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

[2022] AATA 4720

Chen and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4720 (3 August 2022)

Division:GENERAL DIVISION

File Number(s):2022/4082      

Re:Feiteng Chen   

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Dr N A Manetta

Date:3 August 2022

Date of written reasons:        12 September 2022

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.

...............[Sgnd]................................................

Senior Member Dr N A Manetta

Catchwords

MIGRATION – mandatory cancellation of visa – applicant most recently commits serious sexual offences – primary considerations all favour affirming decision under review – applicant has wife and dependent elderly mother – applicant has spent 32 years in Australia – wife dependent on husband for support – elderly mother a present burden on wife – decision under review set aside

Legislation

Migration Act, 1958 (Cth)

Cases

Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119

Secondary Materials

Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member Dr N A Manetta

12 September 2022

1. After I delivered my oral reasons, I received a request for written reasons, which I now publish. These are the oral reasons I delivered, with minor amendments only.

2. This is an application by Mr Feiteng Chen seeking a review of the respondent’s delegate’s decision dated 12 May 2022. By this decision the respondent’s delegate refused to revoke the mandatory cancellation of Mr Chen’s resident-return visa (subclass 155). This cancellation had taken place earlier, and mandatorily, under section 501(3A) of the Migration Act, 1958 (Cth) (the “Act”).

3. The delegate conducting the internal review addressed first, as he or she was required to, whether Mr Chen passed the so-called “character” test given a lengthy term of imprisonment he had received following certain offences he had committed: see section 501CA(4)(b)(i). The decision by the delegate that Mr Chen did not was undoubtedly correct given the provisions in section 501(6)(a) and (7)(c). Having reached this decision, the delegate was then required under the Act to consider whether there was “another reason” warranting the revocation of the visa cancellation: see section 501CA(4)(b)(ii). In considering this second matter, the delegate was required, as I am, to apply Direction 90[1] issued under section 499 of the Act.

   [1] Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

4. Having weighed the various discretionary considerations he or she was required to consider under the Direction, the delegate decided there was not “another reason” for the mandatory cancellation to be revoked.  Accordingly, the delegate declined to revoke the visa cancellation. Mr Chen’s application to this Tribunal seeks to have that decision set aside.

   TRIBUNAL’S TASK

5. Hearing the matter afresh on the evidence adduced before me, I must address the same two questions addressed by the delegate. As I have said, the first question, whether Mr Chen passed or failed the so-called “character test”, was correctly decided by the delegate in the circumstances. The second question was the only question of substance before me. In addressing the second question, I, too, must apply the Direction.

6. The Tribunal proceeds de novo in matters like these. It follows that I do not simply review the delegate’s decision for error. Rather, I decide the entire matter afresh, making findings of fact, drawing inferences, and weighing the various considerations under the Direction for myself. This manner of proceeding implies that I may set aside the decision under review notwithstanding the absence of any discernible error in the delegate’s reasons if that is the correct or preferable decision on the evidence before me; equally, I may affirm the decision under review notwithstanding the presence of an error in the delegate’s reasons is that is the correct or preferable decision on the evidence before me.

   STATEMENT OF CONCLUSION

7. After applying and weighing the considerations in Direction 90, I have decided that they favour, on balance, revocation of the cancellation decision. I have concluded, accordingly, that there is “another reason” for the cancellation decision to be revoked. It follows that I should set aside the decision under review and substitute a decision that Mr Chen’s visa cancellation be revoked.

   BACKGROUND FACTS

8. I now set out the background facts in summary form and then turn to explain my reasons, including my assessment of the various considerations required to be considered under Direction 90. At the hearing before me, Mr Poynder represented Mr Chen; Ms Thompson the respondent.

9. Mr Chen is a Chinese citizen who was born in 1967 in mainland China. He came to Australia from there in 1990 as a young man, aged 22. I understand he arrived on a student visa. He obtained permanent residence in 1993 as I understand matters. He had earlier married his wife, Ms Truong, in 1992. His mother, who emigrated to Australia in the 1990s, lived with Mr Chen and Ms Truong until his incarceration. Mr Chen’s mother continues to live with Ms Truong. She is elderly, in her eighties now, and requires considerable support and assistance.

10. Mr Chen’s work history in Australia first saw him involved in the manufacturing of bathtubs in a factory for some two years. After that he joined his wife in a clothing business. He did this work until his incarceration.

11. The couple have not had any children together, but Ms Truong has an adult child of her own, a Mr Yip, who provided a statement and gave oral evidence. Mr Yip has two daughters, and Mr Chen, as Ms Truong’s husband, is a grandfather to these children.

Criminal offending

12. Mr Chen’s criminal record was in evidence before me: see Exhibit R1, pp 28-29. The record shows that a number of offences were dealt with in the courts in the years from 2000 to 2009. The offences from 2000 to 2005 included three offences of driving with a middle-range “prescribed concentration of alcohol” (“PCA”) in the blood. Hefty fines were imposed on each of those occasions. Driving a car while having an elevated PCA is strongly antisocial and dangerous, but the offences are somewhat old now, and their significance in my decision-making task ought to be less since they have not been repeated in more recent times. I note that after 2005 there was no further offence of driving with a PCA.

13. In 2005, there was a further offence of driving while disqualified dealt with by the courts. That offence was serious in that a nine-month term of imprisonment was imposed, although in the event it was suspended.

14. There were a number of offences dealt with on 4 August 2009, which I briefly summarise. They involved driving while disqualified, giving a false name and address, possessing a false licence, and being in possession of goods suspected to have been stolen.

15. The driving-while-disqualified offence attracted a community service order of 200 hours and a disqualification period. The remaining three offences attracted fines ranging from $200 to $700. Again, these offences are relatively old and, to the extent that they attracted a fine only, they are not, in my opinion, particularly serious, although they do display certain antisocial tendencies.

16. I turn now to a series of offences which were committed in 2014 and which I believe were tried in 2016, with sentencing remarks made on 13 February 2017.

17. I have read the sentencing remarks (see Exhibit R1, pp 30ff). I adopt them for the purposes of my review. The offending involved events which took place on 19 October 2014. Mr Chen, who was at a house party, asked his female victim, who was also there, to drive him to his girlfriend’s house. There had been some drinking at the premises of the house party. Mr Chen had apparently become increasingly annoyed that the victim had come to the gathering in the company of a man whom he described jealously as “a white guy”. Mr Chen had been drinking, and the Court found he was intoxicated to some degree. The Court referred to Mr Chen being intoxicated to an “ill-defined extent”, but at least to “a moderate extent”: see Exhibit R1, at p 57.

18. On the way back in the car from the girlfriend’s house, Mr Chen sexually assaulted the driver, his victim, in several ways. First, he had sexual intercourse with her without her consent by inserting either one or two of his fingers into her vagina. Secondly, he demanded the victim kiss his exposed penis and she brushed her lips against it in fearful compliance and not consensually. This comprised the first assault with an act of indecency. Thirdly, he slid his hand under her bra and across her chest area. This comprised a second indecent assault.

19. All these events occurred with violence and intimidation. The offending occurred in a car in a relatively isolated location where the victim was effectively trapped.

20. The Court found that the victim had resisted Mr Chen and demanded loudly that he stop but he refused to do so. The Court found that Mr Chen knew his victim did not consent to his three assaults.

21. Mr Chen was taken into custody on 10 June, 2016. As I have said, he was tried and found guilty after trial. The sentencing Court referred specifically to non-consensual intercourse being “an extreme form of violence and one which the community expects the courts to take very seriously”: see Exhibit R1, at pp 48-49.

22. As I have said, the Court found that Mr Chen knew that his victim was not consenting. The Court referred to the pain the victim had suffered during and after the assaults and also referred to the very severe impact of the assaults on her psychological health. The Court also referred to the particular vulnerability of this victim in the circumstances of the case. The degree of force used in the offences was judged by the Court to be of a moderate nature and not low. The offences were not considered to be at the lower end of the scale.

23. The Court imposed lengthy sentences. The count of unlawful sexual intercourse received a sentence of seven years with a non-parole period of four-and-a-half years. Each of the two assaults received a 20-month fixed-term sentence of imprisonment. The total effective sentence delivered by the Court implied a non-parole period of five years and three months.

24. As Mr Chen had been taken into custody on 9 June 2016, the non-parole period expired on 9 September 2021. In fact, he was granted parole with effect from this date, but was taken immediately into immigration detention where he remained until the date of my oral decision; that is, for approximately 11 months. He was most recently detained on Christmas Island.

APPLICATION OF DIRECTION 90

25. I come now to Direction No. 90, which I must apply. I customarily first refer to earlier observations of my own appearing in paragraphs [32]ff of Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119, and I do so again:

“32 … It is clear that the Direction is framed against the stated objective of the Act which is to regulate in the national interest the coming into and presence in Australia of noncitizens: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(3) to consider the specific circumstances of the case in deciding whether to exercise the discretion to revoke the cancellation decision. The explicit purpose of the Direction is to guide decision-makers in performing their discretionary functions under the Act: see paragraph 5.1(4).

33 I have considered the principles that appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. These principles are set out against paragraphs numbered (1) to (5). I set out some of the salient features of these principles without setting them out in exhaustive detail.

34 First, remaining in Australia is a privilege conferred on noncitizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, noncitizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas where noncitizens have engaged in conduct that raises serious character concerns. This expectation arises regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by noncitizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the noncitizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove insufficient to revoke a mandatory cancellation. In particular, I note that the inherent nature of certain conduct such as family violence or conduct mentioned in paragraph 8.4 (2) is so serious that even strong countervailing considerations may be insufficient in some circumstances to warrant revoking a mandatory cancellation even if the noncitizen does not pose a measurable risk of causing harm to the Australian community.

35  I have had regard to these principles and accept them as the framework within which I must approach my task of deciding whether to revoke the mandatory cancellation of Mr Rai’s visa.

36 Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that section 7 directs me to give appropriate weight to information and evidence from independent and authoritative sources. Section 7 also directs me to give greater weight ‘generally’ to primary considerations over other considerations.”

26. I turn now to address the primary considerations. I must consider the protection of the Australian community. I must have regard to the principles set out in paragraph 8.1(1). These require me to bear in mind that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity. I am required to have “particular regard” to the principle that remaining in Australia is a privilege that Australia confers in the expectation that non-citizens remain law abiding amongst other things. I bear these principles in mind.

27. I am required by paragraph 8.1(2) to give consideration to (a) the nature and seriousness of Mr Chen’s conduct to date and (b) the risk to the Australian community should Mr Chen commit further offences or engage in other serious conduct.

28. Paragraph 8.1.1(1) requires me to have regard to a number of matters set out in subparagraphs (a) to (g). I regard the earlier offending in Mr Chen’s life as somewhat serious, but I repeat that it is some years old now and it has not been repeated in recent years. But I must take it into account, and note that the criminal record shows multiple offences involving driving while disqualified and while having a PCA in the blood. There is a cumulative effect here which I take into account: cf subparagraph (e). I take into account all the sentences imposed and note that one involved a suspended jail sentence as I have detailed above.

29. The offending involving unlawful sexual intercourse and two acts of assault with an indecent act is of more importance self-evidently and is extremely serious indeed. Taken together, they clearly answer the description of violent sexual crimes against a woman. Such crimes are required under the Direction to be considered very seriously irrespective of the sentence imposed (cf subparagraphs (a)(i) and (ii) and (c)), but the total sentences in this case were clearly very serious in any event, reflecting the gravity of the offending.

30. Looking at the totality of Mr Chen’s criminal record, I find that the latter offences represented an escalation of offending when compared to the earlier offending listed in the criminal record; and in that regard there is clearly a trend of increasing seriousness, which I am required to take into account: cf subparagraph (d). All in all, the nature and seriousness of Mr Chen’s criminal offending in 2014 are very serious indeed. The offending becomes even more serious when the other, earlier, offending is included for consideration.

31. In assessing the risk to the Australian community, I am required to have regard to the Government’s view as expressed in paragraph 8.1.2(1). I do so. I note that some conduct and harm, if the conduct were to be repeated, may be so serious that any risk of its repetition may be unacceptable. That is a principle that I must bear in mind, and I do so. I also bear in mind that the Australian community’s tolerance for risk becomes lower as the seriousness of the potential harm increases.

32. Subparagraph (2) requires me to have regard to two matters “cumulatively”; namely, the nature of the harm to individuals or the Australian community should Mr Chen engage in further criminal or other serious conduct and the likelihood of his so doing taking into account the matters listed in subparagraphs (i) and (ii).

33. If Mr Chen engaged in further criminal or other serious conduct of the types that occurred up to 2009 there would be a strongly antisocial aspect to the offending and, to the extent that it involved driving with a PCA, it would pose a potential risk of serious physical harm to the Australian community. I take that into account.

34. So far as the sexual offences are concerned, these are, as I have said, extremely serious. A future female victim in the Australian community would be greatly harmed both physically and psychologically, and both immediately and on a long-term basis, as a result of further sexual assaults of the type Mr Chen committed. The offending involves a very serious and violent intrusion upon a female in the most offensive, hostile, and degrading of ways. I refer again to the observation in the sentencing remarks referring to non-consensual intercourse as an extreme form of violence and one which the community expects the courts to take very seriously. I think that observation applies to my function of addressing the consideration in paragraph 8.1.2(2)(a). There is no doubt that unlawful sexual intercourse accompanied by further indecent assaults constitutes a most serious crime.

35. I must take into account the likelihood of Mr Chen engaging in further criminal or other serious conduct. Having regard to the lengthy time during which Mr Chen has refrained from offending in respect of driving (including here the possession of a false licence) I would regard the risk of repetition as low. The offence of being in possession of goods suspected to be stolen appears to be a one-off. It attracted a fine of $300. Again, I think the likelihood of that sort of offending recurring is low.

36. The later and much more serious offending involving various sexual offences was the subject of an expert’s report by Dr Yoxall tendered by Mr Chen: Exhibit A1. In her report, Dr Yoxall concluded that the risk of Mr Chen reoffending was at the present time moderate. I agree generally with the reasoning and conclusions in the report, as well as with the oral evidence given by Dr Yoxall. Dr Yoxall did note, however, that intervention would lower the risk.

37. As I say, I generally agree with Dr Yoxall’s conclusions. I note that at the present time it would appear that Mr Chen has not been referred to a sex offenders’ program because an assessment of his risk of recidivism was initially low (meaning that he would be a low-priority referral for treatment). Reference is also made in Dr Yoxall’s report to the substantial language barrier. It is true that Mr Chen, despite having lived in Australia for some 30 years, has limited English. Indeed the hearing before the Tribunal was conducted with the aid of an interpreter. I also accept, however, Dr Yoxall’s evidence (and the supporting references in her report) that there appears to be a substantial degree of resistance from Mr Chen to engaging in such a program. Ms Thompson made the valid point that, as late as 2021, Mr Chen professed he did not understand why he had been found guilty and was still protesting his innocence. On that occasion, his intransigence proved to be an obstacle to any further and potentially helpful discussion: see Exhibit R2, at p 397. On the other hand, that same report does suggest (see also at p 397) that should Mr Chen undertake a period of parole in New South Wales he would be mandatorily referred for a psychological assessment. Whether that would occur in actual fact on Mr Chen’s release from detention (as he would still be on parole for some time) remains to be seen but it would appear that it is at least a reasonable possibility that he would be required to participate in such programs. I note that Mr Chen is recorded as having participated well, given his language barrier, in an exercise which concerned identifying early warning behaviours when alcohol is consumed (see Exhibit R2, at p 399).

38. At the present time, therefore, it is appropriate to proceed on the basis that Mr Chen’s meaningful future participation in rehabilitation as recommended by Dr Yoxall is possible but not clear. I remind myself that I must in any event assess risk as at the date of my decision: see paragraph 8.1.2(2)(b)(ii).

39. There are other matters pertinent to risk that I would mention.

40. First, it is the case that Mr Chen has now abstained from alcohol for more than six years. That is, from the time of his being taken into custody in June 2016 up to the date of my oral decision, he spent some six years and two months in mandatory confinement of one sort or another. Any dependence upon alcohol, considered solely from the perspective of physical dependence, has been broken. That is not an end to the issue, of course, given the complex array of factors at play in cases of dependence or addiction, but it is something to be weighed up. It is a positive that the case notes indicate that Mr Chen has decided he will abstain from drinking in the future: Exhibit R2, at p 401. He has indicated that alcohol was a factor in his offending, which shows some insight. There is no doubt that alcohol played some role in the offending – presumably, by disinhibiting Mr Chen – although exactly how much was not clear to the sentencing Court. I further note that Mr Chen’s parole conditions require him to abstain from alcohol.[2] They may be ignored, of course, but Mr Chen would do so at his peril, and parole conditions would mark at least some sort of official control over his future behaviour if he were released into the community.

[2] See clause 12 of the standard conditions of parole.

41. Secondly, the undoubted fact is that Mr Chen has been incarcerated for over five years and has experienced immediately thereafter further deprivation of liberty in the form of mandatory immigration detention for almost one year (as at the date of my oral decision). The experience of the deprivation of liberty operates here as a very powerful future deterrent in my opinion. The past six years or so have been the first occasion in Mr Chen’s life where he has been deprived of liberty on a lengthy basis. That experience, particularly as it has been such a substantial period of time, must have made a very real impact upon him in my opinion. Mr Chen has also been transferred to Christmas Island pending the hearing and determination of his application to this Tribunal. He could have no doubt that he stands on the very threshold of deportation, so to speak, after a lengthy period of gaol and a long time in detention.

42. On the evidence before me, it is likely the case that Mr Chen, as at the date of my decision, has an unwillingness to address the moral wrongness of his conduct and has failed also to address the harm he has inflicted upon his victim. But the Direction requires me to have regard in this context to his risk of recidivism, not moral insight as such. I do believe that his experience of both incarceration and immigration detention over such a long period does operate in this case as a very serious future deterrent. Dr Yoxall referred in her report to the very real concerns Mr Chen identified concerning deportation. These involved the impact upon his wife who he believes is struggling to manage their business while at the same time caring for his mother. He has fears that she will not be able to cope with the burdens. Mr Chen reported that he is concerned about the emotional impact his deportation would have on his elderly mother and his wife, amongst others. He is also concerned, of course, about the personal difficulties of returning to China after 32 years and re-establishing himself there without a wife and family support. The sentencing remarks also refer to Mr Chen being concerned about his wife: see Exhibit R1, at p59.

43. These are real concerns and are matters that point to the very strong deterrent effect of gaol and immigration detention. As I believe they would operate together as a significant deterrent, they do bear strongly on an evaluation of risk. All in all, I proceed on the basis that Dr Yoxall, who I accept did mention and weigh these factors in her report, is correct in her conclusion that the risk of reoffending is moderate in this case without intervention; but I would note the significant deterrents in this case that will be particularly effective if alcohol is abstained from.

44. There is no family violence that I need to consider. The best interests of minor children in Australia does not arise as a factor given Mr Yip’s evidence that Mr Chen has played a limited role in his granddaughters’ lives in the years leading up to his incarceration.

45. I must weigh the expectations of the Australian community: see paragraph 8.4. I accept that this consideration weighs heavily against Mr Chen. I note that the principle in subparagraph (1) of paragraph 8.4 requires me to bear in mind that “as a norm” the Australian community would expect Mr Chen not to remain in Australia given his serious offending. Subparagraph (2) refers specifically to, amongst other things, the commission of serious crimes against women. I should have regard to the principle that the community expects the Government to cancel visas in such circumstances. These expectations are expressed to apply regardless of any measurable risk of reoffending: see subparagraph (3). Moreover, I am to accept the expectations as outlined in paragraph 8.4: I must not proceed independently to assess the expectations for myself. In all the circumstances, this consideration weighs clearly against Mr Chen.

46. I note, therefore, that the primary considerations I have evaluated all weigh against Mr Chen.

47. I am required to address so-called “other considerations”. These are listed non-exhaustively in paragraph 9 (1).

48. Non-refoulement obligations do not arise for consideration in this case. Ms Thompson asked me to consider the impact on Mr Chen’s victim, who has suffered grievously on an ongoing basis as a result of the assaults, and whose predicament was referred to by the sentencing Court which had the benefit of a victim-impact statement.  I have, however, no evidence before me of what the impact on her today would be if I permitted Mr Chen to remain in the community. In the absence of that evidence being led, I would regard the impact-on-victims consideration as neutral.

49. I must consider the extent of Mr Chen’s impediments if he were removed to China. Mr Chen is in his mid-fifties now, but he is able-bodied and has a continuous work history in Australia. He would find it difficult to re-establish himself initially in China given the very lengthy time he has been away. However, there are no language or cultural barriers, and while Mr Chen is well into middle age, he is still relatively fit. Impediments on removal are a consideration to which I give some weight, but it is limited for the reasons I have just expressed.

50. In this case, the consideration of links to the Australian community has assumed particular significance. Mr Chen has been married to Ms Truong since 1992. Ms Truong gave evidence at the hearing. It is perhaps surprising that after more than six years of absence and given also the very confronting fact that Mr Chen was found guilty of a very serious sexual offence warranting his incarceration, Ms Truong wishes to have her husband back with her. But on my review of the evidence that is undoubtedly the case.

51. Her own circumstances are difficult, according to her evidence, which I accept. She has paid very significant legal bills following the trial and used up family assets in that regard. She continues to run the business without Mr Chen’s assistance. This involves heavy lifting, which she is finding increasingly difficult. She needs her husband back to assist in the business. I accept the evidence in her statement that appears at Exhibit R1, p 103.

52. I also accept that Ms Truong has an interest in maintaining her marriage as a marriage. As I say, that is perhaps a surprising feature of this matter, but it is a fact. She is also responsible for her mother-in-law, who is elderly and needs care. I do not think the evidence suggests more than Mr Chen’s mother requires assistance as an elderly person: I do not proceed on the basis that she is suffering from cancer (although I accept that tests are being undertaken at the present time but without the results being known by me at the time of my decision). On the other hand, I accept Ms Thompson’s submission that there is in fact a younger sister (that is, a younger sister of Mr Chen) who might be called upon to help. I do not proceed on the basis that if things became unbearable, the younger sister would not step in and assist substantially with the care of Mr Chen’s mother. But at the present time the burden appears to have fallen squarely on Ms Truong; the evidence before me suggests that Mr Chen’s sister is too busy to render meaningful assistance.

53. Mr Chen would be able to assist his wife in this regard if he were released. His concern to assist his wife is one that he has raised with Dr Yoxall, as I have said.

54. I accept also that Mr Chen’s mother would suffer a loss of one-on-one contact if her son left for China, and that would be a blow to her.

55. I also have regard to Mr Chen’s own interest in maintaining contact with his wife and mother. He has an interest in maintaining his family connections after so many years in Australia. I do believe he wishes to assist them, and I believe he wishes to resume his marriage, as fractured a relationship as that may be. I also accept that I should accord some consideration to the very lengthy time Mr Chen has now spent in Australia. He arrived in Australia in 1990, and he led an offence-free life for some years.

WEIGHING THE CONSIDERATIONS

56. I now proceed to weigh the considerations under the Direction and to decide whether on balance these considerations favour Mr Chen’s remaining in Australia.

57. That weighing exercise has proven extremely difficult in this case. As I hope my earlier reasons have made clear, there is, in my opinion, no doubt whatsoever that the most recent offending involving the various sexual assaults was of the most serious kind, and under the Direction I must treat it very seriously. The community-expectations consideration weighs heavily against Mr Chen. I have weighed all the primary considerations very carefully. None of them weighs in Mr Chen’s favour, which is a very serious matter, as ordinarily that would constitute a very powerful reason for finding the balance weighs in favour of affirming the decision under review. I acknowledge expressly that the primary considerations should generally be given more weight than the so-called “other” considerations: see paragraph 7(2). The situation is a fortiori when one adds in the earlier offending, which must also be given some weight.

58. It is clear, however, that the so-called other considerations may, in an appropriate case, outweigh even strong considerations in favour of affirming the decision under review. I have concluded in my review that this is one such case, although I must say that I have found reaching the correct or preferable decision in this matter extremely difficult, and I have fluctuated in my thinking about the final conclusion.

59. I would make it clear that, but for Ms Truong’s interests, I would have affirmed the decision under review. But she has suffered quite considerably as a result of Mr Chen’s criminal conduct, which has led to a very difficult family situation in which assets have had to be sacrificed to meet legal bills and where she faces alone the running of a struggling business without his assistance, with additional work to perform, and with the added responsibility of having to care, at least at the present time, for an elderly mother-in-law. I note that her difficulties were also adverted to in the sentencing remarks, and these include her own health pressures: see Exhibit R1, at p 59.

60. I accept that the risk of reoffending has been assessed professionally by Dr Yoxall to be moderate (without intervention) in a recent and reasoned report, and I have already indicated that I largely agree with the conclusion and reasoning in that report. But I would note again that there are very strong factors operating as deterrents in this case, to which I have also referred, including a long period of incarceration and immigration detention; a removal from family where Mr Chen wishes to fulfil ongoing responsibilities; and an abstinence from alcohol for many years and a stated resolution not to drink. Taken together, these offer cautious grounds for optimism in circumstances where alcohol is accepted to have played some role in the offending. I also note the sentencing Court referred to the fact that Mr Chen did not have a previous criminal history suggestive of a pattern of behaviour in this regard, and the Court further found his prospects of rehabilitation to be reasonable: Exhibit R1, at p.60. Mr Chen will know quite clearly that if he breaches parole in a serious way he will return to jail to serve the balance of his sentence. He also knows that any further offending will only result in a further jail term and the consequential cancellation of his visa. He could scarcely entertain any hope of avoiding removal to China if the offending were of a similar kind to his most recent offending. These deterrents are significant even though I am not satisfied that Mr Chen has developed at the present time any meaningful insight into the moral wrongness of his actions and into the harm he has caused. I also bear in mind that his risk of recidivism without intervention has been assessed reliably by Dr Yoxall as moderate.

61. In all the circumstances, however, the weighing of the considerations under the Direction leads me to find, on balance, that they do favour revocation of the cancellation decision. Having reached that conclusion, I believe the correct or preferable decision on the evidence before me is to find that there is “another reason” for the revocation of the cancellation decision under section 501CA(4)(b)(ii) of the Act.

DECISION

62. The Tribunal sets aside the decision under review and substitutes a decision that the cancellation of Mr Chen’s visa be revoked.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta

........[Sgnd]............

Legal Associate

Dated 12 September 2022

Date of hearing:  25 and 26 July, 1 and 3 August 2022

Applicant’s Representative:  Nicholas Poynder

Respondent’s Representative:                  Sarah Thompson