CGDZ and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

CGDZ and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 2888 (4 August 2022)
Division:GENERAL DIVISION
File Number: 2022/4034
Re:CGDZ
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

Decision
Tribunal:A G Melick AO SC, Deputy President
Date of Decision: 4 August 2022
Date of Written Reasons: 6 September 2022
Place:Hobart

The Tribunal affirms the decision under review.
.......................[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 - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – family violence – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Ali v Minister for Home Affairs [2020] FCAFC 109
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar [2019] FCAFC 188
Plaintiff M1 v Minister for Home Affairs [2022] HCA 17
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
WKMZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
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
6 September 2022
INTRODUCTION AND BACKGROUND

The Applicant is 63 years old and a citizen of China. He first arrived in Australia 21 years ago. Since his arrival he has left Australia only once, for a period of approximately three weeks at the beginning of 2008.[1] Prior to its cancellation, the Applicant held a Class BB Subclass 155 (Five Year Resident Return) visa which is the subject visa of this application for review.
[1] G-documents, 63.
On 1 October 2018, 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.[2] On 8 October 2018, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[3]
[2] G-documents, 232-237.
[3] G-documents, 71-74.
On 20 April 2020, the then Minister decided to not revoke the original decision and the Applicant was notified accordingly.[4] The Applicant then sought judicial review of the non-revocation decision.
[4] G-documents, 253-257.
On 8 September 2020, the Federal Court of Australia quashed the decision of 20 April 2020 by consent and ordered that the matter be remitted for determination according to law. The Court stated that the Respondent “concedes that his decision dated 20 April 2020 is affected by jurisdictional error on the basis that the Minister failed to give active intellectual consideration to the applicant’s claim to fear persecution on account of his religion if returned to China”.[5]
[5] G-documents, 258.
On 12 May 2022, the Respondent decided not to revoke the cancellation.[6]
[6] G-documents, 8.
The Applicant subsequently lodged an application for review in this Tribunal on 20 May 2022.[7] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[7] G-documents, 1.
The Tribunal heard this matter on 13 and 14 July 2022. The Applicant and Respondent both appeared in person. The Applicant was represented by Ms Vu of Carina Ford Immigration Lawyers. The Respondent was represented by Mr Orchard, of Sparke Helmore Lawyers. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
Procedural History
The Tribunal published its decision in this application pursuant to s 43(1) of the Administrative Appeals Act 1975 (Cth) on 4 August 2022, the 84^th day relevant to this matter. In doing so, the Tribunal met the requirements of s 500(6L) of the Act. Attached to these Reasons and marked “Annexure B” is a true and correct copy of this Decision.
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]
Evidence
The Applicant
The Applicant was born and grew up in Shanghai. His father died young and his mother, HY, raised him and his sister, LL. He went to school in Shanghai and then started working on a farm when he was 17. After working for the government for 10 years, he took various labour jobs and then was self-employed. He married his first wife in China and they separated in 1996. The Applicant raised their daughter, Ms S CGDZ.
He migrated to Australia with his daughter in 2001 to join his mother and sister.
The Applicant subsequently found work in a factory and rented a place for himself and his daughter. The money he made was spent on rent, food and items for his daughter. He later combined some savings and the proceeds from selling his property in China to buy a home in Australia.
Before arriving in Australia he took a number of evening courses in massage and Chinese medicine and used those lessons to open up a massage business in which he worked full-time, up until the time he went to prison.
He met his second wife in 2007 and sponsored her and her son to come to Australia. Their relationship later deteriorated and the Applicant was drinking and smoking heavily.
On 18 March 2016 the Applicant was convicted of several offences involving his second wife and her son, including Intentionally cause serious injury, and sentenced to a total term of imprisonment of six years and six months.
In prison, the Applicant undertook courses to improve his English, as well as courses to help him get employment. He also did several courses to address his past actions including a ‘Courageous Communication’ course, a ‘Change on the Inside’ course and a Depression Program.
The ‘Courageous Communication’ course, he said, allowed him to better understand other peoples’ perspectives and how his actions had affected them.
The Depression Program, he said, allowed him to understand depression and handle his behaviour to ensure that he could adequately deal with any negative thoughts.
He gave evidence that his time in prison allowed him to think about his actions and get professional help for his mental health. He was diagnosed with psychosis and prescribed olanzapine which he took for a number of years.
When his health improved, he stopped the medication on advice but started it again in 2018 when he received a negative outcome regarding his visa. In May 2022, when he received another negative decision, he was prescribed mirtazapine.
At 63 years old, the Applicant is still taking mirtazapine. I found him to be a frank and honest witness who has actively sought to address his mental health issues. Further aspects of his oral evidence are discussed later.
After having psychosis diagnosed, the Applicant says he feels he has made progress but that such progress will be lost if he is forced to return to China.
The Applicant said that his life and home were here in Australia, having lived here for 20 years. He has only been back to China for a short time in 2007 and when he left China he sold everything. He doesn't consider China to be his home and he has limited family or connections there.
In Australia the Applicant has his daughter, Ms S CGDZ, who has suffered a lot since his imprisonment.
He hopes to be here next year when she gets married, to support her in a future family. He does not want her to have the burden of worrying about him or taking care of him, if he is forced to return to China.
The Applicant’s 86-year-old mother is in poor health and lives with his sister and her family. His mother has an age care package, but the evidence was it is not enough and she needs constant care. His sister cares for his mother as well as working full-time. They would like him to live with them so that they can assist and look out for him, as well as him helping care for his mother.
He is very close to his sister and gets on well with his brother-in-law and his nephew.
His daughter, mother and sister are the most important people in the Applicant’s life and the Applicant said it will be very difficult mentally and emotionally if he is unable to care for them after all they have done for him.
Apart from his visit in 2007 he has not been back to China for over 20 years, and he said there's nothing there for him to go back to. He has some uncles and cousins living in China but they are not close and he barely speaks to them. Some do not want to be associated with him due to his criminal history and he has no friends left in China.
The Applicant considers, that because it is the only place in China in which he has lived and with which he is familiar, the only place he could return to in China is Shanghai. He does not believe he will be able to live there because of the residential permit requirements (Hokou). He has never lived or worked anywhere else in China.
He does not believe that he would be eligible to receive a pension because he does not recall making any contributions, either when he was working for the government or when he was self-employed, which would allow him to access this pension.
The Applicant converted to the Christian faith whilst in prison and he studies the Bible in Chinese and English. He said his faith is very important to him, it gives him peace and comfort and he was baptized in 2021. He does not have a specific denomination and believes that he will be able to join any church if released into the Australian community.
He considers it will be very difficult to practice his religion in China, as it was very bad when he was there 20 years ago and he believes it is still same.
The Applicantdoes not believe that he can get adequate mental health treatment in China as he believes there is a lack of mental health services. Furthermore, people with mental health issues are looked down upon, and because of the stigma, he would be reluctant to seek treatment. He has no such concerns about seeking treatment in Australia.
He also feels that he might be punished in China for either his crimes and/or his conversion to Christianity.
The Applicant lodged a statement dated 17 June 2022 and 8 July 2022 which were tendered in evidence.[8] He gave oral evidence at the hearing with the aid of an interpreter.
[8] Exhibit 3 and Exhibit 4.
The Applicant agreed he felt remorseful for his actions, because he had “caused harm to [his stepson and ex-wife]” and felt guilty about the negative impact it had had on their lives.
When asked what those negative impacts were, the Applicant stated:
“Like, my - my wife is not able to do massage, and my stepson is afraid of seeing blood now. Those are the negative impacts”.[9]
[9] Transcript, 7.
The Applicant was asked about his mental health condition, he explained:
“So three months before the incident, I was only having about two hours of sleep every day, and I had been binge drinking and smoking heavily for about one pack per day for that three months. So, when that incident happened, I had suicidal thought. I didn’t want to live any more. I didn’t have a clear mind”.[10]
[10] Transcript, 7.
The Applicant explained that he was not aware that he was suffering from a mental health condition at the time of his offending, and he had not sought medical attention. He explained that he had tried to speak with his younger sister but that she had been busy looking after her family and he felt he had no one to talk to, which caused him to feel suicidal.
The Applicant was then asked about his current mental health issues. He explained:
“So with my health issues, the main symptom is vomiting, and I scream really loudly like an animal, but I feel better after that and not feeling dizzy afterwards. Otherwise, it will be - and I know this is a nervous-related pain. That’s - that’s why I didn’t want to be alive. But I wasn’t aware then”.
The Applicant told the Tribunal that the screaming improved his nervous pain.[11] He also explained that when he experienced symptoms of stress and anxiety he was able to utilise strategies to calm down:
“I’m feeling good now because I pray to calm myself down, and I also take sleeping medication and do intensive exercises which are all good for my mental health. I’m also doing nice things like caring for and helping people around me who are in need and in difficulty. I - because I can do massage, and I feel happy by helping the other people getting better after one time of massage”.[12]
[11] Transcript, 8.
[12] Transcript, 9.
The Applicant stated that his younger sister has medical training, as a nurse, and that she would be able to provide him with assistance for his mental health difficulties and provide recommendations for doctors.[13] He also confirmed in evidence that he is currently taking medication, something he would continue to do if released into the community, as well as exercises.[14]
[13] Transcript, 9.
[14] Ibid.
When asked how he would recognise the re-emergence of any significant mental health issues, the Applicant stated that he would begin to feel dizzy, nauseated and unable to sleep.[15] If this was to occur, he confirmed that he would seek the help of a doctor ‘immediately’.[16]
[15] Ibid.
[16] Ibid.
The Applicant expressed fear of seeking medical assistance for his mental health issues in China, claiming that he is scared to go into a hospital because of the risk of isolation and being “tied down to the bed”.[17] Although he noted that he could not be entirely certain that this would occur, he nevertheless considered himself at risk due to his Christianity, criminal history, and mental health issues.[18]
[17] Transcript, 10.
[18] Ibid.
In cross-examination, the Applicant stated that he had lived in Shanghai for 40 years and spent four of those in a farm in the areas surrounding Shanghai.[19] He also described engaging in a number of training courses whilst in Shanghai, including cookery, brand design, calligraphy, massage and hairstyling.[20] The massage course took the form of internships, first in a hospital as a volunteer, followed by a further extensive experience in Huampu Massage Centre.[21]
[19] Transcript, 12.
[20] Transcript, 12-13.
[21] Transcript, 13.
With respect to his education, the Applicant confirmed that although he was unable to complete Year 12 “during the cultural revolution”, he nevertheless completed it later in life through night school.[22]
[22] Transcript, 13.
The Applicant confirmed that among the people he knew whilst living in Shanghai were his maternal grandparents, his first wife and their daughter. His first wife still resides there, has remarried, and had another child.[23] His maternal grandparents have both passed away.[24]
[23] Transcript, 16.
[24] Transcript, 18.
When asked by the Respondent’s solicitor as to whether his first wife would be supportive of him if he were to return to Shanghai, the Applicant noted that he would be hesitant to reach out to her, and indeed that she would not be in a financial position to assist him.[25] The Applicant confirmed that he has ‘no family in China’ and made brief reference to maternal uncles and paternal aunts in China with whom he had lost contact.[26]
[25] Ibid.
[26] Transcript, 19, 22-23.
The Applicant described the deterioration in the relationship with his second wife, stating that they would frequently argue, and that to avoid going home, he ‘would spend [his] night in casino gambling’.[27]
[27] Transcript, 25.
The Respondent’s solicitor questioned the Applicant about the incident that resulted in his imprisonment, namely, the convictions of Recklessly cause injury, Reckless conduct endanger life, and Intentionally cause serious injury. The Applicant stated that his ‘brain wasn’t thinking clear then’ and that if he had properly exerted himself, his second wife’s injuries could have been more severe.[28] He also appeared to dispute his second-wife’s version of events, specifically in relation to the repeated stabbing of his stepson, whilst later acknowledging that he had admitted guilt to the offences.[29]
[28] Transcript, 28.
[29] Transcript, 31.
The Applicant was also asked in cross-examination about his Hukou, referring to his Chinese identity, and whether he had engaged a lawyer or expert to help him regain it. The Applicant confirmed that he had not, and further explained that it was difficult to obtain as you ‘need to stay there for a long period of time…’.[30]
[30] Transcript, 36-37.
Ms S CGDZ, the Applicant’s daughter
Ms S CGDZ, the Applicant’s daughter, lodged a statement dated 16 June 2022 and 6 July 2022 which was tendered in evidence.[31] She also gave evidence at the hearing.
[31] Exhibit 5 and Exhibit 6.
She expanded on the view expressed in her statement that the Applicant would not be able to cope in China, stating that re-entering the country at retirement age would make it difficult for him to ‘navigate basic living essentials and he would be feeling very alone and isolated’.[32] Further, she stated:
‘He’s not the most independent person. He’s always relied on his family throughout his life, so and because he’s so far removed from society he will have to reassimilate and readapt to a county that he is now very unfamiliar with. So I think that it would be very hard for him, if he was to live there in isolation without the support from his family’.[33]
[32] Transcript, 40.
[33] Ibid.
She stated that the Applicant does not have the ability to make decisions on his own, but instead relies on others, such as immediate family members, to make ‘any sort of decisions in his life’.[34]
[34] Ibid.
Ms S CGDZ considered that the Applicant’s offending incident was an isolated one, and was precipitated by circumstances in which he was suffering from mental health issues that none of his family were aware of at the time. She also considered that he was under ‘a tremendous amount of distress’ from the breakdown of his marriage.[35]
[35] Ibid.

Ms S CGDZ gave evidence consistent with the Applicant’s own evidence with respect to his familial connections in China. She stated that although she thought the Applicant may have a distant uncle in China, they had cut off contact, and that the Applicant’s first wife, Ms S CGDZ’s mother, was no longer in communication with the Applicant and she has her own family now.[36]
[36] Transcript, 41, 47.
Ms S CGDZ, in cross-examination, was asked about her description of the Applicant as ‘inept at technology’.[37] She clarified this statement, agreeing with the Respondent’s solicitor that the phrase ‘inept’ was not entirely accurate, instead stating that the Applicant is ‘probably not the most tech savvy person’.[38]
[37] Transcript 42, Exhibit 5, [17].
[38] Transcript, 42.
In cross-examination, Ms S CGDZ also elaborated on the transfer of the Applicant’s property to her, describing it as:
‘…he had a mortgage remaining and then I took out a loan to refinance and pay out his mortgage, along with stamp duty…And then I transferred the title into my name’.[39]
[39] Transcript, 44.
Ms S CGDZ agreed that although she had taken over title of the property, she acknowledged that the Applicant has an interest in the property estimated at approximately $100,000.00, as a result of his transfer of the property at an amount considerably less than what it was bought for.[40]
[40] Transcript, 45.
LL, the Applicant’s sister
LL is the Applicant’s sister. She lodged a statutory declaration dated 17 June 2022, and a statement dated 6 July 2022, both of which were tendered into evidence.[41] She also gave evidence at the hearing.
[41] Exhibit 7 and 8.
When asked how LL would support the Applicant if he were to be released into the Australian community, she replied:
‘I would support him physically, mentally and also emotionally and also financially. He can stay with us because we have four-bedroom house. It’s large enough. At the moment [one room is] permanently empty, no one can – no one stay there. So he can stay there and work and look after mum and we’re able to work…’[42]
[42] Transcript, 50.
LL understood that the Applicant suffers from anxiety, depression and an adjustment disorder and noted that she would undertake to support and monitor his mental health if he were released.[43]
[43] Ibid.
LL also confirmed that the Applicant would have access to their family doctor, and she would ensure that the Applicant was regularly engaging in counselling and psychology sessions, not just when he shows signs of mental health disturbance.[44]
[44] Transcript, 51.
SL, the Applicant’s brother-in-law
SL is the husband of the Applicant’s sister, LL. SL lodged a statutory declaration dated 17 June 2022 which was tendered into evidence,[45] and gave evidence at the hearing.
[45] Exhibit 9
SL gave evidence at the hearing about the impact of the Tribunal proceedings on his wife, LL, stating that it has ‘caused her a great deal of anxiety’ and that ‘her health has suffered’.[46] He went on to describe the Applicant’s dependence on LL, stating:
‘I’ve observed that whenever CGDZ has a decision to make, whether it be big or small, he would often contact his sister, my wife, to consult her and to discuss those matters…’[47]
[46] Transcript, 54.
[47] Transcript, 55.
SL also reiterated his concerns, as expressed in his statutory declaration, regarding the Applicant’s ability to form friendships.[48]
[48] Ibid.
Mr Warren Simmons, psychologist
Mr Warren Simmons, psychologist, provided a report in this matter dated 4 July 2022, which was tendered into evidence.[49] Mr Simmons also appeared at the hearing to give evidence.
[49] Exhibit 10.
Mr Simmons opined that the Applicant is a low risk of re-offending in the community. He cited a number of reasons for forming this opinion, including the Applicant’s age, the specific nature of his offending and its occurrence ‘in the context of a deteriorating marital relationship, increasing alcohol consumption and poor sleep’ as well as ‘a decompensation of his schizotypal disorder’.[50]
[50] Transcript. 63.
Mr Simmons considered the protective factors that reduce the risk of the Applicant reoffending to be:
“…the support of his family and knowledge of both the disorder that has up until now been undiagnosed – that’s the schizotypal disorder. The protective factors would also include the fact of his age. So, offending…decreases after about the age of 30. It gets much rarer for people in his – I think this man is now in his mid-60s – to commit offences. There is certainly the whole process of going to gaol and being in immigration detention. That also has a sobering effect, and certainly these proceedings would underline the seriousness of the behaviour”.[51]
[51] Transcript, 64.
Mr Simmons was also asked about schizotypal disorders. He explained:
“It belongs to the group of disorders associated with schizophrenia, and it can be thought of as an attenuated form of schizophrenia. So that these people often have odd ideas, paranoid ideation and difficulty interacting with others. They may see illusions - not really hallucinations, but may actually read into situations more than it is. Traditionally, they are the, you know, in the neighbourhood, the person that lives in the house that’s considered the crazy old person in the area. They generally don’t have major issues. Generally they go along in life quite well. However, they can decompensate - over-stress. So, if you think about it in terms of being - it’s a personality type that is not functioning as well as it can. So, it’s - there is certainly a genetic and medical element to it, but exactly - you know, a brain scan on these people is often - it doesn’t show any abnormality. But when put under pressure they don’t manage or cope with situations very well because they don’t have the personality skills to do it. And so stressful situations increase their sense of paranoia, their sense that the world was against them, their ideas about things - rather than looking for a more rational explanation - tend to be the odd and strange explanations for what are occurring. Psychotic episodes are common. They usually respond to a brief episode of medication and then there’s no - they may spend the rest of their life with no further episodes”.
Mr Simmons confirmed there was no present evidence to suggest the Applicant suffers from any psychosis or thought disorder, but noted that his embrace of Christianity was consistent with a schizotypal personality. Mr Simmons confirmed medication was not presently required.[52]
[52] Transcript, 64.
Mr Simmons further explained that schizotypal disorders are not amenable to medication, although there is some suggestion that group therapy could be helpful. He stated:
“Most of the personality disorders do not respond to medication and you tend to treat the condition symptomatically. So if they become psychotic, you give them antipsychotics. If they become depressed, you give them antidepressants. But in itself it doesn’t change the underlying disorder”.[53]
[53] Transcript, 65.
Mr Simmons expressed concern about the risk of decompensation should the Applicant return to China. He stated:
“CGDZ has no family in China. He would be returning to an environment which was very different to the one he left, and I would think from my limited knowledge of media in terms that China has changed dramatically over the past 20 years and is going to be a very different country to which he left. There are going to be issues to do with accommodation, employment or other supports. And I think that without some ability or structure (indistinct) there will be a decompensation again”.[54]
[54] Transcript, 65.
When asked to expand upon whether CGDZ had insight into his mental health issues, Mr Simmons considered that such insight was ‘limited’, but noted that that was consistent with the Applicant’s schizotypal disorder diagnosis. He otherwise said that the Applicant had ‘some insight’ into his decompensation and alcohol use, though he acknowledged that there had not been ‘significant therapeutic endeavours’ to facilitate this understanding while he was in custody.
In cross-examination, Mr Simmons conceded that he did not know the Applicant’s level of alcohol consumption on the night of the offending. When it was put to him by Mr Orchard that this meant he was not in a position to comment on the role of alcohol in the Applicant’s offending, Mr Simmons responded: ‘I can comment that it would have had an impact on the offending. If you want me to apportion a percentage, I can’t do that.’ Mr Simmons also conceded that he did not know how much money the Applicant was gambling, though he noted the Applicant reported going to the casino nightly.
When asked by Mr Orchard why he had not used an actuarial tool in assessing the Applicant, Mr Simmons said it was because he was ‘not aware of any actuarial tool that’s been validated on Chinese nationals who grew up in China,’ noting that ‘unfortunately such tools are generally validated on Western populations, so predominantly English speaking cultures.’
Mr Orchard put to Mr Simmons that any lack of insight by the Applicant into his relationship as the ‘most important driver of his offending’, was relevant to an assessment of his recidivism risk. Mr Simmons considered ‘that doesn’t necessarily change the risk’ and explained:
‘I would agree with you that if he is in another relationship and it started to break down, there may be significant issues. But if there is not a relationship, then whether he understands why his other relationship broke down or not is less relevant to the risk.’
The Tribunal asked Mr Simmons to express an opinion as to the risk of the Applicant re-offending both within a relationship and outside of one. Mr Simmons agreed that given the Applicant was not currently in a relationship, the risk of him re-offending was low, but considered there was ‘certainly the possibility’ that the Applicant could react adversely if the Applicant was in another relationship that broke down, or if the Applicant continued drinking alcohol to excess.
Whilst he considered that schizotypal disorder was usually ‘benign’, Mr Simmons agreed in response to a question from Mr Orchard that that observation was made in a general sense, and that the Applicant’s offending was not benign but was ‘certainly a violent incident.’ In response to further questions he agreed that schizotypal disorder was usually benign unless certain factors come into account, explaining:
‘And in this case I believe it’s a mental decompensation. So, the mental state deteriorates and the ability, if you like-the executive part of the brain to say this should be handled differently-is compromised, and then alcohol is involved, compromises it further.’
In re-examination, Mr Simmons opined that the Applicant’s willingness to seek out medication and assistance would ‘certainly decrease’ his risk:
‘If he had an ongoing relationship with a general practitioner who would be able to talk to him and evaluate what was going on, preferably someone who speaks-I think he speaks Mandarin-I think that’s always better than trying to assess people via an interpreter, and be able to recognise the nuances in what he was saying, and interpreting it appropriately.’
The Tribunal also received written statements in support of the Applicant. Those statements are summarised as follows:
JL, the Applicant’s nephew
JL is the Applicant’s nephew who would visit the Applicant regularly until his incarceration. He wrote a statutory declaration in support of this application dated 17 June 2022 and tendered in evidence.[55]
[55] Exhibit 12.
He described the Applicant as a generous and kind person who cares deeply about his family and their well-being. He noted that the Applicant is hard-working and willing to give up his free time to help others in need.
He said that the Applicant was very close to family that care deeply for him and that willalways be there to support him.
He is concerned the Applicant’s mother needs to be cared for, and that his mother (LL) would not be able to continue to support both his grandmother and the Applicant if the Applicant is returned to China.
HY, the Applicant’s mother
HY is the Applicant’s 86-year-old mother, who described him as a quiet, gentle and kind person who had never been violent in his life apart from the offences the subject of this matter. HY’s statutory declaration dated 17 June 2022 was tendered in evidence.[56]
[56] Exhibit 13.
She is legally blind, has severe hearing loss, asthma, diabetes, high cholesterol, iron deficiency, anaemia, pleural effusion, trouble with her lungs affecting her breathing and heart, hernia, gastritis, unstable glaucoma and depression and anxiety.
She relies heavily on her daughter and family members to take care of her. If the Applicant remains in Australia, she said he will take care of her which will assist her daughter and other family members.
HY said it will be ‘heartbreaking’ if the Applicant cannot return home because she will not be able to travel to China to visit him and she will spend the rest of her life knowing that they will never meet again.
CDC
CDC is the Applicant’s daughter’s partner who has not met the Applicant but noted that his partner is often left an in an emotionally distraught state when receiving negative news about her father’s situation. CDC’s statutory declaration dated 16 June 2022 was tendered in evidence.[57]
[57] Exhibit 14.
CDC noted that Ms CGDZ has always described the Applicant as being a very good and doting father and she is concerned her father will not be able to survive in China.
NK
NK is the best friend of the Applicant’s daughter and is also a child of immigrant parents from China. NK’s statutory declaration dated 16 June 2022 was tendered in evidence.[58]
[58] Exhibit 15.
She notes that the Applicant’s daughter has been struggling and making many sacrifices over the years waiting for the day of her father’s release and she believes that she really needs the support of her father as he is her only direct family member.
She is aware that the Applicant’s daughter has the means to provide accommodation for her father should he not want to live with his sister and mother.
Ms AYL
Ms AYL is a close friend of the Applicant’s sister and has known the Applicant since 2006. Ms AYL’s statutory declaration dated 17 June 2022 was tendered in evidence.[59] She is aware of his criminal convictions but has never seen him behave violently towards others. She has assisted with the caring of the Applicant’s mother from time to time because of the extreme pressure under which her friend has been placed because of the Applicant’s mother’s illness and the fact that he is not available to assist.
[59] Exhibit 16.
Ms LT
Ms LT has known the Applicant for 20 years and has known him to always have been a decent, gentle and caring person with a strong work ethic. She regards his offending as completely out of character and considers that he is needed to help look after his aged mother. Her statutory declaration dated 17 June 2022 was tendered in evidence.[60]
[60] Exhibit 17.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that, following an invitation by the Minister for a person to make representations about the mandatory cancellation of their visa:[61]
4The 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.
[61] 501CA (3) (b).
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:[62]
“…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…”[63]
[62] [2018] FCAFC 151.
[63] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and, if he does not,
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant Pass the Character Test?
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”.
In March 2016 in a Victorian County Court, the Applicant was convicted of intentionally cause serious injury and sentenced to a term of imprisonment of 63 months. He was also convicted of reckless conduct endanger life and sentenced to a period of imprisonment of three years, with two years to be served concurrently. On the same day, he was convicted of recklessly cause injury and sentenced to a term of imprisonment of 12 months, with nine months to be served concurrently. He was sentenced to a total term of imprisonment of six years and six months.
The total term of imprisonment the Applicant was sentenced to is nine years and three months.
The Tribunal therefore finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
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 by the Minister 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.[64]
[64] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether 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.
The principles 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.

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.
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.
Paragraph 9 of the Direction sets out four 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
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:[65]
“…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.”[66]
[65] [2018] FCA 594.
[66] Ibid, [23].
BACKGROUND and offending
All three of the Applicant’s offences related to the same set of incidents, the circumstances of which were set out by the sentencing Judge as follows:[67]
- At the time of the offence, [the Applicant] was residing with his wife, Ms [HT] and his stepson, Mr [TS] (aged 21 at the time). On the evening of 18 December 2014, [the Applicant] and his wife had gone to bed and were having a dispute regarding their relationship, when [HT] told [the Applicant] she was going to move out on 23 December 2014.
- [TS] was in his bedroom with his door shut, however, he could hear [the Applicant] and his mother talking about divorce and [HT] telling [the Applicant] to leave. At some point [the Applicant] left the bedroom and went into the kitchen and turned on the gas hotplates, he then opened the valve of a large gas bottle behind the front door, within the house. [The Applicant’s] conduct in doing these actions relate to the charge of reckless conduct endangering life.
- At approximately 2.30am, [TS] woke to see [the Applicant] in his bedroom. [TS] got out of bed and could smell gas, he dialled 000 on his mobile phone. [The Applicant] shouted at [TS] ‘You called 000?’ and then stabbed [TS] in the back of his neck with a kitchen knife.
- [HT] woke to the noise of fighting and yelling. She went to her son’s bedroom and saw he was bleeding profusely from the knife wound. She also saw [the Applicant] was holding a long knife and there was a lot of blood in the room.
- [TS] told his mother to call 000, however she was unable to do so as she did not speak English. [TS] loosened his grip on [the Applicant] and attempted to call 000, but [the Applicant] placed him onto the floor, sat on top of his stomach and stabbed his throat and neck with the knife. [TS] tried to prevent [the Applicant] from stabbing him by holding the blade of the knife with both hands. This conduct relates to the charge of intentionally cause serious injury.
- [HT] tried to grab the knife from [the Applicant] by grabbing the end of the blade, which caused an injury to her left hand. The injury to [HT]’s left hand relates to the charge of recklessly cause injury.
- The grapple between the three of them lasted for about 10 to 20 minutes
[67] G-documents, 15.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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.
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
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.
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); and 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.
As outlined in the circumstances of the Applicant’s offending at [112], not only was the Applicant’s offending violent, it also involved family violence against a woman and her young adult son which is a major community concern.
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. 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.
Furthermore, the sentences received by the Applicant indicates that the court regarded the Applicant’s offending is very serious and this is a matter I take into account as required by sub paragraph (c) of paragraph 8.1.1 of Direction 90.
I note that as this was an isolated incident that a consideration of sub paragraph (d) could operate in the Applicant’s favour as there is no increase in the seriousness of any offending. However, the considerations to be applied under sub paragraph (e) when taking into account the injuries to his stepson and their sequalae mitigate against the Applicant.
I do not consider factors (b), (f) and (g) of paragraph 8.1.1(1) of Direction 90 to apply to the Applicant’s offending or circumstances.
However, the totality of the relevant sub-paragraphs referred to above weigh very 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
Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)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
(c)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
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 his offending to date, including any escalation in his 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.
Taking into account the offences referred to above committed by the Applicant, and the serious nature of the injuries inflicted upon the step-son, I find that any future offending of a similar nature would have the potential to have potentially fatal consequences or cause physical and psychological harm to members of the Australian community.
Likelihood of engaging in further criminal or other serious conduct
I accept that at the time of the offending the Applicant had undiagnosed psychiatric conditions.
The court accepted he had an adjustment disorder with mixed anxiety, depression, obsessive preoccupation and psychosis.
In addition to the evidence referred to above I had the benefit of receiving evidence from Mr Warren Simmons.
Some of the history provided to Mr Simmons by the Applicant in relation to the offence is as follows:
…… explaining that his relationship with his wife had deteriorated and there had been a period of alcohol consumption for several weeks. He was consuming a bottle of wine plus some liqueur, saying that he was struggling with what was occurring. It was in this context that he attacked his stepson and injured his wife, which resulted in him subsequently being incarcerated. He went on to say that he felt sorry for his stepson and the fact that it caused him pain, stating that what he did was wrong and that he “cannot be more guilty”.[68]
[68] Exhibit 10.
Mr. Simmons noted that the Applicant had been diagnosed with schizotypal disorder by Professor Andrew Carol and he was also diagnosed with an adjustment disorder by Dr Matthew Barth. There was also evidence of psychotic phenomena when the Applicant was assessed by Dr Barth for the second time, who concluded that there were somatic delusions.
Mr Simmons also reported that there had been an episode of frank psychosis, noted by Dr McInerney.
However, Mr Simmons found no clear evidence for a schizotypal disorder at the time of interview and there was no evidence of psychosis. He noted that an adjustment disorder is reflective of the circumstances in which the individual finds oneself and such conditions often resolve. He opined that this appears to have been the case with the Applicant.
Mr. Simmons also reported as follows:
“With regard to the likelihood of reoffending, it is noted that... while this is a serious offence, it occurred in a particular context that involved a deterioration of his marriage, increasing alcohol consumption and the offence involved his stepson. This is not an offense that occurred against a member of the wider community, but rather in the context of a deteriorating relationship. As such, it is an offence that involved a particular set of circumstances which are unlikely to be repeated again. …….. His mental health is stable, schizotypal disorder often having a benign course with a deterioration metal state under significant stress. This does not necessarily result in an increased threat of violence. [The Applicant] presents as a low risk for further offending in the community.”
In evidence in chief Mr. Simmons noted that there were protective factors that would reduce the risk of reoffending including the support of the Applicant’s family and knowledge of the previously undiagnosed schizotypal disorder. He also noted that offending after about the age of 30 gets much rarer for people in the Applicant’s age bracket.
However, I consider the following exchange between myself and Mr. Simmons to be very important:
[DEPUTY PRESIDENT]: There’s no doubt in your mind that the applicant suffers from a schizotypal disorder?---Yes.
All right. One of the features of a schizotypal disorder is the fact that people have fixed ideas and are often very - and it’s very difficult to change those ideas?---Yes.
…
Now, at the moment he’s not in any relationship, therefore you would say the risk is low?---M’mm.
If he gets into another - if he gets involved in another relationship, and that relationship breaks down, and because of the deterioration of that relationship he starts to drink alcohol to excess, or increase his consumption of alcohol and start gambling again, is there not a risk that he will react in the same sort of way?---There is certainly the possibility.
…
MR ORCHARD: Thank you, Deputy President. Further to what the Deputy President just said, Mr Simmons - and the Deputy President proposed, for example, that the applicant would be again in a relationship with a - a romantic relationship. Now, you’ve said in your report that the issue is that he’s no longer in a relationship, or a personal relationship that would lead to something like that. What about other forms of relationships, for example a family member who he is close to but becomes fixated on an idea that he’s, like with his wife, being betrayed?---That may become a factor.
…
DEPUTY PRESIDENT: You agree, do you not, that because of his disorder he has little insight into his behaviour?---Yes.
MR ORCHARD: And you’ve also said, Mr Simmons that - and you said this to my learned friend - that schizotypal disorder is usually benign, but you were talking in the general there, weren’t you?---Yes.
In this case, it wasn’t benign, was it?---No, it was certainly a violent incident.
Those are my questions, Deputy President.
DEPUTY PRESIDENT: Thank you. Just following on from that. It’s usually a benign disorder unless certain factors come into account?---Yes. And in this case I believe it’s a mental decompensation. So, the mental state deteriorates and the ability, if you like - the executive part of the brain to say this should be handled differently - is compromised, and then alcohol is involved, compromises it further”.[69]
[69] Transcript, 71-72.
I accept that there are many protective factors now in play including the willingness of the Applicant’s family to have him live with them and monitor his behaviour. I have no doubt that the Applicant is genuinely remorseful and that he has very significant family support. I also accept that the fear of losing his visa would be a strong disincentive to the Applicant reoffending.
I also accept that the Applicant believes that he has moved on and he is not a threat to anyone, especially now that he is receiving mental health treatment and had undertaken some programs.
However, although the Applicant cannot be characterized as usually being a person of bad character, or of a violent nature, his unfortunate mental health issues provide him with very little insight in certain circumstances. If he were to enter into another relationship I cannot be satisfied that, if that relationship deteriorated, the Applicant would not be at risk of re-offending. If he was to re-offend, bearing in mind the potential fatal consequences of his offending actions, I regard that even a low risk of re-offending is unacceptable.
Conclusion: Primary Consideration 1
Absent the Applicant becoming involved in another romantic relationship I consider the risk of him reoffending to be low increasing to moderate should he become involved in another romantic relationship.
However, considering his age and the fact that he will be living with his sister and supporting his mother it seems unlikely that he will be tempted to form another relationship so I assess the overall risk of him reoffending as low.
Nevertheless, should he engage in similar conduct again it may result in fatal injuries or cause psychological and physical harm to members of the community and I give this consideration significant weight in favour of non-revocation.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
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.

I find that the Applicant’s conduct constituted family violence and as set out above I find that conduct to be very serious.
I take into account that there had been no previous incidents of family violence and hence no frequency of such behaviour or any trend of increasing seriousness. His offending was an isolated incident.
I found the Applicant to be a very credible witness, I accept that he takes full responsibility for his actions, that he feels guilt and shame about his behaviour and actions against his ex-stepson and ex-wife and the shame he has bought upon his family.
I also note that he has paid $45,000 in compensation to his former stepson.
I accept that he has a genuine intention not to get involved in gambling or excessive consumption of alcohol in the future and that during his time in prison he has obtained significant insight into the causes of his offending.
I note that there was no evidence during the hearing about the level of his alcohol consumption prior to the offending but Mr Carroll noted the following in his report of 20 December 2015:
58) he reported that when he feels unhappy, he can “drink 50% [ie very strong] spirits like they are water” and reported that sometimes he drinks up to two large glasses of such over proof spirits at a time. He did not report any history consistent with alcohol dependency, however.
I also accept that the Applicant is undertaking treatment for his mental health issues including completing some rehabilitation programs and is receiving counselling. However, I also note that the evidence suggests his schizotypal condition is such that it is to be monitored rather than treated.
Conclusion: Primary Consideration 2
The Direction makes it clear that family violence is regarded very seriously by the Australian government and the community. The Direction also states that:
the Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
When considering the above statement together with the level and nature of the family violence in this matter I find that such violence should be regarded as being very serious. While I have had regard to the fact that the Applicant’s offending was an isolated incident without any trend of increasing seriousness (cl 8.2. (3) (a)), and that he has demonstrated meaningful attempts to rehabilitate himself and gain insight into his offending (cl 8.2 (3) (c)), the seriousness of his family violence offending is such that I attribute significant weight to this consideration against revoking the cancellation of the Applicant’s visa.
I attribute significant weight to this consideration against revoking the cancellation of the Applicant’s visa.
Primary Consideration 3: The best interests of minor children in Australia
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 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
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.
There is no evidence before the Tribunal to suggest that the cancellation of the Applicant’s visa will affect the interests of minor children in Australia.
Conclusion: Primary Consideration 3
This consideration is not relevant to this application. I do not attribute it any weight.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
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 he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or 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 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.
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.
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.
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.[70]
[70] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
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 should have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
In FYBR Charlesworth and Stewart JJ noted that:
...this consideration is a deeming provision imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter;
...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.
I consider that in this case the expectation counts heavily against the Applicant as Australians have a low tolerance of criminal conduct by noncitizens, and the Australian community expects that those who commit serious crimes should have their visa cancelled.
It has already been noted above that one of the particular types of conduct which raises serious character concerns is family violence, as well as conduct that falls within cl 8.4. (2) (c) of the Direction, being commission of serious crimes against women.
Conclusion: Primary Consideration 4
I attribute significant weight to this consideration against the revocation of the cancellation of the Applicant’s visa.
Other Considerations
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
The Applicant contends that if he is returned to China he would face harm because of his religious beliefs, the treatment of people with mental health issues and also he would be at risk of prosecution for the same offence under article 10 of the Criminal Law of the People’s Republic of China.
The term ‘non-refoulement’ is derived from Article 33 of the United Nations Convention Relating to the Status of Refugees, adopted in 1951, as amended by the 1967 Protocol Relating to the Status of Refugees (“Refugees Convention”).[71] It provides:
Article 33. - Prohibition of expulsion or return ("refoulement")
1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.
[71] See Ali v Minister for Home Affairs [2020] FCFC 109.
Non-refoulement obligations are also found in other instruments. Paragraph 9.1 of the Direction relevantly provides:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
(2) In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen’s visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
(4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6) It may not be possible at the section 501/section 501CA stage to consider non- refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non- refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen’s favour that claimed harm will occur and make a decision on that basis.
(7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non- citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
(8) If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them — see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia’s international non- refoulement obligations.
I must give meaningful consideration to clearly articulated claims of harm or hardship made by the Applicant, including those claims, which if made out, would result in Australia owing non-refoulement obligations in respect of the Applicant. I must assess the risk of harm and/or hardship that the Applicant claims he will face if removed to China in its own right. That assessment will also inform my assessment of whether the Applicant is someone to whom Australia owes non-refoulement obligations. A risk of harm or hardship that is not clearly articulated but arises on the evidence also warrants consideration.[72] The Tribunal is not required to carry out the same level of analysis in this matter as would be expected in the assessment of a Protection visa application.
[72] See Minister for Home Affairs v Omar[2019] FCAFC 188.
I understand that the Applicant’s case was put on the basis that the most significant risk would be persecution because of his religious beliefs, and significant material was exhibited in support of that contention. Other risks were that the Applicant would not be entitled to receive appropriate mental health treatment in China and was at risk of double jeopardy pursuant to Articles 7 and 10 of the Chinese Criminal Law. Material in support of those contentions included:
(a)Claims relating to Religion
I note that the Applicant does not belong to any formal religion, although he gave evidence that his beliefs will entitle him to join almost any Christian religion. The DFAT Report notes:[73]
3.24 Under Xi Jinping, China has introduced a renewed campaign to ‘sinicise’ religion. This work, undertaken through the Party’s United Front Work Department and carried out through registered, state sanctioned religious organizations, aims to ensure that a ‘correct’ version of religion is practiced by adherents in China, with principles like patriotism, party leadership, and loyalty to the Party emphasised, and doctrine deemed inconsistent with Party de-emphasised or forbidden.
[73] DFAT Information Report People’s Republic of China dated 22 December 2021.
A report entitled, China (includes Tibet, XinJiang, Hong Kong and Macau) 2021 International Religious Freedom Report notes the Chinese authorities have significantly intensified the crackdown on religious minorities often using COVID-19 restrictions as an excuse for such behaviour and opines that repression and persecution will continue aided by the tools of modern technology.

A report entitled China 2021 Human Rights Report notes, inter alia, severe restrictions and suppression of religious freedom; substantial restriction on freedom of movement as well as intrusive technical surveillance and monitoring.
In the UK Home Office Country Policy and Information Note China: Christians (Version 3.0) dated November 2019 it was suggested that there was no significant detriment to Christians practicing in China so long as they are not practicing in unregistered churches. At 2.4.4:
‘The measures of control set out in the [Religious Affairs Regulations] RRA, and their implementation, whether by the Chinese state or non-state actors, are not, in general, sufficiently severe as to amount to persecution, serious harm, or ill treatment engaging international protection.’
(b)Risk of ‘ Double Jeopardy ‘punishment
The UK Home Office Country Information and Guidance China: Fear of punishment on return to China for crimes committed in other countries (‘Double Jeopardy’) (Version 1.0) dated September 2015 stated:
2.3.1 ….the Tribunal found that whilst there is a risk of prosecution or re -prosecution under Article 7 and 10 of the Chinese Criminal Law for overseas offenders returning to China, use of the legal provisions is discretionary and extremely rare. Without particular aggravating factors, commonly the risk falls well below the level required to engage international protection.
(c)Mental health and extent of impediments
The DFAT Report noted:
2.15 The government has increased investments in mental health services over the last decade but services remain inadequate…….. The rate of people receiving treatment was low, in part due to social stigma, and a lack of funding, mental health beds and mental health professionals.
There were many more reports dealing with COVID-19 and other such matters contained in Exhibit 11 but as indicated during the hearing, unless specifically taken to them to them I would not refer to them in my decision.
I have, however, considered matters put before the Delegate and note some relevant ones taken from that decision as set out below (citations omitted):
An article dated 26 July 2020 by Christian News, which states citizens who fail to comply with the authorities orders have had their welfare subsidies rescinded and will only be eligible for payments if they comply with the authorities. It is further confirmed that several incidents occurred in China in 2020 including the removal of crosses from church, church raids and the destruction of churches with cranes in July;
- According to a report by Missionsbox, in 2020, reports of the Chinese government’s alarming actions as Christian persecutors has continued to spread across the world;
- An article published in the UK states that the Chinese Community Party has launched a major crackdown on religion, including Christianity, in an attempt to oppress religious freedom and exercise control. Churches in parts of China are being forcefully ordered to take down their religious symbols and replace them with images of communist leaders. It is also reported in this article that ‘footage of shackled and blindfolded individuals has emerged from China, providing more evidence of human right abuses by the country’…
- A report by Freedom House indicated that the Chinese government continued to tighten control over religious communities and carry out demolitions of alleged authorised places of worship in 2020, during both and after the Covid-19 lockdown.
…
That in April 2021, Radio Free Asia reported that ‘authorities in China are detaining Christians in secretive, mobile ‘transformation’ facilities to make them renounce their faith’
- On 13 January 2021, Open Doors released their annual World Watch List which assesses 50 countries where Christians face the most severe types of persecution and according to the assessment, China entered the top 20 for the first time in a decade due to ongoing and increasing surveillance and censorship of Christians and other religious minorities.
- An article titled ‘Prison sentence for pastor shows China feels threatened by spread of Christianity, experts say’ dated 2 January 2020.
The Applicant may apply for protection visa, and it is permissible for me to defer assessment of whether he is owed non-refoulement obligations upon the basis it is open to the former visa holder to apply for a protection visa. See Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [30].
I do not suggest that the Applicant’s claims that he might suffer harm if he is returned to China are without merit but, as set out above, there is a significant amount of relevant material much of which was not fully explored before me. The majority in Plaintiff M1 observed at [39]:
Where the cancelled visa is not a protection visa and a decision- maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being “another reason” why the cancellation decision should be revoked.
I consider that in this case it has not been possible to consider the non-refoulement issues in the same level of detail as they would be considered in a protection visa application, a factor noted at Direction 90, cl 9.1(6).
I also note that where an applicant is able to make a valid application for a protection visa, those claims will, if and when the applicant makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the applicant-see cl 9.1(7) of Direction 90
Accordingly, even though this consideration could bear significant weight, I defer consideration of international non-refoulement obligations and so it weighs neutrally.
(b) Extent of Impediments if Removed
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.
Age and health
Apart from his mental health issues referred to above, the Applicant is socially isolated and has trouble making friends easily. He often has fixated ideas and reports refer to him pricking the soles of his feet to release ‘bad blood’. His other reported conditions include tension, balanitis, constipation,iron deficiency anemia, gastritis, dental complications and hemorrhoids.
Language and cultural barriers
The Applicant is unlikely to face any substantial language or cultural barriers bearing in mind that he left China as an adult and is fluent in the official language of China , Putonghua which is also referred to as Mandarin.
Social, medical and/or economic support available in China
The Applicant believes that he will be discriminated against due to his criminal record and that he will have difficulty finding accommodation as he does not have friends or family who are prepared to assist him in China.The only place in which he had lived, and with which he was familiar, was Shanghai but it is now very difficult to obtain permission to live there because of overcrowding and he doubts he will be able to obtain the necessary permit (hokou) which would allow him to live there.
Real estate in Shanghai is very expensive and after legal expenses he expects to have less than $100,000 being the sum total of his assets. I accept that he will not have the benefit of any pensions or superannuation schemes in China not having been a member of such schemes before leaving China. However, I do not accept he would become homeless upon removal to China because his assets would allow him to at least rent for a significant period of time even if not in Shaghai.
He ran his own massage business in Australia until the time of his arrest and he had undertaken the same work in China before migrating to Australia. He also commenced teaching children calligraphy not long before he left China and had worked continually, although in various areas, whilst living in China. Even though he is now 62 there is no reason why he could not engage in such work upon return to China although I do accept he may have some difficulties if his criminal record becomes known.
I note that the Applicant stated in his request for revocation that he has relatives in China, including his uncle and cousins also states that he has cousins in Taiwan and Canada but I accept that his uncle has stated he wants nothing to do with him because of his criminal behavior.
I accept that people with mental health issues can often be discriminated against in China and that he would not have the same emotional and financial support that he would receive from his family if he remained in Australia. I also note it might be difficult for the Applicant to obtain assistance from a disability scheme in China because such schemes are not as extensive as in Australia.
I also accept that the Applicant’s family would not be able to visit him in China for any extended period of time, especially whilst caring for his aged mother, and that they are concerned that there would be nobody to monitor his welfare.
I note the Applicant has resided in Australia for over 20 years with th support of his family the absence of which should he be removed to China will cause difficult emotional and practical hardship for him. He will need assistance to successfully reintergrate into the Chinese community and, although not up to the same standard in Australia, he should receive the same welfare medical support as the citizens of China.
The Applicant may also suffer disadvantage if his medical records and history are not available to him or his health service provider in his home country. I accept that there is a significant risk that his mental health condition will deteriote in China and as such I attribute significant weight to this consideration in favour of revocation.
(c) Impact on victims
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.
The sentencing remarks of the County Court of Victoria dated 18 March 2016, refer to the victim impact statement dated 14 February 2016, from the Applicant’s stepson. He described his left hand as being ‘useless now’. He could not play sport like he used to or lift heavy things. On cold or wet days his hand felt uncomfortable and he was in pain. He is scared of knives and of blood and ‘Because of the fear of blood and knives I have to stop my dream about becoming a doctor and a good husband who would cook meals for my family’. Before the incident becoming a doctor, in particular a surgeon, was his life target and he now feels lost in his life. With respect to his neck, he states ‘As the main muscle of the back of my neck was cut in half I easily feel tired and painful, even though it's been fixed by doctors’. He has lost trust in people and is scared to fall asleep at night. He reports that he is seeing a psychologist every week and his treatment is ongoing.
The victim impact statement tendered to the Court, from HT, , who referred to the effect the injury to her left hand had on her job as a massage therapist. As she had three stitches in her left hand she lost time off work. She still does not have proper feeling in her forefinger and is more sensitive to things that are hot or cold. With respect to the emotional impact of the Applicant’s actions, HT described waking up with nightmares. She is extremely worried about her son, in particular about his future, as he is not attending university as he does not feel safe. She is worried the Applicant will look for her in the future and she has incurred the expense of moving house and a security deposit.
When considering the above information I find that the two victims have experienced significant trauma as a result of the Applicant’s offending, including ongoing feelings of fear and concern for their safety.
As such I attribute moderate weight to this consideration against revocation.
(d) Links to the Australian Community
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
Immediate family
202.I accept that the Applicant has significant family ties in Australia having arrived in 2001 at the age of 41 with his daughter. They reunited with his sister and mother who are Australian citizens and his daughter is now also an Australian citizen.
203.The Applicant’s mother, who now suffers considerable health impediments noted above, arrived in Australia in 1996 with her daughter and she now relies upon her daughter for assistance with her daily needs. The family very much hopes that the Applicant will be allowed to remain in Australia to assist with the care of his mother and allow his sister to continue to work full-time and assist the family financially.
204.I note that the Applicant’s mother is now legally blind after an unsuccessful eye operation and because of her being uncomfortable she relies upon her daughter for 24 hour care, together with some assistance from the Chinese Community Social Services. I accept that should be Applicant be removed to China he will not see his mother again which will cause both considerable distress.
205.I accept that the Applicant’s priority, if allowed to remain in Australia, would be to care for his mother and that failure to revoke his visa cancellation will be traumatic for his entire family including his nephew but especially for his daughter for whom he has been almost entirely responsible for raising after his first wife left him.
206.His daughter has infertility issues but is planning to start a family. She very much wants her father to remain in Australia to assist her as she has found his support ‘ immeasurable’.
207.The Applicant was able to purchase a unit for himself and his daughter after only having been in this country for eight years and then he supported his daughter’s education.
208.I find the Applicant has contributed positively to the community and his family for many years and he has significant ties to Australia. It will be very traumatic for both him and his family should he be returned to China.
Other ties
209.I acknowledge the Applicant’s continual employment history since arriving in Australia, having worked in a curtain factory from 2001 to March 2002 and a furniture factory from March to December 2002. He was self-employed operating a market stall from 2001 to 2003, before operating a massage business from 2003 to 2014. I also take into consideration that the Applicant has developed ties through his employment and self-employment.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
(e)Potential prolonged or indefinite detention
The list of ‘other considerations’ at cl 9 (1) of the Direction is non-exhaustive and I may have regard to any other matter that is relevant to the Applicant’s circumstances. This invites consideration of ‘the human consequences’[74] that flow from a decision in this application; namely, the prospect of prolonged or indefinite detention in the event that the cancellation of the Applicant’s visa is not revoked.
[74] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, [3].
Section 189 (1) of the Migration Act provides that an officer with knowledge or a reasonable suspicion that a person in the migration zone is an ‘unlawful non-citizen’ must detain that person. As per s 198 (1) of the Migration Act, the officer is required to remove as reasonably practicable an unlawful non-citizen who asks in writing to be so removed.
Section 197C of the Migration Act provides:
197C Relevance of Australia’s non‑refoulement obligations to removal of unlawful non‑citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
(3) Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non‑citizen to a country if:
(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.
In the event of an adverse decision in this application, the Applicant would be able to apply for a protection visa, and would not be subject to removal while this application was being determined. However, if a ‘protection finding’ is made in relation to the Applicant, but his application for a protection visa is refused, then s 197C (3) of the Act would neither require or authorise his removal to China.
It is possible that the Minister may exercise his personal power under s 195A of the Act to grant a visa to the Applicant if he considers it is in the public interest to do so, or to determine that the Applicant is to reside at a specified place rather than being held in detention (as per s 197AB of the Act). Alternatively, the Applicant could be relocated to an alternate third country. However, there is no evidence in this matter to suggest that these options are being considered and as such, the most likely outcome is that the Applicant faces a period in immigration detention with no fixed end date.
In WKMZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Full Court of the Federal Court held as follows:[75]
‘The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a visa decision-maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law. As we explain below, for our own part we see no difficulty in attaching the adjective “indefinite” to such further period of detention, in circumstances where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom…
[75] [2021] FCAFC 55 [123].

An adverse decision in this application means the Applicant will be subject to a period of detention that can be fairly described as indefinite, with potentially significant consequences for his mental and physical health as a result. I attribute moderate, but not determinative, weight to this consideration in favour of revoking the cancellation of the Applicant’s visa.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: As noted above I have deferred consideration of the aspect so it weighs neutrally.
(b)extent of impediments if removed: I placed significant weight in favour of the Applicant;
(c)impact on victims: I place moderate weight upon this consideration favouring the non-revocation of the delegate’s decision; and
(d)links to the Australian community including the strength, nature, and duration of ties to Australia; I place significant weight upon this consideration mitigating against affirming the delegate’s decision , and no weight on the impact on Australian business interests; and
(e)prolonged or indefinite detention: I place moderate weight upon this consideration in favour of the Applicant.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
Primary Consideration 1 (Protection of the Australian Community), Primary Consideration 2 (Family violence committed by the non-citizen) and Primary Consideration 4 (Expectations of the Australian Community) each carry significant weight against the revocation of the cancellation decision.
Other Consideration (b) (Extent of impediments if removed) and Other Consideration (d) (Links to the Australian community) each carry significant weight in favour of revocation. Other Consideration (e) (Potential prolonged or indefinite detention) carries moderate weight in favour of the Applicant.
Other Consideration (c) (Impact on victims) carries moderate weight against the revocation of the decision to cancel the Applicant’s visa.
Having regard to the principles in cl 7 (2) of the Direction that primary considerations should ‘generally be given’ greater weight than the other considerations, and given that three primary considerations carry significant weight against revocation, I have found that the factors in favour of affirming the decision under review outweigh the factors that would favour revocation of the Applicant’s visa.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
Decision
The decision under review is affirmed.

I certify that the preceding 225 (two hundred and twenty-five) paragraphs are a true copy of the written reasons for the decision herein of A G Melick AO SC, Deputy President

............................[sgd]............................................
Associate
Dated: 6 September 2022

Date of hearing: 13-14 July 2022

Solicitor for the Applicant/Applicant:

Matthew Kenneally of Counsel

Carina Ford Immigration Lawyers

Solicitor for the Respondent
Christopher Orchard

Sparke Helmore Lawyers

Annexure A – List of Exhibits
EXHIBIT 1: G-documents
EXHIBIT 2: Supplementary G-documents
EXHIBIT 3: Statement of the Applicant dated 17 June 2022
EXHIBIT 4: Statement of the Applicant dated 8 July 2022
EXHIBIT 5: Statement of Ms CGDZ dated 16 June 2022
EXHIBIT 6: Statement of Ms CGDZ dated 6 July 2022
EXHIBIT 7: Statement of LL dated 16 June 2022
EXHIBIT 8: Statement of LL dated 16 June 2022
EXHIBIT 9: Statement of SL dated 17 June 2022
EXHIBIT 10: Report of Mr Warren Simmons dated 6 July 2022
EXHIBIT 11: Bundle of Country Information
EXHIBIT 12: Statutory declaration of JL dated 17 June 2022
EXHIBIT 13: Statement of HY dated 17 June 2022
EXHIBIT 14: Statutory declaration of CDC dated 16 June 2022
EXHIBIT 15: Statutory declaration of NK dated 16 June 2022
EXHIBIT 16: Statutory declaration of AYL dated 17 June 2022
EXHIBIT 17: Statutory declaration of LT dated 17 June 2022
EXHIBIT 18: Bundle of medical evidence of HY
EXHIBIT 19: Application to increase service for HY’s My Aged Care Package
EXHIBIT 20: Certificate of cancellation of household registration dated 17 October 2017 for HY
EXHIBIT 21: Certificate of baptism for the Applicant dated 27 April 2021
EXHIBIT 22: International Health and Medical Services for the Applicant between 29 May 2021-30 May 2022
Annexure B – Tribunal’s Decision
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL

)

)

No: 2022/4034

General Division

)

Re: CGDZ

Applicant
And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent
DECISION
TRIBUNAL:              A G Melick AO SC, Deputy President
DATE:   4 August 2022
PLACE:                    Melbourne
DECISION:Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review.
The Tribunal will provide written reasons for the decision to the parties as soon as practicable.

........................................[sdg].......................
Deputy President

[2022] AATA 2888

4 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2022/4034
General Division	)