Chen and Minister for Home Affairs (Migration)
[2018] AATA 4459
•30 November 2018
Chen and Minister for Home Affairs (Migration) [2018] AATA 4459 (30 November 2018)
Division:GENERAL DIVISION
File Number(s): 2018/5351
Re:Weidong Chen
APPLICANT
Minister for Home AffairsAnd
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:30 November 2018
Place:Sydney
The Reviewable Decision is affirmed.
......................[sgd]..............................................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – section 501 visa cancellation – Criminal Justice Stay visa – failure to pass character test – substantial criminal record – supply commercial quantity of prohibited drug – whether another reason why visa cancellation should be revoked – application of Direction 65 – protection of the Australian community – best interests of minor children affected by the decision – expectations of the Australian community – other considerations – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
Candemir and Minister for Immigration and Border Protection (Migration) [2017] AATA 531
Chen v R [2018] NSWCCA 106
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Lau and Minister for Immigration and Border Protection (Migration) [2017] AATA 138
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Tahuriorangi and Minister for Immigration and Border Protection (Migration) [2018] AATA 2158YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member Linda Kirk
30 November 2018
BACKGROUND
Mr Weidong Chen (‘the Applicant’) was born in China on 10 October 1990 and is 28 years old.[1] He is in a de facto relationship with Ms Danhong Wu. They have two sons aged seven and five years, both of whom were born in Australia.[2]
[1] G01, 3.
[2] G02, 88.
The Applicant arrived in Australia on 28 April 2007 as the holder of a Student (Subclass 571) visa.[3] The Applicant’s visa was cancelled on 6 February 2009 for failure to comply with the conditions of the visa. He was an unlawful non-citizen in Australia until 22 August 2012 when he was granted a Temporary Criminal Justice Stay (Subclass 951) visa (‘Criminal Justice visa’).[4]
[3] G02, 34.
[4] G02, 57.
On 4 March 2016, the Applicant was convicted in the District Court of New South Wales of supply of a prohibited drug in a commercial quantity and was sentenced to five years imprisonment with a non-parole period of three years.[5] This sentence was in relation to an offence committed on 2 August 2012 for which the Applicant was found guilty after trial by jury.[6]
[5] G02, 22.
[6] G02, 23.
The Applicant appealed his criminal conviction to the NSW Court of Criminal Appeal, which dismissed his appeal on 1 June 2018.[7] The Applicant filed an application for special leave to appeal the Court of Criminal Appeal's judgment to the High Court.[8] Information on the High Court's website indicates that the High Court dismissed the Applicant's application for special leave to appeal his criminal conviction on 16 November 2018.[9]
[7] Chen v R [2018] NSWCCA 106.
[8] G02, 137-155.
[9]
On 7 March 2018 the Applicant lodged an application for a Permanent Protection (subclass 866) visa.[10] He claimed to fear harm if returned to China due to his political and religious beliefs. On 12 April 2018 the Department determined that the Applicant did not engage Australia’s protection visa obligations as country information demonstrated that there is not a real risk for him should he choose to practise Christianity in China. It was further found that there is not a real chance that he will experience serious harm due to his political activism, his criminal history in Australia, being an unmarried father, and/or being a person who has an overseas criminal conviction.[11] On 23 July 2018 the Migration and Refugee Division of the Administrative Appeals Tribunal (‘the Tribunal’) affirmed the Department’s decision.[12]
[10] G02, 98-129.
[11] G02, 159-168.
[12] G02,169-182.
On 16 March 2018, the Applicant was issued with a Notice of Visa Cancellation (‘the Mandatory Visa Cancellation Decision’) under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that he did not satisfy the character test in s 501(6) of the Act by virtue of the term of imprisonment referred to above.[13] On this date the Applicant was serving a sentence of full-time imprisonment at Silverwater Correctional Centre in New South Wales.
[13] G02, 73-77.
On 4 April 2018, the Applicant made a request for revocation of the Mandatory Visa Cancellation Decision and made representations to the Minister in support of his revocation request.[14]
[14] G02, 82-94.
On 7 September 2018, a delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision under s 501CA(4) of the Act (‘the Reviewable Decision’).[15]
[15] G02, 5-19.
On 15 September 2018, the Applicant applied to the Administrative Appeals Tribunal
(‘the Tribunal’) for review of the Reviewable Decision.[16]
[16] G01, 3-4.
The matter was heard in Sydney on 8 and 9 November 2018. The Applicant attended the hearing in person and was represented by a migration agent. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The material before the Tribunal consists of:
·Respondent’s Statement of Facts, Issues and Contentions dated 31 October 2018;
·s 501 documents (G-documents) (G01 to G03) pages 1-243;
·Supplementary G-documents (SG1-SG9) pages 1-1250;
·Statement of Ms Danhong Wu dated 5 November 2018 (Exhibit A1);
·Email from Applicant’s representative to the Tribunal dated 5 November 2018 (Exhibit A2);
·Letter from High Court of Australia confirming hearing before the Full Court of Chen v The Queen (S181/2018) at 9:30am on 16 November 2018 (Exhibit A3).
The Tribunal has reviewed all of the evidence before it and refers to all relevant evidence below.
LEGISLATIVE FRAMEWORK
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Subsection 501(6)(a) relevantly provides that a person does not pass the character test if the person has a substantial criminal record. Relevantly, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: s 501CA(1).
Subsection 501CA(4) provides:
(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.
Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
ISSUES FOR DETERMINATION
The principal matter for determination is whether the discretion contained in s 501CA(4) of the Act should be exercised, such that the Mandatory Visa Cancellation Decision is revoked. There are two issues to be considered in determining whether this discretion should be exercised:
1)Does the Applicant pass the ‘character test’ contained in s 501 of the Act?; and
2)Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
MINISTERIAL DIRECTION NO. 65
When considering whether to revoke the cancellation decision, the Tribunal is required under s 499(2A) to have regard to the Minister’s Direction relevant to s 501CA, Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’).
The Preamble to the Direction provides a framework for the guidance of decision-makers considering cancellation of a visa. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[17]
[17] Direction No. 65 at [6.1(1)].
The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The latter set the framework within which the individual considerations set out in Parts A, B and C of the Direction are set.
The first paragraph of the General Guidance provides:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
The following Principles are set out in paragraph 6.3:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under s 501(3A).
In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case.[18] The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
[18] Direction No. 65 at [8(1)].
Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include Primary considerations and Other considerations. The Primary considerations are:
13.1 Protection of the Australian community from criminal or other serious conduct;
13.2 The best interests of minor children in Australia affected by the decision; and
13.3 Expectations of the Australian community.
Other considerations are:
14.1International non-refoulement obligations
14.2Strength, nature and duration of ties [to Australia];
14.3Impact on Australian business interests;
14.4Impact on victims
14.5Extent of impediments if removed.
Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[19] Paragraph 8(3) provides that ‘both primary and other considerations may weigh in favour of, or against… cancellation of the visa’. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[20]
EVIDENCE BEFORE THE TRIBUNAL
[19] Direction No. 65 at [8(2)].
[20] Direction No. 65 at [8(4)] and [8(5)].
Applicant’s visa status history
In his oral evidence at the hearing, the Applicant told the Tribunal that he came to Australia on a student visa in 2007 but he ceased studying when the school he was attending became bankrupt and closed down. The Applicant’s visa was cancelled on 6 February 2009 for failure to comply with visa conditions.[21] He told the Tribunal he did not know that his visa had expired and he only became aware of this at the end of 2010 / early 2011. From February 2009 until his arrest in August 2012 he worked to earn money for his family.
[21] G02, 16.
The Applicant said that he considered applying for a protection visa in November 2011 when his de facto wife lodged her protection visa application. However she told him that they should apply separately so that they would have two chances of being granted a protection visa. He did not apply for protection until March 2018 because following his arrest in August 2012 he held a Criminal Justice visa. He did not attend the protection visa interview with the Department in April 2018 because he was very ill. He saw a nurse at Villawood but did not provide a medical certificate to the Department.
Criminal History
A National Police Certificate dated 23 May 2018[22] issued in respect of the Applicant records that on 8 October 2015 a jury returned a verdict of guilty for the offence Supply prohibited drug >= commercial quantity. On 4 March 2016 he was sentenced by the District Court of New South Wales to five years imprisonment commencing on 20 March 2015 with a non-parole period of three years.
[22] G02, 22.
In his sentencing remarks, Judge Buscombe outlined the circumstances of the Applicant’s offending. On 31 July 2012 police intercepted a telephone conversation between the Applicant and another person regarding ‘the sourcing of something’. Further telephone conversations between the Applicant and the other person were intercepted in early August 2012. On 2 August 2012 police observed the Applicant enter premises and shortly after exit the premises with two other persons. When police approached the Applicant he attempted to run from them and was arrested. One of the persons dropped a bag which was found to contain 4.985 kilograms of pseudoephedrine with a wholesale value of between $20,000 and $30,000 per kilogram.
The Judge was satisfied that the Applicant was seeking to find persons who could supply him with pseudoephedrine for the purposes of supplying it to others, and that he was aware there was a commercial quality of the drug in the possession of his co-offender.[23] The Judge accepted evidence provided by Dr Coglan, a chemical expert, who explained that pseudoephedrine, is a precursor from which methylamphetamine can be manufactured.[24]
[23] G02, 24-25.
[24] G02, 25.
In relation to the seriousness of the offence, Judge Buscombe found:
The offence is a serious one reflected in the maximum penalty and the stipulation of a standard non-parole period. The quantity of the drug involved was substantial, just under 5 kilograms although the purity was not high.
…
The value of the drug was substantial. The [Applicant’s] role appears to be that of someone able to facilitate the finding of suppliers and buyers of pseudoephedrine. Certainly he was more than a street dealer and courier, but not at the upper end of the supply chain.
There is no suggestion he was in some way financing what was occurring. It is an overwhelming inference that he was engaging in the offence for financial reward, although there is no evidence as to what that reward may have been if the transaction had not been thwarted by the police. I have assessed the objective seriousness as a little below the mid-range.[25]
[25] G02 at 25-26.
In relation to the Applicant’s remorse in relation to the offence, Judge Buscombe noted:
The psychologist’s report recorded that the [Applicant] continued to assert his innocence and he said that he had simply been with the wrong people at the wrong time. There is clearly no evidence of remorse.[26]
[26] G02, 27.
In determining the appropriate sentence to be imposed, the Judge observed:
Persons who engage in drug trafficking involving commercial quantities of prohibited drugs must receive substantial sentences in order to deter themselves and others from engaging in such offences. Given the lack of acknowledgement of his guilt, I do not consider that his prospects of rehabilitation are any higher than reasonable.[27]
[27] G02, 30.
In imposing a sentence of five years, the Judge found there were special circumstances in the Applicant’s case due to his young age at the time of the offending.[28]
[28] G02, 30.
Applicant’s responsibility and remorse for criminal behaviour
During his oral evidence at the hearing, the Applicant maintained that he is not guilty of the offence and that he has never offended. He told the Tribunal that he was only suspected of supplying drugs and that the police did not have evidence to establish that he was involved in supply. He said that his only mistake was to associate with a person who he met at work and he was wrongly implicated in this person’s offending. He claimed that at his criminal trial the interpreter was not properly certified, and as a consequence his evidence was not accurately interpreted. He told the Tribunal that his application for special leave to appeal to the High Court is yet to be determined.
Risk of re-offending
In a Personal Circumstances Form completed and signed by the Applicant on 4 April 2018, the Applicant stated in answer to the question What do you think is the likelihood that you may re-offend now?
I never offended and I will not re-offend.[29]
[29] G02, 91.
During his oral evidence, the Applicant was asked what was the risk of him re-offending in the future to which he replied, ‘impossible’. He said that the word ‘re-offend’ implies that he had committed an offence in the past. As he was not guilty of the offence for which he was convicted it is impossible that he will re-offend. He told the Tribunal that he will not touch anything bad in the future and will look after his family.
Relationship with his defacto wife
In the Personal Circumstances Form, the Applicant described his relationship with his de facto wife:
We have been together for many years and we have had two young boys together.[30]
[30] G02, 87.
In his oral evidence, the Applicant said that he met his wife on 13 July 2008 and they started to live together after one year.
The Applicant was asked whether he left his wife after the birth of their first son. He said they separated for approximately four to five months after she lodged her application for a protection visa. He moved back with her in August 2012 once his Criminal Justice visa was granted and lived with her until he went to gaol.
Relationship with his children
In the Personal Circumstances Form, the Applicant described his relationship with his two sons:
I am the natural biological father of these boys. We have been very very closely attached to one another. My sons have been visiting me with my de facto wife…my role in their lives has been utterly important.[31]
[31] G02, 89.
In relation to the impact of the cancellation of his visa on his children, the Applicant stated in the Personal Circumstances Form:
The adverse impact is enormous and beyond description. My sons cannot live a normal life without their father and being their father I must retain a valid visa in order to start a new or normal life.[32]
[32] G02, 89.
In his oral evidence, the Applicant told the Tribunal that he has a good relationship with his children and they love each other. When he was in Silverwater they would visit him every week with his de facto wife. His children ask him why he doesn’t come home and he tells them that he is working to earn money to buy them things and pay for their studies. They speak on the phone every day and they visit him every week at Villawood.
Employment and plans for the future
In his oral evidence the Applicant told the Tribunal that before his arrest he worked in the gyprock plastering trade. He has skills in renovations and has worked on some large apartment constructions. If he is released he will work to earn money to support his family. If he cannot work he will stay home with the children and his wife will work.
The Applicant told the Tribunal he cannot return to China because he is not familiar with life there and he likes it in Australia. He does not know where he will go if he is returned to China. He has not been in contact with his parents for three years. They objected to his relationship with his wife and he has argued with his parents over their relationship.
Evidence of Applicant’s de facto wife – Ms Danhong Wu
The Applicant’s de facto wife provided a written statement dated 5 November 2018[33] that was translated at the Tribunal hearing by the Mandarin interpreter.
[33] Exhibit A1.
In her statement she described her relationship with the Applicant:
Since I confirm my relationship with him he has look after me carefully. When I'm sick he bring me to see the doctor and buy medication and urge me to take medication on time. When I'm unhappy he try every possible way to appease me, to make me happy. Whenever I encounter something I don't understand he will accompany me to think about it and then give me guidance. In my mind he has been - he has great image in me. When we have our own children his image to me has been greater and stronger, and he's the pillar of myself and children in the life and in our spirit.[34]
[34] Extract of Transcript of Proceedings, Thursday 8 November 2018 page 2, lines 43-47 and page 3 lines 1-5.
She described the Applicant’s role as father and husband:
In the family Weidong is a good husband, good father. He's concern and love myself and two children. He has shoulder all the financial resource in the family. He never bring back his negative movement to home. Even during the daytime when he work, however tired or however he feels irritated he just bear with it alone.[35]
[35] Extract of Transcript of Proceedings, Thursday 8 November 2018 page 2, lines 36-41.
In relation to the impact on their children of their father’s absence she said:
My two children urgently think that their father can go home. They are becoming puzzled, confused why their father cannot go home… I can only repeatedly tell them that the reason why father cannot go home is that he needs to work, and the workplaces are very far, and the children not only one time told me that they don't want the father to work, they want the father to go home.[36]
[36] Extract of Transcript of Proceedings, Thursday 8 November 2018 page 3, lines 13-23.
She described the impact on her of the Applicant’s incarceration:
In the beginning when he was confined in the gaol I thought I would have been collapsed. I could not withhold. I look after two children alone in their life or psychologically. I have felt great pressure every day. I live in extreme uneasy and anxious - and anxiety.[37]
…
Often I feel anxious and irritated. I don't know how to be a good mother. Because the father cannot live with us I feel my responsibility has been more - has been greater. Not only I have to do all the households I have to teach two children at the same time to maintain great image of their father in their mind, but I always feel that I'm not doing well.[38]
…
Every day I'm in a greater uneasiness. I don't know when our family can be united. In the face of a puzzle future I feel I don't have the direction in life, there is no meaning. I don't - I started to feel that I don't know how to bring to the children the positive momentum.[39]
[37] Extract of Transcript of Proceedings, Thursday 8 November 2018 page 3, lines 8-12.
[38] Extract of Transcript of Proceedings, Thursday 8 November 2018 page 3, lines 30-36.
[39] Extract of Transcript of Proceedings, Thursday 8 November 2018 page 4, lines 11-15.
In relation to the Applicant’s offending, she told the Tribunal that he met someone who was ‘not good’ and he will never associate with this person again. She was asked about the Applicant’s conviction and she said that he was ‘suspected’ of being involved in the sale of drugs but he was not involved. In her view he does not have a character issue as he has been punished and served his time and has complied with his parole conditions. He should be given the opportunity to repent or change.
She described her husband as a person of responsibility with a kind heart, diligent and a sense of self-improvement. He is strict with the children and a good teacher for them. He is disciplined and provides a ‘sense of security’. She told the Tribunal that when the Applicant was in Silverwater and later in Villawood she and the children would visit him twice a week and they speak on the phone every day. The children use a smart phone to have video chats with their father.
The witness was asked about the history of her and her sons’ visa status in Australia. She said that she arrived in Australia on a student visa in April 2008. Her visa ceased on 13 December 2010.[40] She applied unsuccessfully for a protection visa for herself and her first son in November 2011. The decision to refuse to grant her a protection visa was affirmed by the Tribunal and an appeal to the Federal Court of Australia was dismissed. Her request for Ministerial Intervention was denied.[41] She and the children are currently the holders of bridging visas. A protection visa application submitted for her second son was refused by the Department. This decision is currently the subject of a review application to the Migration and Refugee Division of the Tribunal.[42]
[40] G02, 16.
[41] G02, 16.
[42] G02, 16.
She told the Tribunal that she worked between 2008 and 2011 selling international phone cards and as a waitress. She has not worked since the birth of their first child. Since the Applicant has been incarcerated she has lived on savings of approximately $16,000 and has borrowed approximately $40,000 from fellow parishioners at her church. She cannot work because she has to take the children to school in the morning and collect them at 3:30pm, and she cannot find employment that allows her to work between 10am and 3pm.
Statements of Support
The Applicant sought to rely on the following statements of support / character references:
·Letter dated 29 October 2015 signed by Zuyue Chen, Executive President, Australia Fujian Association (Sydney) Incorporated;[43]
·Letter dated 1 November 2015 signed by Liqiang Chen, Chairman of Committee, Australia Fuqing Association (Sydney) Incorporated;[44]
·Letter dated 19 December 2015 from Ming Shi (unsigned);[45]
·Letter dated 3 January 2016 signed by Xin Qiang He.[46]
CONSIDERATION AND REASONS
[43] SG3, 1211-1212.
[44] SG4, 1215-1217.
[45] SG5, 1221.
[46] SG6, 1222.
(1) Does the Applicant pass the character test?
On 4 March 2016, the Applicant was convicted in the District Court of New South Wales of supply of a prohibited drug in a commercial quantity and was sentenced to five years imprisonment with a non-parole period of three years.[47] This sentence was in relation to an offence committed on 2 August 2012 for which the Applicant was found guilty after trial by jury.[48] This conviction has been the subject of appeal to the NSW Court of Criminal Appeal and an application for special leave to appeal to the High Court, both of which were dismissed. At the date of the notification of the cancellation of his visa the Applicant was serving his sentence on a full time basis at Silverwater Correctional Centre.
[47] G02, 22.
[48] G02, 23.
On the basis of the evidence before it, the Tribunal is satisfied that the Applicant has a substantial criminal record (s 501(7)(c)) and does not pass the character test in s501(6)(a) of the Act and was at the relevant time serving a full-time sentence of imprisonment in a custodial institution for an offence against a law of a State. Accordingly, his visa was lawfully cancelled pursuant to s 501(3A) of the Act. As the Applicant does not pass the character test, it follows that the first condition for the exercise of the discretion contained in s 501CA(4)(b)(i) of the Act is not satisfied.
It remains for the Tribunal to determine whether, in accordance with s 501CA(4)(b)(ii) of the Act, “there is another reason why the original decision should be revoked”.[49]
[49] Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [31].
(2) Is there ‘another reason’ to revoke the Mandatory Visa Cancellation Decision?
Sub-section 501CA(4)(b)(ii) has been interpreted by North ACJ in Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.[50]
[50] Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38].
The Tribunal must consider any mitigating circumstances that may militate in favour of setting aside the decision not to revoke the Mandatory Visa Cancellation Decision. In doing so, it must take into account the Considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.
Primary Consideration 1 – Protection of the Australian community
Primary Consideration 1 of Part C is the Protection of the Australian community. Paragraph 13.1(1) of the Direction provides:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on 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.
Paragraph 13.1(2) directs that decision-makers should also give consideration to:
(a) the nature and seriousness of the non-citizen's conduct to date; and
(b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c) The sentence imposed by the courts for a crime or crimes;
(d) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
…
Nature and seriousness of the Applicant’s conduct to date
In assessing the seriousness of the Applicant’s criminal offending and the risk posed should he commit further offences, the Tribunal notes that the Applicant has been convicted of only one offence in Australia being the conviction in the District Court of New South Wales on 4 March 2016 for supply of a prohibited drug in a commercial quantity for which he was sentenced to five years imprisonment with a non-parole period of three years.
The Respondent submits that the supplying of prohibited drugs, particularly in commercial quantities, is a very serious and insidious offence, due to both the widespread harm and devastation it inflicts on the Australian community and the difficulty associated with its detection.[51]
[51] Respondent’s SFIC at [29].
Having regard to paragraph 13.1.1(1)(a) and paragraph 13.1.1(1)(b) of the Direction, the Tribunal finds that although the Applicant’s offences were neither violent or sexual crimes, the sale and supply of prohibited drugs in a commercial quantity, particularly pseudoephedrine, is intrinsically a serious offence.
In Tahuriorangi and Minister for Immigration and Border Protection (Migration) [2018] AATA 2158 (10 July 2018) at [45] the Tribunal commented on the seriousness of this type of offending ‘involving the large-scale and commercial movement or trafficking of these substances commencing at a high-end level and moving downwards through the sale and supply of these unlawful substances into the general community.’ Senior Member Tavoularis referred to the following passage from the decision of Deputy President Kendall in Lau and Minister for Immigration and Border Protection (Migration) [2017] AATA 138 at [46]:
Mr Lau was found to be in possession of methylamphetamine. The trial evidence shows that he intended to sell or supply those drugs in the Australian community. Given the well documented devastation inflicted on the community as a result of the production, distribution and use of methylamphetamine, this is a most serious crime. Mr Lau’s failure to acknowledge the consequences of his actions is inexcusable in these circumstances.
Senior Member Tavoularis concluded:
The often catastrophic health consequences for gullible, naïve and addicted consumers of these substances frequently involves very serious illnesses and related maladies. There is nothing passive or non-violent about the frequently disastrous effects of these substances, not just on individuals who consume them but on families forced to deal with the unpredictable conduct of a family member affected by them.
The Tribunal endorses the findings of the Tribunal in these cases and finds that it indicates the seriousness of the offence for which the Applicant was convicted.
The Tribunal has had regard to the sentencing remarks of Judge Buscombe who noted the seriousness of the offence as reflected in the maximum penalty of 20 years and his assessment of ‘the objective seriousness as a little below the mid-range’. The Tribunal also has had regard to the remarks of the Judge in relation to the Applicant’s conduct and role in the offence, particularly his observation that the evidence showed the Applicant’s role in the offence to be ‘more than a street dealer and courier, but not at the upper end of the supply chain.’ The Tribunal further notes the Judge’s observations that the quantity of drugs involved was substantial.
The Tribunal finds that the seriousness of the Applicant’s offence and its impact on victims, including vulnerable members of the community, is such as to render his criminal offending very serious for the purposes of this Primary Consideration, which is concerned with the protection of the Australian community.
Having regard to paragraph 13.1.1(1)(c) and paragraph 13.1.1(1)(d) of the Direction, the Tribunal notes that the Applicant was sentenced to a term of imprisonment for five years. It notes that custodial sentences are imposed as a last resort, and finds that the sentence imposed indicates the seriousness of his conduct.
The Tribunal notes the assessment of Judge Buscombe of the objective seriousness of the offence ‘as a little below the mid-range’. Having regard to these remarks and the evidence before it, the Tribunal finds that the Applicant’s conduct to date has been in the mid-range of seriousness.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must have regard to paragraph 13.1.2 of the Direction:
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).
The Respondent contends that the nature of the harm to individuals or the Australian community would be extremely serious and unacceptable should the Applicant further engage in conduct of the kind for which he was convicted.[52] It points to the potential harm on drug users, including psychological and/or physical injury or even death, and the impact on their families and the community.[53]
[52] Respondent’s SFIC [35].
[53] Respondent’s SFIC [35].
Having regard to paragraph 13.1.2(2)(a) of the Direction, the Tribunal finds that offences relating to the sale or supply of a prohibited drug are intrinsically serious. The potential impact on and harm to individuals and the community if the Applicant were to reoffend is considerable, and includes economic, psychological and physical harm. The Tribunal finds that should the Applicant continue to engage in conduct similar to that which was the subject of his previous conviction, this could potentially cause significant harm to individuals or the Australian community.
The Respondent argues that the Applicant’s complete lack of acknowledgement of his criminal conduct and lack of remorse in relation to his offending shows a lack of insight and a complete lack of rehabilitation.[54] In these circumstances, there is a significant risk that the Applicant will re-offend.
[54] Respondent’s SFIC [40]-[41].
The Tribunal has had regard to the sentencing remarks of Judge Buscombe who noted that the psychologist’s report recorded that the Applicant continued to assert his innocence and ‘[t]here is clearly no evidence of remorse.’ In his oral evidence, the Applicant maintained he is innocent of the offence for which he was convicted following a finding of guilt beyond reasonable doubt by a jury.
In considering the likelihood of the Applicant engaging in further criminal or other serious conduct, the Tribunal has also had regard to the findings of Judge Buscombe that ‘[g]iven the lack of acknowledgement of his guilt, I do not consider that his prospects of rehabilitation are any higher than reasonable’.
The Tribunal has had regard to the impact the Applicant’s family, particularly his two young sons, will likely have on his rehabilitation and likelihood of re-offending. It finds that whereas the Applicant claims that he intends only to work and provide for his family should his visa be reinstated, he committed the offence at a time when he was residing with his wife and their first born son, and therefore the needs of his family are not factors which mitigate the risk of the Applicant re-offending.
Based on the evidence before it, the Tribunal finds that there is a moderate risk of the Applicant re-offending. It makes this finding having particular regard to the Applicant’s lack of remorse and/or insight into his offending and the Judge’s assessment that his prospects of rehabilitation are not higher than reasonable.
For the reasons above, and applying the guidance in paragraphs 13.1(1) and 13.1(2) of the Direction, Primary Consideration 1 weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 – The best interests of minor children in Australia affected by the decision
Primary Consideration 2 of Part C in paragraph 13.2(1) requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of the Applicant’s children. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.[55]
[55] Direction No. 65 at [13.2(2)].
In considering the best interests of the child, paragraph 13.2(4) provides:
In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and the 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 the 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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The evidence before the Tribunal is that the Applicant has two sons aged five and seven years. Having regard to paragraph 13.2(4)(b) the Tribunal finds that as the boys are both young there is the potential for the Applicant to play a positive parental role in their lives until they reach adulthood.
The Respondent accepts that this Primary Consideration generally weighs in favour of revocation.[56] However, it contends that limited weight should be given to this consideration in circumstances where the Applicant has played a limited role in the day to day care of the children and when he has been absent from the family home for more than three years of his sons’ lives which, in the case of his five year old son is most of his young life.[57]
[56] Respondent’s SFIC [51].
[57] Respondent’s SFIC [52].
Having regard to paragraph 13.2(4)(c), the Tribunal notes the evidence before it that when the Applicant was in prison and Villawood, his wife took his sons with her to visit him every week and they maintained regular contact via phone and video calls. The evidence before the Tribunal, including that provided by the Applicant and his wife, is that the Applicant needs to remain in Australia in order to provide emotional support and parental guidance to their sons. However, having regard to paragraph 13.2(4)(a), the long periods of the Applicant’s absence from the family home is such that his involvement in the boys’ daily life has been very limited.
Having regard to paragraph 13.2(4)(d), the Tribunal finds that the Applicant’s sons would benefit from him remaining in Australia and being involved in their daily care and upbringing and providing emotional and financial support together with their mother. The evidence before the Tribunal is that the Applicant has a strong emotional bond with his sons. Accordingly, if he is removed from Australia the children will be negatively impacted by his absence and the distance between them.
Having regard to paragraph 13.2(4)(e) the Tribunal has had regard to the evidence that the Applicant’s wife does not work and is therefore able to provide constant care to her sons when they are not at school or day care. There is limited evidence before the Tribunal of the contribution the Applicant has made to his sons’ upbringing in the limited time he has been able to spend with them during their lives. The Tribunal finds that the Applicant’s de facto wife is the primary carer of their sons and that the involvement of the Applicant in their upbringing and development has been limited.
For the reasons above, and applying the guidance in paragraph 13.2(4) of the Direction, Primary Consideration 2 weighs in favour of revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 3 – The expectations of the Australian community
Primary Consideration 3 of Part C in paragraph 13.3(1) states:
(1) The Australian community expects non-citizens to obey Australia’s laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Direction does not refer to studies or other evidence which may guide the decision-maker in relation to public attitudes and values in determining the expectations of the Australian community: Candemir and Minister for Immigration and Border Protection (Migration) [2017] AATA 531 at [61]. This is, therefore, a matter ultimately for the decision-maker to determine having regard to guidance found in existing jurisprudence.
The Respondent submits that this Primary Consideration weighs heavily against the Applicant because he has breached the trust of the Australian community by remaining in Australia unlawfully and through his serious offending.[58] The community would expect a person in the Applicant’s circumstances to show acknowledgement and remorse for his offending and its impact on the Australian community and attempt to rehabilitate himself.[59] The fact that he has not supports a finding that the Australian community would expect his visa to remain cancelled.
[58] Respondent’s SFIC [59].
[59] Respondent’s SFIC [58].
In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, Justice Mortimer observed in relation to the consideration detailed in paragraph 13.3 of the Direction:
[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] … It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]).
Noting Her Honour’s observations in YNQY v Minister for Immigration and Border Protection that this Primary Consideration inevitably weighs against revocation in that it operates effectively as a deeming provision in relation to expectations of the community, regardless of the existence or otherwise of any objective basis for this, the Tribunal finds that the consideration weighs against revocation of the mandatory cancellation decision.
The Tribunal observes that Principles 2 and 3 of the Direction, which recognise the expectation of the Australian community that a person who commits serious crimes should have their visa cancelled, are reflected in paragraph 13.3 and Justice Mortimer’s finding that this is effectively a deeming provision in relation to the non-revocation of a visa cancellation decision in relation to a person who fails to satisfy the character test.
The Tribunal finds that the expectation of the Australian community is likely that the Applicant’s serious offending while an unlawful non-citizen, coupled with him taking no steps to regularise his visa status for a period of three and a half years, are such that he should forfeit the privilege of remaining in Australia and that the cancellation of his visa should not be revoked.
Accordingly, the Tribunal finds that Primary Consideration 3 weighs against the revocation of the Mandatory Visa Cancellation Decision.
Other considerations
While the Primary considerations carry particular weight, the Direction acknowledges at paragraph 14 that Other considerations must be taken into account by the decision-maker where relevant.
The five Other considerations are summarised in paragraph 14(1):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
International non-refoulement obligations
The Tribunal must consider whether the Applicant is at risk of harm of the nature that raises Australia’s non-refoulement obligations under the 1951 Convention on the Status of Refugees as amended by the 1967 Protocol (Refugee Convention).
In his representations in support of his request for revocation, the Applicant claimed that he would face persecution if returned to China. He did not add anything to his protection visa claim which was rejected by the Department on 12 April 2018 and comprehensively re-considered and the Department’s decision affirmed on review by the Migration and Refugee Division of the Tribunal on 23 July 2018. This Tribunal has had regard to the reasons in this earlier Tribunal decision and is satisfied that Australia’s non-refoulement obligations are not engaged in relation to the Applicant.
Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen has arrived as a young child, noting that:
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Having regard to paragraph 14.2(1)(a) of the Direction, the Tribunal notes that the Applicant arrived in Australia as a minor aged 16 years and that he has lived in Australia for the past 11 and a half years. The Tribunal has had regard to the contribution made by the Applicant during this period and finds that there is little evidence to demonstrate that this contribution was positive. The Applicant studied for two years until his visa was cancelled in February 2009 and he then remained in Australia as an unlawful non-citizen for three and a half years until he was granted the Criminal Justice visa in August 2012. From this point on the Applicant has either been on bail, in prison or in immigration detention. The Tribunal notes the Applicant’s evidence is that he worked to support his family in the plastering trade but finds there is no evidence to corroborate this claim.
The Applicant sought to rely on a number of statements of support / character references which refer to his contribution as a volunteer, including taking care of seniors and children. The Tribunal has placed limited weight on these for the reason that they are dated late 2015 or early 2016 at the time the Applicant was to be sentenced for his offence and do not mention the offence for which he was convicted.
Having regard to paragraph 14.2(1)(b) of the Direction, the evidence demonstrates that the Applicant has significant ties to Australia, particularly his wife and two sons who will be adversely impacted by the non-revocation of the cancellation decision. However his family members do not hold substantive visas and do not have the right to remain indefinitely in Australia. Therefore they are not individuals for whom the effect of non-revocation is a relevant consideration.
There is no evidence before the Tribunal to indicate that the Applicant’s family would not be able to visit him in China. His wife and children are Chinese nationals and the protection visa applications of his wife and first son were rejected and the protection claims of his second son are currently the subject of review by the Tribunal of an adverse decision made by the Department. During his incarceration in prison and in immigration detention the Applicant’s family have maintained regular contact with him via phone and other forms of electronic communication and this could continue if he returns to China.
On the basis of the evidence before it, the Tribunal finds that this other consideration does not weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
(1) Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivers an important service in Australia.
The Applicant’s employment prior to his incarceration was working in the gyprock plaster trade. There is no evidence of a relevant ‘employment link’ and the Applicant does not claim that any Australian business interests would be affected by his removal to China.
Impact on victims
Paragraph 14.4(1) of the Direction states:
(1) Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Tribunal finds that there is no evidence of any potential impact of a decision not to revoke the Mandatory Visa Cancellation Decision on the victims of the Applicant’s criminal activity.
Extent of impediments if removed from Australia/not permitted to return
The Direction states in paragraph 14.5(1) that:
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(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.
The evidence before the Tribunal is that the Applicant has family in China, including his parents and a sister.[60] He claims he has had no contact with them for three years and if he returns to China he will need to establish himself there without any support. However it is open to the Applicant to re-establish contact with his family if he requires assistance on return to China to find accommodation and work.
[60] G02, 90.
Having regard to paragraph 14.5(1)(a) of the Direction, the Tribunal notes that the Applicant is aged 28 years and has experience and skills in the gyprock plaster trade that should qualify him to find employment in the building industry in China. In his representations in support of his request for revocation of the cancellation and at the hearing the Applicant did not claim to be suffering from any medical conditions that would be impacted by his return to China.
Having regard to paragraphs 14.4(1)(b) and (c), the Tribunal notes that the Applicant lived in China until the age of 16 years and is fluent in the language and familiar with the culture and way of life. The Applicant will have the same access to welfare benefits as Chinese nationals, including health care and social security benefits. The Tribunal finds that any obstacles the Applicant may encounter on his return to China are not insurmountable.
The Tribunal finds that the impediments the Applicant will face if he is returned to China do not weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration 1 weighs against revocation of the Mandatory Visa Cancellation Decision. The offence for which the Applicant was convicted is serious and the risk of him re-offending is moderate. The Applicant has demonstrated no remorse for his criminal conduct and continues to deny he committed the offence for which he was convicted. He has exhibited no insight into his criminal offending and its impact on vulnerable individuals and the Australian community.
Primary Consideration 2 weighs in favour of revocation of the Mandatory Visa Cancellation Decision. It is in the best interests of the Applicant’s sons for him to remain in Australia and to have the opportunity to maintain an emotional bond with their father and for him to contribute to their upbringing and development.
Primary Consideration 3 weighs against revocation of the Mandatory Visa Cancellation Decision for the reasons outlined above, particularly the effective deeming operation of this consideration and the Applicant’s demonstrated willingness to flout Australian immigration law by remaining in Australia and working while unlawful. In these circumstances the likely expectation of the Australian community is that the Applicant’s visa remains cancelled.
In regard to the Other Considerations, the strength, nature and duration of the Applicant’s ties to Australia do not favour revocation of the Mandatory Visa Cancellation Decision as the persons to whom the Applicant has close ties do not have an indefinite right to remain in Australia. The extent of the impediments the Applicant will face if he is removed from Australia also do not weigh in favour of revocation as he has family members in China with whom he could reconnect, and the work skills and language ability to allow him to gain employment and to re-establish a life in the country he lived in for the first 16 years of his life.
In summary, the Tribunal finds that Primary Considerations 1 and 3 weigh in favour of non-revocation and Primary Consideration 2 weighs in favour of revocation of the Mandatory Visa Cancellation Decision. None of the Other Considerations weigh in favour of revocation.
Accordingly, the Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
DECISION
The Reviewable Decision is affirmed.
I certify that the preceding 128 (one hundred and twenty eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
...........................[sgd].........................................
Associate
Dated: 30 November 2018
Date(s) of hearing: 8 & 9 November 2018 Advocate for the Applicant: G Chen, Aussie Sino Angel Pty Ltd Solicitors for the Respondent: T Aviram, Clayton Utz
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