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

[2024] AATA 3216

CGDZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 3216 (17 March 2024)

Division:                  GENERAL DIVISION

File Number:           2022/4034

Re:  CGDZ

APPLICANT

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

RESPONDENT

DECISION

Tribunal:                  AG Melick AO SC, Deputy President

Date:  17 March 2024

Place:  Melbourne

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review. In its place, the Tribunal substitutes a decision that there is another reason, under s 501CA(4)(b)(ii) of the Migration Act 1958, to revoke the mandatory cancellation of the Applicant’s visa.

......................[sgn]..................................................

AG Melick AO SC, Deputy President

Catchwords

MIGRATION – mandatory cancellation of applicant's visa – applicant is a citizen of the People’s Republic of China – applicant has substantial criminal record – violent crime in one incident – no other history of criminal activity – significant medical evidence of mental health conditions – whether there is ‘another reason’ to revoke mandatory cancellation decision – application of the ministerial direction – primary considerations – other considerations – decision under review set aside and new decision substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Cases

Ali v Minister for Home Affairs [2020] FCFC 109

FYBR v Minister for Home Affairs (2019) 272 FCR 454 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17

Secondary Materials

Convention relating to the Status of Refugees (Geneva 28 July 1951); [1954] ATS 5 Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (commenced 3 March 2023)

REASONS FOR DECISION

AG Melick AO SC, Deputy President

17 March 2024

INTRODUCTION

1.This is an application for a review of a decision to not revoke the cancellation of the Applicant’s Class BB Subclass 155 (Five Year Resident Return) Visa (the Visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Act).

BACKGROUND

2.On 1 October 2018 the Applicant’s visa was mandatorily cancelled under s 501(3A) of the Act by a delegate of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Respondent’) on the basis the Applicant did not pass the character test due to having a substantial criminal record (s 501(7)(c)) and that he was serving a full-time sentence of imprisonment.

3.The Applicant was invited to make representations to the Respondent regarding revocation of that decision and did so on 25 October 2018.

4.On 20 April 2020, the Respondent decided to not revoke the original decision and the Applicant was notified accordingly. The Applicant then sought judicial review of the non- revocation decision.

5.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.”

6.On 12 May 2022, the Respondent provided notice of a decision under s 501CA(4) not to revoke the mandatory cancellation of the Applicant’s visa. The Respondent was not satisfied that the Applicant passed the character test pursuant to s 501 of the Act and was not satisfied that there was another reason the cancellation should be revoked.

7.The Applicant appealed the Respondent’s decision of 12 May 2022, and the decision of the delegate was upheld by this Tribunal in a decision dated 4 August 2022.

8.Subsequently, on 16 August 2022 the Applicant appealed that decision to the Federal Court of Australia. On 6 October 2023, the Federal Court of Australia remitted the decision to the Tribunal as a result of consent orders agreed between the parties.

EVIDENCE

9.A hearing was held on 12 and 13 February 2024, during which both parties consented to the Tribunal adopting the evidence given at the previous hearing held on 13 and 14 July 2022. A summary of the evidence given at the hearing on 13 and 14 July 2022 and further evidence given at the hearing on 12 and 13 February 2024 follows:

Summary of Applicant’s oral evidence at 13 and 14 July 2022 hearing

10.The Applicant was born in July 1959 in Shanghai, the People’s Republic of China, where he grew up. 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 later separated in 1996. The Applicant raised their daughter, Ms S CGDZ.

11.The Applicant migrated to Australia with his daughter in 2001 to join his mother and sister.

12.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.

13.Before arriving in Australia, the Applicant 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.

14.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.

15.On 18 March 2016 the Applicant was convicted of several offences involving his second wife and her son, including intentionally cause serious injury. He was sentenced to a total term of imprisonment of six years and six months.

16.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.

17.The Applicant said that the ‘Courageous Communication’ course, allowed him to better understand other peoples’ perspectives and how his actions had affected them.

18.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.

19.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.

20.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.

21.At 63 years old, the Applicant was still taking mirtazapine. During the hearing on 13 and 14 July 2022, I found him to be a frank and honest witness who actively sought to address his mental health issues.

22.After having psychosis diagnosed, the Applicant said he felt he had made some progress but that such progress will be lost if he is forced to return to China.

23.The Applicant said that his life and home were here in Australia, having lived here for 20 years. The Applicant said he had only been back to China for a short time in 2007 and, when he left China, he sold everything. He stated that he does not consider China to be his home and he has limited family or connections there.

24.The Applicant’s daughter, Ms S CGDZ lives in Australia and has struggled with her father’s imprisonment.

25.The Applicant stated that his 86-year-old mother was in poor health and lived with his sister and her family. His mother had an aged care package, but the evidence was that the assistance she receives was not enough, and she needed constant care. His sister cared for his mother as well as working full-time. Both his mother and sister would like him to remain in Australia so that they can assist and look out for him, as well as so he could help care for their mother.

26.He is very close to his sister and gets on well with his brother-in-law and his nephew.

27.His daughter, mother and sister are the most important people in his 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.

28.Apart from his short visit in 2007 (the Applicant departed Australia on the last day of 2007 and returned to Australia on 23 January 2008), he had not been back to China for over 20 years, and he said there is 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.

29.The Applicant considered, 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 (Hukou). He has never lived or worked anywhere else in China.

30.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 a state pension.

31.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 baptised in 2021. He did not consider that he had a specific denomination and believed that he would be able to join any church if released into the Australian community.

32.He considered that it would be very difficult to practice his religion in China, as it was “very bad” when he was there 20 years ago, and he believed that it is still same.

33.The Applicant did not believe that he could get adequate mental health treatment in China as he believed there was a lack of mental health services. Furthermore, he believed that people with mental health issues are looked down upon, and, because of the stigma, are reluctant to seek treatment. He had no such concerns about seeking treatment in Australia.

34.He also believed that he might be punished in China for either his crimes and/or his conversion to Christianity.

35.The Applicant said he was 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.

36.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.1

37.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.2

1 Transcript, 7.

2 Transcript, 7.

38.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.

39.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.

40.The Applicant told the Tribunal that the screaming improved his nervous pain.3 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”.4

41.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.5 He also confirmed in evidence that he was taking medication, something he would continue to do if released into the community, as well as exercises.6

42.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.7 If this was to occur, he stated that he would seek the help of a doctor ‘immediately’.8

43.The Applicant expressed fear of seeking medical assistance for his mental health issues in China, claiming that he was scared to go into a hospital because of the risk of isolation and

3 Transcript, 8.

4 Transcript, 9.

5 Transcript, 9.

6 Ibid.

7 Ibid.

8 Ibid.

being “tied down to the bed”.9 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.10

44.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.11 He also described engaging in a number of training courses whilst in Shanghai, including cookery, brand design, calligraphy, massage and hairstyling.12 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.13

45.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.14

46.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.15 His maternal grandparents have both passed away.16

47.When asked by the Respondent’s solicitor 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.17 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.18

9 Transcript, 10.

10 Ibid.

11 Transcript, 12.

12 Transcript, 12-13.

13 Transcript, 13.

14 Transcript, 13.

15 Transcript, 16.

16 Transcript, 18.

17 Ibid.

18 Transcript, 19, 22-23.

48.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”.19

49.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.20 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.21

50.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…’.22 I interpolate here that China’s Hukou registration system requires citizens to register in one and only one place and establishes a framework for eligibility for social welfare, housing and public education based on regional units.

Applicant’s oral evidence at 12 and 13 February 2024 hearing

51.The Applicant gave some confusing evidence about an art design project which he submitted to the government. He claimed that his skills were very creative and world leading by using two pens to draw something at the same time.

52.I considered the above evidence together with other matters set out below as to clear indications of the Applicant’s disorganised thinking. I am satisfied that this is at least partly as a result of his schizophrenia.

19 Transcript, 25.

20 Transcript, 28.

21 Transcript, 31.

22 Transcript, 36-37.

53.When asked about the offence which triggered the cancellation of his visa, the Applicant said that at that time he had some alcohol, he wasn’t thinking properly and that he had some mental issues. He stated that he used a knife to stop his stepson from calling the police and got in trouble because of that. The Applicant stated that “I got in trouble because of that, I got charged with intent to cause injury, but injury actually resulted in recklessness, and I pleaded guilty to that charge”.

54.The Applicant stated that he has served his time and did not intend to cause the injury. He said that he did not remember telling a psychologist that his former wife caused injuries to herself. The Applicant’s daughter assisted in clarifying the translation and stated that it– ‘wasn’t self-harm, [she] accidentally hurt herself trying to get the knife from the Applicant’.

55.The Applicant stated that he was remorseful for his actions and that it caused him distress to think about what he did; he stated that he wants to ‘forget about it completely”. When questioned further about his remorse, the Applicant stated:

[O]f course I have remorse, I did a lot, I wasn’t able to have western style meals I just had bread and milk, there were 24 hours a day and I was sleeping 20. Chinese saying, things go in an opposite direction when it goes to the extreme. I have severe heart issue, with my training it requires – so the art I mentioned before, energy related art – I need to do training for that. This project is able to treat mental issues, in Australia there are 3000-3500 Australians suiciding each year. This finger dancing is good for recovery and helps me stay clear of mental issues – it also treats my heart issues.

We always talk about cursing the good things and bad things they do in a lifetime – each person’s lifetime is limited, what’s most important is what they do in a lifetime – for the 2-pen art, all artwork and training are known by the government, I’ve made mistakes, but I have contributed.

56.When asked by the Respondent during cross-examination what his current understanding of his mental health condition was, the Applicant detailed an incident that occurred a long time ago when he was in gaol:

[I]n the past when I went to the gym, I exercised for a bit and then I vomited and a voice came from me that was not my own, an animal’s voice – I have completely recovered, there was a bit of mental issue.

57.The Applicant confirmed that a psychiatrist had told him that he had schizophrenic disorder. He confirmed that it is easy to recognise when he starts to become unwell mentally:

yeah, that’s very easy, when I started vomiting, I know there is a mental issue, special vomiting not normal.

and also

other signs would be not being able to sleep, feeling extremely tired, thinking of ending my life.

58.Among other statements, the Applicant said he needed society to “make the right environment, I was just by myself, I would be daydreaming”. He said, “I have a severe heart problem, because of my project I stopped taking medication so I could give my all to the project.” He went on to say:

Because at the moment I am in detention and share the room with others, I couldn’t sleep well. The food is very bad, and it is not very fair if I ask for special treatment – I know the government is looking after me, because I need to do exercises, I need sleep. Sleep is important for me – I need to ensure basic conditions for life; I don’t want to leave my family.

59.He went on, “My Mum is a person with disabilities. She is blind, people deal with their family matters. What is big is about society: if I get special treatment in detention, they won’t be happy.”

60.The Respondent took the Applicant to an incident report contained in the Supplementary G-Documents. The incident occurred on 2 April 2023 in immigration detention and the following was recorded:

On the above date at approximately 10:34hrs the Compound Officer, Detainee Services Officer (DSO)[Redacted](not registered on portal) who was conducting regular checks watching the cameras on the monitor, observed detainee [Mr CGDZ], approached the corner of BASS 1 Computer room and started throwing multiple kicks in the direction of the printer and went towards the gym. DSO [Redacted] promptly attended the computer room and found few broken parts of the printer on the floor (photographs attached) and found the printer in state of beyond repair. He immediately informed FOM [Redacted] about the incident.

FOM [Redacted] immediately attended the BASS 1 Compound and spoke with [Mr CGDZ]. Duty FOM [Redacted] gave the direction to [Mr CGDZ] to come to the interview room for the chat but [Mr CGDZ] refused to follow the direction and said he was happy to chat with him in the gym. [Mr CGDZ] explained that all the digital machines are spying on him and are sent by the Chinese government to kill him, and he will break other digital devices if he finds that they are spying on him, starting with the television present in the compound. FOM [Redacted] tried to assure [Mr CGDZ] that no machines are spying on him.

[Mr CGDZ] has been exhibiting some unusual behaviour lately. He has been sighted screaming and shouting continuously in his compound, disturbing other detainees. On site mental health Nurse [Redacted] reviewed [Mr CGDZ] at approximately 11:30hrs and recommended that [Mr CGDZ] to be moved from his usual compound to a low stimuli environment to allow him to recuperate, and for his own safety and safety of others around him.

61.The Applicant stated that he remembered the incident but not the specific details of it. He did remember that he was asking for an ambulance because ‘he did not feel great’. He said that he ‘felt like society wasn’t being fair to [him]’. The Applicant also gave evidence that at the time of the incident on 2 April 2023, he couldn’t sleep, had mental issues and heart problems.

62.After being asked why he damaged the printer, the Applicant answered:

I was seeking help, I couldn’t get help, my physical sufferings already evened out the damages. What made me feel unfair is that I wanted to contribute to society, what did they give back to me, why would they attack me through the network, with that copy machine – there was more than 50 people bullshitting. Through the network, lots of people were attacking me, they were copied, that’s why I wanted to do something to the copy machine, why didn’t they ask me for compensation, I couldn’t overcome this copy machine, the whole world knows me.

63.The Applicant gave further confusing evidence about his art design project and suggested that one purpose of his intended contributions through his artwork was to create a sense of union between Australia and China:

all I wanted is Australia and China can have a sense of union instead of separation, a lot of people weren’t happy with me, that’s why I want to contribute through my artwork.

64.The Respondent took the Applicant to several IHMS Clinical Records from his time in immigration detention. A record dated 13 February 2023 recorded the Applicant as having ‘grandiose themes re being a famous/highly skilled artist’.23

65.The Applicant stated that the opinion expressed in the clinical record was not correct and that a major television network had interviewed him seven times. He stated that ‘I don’t want to get politics involved because that’s a dead-end. Now everyone is asking about me, I don’t want to disappoint the world.’

66.The Applicant was then taken to a clinical record dated 3 April 2023.24 The practitioner recorded the Applicant as saying:

[T]he printer is Iron and there is a part of the printer that can’t be turned off”.; “I was worried for my safety”; “there was a bird near his head that wasn’t going away”; “I

23 Remittal bundle, 1706.

24 Ibid, 1668.

was following gods instructions and your instructions, because I was sad the dragon smashed the tiger”; “it is also instructions of 9 news”; ”I don’t understand why Andrews went to CHina [sic] to say sorry but didn’t say sorry to me. THe [sic] labour party did the wrong thing. Because im in the hands of another party, Another”; “In the gym he[sic] gas can’t be turned off, Im not afraid of death because his heart might be published in the louvre museum.

The Applicant gave evidence that he did not remember saying these things to the psychiatrist.

Oral evidence of LL, the Applicant’s sister

67.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.25 She also gave evidence at the hearings held on 13 and 14 July 2022 and 12 and 13 February 2024.

68.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 a 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…’26

69.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.27

70.LL 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.28

71.During the hearing on 12 and 13 February 2024, LL gave further oral evidence that the Applicant did not want her to visit him in detention, and had delusions about his safety and the safety of those close to him.

25 Exhibit 7 and 8.

26 Transcript, 50.

27 Ibid.

28 Transcript, 51.

72.LL gave evidence that she was in regular contact with him, speaking every weekend but she was not aware that he was not taking his medication at the time of his offending. She explained that he sounded and seemed okay and was eating well. However, LL noted that she ‘knew he wasn’t that well’ and he asked to see doctors often in detention.

73.When asked how often she would see the Applicant if he was allowed to stay in Australia, the Applicant’s sister stated that she would see him once a week. She went into detail around the time of the Applicant’s offending and noted that he had tried to come and stay at her house two days before the incident.

74.When asked whether she believed the Applicant would take his medication, LL stated she believed he would, despite not taking it in detention. LL stated that he would not take it in detention because there was not a lot of education in detention and other medications were not being tried for him.

75.The Applicant’s sister confirmed that she is a qualified nurse, holding a bachelor’s degree in enrolled nursing as well as being a registered nurse.

Oral evidence of Ms S CGDZ, the Applicant’s daughter

76.Ms S CGDZ gave evidence at the hearing held on 12 and 13 February 2024.

77.Ms S CGDZ gave evidence that she owns her property and lives with her husband and daughter in a three-bedroom home.

78.When asked where her father would live if he was allowed to remain in Australia, Ms S CGDZ gave evidence that her father would temporarily live with her aunt (Ms LL) and would then be relocated to Ms S CGDZ’s rental property, which is north of Melbourne.

79.Ms S CGDZ gave evidence that while the Applicant would be living alone in the property, she lives close by and would be able to check on him. She acknowledged that he would need a lot of assistance from his family.

80.Ms S CGDZ gave evidence that if her father had trouble living by himself, she ‘would have discussion with [her] family to look after him’. If this eventuated, she said the family would have a discussion about whether her father could live with his mother and sister (Ms LL).

81.When asked about alcohol and trauma related factors, and records of the Applicant not taking medication, Ms S CGDZ confirmed that she is very committed to taking her father to a psychiatrist, checking up on him, and stated that he is more receptive when it comes from family.

82.The Tribunal then recalled Ms LL and put a series of questions directly to her, during Ms S CGDZ’s evidence. The Tribunal asked Ms LL if she would help care for her brother:

Ms LL: yes absolutely, I can’t look after him after him if he’s in China – I have to look after my mother, so I am always at home – our house is big enough

Deputy President: who lives there?

Ms LL: my husband, son and mother. I would help him get settled into the community as he has been outside of community for more than 10 years

Deputy President: has he lived with you before?

Ms LL: yes, him and Ms S CGDZ lived with us when they arrived

Deputy President: any problems? Did your husband or son have any concerns with him living with you?

Ms LL: we did well, but he wanted his own space, and my husband was born in Australia – Australia thinking but still wanted to support my family. He asked if I wanted to come today, I said know it’s important you do your work.

83.The Tribunal then asked Ms LL about the Applicant’s artwork. Ms LL stated that:

it’s a bit delusional, he believes he is a well renowned artist, but I think it is consistent with his medical disorder, he develops strange ideas and becomes fixated on them, ever since he has started this government project – I don’t think his art is very good.

In relation to the Applicant’s delusions, Ms S CGDZ said she believed that if he is in a more supported environment and taking his medication the Applicant ‘will become more in control’.

Oral evidence of Mr SL, the Applicant’s brother-in-law

84.Mr SL is the husband of the Applicant’s sister, Ms LL. Mr SL lodged a statutory declaration dated 17 June 2022 which was tendered into evidence.29 Mr SL gave evidence at the hearing on 13 and 14 July 2022.

29 Exhibit 9

85.Mr SL gave evidence regarding the impact of the Tribunal proceedings on his wife. He stated that it had ‘caused her a great deal of anxiety’ and that ‘her health has suffered’.30 He went on to describe the Applicant’s dependence on Ms 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…31

86.Ms SL also reiterated his concerns, as expressed in his statutory declaration, regarding the Applicant’s ability to form friendships.32

Oral evidence of Mr Warren Simmons, psychologist

87.Mr Warren Simmons, psychologist, provided a report in this matter dated 4 July 2022, which was tendered into evidence.33 Mr Simmons also appeared at the hearing held on 13 and 14 July 2022 to give evidence.

88.Mr Simmons opined that the Applicant had 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’.34

89.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.35

30 Transcript, 54.

31 Transcript, 55.

32 Ibid.

33 Exhibit 10.

34 Transcript. 63.

35 Transcript, 64.

90.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.

91.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.36

92.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.37

93.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

36 Transcript, 64.

37 Transcript, 65.

do with accommodation, employment or other supports. And I think that without some ability or structure (indistinct) there will be a decompensation again.38

94.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.

95.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 the solicitor for the Respondent, 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.

96.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’.

97.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.

38 Transcript, 65.

98.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 he was in another relationship that broke down, or if the Applicant continued drinking alcohol to excess.

99.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.

100.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.

101.The Tribunal also received written statements in support of the Applicant. Those statements are summarised as follows:

Mr JL, the Applicant’s nephew

102.Mr 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.39

39 Exhibit 12.

103.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.

104.He said that the Applicant was very close to family that care deeply for him and that will always be there to support him.

105.He was concerned the Applicant’s mother needs to be cared for, and that his mother (Ms LL) would not be able to continue to support both his grandmother and the Applicant if the Applicant is returned to China.

Ms HY, the Applicant’s mother

106.Ms HY, the Applicant’s mother, gave evidence at the hearing held on 13 and 14 July 2022, she 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. Ms HY’s statutory declaration dated 17 June 2022 was tendered in evidence.40

107.Ms HY 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.

108.During the hearing Ms HY stated that 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.

109.Ms HY said it will be ‘heart-breaking’ if the Applicant cannot return to his home because, owing to her health, 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.

40 Exhibit 13.

Mr CDC, partner of the Applicant’s daughter

110.Mr CDC 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. Mr CDC’s statutory declaration dated 16 June 2022 was tendered in evidence.41

111.Mr CDC noted that Ms S 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.

Ms NK

112.Ms NK is the best friend of the Applicant’s daughter (Ms S CGDZ) and is also a child of immigrant parents from China. Ms NK’s statutory declaration dated 16 June 2022 was tendered in evidence.42

113.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.

114.Ms NK said 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

115.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.43 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.

41 Exhibit 14.

42 Exhibit 15.

43 Exhibit 16.

Ms LT

116.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. Ms LT 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.44

LEGISLATIVE FRAMEWORK

117.Section 501(3A) of the Act provides that the Respondent must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and

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

118.The character test is defined in s 501(6) of the Act. Section 501(6)(a) provides that a person does not pass the character test if the person has a ‘substantial criminal record’. For the purposes of s 501(6)(a), a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.45

119.The discretion to revoke the mandatory cancellation of visas is conferred by s 501CA(4) of the Act. Relevantly, this provides that:

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

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

(b)  the Minister is satisfied:

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

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

44 Exhibit 17.

45 Migration Act 1958 (Cth) s 501(7)(c).

120.If the cancellation decision is not revoked by a ministerial delegate, the Tribunal’s jurisdiction is enlivened.46

121.I am satisfied that on 25 October 2018 the Applicant made the representations required by s 501CA(4)(a) of the Act.

ISSUES BEFORE THE TRIBUNAL

122.There are two issues presently before the Tribunal:

(a)Whether the Applicant passes the character test; and if not,

(b)Whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa.

Does the Applicant pass the character test?

123.The Tribunal finds that the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) for the mandatory cancellation of the visa to be revoked as the Applicant has been sentenced to a term of imprisonment of 6 years and 6 months (G Docs, G3 44-45) and therefore has a ‘substantial criminal record’ as defined by s 501(7)(c) of the Act.

Is there another reason to revoke the mandatory cancellation of the Applicant’s Visa?

124.In making its decision, the Tribunal must comply with any directions made under s 499(2A) of the Act. In this case, Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99) has application. The Tribunal must comply with Direction 99.47

125.The principles contained in paragraph 5.2 of Direction 99 provide a framework within which the Tribunal should approach its task of deciding whether to revoke the mandatory cancellation decision:

46 Ibid s 500(1)(ba).

47 Ibid s 499(2A).

(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 noncitizens 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.

(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

(6)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 8.5(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.

126.Paragraph 6 provides that informed by the principles in paragraph 5.2, the Tribunal must take into account the considerations identified in paragraphs 8 and 9 where relevant.

127.Paragraph 8 of Direction 99 sets out five primary considerations being:

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

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

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

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

(5)   expectations of the Australian community.

128.Paragraph 9 of Direction 99 sets out a non-exhaustive list of other considerations, as follows:

(a)legal consequences of the decision;

(b)extent of impediments if removed;

(c)impact on victims;

(d)impact on Australian business interests.

129.In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.48

CONSIDERATION

Protection of the Australian community – 8.1. of Direction 99

130.In considering the protection of the Australian community, the Tribunal has regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

131.The Applicant’s offending, as recorded on the National Criminal History Check, released 18 June 2019 and dated 19 June 201949 is as follows:

48 Direction 99 at 7.

49 Remittal Bundle, RB4, 45.

Court	Date	Offence	Sentence
Melbourne County Court	18 March 2016	Intentionally Cause Serious Injury	63 Months Imprisonment
Melbourne County Court	18 March 2016	Reckless Conduct Endanger Life	3 Years Imprisonment. 2 Years of Sentence Concurrent
Melbourne County Court	18 March 2016	Recklessly Cause Injury	12 Months Imprisonment. 9 Months of Sentence Concurrent

133.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:50

-  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.

50 Remittal Bundle, RB5, 47.

-  [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

134.In determining this consideration, I have regard to:

(a)      the nature and seriousness of the non-citizen’s conduct to date; and

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

The nature and seriousness of the Applicant’s conduct – 8.1.1 of Direction 99

135.The Applicant was charged with ‘Intentionally Cause Serious Injury’, ‘Reckless Conduct Endanger Life’ and ‘Recklessly Cause Injury’ and as these charges arose out of the same incident, I will consider their effect holistically.

136.Sub-paragraph (a) of paragraph 8.1.1 of the Direction provides that, without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.

137.There is no evidence of any sexual crime. However, as outlined in the circumstances of the Applicant’s offending, 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. It was very fortunate that the actions of the Applicant’s stepson prevented fatal consequences.

138.Sub-paragraph (c) of paragraph 8.1.1 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 that I take into account as required by sub paragraph (c) of paragraph 8.1.1 of Direction 99.

139.All of the offending, serious as it undoubtedly was, occurred on the same occasion. I therefore note that, as this was an isolated incident, 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.

140.I do not consider factors (b), (f) (g) and (h) of paragraph 8.1.1(1) of Direction 99 to apply to the Applicant’s offending or circumstances.

141.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 – 8.1.2 of Direction 99

142.Sub-paragraph 8.1.2(1) provides that when considering the risk to the Australian community, a decision maker 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 of it being repeated is unacceptable.

143.Sub-paragraph 8.1.2(2) provides that when considering the risk to the Australian community, a decision maker must have regard to the below factors on a cumulative basis:

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

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

(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 the 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

144.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.

145.Taking into account the offences referred to above committed by the Applicant, and the serious nature of the injuries inflicted upon the Applicant’s stepson, 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.

The likelihood of the non-citizen engaging in further criminal or other serious conduct

146.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 written and oral evidence from Mr Warren Simmons in the hearing held on 13 and 14 July 2022. 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.51

147.Mr Simmons noted that the Applicant had been diagnosed with schizotypal disorder by Associate Professor Andrew Carroll, a forensic psychiatrist, and he was also diagnosed with an adjustment disorder by Dr Matthew Barth, psychologist. 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.

148.Mr Simmons also reported that there had been an episode of frank psychosis, noted by Dr Clare McInerney, psychiatrist. However, Mr Simmons initially 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.

149.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 offence 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.

150.In evidence in chief Mr Simmons noted that there were protective factors that would reduce the risk of reoffending including the support by 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.

151.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?

51 Exhibit 10.

Mr Simmons: Yes.

Deputy President: 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?

Mr Simmons: Yes.

…

Deputy President: Now, at the moment he’s not in any relationship, therefore you would say the risk is low?

Mr Simmons: M’mm.

Deputy President: 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?

Mr Simmons: 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?

Mr Simmons: That may become a factor.

…

Deputy President: You agree, do you not, that because of his disorder he has little insight into his behaviour?

Ms Simmons: 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?

Mr Simmons: Yes.

Mr Orchard: In this case, it wasn’t benign, was it? Mr Simmons: No, it was certainly a violent incident.

Mr Orchard: 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?

Mr Simmons: 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.52

152.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.

153.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.

154.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. That re-offending might potentially, in that particular context, be of a violent nature. But this conclusion is necessarily conditioned on whether the Applicant is compliant with prescribed medications to manage his mental health condition.

Conclusion: Primary Consideration 1

155.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.

156.However, there are other factors that contribute to my assessment of his risk of re-offending. They are his age: he turns 65 in two months’ time. Additionally, if returned to the community, he will initially be living in his daughter’s rental property near to her, and she will be regularly checking on his welfare as well as supporting his mother. It seems unlikely to me that the Applicant will form another romantic relationship. All these factors contribute to my assessment of the overall risk of him reoffending as low.

52 Transcript, 71-72.

157.Nevertheless, should he engage in similar conduct again it may result in serious 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 – 8.2 of Direction 99

158.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.

159.I find that the Applicant’s conduct constituted family violence and as set out above I find that conduct to be very serious.

160.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.

161.Notwithstanding, as set out above in the verbatim extracts of his jumbled thoughts in some answers, I formed the view that the Applicant is 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.

162.I also note that he has paid $45,000 in compensation to his former stepson.

163.I accept that CGDZ 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.

164.I note that there was no evidence given during the hearing held on 13 and 14 July 2022 about the level of his alcohol consumption prior to the offending but Associate Professor 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.

165.I note that report, on the one hand, is now almost nine years old and, on the other, must be read in the additional context of the Applicant being in immigration detention for an extended period with no access to alcohol.

166.I accept that the Applicant has undertaken some treatment for his mental health issues including completing some rehabilitation programs and is receiving counselling whilst in detention. I also note that the evidence suggests his schizotypal condition is such that it is to be monitored rather than treated. However, I remain concerned that his delusional behaviour can cause him to interrupt the taking of his prescribed medication although this will hopefully be addressed by his sister who is a qualified nurse and is determined to ensure he maintains his treatment.

Conclusion: Primary Consideration 2

167.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.

168.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.

169.I attribute significant weight to this consideration against revoking the cancellation of the Applicant’s visa.

Primary Consideration 3: Strength, nature and duration of ties to Australia – 8.3 of Direction 99

170.Primary Consideration 8.3 requires that:

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

(2)  In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

(3)   The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

(4)   Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision- makers must have regard to:

a) the length of time the non-citizen has resided in the Australian community, noting that:

i.  considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their

formative years, regardless of when their offending commenced and the level of that offending; and

ii.   more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

iii.   less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.

8.3.(1) Impacts on immediate family members in Australia

171.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.

172.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 her work to assist the family financially.

173.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 the Applicant be removed to China he will not see his mother again which will cause both considerable distress.

174.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.

175.His daughter who had infertility issues has now started a family. She very much wants her father to remain in Australia to assist her as she has found his support ‘immeasurable’.

176.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.

8.3(2) Ties to Australia

177.I note and give weight to the fact that the Applicant’s mother, sister, daughter and nephew all of whose evidence appears above are Australian citizens. It is clear that all are very close to the Applicant and are not only strongly supportive of him remaining in Australia, but are all prepared to assist him if he is allowed to remain.

8.3.(3) Strength, duration and nature of family and social links

178.The Applicant arrived in Australia, with his daughter in 2001 to join his mother and sister and as noted above, his mother, sister and daughter are all Australian citizens and hence have the right to remain in Australia. He has very close and strong relationships with his family members although it seems because of his incarceration and detention as well as the nature of his mental health, he does not appear to have close ties outside of his family.

8.3(4) Other ties

179.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. Through his employment he has contributed to the national economy and the community. There is evidence in statements of friends, some of which are referred to above, of the regard in which he is held by them.

Conclusion: Primary Consideration 3

180.I find the Applicant has contributed positively to the community and his family for many years and he has significant ties to Australia. The ties to his family are very strong and enduring and it will be very traumatic for both him and his family should he be returned to China. I consider that Primary Consideration 3 weighs heavily in favour of the Applicant remaining in Australia.

Primary Consideration 4: Best interests of minor children – 8.4 of Direction 99

181.Paragraph 8.4(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 8.4(2) and 8.4(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to 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.

182.Paragraphs 8.4.2(a)-(h) if 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:

(a)  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);

(b)  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;

(c)  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;

(d)  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;

(e)  whether there are other persons who already fulfil a parental role in relation to the child;

(f)   any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

(g)  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;

(h)   evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

183.Only one minor child in Australia appears to be relevant in terms of this part of the Direction, on the evidence before me. The Applicant now has a grandchild who is an Australian citizen, and his daughter wishes him to be involved in her child’s upbringing. If the Applicant cannot remain in Australia, he will be unable to form anything but a distant relationship with that grandchild or any subsequent grandchildren. I find that, despite the Applicant’s mental health condition, that it would be beneficial for any such children to have a close relationship with their grandparent. However, bearing in mind that no such relationship currently exists. I only place moderate weight upon this consideration in favour of the Applicant being allowed to stay.

Conclusion: Primary Consideration 4

184.This primary consideration carries slight weight in favour of revoking the cancellation of the visa, because the relationship between the Applicant and his grandchild has not yet developed.

Expectations of the Australian Community – 8.5 of Direction 99

185.The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.53 The Direction further explains:

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 [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.54

186.With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:

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

53 Paragraph 8.5(3) of the Direction.

54 Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.

187.The Direction also states that non-revocation of a mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:55

(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.

188.Obviously, there are serious character concerns relating to the Applicant’s acts of family violence and commission of a serious offence against his then wife. In FYBR v Minister for Home Affairs [2019] FCAFC 185, 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.

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 8.5(2)(c) of the Direction, being commission of serious crimes against women.

55 Paragraph 8.5(2) of the Direction.

Conclusion: Primary Consideration 5

189.I consider that in this case the expectation counts heavily against the Applicant as Australians have a low tolerance of criminal conduct by non-citizens, and the Australian community expects that those who commit serious crimes should have their visa cancelled. I attribute significant weight to this consideration against the revocation of the cancellation of the Applicant’s visa.

Other considerations

Legal consequences of decision – 9.1 of Direction 99

190.This consideration requires an assessment of whether Australia has non-refoulment obligations in relation to the Applicant. Paragraph 9.1(2) and (3) of the Direction provides:

(2)  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.

(3)  International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.

The Applicant’s evidence concerning Australia’s non-refoulment obligations

191.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 that 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.

192.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”).56 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.

193.Non-refoulement obligations are also found in other instruments. Paragraph 9.1.1 of the Direction relevantly provides:

(1) Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.

(2)   Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non- refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non- citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.

(3) Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns 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

56 See Ali v Minister for Home Affairs [2020] FCFC 109.

of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.

194.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.57 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.

195.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

196.I note that the Applicant does not belong to any formal Christian denomination, although he gave evidence that his beliefs will entitle him to join almost any Christian church. The DFAT Report notes:58

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.

197.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

57 See Minister for Home Affairs v Omar [2019] FCAFC 188.

58 DFAT Information Report People’s Republic of China dated 22 December 2021.

excuse for such behaviour and opines that repression and persecution will continue aided by the tools of modern technology.

198.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.

199.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.’

200.I am not satisfied, on the materials placed before me at both hearings, that the Applicant is at any significant risk of being persecuted in China because of his religious beliefs. I do accept that there is some risk which may be increased should there be an increase in persecution of Christians within China.

(b)  Risk of ‘double jeopardy’ punishment

201.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

202.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.

203.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, I would not refer to them in my decision.

204.I have, however, considered matters put before the Respondent’s 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.

205.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].

206.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.

Conclusion of Consideration 9.1: Legal consequences of decision

207.Despite the risks outlined above, without any significant evidence suggesting that the Applicant is at risk for persecution for his religious belief or at risk of double jeopardy in relation to his offence I consider these risks only weigh moderately in favour of allowing the Applicant to remain in Australia.

Extent of impediments if removed – 9.2 of Direction 99

208.This consideration requires a decision-maker to consider the impediments a non-citizen is likely to face in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) if they are removed from Australia to their home country. In doing so, a decision maker is required to take into account:

a)    the non-citizen’s age and health;

b)    whether there are substantial language or cultural barriers; and

c)    any social, medical and/or economic support available to them in that country

209.Paragraph 9.2(1)(a): 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 anaemia, gastritis, dental complications and haemorrhoids. In addition to these physical health conditions, he is now aged 64.

210.Paragraph 9.2(1)(b): 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.

211.Paragraph 9.2.1(c): 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 he contended that 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 (Hukou) which would allow him to live there.

212.The Applicant submitted that real estate in Shanghai is very expensive and after legal expenses he expects to have less than A$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 Shanghai.

213.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 64 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.

214.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. However, I accept his evidence that his uncle has stated he wants nothing to do with him because of his criminal behaviour.

215.I accept, as is set out in official materials before the Tribunal, 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.

216.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.

217.I note the Applicant has resided in Australia for over 20 years with the 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 reintegrate 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.

218.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. The Direction requires me to consider impediments on return in the context of what is generally available to other citizens of China. However, I must also take into account any special features of a non- citizen supported by independent evidence which might be relevant. That is the case here. I accept that there is a significant risk that his mental health condition will deteriorate in China and as such I attribute significant weight to this consideration in favour of revocation.

219.As noted above, I consider there is some risk of the Applicant suffering discrimination on account of his religion if returned to China, although I do not regard that risk as being significant.

Conclusion of Consideration 9.2: Extent of impediments if removed

220.I consider that the totality of the impediments outlined above including the Applicant’s mental health issues and his social isolation (which would exacerbate his mental health vulnerability) weigh heavily in favour of revoking the mandatory cancellation of the visa.

Impact on victims – 9.3 of Direction 99

221.This Other Consideration 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.

222.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.

Conclusion of Consideration 9.3: Impact on victims

223.In the absence of any direct evidence of the impact on the victims apart from the obvious trauma suffered by them, I consider that there must be evidence before me that they are aware of the visa decision and have expressed a view about it. There is no evidence of that before me. Accordingly, I attribute neutral weight to this consideration.

Impact on Australian business interests – 9.4 of Direction 99

224.The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. I note, as set out above, that he has a good work history since he arrived in Australia before he was incarcerated. However, I do not consider this employment history rises to the level contemplated by this consideration in the Direction. Therefore, no weight can be allocated under paragraph 9.4. of the Direction.

CONCLUSION

225.Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied that there is another reason, pursuant to the Direction, to revoke the mandatory cancellation of the Applicant’s Visa. As noted at paragraph [114], the Applicant does not pass the character test.

226.In considering whether there is another reason to exercise the power afforded by s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:

227.In respect of primary consideration 1, the protection of the Australian community from criminal or other serious conduct, I find that weighs against restoring the visa. However, there is a split in this weight. There is no doubt the offence was serious and merited a significant custodial sentence, which CGDZ has served. On the other hand, I am satisfied

that there is a low risk of him re-offending, provided he manages his prescribed mental health medication.

228.In respect of primary consideration 2, whether the conduct engaged by the non-citizen constituted family violence, I find that it did. It involved injury to the Applicant’s then wife and stepson. This primary consideration weighs against revoking the mandatory cancellation of the visa.

229.In respect of primary consideration 3, the strength, nature and duration of ties to Australia, I find this weighs strongly in favour of restoring the visa. The Applicant’s mother, daughter, son-in-law, and grandson all reside in Australia and are citizens. He has no close family in the country of reference.

230.In respect of primary consideration 4, the best interests of minor children in Australia, I find this weighs slightly in favour of the Applicant. However, because he has not yet met his (only at this stage) Australian grandchild, this does have an affect on the impact on that child of whether the visa is restored or not.

231.Primary consideration 5, the expectations of the Australian community, constitute expectations which are stipulated in the Direction. This weighs against revoking the mandatory cancellation of the visa.

232.In respect of the other considerations, that relating to the legal consequences of the decision I have found weigh slightly in favour of the Applicant. The consideration relating to the extent of impediments CGDZ would face if returned to China weighs heavily in favour of restoring the visa for two reasons: his diagnosed mental health conditions and the fact that, by their nature, they would be exacerbated if he was denied the support readily being offered by his close family. I have found the other two considerations, relating to the impact on victims and the impact on Australian business interests, to weigh neutrally.

233.The Direction requires me to consider these considerations individually and cumulatively. A simple weighing up exercise would mitigate against allowing the Applicant to remain in Australia. However, the Tribunal is not conducting a mathematical exercise. I consider this particular case has features which require a consideration of complex factors leading up to the Applicant’s offending, including his undiagnosed schizophrenia. There is some evidence

of a psychosis in his remarks to the detention centre officers after he damaged the computer. CGDZ has strong family support intent on ensuring that he is compliant with his medication and treatment. I place particular weight on the evidence of Mr Warren Simmons who is an experienced psychologist who has examined CGDZ. I accept Mr Simmons’ conclusion that the Applicant suffers from an ingrained schizotypal disorder which is essentially benign and that, absent him finding himself in a deteriorating intimate relationship, it is unlikely to develop into something more. I consider the likelihood, now, of the Applicant establishing such a relationship is slim. The obvious, if inoffensive, delusions that he harbours, and which manifested in some of his oral evidence would strongly militate against such an eventuality.

234.I am satisfied that the Applicant has strong family support and consider their evidence that they are committed to providing accommodation but, more importantly, regular support for him, both consistent and compelling. CGDZ would have an extremely low quality of life if forced to return to China and, absent him forming a new intimate relationship, I consider his risk of re-offending very low. CGDZ’s singular offending, serious as it was, occurred in a particular context whilst he was suffering a psychotic episode. The Applicant is not a person who has traits of criminality, nor any long history of offending.

235.My conclusion therefore is that there is another reason, as provided for in s 501CA(4)(b)(ii) of the Act, to revoke the mandatory cancellation of the visa, and so it follows that the decision under review is set aside.

DECISION

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review. In its place, the Tribunal substitutes a decision that there is another reason to revoke the mandatory cancellation of the Applicant’s visa under s 501CA(4)(b)(ii) of the Migration Act 1958.

I certify that the preceding 235 (two hundred and thirty-five) paragraphs are a true copy of the reasons for the decision herein of AG Melick AO SC, Deputy President

.........................[sgn]...............................................

Associate

Dated: 17 May 2024

Datesof hearing:	12 and 13 February 2024
Applicant:	Self-Represented
CounselfortheRespondent:	Adam Cunynghame
SolicitorsfortheRespondent:	Sparke Helmore