PLGL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3443 (20 September 2021)

Division:	GENERAL DIVISION
File Number:	2021/4315
Re:	PLGL
	APPLICANT
And	Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
	RESPONDENT
Decision

Tribunal:			A G Melick AO SC, Deputy President 
Date of Decision:			20 September 2021
Date of written reasons:	24 September 2021
Place:			Hobart

The Tribunal sets aside the reviewable decision and in substitution exercises the discretion to revoke the mandatory cancellation of the Applicant’s visa. 

..............................[sgd]..........................................
A G Melick AO SC, Deputy President 

Catchwords
MIGRATION – non-revocation of mandatory cancellation of a Class BB Subclass 155 Five Year Resident Return visa – does not pass the character test – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – drug trafficking – decision under review is set aside and substituted.
Legislation
Migration Act 1958 (Cth)
Cases 
Afu v Minister for Home Affairs [2018] FCA 1311
Cao v Minister for Immigration and Anor [2007] FMCA 225
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs [2019] FCA 500
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Khalil v Minister for Home Affairs (2019) 271 FCR 326 
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 

SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

A G Melick AO SC, Deputy President 

24 September 2021

INTRODUCTION AND BACKGROUND
1.	The Applicant is 50 years old and a citizen of Vietnam. She formerly held a Class BB Subclass 155 Five Year Resident Return visa. The decision not to revoke the cancellation of that visa is the subject of this application. The Applicant initially arrived in Australia on 10 February 1995 on a Prospective Marriage (class TO) (subclass 300) and has resided in Australia for 26 years. 
2.	On 13 January 2021, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that the Applicant did not pass the character test and was serving a full time custodial sentence. On 22 January 2021, the Applicant made written representations to the Respondent requesting revocation of the cancellation of her visa (“revocation request”). On 24 June 2021, the Respondent decided not to revoke the cancellation. 
3.	The Applicant subsequently lodged an application for review in this Tribunal on 30 June 2021. The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
4.	This application was heard on 11 and 12 August 2021. The Applicant was represented by Ms Tanya Skvortsova. The Respondent was represented by Mr Keith Sypott of Australian Government Solicitor. The Applicant called the following witnesses to give oral evidence before the Tribunal:
(a)	the Applicant
(b)	Mr Patrick Newton, clinical psychologist
(c)	Applicant’s friend, H
(d)	Applicant's son, G
(e)	Applicant's friend, J
(f)	Applicant's sister, DT
(g)	Applicant's sister, T
The Applicant 
5.	The Applicant lodged a statement dated 23 May 2021 tendered in evidence and gave oral evidence at the hearing through the aid of an interpreter. 
6.	The Applicant was asked about her life when she first moved to Australia. She was 25 years old when she left Vietnam and gave birth to two sons within the first three years of living in Australia. She was a single mother and agreed with counsel for the Applicant that it was “tough”. She reported juggling responsibilities to her children without a car, but stated she was fortunate because she had a job.
7.	When asked about the work the Applicant was undertaking at the time, she stated that she did sewing at home which allowed her to balance some of the responsibilities to her children. During this time, the Applicant purchased her own home by borrowing “the whole cost of the house and just deposited a little”. She made monthly repayments of $800-900. 
8.	After five years of sewing, the Applicant opened a restaurant in approximately 2004. She obtained the money to start the restaurant from a Vietnamese borrowing scheme known as a Hui scheme. The Applicant stated that other members failed to make their contributions to the scheme, and she went bankrupt as a result. She had to sell her property as a result of her bankruptcy. 
9.	The Applicant was questioned about her relationship with one “M”, who she met in Vietnam. Her and M shortly thereafter became engaged to be married and the Applicant applied to sponsor M’s visa application so that he could relocate to Australia.
10.	Prior to M’s arrival, the Applicant moved to Adelaide and restarted contact with an old acquaintance, “S”. S offered to assist the Applicant with employment in Melbourne. The Applicant gave evidence that S told the Applicant that “he had a company that imported products to be resold in Australia”.
11.	The Applicant gave evidence that S promised that in exchange for her participation in the drug importation, he would “help [her] buy back the property and help [her] to regain everything that she had lost”. When asked about her insight into the drug importation, the Applicant maintained that while she understood the items were prohibited, she did not know how much and what the specific items would be.
12.	The Applicant returned to Melbourne from Adelaide to commence working for S. She indicated that while she had not previously had romantic feelings for S, these developed, and she fell pregnant with his child, D.
13.	The Applicant gave evidence in relation to her “unofficial” relationship with S, explaining that once M arrived from Vietnam, she explained that was pregnant with D to with another man and the two decided that M would be the adoptive father to D, and his name was used on the birth certificate. 
14.	During cross-examination, the Applicant was asked about her relationship with S. She gave evidence that he had rented a property for her and her children to live in, but he did not live with the family and visited only from time to time. She was questioned in relation to intentions with S and her husband M. She gave evidence that she met S after sponsoring M’s visa. She stated that she intended to maintain a lasting spouse-like relationship with M despite her physical intimacy with S.
15.	The Applicant’s evidence on the nature of the relationship between the Applicant and her former-husband, M, was unclear. In light of conflicting oral evidence given during the hearing, counsel for the Respondent raised concerns about the truth of the Applicant’s statutory declaration given in support of M’s partner-visa which purported a stable, committed and loving relationship between the pair. During re-examination, the Applicant’s counsel revisited the issue. This evidence appeared to be that since the Applicant told M about her extra-marital affair and subsequent pregnancy, M moved out of the family home and was not consistently present there for some time. This appeared to account for the Applicant’s oral evidence that she lived alone as a single mother. The Applicant stated in re-examination that she and M reconciled, and that M agreed to support the Applicant and take on the role of adoptive father to her unborn child. 
16.	When the Applicant was asked about why she participated in the importation of drugs in 2008, the Applicant said it was because of her three children. She stated that “during the time I spent in the jail, I recognised my mistake and I regretted it”.
17.	She further elaborated on her remorse and stated that while she was in jail, she came to know “stories about the drug addicts, people affected by that kind of importation”. When questioned in relation to the likelihood of further offending, the Applicant stated that she did not think she would commit any further offending. She stated that “if [she] could be given a change to regain [her] life, to turn into a new chapter, [she] would never fall into that trap again”.
18.	When asked about parole, the Applicant gave evidence that the Parole Board had expressed no issue with her proposed parole arrangements and had advised her that it would revise her case and release her if she had her visa reissued.
19.	The Applicant has participated in a vocational course while in custody that has provided her with skills in cooking and making coffee. If she was to stay in Australia, the Applicant gave evidence that she had received multiple offers of assistant from community groups by way of providing rent assistance, a mobile phone and transport from prison in the instance of her release. She advised she had friends working in beauty and nail salons and she believed she would be able to secure employment in this industry. The Applicant has indicated that she could also receive financial support from her family after her initial release, but this would not be ongoing. 
20.	When asked about her return to Vietnam, the Applicant gave evidence that it would be difficult to return. She explained that she had two elderly sisters who were not in good physical condition. During cross-examination, the Applicant agreed that because of her family’s involvement in the previous political regime, she may face harm. She gave evidence that it would be impossible or very challenging for her to get a job due to her family background and would not be eligible for government welfare. She agreed this was more akin to discrimination than a threat to her physical safety.
21.	When asked about how it would feel to be separated from her children, the Applicant stated:
“I love them, I need them, too. I have spent such a long time in prison. I just want to spend the rest of my life to compensate for the time being away and absent from my children. To love them and taking care of them”.
22.	During cross-examination, the Applicant emphasised the value of physical contact with her family, noting that if she was deported to Vietnam there would be financial limitations on how often they would be able to come to Vietnam. She indicated that she currently speaks to her two eldest sons once a day and has a video-call once a week. 
23.	The Applicant was asked about her son’s current care arrangements. She explained that since the unexpected death of their uncle and primary carer, “DN” in late July, her sons have been living together with ad hoc support from her sisters, but there is no long-term arrangement for their care. She explained that her sons feel “anxious and scared and they just want [the Applicant] to stay with them”. She explained that it was her intention to live with her sons in the case of her release. 
Mr Newton
24.	Mr Newton, clinical psychologist, examined the Applicant and provided a report dated 17 May 2021 which was tendered in evidence. He gave oral evidence at the hearing. 
25.	Mr Newton used the Risk, Needs, Responsivity Framework to assess the Applicant and found her to be at a low risk of reoffending. When asked to expand on what ‘low risk’ meant, Mr Newton explained that it means there are no specific intervention needs required to ensure she does not pose a risk to the community going forward, that you would adopt a “light touch” in the management of her supervision and intervention. He confirmed this was the lowest category available in regards to an offender. 
26.	He referenced the Applicant’s participation in drug and alcohol programmes throughout her term of imprisonment as an aspect of her incarceration that has served as a deterrent, noting that “she became particularly aware of the impact of drug use on others, and hence helped her to develop an insight into the culpability and the consequences of her actions, and to develop remorse and empathy for those who are affected by the type of offending which she committed”.
27.	When asked about the influence of S on the Applicant’s offending, Mr Newton stated:
“he seems to have played a dominant role in that offending, to have been the leader of that offending. And she seems to have played a subservient role […] he was quite manipulative of her hopes and dream for her family. To have used that fairly callously in term of keeping her involved in the offending and then to have abandoned her ruthlessly when she had served her purpose”.
28.	When asked about the role that financial incentives played in the Applicant’s offending, Mr Newton opined that “the principle thing she desired out of this offending was a home and a car for her and her family’s use”. During cross-examination, he opined that the reason the Applicant offended was in order to “meet her family’s needs”. Mr Newton acknowledged the naivety of the Applicant’s position at that time, but opined that the impacts of incarceration, particularly rehabilitative factors, are extensive and long term. He was of the view that the Applicant was not at risk of falling vulnerable to the same naivety now. 
The Applicant’s friend, H
29.	H is the Applicant’s friend, and has known the Applicant since 2002-2003. H prepared a statement in support of the Applicant tendered in evidence, and gave oral evidence at the hearing with the aid of an interpreter. 
30.	H gave evidence that she speaks almost every day with the Applicant. She sees the Applicant as an important support person in her life and states that they mutually support each other. She also sees the Applicant’s sons at least once every few months.
31.	H gave evidence during cross-examination that she was “very surprised” to hear the Applicant had been involved in the drug importation. She did not have comprehensive knowledge of the Applicant’s former partners, and seemed to have only vague knowledge of the Applicant’s marriage to M. Despite this, her evidence broadly corroborated the Applicant’s evidence of her history of romantic partners. 
32.	When asked about how the Applicant’s sons have reacted to news that she may be deported, she stated that they are “very anxious and very scared”.
The Applicant’s son, G. 
33.	G is the Applicant’s middle son, aged 22 years old. G wrote two statements in support of his mother’s application dated 23 May 2021 and 29 July 2021 and gave oral evidence at the hearing. 
34.	G was asked about the relationship he had with his late uncle and former carer, DN. His evidence suggested that his uncle had played a quasi-parental role in his life, and G had still been living in the family home with his uncle when his uncle died because he was unemployed and wanted to continue studying. 
35.	G indicated he was very concerned when he found out that his mother was facing deportation, he said he was not prepared and aware of the possibility. He indicated that since DN had passed away, he would be looking for work, as well as his older brother, in order to be able to continue to rent the home he lives in with his younger brother. 
36.	During cross-examination, G was asked about his knowledge of his mother’s offending. He showed some awareness of his mother’s offending, although he didn’t have a strong appreciation of the details of the offence. He became aware after the offending of his mother’s relationship with the co-accused S. He was aware of his mother former-husband, M and recalled this man living with him and the Applicant when he was younger.
37.	When asked whether he would visit his mother in Vietnam, he indicated, “possibly”. When asked whether he would provide her with financial support if he could, he indicated he would if she needed it. 
38.	During re-examination, G was asked about his plans for his study over the coming years. He indicated that he planned to study full-time and work part-time while he finished his current course and completed a Master degree. The Applicant indicated that he may also be looking after his younger brother, D, during this time. He acknowledged during re-examination that if he were to look after his younger brother, he may not be able to maintain full-time study. 
The Applicant’s friend, J 
39.	J met the Applicant in prison. She submitted an undated statement in support of the Applicant and gave oral evidence at the hearing with the aid of an interpreter.  
40.	The Applicant was the preferred carer for J’s baby while she was in prison and assisted J in overcoming depression after the death of a different one of her children. J’s evidence presented the Applicant as a positive role model. J corroborated the Applicant’s evidence that her strong motivation to return from Vietnam was so that she could return to her children as soon as possible. J was not cross-examined. 
The Applicant’s sister, DT
41.	DT is the Applicant’s sister. She wrote a statement in support of the Applicant and gave oral evidence at the hearing. 
42.	DT gave evidence that she sees the Applicant’s sons only once every couple of months. She expressed the view that it would be very difficult for the Applicant’s sons if the Applicant were to return to Vietnam, due to the absence of a strong carer in their lives. She explained that she had limited capacity to care for the Applicant’s sons due to her age. 
43.	DT indicated the Applicant would receive support from her and their other sister in the form of a place to live and assistance finding work. If the Applicant was to return to Vietnam, she would be unlikely to visit and would have limited financial capacity to support the Applicant through the provision of funds.
The Applicant’s sister, T
44.	T is the Applicant’s sister. T’s statement was tendered in evidence and T gave oral evidence at the hearing through an interpreter. 
45.	T gave evidence that she speaks to all three of the Applicant’s sons about once a week. They live very close to her house. She gave evidence that the Applicant’s sons were very affected. She stated that the youngest son was not talking very much. She indicated that she would definitely support the Applicant if she was able to remain in Australia. 
46.	During cross-examination, T was asked about the Applicant’s former romantic partners. Her evidence that the Applicant had been married twice, but that she had had limited contact with the second husband, corroborated the Applicant’s evidence as well other witnesses’. The Applicant’s sister indicated that she would assist the Applicant to find employment as she would like to retire. The Applicant’s sister indicated that she was able to assist the Applicant only for a short period of time. She stated that she did not have ability to care for the children properly due to the needs of her own family.
47.	The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
Procedural History
48.	The Tribunal published its decision in this application pursuant to s 43(1) of the Administrative Appeals Act 1975 (Cth) on the 84th day relevant to this matter, 20 September 2021. In doing so, the Tribunal met the requirements of s 500(6)(c) of the Act. Attached to these Reasons and marked “Annexure B” is a true and correct copy of this Decision.
49.	In accordance with the principles outlined by the Full Federal Court in Khalil v Minister for Home Affairs (2019) 271 FCR 326 (Khalil), the Tribunal now publishes the written Reasons to the parties. In Khalil, the Full Federal Court said:
“41. The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84 day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271‑273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required it to give its reasons, oral or in writing, within a reasonable time of the decision.
…
48. What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…”
[My underlining] 
LEGISLATIVE FRAMEWORK (s 501(1)CA(4))
50.	Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4	The Minister may revoke the original decision if: 
(a)	the person makes representations in accordance with the invitation; and 
(b)	the Minister is satisfied: 
(i)	that the person passes the character test (as defined by section 501); or 
(ii)	that there is another reason why the original decision should be revoked. 
51.	I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo: 
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”
52.	There are therefore two issues presently before the Tribunal:
•	whether the Applicant passes the character test; and
•	whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant Pass the Character Test? 
53.	The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly 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”.
54.	On 3 October 2011, the Applicant was sentenced to a term of imprisonment of 15 years’ imprisonment with a non-parole period of 11 years and six months. 
55.	Her Honour Judge Campton, summarised the Applicant’s offending as follows:
You agreed to assist your partner […] [S] with this importation scheme. Your role was to arrange to lease the factory for the consignment of foot spas to be delivered to, and to set up a company with an ABN. You were also to ensure the arrival of the drugs in the container, clear it through customs, arrange for the drugs to be removed from the container and arrange for the distribution of the drugs to traffickers.
When [S] told you that he needed good English speakers to deal with the drug importation in Melbourne you recruited your niece, […] [redacted], who was fluent in English assist you. [Redacted] owed you money in a Hui scheme and was to receive 25,000 which would go towards repayment of her debt to you.
You arranged for [redacted] to move into your house and introduced her to [S’s] brother [redacted]. [S] told you that [redacted] would provide the payments necessary for the drug shipment to clear customs, and for other expenses associated with the importation scheme. You arranged for any necessary payments to be made.
You arranged for the leasing of the factory, and on 23 June 2008 you went with [redacted] to view the factory. Afterwards you signed the lease in the name of [redacted] which business you had registered and obtained a ABN for the purpose being to legitimise the importation of the foot spas within which the drugs were to be contained. You provided a cash deposit of $200 and your drivers licence as identification.
On 1 July 2008, which was around the same time the container was due to arrive in Melbourne you left Australia to join [S] in Vietnam. Before you left Australia you provided [redacted] with a mobile phone and a SIM card so she could keep in touch with you, and you could provide her with instructions as to what to do. Subsequently there were numerous calls between you and [redacted] where you coordinated and organised the arrangements for the arrival of the container, and the subsequent unpacking of the container. The calls intercepted by the police indicated that [redacted] acted under your instructions and reported to you and sought directions and guidance from you. 
You also spoke to [redacted] about arrangements for the arrival and unpacking of the container and arranged for your husband, [M], to assist with the unpacking of the container.
In addition to ensuring the delivery of the container to the factory and the unpacking of the foot spas, you gave [redacted]  the phone details of the two Sydney traffickers, [redacted]. You gave her specific instructions as to how she should deal with these traffickers including taking them past the factory, so they knew where to go once they arrived from Sydney. 
You advised [redacted] to provide the phone numbers of the traffickers to [redacted] and you made it clear to her that each of the traffickers was responsible for their own drugs. You also spoke to [redacted] and told him that “no one keeps for anyone”.
…
While you were in Vietnam you became aware that a number of your cooffenders had been arrested. You eventually returned to Australia on 29 August 2009, when you were arrested and taken into custody You did not make an application for bail and have been in custody since that date.
…
You co-operated with the police and completed a statement on 13 October 2010 and a further statement on 2 February 2011. In these statements you outlined your involvement in the importation scheme. In addition you agreed to give evidence against your co-offenders. The informant has assessed the value of your statements as varied, stating that you were selective when it came to outlining your involvement in the importation. However he also said that you had provided some valuable evidence in respect of the other offenders, in particular [S].
...
Your personal circumstances were provided to the court when you gave evidence, and details were also contained in various reports handed up to the court. You were born in Ho Chi Minhh City in Vietnam in 1971, you are 39 years old. You have six older sisters, and six older brothers. You went to school in Vietnam until the end of year 9, you the commenced a hairdressers course for two years but did not work in this area. You then worked as a sewing machinist for five or six years.
 In 1995, at the age of 25, you came to Australia with your fiancé. You married here but separated soon afterwards. You have had three subsequent relationships, having a child to each partner. When you arrived in Australia you initially worked as a sewing machinist. You then opened a restaurant but unfortunately lost that business due to problems with a Hui scheme you were involved with. One of the participants in this loan scheme took off with the money, and you had to repay the investors by selling the restaurant and your house.
You went to Adelaide to escape your creditors .You returned to Melbourne when one of your customers from the restaurant, [S], whom you had developed a friendship with, offered you work as his driver in Melbourne.
Your relationship soon became an intimate one, and you became pregnant with his child in 2007, giving birth to a son in 2008. [S], assisted you in obtaining the rental home where you lived with your three sons, and paid the rent. It was in December 2007 that he first spoke to you about importing drugs into Australia and asked you to take part. In return for your assistance you were promised money and a house to live in, and a car.
You gave evidence that you agreed to assist [S] with the importation of drugs as you “had nothing”. You had given birth to his son, and you wanted them to be together as a normal family. You thought that you would all live in a house purchased by the proceeds of the drug importation as family. You also said that at the time you appreciated what [S] had done for you and your sons and you had positive feelings towards him. However you now regret your behaviour and have negative feelings towards him.
You said that you had not been aware of the amount of drugs involved as [S] did not want you to know the details and he had only provided you with limited information. Your evidence was that when you left Australia on 1 July 2008 to join [S] in Vietnam you did what he instructed you to do. You said he was always next to you when phone calls were made. [S] told you to keep in touch with [redacted] and gave you instructions as to what to say to her. Although you knew [S] was going to import drugs to Australia, you had no idea of the quantity of drugs involved. 
After the importation scheme was foiled and the participants in Australia were all arrested you remained for some five months with [S] in Vietnam, however when he deserted you and your three sons you decided to come back and face these charges. This was despite the fact you had known that you would be arrested when you came back to Australia, and that you would be sentenced to a significant term of imprisonment. You said that one of the main reasons you returned to Australia was because of your children’s future. Your two eldest children, […], are currently living with one of your brothers, while your youngest son is with you in custody.
…
With respect to your mental capacity I have not applied the principles in R v Verdins [2007] to reduce your moral culpability. This is because, although I accept that your intellectual functioning is low compared to your peers, I accept Dr Drake’s opinion that your cognitive impairment did not lead to the commission of the offences. I accept that you were motivated by financial gain and your emotional attachment and loyalty to [S].
56.	The Tribunal therefore finds that the Applicant has a “substantial criminal record” and, therefore, she does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of her visa to be revoked. 
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked? 
57.	In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application. 
58.	For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision. 
59.	The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)	Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)	Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)	The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)	Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)	Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
60.	Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision. 
61.	Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are: 
(1)	protection of the Australian community from criminal or other serious conduct;
(2)	whether the conduct engaged in constituted family violence;
(3)	the best interests of minor children in Australia; and
(4)	expectations of the Australian community.
62.	Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)	international non-refoulement obligations;
b)	extent of impediments if removed;
c)	impact on victims; and
d)	links to the Australian community, including:
i)	strength, nature and duration of ties to Australia; and
ii)	impact on Australian business interests
63.	I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:
“…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
BACKGROUND and offending
64.	On 3 October 2011 the Applicant was convicted of one count of Attempt/import/export commercial quantity of border controlled drugs (methamphetamine) and one count Attempt/ possess commercial quantity of border controlled drugs (cocaine). She was sentenced to 15 years’ imprisonment with a non-parole period of 11 years and six months.
65.	The circumstances of the Applicant’s offending are agreed upon by the parties and incorporated from the Respondent’s statement of facts, issues and contentions as follows:
9.1. In December 2007 [S] spoke to the applicant about a scheme for importing drugs into Australia. The scheme involved the importation into Australia of ice, cocaine and ecstasy, which was to be concealed in foot spas. The applicant was pregnant with [S’s] son at this time. [S] promised that, in exchange for her involvement in the scheme, the applicant would receive money, a home to live in and a car. The applicant agreed to become involved in this scheme.9 
9.2. [S] told the applicant that he needed good English speakers to deal with the drug importation in Melbourne. In June 2008 the applicant recruited her friend, […] [redacted], into the scheme. [Redacted] owed the applicant money in a Hui (informal loan) arrangement and was to receive $25,000 for her involvement in the scheme, which would be used to repay the Hui debt.10 
9.3. In June 2008 the applicant arranged for a factory to be leased in the name of a fake business she had created, [redacted].11 
On 1 July 2008 the applicant departed Australia with her children to meet with [S]. Around this time, a container containing the foot spas was to arrive in Melbourne. Prior to her departure, the applicant provided [redacted] with a mobile phone and a SIM card so that she could provide her with instructions.12 
9.5. The applicant had a number of telephone conversations with [redacted], as well as other co-offenders, where she coordinated and organised arrangements for the arrival and unpacking of the container. She also provided [redacted] with the phone details of two Sydney traffickers and gave her instructions on how to deal with them.
9.6. On 11 July 2008 the container was delivered. The applicant arranged for her husband to assist her co-offenders in unpacking it. She also, unsuccessfully, attempted to get other friends to assist with the unpacking.
9.7. Unbeknownst to those involved in the scheme, the foot spas had been intercepted by United States Customs and Border Protection Patrol. The Australian Federal Police (AFP) had subsequently removed the drugs and replaced them with an inert substance.
9.8. On 12 July 2008 the AFP arrested the applicant’s co-offenders (other than [S]), who were in the process of unpacking the container.16 
9.9. While in Vietnam, the applicant became aware that some of her co-offenders had been arrested. She returned to Australia on 29 August 2009 and was arrested on that date.
9.10. The weights and approximate street values of the drugs intercepted were as follows: 
9.10.1. Methamphetamine – 21.8kg; $50M 
9.10.2. MDMA – 6.3kg; $6.9M-$16M 
9.10.3. Cocaine – 29.1kg; $16M-$32M
10. On 5 June 2012 the Court of Appeal dismissed an appeal by the applicant against the sentence imposed by the County Court.

PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
66.	In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
67.	In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)	The nature and seriousness of the non-citizen’s conduct to date; and
b)	The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
68.	When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
69.	Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community. 
70.	The direction states that the government is committed to protecting the Australian community from harm as a result rather serious conduct by remaining in Australia is a privilege.
71.	Australia confers rights upon non-citizens in the expectation 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.
72.	When considering whether there is another reason to revoke the cancellation of the Applicant’s visa, I have considered the nature and seriousness of the Applicant's conduct and the risk to the Australian community should she reoffend.
73.	When considering the nature and seriousness of the Applicant's criminal offending, I consider drug importation a very serious offence due to the well-known significant negative impact that illegal drugs have upon the community.
74.	The Delegate in this matter accurately set out the circumstances and I adopt his/her summary as set out below:
On 3 October 2011, [the Applicant] was convicted in the County Court of Victoria of import a commercial quantity of border controlled drug, methlyamphetamine, cocaine and MDMA and sentenced to 12 years imprisonment. On the same day, [the Applicant] was also convicted of attempting to possess a commercial quantity of a border controlled drug, methlyamphetamine, cocaine and MDMA and sentenced to eight years imprisonment. These sentences were imposed part-concurrently, and [the Applicant] received a total effective sentence of 15 years imprisonment, with a non-parole period of 11 years and six months. [The Applicant] applied for leave to appeal the sentence and on 5 June 2012 in the Supreme Court of Victoria Court of Appeal, however her appeal was dismissed Attachments B and C.
The sentencing remarks of the County Court of Victoria state that [the Applicant] was involved the importation of 158.5kg of a substance which contained 55kg of pure drugs being methylamphetamine, MDMA and cocaine. The street value of the drugs was estimated to be up to $98.5 million Attachment B.
On 20 May 2008 in the United States, customs officers intercepted a container containing boxes of foot spas. In a number of foot spas, they found concealed packages which tested positive for cocaine, methylamphetamine and ecstasy. The container was allowed to continue to Melbourne where the Australian Federal Police (AFP) substituted the drugs with inert substances and placed a listening device in the container.
On 11 July 2008, the container was delivered to a factory and the next morning, a number of [the Applicant’s] co-offenders attended to unpack the container and to prepare a rental vehicle to conceal the illicit drugs. The AFP arrested [the Applicant’s] co-offenders at the factory Attachment B.
[The Applicant] had agreed to assist her partner […] ([S]) with the. [The Applicant] stated to the Court she agreed to participate as [S] promised her a house and a car and that they would live as a family. As part of [the Applicant’s] role, she leased a factory under the name of [redacted] and registered a company of that name to obtain an ABN. The company was created and registered for the purposes of the importation Attachment B.
[The Applicant] recruited her niece [redacted] to help due to her fluency in English. [The Applicant] left Australia to join [S] in Vietnam around the same time the container was due to arrive in Melbourne. The AFP intercepted phone calls between [redacted] and [the Applicant] where [the Applicant] provided [redacted] with instructions coordinating and organising the arrangements for the arrival of, and subsequent unpacking of the container. [the Applicant] also gave [redacted] the phone details of two Sydney drug traffickers and told her to act as a go between to sell the drugs Attachment B.
[The Applicant] was with [S] on the day the container was unpacked and present when he gave a co-offender details about the quantities of drugs in the foot spas. While [the Applicant] was in Vietnam she became aware that a number of her co-offenders had been arrested and she subsequently returned to Australia on 29 August 2009 and was arrested on arrival Attachment B
The sentencing Judge on 3 October 2011 noted that the street value of the drugs was ‘considerable’. The Judge accepted that [the Applicant] did not know the full extent of the amount of drugs being imported, but that it must have been obvious given the leasing of factory, that it would not be a small amount. The Judge also accepted that although [The Applicant] received many of her instructions from her partner [S], she played a ‘vital’ role in the importation and her involvement in the scheme was ‘substantial’ and she was ‘actively involved’. I note that in the judgement of the Supreme Court of Victoria on 5 June 2012 [the Applicant] was recorded as an ‘integral facilitator of the importation’ 
Drug importation is a serious offence which causes harm to our community on a number of levels; not just harm for users but also harm to the community in general through the impact upon policing, Courts and health services. [The Applicant] was a vital part of a joint enterprise to import a large amount of drugs into Australia, and I find the offending by [the Applicant] to be serious.
I also find that the sentences [the Applicant] received are a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and [the Applicant] was sentenced to substantial sentences of and eight years imprisonment. I have considered that this is an indication that court viewed the offending as serious, a view to which I concur.
75.	Counsel for the Applicant did not dispute that the Applicant’s offending was serious and, in view of the circumstances and a total effective sentence of 15 years’ imprisonment, with eligibility for parole after 11 years and six months, she could not submit otherwise.
76.	However, counsel submitted as follows:
It is relevant, however, for the Tribunal to have the regard to the following matters, individual to the Applicant’s circumstances, which assist the Tribunal in distinguishing the Applicant’s conduct from another offender convicted of an identical offence: 
a. The sentencing judge accepted that her involvement in the scheme was driven in part by an emotional and financial dependency on one of the organisers (her then partner [S]), following a period of financial hardship experienced by her; 
b. She returned to Australia from Vietnam – knowing the likelihood of her arrest for the offending, and the likelihood being sentenced to a significant time in custody (sentencing remarks, at [13], [15], [21]); 
c. She cooperated with police following her arrest, implicating not only herself but also others who were being investigated (sentencing remarks, at [15]); 
d. Agreed to give evidence in respect of her cooffenders (sentencing remarks, at [15], [58]); 
e. At the time of sentence she was assessed as having an impaired intellectual functioning compared to her peers (sentencing remarks, [28]). 
As such, while the Applicant’s conduct is unquestionably serious, it ought not be regarded as unqualifiedly so, simply by virtue of the sentence imposed on her. 
77.	I consider the Applicant returning from Vietnam to face certain arrests in Australia to be a significant matter but dealt with elsewhere in this decision. In view of the facts as outlined above, I consider the Applicant’s offending to be very serious.
78.	Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
79.	Obviously, the imposition of a significant custodial sentence is reflective of Her Honour’s view of the objective seriousness of the Applicant's offending. Her Honour stated:
In relation to federal offences set out in the Commonwealth Crimes Act 1914 (the Act), the primary obligation of a sentencing judge is to impose a sentence that is of a severity appropriate in all the circumstances of the offence. In determining the appropriate sentence to be imposed on you, I have taken into account the matters listed under s.16A(2) of the Act and all the mitigating factors mentioned by your counsel.
80.	Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
81.	There was no evidence of the Applicant providing any false misleading information to the Department with the exception of allegations of not disclosing her true relationship with her husband which was a matter unrelated to her offending.
82.	The Respondent submitted that in addition to criminal offending, the Applicant had knowingly provided false and misleading information to the Department on two occasions. These allegations were based upon the following set of facts:
(a)	The Applicant met M on visits to Vietnam in 2005, they commenced a relationship and at the end of that year he proposed to her.
(b)	The Applicant then commenced efforts to have M move to Australia with her, on 29 May 2006, being a sponsor for a Prospective Marriage (Class TO) (Subclass 300) Visa. That visa was granted on 12 March 2007. 
(c)	M arrived in Australia on 22 March 2007 and he and the Applicant married two days later.
83.	There was conflicting evidence as to whether or not he lived with the Applicant and her children after their marriage, the complicating factor being that the Applicant had commenced a relationship with S, seemingly prior to her marriage to M, and that relationship continued on and off until her arrest. S was in fact the principal planner and offender of the drug importation for which the Applicant was convicted but does not appear to have lived with the Applicant or her children at any stage during the relationship.
84.	Although there was little evidence to corroborate the Applicant's assertion that M lived with her and her children I am satisfied, predominantly because of the evidence of the applicant's son G, that the Applicant and her husband lived together for at least a few months after their marriage.
85.	I am also satisfied that at the time the Applicant applied for the Prospective Marriage Visa, that she and M intended to live together as spouses. I note the Applicant was not living with S and, already having had two children to two different partners, I accept that she wanted a stable relationship to help bring up her children. The fact that she was having an extramarital affair does not in the circumstances of this case, necessitate a finding that she was not in a spousal relationship with M.
86.	In Cao v Minister for Immigration and Anor Riley FM held:
In my view, the correct interpretation of the relevant regulations is that it is a matter of fact and degree in the circumstances of the particular case whether an extra-marital sexual encounter indicates a lack of the required commitment to a shared life as husband and wife to the exclusion of all others. The regulations mean that a person is not a spouse as defined if he or she is party to another marriage-like relationship. Sex is only one part of such relationships and is obviously not unique to such relationships. Sex does not, of itself, mean that the relationship in which it occurs is a marriage-like relationship. The regulations do not exclude a person from being a spouse as defined if he or she engages in an extra-marital sexual encounter, provided that it is not in the context of a second marriage-like relationship and provided that he or she continues to have a commitment to a shared life as husband and wife with his or her spouse. 
It is a matter of common knowledge that there are people who remain in their marriages for 20 or 30 years or more but who nevertheless during that time have numerous, short term, extramarital sexual encounters involving no significant emotional investment. It is also a matter of common knowledge that, sometimes, a person has an extramarital affair which ends after a time and the marriage continues. In other cases, a person who has an extramarital affair eventually leaves the marriage and goes on to build a new life as husband and wife with the person with whom he or she had the affair. In such cases, there is obviously a point where the commitment to the first marriage ends. It is a matter for the Tribunal as the finder of fact to determine in all of the circumstances of the particular case whether or not an extramarital sexual encounter of one of the parties to a marriage reflects a lack of commitment to a shared life as husband and wife with the other party to the marriage, and whether or not it reflects the formation of a second marriage-like relationship. [emphasis added].
87.	In about July 2007, the Applicant fell pregnant and at some stage thereafter confessed to her husband that S was the father of the child. M left the family home but later agreed to be named as the child’s (D, who was born 2 March 2008) father on the birth certificate issued on 26 March 2008.
88.	On 28 November 2007, despite by this time M having left the marital home, the Applicant sponsored him for a combined application for a Partner (Temporary) (Class UK) (Subclause 820) visa and a Partner (Residence) (Class BS) visa.
89.	In support of the application she provided a statutory declaration dated 3 December 2017 which stated, inter-alia, that since his arrival in Australia M had been living with the Applicant and her children and that the children considered him to be their father.
90.	Based upon my findings already outlined above, that information was and is a matter I must consider under sub-paragraph (f) of paragraph 8.1.1 of the Direction.
91.	Although I consider misleading the Department in such a way a serious matter, it is somewhat mitigated by the fact that the Applicant obviously felt an obligation to M having breached his trust by reason of her extramarital affair.
92.	For completeness, I note the following subparagraphs of the Direction which, for the reason expressed after each, I do not consider relevant to this decision.
93.	Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)	causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)	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;
(iii)	any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)	where the non-citizen is in Australia, 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, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.
94.	None of the above were applicable in this matter. 
95.	Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
96.	As there was no repeat offending, this consideration does not mitigate against the Applicant.
97.	Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
98.	As there was no repeat offending, this consideration does not mitigate against the Applicant.
99.	Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
100.	The Applicant was never formally warned, nor could she have been, not having committed any previous offences.
101.	I do not consider factors b, d, e or g of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
102.	Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
103.	Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(d)	the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; 
(e)	the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
(f)	where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
104.	The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of her offending to date, including any escalation in her offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. 
105.	When considering the risk the Applichant poses Australian community, I must consider both the nature of the harm that will flow from the Applicant engaging in further offending or serious conduct, and the likelihood of her engaging in that offending or serious conduct. 
106.	I consider that any further offending of a similar nature would have the potential to cause significant harm to members of the Australian community. Illicit drug importation has many negative consequences including physical and mental harm to users, their family and friends, as well as the potential costs to the community through law enforcement, the justice system and the public health system. 
107.	Accordingly, I consider the nature of harm that would flow from further offending of the type of which the Applicant was convicted would be very serious.
Likelihood of engaging in further criminal or other serious conduct 
108.	When assessing the likelihood of the Applicant reoffending, I've considered factors relevant to her past conduct, her conduct after the commission of the offences and her remorse and rehabilitation. I refer to the Delegate’s assessment summary of factors contributing to the Applicant’s past conduct as follows:
The sentencing remarks of the County Court of Victoria on 3 October 2011 indicate that [the Applicant] lost money in a loan scheme whereby one of the participants absconded with the money and [the Applicant] had to repay her business investors by selling her restaurant and her house. [The Applicant] submits that she was under ‘extreme mitigating and financial stress’ Attachment B and E.
The sentencing Judge also indicated that [the Applicant] was a single mother of three sons with no support from their fathers. The Applicant’s new partner [S] had assisted her by paying for a rental home in which she lived with her children. [S] asked her for assistance in the drug importation scheme in return for money, a car, and a house to live in. [The Applicant] agreed as she ‘had nothing’. The Judge noted that [S] was the father of [the Applicant’s] youngest son and that she wanted them to be all together as a normal family, in the house purchased by the proceeds of the drug importation. [The Applicant] states that she wanted to ‘prevent the associated hardships of bankruptcy on my young family (being a single parent, risk of homelessness and loss of financial security)’ 
The sentencing Judge accepted that [the Applicant’s] motive for assisting in the scheme was ‘largely for financial reward’ but also acknowledged that [the Applicant] was ‘likely experiencing a high level of emotional connection and financial dependence on [S] which facilitated [the Applicant] going along with his plan’ Attachment B.
I accept that [the Applicant’s offending was driven by a desire for monetary gain to alleviate the stress from her large financial losses. I also accept that [the Applicant] was influenced by her relationship with [S].
109.	I was very impressed by the evidence given by the Applicant in relation to her remorse and her prospects of rehabilitation. Furthermore, Her Honour in her comments on passing sentence accepted that the Applicant was generally remorseful for her role in the criminal offences, that she took full responsibility and that she understood the negative effects from drugs on the community and that they can hurt people.
110.	I accept, as did Her Honour, that the Applicant assisted the authorities although there was not an early admission of guilt and that she was also selective when it came to outlining her involvement in the importation. However, she provided valuable evidence respect to other offenders.
111.	Her Honour also accepted clinical psychologist Dr Cunningham’s opinion, that in the absence of negative peer influence, the Applicant possessed good prospects of rehabilitation, especially with assistance for her living and financial arrangements upon release.
112.	That opinion was to a certain extent vindicated by the Applicant’s empirical behaviour whilst incarcerated into willingness to undertake appropriate courses and training as outlined in her evidence above.
113.	The Tribunal heard from Mr Newton, psychologist, as set out at [24]-[28] above. Mr Newton opined that the Applicant was at a low risk of reoffending, being the lowest category available.
114.	I consider it significant that whilst incarcerated, the Applicant became particularly aware of the impact of drug use on others which helped her to develop insight and to the culpability of the consequences of her actions. 
115.	The Applicant stated before the Delegate and the Tribunal that she truly believed that imprisonment had rehabilitated her and that losing the opportunity to raise her son had burdened her and outweighed any monetary value she once thought she could have gained from the offending. She is adamant that she will not commit any further offences and that she now wishes to contribute to the community that has given her sons so many opportunities.
116.	I consider the evidence of the Applicant’s friend, J, referred to at [39]-[40] above, reflects positively upon the Applicant's behaviour and rehabilitation whilst in prison. 
117.	Although it always must be a concern when, as is invariably the case in matters such as this, the Applicant’s rehabilitation has not been tested in the community at large. There is extremely strong evidence to the effect that the Applicant would never want to be separated from her children again. Throughout the entirety of the Applicant’s evidence she demonstrated a strong motivation to act in the best interests of her children. The Applicant gave strong evidence that she voluntarily returned from Vietnam and faced arrest in order to eventually be reunited with her children, noting that she returned for the benefit of their “future”. The Applicant felt she would not survive in Vietnam without her children, shes expressed a need to “compensate” for the time that she has spent apart from them. I consider it of great significance that the Applicant voluntarily returned from Vietnam to face arrest and certain imprisonment rather than remain separated from her children.
118.	Although concerns were expressed by the Delegate that the Applicant will reoffend if faced with further financial pressures and emotional involvement with negative associations in the community, I am satisfied that, inter alia, in view of the supportive evidence given by the Applicant’s sisters, T and DT, and the other matters outlined above, that the Applicant's risk of reoffending is low.
Conclusion: Primary Consideration 1
119.	Ultimately, I allocate a significant, but not necessarily determinative, level of weight to this Primary Consideration 1. The allocation of “significant” weight primarily derives from my earlier finding that the Applicant’s offending has been of a very serious nature. It is to be moderated – to the extent I do not think the weight is determinative – by the further finding that the Applicant represents an extremely low recidivist risk. 
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE 
120.	Paragraph 8.2 of the Direction provides:  
(1)	The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)	This consideration is relevant in circumstances where:
a)	a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)	there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)	In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)	the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)	the cumulative effect of repeated acts of family violence;
c)	rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.	the extent to which the person accepts responsibility for their family violence related conduct;
ii.	the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.	efforts to address factors which contributed to their conduct; and
d)	Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
Conclusion: Primary Consideration 2
121.	The Delegate did not find the Applicant had engaged in conduct that constitutes family violence, and there was no evidence before the Tribunal to that effect. I attribute no weight to this consideration. 
Primary Consideration 3: The best interests of minor children in Australia
122.	Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
123.	The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
•	the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
•	the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
•	the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
•	the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
•	whether there are other persons who already fulfil a parental role in relation to the child;
•	any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
•	evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
•	evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
124.	The Applicant has one minor child, D, currently aged 13. 
125.	The circumstances surrounding D's upbringing are unusual in that he was 16 months old when the Applicant entered prison where he remained with her until 2014, when he was six years of age and ready to start school.
126.	The Applicant's first cousin, DN, then became D’s guardian along with the Applicant’s two other children who are now adults. DN was a caring and supportive guardian. Neither the Applicant's husband, nor co-offender who, despite the Applicant's husband being listed on the birth certificate as D's biological father, played any part in D’s upbringing. 
127.	In the Applicant’s personal circumstances form, the Applicant provided the following description of her relationship with her youngest son:
I am the only parent [D] has ever known since birth. His father is unknown and has never been a part of his life. I brought him up and was the only parent to raise him up since birth till 6 years old. Since then my first cousin has been his guardian once he has left my care in custody. He has visited me since 2014 on a weekly fortnightly basis in custody until the covid-19 pandemic and restrictions on visits in custody have been in place since 2020. Since then, we have had weekly 200m (online) visits. I speak to my son on the phone on a daily basis since he has left prison and my care from custody. I am his mother and most significant family member in his young life. He is turning 13 years old and going through adolescent which is the most influential time period and he needs his mother most. WE have both been waiting for my release for us to be reunited. 
128.	D is very close to his mother and used to visit her when in custody on a weekly to fortnightly basis, which has now been replaced by online meetings due to Covid-19 restrictions. The Applicant also speaks to D by telephone daily.
129.	D is now going through adolescence and the Applicant contends that this is when he needs his mother most. They had been anxiously awaiting her release so that they could be reunited.
130.	Communication with D via electronic means has been difficult because he does not speak Vietnamese and the Applicant's English was not of a sufficient level to enable her to give evidence without the aid of an interpreter.
131.	The Delegate’s reasonings stated:
 In her letter dated 3 February 2021, Julie Kruss, a counsellor/advocate at the corrective centre stated that [the Applicant] had seen her for nine sessions where they have discussed [the Applicant’s] love for her children, how proud she is of them and the distress she feels that she may be further separated from them. Julie also advises that [the Applicant] hopes to continue therapy with a focus on exploring ways to continue to strengthen her relationship with her children 
Letters of support from two of [the Applicant’s] nieces, […] both highlight that [the Applicant] should be able to ‘reunite with her three children’. [DN] states in a letter that [the Applicant] was ‘able to raise her children despite her living situation. She was able to provide a warm and supportive upbringing for her children on her own.’ 
[DN] submits that he will continue to be [D’s] primary carer when [the Applicant] is released while she settles herself, after which [D] will move in with her. If [the Applicant] is removed from Australia, he will continue to care for [D], however states that being a carer has been difficult and he looks forward to taking it ‘easy’ and focusing on the things he hasn’t had time for.
132.	Sadly, DN passed away unexpectedly on 23 July 2021 which has meant that another of the Applicant's sons, G, has had to interrupt his studies to care for his younger brother. This situation is far from ideal as G is not well suited to a parenting role.
133.	If the Applicant was forced to return to Vietnam, it would be impractical for D to accompany her because he does not speak Vietnamese and his education and employment opportunities are far better in Australia.
134.	Some family members and family friends have been able to provide some support by monitoring D and dropping of food following the passing of DN but none are able to commit to assuming the role of his guardian because of family commitments and/or age.
135.	D has been distressed by the death of his guardian and the continued separation from his mother would be detrimental to his emotional development. Furthermore, the Applicant did not believe she would have sufficient money if returned to Vietnam to adequately support D whereas if allowed to remain in Australia, because of her work ethic, she should be able to adequately support her family. I note her commitment to her family was so strong that most of the money she received was, to present, remitted to support them.
Conclusion: Primary Consideration 3
136.	Taking into account the amount of time and connection between the Applicant and D, the financial and emotional support she has given him, and the fact that I accept that she intends to be his primary carer if released from custody, I find it is in the best interests of D that I revoke the visa cancellation. I give this consideration very significant weight if favour of revocation of the decision.  
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
137.	In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that she would breach, this expectation by engaging in serious conduct.
138.	Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)	acts of family violence; or
(b)	causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)	commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)	commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)	involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)	worker exploitation.
139.	Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
140.	Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
141.	Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR  v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction. 

142.	Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to. 
Analysis – Allocation of Weight to this Primary Consideration 4
143.	Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters: 
144.	I regard the Direction as having the effect that the Australian community would expect the Applicant’s visa should be cancelled and hence my task is to determine the appropriate weight to be assigned to this consideration.
145.	As noted in paragraph 8.4(1) when a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community expects the government not to allow such a person to remain in Australia. 
146.	Although I note that, despite the very serious nature of the Applicant’s offences, she has not committed any of the acts set out within paragraph 8.4(2). 
Conclusion: Primary Consideration 4
147.	I attribute significant but not determinative weight against revocation pursuant to this consideration.
Other COnsiderations
148.	It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d. 
(a) International non-refoulement obligations
149.	Although the Applicant made representations before the Delegate as to her concerns should she be forced to return to Vietnam, those matters were not agitated before me.
150.	In any event I note that any concerns arising from her family's serving for the former regime appear to be unfounded bearing in mind she had not been discriminated against when visiting Vietnam on several occasions.
151.	Accordingly, I give no weight to this consideration.
(b) Extent of Impediments if Removed 
152.	As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account 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: 
(a)	the non-citizen’s age and health;
(b)	whether there are any substantial language or cultural barriers; and 
(c)	any social, medical and/or economic support available to that non-citizen in that country.
153.	The Respondent accepted the Applicant will face a difficult period of adjustment to life in Vietnam without the presence and support of her Australian family members.
154.	It was also noted that the Applicant is of working age, has no significant health issues and is familiar with the Vietnamese culture and language.
155.	There was evidence from clinical psychologist Mr Newton, that the Applicant displayed symptoms of anxiety in association with a possible return to Vietnam but there was no diagnosis of any mental disorder
156.	The Applicant has two elderly sisters in Vietnam who could at least provide the Applicant with accommodation and her sisters who live in Australia have indicated that they could help support the Applicant if released from prison. There would seem no reason why those offers of support would not be available if the Applicant returned to Vietnam.
157.	Her son, G, also indicated that, if necessary, he could help support the family but that would mean him abandoning his studies.
158.	The Applicant also expressed concern that there will be impediments in establishing herself in Vietnam because of her family's involvement, often a military capacity, with the previous regime and the fact that she escaped from Vietnam as a ‘boat person’. However, as previously noted, the Applicant had not encountered any problems with authorities during the several time she returned to Vietnam including for a period of 13 months between July 2008 and August 2009.
159.	However, I find that the Applicant will face significant practical and financial hardship on return to Vietnam due to a lack of family and social support and difficulties in obtaining decently paid employment.
160.	I find the major impediment that will be suffered by the Applicant if forced to return to Vietnam would be the separation from her three children with whom she is very close. She was so desperate not to lose contact with her children that she voluntarily returned from Vietnam to face a certain term of substantial imprisonment and, even though in prison and detention, has kept in continual contact with them and supported them as much as possible
161.	I place moderate weight upon this consideration as a factor to revoke the visa cancellation. 
(c) Impact on victims
162.	This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
163.	There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (c) is therefore neutral.
(d)	Links to the Australian Community 
164.	In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
•	the strength, nature, and duration of ties to Australia; and 
•	the impact on Australian business interests. 
The strength, nature, and duration of ties to Australia
165.	Apart from her two elderly sisters most of the Applicant's immediate family members live in Australia and many are Australian citizens. The Applicant has two sisters and four brothers who live in Australia who also have spouses and children and all the evidence before me indicates that there are very close ties within all the extended family.

166.	The Applicant arrived in Australia 26 years ago and, despite spending approximately two years outside of Australia, more than half that time has been spent positively contributing to the Australian community. The Applicant was industrious and, if not having been let down by fellow participants in a loan scheme, would have been in a better financial position.

167.	All three of her sons are Australian citizens and all will be severely impacted if she is forced to return to Vietnam. All three relied upon the support of their uncle DN while their mother was incarcerated and have been greatly affected by his untimely death. The two eldest sons have established themselves in Australia and are not fluent in the Vietnamese language.

168.	The youngest son speaks no Vietnamese and all three have far better educational and employment opportunities in Australia. It would not be practical for them to move to Vietnam should the Applicant be forced to return.

169.	I place significant weight upon this consideration as a factor to revoke the visa cancellation. 
Impact on Australian business interests
170.	The Applicant does not claim that her removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.  
Findings: Other Considerations
171.	The application of the Other Considerations in the present matter can be summarised as follows: 
(a)	international non-refoulement obligations: no weight; 
(b)	extent of impediments if removed: moderate weight; 
(c)	impact on victims: neutral; and 
(d)	links to the Australian community including the strength, nature, and duration of ties to Australia; significant weight and the impact on Australian business interests; no weight. 
CONCLUSION
172.	I am now required to weigh all of the Considerations in accordance with the Direction.  
(a)	Consideration 1: I find this consideration significant, but not determinative, in favouring the non-revocation of the visa cancellation.
(b)	Consideration 2: Not relevant.
(c)	Consideration 3: I find this consideration significant in favouring a revocation of the visa cancellation.
(d)	Consideration 4: I find this consideration significant, but not determinative, in favouring a non-revocation of the visa cancellation.
173.	Other considerations
(a)	Not relevant.
(b)	I find this consideration moderate in favouring a revocation of the visa cancellation.
(c)	Not relevant.
(d)	I find this consideration significantly favours a revocation of the visa cancellation.
174.	When weighing the above considerations and weighting normally, because of the seriousness of the offences and the expectation of the Australian community in relation to such offences, I would consider a non-revocation of the visa cancellation is the appropriate course.
175.	However, there are some very strong countervailing considerations in this case including the best interest of the minor child and the very strong bond between the Applicant and her children. The bond was so strong that she voluntarily returned to Australia to face a certain substantial jail sentence, pleaded guilty and assisted authorities all with a view to being reunited with her children and helping with their development. 
176.	Consequently, balancing these factors together with my satisfaction that there is an extremely low risk of reoffending, I exercise the discretion to revoke the cancellation of the Applicant's visa.
Decision
177.	The decision under review is set aside and substituted with a finding that the cancellation of the Applicant’s visa is revoked.  

I certify that the preceding 177 (one hundred and seventy-seven) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President 	
.........................[sgd]..................................
Associate
Dated: 					24 September 2021

Date of hearing:	11 and 12 August 2021	
Counsel for the Applicant

Solicitor for the Applicant
	Ms Tanya Skvortsova

Clothier Anderson Immigration Lawyers
	
Counsel for the Respondent

Solicitor for the Applicant
	Mr Keith Sypott

Australian Government Solicitor	

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED	
1	G-documents	Respondent	Various	11 August 2021	
2	Statement of Applicant	Applicant	23 May 2021	11 August 2021	
3	Report of Patrick Newton, clinical psychologist 	Applicant	17 May 2021	11 August 2021	
4	Statement of Applicant’s friend, H 	Applicant	undated	12 August 2021	
5	Statement of Applicant’s son, G	Applicant	29 July 2021	12 August 2021	
6	Statement of Applicant’s friend, J	Applicant	undated	12 August 2021	
7	Statement of Applicant’s brother in law	Applicant	29 July 2021	12 August 2021	
8	Statement of Applicant’s sister, DT	Applicant	27 July 2021	12 August 2021	
9	Statement of Applicant’s sister, T	Applicant	29 July 2021	12 August 2021	
10	Statement of Applicant’s niece	Applicant	13 April 2021	12 August 2021	
11	Statement of Applicant’s son, D	Applicant	23 July 2021	12 August 2021	
12	Statement of Applicant’s niece	Applicant	27 July 2021	12 August 2021	
13	Statement of Applicant’s niece	Applicant	26 July 2021	12 August 2021	
14	Statement of Applicant’s friend	Applicant	29 July 2021	12 August 2021	
15	Statement of Applicant’s friend	Applicant	2 August 2021	12 August 2021	

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)		
	)	No: 2021/4315	
General Division	)		

	Re: PLGL
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent

DECISION

TRIBUNAL:		A G Melick AO SC, Deputy President

DATE:			20 September 2021

PLACE:		Hobart

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 24 June 2021 and in substitution revokes the cancellation of the Applicant’s visa. 

The Tribunal will give written reasons for this decision within a reasonable time of the decision.	

.....................[sgd]......................................
A G Melick AO SC, Deputy President