BFYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 2237

BFYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2237 (9 July 2021)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2021/2585
GENERAL DIVISION  )

Re: BFYD
Applicant

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

DIRECTION

TRIBUNAL:  Senior Member D. J. Morris

DATE OF CORRIGENDUM: 14 July 2021

PLACE:           Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1.The last sentence in paragraph 8 of the statement of reasons is deleted.

2.The following sentence is substituted in its place:

1. The Tribunal was assisted by interpreters in the Chinese Mandarin language.

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

Senior Member

Division:GENERAL DIVISION

File Number:          2021/2585

Re:BFYD

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:9 July 2021

Place:Melbourne

Under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirmed the decision under review.

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

Senior Member D. J. Morris

Catchwords

MIGRATION – mandatory cancellation of a subclass 801 (partner) visa – where applicant is a citizen of the People’s Republic of China – where visa cancelled because applicant has substantial criminal record and thereby fails character test – consideration of the ministerial direction, Direction No. 90 – relevant primary considerations – protection of Australian community from criminal or other serious conduct – attempted importation of ingredients to manufacture large amount of an illicit drug – expectations  of Australian community – best interests of affected minor children in Australia – other considerations – international non-refoulement obligations – extent of impediments if removed – links to Australian community – decision under review is affirmed

Legislation

Administrative Appeals Tribunal Act 1975, s 33A, 35

Migration Act 1958, ss 499, 500, 501CA

Cases

FYBR and Minister for Home Affairs [2019] FCAFC 185

Secondary Materials

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention Relating to the Status of Refugees, opened for signature on 28 July 1951; 189 UNTS 137 (Entered into force 22 April 1954)
Criminal Law of the People’s Republic of China, downloaded from on 6 July 2021

International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976)
Migration Act 1958 – direction under section 499 – Direction No. 75 – Refusal of protection visas relying on section 36(1C) and section 36(2C)(b) (made 6 September 2017/commenced 7 September 2017)

Migration Act 1958 – direction under section 499 – Direction No. 90 – visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (made 8 March 2021/commenced 15 April 2021)

REASONS FOR DECISION

Senior Member D. J. Morris

9 July 2021

BACKGROUND

1. On 1 July 2021, the Tribunal issued an order under section 35 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) prohibiting the publication of the name of the Applicant. He will be known by the anonym ‘BFYD’.

2. BFYD is a citizen of the People’s Republic of China. He is aged 34. He arrived in Australia in April 2005. In March 2014, he was granted a Class BS subclass 801 (partner) visa. This visa was cancelled on 3 June 2019 under section 501(3A) of the Migration Act 1958 (‘the Act’) as a delegate of the Respondent found that BFYD failed the statutory character test by having received a sentence of more than 12 months imprisonment and was, at the time his visa was cancelled, serving a sentence of full-time imprisonment in a custodial institution.

3. BFYD was notified of the cancellation and invited to make representations to a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) as to whether the mandatory cancellation of his visa should be revoked.  BFYD did make representations to this effect.  On 16 April 2021, a different delegate of the Minister having considered the representations decided not to revoke the cancellation of the visa.

4. BFYD then applied to this Tribunal for review of the 16 April 2021 decision. The authority of the Tribunal to review a decision not to revoke the mandatory cancellation of a visa is in section 500(1)(ba) of the Act.

5. The Tribunal has two questions before it. The first question is whether BFYD fails the character test in the Act. If it is found that he does not, then the cancellation of the visa is set aside, which restores the visa to the Applicant and ends the matter. However, if the Tribunal finds that he does fail the character test, then there is a second question to decide: whether the discretionary power in section 501CA(4)(b)(ii) of the Act is enlivened and should be exercised to revoke the cancellation of BFYD’s visa.

   The timeframe for the decision

6. When a person in the migration zone applies to the Tribunal to review a decision under section 501CA(4) of the Act not to revoke the mandatory cancellation of his or her visa, section 500(6L) of the Act provides that if a decision has not been made 84 days after the date on which the person was notified of the decision, the Tribunal is taken to have affirmed the decision. To avoid this self-executing provision having effect, the Tribunal must make a decision by 9 July 2021. The parties agreed that was the relevant date.

   Direction No. 90

7. Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must comply with a relevant direction. The delegate who refused to revoke the mandatory cancellation of BFYD’s visa consulted Direction No. 79. On 15 April 2021, a new Direction (Direction No. 90) took effect and revoked Direction No. 79. Direction No. 90 will be referred to simply as ‘the Direction’.

   HEARING

8. The hearing was on 1 and 2 July 2021, by video-link under section 33A of the AAT Act, because of the current public health emergency. BFYD was represented by Mr Allan Zabrdac, instructed by Ms Danielle McKinnon of Carina Ford Immigration Lawyers. The Minister was represented by Ms Claire Campbell of HWL Ebsworth Lawyers. The Applicant gave evidence and was cross-examined. Others who gave evidence were Mr Warren Simmons, psychologist; Ms JC, aunt of the Applicant; Mr LL, his uncle; and Mr NF, a former employer and friend. The Tribunal was assisted by interpreters in the Chinese Mandarin language.

9. The Tribunal admitted into evidence the following documents:

   ·Volume of ‘G’ document and supplementary ‘G’ documents (‘GD’ and ‘SGD’) (Exhibit R1);

   ·Statement of BFYD dated 30 May 2021 (Exhibit A1);

   ·Witness statement of Ms WX, dated 27 May 2021 with attachments (Exhibit A2);

   ·DFAT Country Information Report China 3 October 2019 (Exhibit A3);

   ·Victoria Police LEAP print outs, various dates (Exhibit A4);

   ·Psychological report by Mr Warren Simmons, dated 25 May 2021 (Exhibit A5);

   ·Witness statement of Ms JC, dated 28 May 2021 (Exhibit A6);

   ·Witness statement of Mr LL dated 27 May 2021 (Exhibit A7); and

   ·Witness statement of Mr NF dated 27 June 2021 (Exhibit A8).

10. The Applicant’s legal representatives also lodged a copy of the letter of instruction to Mr Simmons but as it was after the two business day period required under section 500(6J) of the Act, the Tribunal without objection admitted it on its own motion (Exhibit T1).

11. The Applicant’s Statement of Facts, Issues and Contentions (‘ASFIC’) and the Respondent’s Statement of Facts, Issues and Contentions (‘RSFIC’) were also taken into account.

    Has the Applicant failed the character test?

12. Before the Tribunal (GD, pp 29-30) was an Australian Criminal Intelligence Commission (‘ASIC’) report relating to the Applicant dated 17 April 2019. The report records that, in late 2018, BFYD was convicted by the County Court of Victoria of the Commonwealth offence of Attempt to import/export commercial quantity of border-controlled precursors. He received a sentence of six years and three months. On the same day, he was convicted of the Victorian offence of Trafficking in a drug of dependence (namely methamphetamine).  He was sentenced to 12 months’ imprisonment on this count. The total effective sentence imposed on BFYD was six years and six months, with a non-parole period of four years and three months.

13. The Tribunal also had before it the sentencing remarks of the Judge at the County Court in relation to these matters. The Applicant in written submissions (ASFIC paragraph 6) conceded that BFYD fails the character test.

    Finding in relation to the character test

14. On the facts before me, the Tribunal finds that BFYD fails the character test. He has a ‘substantial criminal record’, having been sentenced in 2018 to sentences of 12 months or more, and because at the date his visa was cancelled on 3 June 2019 the Applicant was serving a sentence of full-time imprisonment.

    OFFENDING HISTORY

15. BFYD has a brief but serious criminal history.  The only offences recorded in the ASIC report have been outlined above. His lawyers submitted that the Victoria police LEAP reports show no other offending by the Applicant, and that was not contested by the Respondent.

    THE DIRECTION

16. The principles at paragraph 5.2 of the Direction guide decision-makers in the task of deciding whether to revoke the mandatory cancellation of a visa. They are:

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

    (2)  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 engage 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.

17. Part 2, paragraph 7 of the Direction also says that primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations.

18. Part 8 of the Direction relevantly provides that the following are primary considerations:

    (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.

19. Part 9 of the Direction sets out other considerations which must be taken into account where they are relevant. They 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.

20. Paragraph 9(1) of the Direction makes clear that a decision-maker is not confined only to these considerations. This means that if there is another articulated claim that something is relevant in a person’s particular circumstances, and the claim relates to a matter that is consistent with the purposes of the Act, that claim should be properly addressed. However, any such claim must be material to the matter being considered, which is the exercise of a discretionary power under the Act.

    PRIMARY CONSIDERATIONS

    The first primary consideration: Protection of the Australian community (paragraph 8.1)

21. The Tribunal should consider the nature and seriousness of the non-citizen’s conduct and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    Sub-consideration: The nature and seriousness of the conduct (paragraph 8.1.1)

22. The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children or acts of family violence. None of the Applicant’s offending fits within these categories.

23. The Tribunal must also consider other categories of serious offending, including causing a person to enter into, or be a party to, a forced marriage; crimes committed against vulnerable members of the community, such as the elderly and disabled, or government representatives performing their duties as such, and any crime in immigration detention.

24. BFYD has not been in immigration detention and none of these other articulated categories of offending is relevant.  It may be taken by extension that facilitating the distribution of illicit drugs by attempting to import ingredients to make methamphetamine has an effect on vulnerable members of the community, namely persons addicted to or taking illicit drugs, but neither of the serious offences of which BFYD was convicted are crimes against the person.

25. The Tribunal is required to have regard for the sentences imposed by the Courts for a crime.  In the two offences of which BFYD was convicted, substantial custodial sentences were imposed, noting that this was the Court’s considered decision despite the Applicant not having any prior criminal history.

26. The Direction requires me to consider the frequency of BFYD’s offending and whether there has been any trend of increasing seriousness.  As there is no evidence of prior offending, neither of these factors are relevant. There has been no repeated offending. There is no evidence of the Applicant providing false or misleading evidence to the Department responsible for Immigration. There is no evidence before me that BFYD has been previously warned by the Department, which is logical since he had no prior offending nor other conduct that had come to the notice of the immigration authorities.

27. The nature and seriousness of BFYD’s conduct may be established by examining the comments passed in sentencing by Her Honour the sentencing Judge. Her Honour noted that the Clandestine Lab Squad of Victoria Police had been investigating the manufacturing and trafficking of large commercial quantities of methylamphetamine and had identified a syndicate involving all facets of the trafficking process.  BFYD was identified as the importer of a key precursor chemical, namely ephedrine, which is an essential ingredient in the production of methylamphetamine.

28. As part of the process, BFYD’s telephone was intercepted. Calls between the Applicant and another person based in China were translated. Late in 2017, this person said he had sent photos of shipping records to BFYD. An air cargo package addressed to another person was sent from China to BFYD’s apartment address in a Melbourne suburb. The goods were described on the customs paperwork as curtains. The package was examined on arrival by Australian border officials and found to contain ten roller blinds. The end cap of one of the blinds was removed and found to contain a white substance. A sample was removed and tested positive as ephedrine.

29. The Australian officials replaced the blinds with substitute blinds and the package was then sent on to BFYD’s apartment. He was not present when delivery of the package was attempted, so a collection card was left. Intercepted phone calls reported that the Applicant’s Chinese contact told him the package had been delivered. BFYD then arranged for an associate, who in evidence at this hearing said shared the apartment with him, to attend the post office and collect the package. After the package was delivered, another intercepted call was made by the Applicant to his Chinese contact saying that the blinds had been delivered but there was nothing inside the rollers. The Chinese contact expressed disbelief.

30. Her Honour said that a deconstruction of the consignment revealed almost 10 kilograms of ephedrine mix, with a total weight of pure ephedrine of 4.7 kilograms.  A commercial quantity of ephedrine is 1.2 kilograms. This amount therefore is about four times the commercial quantity provided in the law.

31. In February 2018, the police executed a search warrant on BFYD’s apartment and car.  Forty grams of a substance containing methylamphetamine was discovered, with a bottle of liquid methylamphetamine and a brass knuckle duster. The pure weight of methylamphetamine found in BFYD’s possession was 49.99 grams, just under the commercial quantity which is 50 grams. The Applicant was interviewed at the local police station and denied any knowledge of trafficking or importing a precursor. He subsequently pleaded guilty when the matter came before the Court.

32. The Judge found that BFYD played an active role in managing the importation of the border-controlled precursor. He enlisted others to assist him and was entrusted with opening the package and sending or undertaking to send funds back to China. Her Honour stated that if the ephedrine had been converted to methylamphetamine the wholesale and street value would have been between $1.4 million and $1.9 million.

33. Her Honour noted BFYD was motivated by financial reward and that he had gambling and drug debts, including funding his own drug habit. The Judge said she accepted the Applicant’s drug use was connected to the offending and provides some explanation for his behaviour but does not excuse it.

34. Her Honour referred to intercepted telephone conversations between BFYD and his father where the Applicant’s father expressed concern regarding his son’s gambling and the debts he owed to him. The Judge also recorded that, as BFYD’s drug use (which included methamphetamine, cocaine, ketamine and other drugs) increased, so too did his association with criminals and the drug culture and it was this connexion that ultimately led to his offending. Her Honour said that the drug use ‘reduces to a degree’ BFYD’s moral culpability for the offending (GD, p 37).

1. On any objective measure, the offences for which BFYD pleaded guilty and was convicted are very serious. The quantity of illicit drugs that could have been manufacturer with this amount of precursor is significant and would contribute, in a chain, to significant illicit drug trafficking in Australian society.

2. Her Honour said that the sentence the Court imposed must signal to would-be drug traffickers that the potential financial rewards of being involved in such a trade are neutralised by the risk of severe punishment. The Judge referred to the difficulty of detecting this type of relatively sophisticated offending, across international borders, and the great social consequences that flow from such drugs being distributed in this country.

3. The Judge noted the guilty plea and said she would have imposed a sentence of eight years and six months if BFYD had not pleaded guilty but had been found guilty at trial.

   Sub-consideration: The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)

4. The Direction requires the Tribunal to consider both the nature of harm should BFYD engage in further criminal or other serious conduct, and the likelihood of him so engaging.

5. The nature of the harm if BFYD continued to be a key member of a syndicate importing the ingredients to manufacture illicit drugs and then distributing them in the Australian community is substantial. It is self-evident that the social cost of illicit drug taking in this country is enormous. Combatting the illicit drug trade is also an expensive drain on public resources. The papers before the Tribunal show there was a major effort by various Commonwealth and State law enforcement and border agencies in detecting and apprehending the Applicant, and others involved in the enterprise in Australia. This is time-consuming and diverts officers from their other duties. In addition, the damage to people in the community if the amount of methylamphetamine the assessors advised the Judge could have been manufactured reinforces my conclusion that the community is placed at great risk if any further offending of this nature took place.

6. The Tribunal is required to have regard to the likelihood of the Applicant engaging in further criminal conduct taking into account information and evidence on the risk of re-offending and evidence of rehabilitation.

7. Before the Tribunal was the report of Mr Warren Simmons, psychologist. Mr Simmons examined BFYD on 24 May 2021. He recorded that BFYD started smoking cannabis around the age of 16 when at school. This ceased when BFYD emigrated to Australia.  He told Mr Simmons he recommenced using cannabis when his marriage broke down but predominantly used other drugs. In his own evidence, BFYD said he was using cannabis from 2008 but not often, and by 2010 was using ‘ice’ which he agreed was ‘serious drug use’.  He said he hid his drug use from his wife because he was ashamed. BFYD said he also hid his drug use from his uncle and aunt, with whom he lived when he first came to Australia.

8. BFYD said that he met Ms WX in 2008 and they married in 2010.  He said they were both avid gamblers, on poker machines, and encouraged each other to gamble. The Applicant agreed that his gambling and drug use have been long-standing conditions.  BFYD said his gambling led him into debt, as did his drug use to a lesser extent, and that these financial pressures were the reason for the breakdown of his marriage to Ms WX.

9. When asked what prompted his offending, BFYD said that, when he could not afford drugs, he obtained them at first on credit and then owed money and became scared for his life and the safety of his family, which is why he decided to start being involved with the importation and trafficking syndicate. BFYD said that his family in China had sent him $80,000 to buy a house in Australia, which was their life savings, but this money had been lost by a combination of his gambling losses and to fund his drug habit.

10. BFYD said that he had been drug-free in prison, even though drugs were readily available, and he had repeatedly been made offers.  He said he also had not gambled in prison.  BFYD said that he had undertaken three two-week courses while on remand in 2018, relating to ‘ice’ use, cannabis use and alcohol use.  He told the Tribunal that some courses were not available to prisoners until they were in their final year of a non-parole period. BFYD also said that several courses had not been available to him because of his frequent movement between prisons, and because courses had been suspended during the coronavirus pandemic.  BFYD said he was on the waiting list to do further drugs courses and a parenting course.

11. Although the Respondent urged the Tribunal to place weight on the fact that BFYD initially denied his involvement in the offences when he was first interviewed by the police, I do not find this particularly goes against him because the fact is that he entered a guilty plea at the earliest opportunity of the judicial process, and that was noted by the sentencing Judge and taken into account beneficially for saving the cost of a trial to the taxpayer.

12. The Tribunal notes that the evidence before it supports a conclusion that the Applicant has been a well-behaved prisoner. In his evidence he said the only disciplinary matter with which he has been involved was being cautioned for having a cigarette, contrary to prison rules.  The Tribunal regards this as a very minor infraction.  BFYD gave evidence that he has been accommodated in lodge-style accommodation at the prison, which is only available to low security prisoners.

13. BFYD said he was motivated not to resume drug taking or gambling because it has “cost me too much and cost my kids too much”.  He said if his visa is restored and he is released into the community, he planned to go to his general practitioner and ask to be referred a psychologist for counselling.

14. Mr Simmons in his report concluded that BFYD:

    had met the criteria for a Gambling Disorder and Substance Use Disorder of Moderate to Severe intensity, although both are not current due to [BFYD] being incarcerated.

15. Mr Simmons’ opinion was that if BFYD was released into the community and remained living with supportive relatives, was employed and ‘continued to undergo regular counselling for drugs and alcohol and gambling’, then the likelihood of further offending would be decreased. Given that the report did not contain an assessment of risk, the Tribunal prompted Mr Simmons on this point.  Mr Simmons said his assessment would be that BFYD would be a ‘low risk’ of re-offending, provided these listed factors were in place.

16. The Respondent urged the Tribunal to take due notice of a report by Mr Patrick Newton, forensic psychologist, provided to the Court and written in November 2018. Mr Newton’s opinion was that BFYD at that time would meet diagnostic criteria for a Moderate to Severe Substance Use Disorder, which he said was in remission in a controlled environment. Mr Newton also diagnosed the Applicant with Adjustment Disorder with Anxiety and Depressed Mood but said there was no suggestion that BFYD was suffering any mental disorder at the time of his offending conduct.

17. Mr Newton recommended (GD, p 96) three key goals for BFYD: intensive substance rehabilitation; gambling counselling and assistance with re-integration into the community.  Mr Simmons in his oral evidence also submitted that the Applicant would need assistance on release because, like any prisoner completing a long sentence, there is a period of necessary adjustment.

18. The Tribunal heard evidence from a former employer of BFYD, Mr NF.  Mr NF said that the Applicant had worked as a waiter and front-of-house employee at a restaurant he ran some years ago, and they had maintained a friendship.  Mr NF was strong in his praise of BFYD as a hard worker and said that, as he now runs two new restaurants and plans to expand, he would have no hesitation in re-employing BFYD, initially in a food and beverage role but with a view to training him up to manage one of his restaurants. He said he was aware of BFYD’s offending and the serious nature of it, but that did not deter him from making this offer, and he felt sure BFYD would not let him down.

19. The Tribunal also heard evidence from BFYD’s aunt, Ms JC, and uncle, Mr LL, with whom he lived for some years after first coming to Australia. They said they were prepared to offer stable accommodation and board and would help him attend any medical appointments and resume employment.

20. I am also satisfied that the employment offer from Mr NF is genuine. I am also satisfied of the wholehearted nature of the evidence of BFYD’s aunt and uncle and their willingness to support him by providing food and accommodation and other support. While they are estranged, the written statement of BFYD’s wife, Ms WX, indicates her general support for him in having access to their two young children.

21. I am not convinced that the risk of BFYD’s offending is ‘low’ as proffered in the hearing by Mr Simmons.  It may be no fault of his own that the Applicant has been unable to undertake the intensive substance rehabilitation that Mr Newton identified in his earlier report in 2018, and the Tribunal appreciates the barriers that moving between custodial institutions and the Covid-19 outbreak has put in the way of this.  Mr Newton’s view was that a relapse to substance abuse was ‘one of the most severe criminogenic factors in his case’ (GD, p 96).  That may have been ameliorated somewhat by the passage of time.  In addition, the good conduct of BFYD and the lack of any evidence of drug-taking goes in his favour.  However, prisons are very controlled environments and the societal and other pressures to which BFYD succumbed in the community are essentially not present.  In addition, the fact remains that the intensive substance rehabilitation identified in 2018 as essential has not taken place, which I find does affect the level of risk of recidivism.

22. Overall, I consider there is a risk of BFYD re-offending in a general sense, if perhaps not re-offending in terms of a serious drug importation enterprise.  The passage of time and the fact of no prior offending might reduce the risk, but I consider that the risk is present because of the debts he still owes to others in Australia and, he states, in China (putting to one side the significant family debt he owes).

23. Overall, the Tribunal finds that this primary consideration weighs relatively heavily against revoking the cancellation of the visa.

    The second primary consideration: Family violence committed by the non-citizen (paragraph 8.2)

24. It was agreed by parties that this consideration is not relevant. The Tribunal finds that it weighs neutrally in this assessment.

    The third primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.3)

25. The Tribunal is required to make a determination regarding the best interests of any relevant minor children who may be affected by the decision. Where there are two or more relevant children, the interests of each should be given individual consideration to the extent that their interests may differ.

26. The Applicant has two children with his estranged wife, Ms WX. His daughter, A, was born in November 2012 and his son, E, was born in October 2015. BFYD confirmed in his evidence that the marriage was in the process of breaking down in 2015. He and Ms WX separated in September 2015 just before E was born. BFYD departed to live and work in Western Australia at the end of that year, when E was several weeks old. The Applicant said that he flew back to visit the children every month from Western Australia.

27. In answer to a direct question from the Tribunal, BFYD said that he and his wife had not instituted divorce proceedings and, while he did not know if the marriage was retrievable, they had been separated a long time.

28. Before the Tribunal was a written statement from Ms WX. She said that she speaks to BFYD on a weekly basis by telephone. She stated:

    I don’t have any problem with him being part of the children’s lives.  We never went to court about custody of the children so there are no orders restricting access.  I do not intend on stopping him from seeing our children.  In fact, I want him to spend as much time with the children as possible.

29. Ms WX said that the children do not know that their father is in prison. BFYD confirmed they think he is working interstate. He says he speaks to each of them every Sunday evening by telephone.

30. Ms WX said she would not know what to do if BFYD is deported. She does not want to mislead the children and, as they are getting older, they are asking more questions. She said it was clear to her that A and E have unconditional love for their father. She wants them to have a continuing relationship with their father, which would not be possible if he is repatriated.

31. The Respondent submitted that, should BFYD be repatriated he would be able to maintain the current relationship, by telephone, that he currently has. The Tribunal with respect finds this a fatuous submission when the current absence is because of a custodial term which has a finite end, whereas deportation effectively means that the non-citizen will not be granted a visa to re-enter Australia. 

32. The Direction requires me to consider whether there have been long periods of absence and whether others fulfil a parental role.  It is true that BFYD has had a significant period of absence since his arrest, remand and then prison sentence, and also a separate period of a little over two years when he voluntarily relocated to Perth, I consider I should also be forward looking in gauging what is in the best interests of the minor children.

33. It would seem to me that BFYD has been less present in E’s life than that of his daughter A. He has never lived in the same household as E, while he has with A. However, I do not consider this difference means I should make separate determinations about their interests.

34. Ms WX does fulfil a parental role and has done so solo for most of the period since late 2015, apart from visits BFYD has made to see his children.  However, given the written statement of Ms WX, I am of the view that this consideration weighs in favour of the Applicant. That view is bolstered by the evidence of Ms JC, BFYD’s aunt, who said she regularly looks after A and E and appears to have a cordial relationship with Ms WX.  While BFYD has been absent for long periods, both voluntarily and involuntarily, there is no evidence that his presence in the lives of his children would be other than in their interests.  The photographs annexed to Ms WX’s written statement of A and E with gifts made by their father in the prison workshop provides evidence of his support for them, notwithstanding the significant periods of his absence from their lives.

35. The Tribunal finds that this consideration weighs in favour of the Applicant, and relatively strongly so.

    The fourth primary consideration: Expectations of the Australian Community (paragraph 8.4)

36. Paragraphs 8.4(1) and (2) of the Direction state:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

    In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is 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, of the following kind:

    …

37. The Direction says the expectation of the Australian community is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A superseded version of the Direction contained similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’).

38. The Court held that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are ‘deemed’ — they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may derive by another assessment or process of evaluation. Direction No. 90 imports the statement that the expectations of the Australian community are to be considered as a ‘norm’.  This I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR.  Therefore, while the expectations of the community are ‘deemed’ to weigh against an Applicant, the relative weight will be affected by the circumstances in the individual case, including the seriousness of the offending or other conduct. The ASFIC acknowledges this (paragraph 59).

39. Both the offences of which BFYD was convicted are objectively very serious.  He was part of sophisticated operation to import drug manufacturing materials and thereby traffic a very large quantity of illegal drugs in the community. It was not a spur of the moment offence; the offending took place over a several month period, as BFYD acknowledged in his oral evidence. He rented an apartment for the purpose and directed others at the Australian end of the operation. He clearly either gave no thought to the harm this amount of methylamphetamine would wreak on the street, or if he did, he was callous to that prospect.  While the Judge remarked that BFYD’s moral culpability was affected by his drug habit, in the circumstances of his offending in a relatively elaborate way over some months, I do not find that this culpability was significantly lowered in terms of the weight of this consideration.

40. More generally, I do not consider that BFYD’s gambling debt or his own drug habit would affect the strong view of the community about his criminal conduct.  As the Judge said, these factors might provide some explanation for what he did, but they do not excuse it.

41. The Tribunal finds that this primary consideration weighs heavily against revoking the mandatory cancellation of the visa.

    OTHER CONSIDERATIONS

    International non-refoulement obligations (paragraph 9.1)

42. The Direction sets out that a non-refoulement obligation is an obligation on Australia not to forcibly return, deport or expel a person to a place where he or she would be at risk of a specific type of harm. Australia has obligations under the 1951 Convention relating to the Status of Refugees and other treaties, namely the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (‘CAT’) and the International Covenant on Civil and Political Rights (‘ICCPR’).

43. The Direction states, at paragraph 9.1(7), that where a person makes a claim which may give rise to international non-refoulement obligations and the person is able to make an application for a protection visa, those claims will be ‘conclusively assessed’ before consideration is given to any character or security concerns associated with the non-citizen. That obligation applying to delegates of the Respondent is also stipulated in Direction No. 75, made under section 499 of the Act.

44. Direction No. 75 relevantly provides, in Part 2:

    In considering elements of the Protection visa assessment for applicants who raise character or security concerns, decision-makers are to follow the order set out below:

    (1)The decision-maker must first assess the applicant’s refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns. …

    (Emphasis added.)

1. Nevertheless, notwithstanding that, the Tribunal has an obligation to consider any properly articulated claims made in these proceedings.

2. The ASFIC states that BFYD’s fears about returning to China are based on fears that the Chinese authorities might punish him for offending in Australia; that the Chinese Government social credit system would make him unable to live and work safely in China, and that he fears reprisals from his former criminal associates connected with his offending.

3. The ASFIC quotes Article 10 of the Criminal Law of the People’s Republic of China.  Article 10 provides:

   Any person who commits a crime outside the territory and territorial waters and space of the People’s Republic of China, for which according to this Law he should bear criminal responsibility, may still be investigated for his criminal responsibility according to this Law, even if he has been tried in a foreign country.  However, if he has already received criminal punishment in the foreign country, he may be exempted from punishment or given a mitigated punishment.

4. The DFAT Country Information Report China relevantly states, at paragraph 5.46:

   Articles eight to 12 of the Criminal Law outline provisions against double jeopardy. In practice, Chinese citizens convicted and punished for offences abroad may face punishment for the same offence on return to China. Authorities are less likely to pursue those who have committed offences overseas carrying a sentence in China of three years or less. Those convicted of offences that are more serious are more likely to be re-sentenced on return, depending on the offence and the severity of punishment served overseas: more severe punishment overseas would likely attract a lesser punishment on return.

5. While the Tribunal considers the prospect of further punishment in China is unlikely, I am generally aware that that country has very significant penalties for serious drug offences.  Noting that this offending did not occur in the territory and did not therefore have an effect on the polity of China, I felt it important to seek submissions from the Respondent on the Australian Government’s approach where a person is being repatriated to a country which maintains the death penalty for certain offences.

6. The Tribunal is aware that, where a person is extradited to a country to face charges which on conviction might lead to the death penalty, the Australian Government has a long-established practice of requiring that the receiving State provide an undertaking that the penalty will not be in the range of possible sentences to be considered in relation to the extradited person. It was not clear to me whether a similar policy applies to persons being repatriated as an illegal non-citizen, noting that the situations are not entirely analogous. An extradited person is being transferred to face a judicial process in the receiving country. A non-citizen is being deported under the Act because their visa has been cancelled because of criminal or other serious conduct in Australia, not to face a legal process in their home country. However, I consider it may be relevant in a case where there is some evidence that the receiving State sometimes institutes its own separate proceedings against a returnee who has faced judicial sanctions abroad.

7. The Tribunal asked for a submission on this matter from the Respondent. On 5 July 2021, the Respondent replied in the following terms:

   In the course of removing a person under s 198 of the Migration Act 1958, is there a practice for the Australian Government to seek an undertaking from a receiving country that the death penalty will not be imposed/carried out?

   Departmental policies contemplate that, in certain situations, the risk of harm may be able to be mitigated by seeking a diplomatic assurance from the government of the receiving country that the person will not be subjected to harm, such as through imposition of the death penalty. However, this is only one option that may be pursued to avoid refoulement.

   The Department conducts pre-removal clearances (PRC) for cases that involve risk factors that could relevantly engage Australia’s non-refoulement obligations. The purpose of a PRC is to identify whether there are potential risks of Australia being in breach of its non-refoulement obligations under the following international treaties:

   ·the Convention and Protocol relating to the Status of Refugees

   ·the International Covenant on Civil and Political Rights and its Second Optional Protocol

   ·the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

   Where a PRC identifies a risk that Australia may breach its non-refoulement obligations as a consequence of the person’s removal, the case must be referred for further consideration of Australia’s protection obligations or status resolution mechanisms. The typical mechanism for assessing protection claims is through an application for a protection visa.

   …

8. This information from the Respondent provides the Tribunal with assurance that such a pre-removal clearance would be carried out in the event the cancellation of BYFD’s visa was affirmed.

9. I stress that in seeking this submission, the Tribunal has no evidence that BYFD would be of interest to the authorities in China.  The offences of which he was convicted occurred in Australia, although there is evidence of a connexion in that country to the syndicate. It is also clear that BYFD received a significant custodial sentence, which is relevant on the material in the Country Information Report as to how his situation would be viewed locally.

10. In the absence of any other evidence, the Tribunal cannot make a finding other than, based on the information in the Country Information Report, there is some potential for further action. If the Applicant had further corroborative evidence, that could be put before the Department in relation to any application for a protection visa.

11. In terms of the social credit system, BYFD gave evidence that he was concerned that he would be hampered in gaining future employment because of his criminal offending in Australia, and gave examples that this system makes it harder for certain persons who the Chinese Government have classified as “discredited” from purchasing train tickets or working in certain occupations. While there is evidence in the Country Information Report that this social credit system is being piloted, the report states “much remains unknown”.  It is also not clear to the Tribunal whether criminal conduct abroad would bring BYFD into the purview of this system, where he has not committed any offences in China itself.  In the absence of further information, the Tribunal is unable to make a finding that this pilot system would affect BYFD.

12. BYFD states that he fears harm from his former criminal associates.  This matter is dealt with later in these reasons.  Such harm is not within the ambit of the Convention or the other relevant international treaties because it does not found a fear of persecution for the reason of BYFD’s race, religion, nationality, political opinion or membership of a particular social group.

13. The Tribunal finds that this consideration weighs neutrally, principally because of the paucity of information before it.

    Extent of impediments if removed (paragraph 9.2)

14. The Tribunal must consider the extent of any impediments the Applicant may face if removed from Australia to China in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country; taking into account his age and health, any substantial language or cultural barriers and any social, medical and economic support available to him.  The Tribunal notes that the movement record (GD, p 113) shows BYFD has returned to China on some seven occasions since settling in Australia in 2005.  In total these visits accumulate to a period of around 19 weeks between 2007 and the end of 2017.  BFYD gave oral evidence that the purpose of these visits home was to see his family.

15. BFYD is a young man and there is no evidence before the Tribunal that he is not in good health.  He gave evidence that he has lost some of his facility in the Mandarin language, however the evidence from the intercepted telephone calls indicates his proficiency in that language in 2018, and I am sure that would not be a major obstacle. His parents and adult sister and her family still live in their local city.  He told the Tribunal that his father still works, so there may be some prospect of work in his father’s orchard.  I note the written statement of his sister, who lives near their parents in China, that they will “support him and will assist him when we can” (GD, p 87). 

16. BFYD told the Tribunal that he has gained skills in metal fabricating and plastering in Australia, but that these jobs were not paid nearly as well in China. The Tribunal accepts this. It may be that his proficiency in English could open other employment opportunities for him. He also has experience in the hospitality industry which he could exploit.

17. BFYD stated that some people connected with the Chinese end of the drug importation operation had called at his father’s house, looking for him.  This evidence was corroborated in her evidence by Ms JC in response to direct questions from the Tribunal.  Ms JC said she had been told of this visit when she had spoken to her brother (the Applicant’s father).  BFYD said he was scared because he owed these people money, and they had the erroneous view he might have taken the drugs from the curtain package.

18. I am not convinced this would be an enduring problem, because BFYD will be able to point to ample evidence, including Court documents, which explain that the ephedrine material was intercepted and removed by the Australian authorities, before the package was resealed and delivered, and never reached him.

19. The Tribunal finds that this consideration weighs neutrally.

    Impact on victims (paragraph 9.3)

20. The Direction requires the Tribunal to consider the impact of the cancellation of the visa on members of the Australian community, including victims of BFYD’s criminal behaviour, where that information is available.

21. I interpret this to mean that a victim of a non-citizen’s offending must be aware of the immigration action taken and, in addition, that a victim must have expressed a view that is before the decision-maker.

22. There is no such evidence before the Tribunal, so this consideration weighs neutrally. 

    Links to the Australian community (paragraph 9.4)

    Sub-consideration: The strength, nature, and duration of ties to Australia (paragraph 9.4.1)

23. I must consider the impact of the decision on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely. I must have regard to how long BFYD has resided in Australia, giving less weight where he offended soon after arriving in Australia and more weight to time he has spent contributing positively to Australia.

24. BFYD arrived in Australia in 2005 and completed some schooling here. He has worked in several jobs and made a measurable contribution to the national economy. He has Australian citizen children and an Australian citizen wife, although they are estranged. His aunt and uncle and cousins live in this country.

25. I find that there would be some effect on Ms WX, the Applicant’s estranged wife, if he was repatriated, not so much in terms of her personal feelings, but because there would be a direct effect on her having to shoulder the responsibility of caring for A and E by herself.  She has been doing this, effectively, since 2015, but nonetheless her written evidence is that she wants BFYD present and nearby to help her with their children. There would also be an effect on the Applicant’s aunt and uncle, Ms JC and Mr LL. They both gave oral evidence that they are close to BFYD, having provided him a home for several years when he first settled in Australia. They continue to have a relationship with Ms WX and the two children, and Ms JC gave evidence that she sometimes cares for A and E when their mother is working.

26. I find that this sub-consideration weighs in favour of revoking the mandatory cancellation of the visa.

    Sub-consideration: Impact on Australian business interests (paragraph 9.4.2)

27. This part of the Direction notes that, in assessing impact on Australian business interests, an employment link would generally only be given weight where the decision under review would ‘significantly compromise the delivery of a major project, or delivery of an important service in Australia’. BFYD has undertaken work in Australia in the restaurant business, and as a metal fabricator and plasterer. I therefore have found he has made some positive contribution to Australia. However, I do not think this work rises to the level contemplated by the Direction as being significant, and I find this sub-consideration therefore weighs neutrally.

28. The Tribunal finds that the overall consideration weighs in favour of the Applicant because of the effect on his estranged wife and aunt and uncle if the cancellation of his visa is not revoked.

    CONCLUSION

29. In terms of the four primary considerations set out in the Direction, the Tribunal has found that the primary consideration relating to the protection of the Australian community weighs relatively strongly against revoking the mandatory cancellation of the visa. The primary consideration relating to the expectations also weighs strongly against the Applicant. The primary consideration relating to the best interests of relevant minor children weighs strongly in his favour. The remaining primary consideration is not relevant.

30. Of the other considerations, the consideration relating to Australia’s international non-refoulement obligations weighs neutrally, as does the consideration relating to impact on victims. The consideration relating to the extent of impediments if removed weighs neutrally.  The consideration relating to BFYD’s links with the Australian community weighs in his favour.

31. The Tribunal does not consider this is a case where the weight of the primary considerations found to weigh against the Applicant is counterbalanced by the primary consideration that weighs in his favour. The Tribunal is aware that the consequence of affirming the decision would be BFYD’s separation from his young daughter and son, and this prospect has been a significant factor that has weighed in his favour in the calculus the Tribunal is required to undertake. I find that the other consideration which weighs in his favour does not rise to a level to be determinative. BFYD engaged in his serious offending with his eyes wide open.  He knew, or should have known, he was facilitating a trade that is malign and undermines the civic fabric of Australian society. This facilitation would have directly led to the manufacture of a very large quantity of methylamphetamine. It is conduct that is reprehensible by any person, citizen or non-citizen alike, because it preys on the vulnerability of people caught in the grip of drug addiction. I have found that his criminal conduct fulfils the criterion in paragraph 5.2(5) of the Direction of being so serious that even the countervailing consideration of separation from his two minor children does not overcome the considerations which weigh against him.

32. Taking into account, the specific circumstances of the case, as the Direction (at paragraph 5.1(2)) requires me to do, I find that the discretion provided in section 501CA(4)(b)(ii) of the Act is not enlivened. Consequently, the decision under review was the correct decision in law and the preferable decision in terms of the discretion available.

    DECISION

33. The decision under review is affirmed.

I certify that the preceding 111 (one hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 9 July 2021

Dates of hearing:	1 and 2 July 2021
Counsel for the Applicant:	Mr Allan Zabrdac
Solicitors for the Applicant:	Carina Ford Immigration Lawyers
Advocate for the Respondent:	Ms Claire Campbell
Solicitors for the Respondent:	HWL Ebsworth Lawyers