Cho and Minister for Home Affairs (Migration)

[2019] AATA 4422

Cho and Minister for Home Affairs (Migration) [2019] AATA 4422 (30 October 2019)

Division:GENERAL DIVISION

File Number(s):      2019/4939

Re:Chia Cho

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:30 October 2019

Place:Sydney

The reviewable decision is affirmed.

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

Senior Member D. J. Morris

CATCHWORDS

MIGRATION – visa cancelled by operation of law under s 501(3A) of Migration Act 1958 –mandatory visa cancellation of Class BB 155 Resident Return visa – failure to pass character test – whether there is another reason why the mandatory visa cancellation should be revoked – consideration of ministerial Direction No. 79 – primary considerations – protection of Australian community – best interests of minor children – expectations of Australian community – significant drug offence – children exposed to danger – risk to community – other considerations – decision under review is affirmed

LEGISLATION

Administrative Appeals Act 1975 (Cth), ss 33(1)(c), 33A

Criminal Code of the Republic of China (as amended 19 June 2019)(ROC)
Drug Misuse and Trafficking Act 1985 (NSW), s 24(2A)
Migration Act 1958 (Cth), ss 499, 500, 501CA

Migration Regulations 1994 (Cth), reg 2.52

CASES

DKXY v Minister for Home Affairs [2019] FCA 495

FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

A.R.J. v Australia, Communication No. 692/1996 (6 February 1996), CCPR/C/60/D/692/1996. University of Minnesota Human Rights Library.

Migration Act 1958 – Direction made under s 499 – Direction No. 75 – Refusal of Protection Visas relying on section 36(1C) and section 36(2C)(b) (Made by the Minister on 6 September 2017, commenced on 7 September 2017)

Migration Act 1958 – Direction made under s 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Made by Minister on 20 December 2018, commenced on 28 February 2019)

United Nations – Human Rights Committee – International covenant on civil and political rights – General comment No. 32 Article 14: Right to equality before courts and tribunals and to a fair trial; Ninetieth Session, Geneva, 9 to 27 July 2007 (Dated 23 August 2007)

REASONS FOR DECISION

Senior Member D. J. Morris

30 October 2019

1. The Applicant, Mr Chua Hua Cho was born in 1965 in Cambodia and is aged 53. He holds citizenship of the Republic of China (ROC). Mr Cho first entered Australia in 1987. In May 2001 he was granted a Class BB Subclass 155 Resident Return visa (the visa). The visa was cancelled on 29 January 2018 under section 501(3A) of the Migration Act1958 (Cth) (the Act). On 8 August 2019 a delegate of the Respondent decided not to revoke the mandatory cancellation of Mr Cho’s visa.

2. Mr Cho was notified of the delegate’s decision on 9 August 2019 and advised that he had the right to apply for the Tribunal to review the delegate’s decision. On 14 August 2019 Mr Cho applied to the Tribunal for the review of the delegate’s decision. The hearing took place on 15 and 16 October 2019.

3. The Applicant represented himself at the hearing, made submissions and gave evidence. Mr William Cho, Ms Shao Fang Chen and Mr Kent Mathieson gave evidence in person. The Tribunal granted leave under section 33A of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) for Dr Micke Hoong to give evidence by telephone from overseas. The Respondent was represented by Ms Monica Perotti, of Sparke Helmore Lawyers. The Tribunal was assisted by an interpreter in the Cantonese language.

4. The Tribunal took into evidence a volume of documents collated by the Respondent (‘GD’ documents). The Respondent also provided to the Tribunal and the Applicant a written Statement of Facts, Issues and Contentions. The Respondent also submitted a tender bundle of documents (TB), which were taken into evidence.

5. The Applicant provided to the Tribunal written statements from Dr Micke Hoong, JP; Mr William Cho; Ms Shao Fang Chen; and a letter of support from Mr Kent Mathieson. Although these statements were provided to the Tribunal on 10 October 2019, the Respondent did not receive them until 11 October 2019. They therefore had not been received within ‘two business days’ of the commencement of the hearing, as required under s 500(6J) of the Act. However, the Tribunal, following the reasoning in Uelese and Minister for Immigration and Border Protection [2015] HCA 15 (Nettle J at [115]), found that each day of the hearing should be regarded for the purposes of notice in this part of the Act as a separate ‘hearing’. In this case, therefore, those persons were able to give oral evidence on 16 October 2019 because the notice provisions in s 500(6H) of the Act would by then have been satisfied. The Respondent consented to this course of action. It is however a reminder, especially to self-represented Applicants, that they must take care to comply with the explicit provisions set out in s 500 of the Act. Written statements sought to be relied upon, especially in relation to witnesses proposed to be called, must be given to the Respondent (not just to the Tribunal) at least two business days before a hearing, and preferably as soon as an Applicant has such statements in their possession.

6. A list of the exhibits taken into evidence is at the end of these reasons.

   Legislative framework

7. Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period, provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg 2.52), and the decision-maker determines that the Applicant passes the ‘character test’, or, as provided for under section 501CA(4)(b), there is another reason why the mandatory cancellation decision should be revoked. The Minister accepted that Mr Cho had made representations within the prescribed period.

8. Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under section 501(6)(a) of the Act, the person has a substantial criminal record as defined by section 501(7). Relevantly, section 501(7) states:

   (7) For the purposes of the character test, a person has a substantial criminal record if:

   …

   (c) the person has been sentenced to a term of imprisonment of 12 months or more; …

9. The Tribunal had before it (GD5 pp 24-25) a National Criminal History Check prepared by the Australian Criminal Intelligence Commission, dated 16 April 2019. It recorded that at Parramatta District Court on 20 May 2014 Mr Cho was convicted of three offences. He was convicted of the offence of Participate criminal group contribute criminal activity, with the conviction taken into account by the Court. He was convicted of the offence of Supply prohibited drug, more than large commercial quantity, for which he was sentenced to a term of imprisonment of 7 years and 6 months commencing on 7 July 2012 with a non-parole period of 5 years and 6 months, release subject to certain conditions. Mr Cho also was convicted of the offence of Take part manufacture etc large commercial quality [of drugs] child exposed. For this offence he was indicted for imprisonment for 10 years commencing on 5 July 2012 with a non-parole period of 6 years and 6 months, release subject to certain supervisory conditions.

10. Section 501CA of the Act relevantly provides that:

    (1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

    …

    (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.

11. If the Tribunal finds that Mr Cho fails the character test, the sole issue before the Tribunal is then whether there is another reason why the original decision should be revoked. In Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, North ACJ stated, at [38]:

    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…

12. On the evidence, the Tribunal is satisfied that Mr Cho has a ‘substantial criminal record’ as defined in section 501(7)(c) of the Act because he has been sentenced to a term of imprisonment of 12 months or more. On the facts of the convictions made against him and the sentences imposed on 20 May 2014, the Tribunal found that the Applicant fails the character test under section 501(3A)(a)(i) of the Act. The Tribunal then examines whether there is another reason why the mandatory cancellation of Mr Cho’s visa should be revoked.

    The Ministerial Direction

13. Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The delegate who refused to revoke the cancellation of Mr Cho’s visa consulted Direction No. 79 (the Direction), made under section 499. The Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter. Paragraph 6.1 of the Direction states, in part:

    6.1Objectives

    (1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

    …

    (3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

14. Relevantly, the Direction includes the following principles at 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 women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to 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.

15. In deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’

16. Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed.’ The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction). The Tribunal considered each of the primary considerations and, as relevant, the other considerations.

    Background to the Applicant’s offending

17. Before the Tribunal were the sentencing remarks of His Honour Judge Martin Sides, QC, of the District Court of New South Wales in the matters of R v Wai Fung Chung 2012/00209440 and R v Chia Hau Chau 2012/00209306. Mr Cho agreed before the Tribunal that he spells his last name as both Chau and Cho, and there was no dispute that he is the person referred to in this document. In these reasons, the Tribunal will use the spelling ‘Cho’, because that is the spelling used in his application.

18. Mr Cho and his co-offender pleaded guilty to knowingly taking part in the manufacture of a large commercial quantity of methylamphetamine and exposing a child to the manufacturing process. The Court stated that the offence was committed between 13 June 2012 and 5 July 2012. Mr Cho and his co-offender also pleaded guilty to supplying a large commercial quantity of methylamphetamine on 5 July 2012. Each offence carries a maximum penalty of life imprisonment.

19. The sentencing Judge found (GD11, p 39):

    These two Offenders participated in the manufacture of a commercial quantity of methylamphetamine at a clandestine laboratory located in the garage of a home attached to the residence occupied by their co-offenders Pailin Ung and Huong Dung and their 12-month-old child. That residence was located at [redacted address in Liverpool] and the Court will refer to it as Lot 21. When these two Offenders were arrested by police, the police located 1,979.9 grams of methylamphetamine in the car they had been travelling in before their arrest and which had been manufactured at Lot 21…

    When police found the laboratory at Lot 21, they found a further 610 grams of methylamphetamine that had been manufactured there bringing the total to just over 2.5 kilograms. A forensic chemist who examined the laboratory concluded there were sufficient chemicals and material in the laboratory in Lot 21 to manufacture a further large commercial quantity of methylamphetamine.

    In December 2011 the Asian Crime Squad received information relating to the involvement of the Offender Chung in large-scale commercial supply of prohibited drugs within the Sydney area. As a result, in each [sic] March the following year, they commenced investigations under strike force Grand View to investigate his activities and those of this associates. Part of their investigation involved the interception of a mobile phone used by the Offender Chung to communicate with his associates. During the course of the interception of the conversations the police identified numerous conversations between these two Offenders and it became evident that they were directly involved in the manufacture and production of prohibited drugs in the Liverpool area.

    During a phone call at about 6 pm on 13 June 2012, the Offender Chung requested the other Offender to attend his home in Ryde. The Offender Chung said during this conversation: “can you come over with him” and went on to state: “it is the same as before, it was okay in the first two days and then on the third day it all melted again, I don’t know why”. The Offender Chau [the Applicant] replied: “I’ll do my best”. This conversation showed that they were involved in the manufacture and drying process in relation to methylamphetamine and the Offender Chung wanted the assistance of the other Offender to address problems being encountered in that process.

    On 19 June 2012 police were conducting surveillance in connection with the Offender Chau when he returned to his automotive repair business at Cabramatta at about 6 pm with the other Offender in a vehicle. He left his business premises about half an hour later and drove to Lot 21 and entered those premises. He remained inside for a couple of hours during which the other Offender, that is Chung, returned to his home in Ryde.

    During a telephone conversation later that evening around 9.30, the Offender Chung asked the other Offender to attend his home in Ryde. The Offender Chau responded by saying: “we are still drying. Once it is complete I will weigh it and come over”. This indicates at that point the Offender Chau was involved in a drying process connected with the manufacture of methylamphetamine at Lot 21 and an intention when that process was complete of perhaps delivering the drug to the Offender Chung. At about 10.30 pm the Offender Chau informed the other Offender he had finished and was on his way. Police followed him from Lot 21 to the home of the Offender Chung in Ryde and saw him carrying a green environmental type bag into the Offender Chung’s home.

    During a phone call at about 1.20 am the following day, the Offender Chau told the Offender Chung that he was: “extracting the oil and taking them out”. This is a reference to the extraction of methylamphetamine oil from the final two tier liquid solution. During this methylamphetamine oil rises to the top of the solution and needs to be extracted from the waste.

    During a phone call about 10 minutes later, the Offender Chau told the other Offender: “those are almost dried, I’m still doing it”, this being further reference to the drying out process of the methylamphetamine liquid or oil into salt using caustic soda, hydrogen gas and toluene, which is a common method of drying methyl amphetamine.

    At about 9 pm the following day, the Offender Chau told the Offender Chung that he required a flat stove electric top urgently, this is often used in the manufacturing process.

    At about 5.30 pm on 2 July, the pair spoke on the phone again. During this conversation the Offender Chau said: “I’m going down there again tonight to wash everything there and get everything ready for you”. The Offender Chung replied “eh, leave it for the time being after you have washed it, okay”. He went on to say: “wait till he…bring his stuff back tomorrow”.

    At about 11.15 the following morning, the Offender Chau told the Offender Chung that: “the little kid is growing”. The Offender Chung responds that he will: “go down there a bit later”. He then asked: “how’s the fish” and the Offender Chau responded “going well but I need a heater, it will be quicker that way”. This is obviously a further reference to the manufacturing process.

    At about 4.30 pm the same day the Offender Chau collected a heating mantle from the home of the Offender Chung and returned with it to the garage at Lot 21.

    During June and July, police intercepted a large volume of conversation between the two Offenders showing they were in Lot 21. During some of these calls a baby can be heard in the background and the conversation revealed they were at different stages of the manufacturing process.

    At about 5.30 pm on 4 July 2012, the Offender Chung contacted the co-offender Ung and then attended Lot 21. The co-offender Chau also attended about two hours later. At about 8.30 pm the Offender Chau and the co-offender Ung left the garage and retrieved a number of chemical containers from the car belonging to the co-offender Ung and took them back into the garage.

    At about 1.15 am the following day, these Offenders left the garage at Lot 21 and were stopped by the police shortly afterwards and arrested. During a search the police discovered receipts in the pocket of the Offender Chung, one was from Phoenix Lacquer and Paint dated 4 July 2012 and [it] showed the purchase of 14 items totalling 280 litres of numerous liquids for $1,700. Those liquids included acetone, methylated spirits and toluene, all of which are used in the process of manufacturing illicit drugs. When the police searched the car they found 1,917.9 grams of methylamphetamine in a blue environmental bag secreted in the rear foot well of the car. The drug had been manufactured by the Offenders at Lot 21 and was in their possession for the purpose of supply…

    Shortly afterward the police executed a search warrant at Lot 21 and uncovered what is described in the facts as a large scale active clandestine drug laboratory. The co-offender Ung was in the garage and the co-offender Dung was in the lounge room, which apparently adjoins the garage. Their 12-month-old child was found asleep in a bedroom on the southeastern side of the residence.

    A search of the garage revealed it had been converted into a clandestine laboratory for the purposes of manufacturing prohibited drugs. It contained a large amount of scientific apparatus including reaction vessels, heating sources, condensers and other scientific glassware. There were several stages of live manufacture taking place. An analysis by a forensic chemist revealed that there was a total of 610 grams of methylamphetamine, which had been produced and found during the execution of a search warrant. The forensic chemist also concluded that there were sufficient chemicals and materials to further manufacture a large commercial quantity of methyl amphetamine.

    During a search it was noted that there was a door leading from the garage area where the laboratory was located to the residence. It had no lock on it. It was open when the police arrived. Chemicals used in the manufacture could be smelt throughout the garage and the entire residence. Baby toys and items were located throughout the residence, including beside the door leading from the laboratory into the residence.

1. His Honour then went on to refer to the circumstances of Mr Cho noting as follows:

   The Offender Chau turned 48 last November. One of three children, he was born in Cambodia. He fled with his family to Vietnam when he was 11 because of the war. Both parents and his elder sister were killed, how long after they fled to Vietnam that occurred is not clear. He and his surviving sister went to Taiwan when he was 17 and he came to Australia at the age of about 22. The Court is satisfied that he had the disadvantage of considerable deprivation as the consequence of having to flee his homeland and being orphaned at an early age. He now has permanent residence in this country. He is married with one child. His wife is supportive.

2. The Judge went on to say that Mr Cho was a mechanic who before his arrest operated his car repair workshop. His Honour said Mr Cho told a probation officer that he and his wife had accumulated debts amounting to $80,000. Judge Sides then said (GD11, p 45):

   The Court is satisfied that this Offender was motivated by greed. It is possible there were debts associated with the business, although [an exhibit] does not disclose that the business was unable to meet those debts. In any event, it is clear he was experiencing some financial difficulty, which might have provided some motivation for committing the offence, but the prime motivation was greed.

   In these circumstances the Court is satisfied that his prospects of rehabilitation and not re-offending are reasonable to good.

   Evidence of the Applicant

3. Mr Cho made an opening statement to the Tribunal. He acknowledged that he had done a serious and stupid thing and, in so doing, harmed not only the community but also his wife and son. He said he regretted a lot of what he had done. He said in the years he has been in prison he has noticed the great impact of drugs on society and, during his time incarcerated, he had examined why he committed such an offence. He said he lost his career and is on the verge of losing his family as well.

4. Mr Cho gave evidence that he is a citizen of the ROC but was born in Cambodia, moving to Taiwan aged 17. Mr Cho was asked about a photocopy of the data page of his passport (GD17, p 78) which stated his place of birth as Vietnam, and about a copy of his son’s birth certificate (GD20, p 85) which declared the father’s (that is, the Applicant’s) place of birth as Saigon, Vietnam. Mr Cho agreed that these two references were incorrect. Mr Cho said he went to Vietnam aged around 11 in 1975, fleeing from Cambodia. He said that both of his parents were born in what is now the People’s Republic of China, but before 1949 when that state was formed. As the Court stated, Mr Cho’s parents were killed in the conflict in that area, as was one of his siblings. Mr Cho said he did not believe he had retained citizenship of Cambodia.

5. Mr Cho said he came to the ROC under sponsorship of an uncle who lived there, travelling under the aegis of the Red Cross, via Thailand. He said that at that time a person who had a relative in the ROC could obtain a National Identity Card, which he did on arrival. He travelled with his sister. His sister still resides in the ROC but his uncle has since passed away. He told the Tribunal his sister is not married and does not have children.

6. Mr Cho was asked about the Personal Circumstances Form dated 21 February 2018 he had provided to the Department of Home Affairs (the Department) (GD15, p 70) in which he stated “I have no siblings”. He said that was incorrect and did not have an explanation as to how that was stated in the form, except to say that the form had been filled in on his behalf, agreeing he had told the writer what to write, and that maybe he had not been clear.

7. Mr Cho said he completed year 9 at boarding school in the ROC. He told the Tribunal that during school holidays he would stay with his late uncle. He moved to Australia in 1987. Mr Cho agreed that he has returned to the ROC since settling in Australia. Before the Tribunal were the Department movement records for the Applicant (GD6, pp 26-27). Mr Cho accepted the details in that document that he had returned to the ROC for about six weeks in July-August 1997; 12 days in August 1998; seven days in October-November 1998 and 12 days in March 1999. He said he had no other overseas travel since 1987.

8. Mr Cho said he had travelled back to the ROC with his wife. He said he did not have contact with his sister because he had lost her telephone number and when he had been back to the ROC he visited only Taipei; he knew she lived in another part of the island. He said he had no remaining friends in the ROC. Mr Cho said the purpose of the trips was recreational, and he and his wife took the opportunity of visiting members of his wife’s family who live there, including his aged parents-in-law, who have since passed away. In terms of the 1999 visit, Mr Cho said he went there in relation to buying some tyres for his business, because they were cheaper in the ROC than obtaining them in Australia.

9. Mr Cho said that his wife is a citizen of the ROC. They married in Australia in 1994 (GD18, p 82). Their son William was born in June 2001 (GD20, p 85) in Sydney and is an Australian citizen (GD20, p 86). They have no other children.

10. Mr Cho said before he went to prison he operated his own automotive repair business, in partnership with his wife. He said that the expenditure of the business was high. Mr Cho employed two other mechanics. The business got into financial difficulty and he decided the solution was to increase spending on his credit card, and on his wife’s credit card. Eventually he said the combined credit card debt amounted to a sum of $80,000.

11. As a result of his financial pressure, Mr Cho said he became involved in helping others to manufacture drugs. He said he came to know one of his co-offenders, Mr Chung, through his workshop. He had known Chung for many years and Chung brought his car into Mr Cho’s shop for repairs.

12. Mr Cho told the Tribunal he told Chung about his financial woes and Chung told him he could do some ‘extra work to make extra money’. He said Chung told him the work would be illegal.

13. Initially Mr Cho told the Tribunal that he did not manufacture drugs, and instead was involved in doing ‘odd jobs or errands’. He then said ‘sometimes I was in the garage of the house and did what they instructed me to do’, the residential garage being the place where the drug manufacturing laboratory had been set up.

14. Later in the course of the hearing, Mr Cho changed his evidence to admit that he was directly involved in the manufacture of drugs, and assisting others to manufacture drugs over a period of more than a year. Mr Cho said that the batch of drugs which was discovered when he and Chung were arrested was the first batch they had produced. He said that for the year preceding the arrest he had been helping the co-offenders find a place to set up the drug laboratory, and purchasing relevant items and tools to make the substance. He subsequently told the Tribunal that there had been some ‘test batches’ produced earlier. Mr Cho told the Tribunal that he was spending between 10 to 20 hours a week at the drug laboratory, in the evenings, while operating his mechanic workshop by day.

15. Mr Cho said he made no money from this illicit activity during this time. The house he said was rented by the couple (co-offenders separately charged) who then lived in it with their infant child; the tools and other necessary equipment he said were purchased by Chung.

16. Mr Cho accepted that the child was present in the house during the establishment and operation of the drug laboratory, and that he knew that fact from the beginning of when the house was rented for that purpose. Mr Cho also agreed that directly next door to the garage where the laboratory was set up was a child care centre.

17. The Tribunal notes, in this respect, the agreed facts document (TB2, pp 42-43) states:

    Apart from the child residing at Lot 21, police found that the laboratory contained an extraction fan system which was vented outside the premises approximately one meter [sic] away from a neighbouring child care centre fence. Forensic examination of the playground equipment at the centre found traces of several substances used in the manufacture of prohibited drugs. These included 1-phenyl-2-propanone which is a precursor in the manufacture of methylamphetamine and is listed as a prohibited substance under schedule 1 of the Drug Misuse and Trafficking Act and Dimethyl sulfone which is a known ‘cutting’ agent for methylamphetamine.

18. Ms Perotti asked Mr Cho whether he was aware that the extraction fan placed in the garage vented about one metre away from the child care centre, and he agreed that he knew that was the case. Mr Cho agreed that the parents of children who attended the child care centre had no way of knowing and therefore protecting their children from the substances that were found by forensic officers on the playground equipment at the centre.

19. In terms of the early morning when Mr Cho was actually arrested, driving Chung home from the garage in Chung’s car, a blue plastic bag containing some 1.9 kilograms of methylamphetamine was found secreted in the foot well of the car. Mr Cho said he had been asleep outside the house and Chung woke him to drive him home (Chung having lost his driver licence) and he saw Chung put the bag in the car. He said he guessed the bag contained drugs.

    Evidence of Mr Kent Mathieson

20. Mr Mathieson told the Tribunal that he was the supervisor of Open Wiring Systems, which operates a workshop in part of the Silverwater correctional complex which includes Dawn De Loas Prison, where Mr Cho was serving his sentence.

21. Mr Mathieson said he had known Mr Cho since August 2017 but not before that date. He said his role was to provide training to prison inmates in the production of electrical items. He said that Mr Cho was very skilled in his work, showing an exceptional natural aptitude for working with his hands. Mr Mathieson said that Mr Cho had good relationships with his fellow prisoners, guards and supervisors.

22. Mr Mathieson said he was aware of Mr Cho’s offending because he had asked to see the charge sheet when the Applicant asked him for a testimonial, but he did not discuss the circumstances of the offending in detail. Mr Mathieson said his perception was that Mr Cho had a very real regret for what he had done and a desire not to see it happen again.

    Evidence of Mr William Cho

23. The Applicant’s son, Mr William Cho, provided two letters to the Department (GD21, p 87, GD25, p 100) around February 2018. He also provided a further written statement to the Tribunal on 9 October 2019 (Exhibit A3).

24. Mr William Cho said he was visiting the ROC with his mother in July 2012 when they received a telephone call from his father that he had been arrested in Sydney. He said they were in the ROC on holiday. Mr William Cho said this visit was the second time he had been to the ROC, he had previously visited in January of the same year. On the earlier visit, he and his mother visited relatives on his mother’s side of the family – aunts, uncles and cousins.

25. Mr Cho said he was aware of the seriousness of the offending and spoke of the humiliation it had brought to his family. He told the Tribunal of bullying he had received at school. Most starkly, he said the impact on his mother had been the main effect, as she had struggled with household expenses since his father had been arrested and imprisoned.

26. Mr William Cho said that he had a passport for the ROC when a child, but it had not been renewed, and he now has an Australian passport.

    Evidence of Ms Shao Fang Chen

27. Ms Chen, the wife of the Applicant, provided a written statement (Exhibit A1) which she said had been prepared with the assistance of her son but that she dictated the contents.

28. Ms Chen told the Tribunal that the reference in the copy of her ROC passport to her place of birth being Vietnam was correct (GD19, p 83). She said her father relocated to the ROC and then applied for his family to join him there, which they did. Ms Chen said her family consisted of two older brothers and one older sister in the ROC and one sister who emigrated to Australia and lives here.

29. Ms Chen told the Tribunal that both of her brothers are married and have, between them, three children. Her sister who lives in the ROC is also married and has five children. Her parents, she confirmed, have passed away. She said she kept in contact with all of her siblings until the arrest and subsequent incarceration of her husband but said they had not had contact with her since that time.

30. Ms Chen gave evidence about the decline in her husband’s business. In terms of the offending, she said when he was away in the evenings (as it turns out, at the drug laboratory), he simply told her that he was going out with friends. She said that she still carried a significant debt in the sum of $36,000 which she has being paying off by monthly instalments, and that she had built up a good relationship with her bank who told her that many people with such large credit card debts make no effort to repay them. She said she has a part-time job for 20 hours per week. In terms of how she paid for the two trips she took with her son to the ROC, she said she had put aside fortnightly family tax benefit payments which she regarded as ‘for her son’ and used that money to fund the visits.

31. Ms Chen said she had suffered from depression and anxiety due to her husband’s incarceration but agreed that she had not had a professional diagnosis of these conditions. Ms Chen’s ROC passport was before the Tribunal (GD19, p 83), issued in 2004, but it expired in 2014. Ms Chen said she did not have the renewal fee at the time. Ms Chen told the Tribunal that she had made inquiries with the Taipei Office in Sydney which advised she can renew her passport, and that the processing time is around two weeks.

    Evidence of Dr Micke Hoong

32. Dr Hoong, a practitioner in Chinese medicine, gave evidence by telephone. The Tribunal had before it two statements from Dr Hoong, one dated 10 February 2019 (GD23, p 97) and another dated 8 October 2019 (Exhibit A2).

33. Dr Hoong emphasised that he had not professionally examined Mr Cho but provided his statements based on his personal acquaintanceship with him as a former customer who had become a friend of the family. He said that he had, however, seen Mr William Cho on a professional basis.

34. In terms of Mr Cho’s offending, Dr Hoong said he was aware Mr Cho had been convicted of a serious drug-related offence but didn’t want to go into too much detail. Dr Hoong said he had visited Mr Cho a number of times in prison and detention and said his personal belief is that Mr Cho has been rehabilitated and that he deeply regrets what he did and wants to start a new life. Dr Hoong said that should Mr Cho’s visa be restored, he would do what he could to support the family and provide counselling for them.

    CONSIDERATION OF DIRECTION NO. 79

35. The Tribunal considered the content of the Direction, including Part C which contains primary and other considerations to be taken into account when the decision relates to the revocation of mandatory cancellation of a non-citizen’s visa.

    Primary consideration: Protection of the Australian community from criminal or other serious conduct (paragraph 13.1)

36. The Direction requires decision-makers to give consideration to the nature and seriousness of the non-citizen’s conduct to date, and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

37. In terms of the nature and serious of the conduct, crimes committed against vulnerable members of the community are serious. The Tribunal regards persons who are either addicted to harmful drugs such as methylamphetamine, or who are susceptible to the lure of such addictive drugs, as within the category of vulnerability broadly encompassed by this particular part of the Direction. The Direction also requires the Tribunal to take into account the sentence imposed by the Courts. In this matter, the sentencing Judge noted that the maximum sentence for each of the offences Mr Cho pleaded guilty was life imprisonment. In the event, the Court imposed a substantial aggregated total sentence of 10 years, with a non-parole period of six years and six months.

38. In Mr Cho’s case, there is no evidence of frequency of offending and therefore an absence of any cumulative effect of re-offending. The Direction requires the Tribunal to take into account whether false or misleading information has been provided to the Department. The Tribunal noted that Mr Cho permitted a personal circumstances form to be lodged with the Department stating that he had no siblings, which he admitted was untrue. In the same form, he stated that his place of birth was “Gamburiya, Taiwan”, which was also untrue. It is not sufficient for the Applicant to say that perhaps he was not clear to the person who was helping him fill in the form; it is clear to me that this person would not have entered this information unless they had been told to do so by Mr Cho. In the order of seriousness compared with the seriousness of Mr Cho’s offending, this is a lower level matter, but it is still a serious matter, because it reveals willingness, in 2018, to provide false and misleading information to the Department.

39. It also troubled the Tribunal that, even knowing what was in the papers before me relating to his conviction, Mr Cho chose in responding to questions from the Respondent’s representative to minimise his involvement in the drug manufacturing operation, only somewhat reluctantly agreeing that he was in fact involved in manufacturing methylamphetamine.

40. The Tribunal is in no doubt that Mr Cho was significantly involved in this drug-making operation. That was the finding of the Court, but it is also clearly evident from the statement of agreed facts. In the telephone taps of conversations between Mr Cho and Chung, it is clear that the Applicant was discussing better ways to efficiently manufacture the drugs, including procuring additional equipment such as a heater and a stove top. It is evident he was working in the laboratory when Chung was not present. He was not simply acting under instructions or had a limited role, as he initially submitted.

41. I am also not satisfied that only a single batch of methylamphetamine was produced. That was Mr Cho’s contention, but when directly pressed by the Tribunal, he conceded that ‘test batches’ had been made. His own evidence was that on the early morning when he was arrested, Chung brought a blue bag which police discovered contained more than 19 kilograms of methylamphetamine, and put it in Chung’s car. Plainly, at that time there had to be more than one batch, because the batch that Mr Cho was working on had not yet dried. Similarly, in the statement of agreed facts (TB2, p 40), Mr Cho was seen by the police carrying a green bag from the drug laboratory to Chung’s home, after telephoning Chung to advise him he was ‘finished and on his way over’. It is plausible to the Tribunal that this green bag may either have contained drugs, or was being taken to Chung for the carriage of drugs. It is not necessary for the Tribunal to make a finding about this because, on the Applicant’s own evidence at the hearing about ‘test batches’, the evidence points towards more than one batch having been produced.

42. Mr Cho also gave evidence that he had been involved in the drug manufacturing operation for about a year. He had been involved in the selection of a suitable house, which was then rented by his co-offenders, and in the fit-out of the garage, including the jury-rigging of extensive electrical, ventilation and water supply systems to undertake the drug-making process.

43. The Tribunal notes that an aggravating element of this offending was the presence of an infant in the vicinity of the drug laboratory. The fact that the door between the house and the garage not only did not have a lock but was found by the police open, with baby toys adjacent to it, provides an indication that the child was at times in close proximity. The ingestion of methylamphetamine, as well as ingestion of some of the other highly toxic materials used in the manufacturing process, such as acetone, methylated spirits, caustic soda and toluene would result in harm. All these are substances which can have harmful effects on adults, sometimes simply by exposure to eyes and skin but also if ingested, and the toxic effect on a very small child could be exponentially worse.

1. The law in New South Wales also provides, in section 24(2A) of the Drug Misuse and Trafficking Act 1985 (NSW) a special category of offences where a child has been exposed to the manufacture of a prohibited drug, as was found in this case.

2. Adding to these very serious circumstances, the Tribunal views very seriously the element that the drug making operation Mr Cho was involved in was about a metre away from the fence of a child care centre. He agreed that traces of the substances used in the process had been discovered by forensic police on the play equipment in the grounds of that child care centre. The Respondent drew the Tribunal’s attention to a news report (TB8, p 126) stating that where a building has been used for drug manufacture, it must be professionally cleaned at very significant cost of, according to the report, “between $25,000 and $150,000”. There was no particular corroboration for this claim in the news story, but the Tribunal accepts as plain fact that the child in the house was exposed to danger in this enterprise, and unwitting children at the adjacent child care centre could potentially also have been at some risk of exposure, the extent of that exposure and the potential harm being unclear.

3. In terms of the risk to the Australian community should Mr Cho commit further offences, the Tribunal must take into account the nature of harm to individuals should the non-citizen engage in further criminal or other serious conduct, and the likelihood of this.

4. Mr Cho expressed regret for doing ‘such a stupid thing’. Mr Mathieson and Dr Hoong both were of the opinion that he would be unlikely to re-offend because of the effect his offending has had on his family. The only objective assessment before the Tribunal, in a criminogenic sense, of Mr Cho’s likelihood of re-offending was a Level of Service Inventory (LSI-r) undertaken by the NSW Department of Corrective Services which assessed him in 2014 as low risk of re-offending (TB1, p 3). The Tribunal did not have the actual assessment tool before it, only reference to the conclusion in a Corrective Services document.

5. Balancing this apparent assessment of risk is that Mr Cho presented no coherent plan of what he intended to do, if his visa is restored and he is released back into the community, other than a somewhat inchoate plan to re-open his business. The Tribunal was struck by the fact that, although he clearly regrets being caught and perhaps his actions, he partly explained them by the debt he had accrued. While he may have built up a reputation and a business as a mechanic, Ms Chen’s evidence was that the business had failed before, which led to her husband spending a year at home, and then it appears from the evidence he rebuilt it essentially by extending his and his wife’s credit card limit, which led into a debt spiral: he told the Tribunal he owed three months’ rent at the time of his arrest.

6. I take into account the reports before the Tribunal of what can only be described as his exemplary conduct while in prison and detention. The very fact that Mr Mathieson took his own time off to attend the hearing and to give evidence in support of Mr Cho’s skills and conduct speaks significantly for the Applicant. However, his family retains a very large debt, which was on his own evidence the catalyst that led him into being involved in this criminal enterprise. The sentencing Judge did not accept this submission and concluded that Mr Cho was motivated by greed, rather than financial strictures. If Mr Cho’s assertion is correct, the vulnerability for him to re-offend remains present. If His Honour’s conclusion is correct, one can come to the same conclusion. I also note, while accepting as genuine his expressions of love for his family, Mr Cho kept his criminal activities secret for over a year from his wife and, faced with similar pressures, whether financial or propelled by other motivations, he may succumb again. In all, I am satisfied that there is some risk, given that the environmental pressures on release remain, added by Mr Cho’s initial lack of frankness with the Tribunal, even after serving a substantial time in prison with time to reflect on his offending and on the risk of re-offending.

7. Even if one accepts the bald statements that only one batch of methylamphetamine was produced, the damage it would have wreaked on the Australian community is clear, as is the evidence accepted by the Court that sufficient material was discovered by the police in the garage laboratory for future batches. Methylamphetamine is a pernicious drug, and as the National Drug Strategy 2017-2025 (the Strategy) (TB5, p 54) makes plain, it has a malign influence on the Australian community in terms of contributing to mental illness, violent conduct and cardiovascular conditions. The Strategy states (TB5, p 87):

   In addition, 39.8% of Australians identified methylamphetamine as the illicit drug of most concern to the community (an increase from 16.1% in 2013). Violent behaviour is also more than six times as likely to occur among methylamphetamine dependent people when they are using the drug, compared to when they are not using the drug.

8. The Tribunal also adds that this particular illicit drug is a contributing factor in many personal and property offences, where addicts need funds to pay for their habit. The blithe disregard in this case for the child exposure to drugs, and for other children potentially being exposed, manifestly adds to the seriousness of this conduct by a non-citizen.

9. Balancing all the factors, the Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the visa, and relatively heavily so.

   Primary consideration: The best interests of minor children in Australia (paragraph 13.2)

10. The Respondent submitted that this consideration is neutral. The Tribunal notes that the Applicant’s son is not a minor and Ms Chen gave evidence that her sister’s children who live in Australia are middle-aged. There was no evidence before the Tribunal of Mr Cho having any significant relationships with other minor children in Australia who might be relevant to take into account.

11. The Tribunal finds that this consideration weighs neutrally.

    Primary consideration: Expectations of the Australian community (paragraph 13.3)

12. The Respondent submits that the Tribunal should have regard for the remarks of Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 that this consideration is inextricably linked to the protection of the Australian community and that the expectations referred to in the Direction are those espoused by the Government rather than any expectations put forward by an applicant. However, the Minister further submitted that it is not the case that this factor will always weigh against revocation and referred to the more recent decision in DKXY v Minister for Home Affairs [2019] FCA 495, at [30], but that the Tribunal should give effect to the ‘norm’ which will of its nature weigh in favour of refusal at least in most cases (see FYBR v Minister for Home Affairs [2019] FCA 500, at [42]).

13. The Tribunal generally accepts these submissions, but notes that it would be incongruous when exercising a discretion to do so in a vacuum, isolated from the circumstances of a non-citizen’s offending and other relevant factors, especially when paragraph 8(3) of the Direction makes clear that all primary considerations may weigh in favour of, or against, whether (in this case) to revoke the mandatory cancellation of a visa. FYBR v Minister for Home Affairs [2019] FCAFC 185 was handed down after this hearing but before the decision was made. In that judgment, Charlesworth J (for the majority) referred to a like clause in the predecessor to the Direction, but which has exactly similar wording at [73]:

    The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.

14. The Tribunal considers that the Australian community would take into account factors such as: the significant period Mr Cho has spent in the Australian community since arriving in 1987; that he met his wife in Australia, that he married her in this country; that he has an Australian citizen son; that he built a business here and employed other members of the community; and that he has good testimonials from some of his customers. However, it is my conclusion that the finding by the Court that Mr Cho was directly involved over an extended period in a clandestine drug manufacturing operation which took place very close to a child care centre, would tip the scale firmly against a community expectation that Mr Cho would retain a visa.

15. The Tribunal finds that this consideration weighs against revoking the mandatory cancellation of the visa, and heavily so.

    Other consideration: International non-refoulement obligations (paragraph 14.1)

16. The Direction requires a decision-maker to consider Australia’s international treaty obligations not to return a person to a place where they will be at risk of a particular type of harm. While it is possible Mr Cho has an entitlement to citizenship of Cambodia as his place of birth, it is not necessary for the Tribunal to further explore that, because the Tribunal is satisfied that the Applicant may return to the ROC as he has had a passport from that country, has renewed it since settling in Australia, and has travelled back to the ROC on four occasions since coming to Australia to live in 1987. The Tribunal notes that a requirement of an ROC passport is to be a national of that country.

17. Mr Cho did not advance before the Tribunal any claims that he would be placed at personal risk of a specific type of harm if repatriated to the ROC. He also did not make any claims that would indicate the Tribunal should consider complimentary protection aspects.

18. Mr Cho did make one submission orally and in writing that he could be charged for the offences of which he pleaded guilty in Australia, if returned to the ROC and was therefore vulnerable to ‘double jeopardy’. The Respondent submitted to the Tribunal that the Criminal Code of the Republic of China does contain specific offences which may empower prosecution in the ROC according to Article 9 of that Code:

    An offence is punishable under this Code despite that a finalized judgment has been rendered by a foreign tribunal; where the punishment has been entirely or partly executed in the foreign country, the execution of the punishment in the Republic of China may be entirely or partly remitted.

19. However, it is clear to the Tribunal from the extract of the Code before it (TB6, pp 106-109) that this potentiality only would arise, relevantly to Mr Cho, if he had been convicted of an offence involving opium, which he has not.

20. Ms Perotti further handed up the International covenant on civil and political rights (ICCPR) General Comment No. 32 relating to Right to equality before courts and tribunals and a fair trial. Although the ROC is not a member of the United Nations and not a party to the ICCPR, the Tribunal exercised its powers under section 33(1)(c) of the AAT Act to inform itself and is satisfied that the legislature of the ROC has taken the provisions of the ICCPR into the domestic law of that country.

21. Article 14 provides that the principle of ne bis in idem applies in relation to criminal offences: that a no person shall be liable to be tried or punished again for an offence of which they have already been finally convicted or acquitted in accordance with the law and penal procedure (of the country the person was in when the offence was committed).

22. The Tribunal is satisfied on the evidence before it that Mr Cho has not been convicted of an offence that would fall within the compass of what nonetheless is a discretionary power to prosecute in the ROC.

23. It is desirable for the Tribunal, notwithstanding that Mr Cho advanced no claims in his submissions or at the hearing that would potentially enliven the international protections relating to non-refoulement, to record that he has the capacity, if his visa is not restored, to apply for a protection visa and such an application would then be considered in accordance with a different Direction the Minister has made under section 499, Direction No. 75.

24. On the evidence before it, the Tribunal considers that this consideration carries neutral weight.

    Other consideration: Strength, nature and duration of ties to Australia (paragraph 14.2)

25. As mentioned above, Mr Cho has resided in Australia since 1987. He has made a productive contribution to the economy and the Australian community through his automotive repair business and has helped with fundraising at his son’s school.

26. There is no doubt that if Mr Cho’s visa is not restored and he leaves Australia, this will have a significant emotional impact on his wife and son. They have clearly stood by him throughout his long prison sentence, with frequent visits and contacts, and Mr Cho told the Tribunal he had worked within the prison environment to make even a small contribution towards household expenses. The Tribunal accepts the heartfelt sentiments expressed in Ms Chen and Mr William Cho’s written statements, and in their oral evidence, that the arrest and imprisonment of the Applicant has had a major effect on them.

27. Mr Cho suggested to the Tribunal that the Respondent was, in cancelling his visa, effectively “causing him to divorce”. The Tribunal cannot accept this submission. Ms Chen is a citizen of the ROC and there is no impediment to her returning there, if her husband is repatriated. Equally, their son is now an adult and can make his own decisions, noting that he is an Australian citizen and may have the right also to have citizenship of the ROC. The Tribunal is not deaf to the emotional strains that have been imposed on Ms Chen and their son by Mr Cho’s offending, but that regrettably is the direct consequence of his calculated and serious criminal acts.

28. On balance, because of Mr Cho’s length of time in Australia and his direct family here, this consideration weighs in favour of revoking the mandatory cancellation of the visa.

    Other consideration: Impact on Australian business interests (paragraph 14.3)

29. This part of the Direction stipulates that this consideration should only generally be given weight where non-revocation would significantly compromise the delivery of a major project or the delivery of a major service in Australia. There was no evidence from either party that this was the case in Mr Cho’s particular circumstances.

30. The Tribunal finds that this consideration weighs neutrally.

    Other consideration: Impact on victims (paragraph 14.4)

31. The Direction provides that a decision-maker should take into account the impact on victims where that information is available. Whilst manufacture of harmful and addictive drugs axiomatically has an effect on persons exposed to those drugs, the Tribunal takes into account Judge Sides’ comments (GD11, p 48):

    The Court is satisfied beyond a reasonable doubt the offences were premeditated but, as the drugs were seized, no harm was actually done in the community as a consequence of their distribution and consumption. However, the potential harm was significant and it was obviously not part of the enterprise that the police would intervene and seize the drugs that they had produced.

32. In the absence of available evidence, the Tribunal finds that this consideration weighs neutrally.

    Other consideration: Extent of impediments if removed (paragraph 14.5)

33. This part of the Direction requires the Tribunal to consider the extent of impediments Mr Cho may face if he is repatriated to the ROC in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of that country. Factors that should be taken into account are a non-citizen’s age or health, any substantial language or cultural barriers and any social or medical support available to them in that country.

34. The Tribunal notes that Mr Cho is middle-aged, which may have an impact on his ability to quickly find employment. However, the Tribunal also accepts the evidence of Mr Mathieson that Mr Cho has a natural talent with mechanical and electrical apparatus and considers that this would be an asset for him in the ROC in finding employment. The Tribunal also notes that Mr Cho’s formative training as a mechanic was in the ROC.

35. When questioning Mr Cho about his 1999 visit to the ROC to buy tyres, Ms Perotti asked the Applicant whether he had business contacts in that country. Mr Cho responded “You may say that.” The Tribunal observes that this answer was somewhat coy. When pressed about how he knew which wholesalers to go to, Mr Cho said he found them on the Internet. The Tribunal is unsure whether Mr Cho does, in fact, have business contacts in the ROC, which is possible given that he trained as a mechanic there and has travelled back periodically, and has had family there, including his wife’s family. In any event, while he has been in Australia for more than three decades, the ROC is not a strange place to Mr Cho, and the Tribunal considers, while it might be difficult, especially at first, he would be able to rebuild his contacts there, using his very employable skills.

36. No evidence was put forward that Mr Cho has any health issues, and the Tribunal notes that he is fluent in Cantonese, which is spoken by a percentage of people in the ROC, particularly newer migrants. In terms of the social welfare network in the ROC, the Tribunal understands there is a compulsory health insurance system for all workers, which is a subscription-based system, and there was no evidence before it that Mr Cho would not have the same access to that country-wide system that is available to other citizens of the ROC, once he gains employment.

37. Weighing these factors, the Tribunal finds that this consideration weighs neutrally in whether or not the mandatory cancellation of the visa should be revoked.

    CONCLUSION

38. The Tribunal is not limited, in this consideration, only to consider the factors set out in the Direction, in considering whether there is any other reason why the mandatory cancellation of Mr Cho’s visa should be revoked.

39. The two relevant primary considerations weigh against revoking the mandatory cancellation of the visa. One of the other considerations weighs in favour of revocation. The other considerations either weigh neutrally or on the facts are not engaged.

40. Mindful of the genuine nature of submissions made on Mr Cho’s behalf, especially by his direct family, the Tribunal finds that the conviction for being directly involved in the manufacture of a large commercial quantity of a seriously harmful drug is central in this assessment. The sentencing Judge concluded that the Applicant was motivated by greed. His Honour stated (GD11, pp 49-50), in relation to the Applicant and his co-offender Chung:

    The Court is satisfied in the case of each that they must have appreciated that they were enmeshing themselves in organised criminal activity. Both had a hands-on role as already indicated. The Court is satisfied that they were well up in the drug trafficking hierarchy but perhaps not in the upper echelons of it. Each of them was motivated by greed.

41. The release of this large quantity of such a harmful drug into the community would have had devastating effects. This was not a momentary ‘bad choice’ by a person. On Mr Cho’s own evidence the planning of this drug manufacturing enterprise went on for at least a year before he was arrested. It was a relatively sophisticated and premediated clandestine operation. He kept it secret from his wife. At this hearing he continued to depreciate significant elements of his involvement.

    DECISION

42. Taking all the evidence into account and weighing the considerations the Tribunal is obliged to in the Direction, the Tribunal has come to the conclusion that there is not another reason to revoke the mandatory cancellation of the visa held by Mr Chia Hua Cho. Therefore, the Tribunal finds that the delegate’s decision dated 8 August 2019 is the correct and preferable decision.

1. The reviewable decision is affirmed.

   List of Exhibits Tendered at Hearing

   A1Statement of Ms Shao Chen, undated and lodged by the Applicant on 9 October 2019

   A2       Statement of Dr Micke Hoong, dated 8 October 2019

   A3Statement of Mr William Cho, undated and lodged by the Applicant on 9 October 2019

   A4Statement of Mr Kent Mathieson, undated and lodged by the Applicant on 9 October 2019

   R1      Volume of ‘G’ documents lodged by the Respondent on 30 August 2019

   R2Tender bundle of summonsed documents, lodged by the Respondent on 2 October 2019

I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Senior Member D.J. Morris

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

Associate

Dated: 30 October 2019

Date(s) of hearing:	15 and 16 October 2019
Applicant:	In person
Solicitors for the Respondent:	Ms M Perotti - Sparke Helmore Lawyers