary) (Class UK) visa.[25]
2. On 27 August 2024, the Department issued the Applicant with a Notice of intention to consider refusal of the Partner visa under s 501(1) of the Act.[26]
3. On 24 September 2024, the Applicant's representative made submissions to the Department in relation to the Notice to consider refusal of the Partner visa.[27]
4. On 16 December 2024, a delegate of the Respondent decided to refuse to grant the Applicant the Partner visa under s 501(1) of the Act.[28] The delegate found that the Applicant failed to meet the character test on the basis of his 2022 convictions.[29] The delegate decided to exercise the discretion to refuse to grant the Applicant a Partner visa.[30]
5. On 19 December 2024, the Applicant applied to the Tribunal for review of this decision.[31]
6. On 12 March 2025, the Tribunal (differently constituted) decided to set the decision under review aside and substitute it with the decision that the discretion to refuse to grant the Applicant's Partner visa not be exercised.[32]
7. The Applicant remained in immigration detention following this decision.

1. On 28 April 2025, the Applicant applied for a Bridging visa E.[33]
2. On 2 May 2025, the delegate refused to grant the visa on the basis that the Applicant did not satisfy the requirements in cl 050.233 in Schedule 2 of the Migration Regulations 1994 (Cth). This clause specifies that the Minister must be satisfied that, if a bridging visa is granted to an applicant, the applicant will abide by the conditions (if any) imposed on it.[34] In the Applicant's case the delegate was not satisfied that the Applicant would comply with the following discretionary conditions if the visa was granted:[35]

(a) 8101 - No work; > > (b) 8207 - No study; > > (c) 8506 - Must notify address; > > (d) 8564 - Must not engage in criminal conduct.

3. The Applicant sought review of this decision to the Tribunal. On 14 May 2025, the Tribunal (differently constituted) set aside the decision under review and remitted the matter for reconsideration in accordance with the order that the Applicant satisfies cl 050.233.[36] The Tribunal further ordered that the primary decision-maker indicate to the Applicant that conditions 8506 and 8564 will be imposed if the visa is granted.[37]
4. On 18 July 2025, the Department issued a Notice of intention to consider refusal of the Bridging visa E under s 501(1) of the Act.[38]
5. On 21 July 2025, the Applicant's representative made submissions to the Department in relation to the Notice to consider refusal of the Bridging visa E.[39]
6. On 9 September 2025, a delegate of the Respondent decided to refuse to grant the Applicant a Bridging visa E under s 501(1) of the Act.[40] The delegate found that the Applicant failed to meet the character test on the basis of his 2022 convictions.[41] The delegate decided to exercise the discretion to refuse to grant the Applicant a Bridging visa E ('the visa refusal decision').[42]
7. On 11 September 2025, the Applicant was notified of the visa refusal decision.[43]
8. On 17 September 2025, the Applicant applied to the Tribunal for review of the visa refusal decision.[44]

1. The Tribunal hearing was held on 19 November 2025. The Applicant gave evidence and was cross-examined. He gave evidence with the assistance of a Vietnamese interpreter. He did not call any other witnesses.
2. Prior to giving evidence he was advised about his privilege against self-incrimination and he indicated that he understood this privilege.
3. The Tribunal received into evidence a combined Hearing Bundle as Exhibit R1. The Bundle comprised 693 pages of material which contained the following:

(a) Applicant's Statement of Facts, Issues and Contentions (Applicant's SOFIC) dated 22 October 2025 plus annexures; > > (b) Applicant's Statement in Reply dated 12 November 2025 plus annexures; > > (c) Respondent's G-documents; > > (d) Respondent's Statement of Facts, Issues and Contentions dated 4 November 2025 (Respondent's SOFIC); and > > (e) Respondent's Tender Bundle.

4. At the outset of proceedings, the Applicant's representative raised a preliminary issue canvassed in their SOFIC, namely that the decision of the delegate made in relation to this visa on 9 September 2025, is based on the same grounds relied upon by the delegate to refuse to grant his Partner visa on 16 December 2024.[45] It was submitted that this proceeding is based on the same issues of fact and law, and there is no new allegation against the Applicant concerning anything he had done since the previous Tribunal decision of 12 March 2025.[46] In his written submissions, the Applicant argued that the Respondent should be estopped from raising grounds that had already been explored and disposed of in the previous proceedings.[47]
5. At the Tribunal hearing, the Applicant indicated that he no longer sought to press the estoppel argument but did maintain that the Tribunal is effectively being asked to reconsider its own decision given the facts and circumstances in the case remain largely the same.
6. By way of oral argument, the Respondent submitted that the proceedings currently before the Tribunal concern a separate decision and are now before the Tribunal differently constituted and the Tribunal is not estopped from considering the matter. The Tribunal noted that these preliminary issues raised by the Applicant's representative in his SOFIC were not addressed at all by the Respondent in its SOFIC. The Tribunal allowed the Respondent to make some brief written submissions on this issue which the Tribunal ordered be filed by 5pm on 21 November 2025.
7. The Tribunal otherwise indicated to the Applicant that it had regard to their submissions but had formed a preliminary view that the delegate had made a separate decision in regard to the Bridging visa E such that it would proceed to hear and decide the Applicant's review in the usual manner, given the timeframe within which the Tribunal must make its decision.[48] The Applicant did not object to this course and the hearing proceeded.

1. The Respondent filed its written submissions on this preliminary matter on 21 November 2025. The Respondent contends that although the current decision under review may involve similar or overlapping facts or issues, that does not render the doctrine of estoppel applicable.[49] It is contended this current visa refusal decision under s 501(1) is a separate exercise of statutory power by the Minister or their delegate, and each decision must be reviewed on its merits.[50]
2. The Respondent drew the Tribunal's attention to the decision of Minister for Immigration and Border Protection v Makasa ('Makasa').[51] It is argued that the circumstances of Makasa are distinguishable because the present matter relates to a separate application for a separate visa, and the power exercised in this case is under s 501(1) rather than s 501(2). Makasa involved an exercise of power under s 501(2) in relation to the same visa type, albeit on new facts and circumstances.[52]
3. The Tribunal accepts the Respondent's contentions that the decision before this current Tribunal is a separate exercise of statutory power in relation to a new application for a different visa type. The Tribunal accepts this contention because, although the delegate reached the same conclusion on largely the same facts and circumstances, the delegate was exercising its powers and functions in relation to a separate visa application. On this basis, the Tribunal considers that the refusal power in s 501(1) exercised on 9 September 2025 was valid, and as such the Tribunal has jurisdiction to review the decision pursuant to s 500(1)(b) of the Act.

1. The Applicant told the Tribunal he has been in custody and then immigration detention since 28 May 2021.
2. He told the Tribunal he loves his wife and children very much and wants to build a family in Australia. He said he has future plans to become a nurse and work in aged care. He said he has undertaken qualifications in nursing in Vietnam and plans to undertake further training in aged care in Australia should he be released into the community.
3. He said he has not committed any offences since 28 May 2021. He agreed that he has been the subject of several incidents in immigration detention but that he hasn't been charged or disciplined in relation to those matters. He said he doesn't have any intention to commit further offences in Australia. He has experienced the consequences of his offending and said he will not re-offend. He continues to enjoy the full support of his family and friends.
4. The Applicant indicated that he has already made available to the Tribunal all the facts and evidence upon which he wishes to rely.
5. During cross-examination, the Applicant was taken to an incident that occurred in immigration detention on 27 January 2025.[53] The Applicant stated that on this occasion he was preparing to participate in his Tribunal hearing for his Partner visa application, and another detainee started making trouble for him. He said the other detainee started the incident. The pair exchanged words but there was no physical altercation.
6. The Applicant was then questioned about another incident which escalated into a physical altercation. The Applicant said the other detainee was attempting to lunge towards him but the officer pushed the detainee down. He said after the pair were separated by security, the other detainee kept insulting him. The Applicant said the other detainee started the incident.
7. The Applicant was then taken to his National Criminal History Check.[54] He agreed that the Criminal History Check is accurate. He was also taken to certain parts of the sentencing remarks for his first appearance before the Melbourne County Court in 2015.[55] He also agreed that the facts stated within those remarks are accurate.
8. He said he committed the offending because at the time he was studying and his parents in Vietnam had separated. He said their separation affected his mental state. His father was also admitted to hospital and his mother was trying to reconcile with his father at the time.
9. He said his family was under financial strain and he felt the need to support his family financially and to help pay the hospital fees for his father. He said he was young and naive at the time and made the wrong decision to get involved in the offending. He said he was 24 years old at the time. He agreed the sentencing judge made the following remarks to him when sentencing him in 2015:

I sentence you on the basis that it is unlikely you will commit this offence again. If you remain in Australia, if you return to Vietnam, your family is in Vietnam to support you and you have a qualification after a three year course of working in a hospital. If you remain in Australia I notice there are four people in court to support you.[56]

10. The Applicant agreed that he did commit further offending in 2021. He was taken to certain paragraphs in the sentencing remarks of the County Court in 2022.[57] He agreed that those facts were accurate.
11. He said he is no longer in contact with the principal offender. His last contact with him was before he was arrested in 2021.
12. He said he committed this offending because he had become a father for the first time and his wife was struggling with post-natal depression. His family was in Vietnam and could not support him because of the COVID lockdowns. He said his visa status was also in limbo because he was still awaiting the outcome of his Partner visa application at the time.
13. The Applicant said that by accident he met the co-offender when shopping in Richmond in September 2020. He knew his co-offender from his previous incarceration in 2015. He asked his co-offender whether he knew of any casual jobs available to support his income. At the time the co-offender was living by himself and said he needed help with cooking and cleaning, and he offered the Applicant $110 per day. The Applicant accepted this offer and moved into His co-offender's premises. He said during that time, the co-offender said to him friends would be bringing packages to his house. The Applicant asked him about the packages but his co-offender declined to answer.
14. The Applicant said at the time he felt stressed and depressed. He reported this to his co-offender who suggested he use illicit substances to calm his mind. The Applicant then commenced using methylamphetamine, and without knowing, he soon became addicted. He said once he was addicted, the co-offender used him as his 'assistant.' The Applicant said he knew he was doing the wrong thing but he was already dependent on the substances. He said he received no money from his co-offender but was instead paid in methylamphetamine. He said he no longer takes methylamphetamine and hasn't used since before his arrest on 28 May 2021.
15. The Applicant said he had no intention to re-offend but he felt that the situation was beyond his control. He said he is very remorseful for his offending. He said if he was faced with the same stressors again, he would not re-offend. He said he, his family and the community have already suffered so many consequences as a result of his offending.
16. He agreed he hasn't done any rehabilitation or courses on drug addiction in prison but that his drug screens have always been clear. He said during his time in detention, he has spoken with an alcohol and drug counsellor on about two or three occasions.
17. The Applicant was then asked about his family in Vietnam. He said his parents and sister still reside there and he would live with them if he had to return. He agreed he would be able to work as a nurse in Vietnam.
18. He was then asked about an employment opportunity at CTA Corporation Pty Ltd in Australia. He said that offer of employment is still current and they are willing to offer him training. He was asked specifically about claims that this company would be impacted if the Applicant could not work there.[58] He said the company still wants him to work there and are still willing to support him.
19. The Tribunal then clarified with the Applicant that he had further findings of guilt in June 2023 although those matters didn't appear on his National Criminal History Check. He agreed that the records in the Hearing Bundle are accurate and he was fined an aggregate of $400 without conviction on those matters.[59] He agreed that those offences took place on 17 February 2021.
20. He also confirmed that his parents live with his older sister in Vietnam and her two children. He confirmed he has one minor child in Australia. His minor child visits the Applicant in immigration detention once a week and has done so since he was first detained. He said otherwise he has daily phone calls and video calls with her.
21. The Applicant also confirmed that the offers of employment previously made to him are still current. He confirmed he wishes to pursue a career in aged care nursing. He was asked whether he had undertaken any queries in regard to this and he said he had, and he will need to do an English course before he can apply for nursing.

1. The Applicant contends that throughout the previous proceedings and until the present time, the Applicant's circumstances have not changed.[60] It is submitted that he has not re-offended and still enjoys the full support of his family and friends.[61] The Applicant otherwise continues to rely on all the facts, evidence and information previously provided and contends that the decision under review be set aside, and there be a decision not to refuse to grant the Applicant his visa.[62]
2. The Applicant conceded during his closing submissions that he fails the character test.

1. The Respondent contends that the decision under review should be affirmed.[63] The Respondent contends that primary considerations one and five weigh in favour of affirming the decision under review and outweigh the primary and other considerations that may weigh in the Applicant's favour.[64] The Respondent further notes that primary consideration one is generally to be given greater weight than the other primary considerations.[65]
2. The Respondent contends that the Applicant's repeated convictions for drug offences ought to be regarded as serious offending and that the Australian community is entitled to expect that visa holders will not proliferate harmful drugs amongst the community.[66] It is submitted that the Applicant's previous custodial history and sentences of imprisonment ought to weigh heavily against him.[67] The Respondent submits that there is a substantive risk that the Applicant will re-offend in the future.[68] The Respondent also contends that the Australian community would expect that the Applicant's visa application remain refused given the seriousness of the offending.[69]

1. The Tribunal needs to determine whether the Applicant passes the character test according to the definition in 501(6) of the Act. Section 501(6)(a) provides that a person fails the character test if the person has a substantial criminal record. Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
2. On 15 July 2022, the Applicant was sentenced to a term of imprisonment of one year and 45 days. The delegate found by virtue of this sentence the Applicant fails the character test.[70] The Applicant also concedes that he fails the character test.
3. The Tribunal finds the Applicant fails the character test according to the definition in s 501(6)(a) because of the sentence received on 15 July 2022. He fails the character test because he has a substantial criminal record according to that definition in s 501(7)(c) by virtue of being sentenced to a term of imprisonment of 12 months or more.
4. The Tribunal is therefore satisfied that the Applicant fails the character test.

Should the discretion in s 501(1) be exercised to refuse to grant the Applicant his visa?

1. Having been satisfied that the Applicant does not pass the character test, the Tribunal must consider whether the discretion in s 501(1) should be exercised to refuse to grant the Applicant his visa. In making a decision under s 501(1), the Tribunal must comply with the terms of Direction 110 and apply it to the specific circumstances of the Applicant's case.

Primary consideration one: Protection of the Australian community

(1) When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. > > (2) Decision-makers should also give consideration to: > > a) the nature and seriousness of the non-citizen's conduct to date; and > > b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

2. In accordance with paragraph 8.1(1), the Tribunal has kept in mind that the safety of the Australian community is the highest priority of the Australian Government. The Tribunal has also had regard to the principle that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been law abiding, respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
3. The Tribunal has also considered the matters raised at paragraph 8.1(2) of Direction 110 as follows.

1. Paragraph 8.1.1(1) provides that 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 factors identified in that sub-paragraph. Paragraph 8.1.1(1)(a) identifies a non-exhaustive list of crimes or conduct that are viewed very seriously by the Australian Government and the Australian community. These crimes or conduct include violent and/or sexual crimes and acts of family violence regardless of whether there is a conviction imposed.
2. Paragraph 8.1.1(1)(b) identifies a non-exhaustive list of crimes or conduct that are considered by the Australian Government and the Australian community to be serious. They include crimes committed against vulnerable members of the community and crimes committed while the non-citizen was in immigration detention.
3. The Tribunal considers that the crimes or conduct of which the Applicant was convicted of in 2015 and 2022 can be considered as serious. The paragraphs in the sentencing remarks that the Applicant was taken to during his cross-examination and to which he agreed accurately reflect the offending are as follows.
4. In relation to the 2015 offending, the Applicant pleaded guilty to cultivation of a narcotic plant, namely cannabis in not less than a commercial quantity. This offending took place between 1 July and 23 September 2014.[71] The Applicant also pleaded guilty to theft of electricity which also took place between those dates.[72] The maximum penalty in relation to the cultivation charge is 25 years imprisonment, and 10 years imprisonment in relation to the theft charge.[73]
5. When police searched the premises, they located 211 cannabis plants which weighed 43.833 kilograms.[74] It was further alleged that the Applicant stole electricity by way of an electrical bypass installed at the premises to the value of $11,638.21.[75]
6. The sentencing judge regarded the cultivation as "sophisticated" as it included hydroponic equipment, chemicals, an electrical bypass and various set-ups in a number of rooms with plants at different stages of their maturation.[76] The sentencing judge also noted that the Applicant was living at the premises at the time which Her Honour inferred was to "give the impression to passers-by that the premises were occupied."[77]
7. In relation to the 2022 offending, the Applicant pleaded guilty to two charges of trafficking in a drug of dependence and one charge of possession of a drug of dependence.[78] The maximum penalty for the trafficking charge is 15 years imprisonment.[79]
8. Victoria Police undertook an investigation into the drug trafficking activities of his co-offender. His co-offender trafficked methylamphetamine and heroin with the assistance of a number of co-accused including the Applicant.[80] The prosecution alleged that the Applicant was working for his co-offender and utilised three properties across Melbourne to prepare, store and distribute the drugs.[81]
9. The Applicant pleaded guilty to trafficking heroin between 5 December 2020 and 25 May 2021.[82] During the police execution of search warrants on 28 May 2021, police located methylamphetamine at the premises and in vehicles on the premises.[83] The prosecution alleged that the methylamphetamine in the premises and in the vehicles was possessed for the purposes of sale.[84] Police also located a small quantity of cannabis which was the basis of the possession charge.[85] The sentencing judge noted that the Applicant was involved in drug activities that were clearly organised, planned and involved substantial quantities of drugs.[86] Her Honour regarded the Applicant's offending to sit within the mid-range for this type of offending.[87]
10. The Tribunal notes that the Applicant was also convicted in June 2023 for drink driving and traffic offences. The Applicant was fined without conviction in relation to those charges. The summary of facts in relation to these matters is not in evidence before the Tribunal. In those circumstances, the Tribunal gives the June 2023 offences very limited weight in its overall consideration of the Applicant's crimes or conduct to date.
11. The Tribunal finds that the Applicant's 2015 and 2022 offences can be considered as serious. The Tribunal has considered the remainder of the factors at paragraph 8.1.1(1) of Direction 110 as follows.
12. The Tribunal has had regard to the sentences imposed by the courts for the 2015 and 2022 offending. The Tribunal notes that although the offences of cultivate narcotic plant and trafficking a drug of dependence attract a maximum penalty of 25 and 15 years respectively, the Applicant was sentenced to 12 months imprisonment on these charges. The Tribunal notes that the sentencing judge on each occasion gave the Applicant a significant discount for his early plea of guilty.[88] The sentencing judge also took into account the Applicant's prospects of rehabilitation which were described as "reasonable' for the 2022 offending.[89] In regard to the 2015 offences, Her Honour gave little weight to specific deterrence, and gave weight to his rehabilitation prospects.[90] These findings are to the Applicant's credit. In those circumstances, although these offences attract substantial maximum penalties it is significant that a sentence of 12 months imprisonment was imposed for each charge, in particular for the charge that attracted a maximum penalty of 25 years. The Tribunal considers that these sentences reflect the community's denunciation of such conduct, but otherwise take into account the Applicant's remorse and prospects for rehabilitation. The Tribunal therefore considers that although the terms of imprisonment weigh against the Applicant, that weight is moderated when one considers the maximum penalty available for each of these offences (paragraph 8.1.1(1)(c)).
13. There is no question that drug offending has a negative impact on the users of such substances, their families and the community in general. The sentencing judge in respect of the 2022 offences noted that although there is no victim impact statement in this matter, "it is clear and well-known that drugs cause substantial harm to the community" and there is a need to deter others from similar offending.[91] This factor weighs heavily against the Applicant given his repeated drug offending (paragraph 8.1.1(1)(d)).
14. The Applicant's offending spanned a significant period of time and increased in seriousness from "crop-sitting" on the first occasion, to trafficking in illicit drugs on the second occasion. Although the offending cannot be described as 'frequent', in the Tribunal's view it did increase in seriousness. This factor weighs against the Applicant (paragraph 8.1.1(1)(e)).
15. The cumulative effect of the Applicant's repeated drug offending would likely have caused significant harm to the Australian community through the cultivation and trafficking of drugs. It is significant that he wasn't deterred from further drug offending when he was sentenced in 2015. This factor weighs heavily against the Applicant (paragraph 8.1.1(1)(f)).
16. There is no evidence that the Applicant provided false or misleading information to the Department (paragraph 8.1.1(1)(g)).
17. There is no evidence that the Applicant has been formally warned or made aware in writing about the consequences of further offending. The Applicant did have periods in immigration detention in 2014 and following the completion of his first prison sentenced in 2016. However, there is no evidence that he was formally warned about the consequences of further offending at that time. This factor is given neutral weight (paragraph 8.1.1(1)(h)).
18. The factor listed at paragraph 8.1.1(1)(i) (offending committed in another country) is not relevant to the Applicant and weighs neutrally.
19. The Tribunal has had regard to the above factors in considering the nature and seriousness of the Applicant's criminal offending. The Tribunal considers that the Applicant's offending can be regarded as serious. The Applicant's repeated drug offending had the potential to cause significant harm to its victims, their families and the Australian community in general. The nature and seriousness of the Applicant's offending weighs in favour of exercising the discretion to refuse to grant the Applicant his visa.

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

1. Paragraph 8.1.2(1) of Direction 110 provides that in considering the need to protect the Australian community from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The Direction provides that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk it may be repeated is unacceptable.
2. Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and > > b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account: > > 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.

3. This paragraph requires decision-makers to consider the risk to the Australian community should a non-citizen engage in further offending or other serious conduct. In assessing risk, decision-makers are to have cumulative regard to the nature of the harm should the non-citizen engage in further criminal or other serious conduct and the likelihood of that occurring, taking into account information and evidence on risk, and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence.
4. The Tribunal considers that the nature of the harm should the Applicant re-offend to be extremely serious. Drug use and drug addiction can cause physical, psychological and financial harm to its victims, their families and the Australian community. The nature of the harm that could be caused if the Applicant re-offended in a similar manner can't be overstated.
5. The Tribunal has also considered the likelihood of the Applicant engaging in further criminal or other serious conduct. The Tribunal has had regard to paragraph 8.1.2(1) of Direction 110 which provides that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The Direction notes that some conduct and the harm that would be caused is so serious that any risk it may be repeated may be unacceptable.
6. The Tribunal has before it a psychological report from Mr Warren Simmons, psychologist, dated 3 June 2022.[92] The Applicant disclosed to Mr Simmons that he commenced smoking methamphetamine six months before he was placed on remand for the 2022 offences.[93] The Applicant stated that he and his wife were experiencing emotional difficulties after the birth of their first daughter, and he found that methamphetamine lifted his mood and provided an escape.[94]
7. Mr Simmons noted that there was little in the Applicant's personal history to suggest that he would be vulnerable to substance use, and that it appeared he only started using drugs in the context of family problems following the birth of his first child.[95] Mr Simmons suggested that the Applicant may benefit from a short episode of drug and alcohol counselling with a focus on increasing self-efficacy, harm minimisation and relapse prevention strategies.[96] In his opinion, the Applicant did not appear to have a significant problem with substance use and there were no significant psychiatric difficulties.[97] Mr Simmons assessed the Applicant as having good prospects for rehabilitation given his lack of antisocial behaviour in the past, the presence of a stable relationship, and a history of attempting to build a career for himself.[98]
8. The Applicant gave evidence to the Tribunal that he has engaged with an alcohol and drug counsellor two or three times in immigration detention but has done this "privately" and not in the context of any formal drug rehabilitation programs. He told the Tribunal he hasn't used illicit substances since his arrest for the 2022 offences and his drug screens have been clear. He told the Tribunal that he would approach situations differently if he was faced with stressors in the future. In his most recent written statement to the Tribunal (dated 2 February 2024) the Applicant committed to not committing any criminal offences in the future, and that he is motivated to seek stable employment, be a good citizen and contribute to the Australian community.[99]
9. The Applicant also told the Tribunal that he would not commit any further offences and has realised that his actions have had significant consequences. The Tribunal also notes that the Applicant has been in custody and then immigration detention since 28 May 2021. There is no evidence before the Tribunal that he has committed any offences in custody, or in immigration detention. Although the Applicant has been reported to have been involved in five major incidents and 16 minor incidents in immigration detention, these incidents span the period the Applicant has been in immigration detention with the first incident occurring on 7 January 2015,[100] and the last reported incident occurring on 20 February 2025.[101] The Tribunal notes that as of the date of the Client Incident Report (being 9 July 2025)[102] the Applicant had been in immigration detention for 1,272 days.[103] Giving the length of the Applicant's period in detention, the Tribunal does not consider that a total of 21 incidents over a span of 1,272 days does not equate to a risk of re-offending if the Applicant were released into the community.
10. The Tribunal considers that the information and evidence suggest that the Applicant's risk of reoffending is tied to personal, financial and other life stressors. The Applicant did not present to Mr Simmons as a person who is vulnerable to substance use, although he had used substances in the past. The Applicant told the Tribunal he has a plan to undertake training in aged care nursing in the future as a means to provide for his family. However, the Tribunal also notes that the community's tolerance for future harm becomes lower as the risk of the potential harm increases. In the Applicant's case, the harm that would be caused if he re-offended in a similar manner is so serious that any risk he may do so is unacceptable. This factor weighs heavily against the Applicant.
11. As this case involves visa refusal, the Tribunal has considered 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 (paragraph 8.1.2(2)(c)). The Tribunal doesn't consider that the Applicant's risk of harm is affected by any of these factors and considers that this factor weighs neutrally.

1. The Tribunal considers that this primary consideration as a whole weighs heavily in favour of exercising the discretion to refuse the Applicant his visa. The Tribunal considers the community needs to be protected from future drug offending given the nature and seriousness of this type of offending. The harm that would be caused if it were to be repeated is unacceptable.
2. The Tribunal has afforded this primary consideration greater weight given the nature and seriousness of the offending in accordance with the guidance at paragraph 7(2) of the Direction.

Primary consideration two: Family violence committed by the non-citizen

1. 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. Paragraph 8.2(2) provides that this consideration is relevant in circumstances where the non-citizen has been convicted or found guilty of an offence involving family violence or has been involved in the perpetration of family violence.
2. There is no evidence that this primary consideration applies to the Applicant's circumstances.
3. This primary consideration is therefore afforded neutral weight in the balancing exercise.

Primary consideration three: The strength, nature and duration of ties to Australia

1. Paragraph 8.3 of the Direction provides that decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia. This primary consideration also provides that where consideration is being given to cancel a visa or whether to revoke the mandatory cancellation of the 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 how long the non-citizen has resided in Australia, and the strength, duration and nature of any family or social links to Australian citizens, permanent residents and/or people who have an indefinite right to remain in Australia.
2. The Applicant has identified the following immediate family members residing in Australia that would be affected by a visa refusal decision:

(a) The Applicant's wife; > > (b) His adult step-son; and > > (c) His minor daughter.

3. The Respondent acknowledges that the Applicant's wife would be significantly negatively impacted by a visa refusal decision.[104] The Tribunal has had regard to the written statements of the Applicant's wife and the psychological reports that have been prepared on her behalf.[105] The Tribunal has had particular regard to a recent letter from psychologist Dr Sandra Nguyen who confirmed that she has been treating the Applicant's wife for over five years.[106] Dr Nguyen reported that the Applicant's wife presents with an Adjustment Disorder with mixed anxiety and depressed mood regarding the ongoing uncertainty of her husband's visa status.[107] Dr Nguyen further reported that the Applicant's wife is worried about the impact of a visa refusal decision on her daughter as well as herself.[108] Dr Nguyen previously diagnosed the Applicant's wife with a major depressive disorder with post-partum onset in her report dated 27 January 2020.[109] At the time, she supported the Applicant's application to remain in Australia based on the psychological effects his removal would have on his wife's emotional and psychological well-being.[110] Dr Nguyen's treatment of the Applicant's wife remains ongoing according to the most recent report of 12 November 2025.[111]
4. The Tribunal has had regard to the above evidence and considers that the Applicant's wife would be significantly negatively impacted by a visa refusal decision. The Tribunal notes that the Applicant's wife has had mental health challenges in the past and that her treatment is ongoing. Although the Applicant attributed the cause of his 2022 offending to the stressors caused by the birth of his first daughter and his wife's mental ill health at the time, the Tribunal notes that his wife is currently being supported by a psychologist and her treatment remains ongoing at this time. Given the significant negative impact a visa refusal decision would have on the Applicant's wife, this factor weighs against exercising the discretion to refuse to grant the visa.
5. The Respondent also accepts that the Applicant has a close relationship with his step-son.[112] The Tribunal has had regard to the Applicant's wife's statement dated 5 January 2024 which described the close bond that the Applicant shares with his step-son.[113] The Tribunal considers that the Applicant's step-son would be negatively impacted by a visa refusal decision.
6. The Applicant also has a very close bond with his minor daughter who was born in Australia in 2019. The Tribunal has had regard to the Applicant's close relationship with his minor daughter as evidenced by the statements of the Applicant's wife and the many photographs provided of their time together.[114] The Applicant told the Tribunal that his daughter visits him in immigration detention every week and they have daily phone and video calls. The Tribunal considers that the Applicant's minor child would be significantly negatively impacted by a visa refusal decision in this case.
7. The Tribunal has had regard to the Applicant's other ties to the Australian community, including his ties to his extended family residing in Australia, namely his cousin who has been residing in Australia since March 2019.[115] The Tribunal also acknowledges the Applicant's other ties to the Australian community as detailed in the character references provided by friends of the Applicant who reside in Australia.
8. The Tribunal notes that the Applicant arrived in Australia in October 2013 and was arrested for his first set of drug offending in September 2014. The Tribunal has given less weight to the Applicant's other ties given the fact the Applicant began offending soon after arriving in Australia.

1. The Tribunal considers that this primary consideration weighs heavily in the Applicant's favour. Although the Applicant commenced offending soon after his arrival, the Tribunal considers that the impact of a visa refusal decision on his immediate family members, especially his wife, would be profound. The Tribunal has had regard to the evidence of Dr Nguyen who has detailed the Applicant's wife's psychological conditions and considers that she would be significantly negatively impacted by a visa refusal decision. This primary consideration is therefore given heavy weight in the Applicant's favour.

Primary consideration four: Best interests of minor children in Australia affected by the decision

1. Paragraph 8.4(1) of the Direction requires decision-makers to make a determination as to whether visa cancellation or refusal under s 501, or non-revocation under s 501CA is, or is not, in the best interests of a child affected by the decision.
2. Paragraph 8.4(2) provides that this consideration only applies if the child is, or would be, under 18 years old at the time of the decision.
3. In the Applicant's case, the Tribunal must consider whether a visa refusal decision is, or is not, in the best interests of his minor daughter. The Tribunal has considered the following factors at paragraph 8.4(4) of the Direction as follows.
4. The Applicant is the biological father of the minor child. The relationship is parental and the relationship between the pair is close and loving. The Applicant told the Tribunal that his minor child visits him every week in immigration detention and they have daily phone and video calls. The nature and duration of the relationship is given heavy weight in the Applicant's favour (paragraph 8.4(4)(a)).
5. The minor child is currently 6 years old. The Tribunal accepts that the Applicant is likely to play a positive parental role in her future considering the length of time until the child turns 18. The Applicant is in a long-term relationship with the child's mother and there are no known Court orders relating to parental access or care arrangements. This factor weighs heavily in the Applicant's favour (paragraph 8.4(4)(b)).
6. The Tribunal considers that the Applicant's prior conduct has had a negative impact on the child, as it has resulted in the Applicant's separation from the child due to his arrest and incarceration. Any likely future conduct will also have the same negative impact. This factor weighs against the Applicant (paragraph 8.4(4)(c)).
7. His daughter was 18 months old when the Applicant was arrested in May 2021. He has remained in custody and then immigration detention since that time. The Tribunal considers that the likely effect of separation has had a negative impact on his child. However, the Tribunal has taken into account the Applicant's evidence that his child visits him weekly in immigration detention and the pair have daily phone and video calls. The Tribunal considers that any likely future separation would negatively impact the child given the closeness of their relationship. This factor weighs heavily in the Applicant's favour (paragraph 8.4(4)(d)).
8. The child lives with her biological mother who already fulfills a parental role in relation to the child. The Tribunal accepts however that the child would benefit from having both parents in her life and gives this factor heavy weight in the Applicant's favour (paragraph 8.4(4)(e)).
9. The Tribunal has before it an array of photographs depicting the Applicant and the child in video calls and during in person visits.[116] The Applicant's wife has stated that her children (being her eldest adult son and her minor child) sorely miss their father.[117] She said that during COVID lockdowns their access was restricted, but the video calls between the minor child and the Applicant brought joy to her minor child.[118] The Tribunal has taken into account the views of the child as expressed through her mother and gives his factor heavy weight in the Applicant's favour (paragraph 8.4(4)(f)).
10. There is no evidence that the child has been, or is at risk of, family violence or has suffered any physical or emotional trauma arising from the Applicant's conduct. These factors are not relevant to the Tribunal's considerations (paragraph 8.4(4)(g) and (h)).

1. The Tribunal considers that this factor weighs heavily in the Applicant's favour. The Tribunal considers that a visa refusal decision would not be in the best interests of the Applicant's minor child.
2. This factor is given heavy weight because of the nature and duration of the relationship (being parental in nature) and the length of time until the child turns 18. It is clear from the material before the Tribunal that the pair enjoy a close bond. The Tribunal therefore gives this primary consideration heavy weight in the Applicant's favour.

Primary consideration five: Expectations of the Australian community

1. Paragraph 8.5(1) of Direction 110 provides as follows:

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. Paragraph 8.5(2) of Direction 110 provides that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences. This paragraph provides that the Australian community would expect the Australian government to refuse entry to non-citizens or cancel their visa if they raise serious character concerns through conduct such as family violence, commission of serious offences against women or children, or commission of crimes against government officials. Paragraph 8.5(3) provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
3. Paragraph 8.5(4) provides that 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. This 'deemed community expectation' must be understood and applied normatively.[119]
4. The Respondent contends that the Australian community would expect that the Applicant's visa application remain refused, given the seriousness of the Applicant's offending.[120] It is submitted that this primary consideration ought to weigh heavily in favour of exercising the discretion to refuse to grant the visa.[121]
5. The Tribunal considers that the Applicant's crimes being the cultivation of a narcotic plant in not less than a commercial quantity and trafficking a drug of dependence being methylamphetamine and heroin as serious offences. The Applicant has committed these offences in breach of the community's expectation that non-citizens will obey Australian laws while in Australia. The Applicant committed his first series of offences soon after arriving in Australia. He re-offended even after the sentencing judge for his 2015 offences noted that:

[19] I agree that I should give little weight to specific deterrence in the circumstances of your lack of criminal history, otherwise a hard-working young man, and importantly, how frank you were with the police in terms of not trying to avoid involvement. In the circumstances I have given weight to rehabilitation. > > [20] I sentence you on the basis that it is unlikely you will commit this offence again. If you remain in Australia, if you return to Vietnam, your family is in Vietnam to support you and you have a qualification after a three year course of working in a hospital. If you remain in Australia I notice there are four people in court to support you.[122]

6. There is no question that the Applicant has breached the community's expectations by not only committing his first series of offences, but by re-offending again in 2021.

1. The Tribunal considers that this primary consideration weighs heavily against the Applicant. The Applicant has committed serious drug offences in Australia in breach of the community's expectations. He has also reoffended despite being sentenced to an earlier term of imprisonment. This factor weighs heavily in favour of exercising the discretion to refuse to grant the Applicant his visa.

Other consideration one: Legal consequences of a decision under s 501 or 501CA

1. Paragraph 9.1 of Direction 110 deals with the legal consequences of a decision under s 501 or 501CA. Paragraph 9.1(1) provides that decision-makers should be mindful that unlawful non-citizens are, in accordance with s 198, liable for removal from Australia as soon as reasonably practicable, and in the meantime, subject to detention under s 189 of the Act.
2. The Direction then provides guidance for decision-makers in circumstances where a non-citizen is covered by a protection finding, and non-citizens who are not covered by a protection finding
3. In this case, the Applicant applied for a protection visa on 22 January 2015.[123] His protection visa application was refused by the delegate of the Minister on 27 February 2015.[124] The delegate was not satisfied that the Applicant was a person in respect of whom Australia has protection obligations.[125] On 31 August 2022, the Tribunal affirmed the decision not to grant the Applicant a protection visa.[126] The Tribunal was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under the refugee criteria in s 36(2)(a) or the complementary protection criteria under s 36(2)(aa).[127] There was no suggestion that the Applicant satisfied s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or 36(2)(aa) and who holds a protection visa.[128]
4. The Respondent submits that the appropriate course is for the Tribunal to not seek to revisit the previous Tribunal findings.[129] In the alternative, the Respondent submits that should the Tribunal consider that Australia's non-refoulement obligations are engaged in relation to the Applicant, this should be given little weight in circumstances where the Applicant's application for a protection visa has been refused.[130] It is contended that should the Tribunal find that this other consideration weighs in the Applicant's favour, it is outweighed by primary considerations one and five.[131] In his written submissions, the Applicant contends that this other consideration weighs neutrally.[132]
5. The Applicant is not covered by a protection finding and therefore paragraph 9.1.2 of Direction 110 applies. The Tribunal has considered the Applicant's claims that he previously raised, which are replicated at length in the delegate's decision, and in the previous Tribunal decision relating to his Protection visa.[133] The Tribunal considers that, consistent with the findings of the delegate and the previous Tribunal decision, the Applicant is not a person in respect of whom Australia has protection obligations.[134]
6. In making this assessment the Tribunal has considered the previous findings of the delegate and the Tribunal, as well as country information relied upon by those decision-makers.[135] The Applicant has not raised any new claims for protection, nor has he provided any new information or evidence in respect of his existing claims. On this basis, the Tribunal therefore concludes that Australia's non-refoulment obligations are not engaged in respect of the Applicant.
7. The Tribunal has also had regard to the intended legal consequences of a visa refusal decision on the Applicant. The Tribunal has been mindful that under the Act that if the Applicant's visa is refused, the Applicant may be liable for removal from Australia, and in the meantime, remains subject to immigration detention.
8. The Tribunal considers that this other consideration weighs in the Applicant's favour. The Tribunal has afforded this other consideration moderate weight in the Applicant's favour given the consequences a visa refusal decision would have on his immigration status.

Other consideration two: Extent of impediments if removed

1. Paragraph 9.2(1) of Direction 110 provides that decision-makers must consider the extent of any impediments 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). In doing so, decision-makers must take into account the non-citizen's age and health, whether there are any substantial language or cultural barriers, and any social, medical and/or economic support available to them in that country.
2. The Applicant is currently 35 years old. There are no known health concerns. The Applicant told the Tribunal he hasn't used illicit drugs since before his arrest in May 2021 and has engaged with an alcohol and drug counsellor two or three times. The Tribunal does not consider the Applicant has a drug or alcohol issue which requires medical treatment or intervention.
3. There are no known language or cultural barriers. The Tribunal notes the Applicant arrived in Australia as a 23-year-old and has not left Australia since. The Tribunal agrees with the Respondent's submission that the Applicant spent his formative years and some of his adult years in Vietnam.[136] He still enjoys the support of his parents and older sister who still reside in Vietnam. He obtained nursing qualifications in Vietnam and told the Tribunal that if he had to return to Vietnam he would reside with his parents and be able to resume his nursing career.
4. The Tribunal does accept however that the Applicant would face significant emotional hardship if he was removed to Vietnam as he would be separated from his immediate family members in Australia. The Applicant would also likely face some initial practical and financial difficulties in reestablishing himself in Vietnam, although these difficulties are not insurmountable, given he enjoys the full support of his family in Vietnam.
5. The Tribunal considers that this other consideration weighs in the Applicant's favour. This other consideration weighs in his favour because of the significant emotional hardship the Applicant would face due to being separated from his wife and child. The Tribunal has also had regard to the fact that the Applicant has continuously resided in Australia since the age of 23, though most of this time has been spent in prison or immigration detention. The Tribunal considers that he would have some initial practical and financial difficulties upon removal, but these initial impediments are not insurmountable. In the balancing exercise however, this other consideration is afforded moderate weight in favour of not exercising the discretion to refuse the Applicant's visa.

Other consideration three: Impact on Australian business interests

1. Paragraph 9.3(1) provides that decision-makers must consider any impact on Australian business interests, if the non-citizen is not allowed to enter or remain in Australia, noting an employment link would generally only be given weight where a decision under s 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
2. The Applicant contends that this other consideration weighs neutrally.[137] The Respondent notes that the Applicant previously asserted that a company known as CTA Corporation would be impacted because they would be unable to meet their staffing requirements due to the Applicant's continued detention, as they had previously offered the Applicant employment.[138] CTA Corporation trades as CTA Hair & Nail Salon and as of 24 September 2024 had offered the Applicant employment as a general hand and as a trainee barber.[139] The Applicant told the Tribunal that this offer of employment, as are other offers of employment he had received, are current and available to him.
3. As well as an offer of employment with this company, the Applicant has also been offered positions at Long Phung Supplements as a sales associate and a position in packing and shipping for a business known as Ivy Corner.[140]
4. The Tribunal does not consider that a visa refusal decision under s 501(1) would significantly compromise the delivery of a major project, or delivery of an important service in Australia. There is no evidence that CTA Corporation, nor any of the other businesses of which the Applicant has been offered employment fall within this category.
5. There being no evidence that this other consideration is applicable to the Applicant's circumstances, the Tribunal considers that this other consideration should be afforded neutral weight in the overall balancing exercise.

1. The Tribunal has concluded that the Applicant does not pass the character test. Having made this finding, the Tribunal must consider whether to exercise the discretion to refuse to grant the Applicant his visa under s 501(1) of the Act.
2. The Tribunal has considered the specific circumstances of the Applicant's case against the terms of Direction 110. The Tribunal has had regard to the principles at paragraph 5.2 of Direction 110, in particular, the principle that the safety of the Australian community is the highest priority of the Australian Government.[141]
3. The Tribunal has considered that primary considerations one and five weigh heavily against the Applicant. The Tribunal has also considered that primary considerations three and four weigh heavily in favour of not exercising the discretion to refuse to grant the Applicant his visa. The Tribunal has afforded moderate weight in the Applicant's favour to other considerations one and two and has considered that primary consideration two and other consideration three weigh neutral.
4. The Tribunal has afforded greater weight to primary consideration one in accordance with the guidance at paragraph 7(2) of the Direction. The Tribunal has afforded greater weight to this primary consideration given the serious and repeated nature of the Applicant's offending.
5. On balance however the Tribunal finds that the discretion to refuse to grant the Applicant his visa should not be exercised. The Tribunal has afforded heavy weight to the primary considerations that are in the Applicant's favour, namely the strength, nature and duration of his ties to Australia and the best interests of his minor child. The Tribunal is persuaded that the discretion should not be exercised due to the Applicant's wife and minor child living in Australia, and because his wife emotionally depends on the Applicant given her previous poor mental health. The weight afforded to these primary considerations and the other considerations that are in his favour, have led the Tribunal to the conclusion that the discretion to refuse to grant the Applicant his visa should not be exercised.

1. The decision of the Tribunal is that the decision under review is set aside and remitted with the direction that the discretion to refuse to grant the Applicant a Bridging visa E not be exercised.

[32] Ibid 488 (NRST and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA (12 March 2025)).

[36] Ibid 510 ([Applicant] and Minister for Immigration and Multicultural Affairs [2025] ARTA (14 May 2025)).

[48] Section 500(6L) of the Act. The 84th day in this case is 4 December 2025.

[49] Respondent's Submissions - Estoppel dated 21 November 2025 [2].

[51] Ibid [4], citing Minister for Immigration and Border Protection v Makasa [2021] HCA 1; (2020) 270 CLR 430.

[53] The incident is referred to at p 181 of Exhibit R1.

[54] This appears at p 136 of Exhibit R1.

[55] Namely paragraphs [1], [3] and [5] at p 142, and paragraph [8] of p 143 of Exhibit R1.

[57] Namely paragraphs [1], [4] and [6] of p 150 of Exhibit R1.

[58] This is referred to in the Applicant's SOFIC filed in relation to his Partner visa refusal at paragraph 51 of p 295 of Exhibit R1.

[59] These records appear at p 165 of Exhibit R1.

[88] See the sentencing remarks p 145 [15] for the 2015 offences and p 153 [17]-[18] for the 2022 offences.

[119] FYBR v Minister for Home Affairs (2019) 272 FCR 454 [91].

[122] Ibid 146 [19]-[20] (emphasis added).

[135] See for example, Delegate's decision at p 525-8, and Tribunal's decision [30]-[32] 687-8.