Cho v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 506
•21 April 2020
FEDERAL COURT OF AUSTRALIA
Cho v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 506
Appeal from: Cho v Minister for Home Affairs (Administrative Appeals Tribunal, No. 4939 of 2019, 30 October 2019) File number: NSD 1903 of 2019 Judge: MARKOVIC J Date of judgment: 21 April 2020 Catchwords: MIGRATION – application to review a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the first respondent not to revoke an earlier decision to cancel the applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) – application dismissed Legislation: Migration Act 1958 (Cth) ss 501(3A), 501(6)(a), 501(7), 501CA(4) Cases cited: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Date of hearing: 17 March 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 49 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr D A Hughes Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1903 of 2019 BETWEEN: CHIA CHAU CHO
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
21 APRIL 2020
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MARKOVIC J:
This is an application for judicial review of a decision by the Administrative Appeals Tribunal (Tribunal) made on 30 October 2019. The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) made on 8 August 2019 not to revoke an earlier decision to cancel the applicant’s, Chia Chau Cho, visa. The earlier decision to cancel Mr Cho’s visa was made by a different delegate of the Minister (Cancellation Delegate) on 29 January 2018 pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Act).
BACKGROUND
Mr Cho is a citizen of the Republic of China (ROC). He arrived in Australia on 14 September 1987, aged 22.
On 20 May 2014 Mr Cho pleaded guilty to, and was convicted of:
(1)taking part in the manufacture of a large commercial quantity of methylamphetamine and exposing a child to the manufacturing process; and
(2)supplying a large commercial quantity of methylamphetamine.
On 20 May 2014 Mr Cho was sentenced to: 10 years imprisonment with a non-parole period of 6 years and 6 months for the first offence; and 7 years and 6 months imprisonment with a non-parole period of 5 years and 6 months for the second offence.
On 29 January 2018, as noted above, the Cancellation Delegate decided to cancel Mr Cho’s visa under s 501(3A) of the Act because Mr Cho did not pass the character test and was serving a sentence of imprisonment on a full-time basis, having committed an offence against a law of the State of New South Wales. In the letter notifying Mr Cho of the cancellation of his visa, the Cancellation Delegate informed Mr Cho that he had an opportunity to make representations about revoking the cancellation decision and invited Mr Cho to make such representations to the Minister. The Cancellation Delegate’s letter set out how and by when those representations should be made.
On 20 February 2018 Mr Cho made representations to the Minister for revocation of the cancellation decision.
On 8 August 2019 the Delegate decided not to revoke the cancellation decision.
On 14 August 2019 Mr Cho applied to the Tribunal for a review of the Delegate’s decision not to revoke the cancellation decision.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides for mandatory cancellation of a visa in certain circumstances. That section provides:
The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Act provides that for the purposes of s 501 a person does not pass the character test if, relevantly, the person has a substantial criminal record as defined by s 501(7) of the Act which, in turn, relevantly provides that:
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; or
(Original Emphasis.)
Section 501CA of the Act applies if the Minister makes a decision, referred to as “the original decision”, under s 501(3A) to cancel a visa that has been granted to a person. Section 501CA(4) of the Act confers a discretion upon the Minister to revoke a cancellation decision made under s 501(3A). It provides:
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.
THE TRIBUNAL’S DECISION
The Tribunal set out Mr Cho’s background and the applicable legislative framework. Having found that Mr Cho failed the character test, the sole issue before the Tribunal was whether there was another reason why the cancellation decision should be revoked
In considering whether that was so the Tribunal noted that pursuant to s 499(2A) of the Act it was required to comply with “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction). Relevantly, at [15]-[16] of its decision record, the Tribunal observed that, 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 the considerations set out in Pt C of the Direction, which are classified as “primary considerations” and “other considerations”.
As the Tribunal noted, the “primary considerations”, set out in [13] of the Direction, are protection of the Australian community, best interests of minor children in Australia affected by the decision and expectations of the Australian community and the “other considerations”, set out in [14] 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.
Having regard to the Direction the Tribunal considered the matters set out below.
The Tribunal first considered the protection of the Australian community, a primary consideration. It found that the crimes committed by Mr Cho were serious and Mr Cho had tried to downplay his involvement in those crimes and only reluctantly agreed before the Tribunal that he had been involved in the manufacture of drugs. The Tribunal considered it to be very serious that the drug-making operation in which Mr Cho was involved was in close proximity with an infant and about one metre away from the fence of a childcare centre and that traces of substances used in the manufacturing process had been found on play equipment in the childcare centre’s grounds.
The Tribunal balanced Mr Cho’s evidence that he “expressed regret for doing ‘such a stupid thing’”, the evidence of two witnesses called by Mr Cho, who were both of the opinion that Mr Cho would be unlikely to reoffend because of the effect of his offending on his family, against the fact that Mr Cho provided no coherent plan of what he intended to do if his visa was restored and he was released back into the community.
Balancing all the factors the Tribunal found that the protection of the Australian community weighed “relatively heavily” against revoking the mandatory cancellation of Mr Cho’s visa.
As there was no evidence of Mr Cho having any significant relationships with a minor child in Australia who might be relevant to take into account, the Tribunal found that the best interest of minor children, as a primary consideration, weighed neutrally.
The Tribunal then considered the expectations of the Australian community as a primary consideration. It was of the opinion that the Australian community would take into account factors such as the significant period that Mr Cho has spent in the Australian community, that he met his wife and married her in Australia, 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, the Tribunal was also of the opinion that the finding of the District Court of New South Wales that Mr Cho was directly involved over an extended period in a clandestine drug manufacturing operation which took place very close to a childcare centre would “tip the scale firmly” against a community expectation that he should retain a visa. Accordingly, the Tribunal found that the expectations of the Australian community weighed heavily against revocation.
The Tribunal then turned to consider the “other considerations”, commencing with international non-refoulement obligations. The Tribunal found that Mr Cho had not advanced any claims that he would be placed at personal risk of a specific type of harm if repatriated to the ROC and did not make any claims that would indicate that the Tribunal should consider complementary protection.
The Tribunal then noted that Mr Cho made one oral and written submission that he could be charged for the offences to which he pleaded guilty in Australia if he returned to the ROC and thus was vulnerable to double jeopardy. However, based on the extract of the Criminal Code of the Republic of China (ROC Code), on which Mr Cho relied, the Tribunal found that this would only arise if Mr Cho had been convicted of an offence involving opium, which was not the case.
The Tribunal also found that the legislature of the ROC has taken the provisions of the International Covenant on Civil and Political Rights General Comment No 32 relating to “Article 14: Right to equality before courts and tribunals and to a fair trial” into its domestic law and that Art 14 provides that the principle of ne bis in idem applies in relation to criminal offences. That is no person shall be liable to be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in accordance with the law and penal procedure of the country the person was in when he or she committed the offence. The Tribunal was satisfied that Mr Cho had not been convicted of an offence that would come within the compass of a discretionary power to prosecute in the ROC.
Based on the evidence before it, the Tribunal concluded that this consideration weighed neutrally.
In relation to the strength, nature and duration of ties to Australia, the Tribunal found that Mr Cho’s departure from Australia would have a significant emotional impact on his wife and son. However, it noted that his wife and perhaps also his son would be able to join him in the ROC. On balance, given the length of time Mr Cho has spent in Australia and his immediate family living in Australia, the Tribunal found that this consideration weighed in favour of revoking the cancellation decision.
The Tribunal then considered the impact on Australian business interests but found, in the absence of evidence that a decision not to revoke would significantly impact the delivery of a major project or service in Australia, that this consideration weighed neutrally.
In relation to impact on victims, the Tribunal took into account the sentencing judge’s comments to the effect that, although the offences were pre-meditated, because the drugs were seized no harm was done, albeit that the potential harm, had the drugs not been seized, was significant. The Tribunal found that this consideration weighed neutrally.
Finally, in relation to the extent of impediments if removed, the Tribunal noted Mr Cho’s evidence about his visits to the ROC and his wife’s family who still resides there and found that, while it may be difficult at first, he would be able to rebuild contacts in the ROC “using his very employable skills”. The Tribunal also found that Mr Cho is fluent in Cantonese which is spoken by a percentage of people in the ROC, that there was no evidence that he had any health issues or that he would not have access to the compulsory health insurance system for all workers once he gained employment. The Tribunal concluded that this consideration weighed neutrally.
The Tribunal then balanced the competing considerations, noting that two of the primary considerations weighed against revocation and one of the other considerations weighed in favour of revocation while the balance of the considerations were neutral or, on the facts, did not arise. The Tribunal found that Mr Cho’s conviction for being directly involved in the manufacture of a seriously harmful drug was central to its assessment. Taking all of the evidence into account and weighing all of the considerations, the Tribunal concluded that there was not another reason to revoke the cancellation decision and thus found that the Delegate’s decision was the correct and preferable decision.
GROUNDS OF REVIEW
Mr Cho raises two grounds of review in his originating application lodged with the Court on 15 November 2019. They are:
1.There was a lack of procedural fairness when the Tribunal referred to the Criminal Code Of the Republic of China only in part. They mentioned that I would not be subject to prosecution for the crimes that I committed in Australia, basing on article 5 of the code, which states that because my offence was not Opium related, I am not liable to prosecution on return to the Republic of China. However, directly above it is Article 7, which states that
This Code shall apply where any national of Republic of China commits an offence which is not specified in one of the two preceding articles but is punishable for not less than 3 years of imprisonment outside the territory of the Republic of China; unless the offence is not punishable by the law of the place where the offence is committed.
My conviction had a maximum possible sentence of life imprisonment, therefore that means I can be subjected to prosecution, and this is elevated by the fact that there was a child in the vicinity of the premises where the offences occurred. The Tribunal also accepted the use of the International [Covenant] On Civil And Political Rights. It acknowledged that ROC is not a party to the ICCPR, and was satisfied that the ROC has taken the provisions of the ICCPR into domestic law of that country. A major question arises, where unique cases such as mine arise, will the government of the ROC choose to follow the ICCPR, which they are not bound by or they will do anything they deem necessary. There have been reports of gross human rights violations in the ROC (see and this is evidence that the ROC will not be bound by ICCPR. I am of the view that this particular consideration should not have been given neutral weight in the decision making.
2.The second ground is that the Tribunal made an assumption that I still have contacts in the ROC. This is not true as I have not been to the ROC for a long time and also the limited contacts that I had are literally non-existent since my incarceration.
Mr Cho is not legally represented and has not filed any submissions in support of his grounds of review. However, he relies on his affidavit affirmed on 15 November 2019 which was filed with his originating application and which relevantly includes the following, concerning only the first ground of review:
2.The first issue I believe is that the Tribunal did not give any weight to [non-refoulement] obligations that may arise as a result of my deportation from Australia which will happen if my visa cancellation is not revoked. For this, the Tribunal made reference to the Criminal Code of the Republic of China, as presented to it by the Respondent. Whilst this was valid, there was also an issue where they looked at this code in part and looked at issues that would not support revocation. However, on the same criminal code, there is an article which states that because my sentence was more than 3 years, I may be liable to prosecution on return to the Republic of China.
3.The Article in question (Article 7) states that:
This Code shall apply where any national of Republic of China commits an offense which is not specified in one of the two preceding articles but is punishable for not less than 3 years of imprisonment outside the territory of the Republic of China; unless the offense is not punishable by the law of the place where the offense is committed.
My Offences carried a maximum of life imprisonment, therefore it is more than likely that I would be charged for these offences. Within my charge sheets, which would be made available to the Republic Of China were I to be deported, it is clearly stated that there was endangering of a minor involved in my offence, therefore there would be an elevated risk to the punishment I can suffer as a result of being returned to China. I am of the view that this particular consideration, if it had looked at the Criminal code as a whole, would have weighed in favour of revocation.
4.The representative of the Respondent also submitted the International Covenant On Civil And Political Rights. The Tribunal acknowledged that the ROC is not a party to the ICCPR, but exercised its powers to inform itself and is satisfied that the legislation of the ROC has taken provisions of the ICCPR into the domestic law of the country. If this finding is true, I am of the view that as they are not bound by the ICCPR, the [sic] selectively apply where they use it. There is widespread reports of Human Rights violations, and this is evidence that the ROC does not respect the ICCPR (see It is my view that relying on this documentation was not fair in relation to my case.
The Minister relies on an affidavit affirmed by Monica Kate Forrester Perotti on 11 March 2020, a solicitor in the employ of the Minister’s solicitors who has carriage of the matter, in which Ms Perotti deposes to service on Mr Cho of the Minister’s statement of facts, issues and contentions dated 2 October 2019 (SFIC) filed in the Tribunal and the tender bundle relied on by the Minister in the Tribunal.
Ground 1
Ground 1 alleges denial of procedural fairness in relation to the Tribunal’s consideration of the ROC Code.
Clause 14.1 of the Direction obliged the Tribunal to consider whether Australia owed Mr Cho non-refoulement obligations. It did so at [78]-[86] of its decision record.
In his personal circumstances form dated 21 February 2018 which accompanied his request for revocation of the cancellation decision, Mr Cho responded positively to the question “Do you face any criminal charges/convictions in your country of citizenship?”. In response to the next question “If yes, what would happen about these matters on your return?” Mr Cho said:
I will probably be charged for the matters I have already been convicted of in Australia. I would then be punished twice for the same charge.
The Delegate did not consider that this statement by Mr Cho raised any non-refoulement considerations. The claim was referred to at [75] of the Delegate’s decision record in the context of addressing the extent of impediments to Mr Cho if removed to the ROC where the Delegate said:
I have had regard to Mr CHO’s expressed fear that if he returned to Taiwan he would be further punished for his Australian convictions and sentenced to serve further jail time.
Mr Cho did not raise any issue or criticism of the Delegate’s decision in this regard. However, in the SFIC the Minister addressed non-refoulement issues as follows:
44.The applicant claims that he would “probably” be charged for the matters he has already been convicted of in Australia, and would be punished twice for the same charge through further jail time in Taiwan. The applicant has not provided any evidence or detailed submissions to support this claim. Nor has he made any application for a protection visa. For the reasons that follow, the Minister submits that this consideration does not weigh in favour of the applicant.
45.First, there is nothing to indicate that the authorities in Taiwan are aware, or would be made aware, of the applicant’s drug trafficking offences.
46.Second, pursuant to articles 5, 9 and Chapter 20 of the Criminal Code of the Republic of China (Taiwan), the applicant’s offending does not fall within the offences which attract the re-prosecution of a Taiwan national upon return.
47.Third, it is highly relevant to the Tribunal’s weighing exercise that the applicant is able to make an application for a Protection visa to have his claims assessed and tested under the protection visa regime. That being so, should the Tribunal affirm the delegate’s decision, the applicant would have the opportunity to ventilate any claim to fear harm by way of an application for a Protection visa. Noting the existence of Direction 75 which requires delegates to assess an applicant’s protection claims prior to the ineligibility criteria or refusal under s.501 of the Act, it is arguable that the obligation to consider non-refoulement obligations does not compel the Tribunal to make a determination on whether non-refoulement obligations are owed.
48.To the extent that the Tribunal needs to consider international non-refoulement obligations as distinct from protection obligations under the Act, the Minister respectfully submits that the applicant has not set out any claim regarding this consideration, let alone “a serious and substantive basis in fact and in law” for such a contention.
49.Accordingly, the Minister submits that this factor is neutral.
(Original emphasis.) (Footnotes removed.)
As set out at [22] above, before the Tribunal Mr Cho made an oral and written submission about this issue which the Tribunal addressed, making two findings. The first was as to the operation of the law of the ROC, namely that Mr Cho had not been convicted of an offence that would fall within the ambit of discretionary power to prosecute in the ROC (see [23] above), and the second was that Mr Cho had not raised any claims that would potentially enliven Australia’s protection obligations (see [21] above). This ground only attacks the first of the Tribunal’s findings.
As submitted by the Minister, for the following reasons this ground must fail.
First, as set out above, prior to the hearing before the Tribunal Mr Cho was provided with material about the ROC Code and the Minister’s SFIC which, in turn, addressed the issue of international non-refoulement obligations. Mr Cho appeared at the Tribunal hearing and gave evidence, called witnesses and made submissions including a submission about the ROC Code. There is no basis upon which it can be said that he was denied procedural fairness in relation to the Tribunal’s consideration of the ROC Code.
Secondly, as is well accepted, materiality is essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision: see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45]. Given that the Tribunal’s second finding, which is not the subject of attack, provides an independent basis for the Tribunal’s conclusion to give neutral weight to the consideration of whether Australia owed Mr Cho any non-refoulement obligations, any error on the part of the Tribunal as alleged would be immaterial and would thus not go to jurisdiction.
There is no error in the Tribunal’s second finding. Mr Cho had not made any claims that would potentially enliven Australia’s protection obligations pursuant to s 36 of the Act. Paragraph 14.1(1) of the Direction provides that:
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
That is the Direction directs the Tribunal to follow the tests for non-refoulement set out in the Act. Taken at its highest, Mr Cho’s claim is that if he returns to the ROC he may face re-prosecution and be imprisoned by reason of his pleading guilty to a serious drug crime in Australia. However, even if that were so, Australia’s non-refoulement obligations under the Act would not be engaged because Mr Cho’s imprisonment would not be for a “Convention” reason and thus he would have no claim under s 36(2)(a) of the Act. Similarly, imprisonment would not meet the definition of significant harm in s 36(2A) of the Act and so Mr Cho would have no claim to complementary protection under s 36(2)(aa) of the Act.
The Tribunal made findings about the ROC Code. That was a question of fact for the Tribunal about which it was entitled to make findings based on the material before it, as it did. Given the independent basis on which the Tribunal reached its conclusion, which is not the subject of challenge and in which there is no error, any error in the Tribunal’s finding in that regard, if made out, would not be material and would thus not amount to jurisdictional error.
Ground 2
By this ground Mr Cho alleges that the Tribunal erred in holding that he still has contacts in the ROC. At the hearing Mr Cho submitted that before the Tribunal the Minister had submitted that he still has contacts in the ROC but that is not the case. He said that he could not provide any evidence for that and it is only “their assessment”. He submitted that he has been in Australia for 32 years and that he travelled to the ROC prior to 1999 but has not returned since then. Thus he wonders what type of contacts he could have there. For completeness I note that the material before me established that in fact Mr Cho’s last trip to the ROC was in March 1999.
The Tribunal’s findings about Mr Cho’s contacts in the ROC are set out at [97] of its decision record and are as follows:
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.
The Tribunal found Mr Cho’s evidence about whether he had business contacts in the ROC to be “somewhat coy” and, ultimately, it was unsure about whether he did have business contacts there. The Tribunal concluded that Mr Cho “would be able to rebuild contacts”, acknowledging that it might be difficult at first. In other words, the Tribunal did not make any finding that Mr Cho still has contacts in the ROC. Accordingly, this ground must fail.
CONCLUSION
As Mr Cho has not made out either of his grounds of review, his application should be dismissed and, as he has been unsuccessful, he should pay the Minister’s costs as agreed or taxed.
I will make orders accordingly.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. Associate:
Dated: 21 April 2020
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