Trang and Minister for Home Affairs (Migration) [2019] AATA 4087 (1 October 2019)

1. The issue is whether the Tribunal should exercise the power in s 501CA(4) of the Act in favour of revoking the mandatory cancellation of the visa.
2. In addressing the above issue, the Tribunal must determine:
   • (a) whether the applicant passes the character test (as defined in s 501(6) of the Act); and
   • (b) if he does not, whether the Tribunal is satisfied that there is another reason why the cancellation decision should be revoked.

1. The applicant arrived in Australia in 1990 at the age of 19 and has resided here ever since. The applicant was born in Cambodia in June 1970. Both his parents were Vietnamese citizens and the applicant is a citizen of Vietnam (R3: a copy of the applicant's birth certificate (and an English translation) issued by the Socialist Republic of Vietnam which nominates the applicant's nationality as Vietnamese).
2. The applicant's first conviction was in 1992 for driving offences committed in 1991. He has 59 convictions for a range of offences including the following offences for which the applicant has received sentences of imprisonment:[1]
   • (a) On 20 April 1999 the applicant received convictions for assault occasioning bodily harm and aggravated burglary (habitation) with intent and received concurrent terms of imprisonment of two years.
   • (b) On 29 April 2004 the applicant received convictions for a range of offences including explosion cause damage to property and escape legal custody and received a total term of imprisonment of four years.
   • (c) On 6 August 2009 the applicant received convictions for a range of drug offences including possession of prohibited drugs with intent to sell (heroin) and sentenced (after appeal) to a total term of imprisonment of three years and four months.
   • (d) On 5 September 2014 the applicant was convicted of possession of a prohibited drug with intent to sell (methylamphetamine) and sentenced to a term of imprisonment of three years and nine months.
3. The applicant's complete criminal history is as follows:

No 'P' Plates; Road Traffic (Drivers' Licences) Regulations 1975; s 13(1); Probationary MDL

Fined: $200.00

Licenced disqualified for 3 months

Demerit point suspension

MDL disqualified 3 months

Refuse to Supply Or Provide False Name and Address

Fined: $200.00

Licence disqualified for 9 months cumulative

Possess Driver's Licence Calculated to Deceive

Fined: $200.00

Licence disqualified for 9 months cumulative

Fined: $500.00

Licence disqualified for 6 months concurrent

Fined: $500.00

Licence disqualified for 9 months cumulative

Fined: $500.00

Licence disqualified for 12 months concurrent

Imprisonment for 6 months sentence suspended sentence for 15 months

Licence disqualified for 2 years cumulative

Imprisonment for 3 months 1 day concurrent.

Sentence suspended for 16 months

No Motor Drivers Licence - Under Fines Suspension

Fined: $400.00

Licence disqualified for 12 months cumulative

Refuse to Supply or Provide False Name and Address

Imprisonment for 6 months [Total of 4 years from 28 November 2003]

Licence disqualified for 2 years cumulative

Imprisonment for 2 months concurrent from 28 November 2003

Imprisonment for 3 years from 28 November 2003

Imprisonment for 6 months cumulative from 28 November 2003

3 months imprisonment concurrent for each charge from 28 November 2003

Possession of Prohibited Drugs with Intent to Sell or Supply (Heroin)

Appeal allowed: Sentence set aside: Total: 3 years and 4 months imprisonment from 31 July 2009

Possess stolen or unlawfully obtained property

Possess a Prohibited Drug (Methylamphetamine)

Possessing stolen or unlawfully obtained property

Drove a vehicle with number plate not issued to that vehicle

Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine)

Imprisonment for 3 years 9 months commencing 31 July 2014

1. On 31 August 2016 the applicant's visa was cancelled under s 501(3A) of the Act.

This was on the basis that the applicant had a substantial criminal record and was at that time serving a sentence of imprisonment. 2. Following the cancellation the applicant was invited to, and made, representations about revocation of the decision to cancel his visa. The applicant's representations were summarised in the delegate's decision as follows (R1, G3 at 12) as follows: * That his long-term de facto partner and four adult step-children reside in Australia and would miss him if he were removed. * That his mother and sister reside in Australia; his mother has numerous health problems and his sister requires his assistance in caring for her.

They would suffer hardship if he is removed from Australia. * That he fears for his life in Vietnam, having left that country as a refugee and thereby attracting the adverse attention of the government. * That he has no family or friends in Vietnam and doesn't know how he would survive there. * That he has taken steps towards rehabilitation; he completed a number of therapeutic courses in prison and upon his release from custody he will reside for 12 months in Shalom House rehabilitation centre. * That he has matured, and for the above reasons, he will not re-offend. 3. On 5 July 2019 the delegate of the respondent made the decision under s 501CA(4) of the Act not to revoke the cancellation of the visa.

1. The application was heard on 23 and 24 September 2019. The applicant was represented by Mr Glenister and the respondent was represented by Mr Gerrard. The applicant was examined and gave evidence through an interpreter as did the applicant's mother, sister and Ms Xuan.
2. Oral evidence was given at the hearing by:
   • the Applicant;
   • Peter Lyndon-James;
   • Nguyen Thi Nguyen ;
   • Phuoc Nga Trang;
   • Xuan Thi Vo;
   • Dr James McCue; and
   • Mr Ahn Tuan Phan; and
   • [omitted for publication] (Church Pastor).
3. The following documents were tendered into evidence at the hearing:
   • G-Documents (Exhibit R1);
   • Supplementary G-Documents (Exhibit R2);
   • Applicant's Birth Certificate (Exhibit R3);
   • DFAT Country Report dated 21 June 2017 (Exhibit R4);
   • Witness Statement of Peter Lyndon-James dated 30 August 2019 (Exhibit A1);
   • Witness Statement of Nguyen Thi Nguyen dated 4 September 2019 (Exhibit A2);
   • Witness Statement of Phuoc Nga Trang dated 4 September 2019 (Exhibit A3);
   • Witness Statement Xuan Thi Vo dated 30 August 2019 (Exhibit A4);
   • Psychological Report of Dr James McCue dated 3 September 2019 (Exhibit A5);
   • Witness Statement of Anh Tuan Phan dated 3 September 2019 (Exhibit A6); and
   • Witness Statement of [church pastor] dated 4 September 2019 (Exhibit A7).
4. In addition to the witness statements and letters separately tendered as identified above, the G documents (R1) and Supplementary G documents (R2) contained relevant material, in particular the applicant's request for revocation of the cancellation of the visa (R1, G11) and the applicant's personal circumstances form (R1, G12). At pages 98 and 99 of R1 there is a hand-written statement addressed to 'The Department of Immigration and Border Protection' apparently signed by the applicant which, by virtue of its contents, appears to be a statement provided by the applicant in response to the invitation to make representations about revocation of the decision to cancel his visa (see [9] above).
5. Also included in the G documents (R1) were letters addressed to the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) from Eapon Carlose, the applicant's then lawyer, dated 9 November 2004 (R1, G21) and an undated letter date stamped as received on 24 March 2006 headed 'Re: Notice of Intention to cancel Visa dated 16 December 2005' which refers to Mr Carlose's previous 'submissions in my letter dated 9 December 2004' (R1, G22). There is no letter from Mr Carlose dated 9 December 2004 included in the G documents, just the letter dated 9 November 2004. Both letters make representations as to why the applicant's visa should not be cancelled. Further there is no Notice of Intention to cancel Visa dated 16 December 2005 included in the G documents or the Supplementary G documents, however, given the references to such a notice the Tribunal assumes that a notice dated 16 December 2005 was issued.

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

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

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

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

(6) For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by subsection (7)); or...

1. A 'substantial criminal record' is defined by s 501(7) of the Act as follows:

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

(b) the person has been sentenced to imprisonment for life; or

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

(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more...

1. Section 501(7A) of the Act provides clarification for when a person is sentenced to concurrent sentences of imprisonment:

(7A) For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(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. Section 499(1) of the Act provides that the Minister may give written directions as follows:

(1) The Minister may give written directions to a person or body having functions or powers under this Act ... if the directions are about:

(a) the performance of those functions; or

(b) the exercise of those powers.

1. Section 499(2A) of the Act states that '[a] person or body must comply with a direction under subsection (1).' This Tribunal is such a person or body.
2. On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Act, named 'Direction no. 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under

s 501CA' (Direction 79). The commencement date for operation of Direction 79 was

28 February 2019 (Paragraph 2 of Section 1 of Direction 79). 3. Paragraph 6.1 sets out the objective of Direction 79. Paragraph 6.1(3) relevantly provides:

Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a)

(on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

1. Paragraph 6.2 of Direction 79 provides general guidance as follows:

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

(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen's visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

1. Paragraph 6.3 of Direction 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4) of the Act, including the Tribunal. They are:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life,

(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.

1. Paragraph 7(1)(b) of Direction 79 provides that, informed by the principles set out in paragraph 6.3 of Direction 79, the decision-maker (in this case the Tribunal) must take into account the considerations in Part C of Direction 79 in order to determine whether the mandatory cancellation of the visa will be revoked.
2. Paragraph 13(2), which is in Part C of Direction 79, provides:

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

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

1. Paragraph 14 of Direction 79 which is also in Part C provides:

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

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

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

1. Further guidance as to how a decision-maker is to apply the considerations in Direction 79 can be found in paragraph 8 of Direction 79 which provides:

(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder,

or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

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

(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4) Primary considerations should generally be given greater weight than the other considerations.

(5) One or more primary considerations may outweigh other primary considerations.

1. Failure of the character test arises as a matter of law: Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666, 685 at [63]. The character test is defined in s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if the person has 'a substantial criminal record'. This phrase, in turn is defined in s 501(7)(c) which provides that a person will have a substantial criminal record if they have 'been sentenced to a term of imprisonment of 12 months or more'. That is clearly so in the applicant's case.
2. The applicant does not pass the character test. The applicant cannot rely on

s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

The issue therefore is whether the discretion under s 501CA(4)(b)(ii) should be exercised.

In other words, is there another reason why the original decision should be revoked?

First primary consideration: Protection of the Australian community from criminal or other serious conduct (13(2)(a))

1. Paragraph 13.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:

(1) ...should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non­citizens in the expectation that they are,

and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

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

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

Nature and seriousness of the conduct (13.1(2)(a))

(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:

1. The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
2. The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

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

1. Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
2. The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
3. The cumulative effect of repeated offending;
4. Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
5. Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);
6. Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

1. On any measure, the applicant has a serious criminal record. As the applicant concedes (applicant's SFIC para. 24) between 22 January 1992 and 5 September 2014 he had received 59 convictions for criminal and traffic offences. The applicant submits,

citing Dr McCue's report (A5), that '[a]ll of Mr Trang's offences appear to have been motivated, or significantly influenced, by his frequent and chronic pattern of illicit drug use'. That may be the case, however, insofar as the Tribunal must consider the applicant's criminal offending, the fact that he may have been motivated or influenced by his drug use or need for drugs does not diminish the seriousness of his criminal record for the purposes of this consideration. 2. The respondent points to the comments made by the sentencing judges as indicative of the seriousness of the applicant's offending. In sentencing the applicant in relation to his offences of aggravated burglary and assault occasioning bodily harm on 20 April 1999, Miller J stated:[2]

... The crimes of which you have been convicted are extremely serious examples of their kind.

...

In sentencing you I take into account these matters; firstly, the gravity of the offences. The offence of aggravated burglary has become extremely prevalent in our society. This offence is at the higher end of the range of seriousness for an offence of its kind, a large group of youths assembling outside the duplex of the victims, with three of them at least making immediate entry, two of whom were armed with knives. Others who were outside were armed with sticks.

I accept that you did not know that any of those who entered were armed with knives, and the jury verdict certainly reflects this. However, you did go to the duplex in company with others, in pursuance of a plan to assault those within the premises, and your presence would undoubtedly have encouraged the others to do what they did.

1. Miller J outlined the circumstances of the applicant's offending as follows:[3]

The facts were these. The evidence led at trial established that on the night of

2 February 1998 you were recruited from the [omitted] pool hall in [omitted] to go to a fight. It was your co-accused [omitted] who was responsible for so recruiting you. You willingly went with a group from the pool hall, who joined a group already outside the pool hall, to a venue where this fight was to occur.

The duplex was pointed out to you in [omitted] whilst you sat in the vehicle in which you had travelled to that address. That vehicle was then parked in the carpark of a nearby group of flats.

...

It is clear that you saw the deceased [the victim] run from the unit, then seriously injured. You played no part in attacking him and left the scene with others. However, you were there as a member of a group of persons who had formed a common intention to prosecute an unlawful purpose; namely, to go to [omitted] and assault the occupants therein. The jury's verdict indicates that it was satisfied beyond reasonable doubt that you were part of that plan and it was a probable consequence of the plan that [the victim] would be unlawfully assaulted and thereby occasioned bodily harm.

As to your criminal responsibility, it is by reason of the provisions of section 8 of the Criminal Code you were a party to the offences to which you have been convicted. You were in what the crown prosecutor referred to as the outer ring of those involved in the events of the night in question. You were not centrally involved in the discussions as to how the attack was to be carried out, but by making up the numbers as you did you were an important player in the events that occurred.

1. The respondent says that the applicant's offending on that occasion should also be viewed in light of the fact that a person died in the attack. The applicant points out that the applicant was acquitted of murder. Miller J notes in his sentencing remarks that:

On 4 February 1999 you stood trial on an indictment alleging counts of aggravated burglary, murder, and with intent to do grievous bodily harm doing grievous bodily harm. The latter count was the subject of a verdict of not guilty by direction, leaving an alternative count of unlawful assault occasioning bodily harm

On 14 April 1999 the jury convicted you of aggravated burglary with circumstances of aggravation being that you were in company with others and ought to have known that there was another person or persons in the place in question, and you were convicted of unlawful assault occasioning bodily harm. You were acquitted of the count of murder.

1. In considering this conviction the Tribunal has not, as suggested by the respondent, treated the offending as more serious than would otherwise be the case because someone died in the attack in which the applicant was involved. The circumstances of the attack and the applicant's involvement in what was a pre-meditated and calculated mass attack on someone's home are in themselves serious. The applicant was, however, acquitted of the more serious charges, including murder, and it would, in the Tribunal's view, be inappropriate to elevate the seriousness of the applicant's offending by reference to conduct of others involved in the attack. As Miller J put it, the applicant was '...in the outer ring of those involved...' (R1, G6 at 28).
2. The Tribunal notes Miller J's comment that:[4]

...You have a record of convictions for traffic related matters and some minor drug offences and in relation to your last conviction for driving without a licence you were given a suspended sentence of imprisonment. The conviction was on

20 January 1998 and the sentence you received was 6 months' imprisonment suspended for a period of 15 months. You were, therefore, on a suspended sentence at the time of commission of the offences in question...

1. As a consequence of these convictions a deportation order in respect of the applicant was made on 10 November 1999. On 11 August 2000, however, the deportation order was revoked by Deputy President Forrest. In the reasons for that decision, Deputy President Forrest stated:[5]

[D]espite the seriousness of your offending, the risk of your reoffending is low and you do not represent an unacceptable threat to the community.

1. The applicant continued to offend. On 29 April 2004 the applicant was sentenced to a term of four years' imprisonment in respect of a range of offences committed in the period from August to November 2003 (see [7] above). In sentencing the applicant for those offences, Jackson DCJ noted that the applicant had 'a very bad record' and 'a complete disregard for the orders of the court'.[6]
2. The applicant continued to offend. On 6 August 2009 the applicant received an aggregate sentence of 4 years' imprisonment imposed in respect of a number of drug offences Groves DCJ in sentencing observed that 'these are very serious offences' (R1, G8 at 53) before noting:[7]

Drugs in the community are the cause of much crime in our community.

Those involved with illicit or illegal drugs commit crimes to support their habits. They disseminate drugs to others who become addicted to them. They in turn may commit crimes to support their habit. People's lives are ruined by drugs in our community and family lives are ruined. These are just some of the consequences of illegal drugs in the community. That is why there are severe penalties for those who engage with drugs and with the sale or supply of drugs

...

Engaging in the distribution of drugs into the community is a serious offence.

The gaining of profit from the trade in drugs simply makes the offending worse.

Heroin, methylamphetamine and MDMA are all regarded at the higher range of drug types. The major sentencing consideration is to stop people dealing in drugs. The trouble is that you were exposing other people in the community to hard drugs, drugs ruining other people's lives just as you have ruined and wasted your own life by reason of your addiction to these drugs.

I must consider all the options available in terms of the Sentencing Act in considering what to do with you. In my view, only a sentence of imprisonment is appropriate to reflect the seriousness of this offending.

1. Groves DCJ also commented in sentencing (R1, G8 at 54) that:

In summary, the pre-sentence report tells me that you have a minimising attitude towards your offending. You indicated a lack of responsibility for your actions and expressed little regret for your current circumstances.

1. As a consequence of his offending, the applicant was considered by the Department for visa cancellation. However, on 1 October 2010 the applicant was notified that a decision had been made not to cancel his visa.[8] That notice contained the following formal warning:

Mr Trang has committed crimes frequently whilst in Australia. On this occasion the decision to not cancel his visa was very close. Any further offending is very likely to lead to further consideration of his visa but with little sympathy for his failure to grasp this opportunity.

(Original emphasis.)

1. The applicant signed an acknowledgement of receipt of this notice on 14 October 2010.[9]
2. The applicant continued to offend and on 5 September 2014 he was sentenced to another lengthy prison term for drug offences committed with his partner.[10] In sentencing Stavrianou DCJ said:[11]

(Addressing Ms X, the applicant's co-accused and then partner) There were also prohibited drugs located in the bedroom, different quantities located in the bedroom as well as some smoking implements. The police also located a number of mobile phones and I accept that the possession of the mobile telephones can be indicia of drug dealing. There's no dispute in this matter that you and Mr Trang were user/dealers and that's the basis upon which I intend to deal with you,

that you're a user/dealer.

...

In relation to you, Mr Trang, you've also been convicted of one offence after trial that on 21 March 2013 at [omitted], you and ... [co-accused/partner] had in your possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.

The gravity and seriousness of your offending is reflected in the maximum penalty for the offence that was committed. The statutory maximum penalty for an offence contrary to section 61A of the Misuse of Drugs Act is a fine of $100,000 and/or

25 years' imprisonment.

...

[Y]ou had joint possession with [co-accused/partner] of 47 and a half grams of methylamphetamine. It was of a relatively high purity. It was 47 per cent. There was telephone intercept material located.

The street value of the drug was about $20,000 if sold as a single item.

The methylamphetamine was located in the freezer chest. It was in a Clipseal bag which was inside a brown paper bag.

I've already outlined the nature of methylamphetamine in my remarks to ...

[co-accused/partner]. Methylamphetamine is at the top of the tree in terms of prohibited drugs.

1. The applicant was sentenced to a term imprisonment of three years and nine months.
2. In his SFIC, the respondent pointed to the significant number of drug-related offences committed by the applicant and submits that it is patently clear from the sentencing remarks that the courts have found the applicant's offences serious.
3. The respondent also notes, in relation to paragraph 13.1.1(h) of Direction 79 that the applicant was formally warned on one occasion and also effectively received an earlier warning via the deportation proceeding before Deputy President Forrest in the Tribunal in 2000.[13]
4. In his extempore decision handed down on 11 August 2000, Deputy President Forrest said to the applicant:[14]

It was your evidence that you will not re-offend; that you have had time to think about your convictions while in prison and are determined to make a fresh start and be a responsible member of the community. I am acutely aware that assurances of reform are easily made where self-interest may influence a response however I accept that you have the support of your mother and sister.

...

Having listened to your evidence I am satisfied that your expression of remorse should be accepted as a genuine indication of a determination not to re-offend.

I am prepared to accept that your prospects of rehabilitation appear to be good and with your employment opportunity that you have are an acceptable risk to the community of not re-offending.

1. It emerged at the hearing of the present application that there may have been further instances where the applicant was made aware of the consequences of offending on his visa. By letter dated 9 November 2004 (R1, G21), lawyer Eapon Carlose wrote to the DIMIA in response to a notice of intention to cancel the visa. In that letter the applicant's lawyer advised:
   1. Having said that, my instructions are to promise and assure you that there is absolutely no likelihood of him re-offending. My client is remorseful

(he pleaded guilty to the charges he recently faced in court) and fully understands the seriousness and gravity of his misdeeds. 2. The time he has spent in prison and the threat of deportation has made him realise that, if given a chance to remain in Australia and he re-offends, deportation will be inevitable - a consequence he was not alive to previously. 2. There was a second letter from Eapon Carlose in 2006 (undated but date stamped as received by DIMIA on 24 March 2016) which referred to a 'Notice of Intention to cancel Visa dated 16 December 2015'.[15] In that letter Mr Carlose advised:[16] 1. ...there may be a need for general deterrence to other non-citizens,

my instructions are that my client intends to leave the past behind and make a fresh start. He repeats his assurance and undertaking that, on his release, he will commence and continue being a law-abiding member of the community... 2. I mentioned in my earlier submission that my client has strong prospects of employment. I am instructed that he has been assured by a friend of steady regular employment on release. 3. The respondent submits (respondent's SFIC) that: 1. 29. Taking into account the nature, frequency and pattern of the offences, their cumulative effect on the community, the fact that the applicant had been warned previously and still committed offences, the sentences imposed, the comments of the sentencing Judges, and the specific guidance and principles set out in Direction No 79, the respondent contends that the nature and seriousness of the applicant's conduct is a significant consideration that weighs heavily against revocation of the decision to cancel the applicant's visa. 4. In respect of this consideration, the applicant (applicant's SFIC) says as follows: 1. 31. It is conceded that 13.1.1(1)(d)-(f) and (h), militate in favour of the view that the offences committed by Mr Trang are to be viewed seriously. He has received a number of separate sentences of imprisonment and spent a significant amount of time in custody and his history of offending has been relatively consistent over a long period and cannot be said to be decreasing in seriousness. 5. In respect of considerations identified in subparagraphs (a)-(c) of paragraph 13.1.1(1),

the applicant submits that the offences committed by the applicant do not fall into the types of offences mentioned in those subparagraphs which must be viewed as very serious. The applicant does concede that the conviction for assault occasioning bodily harm does 'clearly fall' within the category of offences identified in those subparagraphs, presumably subparagraph (a), being a crime of violence. In relation to that offence, the applicant contends that:

Given the factual scenario, which included that Mr Trang did not personally assault anyone, this is certainly an assault down the very lowest end of the scale in terms of violence. There is little if any evidence that Mr Trang has any tendency to offend in the manner contemplated by these factors.

1. The respondent points out that the applicant has also been convicted of carrying prohibited weapons being a samurai sword and a cattle prod. Contrary to the applicant's assertion that there is little, if any, evidence that the applicant has any tendency to offend in a violent manner, the Tribunal considers that his willingness to be involved in the attack in 1999 and in carrying prohibited weapons indicates a willingness to use violence. Further, the Tribunal considers the causing of an explosion, the firebombing of a residential property, for which he was convicted in 2004 to be a violent offence.
2. Further, while the applicant does not specifically state it to be his argument that unless an offence falls within one of the categories in subparagraphs 13.1.1(1) (a) to (c) of Direction 79 it cannot be treated as 'very serious', insofar as that argument is suggested by the submissions made by the applicant, the Tribunal rejects that argument. Noting that it is only subparagraphs (a) and (b) which require offences of the types described therein to be 'viewed very seriously', there is nothing in the wording or intent of Direction 79 that limits how the seriousness of offending is to be rated or what adjectival test is to be applied. Clearly offending of any type, if the nature and circumstances of the offending warrants it, can be treated as very serious. An obvious example would be an offence committed against a vulnerable member of the community, such as an elderly person, which, under subparagraph 13.1.1(1)(c) must be treated as 'serious'. That is not to say, however, that in certain cases offences against a vulnerable person, while not involving violence or being of a sexual nature, cannot be treated as very serious.
3. In the present case the Tribunal is of the view that the firebombing of a residential property, even if it is not to be treated as a crime involving violence, should be treated as a very serious offence. Similarly the dealing of drugs, in particular methylamphetamine and heroin, over an extended period of time should be treated as very serious offending.
4. The factors indicating that it is appropriate to treat the applicant's offending as being very serious are:
   • the sentences imposed by the courts (Direction 79 para. 13 1.1.(1)(d));
   • the frequency of the applicant's offending: 59 convictions in 22 years and the trend of increasing seriousness (para. 13.1.1(1)(e));
   • the cumulative effect of the applicant's repeat offending (para. 13.1.1.(1)(f)); and
   • the fact that the applicant had been formally warned of the consequences of

re-offending in relation to his migration status and had otherwise been made aware of the consequences of reoffending (see [51]-[54] above) (para. 13.1.1.(1)(h)).

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1(2)(b))

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

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

1. Senior Member Dr M Evans in CZCV and Minister for Home Affairs [2019] AATA 91 (CZCV) summarised the task for the Tribunal as follows:
   1. ... the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice ... [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):

An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.

1. In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: "...there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational." Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a "rational and probative basis".
2. The Tribunal agrees with and adopts the approach taken by Senior Member Dr M Evans in the above paragraphs (see also LZTW and Minister for Home Affairs [2019] AATA 779 and Subasinghe and Minister for Home Affairs [2019] AATA 751).

Nature of harm to individuals or the Australian community (13.1.2(1)(a))

1. Applying paragraph 13.1.2(1)(a) of Direction 79, the harm that would be caused if the applicant were to repeat his offending behaviour, in particular his drug dealing, is obvious and serious. The Tribunal adopts Groves DCJ's observation cited at [43] above that:[17]

...exposing other people in the community to hard drugs, drugs ruining other people's lives just as you have ruined and wasted your own life by reason of your addiction to these drugs.

and agrees with Stavrianou DCJ's observation cited at [48] above that:

Methylamphetamine is at the top of the tree in terms of prohibited drugs.

1. A very thorough and useful analysis of the harm that is caused to individuals and to the community by drugs, in particular methylamphetamine, is contained in Senior Member Groom's decision in VPKY and Minister for Home Affairs [2019] AATA 352 at [18]- [20].
2. Member Eteuati in Lansdowne and Minister for Home Affairs [2019] AATA 2448 at [107]- [109] observed:

107. The deleterious effects of drug trafficking on the community are well-known and often stated. Australia's National Drug Strategy 2017-2026_, referred to by the Respondent, notes that:_

"Over the last five years there has been an increase in the availability and purity of methamphetamine... As a consequence, states and territories are reporting an increase in the harms associated with its use including increased presentations to drug treatment services, ambulance attendances and presentations/admissions to Australian public hospitals."

1. In Ngo v The Queen [2017] WASCA 3, the Court of Appeal of the Supreme Court of Western Australia (Buss P with whom Mazza JA agreed) stated that the victim of trafficking or attempted trafficking in illicit drugs was the Australian community generally and that:

"The illicit drug trade is a scourge. It inflicts very significant damage on the people who consume the drugs. Also, the deleterious effects of illicit drug consumption extend to the families, friends and associates of the consumers and society generally."

1. The Respondent in his written submissions referred to the Tribunal's decision in SCJD and Minister for Home Affairs (Migration) [2018] AATA 4020 ("SCJD"). In SCJD_, Senior Member Cameron stated the following in relation to the harmful effects of drug trafficking at [80] to [83]:_

"The seriousness of drug trafficking is well known. It has been commented on by several of the trial judges before whom the Applicant has come.

The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person's drug dependency. There is a massive toll on the nation's mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.

In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.

There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services."

1. Counsel for the applicant argued in closing that the harm that would be caused to the community and to individuals in the community should be viewed in light of the fact that, even if the applicant were to be removed from the community, people would still be able to purchase drugs from other dealers. The Tribunal rejects that argument. The fact that those to whom the applicant supplied drugs in the past may be able to purchase drugs from another dealer (in relation to which there was no evidence) is not the relevant consideration. Paragraph 13.1.2(1)(a) of Direction 79 requires the decision-maker to consider 'the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct', not to consider whether harm would be suffered by the community or individuals in any event if the applicant were not allowed back into the community.
2. The Tribunal finds that the harm to individuals or the Australian community if the applicant were to re-offend in the nature of his previous criminal offending would be significant.

The likelihood of the non-citizen engaging in further criminal or other serious conduct - risk of re-offending (13.1.2(1)(b))

34. In considering the likelihood of Mr Trang reoffending the Tribunal must take into account:

a. Information and evidence from independent and authoritative sources;

1. The applicant identifies the information and evidence from independent and authoritative sources as being:[19]
   • (a) His criminal history;
   • (b) Sentencing remarks of Stavrianou DCJ; and
   • (c) Psychological report from Dr McCue.
2. In relation to Stavrianou DCJ's sentencing comments, the applicant says that his Honour noted that Mr Trang seemed to be 'developing some insight in relation to [his] offending' (R1, G9 at 63-4) and that he had 'some prospect of rehabilitation'.[20] His Honour also noted that the applicant attributed his past offending to illicit substance use, which his Honour accepted, and that he wanted to engage in programmatic intervention for his substance abuse issues.[21]
3. The applicant also refers to the psychological report of Dr McCue (A5) as being the most authoritative source of information on his risk of reoffending. The applicant submits that

Dr McCue describes him as 'open and candid' and engaged in the interview process. According to the applicant's SFIC (para. 37) Dr McCue ultimately concludes that the applicant's prognosis for desistence from offending is good. 4. The respondent says that the Tribunal needs to take into account the length and range of the applicant's offending, that the applicant has received 59 convictions over a 22 year period covering violent offences, drug possession and intent to sell, traffic offences, weapons offences, dishonesty offences, escape from custody and breach offences. Those convictions, the respondent says, clearly demonstrate a thorough disrespect for the law. The pattern and repetition of similar offences is clearly concerning. The applicant has consistently spurned opportunities provided to him and disregarded warnings from the courts, government departments and the Tribunal. 5. The respondent contends that the Tribunal should have significant concerns in respect of the risk of re-offending having regard to:[22]

34.1. The misplaced optimism of Deputy President Forrest in revoking the applicant's deportation order in 1999. In particular, the respondent draws the Tribunal's attention to the Deputy President's comment that the applicant's involvement with drugs was a matter of concern although he was not an addict and that he was a low risk of re-offending.

34.2. The cumulative pessimism of the sentencing judges remarking on the applicant's "very bad record", "complete disregard for the orders of the court", "significant entrenched drug use", "minimising attitude towards your offending ... lack of responsibility for your actions" and "past poor response to supervision". The respondent draws the Tribunal's attention to the comment of Groves DCJ that:

You were provided with the opportunity to address your drug use when sentenced for the previous offences. You failed to engage or take the opportunity to address the cause of your offending"

34.3. The applicant avoided deportation in 1999 and received a formal warning from the Department in 2010 and yet went on to commit serious offences.

34.4. The applicant is a long-term drug user and has received a number of positive drug tests in whilst incarcerated. Although he has provided evidence of engaging with rehabilitation whilst incarcerated any claimed abstinence from drugs has not been tested in the community. His ability to remain substance-free in the Australian community cannot be guaranteed, particularly where financial or other stressors which are not present in prison or detention are re- introduced.

34.5. There is no evidence that any underlying causal factors of drug addiction have been addressed.

34.6. The applicant was denied release on parole on 27 September 2016 for the following reasons:

Although your parole plan includes residential rehabilitation with Shalom House, given your drug related prison charges, the Board has no confidence that you will be able to comply with a residential rehabilitation program.

An extensive criminal history included violence which suggests a high risk of reoffending.

Despite completion of the Pathways Program, the Board notes that five out of six charges during the sentence relate to drug offences, the most recent of which was on 27 July 2016 during the Pathways Program.

It is noted that it is sometime since you had the opportunity of community supervision, however, the Board notes that you breached your last Parole Order and failed to comply with court orders.

Poor prison conduct noting six prison charges and numerous negative offender notes detailing poor work ethic suggesting an unwillingness or inability to comply with directions.

The Board notes that your Visa to remain in Australia is cancelled. Should you agree to returning to your country of origin you may wish to re-apply for parole consideration.

34.7. The appellant had previously had a parole order cancelled in 2006 after the appellant recorded 10 positive urinalysis results and failed to take up a drug programme to which he had been referred.

34.8. The completion report for the most recent evidence of rehabilitation, the Pathways Program, notes some gains but also cautions that the applicant "has had a long history of anti-social behaviour including substance misuse, anti-social criminal associations, peers and criminal conduct".

34.9. Whilst the applicant has family support, it is also the case that his long-standing partner, [co-accused/partner], also has a significant drug and criminal history and indeed was a co-offender in the applicant's most recent offences, receiving a lengthy prison sentence herself. It has been recognised that [co-accused/partner] "poses a risk to his sobriety". Whilst the applicant is said to recognises [sic] this, the Tribunal is entitled to be concerned that a resumption of this relationship increases the risk of re-offending.

34.10. Finally the respondent draws the Tribunal's attention to the report of clinical psychologist Dr James McCue which notes that whilst the applicant showed some insight:

1. His offending behaviour has been significantly influenced and motivated by his serious and chronic addiction to heroin and amphetamines.
2. His risk of re-offending if he were to be released into the community is likely to be most determined by his ability to abstain from illicit drug use and thus involvement with a drug subculture.

1. There is no psychological risk assessment tool available to assist in the assessment of drug use however conclusions regarding risk of relapse can be drawn from the factors known to influence a person's use of drugs.

1. Those factors relevant to the applicant are (1) his difficulty managing emotional reactions related to symptoms of post-traumatic stress following his exposure to fatal violence and death prior to arriving in Australia; (2) his feelings of isolation and loneliness; (3) his forming an intimate relationship with an illicit drug user; and (4) his forming friendships with other illicit drug users.
2. The applicant has demonstrated some insight into these factors. However, notwithstanding that insight, he has not experienced time outside of a custodial environment recently, to action his awareness and maintain his abstinence from drug use in the community.
3. He presents with treatment needs that require him to be assisted to fully and robustly address, and then continue to manage, the factors that contributed to his drug addiction. It is these factors, if left untreated, that pose the greatest risk to him relapsing into illicit drug use and re-offending.

1. The applicant conceded that his criminal behaviour stemmed from his drug use.

He placed considerable significance on his being offered a place at Shalom House to treat his drug addiction. A letter was provided by Mr Peter Lyndon-James who describes himself as the founder and current CEO of Shalom House which he describes as a men's residential rehabilitation centre located in the Swan Valley.[23] Mr Lyndon-James also gave evidence at the hearing. 2. The following submissions were made by the applicant's counsel in closing:[24]

Now, in my submission, the risk of reoffending is really going to be the determinative question in this application, and it's the one which we've heard quite a bit of evidence about. The factors which indicate that Mr Trang has, perhaps a significant, or not insignificant, risk of reoffending are his long criminal history,

the fact that he's continued to offend, despite being warned on multiple occasions that his visa may be cancelled, and the fact that he is a drug addict, or a recovering drug addict, where that drug was heroin, which is well known to be incredibly addictive.

Having said that, there is, in my submission, some - some room for hope; some room for the tribunal to have confidence that those days are behind Mr Trang, that he will no longer relapse into drug use, drug addiction, and as a result, offending. And that evidence really starts with the sentencing remarks of Judge Stavrianou. ... Now, His Honour obviously had Mr Trang's entire history of offending before him, and despite that, His Honour was minded to make the finding that Mr Trang had demonstrated some insight into his offending.

...

Now, Mr Trang is obviously also completed the pathways course, which is a course that is often completed by people with substance abuse issues.

...

Now, Dr McCue's report is, in my submission, the most authoritative piece of evidence before the tribunal when it comes to the risk of Mr Trang re-offending. Now, the report of course details much of Mr Trang's personal history and the ultimate conclusion reached by Dr McCue on the final page of his report was that if Mr Trang successfully completes the proposed treatment program and takes advantage of the ongoing support available to him, his prognosis for abstinence from substance use and desistence from offending appears positive.

Dr McCue also found that essentially all of Mr Trang's offending was related - appears to have been motivated or significantly influenced - by his frequent and chronic pattern of illicit drug use... Now, in that regard, there's essentially two pathways Mr Trang can go down, as explained by Dr McCue. If he engages in Shalom House, or a similar rehabilitation program, then his risk is arguably low or negligible, according to Dr McCue.

However, of course if he resumes his involvement in the drug sub-culture and perhaps recommences his relationship with his long-term partner, then his risk is arguably moderate to high. And that is one of the issues confronting the tribunal is that there can be no definite assessment of his risk.

...

Now, before I get to his plans for the future, which include Shalom House, I'll just make a comment about his prison conduct. Obviously he received a negative parole assessment and he did commit six prison offences during his most recent stay in prison...

...

While Dr McCue rightly stated that that is a cause for some concern that he was using that drug, it's very different to Mr Trang using something like methylamphetamine or heroin, which would also presumably been available in prison.

1. The Tribunal at that point pointed out that Dr McCue's concern was also that, within the controlled environment, the applicant still broke the rules, to which the applicant's counsel responded:[25]

And he certainly did that and I can't cavil that reality. However, there are ways in which he could have certainly transgressed the rules much more seriously and, at least, by not using a prohibited drug such as methylamphetamine or heroin, which has previously been his drug of choice...

1. The applicant's counsel also referred to there being a number of management plans for the applicant's rehabilitation. One or some of these management plans were considered by the Prisoners' Review Board which, as noted above, refused the applicant's application for parole as they had 'no confidence that [the applicant] will be able to comply with a residential rehabilitation program' (see [75 at 34.6] above). The Tribunal agrees with that assessment.
2. Counsel for the applicant submitted:[26]

But, ultimately, it seems the evidence from Dr McCue was that if Mr Trang successfully engages and keeps to his word with regards to his participation in the Shalom House program, that he will pose a much reduced risk of reoffending and that it could be low or even negligible. Of course, he won't have the opportunity to engage in substance misuse if he participates in that program because of the strict testing regime that Mr Lyndon-James described.

1. The respondent in closing on the issue of the likelihood of the applicant re-offending reiterated the comments made in his SFIC (see [75] above) and submitted that:[27]
   • The applicant's evidence in respect of the Pathways program was that he understood only about 20 per cent of it. Previous courses have been undertaken by the applicant - similar courses and did not lead to any significant change in the applicant's behaviour.
   • The applicant has relatively recently been refused parole. The decision was made having regard to the applicant's completion of the Pathways program, and his potential engagement with Shalom House. The Prisoners' Review Board stated that it had no confidence that the applicant will be able to comply with the residential rehabilitation program. The Board also noted that he had poor prison conduct, and a poor compliance with his previous parole order.
   • The applicant's evidence on certain aspects was evasive. In particular when cross-examined about his failed drug tests he first said that the drugs were prescribed to him, then he changed his evidence and said they were prescribed to his friend.

He then changed his evidence and said that the drugs were prescribed to the partner of his friend who smuggled them into prison. Similarly, in relation to the syringes that were found in his possession in prison, he claimed that on both occasions he had lied about them being his so that his friend would not be adversely effected in his bail. This, according to the respondent, leads to, at least, a continuing disregard for truthfulness and abiding by the rules [Tribunal note:

The Tribunal agrees with the respondent's characterisation of the applicant's evidence (Transcript at 44-45)]. * Abiding by the rules, as was conceded by Dr McCue and was made clear by

Mr Lyndon-James in his evidence, is fundamental to the applicant remaining in the Shalom House program. * The evidence of Mr Lyndon-James and Mr Phan can give the Tribunal no real reassurance. Mr Lyndon-James is obviously a strident and passionate advocate for Shalom House. His evidence was somewhat changeable, but it is clear that it is a restrictive and a hard system, where former prisoners can and will be evicted if they do not comply with the significantly restrictive rules of that institution. To put it bluntly, the applicant has consistently failed to abide by rules, both prison, on parole, and when provided with guidance by the Department. This history from the reports, the findings of the Prisoners' Review Board, through to the evidence of

Ms Xuan and Mr Lyndon-James, is that the applicant seems to want to do well when he is in prison, but that he slips up on release, and slips up, and slips up.

It is a pattern. * It is of concern that the Shalom House program is faith-based, and driven by

Mr Lyndon-James' own views. He has no qualifications, save for his theological qualifications, and his own subjective success in overcoming his addiction.

There is nothing before the Tribunal as to Shalom House's success rate;

Mr Lyndon-James was expressly reluctant to give evidence about this. Dr McCue also indicated that they are somewhat opaque, in relation to success rates. * Dr McCue also expressed some doubt as to the applicant's ability to break, or not resume, his long-standing (25 years) relationship with his co-accused/partner in his most recent drug related convictions. The applicant had conceded in cross-examination that if he resumed his relationship with his co-accused/partner he would inevitably return to drug use (Transcript at 46). 2. The Tribunal agrees with the respondent's submissions. In the end all that the Tribunal has is the applicant's claim that he will be able to address his drug addiction and that he will not re-offend. That is a claim that the applicant has repeatedly made in the past when confronted with sentencing, deportation or cancellation of his visa. In every case that promise has not been met. The Tribunal has no confidence that this occasion will be any different.

1. Much reliance was placed by the applicant on his successful rehabilitation through Shalom House. Written statements were provided by both Mr Lyndon-James and

Mr Phan.[28] Mr Lyndon-James and Mr Phan's evidence was that a full course would take up to three years. The evidence of Mr Phan, now employed by Shalom House, was that he had successfully been rehabilitated from addiction through Shalom House. Mr Lyndon-James made it very clear that he had a 'zero tolerance' approach.[29] In examination in chief Mr Lyndon-James described his approach as follows:[30]

I am really, really strict. I'm not the man that he used to know as a chaplain.

I've become really hard, I don't mess around, and if there's 1 per cent chance out of 100 that he's going to mess me around, I'll have no hesitation in picking up the phone, and putting him back in gaol, or ringing whoever I have to ring and kicking him out of my facility. You either give me 150 per cent or you don't give me nothing at all.

1. Under cross-examination Mr Lyndon-James reiterated his position as follows:[31]

COUNSEL: ... the question is to you, is that if he doesn't abide by the rules, he will be expelled from the program?

MR LYNDON-JAMES: It's the same with everybody in the program, yes.

1. Written statements were provided by both the applicant's mother and his sister.[32]

The evidence of the applicant's sister and mother was to the effect that they would support the applicant if he was allowed to stay in Australia. While their evidence was undoubtedly sincere, and it is clear that they both care deeply for the applicant, the fact is that the applicant's mother is an elderly woman in poor health who is herself reliant on the applicant's sister for support and care. She is not in a position to provide any meaningful support, in particular financial support, to the applicant. 2. The applicant's sister has provided some support to the applicant by paying for his legal representation and has indicated that, if the applicant were admitted into the Shalom House program, she would pay the $300 a week fee. She also indicated that she would be able to provide the applicant with accommodation on completion of the Shalom House program. She is, however, a single woman of limited means so the extent to which she could provide material and financial support to the applicant is limited and to a degree uncertain given that, if the applicant were to go into the Shalom House rehabilitation program, he would not be 'graduating' from that program for two to three years. 3. The Tribunal also notes that the same support from the applicant's mother and his sister was available to the applicant over the last 30 years during which period that applicant has engaged in just about constant serious criminal offending. With all respect to the applicant's sister and mother, there is no basis to believe that the applicant, having failed to take any support from them over the last 30 years during which he was warned of potential visa cancellation, and even faced deportation, is likely to change now.

1. As the respondent points out, Dr McCue's assessment is understandably guarded and subject to qualifications. His conclusion in his report dated 3 September 2019 (A5) is:

If Mr Trang were permitted to remain in Australia and be returned to the community, and he successfully completes the proposed treatment program and takes advantage of ongoing support available to him, his prognosis for abstinence from substance use, and desistence from offending, appears positive.

1. In examination in-chief Dr McCue gave the following evidence:[33]

COUNSEL: Are you aware of Mr Trang committing some prison offences during his most recent time in custody?

DR MCCUE: I'm aware of him committed some offences during his time in custody. I had thought that the last time was, I think, 2012 or 2014. I'm not aware of anything more recent than that.

COUNSEL: Were you aware of him using a drug called - I might be mispronouncing this - buprenorphine?

DR MCCUE: Yes, I am.

COUNSEL: Now, does the use of that drug, in your opinion, affect the likelihood of him relapsing into misusing prohibited drugs if released into the community?

DR MCCUE: Him having obtained access to that drug and used it, that is a concern for his future prognosis because even though it's a substance that's typically used in the treatment and management of opioid addictions, the manner in which he came about it isn't necessarily a legitimate way. It's almost a dishonest way. So it wasn't prescribed to him. And that is a concern. The concern is that in absence of actually having behavioural strategies and other psychological treatments, there's a tendency to go back to rely on a substance in order to manage his substance addiction. That could be because he is still in need of treatment and hence Shalom House would be a very positive step forward for him. But in itself, the illegitimate means by which he gained access to and then used the drug, that's concerning.

COUNSEL: So what's your overall assessment of the risk that Mr Trang poses to the Australian community by way of reoffending in a manner that he has - in a similar manner to the way he has in the past?---

DR MCCUE: His overall risk is very difficult to determine psychologically. There's a very entrenched pattern of behaviours over a long period of time. And that is concerning. However, I also acknowledge that in more recent years, and certainly with Mr Trang having been in custody, that's given him an opportunity to remove himself from illicit drugs and the plan moving forward seems like a reasonable approach, in terms of actually addressing the causal factors relating to his substance use and related to his addiction. His future risk is therefore going to be dependent on his ability to remain in treatment and then to apply the treatment gains and the treatment outcomes subsequent to that treatment.

COUNSE: So, essentially his future risk is directly linked to his ability to desist from using prohibited drugs?

DR MCCUE: I would argue yes.

1. In cross-examination Dr McCue gave the following evidence:[34]

COUNSEL: So he has undertaken the Pathways course on his most recent stint in prison and given his past history, that time in itself would not be a sufficient reassurance given his past history. Is that a fair comment?

DR MCCUE: I would argue not, no. I would argue that he needs more intensive treatment and longer term treatment than just the Pathways program.

...

COUNSEL: How much do you know about Shalom House?

DR MCCUE: Only what clients have told me and what's available on their website.

COUNSEL: So you're aware that it's principally a faith based rehabilitation?

DR MCCUE: Yes, I am.

COUNSEL: Does that seem sufficient in itself to combat longstanding drug addiction?

DR MCCUE: No, I don't think the ideology is sufficient in itself. It's really around the provision of vocational skills, the provision of therapeutic context to actually develop insight and make different choices around substance use behaviours. That's more critical than whether it's a faith based organisation or not.

...

COUNSEL: You're aware of the restriction - that it's quite a restrictive - or reports to be a restrictive environment with very strict boundaries that if they're infringed, results in a person being asked to leave?

DR MCCUE: Yes.

COUNSEL: Mr Trang has not had a great history in complying with restrictive environments. If Shalom House was not a success and he was required to leave, in your opinion would that elevate the risk of his reoffending, or at least his reusing drugs?

DR MCCUE: I believe it would, yes.

COUNSEL: To summarise, I know psychologists don't like it when lawyers summarise for them, but you can't properly assess his risk. You're broadly supportive - well, you broadly find positive signs in his aspirations - that if he resumes his relationship with [co-accused/partner], that's going to impact upon his ability to abstain from drugs. If he's unsuccessful or asked to leave Shalom House, that's going to impact upon his ability to steer clear of drugs and that he also requires additional targeted treatment for his underlying issues and also requires vocational education. Is that an accurate summary of your views?

DR MCCUE: It's mostly an accurate summary. Probably the part I would disagree with is the first comment about accurately determining his risk. I suppose what I can't provide is,

I can't provide a prediction. Predictions in psychology tend to not be particularly reliable anyway. And I can't give you a label. But I have outlined the factors that elevate his risk that he would need to manage through treatment and through the work through something, a program like Shalom House, to mitigate his risk. If that treatment and that program is unsuccessful then that would place him back at risk of re-engaging in the old habits that he's previously engaged with. So, yes, the rest of the summary is correct but in terms of me offering an opinion, I think I have offered an opinion in terms of the factors that are relevant to him, in terms of his risk.

1. The applicant himself submitted that Dr McCue's report is the most authoritative piece of evidence before the Tribunal when it comes to the risk of the applicant re-offending.

That report and Dr McCue's evidence at the hearing provide little comfort to the Tribunal that the applicant is not a significant risk of re-offending. His track record, in particular the factors identified by the respondent as set out at [81] above indicate that there is a strong likelihood of the applicant re-offending. Whatever adjective one uses to characterise the level of risk, it is, in the Tribunal's view, well beyond an acceptable risk. 2. In relation to the first primary consideration, the protection of the Australian community, taking into account the statement in paragraph 13.1(1) of Direction 79 and the nature and seriousness of the applicant's conduct to date, the nature of the harm that would be caused if the applicant were to re-offend in the manner that he has in the past and the likelihood of the applicant re-offending, this consideration weighs heavily against revocation of the cancellation of the visa.

Second primary consideration: The best interests of minor children in Australia affected by the decision (13(2)(b))

1. The applicant concedes (applicant's SFIC para. 42), and the Tribunal accepts, that there are no relevant children in this case and that this, therefore, is not a consideration.

Third primary consideration: Expectations of the Australian Community (13(2)(c))

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

1. The Tribunal also refers to the principles and expectations set out in paragraph 6.3 of Direction 79 (see [26] above).
2. The proper construction of the above provisions have most recently been considered by the Federal Court in a number of cases starting with YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY). That case has been considered in a number of subsequent cases. This Tribunal's view as to the proper construction of these provisions is set out in detail most recently in the decision in Pinder and Minister for Home Affairs [2019] AATA 1398 at [99] to [114]. The Tribunal adopts the interpretation and reasoning set out in those paragraphs.
3. In the present case, whether the so-called broad approach of the type taken by Griffiths J in DKXY v Minister for Home Affairs [2019] FCA 495, or the so-called narrow approach of the type taken by Perry J in FYBR v Minister for Home Affairs [2019] FCA 500, is adopted, the expectations of the Australian community would be that the Applicant's visa should remain cancelled. The applicant's extensive criminal record, the nature of the offences

(in particular the drug dealing), the dire consequences that flow from such offending and the likelihood of the applicant re-offending would, in the Tribunal's view, give rise to an expectation on the part of the Australian community that the applicant's visa should remain cancelled. 4. In the present case the Tribunal finds that this primary consideration weighs heavily against the revocation of the cancellation of the applicant's visa.

(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant.

These considerations include (but are not limited to):

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

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

1. The applicant's SFIC contended:
   1. Whether it is unnecessary to determine whether Mr Trang is owed non-refoulement obligations was recently thrown into doubt by Mortimer J in Omar v Minister for Home Affairs [2019] FCA 279. The Minister appealed this judgment and it went before a 5 Judge bench for final hearing on

2 September 2019 (VID307/2019). 2. The upshot of the decision in Omar is that where a non-citizen claims to engage Australia's non-refoulement obligations, it is impermissible to hive off the consideration of those claims to a later decision-making process:

[45]-[46]. 3. Like in Omar_, if Mr Trang is unsuccessful in his present application he can apply for a protection visa, but he will be in detention throughout that process._ 4. This factor weighs in favour of revocation. 2. The respondent's SFIC relevantly contended: 1. The respondent notes that the Full Federal Court in BCR16 v Minister for Immigration and Border Protection (BCR16) found that the Tribunal is required to turn its mind to whether non-refoulement claims made by the applicant constitute another reason for revocation of the cancellation decision. 2. Ali v Minister for Immigration and Border Protection [2018] FCA 650, including at [28] and [34] stands for the proposition that, to the extent that the applicant raises non-refoulement claims to this Tribunal, that submission is properly addressed by the Tribunal finding it unnecessary to determine whether non-refoulement obligations are owed because the applicant has the ability to make a valid application for a Protection visa. 3. The respondent however notes the recent decision of Omar v Minister for Home Affairs [2019] FCA 279. In that case Justice Mortimer found that the Assistant Minister had failed to carry out the statutory task under s 501CA(4) of the Act by failing to consider the applicant's representations going to "another reason" why the cancellation of the visa should be revoked and, in particular, failing to consider the applicant's representations to be owed non-refoulement obligations. 4. It is the respondent's position that Omar was wrongly decided. Furthermore, the respondent contends that Omar is distinguishable from the present matter in circumstances where the applicant has failed to set out "a serious and substantive basis in fact and in law for that representation" and has not provided any "detailed submissions" to the Tribunal.

1. At the commencement of the hearing the Tribunal brought to the parties' attention the recent Federal Court decision in AXT19 v Minister for Home Affairs [2019] FCA 1423 (AXT19). Logan J at [19] to [26] undertakes a detailed critique of, amongst other cases, Omar v Minister for Home Affairs [2019] FCA 279 (Omar) and at [27] concludes:

It is not possible, in my respectful view, to reconcile the observations quoted from Omar with the Full Court's judgment in Le_, quite apart from the passing observation made in_ DOB18 at [193]. The effect of Le_, in my view, which does not appear to have been cited, much less pressed in argument, before her Honour in_ Omar_, is that_ Omar is clearly wrong...

1. The Tribunal understands the effect of Logan J's decision to be that the correct statement of the law is that made by the Full Court in Le v Minister for Immigration and Border Protection [2015] FCA 1473; (2015) 237 FCR 516 as cited by Logan J in AXT18 at [24] as follows:

...In particular, the Full Court stated at [41]:

1. For the following reasons, we respectfully consider that the primary judge erred in holding that the issue of Australia's obligation not to refoule Ms Le was a mandatory consideration in the particular circumstances of Ms Le's case when the Minister was considering whether or not to exercise his discretion to cancel her 1994 visa under s 501(2) of the Migration Act. In our view, this was not a mandatory relevant consideration under s 501(2) in circumstances where it remained open to Ms Le to make an application in Australia for a protection visa, at which point compliance with Australia's non-refoulement obligations (and the prospect of her indefinite detention) would have to be considered by the Minister. It is critical to this analysis that, as the Minister acknowledged in both paragraph 48 of his statement of reasons and in his submissions to the Court, there is no legal impediment to Ms Le applying in Australia for a protection visa.
2. In light of AXT19, in his closing submissions, counsel for the applicant submitted:[35]

So, having had a further opportunity to consider Omar in light of AXT19, I think my submission as regards to the international non-refoulement obligations owed to

Mr Trang are that there is for this tribunal. Having said that, what there is,

is Mr Trang's evidence that he will make an application for a protection visa if he is unsuccessful before the tribunal. And there are perhaps three plausible grounds on which such a visa application can be made. The first ground is Mr Trang's fear of the communists, which he explained in his evidence. The second ground would be on Mr Trang's religious beliefs. And the third ground would perhaps be on the basis that he was born in Cambodia and never necessarily part of the Vietnamese community as a whole, and may face some sort of discrimination on that basis.

Now there is certainly some support in the country information before the tribunal on the religion ground, that was attached to the letter of Mr Trang, and Mr Trang himself gave some evidence about his personal experiences in Vietnam and the persecution that was suffered by his wife. The consideration for the Tribunal to take into account, on my submission, is the fact that Mr Trang will be facing detention for the next - a significant period - potentially between one year and three or four years, before his protection claims and his application for a protection visa are finally determined. Given that Mr Trang would be a character concern to the Department, it would be inconceivable that he would receive a visa in that time and certainly the status quo would be that he would be in detention through that entire process.

That is not an insignificant consideration. To deprive someone of their liberty is of course a very serious matter. And there is some support for that contention and Omar is a relevant consideration and my submission is regardless of what is said in Omar that it's something that should be taken into account, in any event.

But ultimately, I agree with the observations of Justice Logan in AXT19 that the tribunal is not required to determine whether or not Mr Trang is owed non-refoulement obligations.

1. On the basis of the above, the Tribunal does not consider that it is bound to consider the applicant's non-refoulement claims which, as the applicant's counsel, rightly in the Tribunal's view, described as 'not a clearly articulated' or 'supported by cogent and persuasive country information'.
2. Further, the Tribunal does not accept the applicant's counsel's proposition put in closing that the Tribunal should take into account the possibility of the applicant remaining in detention for an extended period while his protection visa claim is assessed. On the issue of the likely time to resolve the applicant's protection visa application, assuming that he does make such an application, on the information available to the Tribunal the time currently being taken to process and assess protection visas for non-citizens in detention is around three to four months. While the time to finally resolve any appeal or appeals which may be made if the applicant is unsuccessful in his protection visa application may be considerably longer, that is a matter of speculation and would, if that path is taken,

be a matter of choice by the applicant. 3. Even if the Tribunal were to accept the applicant's proposition that it should have consideration to time that the applicant may spend in detention if he were to make an application for a protection visa, and, even if the Tribunal were to treat that time in detention as potentially extending to years, that consideration would not alter the Tribunal's determination that the cancellation of the applicant's visa should not be revoked. Even if that consideration was added to those that are in favour of revocation of the cancellation of the visa, the considerations that weigh against revocation of the cancellation outweigh those in favour of revocation of the cancellation.

Strength, nature and duration of ties (14(1)(b))

(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

1. How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
   1. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
   2. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
2. The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

1. The applicant points to the fact that he has resided in Australia since 1990. He does concede that less weight should be given to this consideration by virtue of paragraph 14.2(1)(a)(i) of Direction 79 than would otherwise be given due to the applicant's history of offending (applicant's SFIC para. 51). While that is a general concession made by the applicant, the Tribunal only takes into account the fact that the applicant's offending began soon after he arrived in Australia. It is that consideration only that the Tribunal takes into account in diminishing the weight to be given to the consideration identified in paragraph 14.2(1)(a) of Direction 79.
2. The applicant's SFIC identifies only his mother and his sister as being relevant to this consideration (applicant's SFIC paras. 52-54). The Tribunal notes that the applicant had, according to his evidence, until 'about three months ago', been in a relationship with his co-accused/partner.[36] The applicant's evidence was that he will not have anything to do with his co-accused/partner or her children.[37] The applicant's relationship with his

co-accused/partner, who, according to the applicant, is still using heroin, has been a significant factor in his drug abuse over the 25 years that he has been associated with

Ms X. Dr McCue's evidence was also to that effect (see [90] above). The applicant was extensively cross-examined on his relationship with Ms X and his recent decision to sever his association with her and her children (all of whom are adults). The applicant had in his submission, apparently made in June 2016, identified Ms X as his partner and had identified her adult children, then aged between 20 and 25 years of age as 'minor children in [his] life'.[38] The applicant gave the following explanation:[39]

COUNSEL: ...having had your visa cancelled and having the decision to not revoke that cancellation being provided to you, and that decision refers to the fact that your partner ... [Ms X] was also a co-offender, it's convenient for you to say all of a sudden that that relationship is now over.

INTERPRETER: No, that's not true. That's not true. Because I have been thinking about it, because if I continue to live with her, ... [Ms X] , then I will continue to use drugs. If I continue to live with her, then I don't need to be here today. I don't need to ask for a chance to rebuild my future.

COUNSEL: So you accept that if you associate with ... [Ms X] again, you will use drugs again?

INTERPRETER: Yes. Yes, because it has been like that for many years.

COUNSEL: So it doesn't matter about the rehabilitation courses you did, it doesn't matter about Shalom House, if you're back with ... [Ms X], you will use drugs again?

INTERPRETER: When I make my decision to give up my friends, that is my determination.

COUNSEL: Yes, but you've said that if you're back with ... [Ms X], you will use drugs again.

INTERPRETER: I don't use drugs, but now I want to stay away from the friends who use it, because in the past I have tried this, I have tried that, but it was not successful.

Notwithstanding the applicant's statements that he will have nothing to do with Ms X or her children, the Tribunal does consider that his relationship with Ms X and her children technically falls within the consideration identified in paragraph 14.2(1) of Direction 79. Paragraph 14.2(1) does direct the decision-maker to approach this consideration '[r]eflecting the principles at 6.3'. With that direction to reflect the principles set out in paragraph 6.3 of Direction 79 in mind, the Tribunal does not consider that the ties to

Ms X or her children, which appear not to have had positive results for those concerned, are factors that weigh in favour of revocation of the cancellation of the applicant's visa.

1. That then leaves the Tribunal to consider the strength, duration and nature of the applicant's ties/relationships with his mother and his sister and any social links with other Australian citizens and the effect on them of a non-revocation of the cancellation of the applicant's visa.
2. The applicant's mother is 75 years of age and arrived in Australia in 1996.[40] She has,

or had, four children two of whom, the applicant and his sister, live in Australia. The oldest of her children, born in 1961, is assumed by his mother to have died under the

Pol Pot regime in Cambodia sometime between 1972 and 1975. The second child,

a male born in 1962, married and lived in Cambodia, however, the applicant's mother says that she lost contact with him in 1975 and does not now know his whereabouts.[41] The third child is the applicant's sister born in 1963 and the applicant, born in 1970,

is her fourth child. 3. Since her arrival in Australia the applicant's mother has lived with her daughter. She says that she stayed with the applicant in Carnarvon for several months in 1998. She says that when she lived in Perth with her daughter her son would visit her every two or three weeks. It seems that since the applicant started spending time in prison from 1999 onwards the contact that the applicant has had with his mother has been minimal. 4. Ms Nguyen's evidence was that she is getting forgetful and has a number of health problems including [omitted for publication].[42] 5. Her evidence at the hearing in response to questions from the Tribunal was that she receives a pension, that her daughter with whom she still lives buys all the food and other material needs and that there is no reason to believe that her daughter will not continue to look after her and provide her with a place to live.[43] 6. When asked what the effect on her would be if the applicant were to be removed from Australia, Ms Nguyen's evidence was:[44]

COUNSEL: ... If Mr Trang was removed from Australia, not allowed to stay here anymore, what would the effect on you be?

INTERPRETER: Because I'm old now, so I don't know how long I will live until I die, and I'm concerned that if he has to go back to Vietnam, then I really fear for his safety because of his politics. And also in Vietnam the government, they don't allow people to practice their religion.

COUNSEL: So, Ms Nguyen, I'm concerned about what would happen to you if Mr Trang was forced to leave.

INTERPRETER: I have many illness [sic] and I want him to live in Australia with me so that he can look after me later on.

COUNSEL: What sort of illnesses do you have?

INTERPRETER: [omitted for publication]

COUNSEL: Can Mr Trang's sister look after you?

INTERPRETER: Yes, she keep an eye for me at home, but she has to go to work.

1. The applicant's sister, Ms Trang, in her statement (A3) said that while the applicant was working in Carnarvon (1998-99) he would visit her and her children frequently whenever he was in Perth. She says that after his release from prison the first time she was not able to help the applicant because of her personal circumstances. She divorced in 2004.

She says that when released from prison the applicant 'promised to change' his ways.[45] Her children are adults. Her daughter has recently graduated from university, has a good job and lives with her husband. Her son is 29 years old. 2. There is no evidence as to any relationship or connection between the applicant and his sister's children. The applicant has not identified these children as being relevant to this or any other consideration under Direction 79 and the Tribunal notes that these children were not identified, as Ms X's were, by the applicant as children 'in his life' (see [110] above). 3. In addressing the effect of the applicant's deportation, Ms Trang in her statement (A3) says:

Dat is my only brother who survives with me during the war. If Dat is deported, my family will be upset not only because we will lose a relative in Australia, but also, we will be helpless in rendering Dat family support, love and attention which he will need badly. Mom is getting older and I am not very healthy. Thus, having Dat around the house when all my children move out is of great help when we women are getting older.

1. Ms Trang also said that she was fearful that if the applicant was returned to Vietnam he would be persecuted because he fled Vietnam and that he might also be persecuted because he is a Christian and 'Christians are not recognised in Vietnam'.[46]
2. A written statement was also provided and evidence given at the hearing by [omitted for publication].
3. A statement was also provided by Ms Xuan Thi Vo who also gave evidence at the hearing. Ms Xuan is a member of the [omitted] Church in [omitted].[47] She first met the applicant in 2005 when she visited Acacia Prison 'to teach [the] bible and spread the love of God'.[48] She also visited the applicant in 2008 when he was in the Perth Immigration Detention Centre. On his release in 2008 the applicant was baptised at Ms Xuan's [omitted] church. She says that the applicant has a good work ethic and that she does not 'think that Dat is a very bad character'.[49]
4. In her statement Ms Xuan's says that after the applicant was baptised in her church sometime in September 2008 he 'actively participated in activities organised by the church ... worked on the garden, cut the grass, cleaned up public areas, laid bricks, re-painted and did some other works to maintain the church for about a year or so'.[50]
5. Counsel for the applicant in closing summarised the applicant's case in relation to this consideration as follows:

Now, he has some ties to the broader Vietnamese community, particularly the church community, but it's really his ties to his mother and sister which are the most significant for Mr Trang. Now, his mother was clearly distraught during her evidence, and it clearly affected her greatly to see Mr Trang in the position that he is now in.

...

Now, the effect on the mother and the sister, also may take into account quite separately from the ties Mr Trang personally has to them. Now, the main - obviously, and just about in all cases, there will be an effect, some emotional trauma, if you like, to members of a person's immediate family who, when that person is removed from Australia and sent elsewhere, and that is something that should be given significant weight in and of itself, especially given that the -

Mr Trang's mother and sister are both Australian citizens.

Now, the main point of contention is what will happen to Mr Trang's mother. Now, the evidence was that she's currently, and has always been cared for by

Mr Trang's sister, and that she's obviously old and she's suffering from some health conditions, and that she will certainly require care going forward. Now, the effect on her, of Mr Trang being removed from Australia, will obviously be that he won't be available to support her. And to care for her in the future. But equally, there is an effect on his sister, who will then have to resume sole responsibility for her care and support.

Of course, I wouldn't want to describe Mr Trang's mother as a burden on her sister, but effectively, the decision of the tribunal will determine whether she is to receive any support from Mr Trang. Of course, it's conceivable that the tribunal could allow Mr Trang's application, and he could go on his merry way using drugs and never support his mother, but that is not what he's representing that he's going to do. But certainly, if he is removed from Australia, he will not be in a position to support his mother, and that - that task will fall solely on his sister, who has her own now adult children and her own employment to pursue, and it will certainly have a significant effect on her if he's not available to help share the burden of caring for their elderly mother.

1. The respondent in his SFIC, having pointed to the applicant's extensive criminal record and substance abuse and submitting that 'his links to the Australian community should be viewed through the prism of his poor conduct whilst amongst the community',[51] states his position as follows:
   1. Notwithstanding the above, the respondent concedes that the applicant clearly has ties to Australia, albeit not to the extent that they should outweigh the protection and expectations of the Australian community.
2. The Tribunal accepts that the applicant has links to Australia through his mother and his sister. The Tribunal also accepts that the applicant's mother and sister will suffer considerable distress if the applicant were to be removed. The Tribunal, however, finds that neither the applicant's mother nor his sister would be likely to suffer any adverse financial or physical impact if the applicant were to be removed. The fact is that he has never provided any support to either his mother or his sister and the likelihood of him doing so in the future if he were allowed to stay is, in the Tribunal's view, minimal.

The Tribunal is satisfied that if the applicant were to be removed the applicant's sister would continue to provide support and sustenance to the applicant's mother as she has for the last 23 years. 3. The applicant's connections to the broader community are not significant. The total effective positive involvement with the community that the evidence identifies is that for around a year in 2008 he became involved in some activities of a church in [omitted]

(see [122] above). 4. The Tribunal finds that while this consideration weighs in favour of revocation of the cancellation of the visa, very little weight is to be given to it.

1. The respondent made no submissions in relation to this consideration and there is no evidence before the Tribunal of what impact there might be on any victims if the cancellation of his visa was revoked.

(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

1. The non-citizen's age and health;
2. Whether there are substantial language or cultural barriers; and

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

1. The applicant's SFIC (para. 59) claims that the applicant:

... [omitted for publication]. He is no longer a young man at 49 years old. A large proportion of Vietnam's workforce work in laborious jobs (DFAT report [2.16]). Given Mr Trang's lack of skills or qualifications, he will most likely have to work in a labour based job, something he will struggle to do given his age and health issues.

1. There was little or no medical evidence presented to support the above diagnoses and the Tribunal notes the applicant's evidence at the hearing that his conditions, more particularly his [redated] condition, does not affect his capacity to work (Transcript at 14). In closing counsel for the applicant conceded that:

Now, Mr Trang himself gave evidence and said that his health doesn't affect his ability to work, so that falls away. But in a general sense, he is - he is obviously of a - he's not of a young age, and he has some health concerns that were - that he talked about.

1. The Tribunal agrees with the applicant's counsel's concession that, based on the applicant's own evidence, the argument that there is an impediment based on the applicant's inability to work 'falls away'.
2. The other impediments identified in the applicant's SFIC were:
   1. Mr Trang has not lived in Vietnam since he was a child. While he can speak the language, culturally it will be difficult for him to adjust.
   2. Mr Trang has no family in Vietnam. It is unclear from the DFAT report whether Vietnam has a social welfare system. It appears likely that Mr Trang will not have any social or economic support if removed to Vietnam.
3. In closing the applicant's counsel submitted that the DFAT report did not indicate that there was social security available and that:[52]

... the fact that he has no family ties and the overwhelming likelihood that there is no social security available to him will represent the greatest impediment to him establishing himself to the standard of living, which is available to most people in Vietnam,...

1. The respondent's SFIC states his position to be:
   1. The respondent concedes that the applicant may experience some hardship as a consequence of returning to Vietnam. The respondent acknowledges that there are likely to be some transitional difficulties but those impediments would by no means be insurmountable. The applicant would return to a country he lived in until he was 19. There are no language or cultural barriers to his return. The respondent contends that the applicant would be able to maintain basic living standards. Whilst this factor may weigh in favour of revocation, the respondent submits the limited impediments to his return are strongly outweighed by the primary considerations.
2. While noting that the applicant left Vietnam before he was 19 years old, the Tribunal agrees with the respondent's assessment. The applicant obviously speaks Vietnamese fluently and there is nothing before the Tribunal to suggest that, once the obvious difficulties that would be faced by anyone in re-settling into a country that they have not been in for 30 years, are overcome, the applicant would not be able to maintain a basic living standard available to other citizens of Vietnam. While the applicant is not a young man, he is certainly still of normal working-life age and, on his own evidence, his health does not affect his ability to work.
3. While some of the evidence, particularly that of [omitted for publication], appeared to be addressing claims of religious persecution in Vietnam, it is the Tribunal's understanding that that evidence was primarily lead in respect of the now-abandoned (in these proceedings at least) non-refoulement consideration. Insofar as it might be argued that restrictions on the ability of the applicant to practice his Christian faith are impediments (noting that that is not a factor identified in paragraph 14.5(1) of Direction 79, the Tribunal notes the evidence of [omitted for publication], however, also notes the information relating to freedom of belief and religion set out in paragraphs 3.6 to 3.8 of the DFAT Country Information Report Vietnam Report (R4). While the Tribunal accepts that there are, in practice, some restrictions on the practice of religious beliefs in Vietnam and that practice of religious beliefs in Vietnam is not as free as it is in Australia, any such restriction is not, in the Tribunal's view, an impediment on the applicant being re-settled in Vietnam.
4. Overall the Tribunal's assessment is that this consideration does not weigh either for or against the revocation of the cancellation of the applicant's visa.

1. Guidance is given by Direction 79 of how the decision-maker should apply the primary and other considerations. Paragraphs 8(3), (4) and (5) of Direction 79 are relevant.

(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4) Primary considerations should generally be given greater weight than the other considerations.

(5) One or more primary considerations may outweigh other primary considerations.

1. A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While these cases were generally looking at that exercise under Direction 65, the same considerations apply to the exercise required by Direction 79 which is materially in the same terms. The leading cases in this regard are Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 which was discussed by the Full Court of the Federal Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217.
2. Senior Member Dr M Evans in CZCV at [164] summarised the legal position following the various cases referred to above as follows:

Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word "secondary" tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so...

1. The Tribunal agrees with and adopts the approach outlined by Senior Member Dr M Evans.
2. Looking at the first primary consideration, the protection of the Australian community, the Tribunal's assessment is that this consideration weighs very heavily against the revocation of the cancellation of the applicant's visa. Similarly the third primary consideration, the expectations of the Australian community, weighs heavily against the revocation of the cancellation.
3. In relation to the other considerations identified in paragraph 14 of Direction 79 that the Tribunal considers to be relevant, namely, the strength, nature and duration of ties and the extent of impediments, the Tribunal finds that the first weighs in favour of revocation of the cancellation of the applicant's visa, but that little weight should be given to that consideration, and that the second does not weigh either for or against the revocation of the cancellation of the applicant's visa.

1. The applicant does not pass the character test. The issue is whether, guided by Direction 79, there is another reason why the mandatory cancellation of the visa under s 501(3A) of the Act should be revoked. Taking into account all of the provisions of and considerations required by Direction 79, as guided by the authorities identified above, the Tribunal is satisfied that there is not another reason why the decision to cancel the visa under

s 501(3A) of the Act should be revoked under s 501CA(4)(b)(ii) of the Act.

I certify that the preceding 147 (one hundred and forty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

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