MIGRATION - visas - cancellation of visa on character grounds where substantial criminal record - request for revocation of cancellation decision under s 501(1) of the Migration Act 1958 (Cth) ("the Act")- consideration of Ministerial Direction No. 110 - consideration of ss 501(3A), 501(6) and 501(7) of the Act - Legal consequence of cancellation - best interests of the child - decision under review is set aside

Migration Act 1958 (Cth)

SCJD v Minister [2018] AATA 4020

SCJD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5214

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 252

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024)

1. Mr Nguyen is a citizen of Vietnam who arrived in Australia on a Partner (Provisional) visa on 29 October 2005 as a dependent of his father. He was subsequently granted a permanent visa, then held a Resident Return visa from 2012 until this visa was cancelled.
2. On 30 April 2021, Mr Nguyen was convicted of trafficking in a controlled drug, money laundering and possessing prescribed equipment. This relates to two different series of offences on 3 May 2020 and 13 August 2020. He was sentenced to imprisonment for eight years, two months and 22 days with a non-parole period of four years and six months.
3. As a result of this offending his visa was cancelled, and Mr Nguyen seeks revocation of the decision to cancel his visa.

1. Mr Nguyen arrived in Australia when he was 19 years old in 2005 with his father as a dependent child.
2. His parents divorced in 2000, and his mother is currently in Australia on a bridging visa. His father, paternal grandmother, uncles and cousins are in Australia. His maternal grandfather and maternal aunts and uncles live in Vietnam.
3. In Australia, Mr Nguyen has worked as a farmhand, in a chicken factory, and worked for his cousin's nail salon transporting workers from Adelaide to Murray Bridge. He was unemployed from 2016, and his lack of English has made it difficult for him to obtain further employment.
4. He married his first wife in 2007, and they have a daughter who was born in 2011. He separated from his first wife in 2013 and they divorced in 2014. Mr Nguyen married a second time in 2015 and separated from his second wife in 2019.
5. During his unemployment and following the breakdown of his second marriage he became addicted to gambling and started incurring debts. He said he was approached by a person to whom he owed a debt who said he could make money selling heroin. Mr Nguyen says he has not used drugs and was not addicted to drugs
6. Mr Nguyen said he lived with his paternal grandmother until 2018 when he moved out to live separately with his daughter. His mother was visiting from Vietnam, and he was living with his daughter and mother when he was arrested in May 2020. He was released on home detention bail but was again arrested on 13 August 2020 and remanded in custody. He was released on parole into immigration detention on 30 April 2025.

1. On 30 April 2021, Mr Nguyen was convicted of trafficking in a controlled drug (two counts), knowingly engaging in money laundering, money laundering (two counts) and possessing prescribed equipment_._ He was sentenced to a term of imprisonment of eight years, two months and 22 days imprisonment with a non-parole period of four years and six months.
2. The sentencing remarks of Judge McEwan record that the first set of offences stemmed from a police search of Mr Nguyen's house on 3 May 2020, during which officers found 175.8 grams of heroin, various items associated with drug trafficking and $38,000 in cash. He was arrested and released on home detention bail.
3. Three months later, while Mr Nguyen was on home detention bail, police conducted a search of his vehicle and home, finding 25.42 grams of heroin and $11,190 in cash.
4. Judge McEwan noted that the first set of offences involved a 'significant commercial activity' with a substantial quantity of heroin and a considerable amount of funds derived from that activity. Although the quantity of heroin and cash found during the 13 August 2020 search was less than what was discovered on 3 May 2020, Judge McEwan also considered this to be a 'significant amount of heroin of significant value'. Judge McEwan emphasised that the second set of offences occurred three months after Mr Nguyen was released on home detention bail.
5. Mr Nguyen says he was depressed following the breakdown of two relationships and insecure with his finances. He said he wanted money to support his daughter and did not have much savings or a house of his own. He believed he could make quick wins and gambling became a habit. He incurred debts and started selling drugs to pay his debts.

1. Under s 501(3A) of the Migration Act 1958 (Cth) ('the Act'), the Minister must cancel a non-citizen's visa if (among other things) the person does not pass the character test because the person has a substantial criminal record as defined by s 501(6)(a) of the Act, and the person is serving a full-time sentence of imprisonment for an offence against the Commonwealth, a State or Territory.
2. The character test is set out at s 501(6) of the Act and includes at s 501(6)(a) that a person does not pass the character test if they have a substantial criminal record as defined in s 501(7) of the Act. A person has a substantial criminal record if, among other things, the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c) of the Act). This include circumstances where a sentence is imposed for two or more offences (s 5AB of the Act).
3. Under s 501CA(4) of the Act, the Minister may revoke the original decision to cancel if the person makes representations in accordance with the invitation and the Minister is satisfied that the person passes the character test or there is another reason why the original decision should be revoked.
4. If the Applicant does not meet the character test and has made representations that the cancellation of his visa should be revoked, the remaining issue is whether there is another reason the decision to cancel his visa should be revoked.

1. On 30 April 2021, Mr Nguyen was sentenced to a term of imprisonment of over eight years. It is conceded he has a substantial criminal record and does not pass the character test. As a result, his visa must be cancelled under s 501(3A) of the Act.

Has Mr Nguyen sought revocation of the cancellation?

1. A person whose visa has been cancelled under s 501(3A) can seek revocation of that cancellation under 501CA(4) of the Act. This provides that:

(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

1. On 15 July 2021 Mr Nguyen made the representations required by ss 501CA(4)(a) seeking revocation of the mandatory cancellation of the visa.

Is there another reason the cancellation should be revoked?

1. As he does not meet the character test and has made representations that the cancellation of his visa should be revoked, the remaining question is whether there is another reason why the cancellation of his visa should be revoked.
2. The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA ('the Direction'). The Direction applies to this Tribunal in making a decision under s 501 or s 501CA of the Act, and I must apply the Direction.

1. Clause 5.2 of the Direction provides principles to provide a framework to approach 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]

1. The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:

(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(2) The primary consideration ... (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

(3) One or more primary considerations may outweigh other primary considerations.[2]

1. The Direction contains five primary considerations, which are:

(1) The protection of the Australian community from criminal or other serious conduct;

(2) Whether the conduct engaged in constituted family violence;

(3) The strength, nature and duration of ties to Australia;

(4) The best interests of minor children in Australia;

(5) The expectations of the Australian community_._[3]

1. The Direction contains three other considerations, which are the legal consequences of the decision, the extent of impediments if removed, and the impact on Australian business interests.
2. Each of the primary and other considerations have been considered.

1. The Direction requires decision-makers 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, and that entering or remaining in Australia is a privilege conferred in the expectation that non-citizens are and have been law abiding, respect important institutions and will not cause or threaten harm to individual or the Australian community.[4]
2. Decision-makers are to consider 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.[5]

1. The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[6]
2. Mr Nguyen has been convicted of trafficking, money laundering and possession of prescribed equipment. The Minster submits these should be considered serious as crimes committed against vulnerable members of the community under clause 8.1.1(b)(ii) of the Direction. The Minister did not put forward source material on how the offending is against vulnerable members of the community or elicit specific information from Mr Nguyen about the people to whom he sold drugs. There is no comment about the people to whom Mr Nguyen sold drugs in the sentencing remarks. Mr Nguyen acknowledged at the hearing that it was bad to sell drugs because people become hooked on the drugs but was not asked about the people who bought drugs from him or their vulnerabilities. There is no other information before me on the impact of drug use on those who purchased drugs or their families.
3. The Minister relies on the observations in SCJD v Minister [2018] AATA 4020 (the first SCJD decision) about the vulnerability of people who use heroin. This matter was remitted with the consent of the Minister and a further decision made in SCJD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5214 (the second SCJD decision) in which no comment, was made on the vulnerability of people who use heroin. The comments made in the first SCJD decision are the opinions of the member who decided that matter on the facts of that case and do not establish that the crimes committed were against vulnerable members of the community, and the offences are not serious because of clause 8.1.1(b)(ii) of the Direction.
4. However, the sentence imposed by the Court was imprisonment for eight years six months and 22 days. This is a significant sentence and displays the gravity of the offending.
5. Mr Nguyen has been convicted of two offences committed in 2020. His offending is infrequent and of the same kind, so it does not show a trend of increasing seriousness.
6. Of greater concern is that Mr Nguyen repeated the same offence while on home detention bail following his arrest for drug trafficking, money laundering and possessing prescribed equipment. He said he was aware of the conditions of his home detention bail and the seriousness of committing another offence while he was on home detention bail. He said he started dealing drugs again after his arrest because his debtor called and said he could use the money to pay for a lawyer, and he did not know he could ask for Legal Aid. That he again committed the same offence while on home detention bail adds to the seriousness of the second set of offences, and there is a cumulative effect from the second set of offences being committed while Mr Nguyen was on home detention bail.
7. As his visa had not yet been cancelled, there is no information before me to show that this reoffending occurred when Mr Nguyen was aware of the effect of further offending on his visa status.
8. In closing the Minster made a submission that Mr Nguyen commencing selling drugs prior to the offences for which he was convicted. The Minister had asked indirect questions on this topic to Mr Nguyen, such as the date he started incurring debt and when he was first asked to sell drugs. The Tribunal asked if a warning again self-incrimination was required, particularly if referring to events prior to the conviction and the Minister advised it was not. Mr Nguyen was not advised of his privilege against self-incrimination. The Minister submitted his earlier conduct and formed part of the conduct for which he was convicted. I do not accept that prior conduct forms part of a course of conduct leading to the offences of 20 May 2020 and 13 August 2020. In these circumstances I do not rely on his indirect evidence and decline to make the inference invited by the Minister that he was trafficking or selling drugs prior to that time.
9. Overall, I consider the offending is serious as shown by the lengthy sentence of imprisonment.

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

1. The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Clause 8.1.2 of the Direction states, in part:[7]

(1) In considering the need to protect the Australian community (including individuals, groups, or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

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

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

1. information and evidence on the risk of the non­citizen re-offending; and
2. 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. This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[8] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[9]

1. To determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[10]
2. Mr Nguyen acknowledge that selling heroin is bad as people become addicted.
3. The Minister again relies on the first decision in SCJD and, for the reasons above, I do not rely on this as the opinions expressed in that decision do not cite authoritative sources on the harms of heroin use. However, I do accept that heroin is a drug of addiction, overdose on heroin can lead to death, there is a cost to the community in the physical and mental ill-health caused by heroin addiction, and that heroin use can lead to criminal conduct to support the cost of obtaining drugs.

Likelihood of the Applicant engaging in further criminal or serious conduct

1. In the period prior to the offending, Mr Nguyen was working for his cousin transporting workers from Adelaide to her nail salon in Murray Bridge. His income was from this work and child support paid by his ex-wife. He started playing pokies and baccarat, gambling with small amounts which became larger over time. He was losing and trying to win money so he started borrowing money, ending with a debt of over $70,000. The terms of his debt were that he was to pay $5,000 every month, and if he could not pay this amount, $500 was incurred in interest. He was unable to pay more than the interest from his income.
2. He was asked by a creditor to sell drugs to repay his debt and was paid $3,000 per week. Every week most of this amount was withheld to repay his debt, and he was paid a few hundred dollars. He acknowledged that being found with 175.8g of heroin was a significant amount. He had $38,000 which he was supposed to hand to his supplier when he was arrested.
3. Mr Nguyen said he would sell drugs in the evenings and on days he was not working after he had completed work for his cousin's nail salon and while his daughter was in his care. This included selling drugs from outside his home and from outlets such as KFC where he would take his daughter with him.
4. After his release from custody on home detention bail, he said his creditor called and said he could use the money from the sale of drugs to pay for a lawyer, and he did not know he could get Legal Aid so he resumed selling drugs.
5. At the time of his arrest, Mr Nguyen estimates he owed $18,000 - $20,000 from his original debt. He was asked whether the amount seized by police would need to be repaid, but said he was told that because he was arrested, the amount of money seized would be waived. He asserted he was sure they would not seek to have this money repaid. He said that he does not have the same phone number and cannot be contacted directly by this creditor but acknowledged the creditor knew some of his friends. He said he has not been contacted by this creditor since he was imprisoned.
6. That Mr Nguyen still owes money adds to his risk of reoffending, and there is a possibility that he will again be asked to sell drugs to repay his debt and will again engage in criminal conduct.
7. Mr Nguyen is currently on parole and is subject to the terms of his parole until November 2028. The conditions of his parole currently include electronic monitoring and a curfew if released from immigration detention, continued counselling and rehabilitation for gambling, and a prohibition from entering any racecourse, casino or premises on which gambling is carried on. He is directed to attend budget advice counselling with a Vietnamese organisation.
8. Mr Nguyen states he has not used drugs and is not addicted to drugs. This is supported by drug testing returning negative results while he was in prison.
9. Mr Nguyen's risk of reoffending will relate to attempts to recover money that Mr Nguyen said he owed at the time of his arrest, however he will be closely monitored through the terms of his parole until November 2028.

1. The Tribunal is to consider evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the Applicant's most recent offence.
2. Mr Nguyen has taken advantage of the time he was in prison, completing courses in initial general education for adults and literacy and numeracy as well as completing units towards a Certificate II in Workplace Skills and a Certificate III in Business.
3. He completed a Gambling Relapse Prevention Program in April 2024, attending five group support sessions. He provided an attendance letter which states he self-referred to Offender Aid and Rehabilitation Community Transitions Gambling Support services. He is reported to have engaged meaningfully in sessions, demonstrating a strong desire to create prosocial change.
4. Mr Nguyen was questioned about his ability to participate meaningfully in these sessions given his difficulties with English, and he said a friend who also attended and who speaks Vietnamese assisted him during the course.
5. Mr Nguyen has engaged in rehabilitation and his efforts will increase his prospects of employment and reduce the likelihood of further criminal offending as a result of debts incurred through gambling.

Factors that reduce the likelihood of reoffending

1. Mr Nguyen's family is supportive. His uncle will provide work for him on his uncle's farm if the cancellation of his visa is revoked.
2. His grandmother, father, mother, uncle and cousin all offer their support. He will live with his uncle temporarily if released from immigration detention until he can find somewhere to live with his daughter.
3. Mr Nguyen's relationship with his daughter is the factor that provides the greatest motivation for him to refrain from further offending. While this did not prevent him from offending when she was in his care in 2020, he is now aware of the consequences of his offending on his daughter, the effect of being separated from her and the effect on his visa status. His ex-wife supports his daughter being in his care.

Conclusion on the protection of the Australian community

1. Mr Nguyen's prior supplier has a means to contact him through friends and may seek repayment of money from Mr Nguyen. The financial pressure of this debt increases the likelihood of further criminal offending. However, Mr Nguyen has factors in his life including extensive family support and the motivation of remaining with his daughter that reduces the likelihood of further offending. Overall, I consider the protection of the Australian community weighs moderately in favour of not revoking the cancellation of his visa.

1. Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
2. There is no information before the Tribunal that family violence has been perpetrated by Mr Nguyen, and this consideration does not apply.

THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

1. This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant's ties to Australia. Clause 8.3 of the Direction provides that:

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

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

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

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

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

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. Mr Nguyen has immediate family members who are Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely and each person is considered below. His mother is not a citizen, permanent resident or a person with a right to remain indefinitely, however it is convenient to address the effect on his mother while considering immediate family.
2. Mr Nguyen's grandmother states she misses him and wants him to attend family gatherings. She states she is old and her health is failing so she could not travel to see him or afford to do so if he is removed from Australia. His uncle states since Mr Nguyen's imprisonment his grandmother's mental health has declined and she cries every day, and does not sleep or eat. He says she speaks about Mr Nguyen constantly. There is a significant adverse effect on his grandmother.
3. His father expresses deep emotional pain at Mr Nguyen's situation and concern about the distress this causes to Mr Nguyen's mother. There is an adverse effect on his father.
4. Mr Nguyen's mother is in Australia on a bridging visa, and is not an Australian citizen, permanent resident and does not have a right to remain in Australia permanent. While the Direction does not require me to consider the impact on her it does not limit the matters which I can consider, and it is convenient to address the impact on his mother when considering other family members.
5. His mother provided a statutory declaration that she does not know how she will cope if he is deported. She says she has trouble sleeping and cries often.
6. Mr Nguyen said that his maternal grandfather lives in Vietnam as do maternal aunts and uncles. If his visa remains cancelled, there is a lesser impact on his mother as she could chose to return to Vietnam with her son with family support.
7. Mr Nguyen's daughter provided evidence that if he is removed from Australia, it will cause her emotional, mental and financial hardship, and she will be unable to visit him unless she travels to Vietnam with her mother, which she does approximately every two years. If Mr Nguyen's visa remains cancelled this will have a significant adverse impact on her.

1. Mr Nguyen has paternal uncles in Australia and his uncle's wife and young child live in Adelaide.
2. His cousin provided a statement and gave oral evidence that as she grew up with Mr Nguyen and he is like a big brother to her having arrived in Australia two years after she migrated. She expresses concern about the effect on their grandmother and his daughter if he is removed from Australia.
3. His ex-wife states that if Mr Nguyen is removed from Australia the burden of raising their daughter will fall to her and cause her stress as the care of their daughter causes argument in her relationship with her husband.
4. The weight to be provided to other ties reflects that Mr Nguyen arrived in Australia in 2005 as a young adult and has been in Australia for nearly 20 years. His offending occurred after he had been in Australia for 15 years. While contributing to the community through his employment and raising his daughter, his overall contribution is modest given his English language limitations.
5. Overall, the strength, nature and duration of ties weighs moderately in favour of revoking the cancellation of Mr Nguyen's visa.

BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

1. Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under clause 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501 of the Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
2. Mr Nguyen has a daughter who recently turned 14 years of age. He was primary carer from her birth, and from the time he separated with his ex-wife until he was remanded in custody. His daughter is currently living with her mother, however both his daughter and his ex-wife gave evidence that this arrangement is not satisfactory for either of them, and it is intended that Mr Nguyen resumes a primary carer role if the cancellation of his visa is revoked.
3. While being examined about his offending, Mr Nguyen gave evidence that his daughter was living with him and his mother at the time of his offending. He said his daughter went with him to outlets such as KFC where he sold drugs. On the police coming to their home, Mr Nguyen said he panicked and threw the heroin into the room where his mother was staying, and where his daughter was in the room. The drugs were located under his daughter's head while she was lying on the mattress.
4. After being arrested the first time, his daughter stayed with his ex-wife until he was released on home detention bail five days later.
5. Mr Nguyen's ex-wife gave evidence that she has her own life and family and does not know if she is suitable for a full-time role as a mother to their daughter. Her evidence was somewhat overstated as she described Mr Nguyen a the 'perfect father' even after being informed he had taken their daughter with him when he sold drugs, saying that she thought the impact on their daughter insignificant as she was young at the time. Despite these overstatements, I accept her strong preference is that their daughter return to Mr Nguyen's care.
6. Mr Nguyen spoke to his daughter by telephone daily and by video once a week while he was in prison. Since being taken into immigration detention, he speaks to her daily, has a video call once a week and his mother brings her to visit him every two months. He had a good understanding of her living arrangements, education and part-time work.
7. His daughter states she has self-harmed and has seen the counsellor at school but does not consider her mother or step-father to be supportive of her. While her mother also plays a parental role, this is with some reluctance on both sides.
8. Mr Nguyen's relationship with his daughter is parental and as primary carer, a role he will resume if the cancellation of his visa is revoked. They have a close and continuing relationship and his daughter's mental health, and general wellbeing have declined with his imprisonment. Ongoing separation from Mr Nguyen is likely to have an ongoing negative effect of his daughter's mental and emotional wellbeing. His daughter is of an age and maturity that her views should be given significant weight, and she was clear about her view that she wants to resume living with her father and considers this to be in her best interests.
9. His conduct in selling drugs while she was in his care, including taking her to places where he sold drugs, his supplier coming to their home, and his conduct when the police searched the house is reprehensible and while he states she was unaware of this occurring, his conduct logically places her at risk and has therefore a negative impact. There was no information before me to show that his daughter has suffered direct physical or emotional trauma from his conduct, however ongoing separation because of his offending has caused her emotional distress.
10. Mr Nguyen genuinely intends to play a positive parental role for his daughter for the next four years until she turns 18 years of age, and I accept this is both his intention and a strong motivating factor for him.
11. The best interests of Mr Nguyen's daughter weigh heavily in favour of revoking the cancellation of his visa.
12. Mr Nguyen has a niece or nephew who is young, however no submissions were made on the effect of the cancellation of his visa on this child. Information on his contact with this child was not provided. While the best interests of his niece or nephew may be having contact with a relative, this is of an indeterminate nature and weighs only slightly in favour of revoking cancellation of his visa.

1. The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Clause 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that 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 would not allow them to enter or remain in Australia.
2. Clause 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or the offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
3. Clause 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4. The Australian community expects that Mr Nguyen will not remain in Australia, and this weighs in favour of not revoking the cancellation of his visa.

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

Legal consequences of decision under s 501 or 501CA

1. The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia's non-refoulement obligations in respect of unlawful non-citizens.[11] It is not suggested that Australia's non-refoulement obligations apply to Mr Nguyen.
2. If Mr Nguyen's visa remains cancelled, he must be detained under s 189 of the Act and removed from Australia in accordance with s 198 of the Act. He will be prevented by s 501E of the Act from applying for visas other than a protection visa or a Bridging Visa R (Removal Pending) visa while in the migration zone.
3. Mr Nguyen will be subject to special return criteria that provides for permanent exclusion from some types of visas should he apply for those visas (Special Return Criterion 5001(c)).
4. The legal consequences of the decision weigh in favour of revoking the cancellation of Mr Nguyen's visa.

1. The Tribunal must consider the extent to which Mr Nguyen would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country.

1. Mr Nguyen has good health and is currently 39 years old. His age and health do not present an impediment in establishing himself in Vietnam.

1. Mr Nguyen speaks Vietnamese. He travelled to Australia when he was 19 years old and has returned to Vietnam many times since arriving in Australia. There are no language barriers, and few cultural barriers despite the lengthy period Mr Nguyen has lived in Australia.

Any social, medical and/or economic support available to the Applicant in their country

1. When he has returned to Vietnam, Mr Nguyen stays with his maternal grandfather. He also has a maternal aunt and uncle in Vietnam but says he would not be able to live with them because he has been in Australia for too long and it would not be appropriate.
2. No evidence was provided about his ability to work or other social, medical or economic support available to him in Vietnam, however he is relatively young and was able to undertake farm work in Australia. He could seek employment in Vietnam, although his prospects of obtaining employment are unknown.
3. This factor weighs slightly in favour of revoking the cancellation of his visa.

1. Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
2. Mr Nguyen intends to work for his uncle on his farm if the cancellation of his visa is revoked. His cousin also states she can employ him in her business as a nail technician. There is little effect on Australian businesses if the cancellation of his visa is not revoked, and this consideration does not weigh for or against revoking the cancellation of Mr Nguyen's visa.

1. Forming a conclusion on whether there is another reason that the cancellation of the visa should be revoked involves evaluating each of the considerations in relation to each other to reach the a conclusion (CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 252 at [37]).
2. In undertaking this task, the Direction specifies at clause 7 that the protection of the Australian community is generally to be given greater weight than other primary considerations and otherwise primary considerations should generally be given greater weight than the other considerations.
3. On the facts of this case, the best interests of Mr Nguyen's daughter and the nature and duration of this ties to the community outweigh other considerations that are in favour of not revoking the cancellation of his visa. In coming to this conclusion, I have taken into account his lengthy period in the community without offending, that his offending is limited, the strong desire he has to remain the primary carer for his daughter in Australia, and the effect on his family members if the cancellation of his visa is not revoked.
4. Having balanced the primary and other considerations, there is another reason the cancellation of Mr Nguyen's visa should be revoked for the purposes of s 501CA(4)(b)(ii) of the Act. The decision under review will be set aside and substituted with a decision that there is another reason the cancellation of Mr Nguyen's visa should be revoked.

1. The decision under review is set aside and substituted with a decision that the cancellation of the visa should be revoked.

[1] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 ('the Direction').

[7] See also the Direction, cl 8.1(2)(b).