1. The Tribunal is bound by s 499(2A) to comply with any directions made under the Migration Act. In this case, Direction No. 110 - Migration Act 1958 - Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) has application.[9]
2. For the purposes of deciding whether to refuse a non-citizen's visa or whether or not to revoke the mandatory cancellation of a non-citizen's visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker's application of the Primary and Other Considerations identified in Part 2 where relevant to the decision.
3. The principles that are found in paragraph 5.2 of the Direction 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 measureable risk of causing physical harm to the Australian community.

(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.

1. Informed by the principles in paragraph 5.2 above, I must take into account the primary and other considerations in the Direction.
2. The primary considerations are:[10]

(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;

1. The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.[12]

Protection of the Australian community - 8.1 of Direction 110

1. When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. 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.[13] As required by paragraph 8.1(2) of the Direction, I give consideration below 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.

The nature and seriousness of the non-citizen's conduct - 8.1.1 of Direction 110

1. When considering the nature and seriousness of the Applicant's conduct, I take into account his criminal activity and other serious conduct. The Applicant has served three custodial sentences for criminal offending. The first was imposed by the Brisbane District Court on 17 June 1999 for an assault occasioning bodily harm in January 1999 for which he received a sentence of nine months' imprisonment suspended after serving three months.[14] The second custodial sentence was imposed by the Brisbane Supreme Court on 17 April 2003 for importing heroin for which he was sentenced to 3 years imprisonment to be released after serving eight months.[15] The third custodial sentence was imposed by the Melbourne County Court on 15 October 2021 for trafficking in a commercial quantity of methylamphetamine and knowingly dealing with proceeds of crime for which he received a total sentence of six years imprisonment.[16] In addition to these custodial sentences there were numerous other offences related to drugs, theft, violence and driving. There is a total of 33 offences committed between 1999 and 2018.
2. When being sentenced in 2003 for the heroin importation the sentencing judge said:[17]

You only arrived in Australia in 1997, but by 1999 you had been convicted of an offence of assault occasioning bodily harm. I hope that your offending that commenced with the assault occasioning bodily harm and has continued since that time, but particularly with this importation, is the end of your offending and that you use this time in prison to work out what you're going to do in the future. What happens, Mr Dinh, is that if you continue to offend you will be given longer and longer sentences of imprisonment.

Since you have been in prison on remand you have undergone two substance abuse programs, an anger management course, and commenced subjects for a business course. I hope you continue with applying yourself in that way.

I am told that you have employment as a shop assistant to go on your release and I hope that you make the most of that opportunity.

1. Despite being warned by the judge and engaging in rehabilitative programs and having a job to go to, the Applicant soon returned to a life of crime including violent offending of recklessly cause injury in 2008 and common assault in 2010.[18] The Applicant has driven whilst disqualified on five occasions and has engaged in drink driving on four occasions.[19]
2. The Applicant's most serious offending for which he received six years imprisonment was trafficking in a commercial quantity of methylamphetamine and knowingly dealing with proceeds of crime of approximately $400,000. On 15 October 2021, the sentencing judge said:[20]

Notwithstanding that you fall to be sentenced for a single transaction occurring on 11 November 2018, it is apparent from the circumstances and manner in which you offended that your role in the distribution of this drug is clearly part of a commercial activity. You travelled from Sydney to Melbourne to affect the supply of methylamphetamine. You demonstrated a degree of agency in your conduct. ... You used an encrypted messaging application, and utilised two separate hotel rooms each having been booked under different names. You secreted the packages of methylamphetamine into the room and can be seen weighing them prior to handing them over. Your offending was conducted in a relatively sophisticated manner.

1. The frequency and cumulative effect of repeated offending is of great concern. The Applicant engaged in violent offending for which he was convicted in 1999, 2008 and 2010. The Applicant engaged in drug related offending for which he was convicted in 2003, 2006, 2017, 2018 and 2021. There were at least nine separate offences involving driving. The Applicant was warned by the sentencing judge in 2003 that if he continued to offend he would be given longer and longer sentences of imprisonment. It seems that early attempts to rehabilitate through formal courses and programs were not successful.
2. In addition, there is evidence that the applicant has engaged in family violence which I will consider further below.
3. The three custodial sentences reflect the seriousness of the offending. The Applicant's heroin addiction was a contributing factor in his offending and there was a period of no offending from early 2011 to late 2015. He said during the hearing that he dealt in drugs to make money to satisfy his addiction. However, the Applicant has engaged in frequent criminal activity over a period of 20 years and the crimes of violence, importing heroin and trafficking a commercial quantity of methylamphetamine are very serious crimes with a significant detrimental impact on the community. I conclude as to the nature and seriousness of the Applicant's conduct that it was extremely serious. It is a very significant factor in terms of whether I am satisfied that there is 'another reason' to set aside the non-revocation decision.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct - 8.1.2 of Direction 110

1. In considering the need to protect the Australian community from harm, I have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.[21] As required by paragraph 8.1.2(2) of the Direction, I also 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).

1. In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[22] Her Honour said that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future. It is my view based on the following reasons that the Applicant's 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 is unacceptable.[23]

Nature of harm if further criminal or other serious conduct - 8.1.2(2)(a) of Direction 110

1. If the Applicant were to engage in further similar criminal offending, the nature of the harm would be extremely serious because of the impact on the community of drug importation and trafficking. The physical and mental harm arising from violent offending is also very serious.

Likelihood of further criminal or other serious conduct - 8.1.2(2)(b) of Direction 110

1. The Applicant has expressed remorse for his offending and says that he will not re-offend because he is, and will remain, drug free. The last time he took drugs was about 3 or 4 years ago when he was on remand. The Applicant explained that he was addicted to heroin from the time of his first offence in 1999 up until he went to prison for his most recent offending in 2018. He says that now that he is drug free he will not re-offend.
2. The Applicant has provided written statements and given oral evidence through an interpreter. He explained that his visa cancellation and most recent time in prison and detention has provided a big wake-up call. He said that his two children are essential to his rehabilitation because they provide him with emotional stability, encouragement and a constant reminder of the kind of person he wants to be. He is very sorry and ashamed about his past offending. He understands how wrong his behaviour was and the impact it had on others. Whilst in prison he has engaged in rehabilitative courses, English courses and obtained numerous certificates with the Kangan Institute. He has engaged in drug and alcohol and anger management rehabilitative courses. In addition to giving up drugs he no longer smokes and is trying to live a healthy lifestyle by going to the gym six days a week. He was a good and respectful prisoner who helped others whilst in prison. His behaviour in prison was rewarded by being put in a low security compound for the last three years of his sentence. He has engaged in counselling sessions with a support worker from the Australian Vietnamese Women's Association, who provided a letter of support. If released, he wants to work and contribute to the community as well as being a good father. He has accommodation planned with a friend and future employment.
3. The Applicant's friend who has offered him accommodation provided written and oral evidence to the tribunal. He will do whatever he can to support the Applicant if he is released. The Applicant's son gave written and oral evidence to the tribunal. He also wants to support his father and believes that he will not reoffend. The daughter provided a very positive statement of support. His first and second wives both gave positive letters of support. There are numerous other statements of support from friends in the community.
4. The positive factors in favour of the Applicant not reoffending are his abstinence from drugs, his steps towards rehabilitation and positive attitude, his support from his family and the likelihood of employment and stability if he is released.
5. The most significant countervailing factor is the risk of reoffending because the Applicant's period of good behaviour and drug abstinence has occurred whilst outside of the community. I note that as far back as 2003 the sentencing judge expressed a hope that he would not reoffend because he had engaged in rehabilitative programs and had good prospects of employment.[24] It was noted at the time that the Applicant's wife was in court to support him and that his children were aged five and seven years old. Despite these positive factors and having spent time in prison, the Applicant resumed his criminal activity up until his most recent prison sentence beginning in November 2018. This continual pattern of reoffending leads me to believe that there is a very real and significant risk that the Applicant will reoffend if he is released into the community. The support of his family and the prospects of employment have not been enough to keep him away from criminal activity in the past and I am not convinced that it will be enough in the future. I am also concerned that the Applicant may relapse into drug use if he is released into the community. Whilst he has been drug free for about four years, I note that he continued to take drugs even after being removed from the community whilst on remand.
6. I would conclude that there is a very real likelihood of the Applicant engaging in further criminal or other serious conduct. His abstinence from drugs and his good behaviour remain untested in the community.

Conclusion as to protection of the Australian community - 8.1 of Direction 110

1. There is both a backward and forward looking assessment to be made when considering the protection of the Australian community. It requires a consideration of the Applicant's past conduct, namely his violent offending and drug importation and trafficking, and a consideration of the risk of further offending. Further, it is the Government's view expressed in paragraph 8.1.2(1) of the Direction that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I believe that this is a case where the Applicant's 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 is unacceptable. I conclude that the protection of the Australian community is a factor that weighs very heavily against revocation of the cancellation decision.

1. There are reports from Victoria Police of domestic violence in 2007 and 2008 resulting in intervention orders.[25]
2. It was reported that in January 2007 the Applicant became angry and violent towards his wife and used an umbrella to hit her three times and then later hit her twice in the face with an open hand. He then locked the doors and his wife had to climb out through the bedroom window so she could attend at the police station to report the incident. The Applicant was arrested and interviewed in relation to the assault and an intervention order was made in the Sunshine Magistrates' Court on 4 April 2007. Under cross examination the Applicant said that he did not remember if he hit her, but he accepted that there was an incident.
3. There was a further report that on 9 September 2008 the Applicant argued with his wife and slapped her across the face a number of times. The wife attended the Sunshine police station seeking help. It was noted that the earlier intervention order against the Applicant had expired in April 2008. The police expressed great concern for the safety and welfare of the wife and her young children. When asked about this in cross examination, the Applicant said that he did not remember but that he agreed the incident happened. He accepted that his wife feared for her safety. There was a further intervention order granted by the court on 15 September 2008. The Applicant said that he did not remember receiving this intervention order because by that stage he had separated from his wife.
4. The Applicant's son was asked in cross examination about these incidents and he had no specific recollection except to say that he did remember some violence and the police being called after arguments between his parents. He was aware of the intervention orders. The Applicant's first wife was not called to give evidence but she did provide a short statement dated 29 May 2022 in which she did not mention any family violence but expressed her personal opinion that the Applicant is a decent man who values and loves his family.
5. In my view there is sufficient evidence to make a finding that the Applicant engaged in two episodes of family violence towards his first wife in January 2007 and September 2008. I note that the Applicant was not convicted of any offence arising from the circumstances, but the court did issue two intervention orders. These incidents were limited and would not be considered frequent, but they clearly had a serious impact on the Applicant's wife at the time and would therefore be considered serious. The Applicant has not engaged in any rehabilitation directed towards his family violence except for an anger management program. The Australian government has serious concerns about conferring on non-citizens who engage in family violence the privilege of remaining in Australia.[26] These concerns are proportionate to the seriousness of the family violence which in this case was at the lesser end of the spectrum. The evidence of family violence is a factor that weighs against revocation of the cancellation decision.

Strength, Nature and Duration of Ties to Australia - 8.3 of Direction 110

1. This primary consideration provides at paragraph 8.3 of Direction 110:

(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

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.

1. If the Applicant were removed to Vietnam, it would have a significant negative impact upon his son and daughter who have both expressed a desire for their father to be released so that he can play a role in their lives. I also take into account the positive letters of support from the Applicant's first and second wives, his two stepchildren and numerous friends. The Applicant has developed many significant friendships during the 28 years he has been in Australia, as he has both family and social links with Australian citizens.
2. The Applicant has lived in Australia for about 28 years which represents more than half his life. He grew up in Vietnam and arrived in Australia when he was 24 years old. He has contributed to the community by doing some volunteer work and by working as a delivery driver, a waiter and in retail. Despite living in Australia for a long time, I give less weight to this factor because the Applicant began offending soon after his arrival in Australia.
3. In conclusion, I consider that this factor weighs in favour of revocation of the cancellation decision, but I would give it less weight because the Applicant began offending soon after his arrival.

Best interests of minor children - 8.4 of Direction 110

1. There is no evidence of any minor children affected by the decision.

Expectations of the Australian community - 8.5 of Direction 110

1. The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[27] The Applicant has failed to obey the laws of Australia and has engaged in serious criminal activity over a 20 year period. He would therefore be expected to be removed from the community. Given the seriousness and cumulative effect of the Applicant's criminal conduct, there is an unacceptable risk of further re-offending.
2. I conclude that the Australian community expects that the Australian government should cancel the Applicant's visa. This expectation of the Australian community applies regardless of whether the Applicant poses a measureable risk of causing physical harm to the Australian community.[28] There is a real risk of further violence and drug related crime. This is a factor that weighs heavily against revoking the cancellation decision.

1. In deciding whether there is 'another reason' to revoke the cancellation of the Applicant's visa, I must also take into account the 'other considerations' listed in the Direction, where relevant, but these are not exhaustive.[29]

Legal Consequences of Decision - 9.1 of Direction 110

1. As a consequence of affirming the decision under review, the Applicant will be detained upon completion of his sentence and will be liable to be removed from Australia as soon as reasonably practicable. He will not be able to apply for another visa (except for a protection visa). The Applicant has raised no claim of non-refoulement obligations.
2. These are the intended consequences of a visa cancellation and therefore this consideration weighs neutrally in this matter.

Extent of impediments if removed - 9.2 of Direction 110

1. The Direction requires that I consider the extent of any impediments that the Applicant may face if removed from Australia to his home country in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:[30]

(a) the applicant's age and health;

(b) whether there are substantial language or cultural barriers; and

(c) any social, medical and/or economic support available to him in that country.

1. The Applicant is concerned that as a convicted drug dealer he would face discrimination in Vietnam. I accept that there would be a period of adjustment and some difficulties for the Applicant whilst he re-establishes himself because he has not lived in Vietnam for 28 years and because of his criminal history. However, he has returned to Vietnam on at least ten occasions and he has five siblings there with whom he has maintained contact. The Applicant used a Vietnamese interpreter during the hearing, so it is apparent that there would be no language barriers if he were returned.
2. The Applicant is 52 years old and in relatively good health.
3. This is a consideration that weighs in favour of revocation, but I would give it limited weight because the identified impediments are minimal and are not so significant as to prevent the Applicant from establishing himself and maintaining basic living standards in Vietnam.

Impact on Australian business interests - 9.3 of Direction 110

1. There was no evidence of impact on Australian business interests within the meaning of the Direction. This factor is neutral.

1. I have considered the specific circumstances relating to the Applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is 'another reason' to revoke the cancellation decision.
2. The primary considerations of the protection and expectations of the Australian community weigh very heavily against the Applicant because of the seriousness of the offending and the unacceptable harm that would occur if it were repeated. The primary consideration of family violence is also a factor that weighs against the Applicant. The countervailing factors are the Applicant's ties to Australia, in particular his two adult children and the fact that he has lived here for 28 years. The other considerations are not significant.
3. In my view, the primary considerations of the protection and expectations of the Australian community and family violence significantly outweigh the countervailing considerations. The Australian community would not expect the Applicant to remain in Australia after he committed so many criminal acts over so many years. Persons who engage in drug importation and trafficking obtain financial benefits to the very significant detriment of others who are often more vulnerable. Drugs are a scourge in our society and the Applicant contributed to our drug problem. The Applicant should be removed from Australia so as to avoid the risk of further harm. He has asked for one more chance but he has already been given numerous chances. His first two custodial sentences did not deter him from reoffending and I am not satisfied that he is fully rehabilitated. The impact of his removal on his two adult children is significant but he has not been present for much of their lives and they will be able to keep in contact with him in Vietnam and visit him.
4. I am not satisfied that there is another reason for revoking the cancellation decision. The decision under review is affirmed.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten-Jones.

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

[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.

[6] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [24], [36].

[7] [2021] HCA 41.

[9] Direction No. 110 - Migration Act 1958 - Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA ('The Direction').

[21] The Direction (n 9) at 8.1.2(1).

[22] [2014] FCAFC 673; (2014) 225 FCR 424.

[25] Respondent's Supplementary Documents, S1-S4.

[29] SZRTN v Minister for Immigration and Border Protection [2014] FCA 303; (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.