Chong and Minister for Immigration and Multicultural Affairs (Migration)
[2024] ARTA 182
•7 February 2025
Chong and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 182 (24 December 2024)
Applicant:Kit Wing Chong
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/8207
Tribunal:General Member Cosgrave (second review)
Place:Brisbane
Date of decision: 24 December 2024
Date of reasons: 7 February 2025
Decision:The Tribunal sets aside the decision under review.
................[Sgnd]............................................
General Member Cosgrave
Catchwords
MIGRATION – Class VB Subclass 887 Skilled Regional (Permanent) visa cancellation –failure to pass good character test – whether there is another reason to set aside the mandatory visa cancellation – possession and manufacture of prohibited drugs – contraventions of orders – Singaporean law – Ministerial Direction No. 110
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 492 (2 February 2024)
Demir V Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Dharma and Minister for Home Affairs [2018] AATA 2757
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
GJJF and Minister for Home Affairs (Migration) [2019] AATA 930
GTPT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]
AATA 3246
Holloway V Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Murphy v Minister for Home Affairs [2018] FCA 1924
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Pavey and Minister for Home Affairs [2019] AATA 4198
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
QKVH and Minister for Home Affairs [2020] AATA 4431
Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888
Rana and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1327
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146
VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 649
Secondary Materials
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)
Statement of Reasons
INTRODUCTION
Mr Chong is seeking review of the Minister’s (the Minister or the Respondent) delegate’s 4 October 2024 decision (the reviewable decision) not to revoke the mandatory cancellation of his Class VB Subclass 887 Skilled Regional (Permanent) visa (the Visa).[1]
[1] Exhibit R1: G4, 27.
The hearing was held in Brisbane on 5 and 6 December 2024. Mr Chong represented himself. Ms Jackson of MinterEllison represented the Respondent.
This was an expedited matter. Under s 500(6L) of the Migration Act 1958 (the Act), the Tribunal was effectively required to make a decision by 30 December 2024. On 24 December 2024, the Tribunal met its 84-day statutory obligation[2] by providing a short form decision in which it affirmed the decision under review.[3] The Tribunal now gives its reasons for its decision.
[2] Pursuant to s 500(6L) of the Migration Act 1958 (Cth).
[3] Khalil v Minister for Home Affairs (2019) 271 FCR 326 [41]–[48].
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
Mr Chong is a fifty-three-year-old[4] Singapore citizen who has resided in Australia since July 1994.[5] He was granted the Visa on 7 June 2010.[6]
[4] Exhibit R1: G6, 42.
[5] Exhibit R1: G28, 231.
[6] Exhibit R1: G5, 36.
On 1 July 2022 Mr Chong was sentenced to an eighteen-month sentence of imprisonment after his conviction for Possession a Prohibited Drug, namely methamphetamine, with an Intent to Sell or Supply that Drug to Another (the Index Offence).[7]
[7] Exhibit R1: G6, 43.
On 21 July 2022 his Visa was cancelled under s 501(3A) of the Act.[8]
[8] Exhibit R1: G3, 14.
On 1 August 2022 he made representations seeking revocation of the cancellation of his Visa.[9]
[9] Exhibit R1: G11, 75.
On 4 October 2024 a delegate of the Respondent decided, applying s 501CA(4), not to revoke the cancellation decision (the reviewable decision).[10]
[10] Exhibit R1: G3.
On 17 October 2024 he lodged an application with the Tribunal for review of the delegate’s decision.[11]
[11] Exhibit R1: G11, 1.
LEGAL FRAMEWORK
Section 13 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) and s500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Under s 501CA(4) of the Act, the Respondent may revoke a visa cancellation decision if:
(a)representations have been made by the person in accordance with the invitation;[12] and
(b)the Respondent is satisfied that:
(i)the person passes the character test;[13] or
(ii)there is another reason why the original decision should be revoked.[14]
[12] Pursuant to s 501CA(4)(a) of the Act.
[13] Pursuant to s 501CA(4)(b)(i) of the Act.
[14] Pursuant to s 501CA(4)(b)(ii) of the Act.
The Tribunal is satisfied that Mr Chong made the representations required by s501CA(4)(a).[15]
[15] Exhibit R1: G2, 4-15.
THE TRIBUNAL’S TASK
Mr Chong’s Visa was cancelled because the delegate considered that he failed the character test, defined in s 501, as required under s 501CA(4)(b)(i). The Tribunal is also satisfied, based on his criminal record, that he does not pass the character test set out in s 501(6)(a).[16]
[16] Exhibit R1: G6, 43.
Section 501CA(4) specifies the Tribunal’s task.[17] When the Tribunal assesses and considers the factors weighing for and against whether there is another reason to set aside a visa cancellation, s499(2A) of the Act requires it to comply with Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[18]
[17] Minister for Immigration and Border Protection v Makasa [2021] HCA 1.
[18] Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 [38].
Paragraph 5.2 of the Direction sets out principles that provide a framework within which the Tribunal should approach its task.[19]
[19] Direction: [5.2].
Paragraph 6 of the Direction provides that, informed by the above principles, a
decision maker must consider the Primary and Other considerations described in paragraphs 8 and 9 of the Direction where relevant to their decision‑making.
The Direction requires the Tribunal to take the primary and other considerations into account. Primary Consideration 1 is generally to be given greater weight than other primary considerations.[20]
[20] Direction: [7(2)].
Paragraph 8 of the Direction specifies the following primary considerations:
(1) The protection of the Australian community from criminal or other serious conduct.
(2) Whether the conduct engaged in constituted family violence.
(3) The strength, nature and duration of ties to Australia.
(4) The best interests of minor children in Australia.
(5) The expectations of the Australian community.
Paragraph 9 of the Direction sets out the other considerations to be assessed where relevant:
(a)The legal consequences of the decision.
(b)The extent of impediments if removed.
(c)The impact on Australian business interests.
The Tribunal is not precluded from finding that a consideration specified under paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under paragraph 8 of the Direction. This depends on each matter’s specific circumstances.[21] The weighing process is substantively left to the individual decision maker exercising the relevant power under s501 of the Act.[22]
[21] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[22] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
EVIDENCE
The Tribunal received written evidence during the hearing, which is attached to this Decision and marked ‘Annexure A’. The Tribunal heard testimony from Mr Chong. The Tribunal also identified several documents as statements provided or written by Mr Chong which he agreed were true and correct.[23]
[23] Exhibit R1: G11, G12, G13, G14, G15, G16, G17, G18, G19, G20, G21 and G22.
PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
When considering Primary Consideration 1, the Direction requires the Tribunal to be mindful that the Australian government’s highest priority is the Australian community’s safety. The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Serious conduct includes behaviour or conduct that does not constitute a criminal offence.
The Tribunal has considered the nature and seriousness of Mr Chong’s conduct to date, relying on the evidence and testimony before it, and assessed these in terms of the factors set out in paragraph 8.1 of the Direction.
The Tribunal must also take into account the Direction’s stated principle that entering or remaining in Australia is a privilege that this country confers on non-citizens with the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.[24]
[24] Direction: [5.2(1)]
In considering Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to address and consider two limbs of inquiry:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 8.1.1: The nature and seriousness of Mr Chong’s conduct to date
Paragraph 8.1.1(1) sets out a series of factors (in subparagraphs (a) to (h)) that the Tribunal must assess, where relevant, in considering the nature and seriousness of Mr Chong’s criminal offending or other conduct to date.
Summarising Ms Jackson’s contentions on this point:[25]
(a)The primary focus is on Mr Chong’s 2022 conviction for possession of a prohibited drug with intent to sell or supply (methylamphetamine), for which Mr Chong received an eighteen-month prison sentence.
(b)In the 2022 incident, police found Mr Chong in possession of multiple quantities of methylamphetamine (0.07 grams and 4.62 grams), cash totalling $5,380, drug paraphernalia, and a Samsung tablet which the sentencing judge considered implicated the applicant in the sale and supply of methylamphetamine. The sentencing judge determined these items indicated involvement in drug distribution and emphasised the serious nature of the offence, citing both commercial motivation and the applicant's personal drug dependency.
(c)The Respondent highlights a pattern in Mr Chong’s escalating criminal behaviour, documenting his multiple prior drug-related convictions. These include a 2014 drug paraphernalia possession, a significant 2018 conviction involving 24.1 grams of methylamphetamine (resulting in a twenty-seven month prison sentence), and subsequent possession offences in 2020 and 2021.
(d)Addressing Mr Chong’s 2023 manufacturing conviction, police discovered equipment and chemicals capable of producing 2.83 grams of methylamphetamine. The judge emphasised three aggravating factors in sentencing Mr Chong: he was on bail for the 2022 offence, the manufacturing operation posed risks to other residents and law enforcement, and his deliberate decision to produce methylamphetamine, albeit for personal use.
(e)Mr Chong’s Visa was previously cancelled in July 2018 following the serious supply offence but was reinstated in January 2019 with a formal warning about future conduct. The Respondent argues that Mr Chong’s pattern of repeated offending, including numerous driving and traffic violations, demonstrates a persistent disregard for the law and has consumed significant judicial resources. Based on these factors, the Respondent contends that the nature and seriousness of Mr Chong’s criminal offending weighs heavily against setting aside the reviewable decision.
[25] Exhibit R2: Respondent’s SFIC, [22] – [30].
In testimony, Mr Chong agreed with the record of his offending.[26] His written statements tend to conflate the nature and seriousness of his offending with the risk he poses to the Australian community in terms of re-offending, but the following paragraphs are on point:[27]
(a)“I stand before you today, fully acknowledging the gravity of my past actions. My involvement with drugs, particularly methamphetamine, led to two periods of imprisonment that I deeply regret. I take full responsibility for these choices, understanding the harm they caused not only to myself but to my family and the wider community. My first offence in 2015, possession with intent to supply 24 grams of methamphetamine, was a stark departure from the life I had aspired and built. The breakdown of my marriage had plunged me into despair, anxiety, and depression. While these circumstances contributed to my poor decisions, I do not offer them as excuses but facts that led to what happened. I recognise that turning to drugs as a coping mechanism was a grave error that compounded my problems rather than solving them.”
and
(b)“The remarks of Judge DCJ Flynn of my last court appearance, has made a very lasting impression in my mind. Regarding admission to my mistakes and accountability, he said “I do accept that you are sorry…….that you will seek to make amends……...most important mitigating factor….you have accepted responsibility now…pleading guilty not only indicates your acceptance of responsibility but you co- operated with the process of the law…...has a very practical benefit to the legal system”.”
[26] Exhibit R1: G6.
[27] Exhibit A2: 1-2.
The Tribunal’s consideration: The nature and seriousness of Mr Chong’s conduct
When assessing the nature and seriousness of Mr Chong’s criminal offending or other conduct to date, the following elements of paragraph 8.1.1(1) are enlivened:
·the nature and seriousness of his criminal offending or other conduct to date;[28]
·the sentences imposed for his criminal offending;[29]
·the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available, and Mr Chong has been afforded procedural fairness;[30]
·the frequency of his offending and the trend of increasing seriousness;[31]
·the cumulative effect of his repeated offending;[32]
·whether he provided false or misleading information to the Respondent, including by not disclosing prior criminal offending; and
·whether Mr Chong re-offended since being formally warned about the consequences of further offending in regard to his migration status.[33]
[28] Direction: [8.1.1(1)(a)].
[29] Direction: [8.1.1(1)(c)].
[30] Direction: [8.1.1(1)(d)]
[31] Direction: [8.1.1(1)(e)].
[32] Direction: [8.1.1(1)(f)].
[33] Direction: [8.1.1(1)(h)].
Addressing paragraph 8.1.1(1)(a) and considering the evidence about the Index Offence,[34] the Tribunal finds that his offending can be categorised as serious.
[34] Exhibit R1: G6, G7.
Additionally, the Tribunal will consider Mr Chong’s driving offending here.[35] This history between 1997 and 2018 includes offences such as two charges of No authority to drive – suspended, Fail to give way to oncoming traffic when turning right, Used a mobile phone whilst driving a vehicle, Exceed speed limit in a speed zone - between 20 and 29km/h, and Exceed 0.05g alcohol per 100ml of blood.[36] The duration (twenty-one years) and potential impact of his driving offending are substantial concerns.
[35] Per Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561.
[36] Exhibit R1: G6.
Addressing paragraph 8.1.1(1)(c), Mr Chong was sentenced to four terms of imprisonment. The first, in 2018, involved a sentence of twenty-seven months’ imprisonment. The second and third, in 2022, involved the Index Offence for which he received a sentence of eighteen months’ imprisonment and a separate conviction of Possession of stolen or unlawfully obtained property for which he received a sentence of ten months’ imprisonment running concurrently with the eighteen months’ imprisonment. The fourth was a sentence of eight months’ imprisonment in 2023 for Manufacture a Prohibited Drug.[37] These sentences support the finding that Mr Chong’s offending was serious. This is tempered by His Honour Judge Goetze’s 2022 comments when sentencing Mr Chong that the drugs offence carried a maximum twenty-five year imprisonment penalty and that in sentencing Mr Chong as a personal deterrent, His Honour was also imposing imprisonment as a general deterrent to others.[38]
[37] Exhibit R1: G6.
[38] Exhibit R1: G7, 47, 49.
Addressing paragraph 8.1.1(1)(d), there is no information before the Tribunal. Aside from the clear and present risk that illicit drugs pose to the community, this paragraph does not add to the finding that Mr Chong’s offending was serious.
Addressing paragraph 8.1.1(1)(e), an analysis of Mr Chong’s criminal record suggests a pattern of sporadic outbursts of offending between 2015 and 2023 rather than a coherent frequency.[39] There is a trend of increasing seriousness from 2015 to 2022 and what appears as a plateau in the seriousness of his offending after that.[40] This supports the finding that Mr Chong’s offending was serious.
[39] Exhibit R1: G6.
[40] Exhibit R1: G6.
Addressing paragraph 8.1.1(1)(f), there is no specific information on the cumulative effect of Mr Chong’s offending before the Tribunal. It is reasonable to assess that his offending has imposed compounding costs on Western Australia’s police and judicial systems. This offers qualified support for the finding that Mr Chong’s offending was serious.
Addressing paragraph 8.1.1(1)(f), the evidence suggests Mr Chong provided false or misleading information to the Respondent on Incoming Passenger cards dated 14 October 2013 and 16 April 2014,[41] relative to his driving offence convictions in 1997, 2007, 2010 and 2012.[42] This supports the finding that Mr Chong’s offending was serious.
[41] Exhibit R1: G27.
[42] Exhibit R1: G6.
Addressing paragraph 8.1.1(1)(h), the Respondent’s department cancelled Mr Chong’s earlier visa on 18 July 2018. On 22 July 2019, the department revoked the cancellation and warned Mr Chong that further offending by him may result in cancellation.[43] This supports the finding that Mr Chong’s offending was serious.
[43] Exhibit R1: G26.
The Tribunal’s finding: The nature and seriousness of Mr Chong’s conduct
The Tribunal has sought above to apply and consider each of the relevant subparagraphs appearing in paragraph 8.1.1(1) of the Direction.
With reference to the relevant and applicable paragraphs referred to above and after a holistic consideration of Mr Chong’s offending and the relevant elements of this Primary Consideration, the Tribunal finds that Mr Chong’s criminal offending and other conduct should be characterised as serious.
Paragraph 8.1.2: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Addressing the second limb of Primary Consideration 1 and summarising paragraph 8.1.2 of the Direction:
(a)In considering the need to protect the Australian community, the Tribunal should consider that the Australian community is less willing to accept any risk of harm if the potential harm is serious. If certain actions are very harmful, even the possibility of them happening again may be too much of a risk to accept.
(b)When deciding whether a non-citizen poses a risk to the community, decision makers should consider:
i.How serious the resulting harm would be if the non-citizen committed another serious crime or engaged in serious conduct.
ii.How likely it is that the non-citizen will commit another crime, looking at:
·Evidence of how likely they are to re-offend.
·Any rehabilitation they have undergone by the time of the decision, and how long they have been out of trouble.
(c)The objective here in this limb of Primary Consideration 1 is to carefully weigh the seriousness of possible harm, the likelihood of re-offending, and any evidence of change when making decisions about a non‑citizen’s risk to the community.
Mr Chong has extensively documented his contentions and evidence in relation to this limb.[44]
[44] Exhibit A1; Exhibit A2; Exhibit R1: G11, G12, G13, G14, G15, G16, G17, G18, G19, G20, G21, G22 and G30; Exhibit A3.
The Tribunal has summarised Ms Jackson’s contentions, drawing on the Respondent’s Statement of Facts, Issues and Contention[45] and the Respondent’s Reply[46] as follows:
(a)Potential Harm to the Australian Community: The Respondent emphasises the significant risk of physical and psychological harm to the Australian community if Mr Chong re-offends. The sentencing judges have highlighted the devastating impact of methylamphetamine’s distribution and manufacturing on Australian society. The judges specifically noted Mr Chong’s role in distributing unverified substances for profit and the potential dangers posed by the manufacturing process to both the community and police.
(b)Rehabilitation Efforts and Progress: Mr Chong has demonstrated some positive behaviours, including being assessed in prison as a low risk for general offending and maintaining good conduct while in prison. He has participated in cognitive behavioural therapy, sought treatment for addiction and mental health issues, and completed numerous rehabilitation courses. A psychological assessment diagnosed him with Major Depressive Disorder and Generalised Anxiety Disorder, for which he received treatment between July 2021 and June 2022. However, the Respondent observes that Mr Chong was actively offending during this treatment period, which diminishes this evidence’s weight.
(c)Ongoing Risk Assessment: Despite Mr Chong’s rehabilitation efforts, the Respondent contends that he remains an unacceptable risk to the community for several reasons. First, past legal consequences and family responsibilities have not deterred his from re-offending, nor have previous demonstrations of remorse. He has committed offences while on bail and after receiving formal warnings about his visa status. The Respondent contends that rehabilitation programs have been ineffective in preventing his continued criminal activity.
(d)Post-Release Support and Planning: Mr Chong has potential support structures in place, including accommodation and financial assistance offered by his uncle and a possible employment opportunity through atWork Australia. However, the Respondent assigns limited weight to these arrangements, citing insufficient detail regarding concrete steps taken to secure these opportunities. An August 2023 parole review highlighted concerns about the lack of a viable parole plan, including issues with the proposed accommodation, employment, and post-release support systems.
(e)Mr Chong’s Current Status and Future Outlook: Recent developments raise additional concerns about Mr Chong’s rehabilitation prospects. While he has attended some programs in detention, including anger management sessions, his refusal to undergo drug and alcohol assessment and his assertion that he does not have substance abuse issues are disturbing. The Respondent concludes that without clear evidence of addressing addiction issues and underlying causes of offending, there remains a significant risk of recidivism, weighing heavily against setting the reviewable decision aside.
The Tribunal’s finding: The nature of the harm to individuals or the Australian community were Mr Chong to engage in further criminal or other serious conduct
[45] Exhibit R2.
[46] Exhibit R3.
The evidence and testimony before the Tribunal enables the Tribunal to infer and find that, if Mr Chong is allowed to remain in Australia and then engages in further criminal or other serious conduct of the types he has previously committed or executed, the result would involve serious physical harm to the potential individual victims and also cause harm, cost and detriment to the Australian community at large. The Tribunal tempers this by a further finding that the conduct and resulting harm is not so serious as to be unacceptable.
The Tribunal’s consideration: The likelihood of the non-citizen engaging in further criminal or other serious conduct
In assessing the likelihood or risk of Mr Chong engaging in further criminal or serious conduct, the Tribunal has considered the relevant testimony and evidence. It has done so initially from the specific lenses of his risk factors, his risk management factors, his rehabilitation efforts, his release plans and his demonstrations of remorse. It has then holistically assessed what it has drawn from this exercise to reach its findings on this limb of the Primary Consideration against the legal framework summarised below.
The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) established the threshold of “a risk” rather than “significant risk” for character assessments.[47] While the Explanatory Memorandum to the statute clarifies that this requires more than minimal or trivial likelihood, the Australian Government’s position is that community tolerance for future harm diminishes proportionately as the potential seriousness of that harm increases. Some conduct is considered so serious that any risk of recurrence may be deemed unacceptable.
[47] See the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
The assessment of risk under this Primary Consideration requires a cumulative evaluation of three interconnected components:
(a)The Tribunal must first evaluate the nature of potential harm to individuals, or the Australian community should the non-citizen engage in further criminal or serious conduct. This assessment, dealt with in part above, considers:
i.The type and severity of potential harm to individuals, groups, or institutions if Mr Chong were to re-offend.
ii.Whether his conduct is of such gravity that any risk of recurrence would be unacceptable.
iii.The relationship between the seriousness of potential harm and the community’s risk tolerance.
(b)The Tribunal must determine the likelihood of Mr Chong’s re-offending as at the time of its decision, considering:
i.All available information and evidence regarding Mr Chong’s re-offending risk.
ii.Evidence of rehabilitation achieved by Mr Chong as at the decision date.
iii.Mr Chong’s time in the community since his most recent offending (in 2022).
iv.The relationship between potential harm severity and acceptable risk thresholds.
(c)This assessment must account for:
i.Mr Chong’s character as illuminated by past conduct (per Baker);[48] and
ii.The pattern and conditions of past offending as indicators (rather than predictors) of future probability (per Guo).[49]
[48] Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187.
[49] Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559.
In undertaking this task, the Tribunal should seek to:
(a)Evaluate the nature and severity of the potential harm that could result if Mr Chong re-offends.
(b)Assess whether there is more than a minimal likelihood of risk of his re-offending.
(c)Consider both probability and consequences of his re-offending.
(d)Give appropriate weight to evidence of his rehabilitation and time in the general community.
(e)Evaluate the extent to which any identified risk level intersects with community tolerance thresholds.
(f)Make a final determination without delaying for Mr Chong to complete any outstanding rehabilitation programs.
This framework maintains alignment with Her Honour Justice Mortimer's (as she then was) approach in Murphy v Minister for Home Affairs [2018] FCA 1924 at [37],[50] while incorporating the Australian Government's position on risk tolerance.
[50] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
The Tribunal has found above that the likely harm resulting from Mr Chong re-offending would be serious. The Tribunal will now evaluate what his likelihood of re-offending is.
The Tribunal’s evaluative assessment must ultimately determine whether any identified likelihood or risk falls within acceptable parameters for community tolerance, recognising that this threshold becomes proportionately more stringent as the potential harm’s severity increases.
The Tribunal’s evaluative assessment will involve assessing factors that either facilitate the risk of re-offending or that hinder or retard that risk.
Factors that facilitate the risk of re-offending
Before evaluating these factors, the Tribunal considers it useful to put them in context. Mr Chong, in collaboration with his former wife, built a substantial series of businesses between 2009 and 2014.[51] This is a significant achievement.
[51] Exhibit R1: G16.
His Honour Judge Flynn’s 2023 sentencing comments are apposite here:
Now, come to when you were around about 40 years of age, the decision is made to start a business. So you stopped teaching and this turned out to be a disaster for you. The financial pressure, pressure of hours had the consequence that your marriage did not survive. By the time you were 42 years of age, having lost your relationship, lost control of assets of yours, lost significant contact with your children, you in fact turned to methylamphetamine as a place to escape, in effect.
In December of 2015, when you were 44 years of age, you committed an offence of possession with intent to sell or supply illicit drugs. You were sentenced to 27 months' imprisonment and that commenced in December of 2016. So you were released then in early 2018. [52]
[52] Exhibit R1: G8, 59.
In evaluating the evidence and testimony before it, the Tribunal infers that Mr Chong began to make poor decisions under the stress of his marriage breakdown and business affairs, leading to his addiction to methamphetamine.
Judge Flynn noted that Mr Chong had a diagnosis of depression and a record of receiving treatment for this condition,[53] qualifying his comments with the observation that there was no suggestion of a causal nexus between the depression and Mr Chong’s offending. The Tribunal accepts this but notes that depression and anxiety, contrary to the Respondent’s contentions, can further impair decision-making.
[53] See Exhibit A3.
In his 2022 sentencing decision, His Honour Judge Goetze stated of Mr Chong:
Now, you deteriorated when you were in custody on that occasion. The psychological report at that time said there was a considerable need for you to prioritise things in your life. You needed to work out your desires for success by actioning those desires.[54]
[54] Exhibit R1: G7, 49.
In his written submissions, Mr Chong makes several relevant statements that were addressed in cross-examination but not impugned:
During my first imprisonment from December 2016 to March 2019, I actively sought help for my addiction. However, Albany Prison lacked the necessary rehabilitation programs. Despite my requests for transfer or intervention, I was left without the support I desperately needed. This systemic failure was highlighted by my lawyer, Ms. Heslop after hearing my plight in Albany Prison. She told the court, "Mr. Chong was in a state that required help desperately. He is somebody crying out for some psychological intervention. He needs counselling, he needs to talk to someone, and he needs to develop better coping mechanisms.” (WA Vs CHONG, 07/06/08, P.73) Upon release, I found myself ill-equipped to handle the challenges of reintegration, especially in the face of the COVID-19 pandemic later on. The sudden transition back to life in March 2019 was daunting, without knowing what to expect from post-prison life and addiction recovery. The lack of support and treatment left me vulnerable to relapse, a risk that tragically materialized.[55]
and
The onset of the COVID-19 pandemic brought unanticipated challenges. Lockdowns, isolations, quarantines, curfews, business closures, and separation from my children took a significant toll on my mental health. While I initially held up well, spending time with my children, attending job interviews, and maintaining a healthy lifestyle, the prolonged stress and isolation eventually wore me down. In late 2020, I made the grave mistake of associating with individuals I should have avoided. This led to my second offense, where I was charged with possession of 4.6 grams of methamphetamine. I was incarcerated for 18 months from July 2022 to July 2023. During this period, while on bail, I was charged with attempted manufacture of methamphetamine. I want to emphasize that this charge was a result of my delusional psychological state at the time, and I was in no way capable of actually producing the drug. The maximum potential yield was estimated at 2.8 grams, far less than my previous offense. I understand the seriousness of these charges, but I want to highlight that the trajectory of my offending has been towards less serious offenses, not more serious ones. DCJ Flynn in sentencing mentioned “Now, the State accepts that, in fact, there had been nothing manufactured……” (WA Vs CHONG, 01/08/2023, Attachment B1, P. 3) All of my charges came down to personal use as opposed to profiting from it commercially and living lavishly. This reflects to myself the very real problem with my ongoing struggle with addiction rather than an escalation of criminal behavior.[56]
[55] Exhibit A2: 2.
[56] Exhibit A2: 2-3.
The Tribunal infers from the above that Mr Chong essentially lacked clear priorities and good decision-making skills up to at least May 2023, being the date of his last offending. Stress, caused by events such as his marriage breakdown and the COVID pandemic, appears to have aggravated his poor decision making. His depression and anxiety may have played a role as well. A further example of his poor decision making comes from his 2018 conviction for providing a false identification. In cross-examination, Ms Jackson elicited the response from Mr Chong that he gave the false identification documents to police as he wanted to avoid being caught breaching bail so that he could see his children.
Based on the above, the Tribunal assesses that the factors that facilitate Mr Chong’s risk of re-offending involve poor decision making, stress and his drug addiction, with the possible aggravating factors being anxiety and depression.
Rehabilitation and factors that hinder or retard the risk of re-offending
It is clear to the Tribunal that Mr Chong has embarked on a significant personal program of rehabilitation, especially in the past two years.[57] Some, but not all, of these efforts are clearly directed at addressing his drug addiction.[58] The impact of this activity is tempered by his declining to participate in formal drug and alcohol counselling programs while in detention.[59]
[57] Exhibit A1; Exhibit A2; Exhibit R1: G11, G12, G13, G14, G15, G16, G17, G18, G19, G20, G21, G22, G23 and G30; Exhibit A3; Exhibit R4, S26, 81.
[58] Exhibit R1: G12, G23.
[59] Exhibit R4: 160, 161, 163.
There is a degree of dissonance between his August 2023[60] parole assessment and his November 2023 parole assessment.[61] The earlier report concluded with recommendation not to recommend release while the latter concluded that Mr Chong was an acceptable risk to the safety of the community.
[60] Exhibit R4: S26, 83.
[61] Exhibit R4: S27, 84.
From these, the Tribunal infers that Mr Chong has rehabilitated to the extent that his risk of re-offending has significantly reduced and that this process is dynamic and ongoing, but that concerns remain about his commitment to rehabilitation. Mr Chong’s rehabilitation has also not been significantly tested in the community.
That said, the Tribunal considers that Mr Chong demonstrated his rehabilitative development through his completed training programs, certifications, and education, displaying through his actions a commitment to personal growth and career advancement. He also gave cogent testimony as to how he planned to address future stress and emotional upheaval.
Further pertinent evidence here is his engagement with FreshStart Northam for a residential rehabilitation program to which he has paid $2000.[62]
[62] Exhibit A2.
His psychologist’s 2022 report states that Mr Chong has embraced cognitive behavioural therapy and that during his treatment, he presents with no risk.[63] This therapy should enhance his resilience in terms of dealing with stress.
[63] Exhibit A3: 3.
There are more substantive factors in terms of his minor children, his aunt and uncle and, to a lesser extent, his relationship with Ms Robinson. The Tribunal accepts that his two minor children with his former wife have a positive and ongoing relationship with Mr Chong and that taking up a positive paternal role has become a key concern for Mr Chong, along with re-establishing himself and building a relationship with Ms Robinson. It is telling that Mr Chong testified that Ms Robinson has met the two children and has a good relationship with them. This testimony was not qualified or impugned in cross-examination.
Mr Chong stated in testimony that he has also cut off contact with antisocial connections. This focus on, and development of, healthy interpersonal connections can provide him with additional stability and resilience.
His evidence and testimony also articulate his aspirations to work as a counsellor in a not-for-profit drug rehabilitation charity being organised by a friend, Mr Williams, and his plans to either return to teaching or collaborate on a new business involving computerised financial trading.[64]
[64] Exhibit A2.
Under cross-examination, he articulated his past challenges and described his solutions, taking responsibility for his previous offending actions.[65]
[65] See Exhibit A2: 5.
A further amplifying factor here is cultural and familial. Mr Chong has a Singaporean Chinese cultural background. In his testimony, he described and emphasised his deep sense of shame at what he has done in the past. This feeling appears to go beyond remorse and appears to act as a significant inhibition in terms of future offending. This is tempered by the fact that this cultural factor either was not present or did not assert itself during his offending.
The Tribunal infers from holistically considering all these factors that Mr Chong’s 2023 imprisonment triggered a ‘wake-up call’, or at least a hitherto unexplored level of insight that has led to his substantive efforts to increase and grow those factors that inhibit or protect him from re-offending. The qualifications and tempering factors noted above qualify these efforts but do not reduce them to the point where Mr Chong’s rehabilitative efforts are nugatory.
Risk analysis and consideration
As noted, the Tribunal has considered the evidence as to the likelihood of Mr Chong re-offending above, especially Mr Chong’s offending record, his history of remorse and his statements and evidence regarding his rehabilitation efforts, in terms of the elements of paragraph 8.1.2(b) of the Direction. It has approached this task by looking at the factors that either may facilitate re-offending or hinder it.
When undertaking this consideration, it has applied Guo in terms of the qualified extent to which past events or conduct are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.
The Tribunal has then considered what the combination of his offending and his displays of remorse say about his character, as well as assessing whether the consequences of his potential offending in future are likely to be unacceptable to the Australian community.
While the harm that may result from any future re-offending is serious, the Tribunal assesses that Mr Chong’s rehabilitation and character-driven perspective on his offending, means that the factors that may hinder his re-offending outweigh the factors that may facilitate re-offending. Mr Chong now has insight into those aspects of his character such as poor decision-making and stress that facilitated the risk and has tools available to him to address and manage these. The Tribunal considers that the Australian community’s risk tolerance would accept Mr Chong’s likelihood of re-offending.
The Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal assesses that Mr Chong’s protective factors and rehabilitation efforts outweigh the factors that facilitate the risk of his re-offending and that his declarations of remorse and shame are relevant. The Tribunal finds that the risk to the Australian community should Mr Chong commit further offences or engage in other serious conduct exists, but that it is a greatly reduced risk relative to Mr Chong’s state of mind at the time of his offending.
Primary Consideration 1 Conclusions: Protection of the Australian community
The Tribunal finds that Mr Chong’s offending is serious, that the consequences of any such future offending are likely to be serious and that the likelihood of his re-offending is greatly reduced.
The Tribunal further finds that this consideration carries significant weight in favour of affirming the reviewable decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Paragraph 8.2 of the Direction states that the Australian Government has serious concerns about conferring the privilege of entering or remaining in Australia for non-citizens who engage in family violence.
Paragraph 8.2(2) of the Direction provides that this Primary Consideration is enlivened where:
(a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under s 501 or s 501CA has been afforded procedural justice.
Paragraph 8.2(3) of the Direction enumerates factors to be considered in evaluating this Primary Consideration where relevant.
Paragraph 4.1 of the Direction defines ‘family violence’ as:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends, or culture; or
(j) unlawfully depriving the family member, or any member of the family.
The Tribunal’s consideration
Summarising Ms Jackson’s submissions on this Primary Consideration:
(a)On 27 November 2024, the Western Australia Police Force provided summonsed information. This material included various incident reports and statements of material facts in relation to Mr Chong’s alleged family violence history. The Respondent submits that the incident reports and statement of material facts are information from an independent and authoritative source indicating Mr Chong has been involved in the perpetration of family violence.[66]
[66] Direction: [8.2(2)(b)].
(b)The information indicates that since 6 February 2014 Mr Chong has been subject to a Violence Restraining Order in relation to several protected members of his family.[67] The information states that Mr Chong and the alleged victim “Both claim they were assaulted by the other”.[68] The Respondent submits that assault is a form of behaviour that constitutes family violence.
[67] Exhibit R4: 1, 5.
[68] Exhibit R4: 1.
(c)The information indicates that Mr Chong has also breached the Violence Restraining Order several times over 2014 and 2015, which included:
(i)attending the protected victim’s house despite the terms of the order;[69]
(ii)demanding to see his children at his convenience and allegedly using words to the effect “If I can’t see my kids I will kill your whole family”;[70]
(iii)failing to return his children by a certain time, breaching the Family Court order;[71]
(iv)knocking on the protected person’s front door which was in breach of the Violence Restraining Order;[72]
(v)attending the victim's house (while she was overseas) and the applicant asked his son to let him into the house. When the victim returned home, the victim found that her CCTV cameras were not working and the username and password of her computer were changed. Police noted that this was “most likely insufficient evidence without admissions”.[73]
(d)The Respondent submits that, having regard to the independent and authoritative sources, Mr Chong has committed acts of family violence against protected family members.[74]
(e)The Respondent acknowledges that there is limited information in relation to the nature of the family violence, and further acknowledges it appears to be concentrated around 2014-2015 and that since this time Mr Chong has not been subject to any family violence offences.[75] There is no further information as to whether the Violence Restraining Orders remain in place.
(f)The Respondent contends that this Primary Consideration weighs against revoking the mandatory cancellation of Mr Chong’s Visa.[76]
[69] Exhibit R4: 5.
[70] Exhibit R4: 9.
[71] Exhibit R4: 13.
[72] Exhibit R4: 21.
[73] Exhibit R4: 29-30.
[74] Direction: [8.2(2)(a)].
[75] Direction: [8.2(2)(a) and (b)].
[76] Exhibit R3: [18] – [23].
Mr Chong did not resile from this information when it was put to him in cross-examination.
The Western Australia Police Force records the Respondent’s references are summarised chronologically in a table at Attachment B.
The 3 February 2014 incident is conflicted. Apart from the two parties’ (the Tribunal infers that these were Mr Chong and his former wife) mutual allegations there is no evidence of assault. The 27 February 2014 incident appears to have been limited to a breach of a Violence Restraining Order. The 27 January 2015 incident did not result in an arrest or a further order, although the alleged statement by Mr Chong threatening to kill is extremely concerning. The 7 July 2015 incident appears to have involved a breach of a Violence Restraining Order due to Mr Chong standing at the door to a house rather than outside the boundary. The 1 April 2016 incident did not result in an arrest or a further order.
The Direction’s definition of ‘family violence’ provides examples of behaviour that may constitute family violence, but these are stated not to be exhaustive. Two of the incidents suggest assault and stalking, with a third involving threats of violence (the kill threat) but the Tribunal does not assess the claims as going any greater than that based on the limited evidence before it. The other incidents do not appear to rise to the level of family violence but are concerning in terms of Mr Chong breaching orders, suggesting a disregard for the law.
The Western Australia Police Force information appears independent and authoritative.
Addressing paragraph 8.2(3)(a), it is reasonable to assess that the incidents set out in Attachment B show a degree of frequency between 2014 and 2016 but that this frequency is limited to this period.
Addressing paragraph 8.2(3)(b), there is no evidence addressing the cumulative effects.
Addressing paragraph 8.2(3)(c), Mr Chong appears to accept responsibility. He states that he has resolved issues with his former wife.[77] The Tribunal notes that the dates of Mr Chong’s alleged family violence coincide with the period when he was using methamphetamine. While correlation does not imply causation, the absence of such alleged offending after this period (allowing for Mr Chong’s imprisonment) suggests that his drug addiction may have played a role in these incidents. His efforts to address factors such as his addiction and poor decision making are considered above under Primary Consideration 1.
[77] Exhibit A2: 5.
Primary Consideration 2 Conclusion: Family violence committed by the non-citizen
From the evidence, the Tribunal finds that while the evidence is concerning, the seriousness of the family violence incidents is relatively low when assessed against the Direction’s definition, based on the lack of formal charges and the facts of each incident. The Tribunal also notes from the Direction that the Government’s concerns in this regard are proportionate to the seriousness of the family violence in question.
The Tribunal finds that the Western Australia Police Force information enlivens both the Direction’s definition of ‘family violence’ and Primary Consideration 2 to a small extent. However, beyond that there is insufficient evidence to elaborate on this finding.
This consideration consequently carries a small weight in favour of affirming the reviewable decision.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
The Direction disposes the Tribunal to consider any impact of its decision in relation to the Visa on Mr Chong’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely.
The Tribunal is directed to also consider the strength, nature and duration of any other ties that Mr Chong has to the Australian community, having regard to:[78]
(a)how long he has resided in Australia, including whether he arrived as a young child, noting that:
(i)less weight should be given where he began offending soon after arriving in Australia; and
(ii)more weight should be given to time he has spent contributing positively to the Australian community;
(b)the strength, duration and nature of any family or social links he has with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
[78] Direction: [8.3(2)].
Summarising Ms Jackson’s contentions on this consideration:[79]
[79] Exhibit R2: [38] – [43].
(a)Mr Chong arrived as a nineteen-year old in Australia in 1990 and has resided in the country for approximately three decades.
(b)He has maintained employment as a teacher and demonstrated civic engagement through charitable donations to organisations such as the Heart Foundation. He has participated in cultural events, including Chinese New Year celebrations, and sponsored a youth concert.
(c)Additionally, he has helped create and then operated various businesses, which he argues have contributed to both the Australian economy and Australia’s cultural diversity.
(d)However, the Respondent contends that these contributions should be given limited weight, particularly as his business operations were allegedly disrupted by work-related stress and marital difficulties, factors which reportedly contributed to his subsequent drug-related offences.
(e)His familial and social connections in Australia include Australian citizen relatives –specifically a godmother, godfather, and godsister – as well as two unspecified uncles or aunts and a niece or nephew. However, Mr Chong’s application lacks detailed information about these relationships or the potential impact of his removal on these family members.
(f)While a character reference was provided by James Emmins, the Respondent argues this should be given limited consideration as it does not substantially address the nature of the applicant's offending.
(g)His relationship with his former partner, who is also a resident of Australia, appears to be strained. He has characterised this individual as "extremely vindictive" and a problematic business partner, alleging that they have interfered with his relationship with their children.
(h)Mr Chong has three children in Australia, though the specifics of these relationships are addressed separately under the consideration of the minor children's best interests.
(i)In conclusion, while the Respondent acknowledges that Mr Chong’s ties to the Australian community constitute a factor that marginally favours visa cancellation revocation, the Respondent maintains that this consideration should not be given substantial weight.
Collating and summarising Mr Chong’s contentions:[80]
(a)Mr Chong has established long-term residence in Australia, having immigrated in 1990. This represents approximately three decades of continuous residence in the country, during which time he has developed substantial personal and professional connections.
(b)His professional contributions include a period as a teacher from 2007 to 2010, during which he influenced the education of numerous students. He subsequently demonstrated entrepreneurial initiative by establishing multiple businesses, including remedial massage therapy clinics specialising in Chinese "Tuina" massage, restaurants featuring Northern Chinese cuisine, and a food court establishment. These enterprises created employment opportunities and contributed to the local economy. He also made significant property investments, acquiring six properties across Perth and New South Wales, demonstrating substantial financial commitment to Australia.
(c)He has established significant family connections in Australia, particularly through his two teenage children who would be significantly impacted by his removal. He has also formed a relationship with his current partner, Ms Robinson, with whom he plans to start a family. These family bonds represent substantial ties to the Australian community, though it should be noted that his relationship with his former partner, who is also in Australia, is described as problematic.
(d)He has contributed to Australia's multicultural landscape through his business ventures, which introduced traditional Chinese therapeutic practices and cuisine to communities from Perth to Bunbury. His community involvement includes participation in cultural events such as the Chinese New Year parade in Northbridge. Additionally, he has expressed commitment to future community service through plans to assist with a non-profit drug rehabilitation program, where he hopes to serve as a counsellor following appropriate training. He has also expressed dedication to family responsibilities, particularly in supporting his children's development and maintaining his relationship with his current partner.
[80] Exhibit R1: G11, G21. Exhibit A1. Exhibit A2.
The Tribunal now considers these contentions, the evidence and Mr Chong’s testimony through the lens of each subparagraph in paragraph 8.3.
Paragraph 8.3(1)
Subject to the following being either Australian citizens, permanent residents or having the right to remain in Australia indefinitely, Mr Chong’s immediate family, consists of his two minor children in Australia, Ms Robinson, his godparents and his godsister.
Based on an evaluation of the evidence, including Ms Robinson’s letter of support,[81] and Mr Chong’s testimony, the Tribunal considers it reasonable to infer that a decision to affirm the reviewable decision likely will have a negative emotional or psychological impact on each of these people, especially the minor children. The Tribunal finds it difficult to assess the magnitude of these individual impacts but assesses that they would likely be substantial.
[81] Exhibit A4.
Paragraph 8.3(2)(a)
Mr Chong arrived in Australia at the age of nineteen in 1990[82] and has largely resided here since then. His first conviction, being a drink driving offence, occurred in 1997.[83] The Tribunal considers and finds that Mr Chong did not begin offending soon after arriving in Australia.
[82] Exhibit R1: G28.
[83] Exhibit R1: G6.
Mr Chong’s testimony and his statements demonstrate that Mr Chong has made significant positive contributions to the Australian community over the past twenty years in terms of employment and creating businesses, as well as his contributions from earlier work as a teacher. [84]
[84] Exhibit R1: G11-G24. Exhibit A1. Exhibit A2.
The Tribunal considers and finds that paragraph 8.3(2)(a) carries significant weight in favour of setting the reviewable decision aside.
Paragraph 8.3(2)(b)
Assuming that his children, Ms Robinson, his godparents, his godsister and Mr Emmins[85] are Australian citizens, permanent residents or having the right to remain in Australia indefinitely, the Tribunal has evaluated the evidence and testimony and finds that the strength, duration and nature of Mr Chong’s ties to Australia are made out as substantial, meaningful and ongoing.
[85] Exhibit R1: G22.
The Tribunal considers and finds that paragraph 8.3(2)(b) carries significant weight in favour of setting the reviewable decision aside.
The Tribunal’s consideration
Holistically evaluating its separate assessments of specific paragraphs in Primary Consideration 3, the Tribunal assesses and considers that Mr Chong has strong and continuing family, professional and community ties with individuals in the Australian community developed over nearly thirty-five years in the same community.
Primary Consideration 3 Conclusion: The strength, nature and duration of ties to Australia.
Pursuant to s 105 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal sets aside the reviewable decision made by the delegate of the Respondent on 4 October 2024 and substitutes a decision to revoke the cancellation of Mr Chong’s visa.
Date(s) of hearing: 5 & 6 December 2024 Solicitors for the Applicant: Mr Chong represented himself Solicitors for the Respondent: Ms Jackson of MinterEllison
Attachment B
Date
Incident
3 February 2014[115]
“These parties are separated but still live under the same roof.
They had an argument over an unknown matter [Redacted] claims it was over Kit's drug taking, watching sex films in view of the children and money.
Kit claims it was over money and cultural issues.
Both claim they were assaulted by the other, there were no injuries and a staff member, [Redacted] , and he only saw a verbal argument and did not see any physical violence.
KIT had departed prior to police arrival and had taken the children with him.
KI was contacted and spoken to [Redacted] at his godmother's address. The children were sighted, they were in good health, good spirits and being well looked after.
Due to the allegations, counter allegations and a concern expressed by Kit that [Redacted] would come to his Godmother's house a 72 Hour Police Order was issued to both parties.”
27 February 2014[116]
“At 11:50 pm on the 06th of February 2014, the accused was served with a Violence Restraining Order number 2014/0349 issued by Perth Magistrate's Court at the Murdoch Police Station. The person protected by the order is [Redacted].
PART OF THE TERMS: THE PERSON WHO IS BOUND BY THIS ORDER SHALL NOT:
- enter, remain upon or loiter near [Redacted] or any other premises where the Protected Person lives or works or is educated or be within 100 metres of the nearest external boundary of those premises.
At about 10.45 pm on Thursday the 27th of February 2014 police attended at [Redacted] after information received that the accused was currently inside the house.
Police entered the house and located the accused standing inside the house near the front door. The victim was present at the time, however she was in a separate room at the back of the house.
The accused stated that he had been invited by a family friend to attend at the house.
The accused was arrested and conveyed to the Perth Watch House.
He was charged with the present charge preferred, bail refused.”
27 January 2015[117]
“Compl is carer for the children of her auntie [Redacted] being [Redacted] 6yo and [Redacted] 3yo.
Children are protected by VRO from Kit ‘Kevin / Kelvyn' CHONG, their father, who appears to be precluded from visits by a VRO.
It appears he is being allowed to visit the children, as the complainant's work schedule allows.
POI sought to visit children, making arrangement by phone.
Complainant advised him of times convenient to her.
POI demanded the children be available at his convenience, stating twice "If I can't see my kids I will kill your whole family."
Compl has been encouraged to call police by [Redacted].”
15 January 2015[118]
“At 12:45 am on the 3rd of December 2014 at Perth Police Station, the accused was served with a Violence Restraining Order number 2014/02803 issued by Perth Magistrate's Court. The persons protected by the order are [Redacted].
PART OF THE TERMS: THE PERSON WHO IS BOUND BY THIS ORDER SHALL:
- comply with a court order made under the Family Law Act 1975 and Family Court Act 1997, allowing you to live with, spend time with, or communicate with a child or children named in that order.
One of the conditions of the Family Law Act 1975 number PTW 4692014 was the Respondent father spends time with the children on Tuesday and Thursday from 3:00pm to 6:00pm.
At 9.00pm on Thursday the 15th of January 2015, the accused returned the children to their mother at her address of [Redacted] This contravened the Family Court Order which stipulates that the accused return the children no later than 6.00pm. In doing so, the accused has also breached a condition of the Violence Restraining Order.
On Thursday the 29th January 2015, the accused was interviewed at the Perth Police Station.
The accused was arrested and conveyed to the Perth Watch House.
He was charged with the present charge preferred, bail refused.”
7 July 2015
“The accused was served with Violence Restraining Order (number 2014 02803) by Police at 4.48pm on 05 July 2015.
The accused is the bound party on the order, and the victim is the protected party.
PART B STATES "YOU WILL NOT BREACH THE ORDERS IN PART A IF YOU:
are on the road side of the letter box at [Redacted] and no closer to the premises."
At 8:00 pm on Tuesday the 7th July 2015, the accused entered on to the property and knocked on the front door of [Redacted].
The accused stood in the doorway to the front door and waited to collect the children, then left.
The accused was arrested on a later date and charged via Summons.
EXPLANATION: "I cant remember, I didnt go past the letter box."”
1 April 2016[119]
“The POI has been bound by a VRO from the victim since 02/07/2015.
ITI the victim was on a business trip overseas and her children were staying with the POI.
***This information has come solely from what victim was told by her son***
The victim returned home from her business trip on 07/04/2016 and her son informed her that he had gone to her address (from which the POI is bound) and the POI asked him to climb the side gate and let the POI into the house. The son did this and gained entry into the house through the back door which the POI broke about two years ago and has not been repaired. Her son opened the garage door from inside and let the POI and his sister inside. Once inside the POI grabbed a step ladder but it is unknown what he did with it. He also went into the victim office and took some documents.
The victim's housemate was home at the time but only saw the children and not the POI. He also saw the POI's vehicle out the front and heard the victim's son talking to an adult male but did not recognise the voice.
When the victim returned home she found that her CCTV cameras were not working and the username and password of her computer were changed.
POI still to be interviewed. Most likely insufficient evidence without admissions.
Statements obtained from victim and witness.”
[115] Exhibit R4: 1.
[116] Exhibit R4: 5.
[117] Exhibit R4: 9.
[118] Exhibit R4: 15.
[119] Exhibit R4: 29.
ANNEXURE A
DRAFT EXHIBIT REGISTER
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
R1
Section 501 G-Documents ()
R
28.10.2024
28.10.2024
A1
Applicant’s Statement of Facts, Issue and Contentions (‘ART Final Submission’)
A
25.11.2024
25.11.2024
A2
Applicant’s Amended Statement (“Ready Final Submission’)
A
02.12.2024
02.12.2024
A3
Report of Mr Ates, Psychologist
A
21.06.2022
27.11.2024
A4
Statement of Ms Brooke Robinson
A
25.11.2024
26.11.2024
R2
Respondent’s Statement of Facts, Issues and Contentions ( # )
R
11.11.2024
11.11.2024
R3
Respondent’s Reply
R
02.12.2024
02.12.2024
R4
Supplementary Documents
R
02.12.2024
02.12.2024
0