1. Section 501(1) of the Act states the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
2. Section 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record.
3. Section 501(7)(c) states that, for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
4. Under section 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any direction given by the Minster (section 499(2A)).
5. The Minister has issued Direction 110, Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA (the Direction) dated 7 June 2024. The purpose of the Direction is to guide decision makers in performing functions or exercising powers under section 501.
6. Clause 5 of the Direction sets out the Preamble and Objectives. Clause 5.1(1) states the objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test is liable for refusal of a visa or cancellation of their visa.
7. Clause 5.1 (2) indicates that under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
8. Clause 5.2 of the Direction sets out the principles to provide a framework for decision making. These 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 safety of the Australian Community is the highest priority of the Australian Government.

(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

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

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

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

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

1. Clause 8 of the Direction sets out the primary considerations to be taken into account:
   • 8.1 protection of the Australian community from criminal or other serious conduct;
   • 8.2 whether the conduct engaged in constituted family violence;
   • 8.3 the strength, nature and duration of ties to Australia;
   • 8.4 the best interests of minor children in Australia;
   • 8.5 expectations of the Australian community.
2. Clause 9 of the Direction sets out other considerations to be taken into account including:
   • 9.1 Legal consequences of the decision;
   • 9.2 Extent of impediments if removed;
   • 9.3 Impact on Australian business interests.

1. The issues to be determined in this application are:
   1. Does the Applicant pass the character test as set out in section 501(6), and if not,
   2. Whether the discretion in s501(1) to refuse to grant the visa should be exercised, having regard to the Direction.

1. It is not in dispute that the Applicant does not pass the character test.
2. On the evidence before it, including the Australian Criminal Intelligence Check Results Report and the sentencing remarks of His Honour Judge Lynch QC of the District Court of Queensland Criminal Jurisdiction dated 26 August 2021, the Tribunal finds that on 26 August 2021 the Applicant was convicted of trafficking in dangerous drugs and was sentenced to imprisonment for five years, suspended for five years after serving 12 months in custody.[1] The Applicant was also convicted of four other offences and not further punished.
3. The Tribunal finds the Applicant has a substantial criminal record and does not pass the character test set out in section 501(6)(a) of the Act.

Whether the discretion in s501(1) to refuse to grant the visa should be exercised, having regard to the Direction.

1. The Tribunal has considered each consideration set out in the Direction in turn, keeping in mind the principles in clause 5.2 of the Direction.

8.1 The protection of the Australian community from criminal or other serious conduct

1. This consideration requires the Tribunal to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and 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.
2. The Tribunal is required to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
3. The Tribunal should also give consideration to the nature and seriousness of the non-citizen's conduct to date and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

1. Clause 8.1.1(1) states that when considering the nature and seriousness of the Applicant's criminal offending and other conduct to date, the Tribunal must have regard to a number of factors.
2. During the hearing the Applicant adopted his written statements and confirmed his record of offences. The Applicant was ashamed of his past offending conduct and deeply regretted the effect this conduct had on his wife and children due to his arrest, imprisonment and detention, and on the wider community due to the adverse effects of drug related problems.[2]
3. Setting out the relevant events in chronological order, based on the evidence before it, the Tribunal makes the following findings.
4. On 14 February 2017 the police executed a search warrant on a dwelling located in Kallangur. No one was at the dwelling at the time. The dwelling appeared to be in the process of being set up as a hydroponic grow house for mass production of cannabis. The grow house consisted of five rooms with a total of 116 grow lights. Police located 55 cannabis seedlings in a linen cupboard towards the rear of the grow house. The weight of the cannabis was approximately 35 grams. Police entered the roof cavity of the grow house and observed that the power from the electricity mains had been diverted and stolen. Police located a white van in the carport attached to the grow house. Police checks revealed the van was owned by the Applicant. During the search of the grow house and van, police located receipts from Bunnings for items required for producing cannabis. On 14 March 2017 police attended the Applicant's address and questioned him about the van. The Applicant said he had lent his van to a friend of his brother-in-law several months ago and he had not seen it since. Subsequently the police obtained and viewed CCTV footage from Bunnings relating to the receipts located by police. On 20 March 2017 the police executed a search warrant at the Applicant's address and located clothing that matched those worn by the individual depicted in the CCTV footage from Bunnings. The Applicant admitted to being the person depicted in the CCTV footage. The Applicant was subsequently arrested, charged and then bailed. During the charging process the police obtained the Applicant's fingerprints and a sample of his DNA. The Applicant's fingerprints were later matched to fingerprints located on the side of a light power plug from the ceiling of one of the rooms at the grow house. The Applicant's DNA was also matched to a toothbrush located on the bathroom cabinet at the grow house.[3]
5. On 20 September 2017 the Applicant was dealt with by Brisbane Magistrates Court for breach of bail condition. No conviction was recorded, and the Applicant was fined $250. [4]
6. On 6 October 2017 the Brisbane Magistrates Court dealt with the charges against the Applicant of producing dangerous drugs, unlawful taking of electricity, and possessing things used in the commission of a crime. No conviction was recorded on all charges and the Applicant was placed on probation for a period of two years and ordered to perform community service. The order for community service was eventually revoked on 19 June 2018 by Richlands Magistrate's Court.[5]
7. On 30 October 2017 police attended the Applicant's address in response to a disturbance. According to the Queensland Police Service Statement - Police Protection Notice, police spoke to the Applicant's wife who stated she was downstairs washing clothing when she heard her children being sick. She went upstairs to find the Applicant playing games on his laptop computer. The Applicant and his wife had a verbal argument, and his wife slapped the laptop off the Applicant's lap. The Applicant then became angry and kicked his wife in the upper right leg causing bruising. She was holding her 8-month-old daughter at the time. Police spoke to the Applicant about his actions, and he confirmed his wife's version with some minor differences.[6]
8. During the hearing the Applicant's wife gave persuasive oral evidence about this incident. She called the police after the Applicant had kicked her. She also told the Tribunal she was not holding her child at the time of this incident and that the kick did not cause bruising. The Tribunal accepts this oral evidence and finds that while the Applicant did kick his wife as outlined above, she was not holding her 8-month-old daughter at the time, and the kick did not cause bruising. The applicant's wife also told the Tribunal she has forgiven the Applicant for this incident.
9. On the evidence before it, including the Protection Order filed with the Tribunal, the Tribunal finds that on 2 November 2017 the Richlands Magistrates Court issued a Protection Order. The police made the application, the Applicant was the named respondent, and his wife was the aggrieved. The order was made by consent without admissions. The order was in force to and including 1 November 2019.[7]
10. On 26 August 2021 the Applicant was convicted of trafficking in dangerous drugs. The Applicant was sentenced to imprisonment for five years, suspended for five years after serving 12 months in custody.
11. His Honour Judge Lynch QC also convicted the Applicant of four other offences which were part of the overall trafficking in cannabis. Two of the offences were possession of cannabis in excess of 500 grams, one of these offences related to offending conduct on 17 February 2020 and the other on 12 April 2020. The Applicant was also convicted of possessing a phone used in connection with trafficking, and an offence of possession of some money suspected of being the proceeds of an offence in the sum of about a thousand dollars. For these offences the Applicant was convicted and not further punished. The phone and the thousand dollars were forfeit.
12. According to His Honour's sentencing remarks the Applicant was discovered to have been trafficking over the period of 27 December 2019 until he was arrested on 13 April 2020. He was dealing at a wholesale level. Although it would seem he was not a producer, he was able to source significant quantities and was selling those quantities. He had other people who were assisting him, and he would give instructions and encourage those people to continue their engagement and work hard to sell the cannabis. It was recorded that the Applicant stated that he had capacity to sell cannabis in quantities of up to 90 kg. Apparently, the largest supply the Applicant actually engaged in during the trafficking period was the supply of over 11 kilograms. There was evidence of a negotiation about an amount said to be over 22 kilograms, but there was apparently no agreement as to price in respect of that prospective transaction. The Applicant expressed interest in larger transactions, but it seems transactions over 2 kilograms was what the Applicant was interested in rather than smaller transactions. It was said that over this period the Applicant's conduct involved almost daily involvement in the business. He was involved in helping facilitate distribution, seeking out new customers, liaising with existing customers, negotiating prices. The Applicant had possession of cannabis, and coordinated the delivery and receipt of payment, and it is clear from all of this that he was motivated by financial profit.
13. On two occasions the Applicant was found in possession of significant quantities of cannabis. On 17 February 2020 the Applicant was found driving a vehicle and was in possession of 29 and a half kilograms of cannabis in cryo-sealed bags. He also had $1000 in cash in the vehicle. The vehicle was stopped by police. The Applicant's son was asleep in the car.
14. Notwithstanding being charged with possession of the large amount, the Applicant continued to operate the business, albeit it seems he was transitioning the business into the hands of someone else. He was involved in a supply which was intercepted by police on 12 April 2020, and this involved him being in possession of 11.6 kg of cannabis which were in Cryovac bags.
15. The Applicant had made arrangements to meet with someone who was the son of the person who was to be the purchaser, and the supply was interrupted by police. His Honour considered it an aggravating circumstance that the Applicant continued to engage in the trafficking and supply of significant quantities, notwithstanding that he had been charged with the very serious offence of possession of cannabis in February 2020.
16. His Honour considered this should be seen as very significant and serious misconduct. It was engagement in the commercial distribution of significant quantities of cannabis for personal profit. The very large quantities that the Applicant was found in possession of on these occasions alone would have been worth commercially a very significant sum. His Honour also noted the Applicant's relevant criminal history.
17. His Honour considered that in the circumstances, given the Applicant had prior conviction relating to similar conduct, and that the Applicant was arrested for possession of a significant quantity of cannabis during the period of trafficking but nevertheless continued to traffic, the Applicant's offending should be regarded very seriously.
18. His Honour noted the Applicant had entered early pleas of guilty, and His Honour was prepared to regard that, and the Applicant's expressions of remorse, as evidence of genuine remorse on the Applicant's behalf, and that the Applicant had demonstrated he could be a useful member of the community.
19. When considering the nature and seriousness of the Applicant's conduct, clause 8.1.1(1)(a) of the Direction provides a list of matters the Tribunal must have regard to. Without limiting the range of conduct that may be considered very serious, the types of crimes or conduct listed are viewed as very serious by the Australian Government includes acts of family violence regardless of whether there is a conviction or sentence imposed.
20. The Direction states family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful. Examples of behaviour that may constitute family violent include an assault. Member of the person's family for the purposes of the definition of family violence includes a person who has, or has had, an intimate personal relationship with the relevant person.
21. On the evidence before it the Tribunal finds that on 30 October 2017 the Applicant kicked his wife as outlined above, and that caused her to be fearful and call the police. The Tribunal finds the Applicant had, and continues to have, an intimate personal relationship with his wife, and at the relevant time she was a member of the Applicant's family. The Tribunal finds the Applicant has committed an act of family violence as defined by the Direction. This type of conduct is viewed very seriously by the Australian Government and the Australian community in accordance with cl 8.1.1(1)(a) of the Direction.

1. Clause 8.1.1(1)(c) requires the Tribunal to have regard to the sentence imposed by the courts, with the relevant exception of acts of family violence (cl 8.1.1(1)(a)(iii).
2. On 20 September 2017 the Applicant was dealt with by Brisbane Magistrates Court for breach of bail condition. No conviction was recorded, and the Applicant was fined $250. [8]
3. On 6 October 2017 the Brisbane Magistrates Court dealt with the charges of producing dangerous drugs, unlawfully taking of electricity and possessing things used in the commission of a crime. No conviction was recorded on all charges and the Applicant was placed on probation for a period of two years and ordered to perform community service. The order for community service was eventually revoked on 19 June 2018 by Richlands Magistrates Court.[9]
4. On 26 August 2021 the Applicant was convicted of trafficking in dangerous drugs. The Applicant was sentenced to imprisonment for five years, suspended for five years after serving 12 months in custody. The Applicant was also convicted of four other offences which were part of the overall trafficking in cannabis, and not further punished.
5. The Tribunal accepts the Respondent's submissions that sentences involving terms of imprisonment are the last resort and the most serious in the sentencing hierarchy. The Tribunal accepts a sentence of imprisonment for five years suspended for five years after 12 months in custody is a significant sentence and reflects the seriousness of the Applicant's conduct.

Impact of offending on any victims of offending or other conduct and their family

1. There are no victim impact statements before the Tribunal.
2. The Tribunal has taken into consideration His Honour Judge Lynch's QC sentencing remarks that the experience of the courts would demonstrate that the use of cannabis can be very harmful to individuals, particularly young persons and those who are susceptible to mental illness.
3. The Tribunal has also given weight to the Applicant's written statement dated 27 February 2025 in which he states he has undertaken counselling and programs including the course Cannabis and its Impact on Society, and this has helped him understand and learn that his offending contributed to Australia's drug problem, and he now understands the potentially dangerous ingredients used in these drugs could destroy people's lives through mass consumption resulting in addiction, and that he takes full responsibility for his actions and understands the possible and horrific impact drugs have on people's lives and their families through experiencing it first-hand.[10]
4. The Tribunal has also given weight to the oral evidence and written statements of the Applicant's wife in relation to the adverse effects the Applicant's offending and his subsequent arrests, imprisonment and detention had on her and their children. It is clear the Applicant's wife suffered from exhaustion, financial and emotional strain and unstable mental health looking after her children while the Applicant was imprisoned and detained. The Tribunal has taken into consideration the letters from Finley Yarrow Child Protection Social Worker and from Dr Tom Nguyen and Dr Ting Wong in relation to the impact on the Applicant's wife and children.[11] The Tribunal has also given weight to the letters from the Applicant's two oldest children who clearly missed their father while he was imprisoned and detained.[12]

Frequency of offending and any trend to increasing seriousness

1. As noted above, the Applicant has committed nine offences over the relevant period, and the Tribunal accepts the submission that the Applicant's offending indicates a trend of increasing seriousness, noting his initial involvement in the grow house and breach of bail culminating in trafficking in dangerous drugs.

1. The sentencing remarks of His Honour Judge Lynch QC outlines the cumulative effects of the Applicant's repeated offending, noted as aggravating circumstances, as well as being reflected in the sentence, and the impact on the Applicant's wife and children as discussed above. The Tribunal also accepts the submissions that such repeated offending has deleterious effects to and costs on the Australian community.

1. There is no material before the Tribunal to suggest the Applicant has provided false or misleading information to the Department.

1. On the evidence before it, the Tribunal accepts the Applicant has not reoffended since the Applicant was notified of the Department's intention to consider refusal of the visa.

1. The offences and conduct that is the subject of this application occurred in Australia. There is no material before the Tribunal to suggest the Applicant has offended or committed criminal conduct in another country.

Conclusion 8.1.1 Nature and seriousness of the conduct

1. While the Tribunal has considered the submissions from the Applicant that the nature and seriousness of his conduct should be considered as serious, having regards to all the factors set out in cl. 8.1.1, and noting the act of family violence, the significant sentence imposed, the impact of the offending and the frequency and trend of increasing seriousness, as well as the cumulative effect of repeated offending, the Tribunal finds that the nature and seriousness of the Applicant's conduct is very serious.

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

1. The Tribunal has had 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 to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In assessing the risk that may be posed by the non-citizen to the Australian community, the Tribunal must have regard to, cumulatively, the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct, and the likelihood of the Applicant engaging in further criminal or other serious conduct.

Nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct

1. As noted above, the Tribunal accepts the Applicant regrets his offending conduct and is remorseful. The Tribunal also notes His Honour Judge Lynch QC accepted the Applicant was genuinely remorseful.
2. The Tribunal also accepts the Respondent's submission that trafficking in drugs, and in particular cannabis which has been identified as a priority substance for the government, has broad impacts upon the Australian community, including the potential to cause serious physical, psychological injury and/or financial harm to members of the Australian community.[13]
3. The Tribunal also notes His Honour's sentencing remarks state that the trafficking in a dangerous drug such as cannabis is regarded seriously, especially in respect of people who engage in that conduct for profit. The experience of the courts would demonstrate that the use of cannabis can be very harmful to individuals, particularly young persons and those who are susceptible to mental illness.[14]
4. His Honour's sentencing remarks are consistent with the Applicant's written statement that he now understands the possible and horrific impact drugs have on people's lives and their families.[15]
5. On the evidence before it, the Tribunal accepts if the Applicant was to engage in further criminal or other serious conduct, it would cause broad impacts to the Australian community including the potential to cause serious physical, psychological injury and/or financial harm to members of the Australia community, particularly young persons and those who are susceptible to mental illness.

The likelihood of the Applicant engaging in further criminal or other serious conduct

1. In considering this aspect of the consideration, the Tribunal must take into account information and evidence on the risk of the Applicant reoffending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.

Information and evidence on the risk of the Applicant reoffending and evidence of rehabilitation

1. As noted above, the Tribunal accepts the Applicant is remorseful and deeply regrets his offending behaviour. He has stated he understands the adverse impact his offending and subsequent imprisonment and detention had on his wife and children. He has indicated he will not reoffend in the future as he is scared of punishment and imprisonment, and because his wife would be unable to look after his children herself, and he values liberty and freedom and life with his family.[16]
2. The Applicant's wife has also stated that the Applicant now understands that while money is important, his wife and children's health cannot be bought with money, and they need his presence to be there with them. He has had time to reflect on his actions and how that impacts his family. The Applicant has promised her he will never ever do anything wrong because his love for the family is strong and money can never replace them as family. The Applicant's wife has stated her husband has leant a very big lesson in a very hard way.[17]
3. There are no historical or contemporaneous risk assessment of the Applicant before the Tribunal. The Tribunal has considered the Applicant's written reasons why he committed the offences in order to understand the circumstances of his offending, his motivations, and identify any protective factors that may affect the risk of the Applicant reoffending.
4. In his written statement dated 27 February 2025 the Applicant outlined the reasons why he committed the offences and his commitment to not repeat his offending behaviour. The Tribunal has set this out in summary below.
5. In relation to the breach of bail conditions dealt with by the Brisbane Magistrates Court on 20 September 2017 the Applicant stated he had been complying with the reporting requirements of his bail but due to an accident on the highway he arrived late and was not allowed to sign. He was taken to court and paid a fine and he asked the court to extend the time for him to sign, which the court agreed, and he was never late again.
6. In relation to Dangerous Drugs and related offences dealt with by the Brisbane Magistrates Court on 6 October 2017 the Applicant stated he did not fully understand the law and trusted customers who asked for his help carrying and transporting items into their house. They also asked him to install light bulbs and do some wiring and during the period of February 2017 they borrowed his car and did not return it. When the police arrived, his car was in the garage, and no one was home. He had no idea the situation would lead to him being considered a criminal. His daughter was born on 12 February 2017, and he was arrested on 14 February 2017. He was advised to plead guilty to save legal costs, and that the criminal charge would not be recorded or affect his life later on. He accepted the charges to move on with his life and he thought it was a mistake to hang around with bad people and it's a lesson learned.
7. In relation to the crime and arrest on 12 February 2020 the Applicant set out the background to his circumstances and how he and his wife were very worried and stressed about their finances and feared they could not provide for their children. As a husband and father, he felt hopeless that he could not support his family, and he could not stand his wife being extremely worried about their financial situation. At the time of desperate need, a person influenced him to traffic dangerous drugs to earn money. The Covid 19 pandemic changed everything in the blink of an eye and business was hit hard. He lost his jobs and his wife's business was forced to close. The choice he made was not out of malice but out of deep and overwhelming fear that his family could perish. He was not addicted to drugs, alcohol or any other form of addictions. He committed the crime in an attempt to save his own family, but he was wrong. He has destroyed his family even more, irreversibly.
8. He thought the drugs were for medical needs, similar to America where people consume it to relieve medical problems, and was not extremely dangerous. After approximately 2 months he was arrested on the way to Sydney from Brisbane.
9. In relation to the arrest on 17 April 2020 the Applicant stated he was forced into it. His earlier arrest meant the police confiscated all the cannabis and he was held responsible for the losses. The people who hired him to transport it began to threaten to harm his wife and children and even his parents. They knew where he lived, where his children went to school, and where his parents were in Vietnam. Out of fear for their safety he had no choice but to follow their demands. Shortly after he was arrested, it became clear they knew the police were aware of their activities and they stopped looking for him.
10. He knew what he was doing was illegal but at that moment he felt there was no other way. He was blinded by fear of what might happen to his family and was forced to make a decision in desperation to protect them.
11. In relation to the offences between 27 December 2019 and 13 April 2020, the Applicant stated that at the time he was in a desperate situation and felt cornered by the threats he was facing from those who hired him. They had made it clear that his family was at risk if he did not comply with their demands. With no way out he was forced into continuing the illegal activities even after his first arrest, which later led to further charges when law enforcement connected the events. The legal consequences of his actions were something he did not fully comprehend at the time, and he was overwhelmed by fear for his family's safety and felt powerless to make the right decision. He deeply regrets the choices he made and now understands the law has its own way of dealing with such offences.
12. The Tribunal has considered the Respondent's submissions in relation to risk of reoffending, and the Tribunal agrees with the submissions that the Applicant's reasons for his offending conduct relating to the grow house in 2017 are not consistent with his plea of guilty or the sentencing remarks of His Honour Judge Lynch QC.
13. In relation to the Applicant's offending conduct between 27 December 2019 and 13 April 2020, the Tribunal accepts the Respondent's submissions that the Applicant's offending conduct began prior to the impact of the Covid 19 pandemic, and the Tribunal accepts the Applicant was motivated by financial reasons.
14. The Tribunal also notes the Applicant's reasons that he was threatened and had no choice are not consistent with the sentencing remarks of His Honour Judge Lynch QC which indicate the Applicant was motivated by financial profit, and was very active in the business facilitating distribution of cannabis, and seeking new clients, and liaising with existing clients and negotiating prices, albeit while transitioning the business into the hands of someone else.
15. The Tribunal has given weight to the counselling, courses and programs undertaken by the Applicant including the counselling and psychological program Cannabis and its Impact on Society completed on 15 December 2023, Certificate III in Business completed on 3 August 2022, Statement of Attainment Enter and Work in Confined Spaces and Work Safety at Heights completed on 14 July 2022, Anger Management Techniques completed on 12 December 2023, Drug and Alcohol Abuse completed on 22 December 2023, Workplace Drug Use completed on 22 December 2023, Pursuing Happiness completed on 25 January 2025, Anti-Aging Techniques completed on 26 January 2025, Anxiety Therapy completed on 29 January 2025. The Tribunal also accepts the Applicant has attended over 50 sessions of counselling on a weekly / fortnightly basis with Queensland Program of Assistance to Survivor of Torture and Trauma (QPASTT) since August 2023.[18]
16. The Tribunal has also given weight to the time the Applicant has spent in the community since his most recent offence, including the Applicant's time on bail prior to imprisonment on 26 August 2021. The Tribunal has also given weight to the time the Applicant has spent in the community since he was granted his BVR on 4 August 2025, and the Tribunal accepts the Applicant has not reoffended in that time.
17. The Tribunal notes that despite the Applicant's previous employment and his wife's previous business venture, the applicant experienced financial stress, which was a reason for him to undertake some of his offending behaviour prior to the impact of Covid 19 and the further financial hardship. Therefore, the Tribunal considers the Applicant's current employment and his wife's current business provides only limited protective factors against the Applicant reoffending.
18. While the Tribunal has considered the submissions that the Applicant's current circumstances are not significantly different to his circumstances when he offended, and that the risk of the Applicant reoffending remains real and unacceptable, the Tribunal does accept the Applicant's circumstances have changed, and that he is now remorseful and fears future imprisonment. The Tribunal also considers the Applicant's participation in counselling, courses and programs, and his experience of imprisonment and detention, the separation from his family, knowledge of the effects his offending had on his wife and children, and the continuing support from his wife, provide further protective factors against reoffending.
19. The Tribunal has taken into account the information and evidence on the risk of the Applicant reoffending, and the evidence of rehabilitation as noted above. The Tribunal accepts the Applicant may experience financial stress in the future similar to that which motivated his past offending conduct, and therefore the risk of reoffending continues to exist and is real. Nevertheless, the Tribunal does not accept this is an unacceptable risk. The Tribunal considers the Applicant's rehabilitation, and the protective factors noted above have changed the applicant's circumstances and his understanding of the costs of such actions, and the Tribunal considers the likelihood of the Applicant engaging in further criminal or other serious conduct is low to moderate.
20. In relation to clause 8.1.2(2)(c), where consideration is being given to whether to refuse a visa, whether the risk of harm may be effected by the duration and purpose of the non-citizen's intended stay and the type of visa being applied for, and whether there are not strong or compassionate reasons for granting a short stay visa, the Tribunal accepts the Respondent's submissions that the visa the Applicant has applied for is not a short stay visa. The Tribunal accepts the applicant wishes to remain in Australia indefinitely. While the Tribunal has considered the Respondent's submission that in those circumstances the risk of harm increases because there is more time for future illegal activity, the Tribunal also considers the protective factors noted above will also remain in place over an extended period of time, and the Tribunal does not accept the risk of harm is affected by the duration and purpose of the intended stay.

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

1. Having considered, cumulatively, the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct would cause broad impacts to the Australian community including the potential to cause serious physical, psychological injury and/or financial harm to members of the Australia community, particularly young persons and those who are susceptible to mental illness, and the likelihood of the Applicant engaging in further criminal or other serious conduct as low to moderate, and having regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, the Tribunal considers the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct is moderate.

Conclusion: 8.1 The protection of the Australian community from criminal or other serious conduct

1. Having considered the nature and seriousness of the conduct as very serious, and the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct as moderate, the Tribunal has concluded that the protection of the Australian community consideration weighs heavily in favour of refusing to grant the visa.

8.2 Family violence committed by the Applicant

1. Paragraph 8.2(1) states the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
2. As noted above, on 30 October 2017 the Applicant kicked his wife, and the Tribunal finds the Applicant committed an act of family violence. On 2 November 2017 the Richlands Magistrates Court issued a Protection Order by consent without admissions in force to and including 1 November 2019.
3. The Tribunal also accepts the Applicant's wife has forgiven the Applicant and while they were physically separated due to the Applicant's imprisonment and detention, they have continued their relationship since that time.
4. In considering the seriousness of the family violence engaged in by the Applicant the Tribunal must take into account a number of factors where relevant, including the frequency of the conduct and whether there is any trend of increasing seriousness, the cumulative effect of repeated acts of family violence, rehabilitation achieved at the time of decision including the extent to which the person accepts responsibility for their family violence related conduct, the extent to which the person understands the impact of their behaviour, and the efforts to address factors which contributed to their conduct.
5. On the evidence before it, the Tribunal finds the Applicant's act of family violence occurred once and has not been repeated, and there is no trend of increasing seriousness, and no repeated acts of family violence.
6. The Tribunal accepts the Applicant has accepted responsibility for his act of family violence and understands the impact of his behaviour on his wife. The Tribunal also accepts the Applicant apologised and has undertaken programs noted above including a program on Anger Management Techniques.
7. While not wishing to diminish the act of family violence, given the factors noted above, the Tribunal considers the Applicant's act of family violence is on the lower end of seriousness for such conduct.
8. On balance, the Tribunal considers the family violence committed by the Applicant provides some limited weight in favour of refusing to grant the visa.

8.3 The strength, nature and duration of ties to Australia

1. The Tribunal has considered the evidence before it in relation to the strength, nature and duration of the Applicant's ties to Australia. The Tribunal has considered the oral evidence and written statements of the Applicant and his wife as well as the letters from their two oldest children and the letters in support filed with the Tribunal.
2. On the evidence before it, the Tribunal finds the Applicant initially arrived on Christmas Island in May 2013 and has been living in the Australia community since 2014 until he was imprisoned in 2021. As noted above, he was released from detention on a BVR on 4 August 2025. He met his wife while volunteering at their church in November 2014 and they were married in April 2015. They now have three children, the first born in 2015, the second in 2017 and the third in 2018.
3. The Applicant has worked and paid taxes in Australia and is currently employed as a tiler. The Applicant is active in his Church community as well as undertaking volunteer efforts to rescue victims of human trafficking.
4. The Tribunal accepts the Applicant is in an ongoing long-term marriage with his wife, despite their physical separation while he has been imprisoned and in immigration detention. Since his release they have continue to live together and parent their children together. The Tribunal accepts the Applicant plays an active parental role for his children and helps to alleviate the pressure on his wife and the full parental role she was required to undertake while he was imprisoned and in detention.
5. The Applicant has expressed his concern and feelings of helplessness when his wife was hospitalised with physical exhaustion while he was imprisoned and in detention, her subsequent hospitalisation due to mental illness, and the interaction with child safety authorities to place the children in foster care over that period.
6. The Applicant's written statement dated 14 September 2025 sets out in detail his relationship with his children and his current parental activities including encouraging them in their educational and personal interests.
7. The Tribunal has given weight to the Applicant's wife's oral evidence and written statement in relation to her support and wish for the Applicant to remain with her in Australia and to raise their children together. The Tribunal has given weight to the letters from the Applicant's wife's doctors in relation to the adverse mental health affects the Applicant's absence through incarceration and detention had on his wife, and on her ability to care for their children alone. The Tribunal has also given weight to the letters from the Applicant's two oldest children, and how they felt when separated from him and their hopes he will stay with them. [19]
8. The Tribunal has also taken into consideration the letters in support provided to the Tribunal including from Adam Stemhouse Child Safety Officer, Reverend Joseph Vu of the Vietnamese Catholic Community Brisbane, John Muni a former employer, and Hoang Tran of Probuilding Services. The Tribunal has given weight to the letters from Tuan Van Hoang who met the Applicant through church, Thi Thu Cuc Nguyen a friend, Tran Van Lieu a friend from Church, Thuy Thi Tran owner of Jenny Fashion Nails, as well as the letters from Treu Binh Nguyen, Van Tho Tran, Minh Thanh Doan, Nguyen Mai, Nguyen Trung Phuong, members of the Applicant's church community.[20] The Tribunal has also given weight to the letters acknowledging the Applicant's volunteer work and acts of kindness in seeking to help victims of human trafficking including from Ho Mai Phung Thao, Tran Thi Huong, Phan Thanh Hong, Hunh Ngoc Thinh, Pham Thi My Ngan, Tran Thanh Hoang, Vo Minh Tien.[21]
9. The Tribunal accepts the Applicant has close and deep ties to his wife and children in Australia, as well as ongoing respectful ties to people in his profession, in his community including his church community, and the community he volunteers with to alleviate the effects of human trafficking.
10. The Tribunal accepts refusing the visa would disrupt the Applicant's relationship with his wife and children. The Tribunal accepts this would cause emotional and mental distress, and financial hardship for the Applicant's wife. It would also cause emotional distress and hardship for his children and adversely affect their plans for him to play an active and positive role in their lives. The Tribunal also accepts refusing the visa would adversely affect the Applicant's relationship with his friends and members of his community, church community and his volunteer network.
11. The Tribunal has given weight to the time the Applicant has been in Australia and positively contributing to the Australia community between when he arrived in the community in 2014 until his first offending in 2017, as well as his time on bail prior to being imprisoned on 26 August 2021, and his time in the community since being release from detention on 4 August 2025.
12. The Tribunal considers the Applicant has strong ties to Australia through his ongoing relationship with his wife and children, his work, friends, church and volunteer community, although some of these relationships have been limited since he was imprisoned and then detained. While the Applicant arrived in the Australian community over 10 years ago, he has spent nearly four years of that time in some form of detention. Overall, the Tribunal considers the strength, nature and duration of the Applicant's ties to Australia provides moderate weight in favour of not refusing the visa.

8.4 Best interest of minor children in Australia affected by the decision

1. The Applicant has three children in Australia all under the age of 18, who would be affected by the decision.
2. The Tribunal accepts the Applicant's wife experienced exhaustion and her mental health conditions required clinical intervention and child safety services involvement while the Applicant was imprisoned and in detention. The Tribunal accepts that since the Applicant's release from detention on 4 August 2025 the Applicant has been involved in shared parenting with his wife and the daily care of his children, including in their school routines, medical appointments, emotional support, and taking them to extra-curricular activities. In his written statement dated 27 February 2025 the Applicant expressed his wish to take his daughter to therapy and classes to assist in her communication skills and autism, and improve her language, communication and social skills. He also plans to help with his youngest son's medical appointments due to his congenital kidney problems, as well as taking his whole family out socially and to church.
3. While the Applicant has been absent for a long period while imprisoned and in detention, the Tribunal accepts he has played a positive parental role in each of his children's lives before and after he was separated from them.
4. The Tribunal accepts the Applicant plans to, and is likely to, play a positive parental role into the future for each of his children, and the Tribunal has given weight to the length of time that means for each child until they turn 18, noting his eldest is currently 10 years old, his second eldest is 8 years old, and his youngest child is 7 years old.
5. The Tribunal accepts the impact of the Applicant's prior conduct meant for each child separation from their father. It also had an adverse impact on their mother, leading to exhaustion and subsequent hospitalisation due to mental illness and interaction with child safety authorities to place the children in foster care. The family and children were supported by Child Safety, Seniors and Disability Services over that time as well as QPASTT.[22] The Tribunal has taken into consideration the letters from Finley Yarrow Child Protection Social Worker, from Dr Tom Nguyen and Dr Ting Wong, and the letter from the children's school, in relation to the impact on the children.[23]
6. While the Tribunal accepts the Respondent's submissions that if it decides to refuse the visa, the immediate effect would be the Applicant will remain on a BVR, the Tribunal also accepts he may be removed from Australia and that separation would have an adverse effect on his children, possibly leading to similar consequences as when he was imprisoned and in detention. While the Tribunal accepts the Applicant and children could maintain contact by telephone, the Tribunal also accepts separation would profoundly change their current circumstances.
7. The Tribunal accepts the Applicant's wife also plays a parental role in the children's lives, and notes she struggled as the full-time sole parental carer while the Applicant was imprisoned and in detention.
8. The Tribunal has given weight to the letters provided by the Applicant's two oldest children and the Tribunal accepts the Applicant's children wish him to remain present in their daily lives.
9. While the Tribunal accepts the two oldest children were present in the house during the one incident of family violence on 30 October 2017, there is no evidence before the Tribunal that they have been or are at risk of being subject to or exposed to family violence from the Applicant or have otherwise been abused or neglected by the Applicant in anyway, whether physically, sexually or mentally.
10. The Tribunal accepts the Applicant's offending conduct meant the children missed their father while he was imprisoned and in detention and his absence had a profound impact on their mother's mental health and ability to care for them and led to a period of foster care for the children.
11. As noted above, while the Tribunal accepts the Respondent's submissions that if it decides to refuse the visa, the immediate effect would be the Applicant will remain on a BVR, the Tribunal also accepts if it refuses the visa the Applicant may be removed from Australia, and the worry about possible separation would have an adverse effect on his children, and actual separation may lead to similar consequences as when he was imprisoned and in detention. The Tribunal does not accept the Respondent's submissions that this consideration should be given neutral weight.
12. The Tribunal accepts the Applicant's eldest child has had the longest relationship with the Applicant out of all his children due to the child's age, and having considered all the factors set out in 8.4 of the Direction, the Tribunal finds that refusing the visa under s 501 is not in the best interests of the Applicant's eldest child.
13. The Tribunal also accepts the Applicant has played an important parental role to his second eldest child since they were born in 2017, and he continues to do so despite the period of absence. Having considered all the factors set out in 8.4 of the Direction, the Tribunal finds that refusing the visa under s 501 is not in the best interests of the Applicant's second eldest child.
14. The Tribunal also notes that while the Applicant's youngest child, born in 2018, was still very young when the applicant was absent due to imprisonment and detention, the Tribunal accepts the Applicant plays an important parental role to this child, and having considered all the factors set out in 8.4 of the Direction, the Tribunal finds that refusing the visa under s 501 is not in the best interests of the Applicant's youngest child.
15. The Tribunal considers the best interest of these minor children in Australia affected by the decision provides significant weight in favour of not refusing the visa.

1. The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
2. Clause 8.5(2) of the Direction sets out examples of conduct that would raise serious character concerns that the Australian community would expect that a person who undertook such conduct would not continue to hold a visa, and includes acts of family violence.
3. On the evidence before it, the Tribunal finds that since the Applicant arrived in the Australian community in 2014, he has committed nine offences, from his initial involvement in the grow house and breach of bail in 2017 culminating in trafficking in dangerous drugs between 27 December 2019 until he was arrested on 13 April 2020. The Applicant has also committed an act of family violence.
4. While the Tribunal has considered the Applicant's submissions in relation to the expectations of the Australian community, the Tribunal finds the Applicant has failed to obey laws while in Australia and has engaged in serious conduct in breach of the Australian community's expectations.
5. The Tribunal considers the expectations of the Australian community weighs significantly in favour of refusing to grant the visa.

1. In making a decision under section 501(1), the Tribunal must also take into account the following considerations.

1. It is not in dispute that the Applicant is a citizen of Vietnam and is the subject of a protection finding following the decision of the Administrative Review Tribunal (differently constituted) on 8 February 2025.[24]
2. In accordance with the decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, the Applicant was released into the Australian community on a BVR on 4 August 2025 (as part of the NZYQ cohort).
3. The Tribunal accepts the Respondent's submissions that in accordance with s 197C(3) of the Act, the Applicant's removal under section 198 of the Act is neither required nor authorised, and therefore the Applicant will not be removed to his home country.
4. The Applicant has submitted that in August 2025 Australia signed an MoU with Nauru in which Nauru agreed to resettle (i.e. accept visas for) members of the NZYQ cohort. The Applicant submitted that the agreement provides a real prospect of the Applicant being removed from Australia if he is not granted a protection visa. Once the Nauruan visa is issued, the person's Australian bridging visa is cancelled by law and there is an obligation to detain them in Australia pending removal to Nauru.
5. The Applicant submitted there was now a real chance of the Applicant being removed to Nauru following the recent agreement, and the Tribunal should therefore consider the real prospect of the Applicant being removed from Australia under the new Nauru agreement. It was submitted the Applicant's removal would seriously impact the Applicant's family and the interests of his children.
6. The Respondent submitted the legal consequences to which the Tribunal must have regard are the direct and immediate statutorily prescribed consequences. The Tribunal should confine its consideration to the direct legal consequences of the decision, and not speculate about what the Minister (or anyone else) may make in the future, however real the prospects of those decisions are.[25] The Respondent submitted the immediate statutory consequences of the decision to affirm the delegate's decision is that the Applicant will continue to hold the BVR that he currently holds. The BVR permits his continued residence in the community.
7. The Respondent submitted the Applicant is now residing in the community as a lawful non-citizen and is not a person towards whom steps have been taken or will be taken in the reasonably foreseeable future for the purposes of removal to Nauru pursuant to the MoU. On questioning, the Respondent was unable to identify the period of time "in the reasonably foreseeable future" referred to.
8. The Tribunal accepts the submissions that the Applicant will face a higher degree of uncertainty as a BVR holder as compared to a non-citizen on a permanent visa, and for the time he remains on a BVR, there is a possibility that the Applicant might become subject to a s 76AAA of the Act. If the Applicant becomes subject to s 76AAA of the Act, that will be because he has been granted a visa to enter and reside in Nauru.
9. The Tribunal also accepts the Applicant's submissions that the Applicant's removal would have serious impact on his family and the interest of his children.
10. The Tribunal also accepts if the Tribunal refuses to grant a visa the Applicant would be prohibited from applying for another visa and/or be subject to periods of exclusion as a result of ss 189,196, 501E and 501F of the Act.
11. Therefore, on the evidence before it, the Tribunal considers the legal consequences of the decision provides some weight in favour of not refusing to grant the visa.

1. Under this consideration the Tribunal must consider the extent of any impediments the Applicant may face if removed from Australia to his home country.
2. However, the Applicant is the subject of a protection finding in respect of his home country Vietnam, and cannot be returned to that country.
3. It is not in dispute that this consideration does not extend to impediments the Applicant may face if removed to a country other than their home country, and both the Applicant and Respondent have submitted this consideration is not engaged.
4. In these circumstances the Tribunal agrees this consideration is not engaged and the Tribunal has concluded this consideration neither weighs for nor against refusing to grant the visa.

1. The Tribunal must also consider any impact on Australian business interests if the Applicant is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
2. Both the Applicant and Respondent have submitted this consideration should be given no weight or natural weight as it is not engaged in the Applicant's circumstances. While the Tribunal notes the Applicant's previous work in Australia, and his current employer as a tiler, the evidence before the Tribunal does not indicate the Applicant's employment would fall into the category contemplated by this clause, and the Tribunal has concluded this consideration neither weighs for nor against refusing to grant the visa.

1. As noted above, the Applicant does not pass the character test under section 501 of the Act, and the Tribunal has to decide whether the discretion in s501(1) to refuse to grant the visa should be exercised, having regard to the Direction.
2. The Tribunal has given appropriate weight to information from independent and authoritative sources, and the primary consideration at clause 8.1 has been given greater weight than the other primary considerations, while the other primary considerations have been given greater weight than the other considerations, in line with the Direction. The Tribunal has also taken the principles set out in 5.2 of the Direction into consideration.
3. Having considered the specific circumstances relating to the Applicant, the Tribunal considers the protection of the Australian community from criminal or other serious conduct weighs heavily in favour of refusing to grant the visa. The family violence committed by the Applicant provides some limited weight in favour of refusing to grant the visa. The strength, nature and duration of the Applicant's ties to Australia provides moderate weight in favour of not refusing to grant the visa, and the best interests of minor children in Australia affected by the decision provides significant weight in favour of not refusing to grant the visa. The expectations of the Australian community provide significant weight in favour of refusing to grant the visa. Of the other considerations, the legal consequences of the decision provides some weight in favour of not refusing to grant the visa. The extent of the impediments to the Applicant if removed and the impact on Australian business interests neither weighs for nor against refusing to grant the visa.
4. While there are considerations that weigh in favour of the Applicant including the strength, nature and duration of his ties to Australia, and the best interests of minor children in Australia, and the legal consequences of the decision, the primary consideration at clause 8.1 must be given greater weight than the other primary considerations, and the other primary considerations given greater weight than the other considerations, and taking into consideration the principles set out in 5.2 of the Direction, the Tribunal has concluded the primary considerations of the protection of the Australia community, conduct engaged in constituting family violence, and the expectations of the Australian community weigh heavily in favour of refusing to grant the visa, and on balance, outweigh the considerations in favour of not refusing to grant the visa.
5. Having weighed up all the factors as part of a single evaluation, the Tribunal is satisfied the discretion in s 501(1) to refuse to grant the visa should be exercised, having regard to the Direction.

1. The decision to refuse to grant the Applicant a Safe Haven Enterprise (Class XE) visa is affirmed.

...................[SGD]..........................

Counsel for the Applicant: Mr Jackson, Counsel and Ms Hoang, Solicitor

Solicitor for the Respondent: Mr Kirstenfeldt, Sparke Helmore

[25] Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [31]-[33] per Flick J.