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MIGRATION - mandatory cancellation of visa - failure to pass character test - substantial criminal record - drug trafficking - whether the discretion to revoke the cancellation should be exercised - Direction No. 65 - primary considerations - protection of the Australian community from criminal or other serious conduct - nature and seriousness of conduct - risk to the Australian community - best interests of minor children - expectations of the Australian community - other considerations - strength, nature and duration of ties to Australia - impediments if removed from Australia - decision set aside

Migration Act 1958 (Cth)

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Minister for Immigration and Border Protection (Cth), Direction [No 65] - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014

1. Mr Nguyen is a 46-year-old citizen of Vietnam. He was 12 years old in 1984 when he migrated to Australia with his aunt. Immediately prior to 9 June 2017 he held a Class BB Subclass 155 Five Year Resident Return visa.[1]
2. On 23 February 2017, Mr Nguyen was sentenced to imprisonment for 16 months for supplying a commercial quantity of a prohibited drug.[2] He commenced serving the term of imprisonment on that day. By reason of this sentence his visa was cancelled by operation of subsection 501(3A) of the Migration Act 1958 (Cth). I will refer to this cancellation as the mandatory cancellation.
3. On 12 July 2018, a delegate of the Minister for Immigration and Border Protection decided not to revoke the mandatory cancellation.[3] This decision was made on the basis that the delegate was satisfied that Mr Nguyen did not pass the character test set out in the Migration Act 1958 (Cth) and that there was no other reason why the mandatory cancellation should be revoked.
4. The decision of 12 July 2018, referred to as "the reviewable decision", is the subject of this application for review.
5. At the time of the hearing of this application, Mr Nguyen was being held in immigration detention.
6. For the reasons which follow, the reviewable decision will be set aside. In substitution, it will be decided that the mandatory cancellation of Mr Nguyen's visa is revoked.

1. Unless otherwise stated, the following findings of fact are based on the evidence of Mr Nguyen. I am satisfied that he was an honest witness who gave his evidence to the best of his recollection, although at times his memory of events was not good.
2. Mr Nguyen describes his childhood and life as a young adult as follows:

I left Vietnam with my aunt [...] to Hongkong [sic] by boat in 1981 and we arrived in Australia as refugees in March 1984. I was 12 years old when I came to Australia.

My mother sent me overseas with my aunt hoping that I would have a better life, and my life was not as good as my mother had hoped for. When I was in Hong Kong my aunt [...] left me in a juvenile home for 4 years. I did not understand why she did this, I was too young at the time to comprehend why I was unloved.

Life in the refugee camps was difficult. I remember times when I was hungry but there was not enough food. Times when I was cold but didn't have warm clothes.

The other kids in the juvenile home seemed to have everything. The other kids would listen to them and do as they directed. When I first came they gave me food and clothes. They accepted me. They became like brothers to me. But in hindsight I realise their influence was not good. They taught me to steal, to pick pocket and made me go with them each day to steal.

After I arrived in Australia I did not live with my aunt for very long. My aunt got married. I did not get along with my uncle. He was physically and emotionally abusive to the extent that I thought I had to get away. I started to live at Barnardos Boys shortly after arriving to Australia.

Growing up the in homes [sic], surrounded by kids who were in similar circumstances as I was had a bad influence on me. I was young, I had no parents around, no guidance, I nowhere [sic] that felt like home and nowhere that I belonged. I felt a lot of anger towards life, towards people and towards myself. I felt alone and isolated. I didn't understand why everyone seemed to despise me and push me away. I was constantly angry and was searching for the reason why my life was the way it was.

In around this time I started using drugs. At first it was smoking cigarettes and drinking alcohol. Then it was smoking cannabis and eventually it was smoking heroin.

I was convicted of my first offence when I was 16 years old. But this was just the start. When I used drugs, especially the heroin I felt euphoric. I felt relief. I felt freedom, as if nothing else mattered. I enjoyed the feeling and sort [sic] to use it as often as I could afford. I had no idea how addictive it would be and how quickly I would become addicted.

Growing up without my mother, I was constantly missing her. I sponsored my mother and brother to Australia to live with me together in 1991 because I wanted to have my family near. I was looking for the love that I never had growing up. However, things did not go as I planned. Initially I lived with my mother, brother and step father but problems developed between my step father and I. He was constantly verbally and physically abusing me because I had a drug issue. My mother at the time was not tolerant towards my issues; the family were [sic] ashamed of me because of my drug use. I was once again abandoned when my mother left to Melbourne with her family. I again returned to living on the streets.

I was very disheartened and disappointed when my mother and brother moved to Melbourne. Living on my own I felt so isolated, unloved and alone. I felt abandoned by my own family, by the world. I continued to use heroin to cope. As time passed I became tolerant to the drug and needed more and more.

When my father arrived in Australia, I thought I would have his support and we would be happy together. I was looking forward to a new start with him; however his new wife did not like me as I was an addict. In order for my father and his wife to remain happy I decided to move out to live on the streets again. I realised that I was the reason why there were constantly fighting. I was frowned upon by people wherever I went. Nobody really cared to try and understand the reasons and circumstances that led me to the destructive path I was heading.

As an adult, my inability to work and earn income made me more vulnerable. In order to fund my drug habit I committed many offences. Because I was homeless most of the time, I was recklessly committing offences. I thought that if I get arrested I would be given accommodation in a gaol and I would be able to stop using if I was in jail. [4]

1. When Mr Nguyen was living with his family in Vietnam as a young child, his father left for France. Shortly after Mr Nguyen arrived in Australia his father also migrated here. This was the first contact he had with his father in seven years.[5]
2. The aunt with whom Mr Nguyen travelled to Hong Kong in 1979 was a teenager at the time. She was unable to care for him and he was placed in an orphanage. There he came under the influence of older children and was involved in stealing, as a result of which he spent 12 months in a special detention camp.[6]
3. When Mr Nguyen arrived in Australia he was enrolled at school in Year 7. He was bullied at school and was expelled after a couple of months for behavioural issues.[7] He has not received any further formal education. He was educated to Year 2 in Vietnam.
4. After his first experience of living in a Barnardos Home he returned to live with his aunt and uncle. A short time later he returned to the Home where he remained for two to three years. At about age 16 he commenced living on the streets and began using drugs "to ease the pain"[8] of the memories of his childhood. At first he smoked marijuana and then progressed to cocaine and heroin. By age 19 he was a heroin addict. He continued to use heroin until early 2017 when he commenced a methadone program.
5. In 1991 Mr Nguyen sponsored his mother and brothers to migrate to Australia. Within a year of arriving they moved from Sydney to Melbourne. Mr Nguyen remained in Sydney.
6. Mr Nguyen married in about 1995. The marriage lasted only a few years. Mr Nguyen has a 20 year old son of this marriage. They have re-established contact recently after many years of estrangement caused by Mr Nguyen's drug addiction. Mr Nguyen believed that his drug addiction would hurt his son.
7. Mr Nguyen was diagnosed with schizophrenia in 1999. He continues to take medication to control this condition. He also suffers from Hepatitis B and C for which he is not presently receiving treatment. He plans to seek treatment if he is able to return to live in the community. He has been in receipt of a disability pension since 2003.[9]
8. Mr Nguyen first spent time in jail in 2004 when he was incarcerated for four months. Upon his release he returned to living on the streets and using heroin.

1. A National Police Certificate issued in respect of Mr Nguyen shows that he has been convicted of numerous offences in Australia.[10] A copy of the Certificate is "Annexure A" to these reasons.
2. The offences in respect of which a term of imprisonment was imposed are as follows:

Supply commercial quantity of prohibited drug: 16 months imprisonment

Traffic heroin (2 charges),deal with property suspected proceeds of crime; resist police; use heroin (2 charges): aggregate 4 months imprisonment

Shoplifting value greater than $2000: 3 months imprisonment

Break and enter building and steal: 12 months imprisonment

Break and enter building and steal: 12 months imprisonment

Goods in personal custody reasonably suspected being stolen: 3 months imprisonment

Goods in personal custody reasonably suspected being stolen: 3 months imprisonment

Breach of parole order: 3 months 15 days (fixed term)

Steal from the person (2 charges): 3 months (fixed term); 6 months (minimum term)

Stealing and breaking out: 10 months (minimum term)

Receiving (5 counts): 14 days on each count (minimum term)

Possess implement to enter conveyance: 6 months (fixed term)

Goods in custody (two counts): 1 month (fixed term on each count)

June 2011 - supply heroin on an ongoing basis

1. The offence took place between 13 January 2010 and 2 February 2010. At the time, Mr Nguyen was on a two year good behaviour bond imposed in April 2009.
2. When imposing a prison sentence of two years the Court said, in part:

In terms of the mitigating circumstances, the only three [sic] I think which appear to apply are that he has prospects of rehabilitation. I do not know if I can say good prospects or not, certainly if he abides by the regime that he has commenced on, the prospects are optimistic. But experience shows that if he does not, as others in his position have not done, then his rehabilitation will be quickly washed aside. However, I am prepared to allow for that opportunity. I accept that he has shown remorse in the way he has expressed it through his father's letter and also his partner's letter and indeed as he said in his evidence. Once again the courts know that expressions of remorse are easy to say. The true test of such remorse is whether or not he has the application and the discipline to follow through in the rehabilitation steps that he has taken.[11]

1. In his sentencing remarks, Judge Lakatos referred to a report dated 22 June 2010 from the Magistrates' Early Referral Into Treatment program concerning Mr Nguyen:

I will not go through the sad and extensive drug history but ultimately that report in summary said that he has engaged well in the counselling process, shown an impressive commitment to establish change, demonstrated good insight into substance use and negative impact it has had on his life. Since commencing the program he has achieved his goal of abstinence and demonstrated a willingness to build on this progress by entering into a long term residential rehabilitation program.[12]

February 2017 - supplying not less than the commercial quantity of a prohibited drug

1. On 11 July 2015, Mr Nguyen was detected carrying 30 tablets of the drug buprenorphine into a New South Wales Correctional Facility when he attended to visit an inmate. In sentencing the Court said, in part:

Is he remorseful? Well, he continues to take drugs, he has a long-standing habit. I do not think he is actually remorseful for taking drugs into the jail at all. To describe it as stupid is a rather euphemistic way of describing it. The conduct undermines the whole purpose of jail.

His prospects of any realistic view are poor, if not very poor, and he is likely to re-offend, looking at his history. But I cannot sentence him for what he might do in the future, I have to sentence him for what he has done. And what he has done, having regard to the circumstances of the offence and having regard to his record, ordinarily would mandate jail. He has been given the opportunity to turn his life around and that has not been successful. I take into account the efforts he has made towards rehabilitation, and the quasi custody aspect - if I can put it that way - and that will result in a sentence lower than the one that I would ordinarily impose. Now, I do not consider there is an alternative to custody.

What I propose to do is to find on special circumstances on the basis of his drug addiction. I sentence the offender to 10 months imprisonment from today, which will expire on 22 December 2017. There will be an additional term of six months commencing at the expiration of the non-parole period.[13]

April 2017 - breaches of bonds imposed in relation to larceny offences

1. On 20 April 2017, Mr Nguyen appeared before the NSW Local Court on four charges of breaching bonds previously imposed in relation to larceny offences. He pleaded guilty to those charges and a new charge of larceny.
2. Mr Nguyen's representative informed the Court that the offences involved the theft of vitamin tablets and mineral water to enable Mr Nguyen to fund his heroin addiction.[14] Mr Nguyen was sentenced to a total of nine months in prison, with a non-parole period to end on 25 January 2018.[15]
3. The Court said, in part:

An explanation has been provided for the offending. As Mr Kwan correctly submitted his drug problem did not provide a good excuse or explanation for the commission of these although it did provide a context in which this offending had occurred. It is for the defendant to address his addiction to ensure he does not reoffend in this way again. The defendant's conviction history did not assist him. His record of convictions was in a sense an aggravating feature. There was not a great deal by way of mitigation. With respect, prospects of rehabilitation were by no means certain and the defendant was at considerable risk of reoffending.[16]

1. Departmental records show that Mr Nguyen was warned as to the risk of cancellation of his visa by reason of his criminal conduct on 1 June 1995, 6 September 2005 and 26 June 2013.[17]

1. It is not in dispute that, by reason of his criminal record, Mr Nguyen does not pass the "character test" set out in the Migration Act 1958 (Cth).[18]

PART C: THE RELEVANT LEGISLATION

1. Subsection 501(3A) of the Migration Act 1958 (Cth) provides:

(3A) The Minister must cancel a visa that has been granted to a person if:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of:

• (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

• (ii) paragraph (6)(e) (sexually based offences involving a child); and

(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

This mandatory cancellation decision is referred to later in the Act as "the original decision".

1. Subsection 501(7)(c) provides:

(7) For the purposes of the character test, a person has a substantial criminal record if:

(c) the person has been sentenced to a term of imprisonment of 12 months or more

1. Subsection 501CA(3) provides:
   • (3) As soon as practicable after making the original decision, the Minister must:
     • (a) give the person, in the way that the Minister considers appropriate in the circumstances:
       • (i) a written notice that sets out the original decision; and
       • (ii) particulars of the relevant information; and
     • (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
2. Subsection 501CA(4) provides:
   • (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.
3. The power of the Tribunal to review the decision to refuse to revoke the cancellation of Mr Nguyen's visa is provided by section 500 of the Act.

PART D: DIRECTION NO. 65

1. Under subsection 499(1) of the Act, the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction No. 65 which commenced on 23 December 2014.
2. Subparagraph 6.1(3) of the Direction provides, in part:

Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

1. Paragraph 6.2 provides general guidance and directs that "factors that must be considered in making a revocation decision are identified in Part C of this Direction."
2. Under the heading General Guidance, subparagraph (1) provides:

The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

1. Paragraph 7 of the Direction sets out how the discretion is to be exercised. "Informed by" the principles in paragraph 6.3, I must "take into account" the considerations in Part C in order to determine whether the mandatory cancellation of Mr Nguyen's visa will be revoked. A copy of Part C is "Annexure B" to these reasons.
2. In paragraph 6.3, the Minister sets out the principles that provide the framework with which the task of exercising the discretion to revoke the cancellation of a visa is to be approached. The principles are:
   • (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
   • (2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
   • (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
   • (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
   • (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
   • (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
   • (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
3. The Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case.[19] Primary considerations should generally be given greater weight than the other considerations.[20]
4. Paragraph 13(2) provides:

In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations:

1. Protection of the Australian community from criminal or other serious conduct;
2. The best interests of minor children in Australia;

1. Paragraph 14(1) sets out other considerations to be taken into account where relevant. It provides:

In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

1. International non-refoulement obligations;
2. Strength, nature and duration of ties;

1. Impact on victims;
2. Extent of impediments if removed.

1. I have set out subsection 501CA(4) of the Act earlier in these reasons (see paragraph 31). Before the power to revoke the original decision is enlivened, it is necessary for the decision-maker to be satisfied that the conditions for the exercise of the power have been met.
2. It is not in dispute that Mr Nguyen has made the representation referred to in paragraph (a) of subsection 501CA(4). It is also not in dispute that he does not pass the character test in subparagraph (b)(i) of the subsection. It is, therefore, necessary to decide whether "there is another reason [i.e. other than an applicant passing the character test] why the original decision should be revoked."[21]
3. If I am satisfied of all the relevant requirements of subsection 501CA(4)(b), then the cancellation must be revoked. To this extent, "may" in the subsection means "must."[22]

F1: Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct

1. I must have regard to matters set out in paragraph 13.1, which include:
   • the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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;
   • [t]he nature and seriousness of the non-citizen's conduct to date;
   • [t]he risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[23]

F1.1: The nature and seriousness of Mr Nguyen's conduct to date

1. Mr Nguyen's conduct to date involves six convictions for dealing in prohibited drugs over a period of thirteen years. This conduct alone must be regarded as very serious. His own addiction may explain, but does not excuse, his conduct, nor does it make the conduct less serious. In addition, Mr Nguyen has been convicted of common assault (an offence involving some degree of violence) as well as numerous property offences committed to support his heroin addiction. I do not have evidence of the violence which led to the assault conviction.
2. I have also taken into account that Mr Nguyen continued to offend after he received each of the three warnings that his visa may be cancelled. This adds to the seriousness of his conduct.

F1.2: The risk to the Australian community should Mr Nguyen commit further offences or engage in other serious conduct

1. Direction No. 65 states that I "should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases."[24]
2. There are also considerations to which regard must be had cumulatively:
   • (a) [t]he nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
   • (b) [t]he likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).[25]

1. In view of the seriousness of Mr Nguyen's conduct and in line with the principle stated above, I am satisfied that the Australian community's tolerance for the risk of any harm which may result from future misconduct by Mr Nguyen would be low.
2. Should Mr Nguyen further engage in such conduct, there would be a significant risk of serious physical and financial harm to members of the community arising from the use of, and addiction to, prohibited drugs. In addition, there is the risk of loss of property arising from offences such as burglary and theft. Such offences would also cause uncertainty and concern in the community.
3. As noted previously, Mr Nguyen has had the benefit of numerous supervisory orders, many of which he has contravened. This has necessitated further court appearances. Continued conduct of this nature would result in the waste of community resources.
4. I conclude that the nature of future harm, should Mr Nguyen continue to engage in conduct such as that in which he has already engaged, is serious.

**_The likelihood of Mr Nguyen engaging in further criminal or other serious conduct

1. In his statement made 22 August 2018,[26] Mr Nguyen said, in part:

I am truly sorry and deeply ashamed about my past behaviour. Reading through my offences my actions at that time were appalling. I accept responsibility for my actions and can only apologise for everything.

...

Since incarceration I have addressed my problems and taken the necessary steps in being able to control my drug problems by completing EQUIP Addiction. Most importantly I want to make changes for myself. The likelihood of me re-offending now is zero. I have completely understood the consequences of my actions and the effects they have on my family, community and myself. The cancellation of my visa has hit me hard and has woken me up. I know that if I were to reoffend then I would definitely be returned to Vietnam. I will be a changed man because I do not want to return to Vietnam as I have no one there.

...

If I was to be released today, the only things I want to do is work and try and set up some foundation for me to move on with my life. Things that matter to me now are my family and the need to live life happily and to be able to help other people with the support of my family. My faith in Buddha will help me to stay sober.

...

I acknowledge and value the support from my family. We are now on good terms and has [sic] helped me to remain abstinence. I have been in Australia for most of my life and only know Australia as my home. I want to be able to repay Australia for taking me in.

Since incarceration, I have been listening to Buddhist scriptures that my mother sent me very night. I now have a strong religious belief. I am determined to leave behind my shameful past in order to rebuild a meaningful life in Australia to re-pay for my karma. I know that this is the last chance for me to compensate for my mistakes. I promise to never reoffend again.

1. When he gave evidence at the hearing, Mr Nguyen emphasised that the insight and understanding he has gained from reading the teachings of Buddha will allow him to live in the Australian community without re-offending. He also spoke of the importance of the support of his family.
2. Should Mr Nguyen be free to do so, he plans to live with his father in Sydney and to undertake training to assist him to find employment. He plans to seek medical treatment for presently untreated medical conditions and to seek further counselling. He is being counselled by a Mental Health Worker and he proposes to continue this.

1. Ms Pham provided a statutory declaration dated 13 September 2018[27] and gave evidence at the hearing. Ms Pham impressed me as an honest witness who gave her evidence to the best of her recollection. I accept her evidence.
2. Ms Pham is determined to do as much as she can to make up for what she describes as Mr Nguyen's "tough and sad childhood."[28] In her opinion, he is "a completely changed person" who has expressed remorse for his past offences and who "has promised to live a drug free life."[29] She believes that if he listens to the Buddhist scriptures he will not re-offend.

1. Mr Lau provided a statutory declaration dated 14 September 2018.[30]
2. In his statement, Mr Lau acknowledged that Mr Nguyen was absent from his life when he was younger because Mr Nguyen did not want his son to see him as a drug addict. Mr Lau has forgiven Mr Nguyen for being absent and the two have now been in regular contact for the past few months. In his statement, Mr Lau says that "I now have a father and would like to have the opportunity to spend time with him."

Evidence of Mr Nguyen Senior, Mr Nguyen's father

1. Mr Nguyen Senior provided a statutory declaration dated 11 September 2018.[31]
2. Mr Nguyen Senior stated that the Mr Nguyen "did not have a chance to grow up with the love and support from his family" but that "in the last year we have formed a loving relationship and [we have] reconnected." I am satisfied that Mr Nguyen will benefit by having his father's support should he be released into the community.
3. Mr Nguyen's father also stated that "I strongly believe that my son will not re-offend in the future as he now realises the consequences of his actions."

1. Ms T Pham provided a statutory declaration dated 14 September 2018.[32]
2. Ms T Pham and Mr Nguyen have been in a relationship for "a number of years" and are in regular contact. She also stated that "I am confident that he will not reoffend and he will become a valuable member of the society." Ms T Pham also referred to the positive impact that the Buddhist scriptures have had on Mr Nguyen.
3. I am satisfied that Ms T Pham will offer support to Mr Nguyen should he be released into the community.

1. Mr D Nguyen provided a statutory declaration dated 13 September 2018.[33]
2. Mr D Nguyen lives in Melbourne with his mother. He did not have contact with Mr Nguyen for approximately ten years until Mr Nguyen sponsored him, his brother, and his mother to come to Australia. I am satisfied that Mr D Nguyen will afford some support to Mr Nguyen should he be released into the community, albeit constrained by the fact that they live in different states.
3. Mr D Nguyen believes that Mr Nguyen "will never reoffend again" and that his new-found faith in Buddha has had a positive effect on him.

1. I was also provided with a joint statement signed by fifteen family members of Mr Nguyen.[34] In this statement, the family said that they "will support him with support whenever he requires."

1. Mr Cloumassis is a Counsellor employed by International Health and Medical Services. In that role he has been conducting group and individual counselling sessions to support men who are detained indefinitely at the Christmas Island Immigration Detention Centre.
2. Mr Cloumassis provided a report dated 23 August 2018.[35] The Minister consented to the tender of this report and did not request that Mr Clamoussis be available to be questioned at the hearing.
3. In his report, Mr Clamoussis said, in part:

Mr Nguyen submitted a medical request form on 12 March 2018 asking to see me in relation to drug and alcohol counselling. I first met Mr Nguyen on 20 March 2018, and, when asking him what he wanted out of counselling, he advised me that he wanted to discuss his previous drug use and to make changes in his life. He disclosed traumatic events in his childhood such as leaving his parents in Vietnam as a 7-year-old, being isolated and detained in juvenile detention facility in Hong Kong, his journey to Australia as an 11 year-old and the abuse he experienced from his aunt's husband in Australia. This led him to become homeless, resulting in him residing at a Barnardos Boys Home and then living on the street.

Mr Nguyen disclosed a long history of opioid dependence which commenced when he was 16 years-old and which he described as a means of coping with his surroundings at the time. He also describes this as a means to manage the pain he had experienced as a child. Mr Nguyen reported ongoing issues with the law relating to drug offences and that he became caught in a cycle which he struggled to break free from.

...

Despite Mr Nguyen identifying his trauma and unsettled childhood as being the catalyst for his drug use, he never relinquished his responsibility and continues to acknowledge that his decision making ultimately led him into custody and to where he currently resides in immigration detention. [Emphasis added].

Mr Nguyen has attended 19 individual counselling sessions as well as 10 relapse prevention groups since I commenced working with him, and throughout this time I have witnessed Mr Nguyen grow significantly. Together we have been able to address Mr Nguyen's past and work toward an acceptance rather than a denial of events that occurred in his life. Mr Nguyen identified feelings of worthlessness and hopelessness throughout his life which upon our first few meetings appeared to overwhelm him, affecting particular areas in his life such as self-care, sleep and the relationship with his family.

Over time, Mr Nguyen has become a man who is accepting of his past, who acknowledges his mistakes as well as the impact they have had on the people closest to him. He has displayed the courage to challenge his beliefs, understand himself and grow as a human by learning how to be acceptant of his history, his current situation and who he is as a person, often stating 'I finally know who I am'. I have had the privilege of being part of Mr Nguyen's journey and now see a man who is functioning highly by engaging in exercise, education, listening to the Buddhist Bible daily and attending counselling groups in an effort to better himself now, as well as to prepare himself for the future when he returns to community living. [Emphasis added]. My Nguyen continues to engage closely with his parents and his long-term partner who he describes as an immense support. He has reconnected with his son this week and continues to acknowledge his achievements and express his future goals which involve him studying at TAFE, re-entering the workforce and supporting his family financially and emotionally.

I feel Mr Nguyen is deserving of a chance to reintegrate into the community with the supports of his partner and family given the opportunity I have had to get to know him, as well as the growth and progress I have witnessed over the last 5 months. All Mr Nguyen needed was time to reflect and to be given the opportunity to share his thoughts and feelings in a supportive and trusting environment absent of judgment. [Emphasis added].

Clinical records of International Health and Medical Services relating to Mr Nguyen

1. These records were tendered on behalf of Mr Nguyen after the hearing.[36] The Minister consented to the admission of these clinical reports into evidence.
2. Most (but not all) of the clinical records were authored by Mr Clamoussis. They are consistent with the opinions he expressed in his report to which I have referred and demonstrate the changes in Mr Nguyen's attitudes to his offending.
3. The records disclose that:
   • from the age of 16 years Mr Nguyen began living on the streets and started to use heroin intravenously;
   • except for some short periods of abstinence, he used heroin until he was incarcerated in February 2017;
   • he felt he was abandoned as a child by his parents and felt anger and resentment towards them;
   • he has come to understand the decisions his parents made and resolved his negative feelings towards them;
   • he recognises the importance of his renewed relationship with his family and his understanding of Buddhism in his resolve not to return to drug abuse and criminal offending;
   • he has a sense of increased self-worth;
   • he has refused several offers of illicit drugs while in detention and does not have the urge to resume illicit drug usage;
   • he identifies his partner as a "strong and loyal support for him";[37]
   • a Primary Health Nurse assessed Mr Nguyen on 28 December 2017 and noted that "he presented well, denied any drug and alcohol use for the past 10 months..., checked his arms and no recent marks on his arms;"
   • the impression of the Counsellor recorded on 2 August 2018 was that Mr Nguyen "continues to grow and live with intentionality based on his values, beliefs and hope for the future".

1. Taking all the above factors into account, I have reached the conclusion that there is a risk that Mr Nguyen will continue to engage in criminal conduct of the type he has engaged in in the past. As set out in Direction No. 65, by reason of the seriousness of the potential harm to the community should Mr Nguyen re-offend, the community's tolerance of the risk of such harm is lowered. He has repeatedly offended with increasing seriousness.
2. Unfortunately, Mr Nguyen received little treatment for his drug addiction until he was imprisoned in 2017 and subsequently held in immigration detention. His resolve to not abuse drugs is yet to be tested in the community. He has been unable to maintain abstinence in the past.
3. Commencing in 1995, Mr Nguyen has been warned of the consequences of his re-offending on three occasions. I am satisfied that he failed to heed these warning by reason of his drug addiction.
4. While there is a risk that Mr Nguyen may re-offend and community tolerance of that risk is lower by reason of the seriousness of the potential harm which may result, careful consideration of the evidence of Mr Clamoussis causes me to conclude that the risk of Mr Nguyen re-offending is significantly less than it would have been without the rehabilitation he has undertaken recently. In particular, Mr Clamoussis' uncontested evidence is that Mr Nguyen has grown and progressed as a result of the counselling he has received and is now in a much stronger position to cope with reintegration with the Australian community.

F2: Primary Consideration 2: Best interests of minor children in Australia affected by the decision

1. There are several members of Mr Nguyen's extended family who are minors and who reside permanently in Australia. They are nieces, nephews, and cousins.
2. On the basis of the evidence of Mr Nguyen, I am satisfied that he is not in regular contact with these minors and none of them will be affected by the decision I make in this matter.

F3: Primary Consideration 3: Expectations of the Australian community

1. Clause 13.3 of the Direction provides:
   • (1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.
2. In YNQY v Minister for Immigration and Border Protection[38] the Federal Court said, in part:

In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the "expectations" about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to "tolerance") the Australian community's "expectations" are defined only in one particular way: namely, that the Australian community "expects" non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.[39]

1. I have no evidence to enable me to determine the expectations of the Australian community in this matter. Nevertheless, for the reasons set out by the Court, I am satisfied that these expectations weigh against the revocation of the cancellation decision.

F4: Other considerations set out in Direction No.65

1. Clause 14 of the Direction provides:
   • (1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
     • (a) International non-refoulement obligations;
     • (b) Strength, nature and duration of ties;
     • (c) Impact on Australian business interests;
     • (d) Impact on victims;
     • (e) Extent of impediments if removed.

1. There are no non-refoulement obligations relevant to the determination of this matter.

Strength, nature and duration of ties to Australia

1. Clause 14.2 of the Direction provides:
   • (1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
     • (a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
       • (i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
       • (ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
     • (b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
2. Mr Nguyen has lived in Australia since he was 12 years old and has spent an important part of his formative years living in Australia. He came to this country as a refugee. I am satisfied that Mr Nguyen regards Australia as his home and that his ties to this country are strong. However, although he arrived as a young person, the significance of this factor is reduced by the fact that he started offending within three years of his arrival.
3. Although Mr Nguyen was estranged from his family for many years, I am satisfied that he has recently reconciled with his parents, his son, and other members of his extended family. Although this reconciliation is recent, I am satisfied that it is genuine - there is no evidence to suggest otherwise. I am satisfied that Mr Nguyen will receive ongoing support from his family should he be able to return to live in the Australian community.
4. Mr Nguyen has worked in various occupations when he was not in prison or detention.[40] However, these periods of employment were sporadic by reason of his addiction. I am not satisfied that he has made a significant contribution to the Australian community.
5. A decision not to revoke the cancellation of Mr Nguyen's visa will cause distress to Mr Nguyen's family members, in particular to his mother and to his partner.
6. Taking these various factors into account, I am satisfied that these considerations weigh in favour of revoking the cancellation of Mr Nguyen's visa. The Minister agrees.

1. I am satisfied that a decision not to revoke the cancellation of Mr Nguyen's visa will not have a relevant impact on Australian business interests.

1. I do not have sufficient evidence to assess the extent of the impact of Mr Nguyen's behaviour on the victims of his criminal conduct, other than that I am satisfied that the victims of his crimes variously suffered emotional distress, and financial loss.

Extent of impediments Mr Nguyen may face if he is removed from Australia

1. On the basis of the evidence of Mr Nguyen, I am satisfied that he would face significant impediments if he returns to Vietnam. He has not had any contact with relatives living in Vietnam since he left that country. He does not read or write Vietnamese. I am satisfied that it would be difficult for him to find employment and housing. The availability of any government support and medical treatment is unknown.

1. The need to protect the Australian community from criminal and other serious conduct weighs heavily against the revocation of the cancellation decision. Added to this consideration are the expectations of the Australian community as mandated by Direction No. 65.
2. I accept the contention of the Minister that, having regard to Mr Nguyen's history of offending and previous attempts at rehabilitation, there is a "real and ongoing risk"[41] that he will re-offend. However, there are further matters to be considered.
3. As already set out, under the heading General Guidance, Direction No. 65 makes it clear that it is necessary to determine "whether the risk of future harm from a non-citizen is unacceptable" [emphasis added].[42] In the circumstances of this matter I am satisfied that although the risk is real and ongoing, it is nevertheless an acceptable risk.
4. It is of concern that despite being given numerous chances to show that he could abide by Australia's laws and become a productive member of the community, Mr Nguyen failed to do so for most of his life in this country. However, I am satisfied that since his last term of imprisonment, he genuinely intends not to re-offend and to refrain from using illegal drugs. I am satisfied also that he understands that if he re-offends or engages in other serious conduct, it is likely that his visa will again be cancelled.
5. There can be no doubt that with his long and persistent history of drug abuse, should Mr Nguyen be able to return to the community he will need support to ensure that his intentions are realised. I am satisfied that he is now much better placed to achieve this than he was at any time past. He now has the support of his family which includes his parents, his son, and his partner. He also has the benefit of having undertaken the 20-session EQUIPS Addiction Program provided by NSW Corrective Services when he was imprisoned in 2017.[43] Following that he has received regular counselling while in immigration detention. He has the opportunity of maintaining support from his Mental Health Worker.
6. In deciding that the risk of Mr Nguyen re-offending is acceptable, I have placed considerable reliance upon the reports of the International Health and Medical Services and, in particular, the report of Mr Cloumassis to which I have already referred. These reports were taken into account with the consent of the Minister and there is no contradictory evidence.
7. The strength, nature and duration of ties to Australia are of significant weight in favour of revocation. Mr Nguyen arrived in Australia as a young child and has lived here for 34 years. He regards Australia as his home and has done so since his arrival. However, the weight of this consideration is reduced by the fact that Mr Nguyen began offending very soon after his arrival and has made very little positive contribution to the community.
8. Mr Nguyen's family ties appear to have strengthened considerably in recent times. It is only since he has received counselling while in immigration detention that he has come to accept his mother's reasons for sending him away from the family at such a young age. He has also come to accept the reasons for what he perceived as abandonment again when he sponsored his family to come to Australia. He now has the prospect of ongoing support from his partner, his son, and his father. However, I do take into account that the improved relationships with his family are yet to be tested should he return to live in the community.
9. I also take into account that Mr Nguyen would suffer some impediments should he return to live in Vietnam. In particular, he would suffer from his lack of education and skills and his inability to read and write the language. His poor health is also a relevant consideration. I do not have sufficient evidence to make a finding as to the extent of medical assistance which may be available to him in Vietnam.
10. In considering all of the relevant factors, it is important to note that paragraph 14 of the Direction does not provide an exclusive list of the other matters to be considered.
11. In this application, the hardships faced by Mr Nguyen for most of his life, and in particular as a child, are relevant considerations. His father left the family in Vietnam sometime before he was sent to Hong Kong by boat, accompanied by a teenage aunt. He did not understand why he was forced to leave his mother and siblings. He was not properly cared for once he left Vietnam and he spent most of his next nine years in institutions in Hong Kong and Australia.
12. Mr Nguyen was accepted by Australia as a refugee when he was only 12 years old. Unfortunately, it appears the Australian education system failed him and he was expelled from school after a couple of weeks in Year 7. He did not receive even a basic education by Australian standards.
13. While still a child, Mr Nguyen found himself living on the streets. It is not surprising that he turned to drugs to help him deal with the situation with which he was faced. He committed his numerous offences to satisfy his drug habit and with the belief that time spent in jail would provide him accommodation and help him manage that habit. Even after he sponsored his mother and brother to come to Australia, he again felt abandoned when they moved away from where he was living.
14. Despite the efforts made by the courts over many years, the assistance provided to him was of very limited effectiveness. It is only since early 2017 that programs provided by Corrective Services NSW and by the Federal Government that there appears to have been real progress in Mr Nguyen's rehabilitation. These changes have coincided with Mr Nguyen's acceptance of the Buddhist faith.
15. Whilst I accept that Direction No. 65 mandates that the Australian community expects that the cancellation of Mr Nguyen's visa not be revoked, it does not say that the community has no tolerance for his serious offending. Paragraph 9.1.2 recognises that the community's tolerance becomes lower as the seriousness of the potential harm increases.
16. I have come to the conclusion that the Australian community, fully informed of the facts of this matter, would be tolerant of the risk of harm posed by Mr Nguyen returning to live as part of that community. I am satisfied that, given the trauma suffered by Mr Nguyen at such a young age, the Australian community would expect that compassion be shown towards him in considering the various matters required by the Act and the Direction.
17. Weighing up all of the considerations, I have reached the conclusion that Mr Nguyen's ties to Australia, his poor health, the impediments he would face in Vietnam, the effect on his family, and the difficulties he has faced in life, together provide a reason why the mandatory cancellation decision should be revoked. In reaching this conclusion, I have determined that these considerations outweigh the need to protect the Australian community and the expectation of the community that the cancellation of his visa not be revoked. I have made my decision on the basis that the risk to the community that Mr Nguyen will re-offend is an acceptable one.

1. The reviewable decision made 12 July 2018, being the decision of the delegate of the Minister for Home Affairs and Minister for Immigration and Border Protection not to revoke the cancellation of Mr Nguyen's Class BB Subclass 155 Five Year Resident Return visa, will be set aside.
2. In substitution, it will be decided that the decision to cancel Mr Nguyen's Class BB Subclass 155 Five Year Resident Return visa, made 9 June 2017, is revoked.

I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

..........................[sgd]..............................................

Bring/introduce proscribed poison into place of detention

H 58111914: imprisonment: 16 months commencing 23/02/2017 concluding 22/06/2018 non parole period with conditions: 10 months

commencing 23/02/2017 concluding 22/12/2017 release subject to supv court case reference number 2015/00205313

H 58111914: s10a conviction with no other penalty: court case reference number 2015/00205313

Shoplifting $2000 & (2) In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations:

1. Protection of the Australian community from criminal or other serious conduct;

2. The best interests of minor children in Australia;

3. Expectations of the Australian community.

13.1 Protection of the Australian community

• (1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

(2) Decision-makers should also give consideration to:

1. The nature and seriousness of the non-citizen's conduct to date; and
2. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

13.1.1 The nature and seriousness of the 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 factors including:

  1. The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

  2. The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

  3. The sentence imposed by the courts for a crime or crimes;

  4. The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;

  5. The cumulative effect of repeated offending;

  6. Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

  7. 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);

  8. Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act;

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

• (1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.

Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

1. The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
2. The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

13.2 Best interests of minor children in Australia affected by the decision

• (1) Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.

• (2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.

• (3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

• (4) In considering the best interests of the child, the following factors must be considered where relevant:

  1. The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

  2. The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

  3. The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

  4. The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

  5. Whether there are other persons who already fulfil a parental role in relation to the child;

  6. Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

  7. Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

  8. Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

13.3 Expectations of the Australian community

• (1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person

should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.

14. Other considerations - revocation requests

(1) In deciding whether to revoke the mandatory cancellation of a visa,

other considerations must be taken into account where relevant. These considerations include (but are not limited to):

1. International non-refoulement obligations;
2. Strength, nature and duration of ties;

1. Impact on victims;
2. Extent of impediments if removed.

14.1 International non-refoulement obligations

• (1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

• (2) The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

• (3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).

• (4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

• (5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48 A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).

(6) In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

14.2 Strength, nature and duration of ties

• (1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, 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.
  2. 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, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

14.3 Impact on Australian business interests

• (1) Impact on Australian business interests if the non-citizen's visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

14.4 Impact on victims

• (1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

14.5 Extent of impediments if removed

• (1) 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:

  1. The non-citizen's age and health;

  2. Whether there are substantial language or cultural barriers; and

  3. Any social, medical and/or economic support available to them in that country.

[5] Pre-sentence report prepared by Ms Fotofili for the NSW District Court in 2011; exhibit R1 at 79.

[6] Pre-sentence report prepared by Ms Fotofili for the NSW District Court in 2011; exhibit R1 at 78.

[18] Applicant's Statement of Issues, Facts and Contentions filed 23 August 2018 at [8].

[19] Minister for Immigration and Border Protection (Cth), Direction [No 65] - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014, at [6.2(3)], [8(1)].

[21] Migration Act 1958 (Cth) s 501CA(4)(b)(ii).

[22] Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [31].

[23] 'Serious conduct' is defined in Annex B to the Direction to include conduct of concern which may not constitute a criminal offence.

[24] Minister for Immigration and Border Protection (Cth), Direction [No 65] - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014, at [13.1.2(1)].

[37] Exhibit A9; clinical note dated 13/06/2018.

[38] [2017] FCA 1466.

[41] Respondent's Statement of Facts, Issues and Contentions filed 7 September 2018 at [3.9].