Chow and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1048

Chow and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1048 (2 July 2025)
Applicant/s:   Mark Chor Zhen Chow
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/3153

Tribunal:Senior Member Lyford
Place:Perth
Date of Decision: 2 July 2025
Date of Written Reasons: 17 July 2025
Decision:The Tribunal affirms the decision under review.

....................[SGD].................................
Senior Member
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – Stealing as a Servant – Australian companies as part of the Australian community - risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – expectations of the Australian community – best interests of minor children – Applicant is a 39-year-old citizen of Singapore – extent of impediments if returned to Singapore – Non-revocation Decision is affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth)
Corporations Act 2001 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
Au v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 125
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 608
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
LQZW and Minister for Home Affairs (Migration) [2019] AATA 93
Minister for Immigration Multicultural Affairs v Ali (2000) 106 FCR 313
Minister for Immigration and Multicultural Affairs v Peralta Montes [2025] FCA 667
Mizen v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 84
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Ng and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4962
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [140]
Siale v Minister for Immigration and Citizenship [2025] FCA 608 at [34]
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
SECONDARY MATERIALS
Constitution of the Republic of Singapore
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), 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
The decision on this review application was made on 2 July 2025 and provided to the parties with a note that written reasons would be provided within a reasonable time: Khalil v Minister for Home Affairs (2019) 271 FCR 326 at [41] and [48].
These are those written reasons.
INTRODUCTION

The Applicant seeks review of a decision of a delegate of the Minister under s 501CA(4) of the Migration Act 1958 (Migration Act), dated 8 April 2025, not to revoke the mandatory cancellation of the Applicant’s Resident Return (Class BB) (Subclass 155) visa (Visa) under s 501(3A) of the Migration Act.
For the following reasons, the Tribunal affirms the decision under review.
PROCEDURAL BACKGROUND
The Applicant is a 39-year-old citizen of Singapore (born on 2 May 1986).
Between 24 August 1991 and 6 November 2005, the Applicant arrived in, and departed from, Australia on three separate occasions on Visitor visas for a maximum of one week. The Applicant arrived in Australia, and remained in Australia, on a permanent basis from 10 February 2007 (then aged 20 years old).
On 5 April 2024, the Applicant appeared in the Perth District Court of Western Australia and was convicted of two counts of ‘Stealing as a Servant’, under s 378(7) of the Criminal Code (WA), for which he received sentences of 4 years and 11 months imprisonment (cumulative from 15 March 2024) and 2 years imprisonment (concurrent from 15 March 2024).
On 29 October 2024, the Applicant was notified that his Visa had been cancelled under s 501(3A) of the Migration Act on the basis that he had a ‘substantial criminal record’, within the meaning of s 501(6)(a) of the Migration Act, and was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the State of Western Australia (Cancellation Decision). The Applicant acknowledged receipt of the Cancellation Decision on the same date.
On 6 November 2024, the Applicant requested revocation of the Cancellation Decision, under s 501CA(4) of the Migration Act (Revocation Request), and provided the Department with a completed ‘Personal Circumstances Form’ with his representations in support of revocation of the Cancellation Decision . On 25 November 2024, the Applicant’s lawyers, Munro Doig Lawyers, provided the Department with submissions in support of the Revocation Request.
On 8 April 2025, a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (Non-revocation Decision).
On 9 April 2025, the Applicant was notified of the Non-revocation Decision.
On 15 April 2025, the Applicant applied to the Tribunal for review of the Non-revocation Decision.
ISSUES
The issues for the Tribunal are:
(a)whether the Applicant passes the ‘character test,’ as defined in s 501(6) of the Migration Act; and
(b)if not, whether there is ‘another reason’ why the Visa Cancellation Decision should be revoked under s 501CA(4) of the Migration Act, having regard to the considerations prescribed by Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110).
LEGISLATIVE FRAMEWORK
The ‘character test’
The ‘character test’ is defined in s 501(6) of the Migration Act. Relevantly, a person will not pass the ‘character test’ if they have a ‘substantial criminal record’: s 501(6)(a) of the Act. The phrase “substantial criminal record” is defined in s 501(7) of the Migration Act and includes circumstances in which a person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c) of the Migration Act.
Pursuant to s 501(3A)(a)(i) and (b) of the Migration Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the ‘character test’, because they have a ‘substantial criminal record’, as defined in s 501(7)(c) of the Migration Act, and 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. That is, failure of the ‘character test,’ in s 501(6) of the Migration Act, arises as a matter of law: Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
Power to revoke original decision
When a visa is mandatorily cancelled under s 501(3A) of the Migration Act, the Minister must:
(i)give the person concerned written notice of the decision which sets out the original decision: s 501CA(3)(a)(i) of the Migration Act;
(ii)give the person concerned particulars of the relevant information: s 501CA(3)(a)(ii) of the Migration Act; and
(iii)invite the person to make representations to the Minister regarding the revocation of the original decision: s 501CA(3)(b) of the Migration Act.
Under s 501CA(4) of the Migration Act, the Minister may revoke the original (visa cancellation) decision if:
(a)representations have been made by the applicant in accordance with an invitation to make such representations about revocation of the cancellation: s 501CA(4)(a) of the Act; and
(b) the Minister is satisfied that:
(i)the person passes the ‘character test’ in s 501(6) of the Migration Act: s 501CA(4)(b)(i) of the Migration Act; or, if not,
(ii)there is ‘another reason’ why the original decision should be revoked: s 501CA(4)(b)(ii) of the Migration Act.
A decision under s 501CA(4) of the Migration Act (i.e. to revoke the original decision) involves an assessment and evaluation of the factors for and against revoking the original decision: Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338.
The Tribunal is required to undertake a ‘weighing and balancing’ exercise, weighing up the relevant considerations in Direction 110 and the applicant's representations against one another to come to the correct or preferable decision: s 56(1)(a) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act); Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake (No 2)) at 636; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [140]; CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [35].
The Tribunal (decision-maker) must then ask itself whether it is satisfied that there is ‘another reason’ to revoke the visa cancellation: Au v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 125 at [21]-[26]. In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (Plaintiff M1/2021) at [22], the High Court described s 501CA(4) of the Migration Act as conferring ‘a wide discretionary power’ to revoke the mandatory cancellation if the decision-maker (here, the Tribunal on review of a delegate’s decision) is satisfied there is ‘another reason’ why the cancellation should be revoked. In Plaintiff M1/2021, the majority held (at [22]) that the assessment of whether there is, in fact, ‘another reason’ is to be undertaken by reference to the representations made by the Applicant.[1]
[1] See also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398 at [13]-[15]; Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2024) 94 ALJR 594 at [6].
Direction 110
A decision under s 501CA(4) of the Migration Act, whether there is ‘another reason’ to revoke the mandatory cancellation of a visa, must be made in accordance with any written directions under the Migration Act: s 499(2A) of the Migration Act. Relevantly, the Tribunal (decision-maker) must comply with Direction 110 in considering a request for revocation of a mandatory cancellation of a visa under s 501(3A) of the Migration Act, providing a legislative constraint on the Tribunal’s process of reasoning.[2] However, as stated by the Full Court in Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582 at [23] and [81], the principles enunciated by Brennan J in Drake (No 2), and subsequent cases concerning the Tribunal’s ability to depart from governmental policy, remain applicable.[3]
[2] See LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at [33].
[3] See Minister for Home Affairs v G (2019) 266 569; Lasalo v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 82 at [27].
Principles
The eight ‘Principles’ listed in paragraph 5.2 of Direction 110 provide the framework within which decision-makers should approach their task of deciding whether to revoke the mandatory cancellation of a non-citizen’s visa under s 501CA of the Migration Act.
The eight ‘Principles’ listed in paragraph 5.2 of Direction 110 are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizens’ conduct, or harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm the Australian community.
(emphasis added)
Primary considerations
Informed by the eight ‘Principles’ in paragraph 5.2 of Direction 110, the Tribunal (decision-maker) must take into account the five ‘primary considerations’ in section 8 of Part 2 of Direction 110, in deciding whether to revoke the mandatory cancellation of a visa under s 501CA(4) of the Act.
The five ‘primary considerations,’ in section 8 of Part 2 of Direction 110, are:
1.protection of the Australian community from criminal or other serious conduct: paragraph 8.1 of Direction 110;
2.whether the conduct engaged in constituted family violence: paragraph 8.2 of Direction 110;
3.the strength, nature and duration of ties to Australia: paragraph 8.3 of Direction 110;
4.the best interests of minor children in Australia: paragraph 8.4 of Direction 110; and
5.expectations of the Australian community: paragraph 8.5 of Direction 110.
Other considerations
Informed by the eight ‘Principles’ in paragraph 5.2 of Direction 110, the Tribunal (decision-maker) must also take into account the three ‘other considerations’, in paragraph 9 of Part 2 of Direction 110, insofar as they are relevant.
The three ‘other considerations,’ in paragraph 9 of Part 2 of Direction 110, include, but are not limited to, the:
1.legal consequences of the decision under s 501 or s 501CA of the Migration Act: paragraph 9.1 of Direction 110;
2.extent of impediments if removed: paragraph 9.2 of Direction 110; and
3.impact on Australian business interests: paragraph 9.3 of Direction 110.
Applying the primary and other considerations
Section 7 of Part 2 of Direction 110 provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration at 8.1….(protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
(emphasis added)
THE HEARING AND THE EVIDENCE
The hearing took place at the Tribunal’s Perth Registry over four days, namely 19, 20, 23, and 24 June 2025. Both parties were represented. The Applicant’s representative (Mr Matthew Crowley) attended the hearing in person and the Respondent’s representative (Ms Caitlin White) appeared remotely, via Microsoft Teams.
The following documents were marked as “Exhibits” (and will be referred to, where relevant, in the reasons below):
(i)joint Hearing Book, filed by the Respondent on 17 June 2025 and comprising 956 pages, was marked as ‘Exhibit 1’ (Exhibit 1);
(ii)Government of Western Australia Department of Justice Individual Management Plan for the Applicant, dated 26 November 2024, was marked as ‘Exhibit 2’ (Exhibit 2); and
(iii)Government of Western Australia Department of Justice Corrective Services ‘Visits History’ (date range: 15 March 2024 to 15 May 2025) Wooroloo Prison Farm, for the Applicant, was marked as ‘Exhibit 3’ (Exhibit 3).
Exhibit 1 includes the following documents provided by the parties’ representatives (which will be referred to, where relevant, in the reasons below):
(i)Applicant’s Statement of Facts, Issues and Contentions, dated 26 May 2025 (Exhibit 1 at pp 344-370) (Applicant’s SFIC);
(ii)Respondent’s Statement of Facts, Issues and Contentions, dated 10 June 2025 (Exhibit 1 at pp 256-274) (Respondent’s SFIC); and
(iii)Applicant’s Submissions in Reply – Pursuant to Directions of Senior Member Lyford Made 5 June 2025, undated (Exhibit 1 at pp 477-492) (Applicant’s SIR).
Exhibit 1 also includes the following Statutory Declarations, Witness Statements and letters in support of the Applicant (which will be referred to, where relevant, in the reasons below);
(i)Applicant – Statutory Declaration, dated 22 November 2024 (Exhibit 1 at pp 114-124), Witness Statement, dated 20 May 2025 (Exhibit 1 at pp 371-375), and unsigned Supplementary Witness Statement, dated 16 June 2025 (Exhibit 1 at pp 928-935);
(ii)Ms S Siew, Applicant’s wife – Statutory Declaration, dated 22 November 2024 (Exhibit 1 at pp 138-147), Witness Statement, dated 21 May 2025 (Exhibit 1 at pp 376-385), and Witness Statement, dated 16 June 2025 (Exhibit 1 at p 936);
(iii)Ms A Siew, Ms P Siew’s sister/the Applicant’s sister-in-law - Statutory Declaration, dated 25 November 2024 (Exhibit 1 at pp 194-196), and Witness Statement, dated 23 May 2025 (Exhibit 1 at pp 386-389);
(iv)Mr D Siew, Ms P Siew’s brother/the Applicant’s brother-in-law - Statutory Declaration, dated 23 November 2024 (Exhibit 1 at pp 190-192), and Witness Statement, dated 18 May 2025 (Exhibit 1 at pp 390-393);
(v)Mr D Lee, the Applicant’s friend from Kingdomcity Church - Statutory Declaration, dated 21 November 2024 (Exhibit 1 at pp 181- 183), and Witness Statement, dated 21 May 2025 (Exhibit 1 at pp 394-398);
(vi)Ms C Yee, the Applicant’s friend from Kingdomcity Church - Statutory Declaration, dated 22 November 2024 (Exhibit 1 at pp 201-202), and Witness Statement, dated 22 May 2025 (Exhibit 1 at pp 403-406);
(vii)Mr S Tan, the Applicant’ friend from Zion Praise Harvest church and Ms C Yee’s husband - Statutory Declaration, dated 22 November 2024 (Exhibit 1 at pp 185-187), and Witness Statement, dated 20 May 2025 (Exhibit 1 at pp 399-402);
(viii)Mr L Koh, the Applicant’s friend from Kingdomcity Church - Statutory Declaration, dated 25 November 2024 (Exhibit 1 at pp 198-199), and Witness Statement, dated 16 May 2025 (Exhibit 1 at pp 407-409);
(ix)Mr A Oh, the Applicant’s friend from Zion Praise Harvest Church and business partner in Sycamore Wealth Pty Ltd - Statutory Declaration, dated 11 March 2025 (Exhibit 1 at pp 210-212);
(x)Mrs L Theeart, Senior Chaplain and Child Safety Officer of Rehoboth Christian College, the school the Applicant’s children attend – letter in support, dated 5 March 2025 (Exhibit 1 at pp 208-209) and Witness Statement, dated 19 May 2025 (Exhibit 1 at pp 410-413);
(xi)Mr D Geijsman, Principal of Rehoboth Christian College, the school the Applicant’s children attend – letter in support, dated 18 November 2024 (Exhibit 1 at pp 204-205);
(xii)Mr J Kirtisingham, Lead Pastor, Perth of Kingdomcity Australia Ltd, the church the Applicant, Ms S Siew and their children attend - letter in support of the Applicant, dated 19 November 2024 (Exhibit 1 at pp 206-207);
(xiii)Mr S Ng, Applicant’s treating Clinical Psychologist – letter, dated 8 February 2024 (Exhibit 1 at pp 219-220), report (regarding Ms S Siew), dated 21 May 2025 (Exhibit 1 at pp 434-437), report (regarding the Applicant’s children), dated 21 May 2025 (Exhibit 1 at pp 438-441) and report (regarding the Applicant), dated 3 June 2025 (Exhibit 1 at pp 588-595); and
(xiv)Mr O Robinson, Applicant’s accredited mental health social worker – report, dated 7 February 2024 (Exhibit 1 at pp 216-218)

On the first day of the hearing (i.e. Thursday, 19 June 2025), the Tribunal heard opening submissions from the Applicant’s representative, oral evidence from Ms S Siew and the Applicant (in part). The Respondent’s representative chose not to provide opening submissions but, rather, to rely on the Respondent’s submissions as set out in the Respondent’s SFIC.
On the second day of the hearing (i.e. Friday, 20 June 2025), the Tribunal heard the remaining oral evidence of the Applicant, oral evidence from Mrs Theaart and Mr Ng (in part).
On the third day of the hearing (i.e. Monday, 23 June 2025), the Tribunal heard oral evidence from Ms A Siew, Mr D Siew, and Ms C Yee, and the remaining oral evidence of Mr Ng.
On the fourth day of the hearing (i.e. Tuesday, 24 June 2025), the Tribunal heard oral evidence from Mr Robinson, the closing submissions of the Applicant’s representative, the closing submissions of the Respondent’s representative, and the submissions in reply of the Applicant’s representative.
CONSIDERATION
Representations in accordance with invitation
As stated above (at [6]), the Applicant was notified of the mandatory cancellation of his Visa, by hand, on 29 October 2024, which is the method prescribed by reg 2.55(3)(a) of the Migration Regulations 1994 (Migration Regulations). The Applicant was taken to have received the notice when it was handed to him: reg 2.55(5) of the Migration Regulations.
Regulation 2.52(2)(b) of the Migration Regulations prescribes that any representations seeking revocation of a mandatory visa cancellation must be made to the Minister within 28 days after the person is given notice of the cancellation.
As stated above (at [7]), the Applicant made representations seeking revocation of the Cancellation Decision on 6 November 2024, being within the prescribed 28-day period.
Consequently, the Tribunal is satisfied that the Applicant made representations to the Minister in accordance with the invitation for the purposes of s 501CA(4)(a) of the Migration Act.
Character test
It is not in dispute, and the Tribunal accepts based on the evidence before it, that the Applicant does not pass the ‘character test’, as defined in s 501(6) of the Migration Act, because he has a ‘substantial criminal record’, as defined in s 501(7) of the Migration Act, and is serving a sentence of imprisonment, on a full-time basis in a custodial institution (Wooroloo Prison Farm), for an offence against a law of Western Australia (i.e. the Criminal Code (WA)): Exhibit 1 at p 348. The Applicants offending is outlined below at [41] to [53].
Another reason
Therefore, the only issue to be decided by the Tribunal is whether there is ‘another reason’ why the Cancellation Decision should be revoked: s 501CA(4)(b)(ii) of the Migration Act. As stated above, in deciding this issue, the Tribunal must, informed by the eight ‘Principles’ in paragraph 5.2 of Direction 110, ‘take into account’ the five ‘primary considerations’ (in section 8 of Part 2 to Direction 110) and ‘take into account’ the three ‘’other considerations’ (in section 9 of Part 2 to Direction 110).
The Applicant’s offending
On 22 January 2018, the Applicant was employed by JN Taylor & Company Pty Ltd, trading as Taylor Marine (Taylor Marine), a specialist supplier of marine equipment, as its Finance Manager on an annual salary of $115,000. The Applicant was later promoted to the position of Chief Financial Officer (CFO) of Taylor Marine and, in 2022, his annual salary was increased to $170,000, plus a bonus of $75,000: Exhibit 1 at p 55 and p 279.
Between 12 April 2019 and 18 September 2022, the Applicant stole over $3.7 million, in 95 separate transactions, over a period of approximately three years and four months, from his employer, Taylor Marine: Exhibit 1 at p 55 and p 279.
43.On 13 January 2023, Taylor Marine’s Administration Supervisor, Ms Towers, advised Mr Halsted, Taylor Marine’s Business Manager, that the administration team were unable to reconcile December 2022 credit card transactions against the Applicant’s company credit card statement. An audit was subsequently conducted of the Applicant’s credit card expenses, by Taylor Marine, and it was discovered that the Applicant had used the company’s credit card for a number of personal expenses (totalling approximately $235,000). When the Applicant was overseas (in Malaysia) on holiday with his wife and children, he received a telephone call from Taylor Marine, asking about the credit card discrepancies. On 30 January 2023, as a result of his conversation with Taylor Marine regarding the credit card discrepancies, the Applicant resigned from his position as CFO of Taylor Marine: Exhibit 1 at p 55 and p 279.
44.On 1 March 2023, Taylor Marine administrative staff indicated they could not reconcile a payment for $78,084 that was entered into the accounting system on 24 September 2019 with any payment having been received by the Australia Taxation Office (ATO). This caused Mr Halsted to conduct a thorough examination of Taylor Marine’s accounts. Mr Halsted then identified that, on several occasions, funds were being transferred from Taylor Marine’s company’s bank accounts into several bank accounts, some of which were not registered with Taylor Marine: Exhibit 1 at p 55 and p 279.
45.On 3 March 2023, Mr Halsted reported the matter to the WA Police Financial Crime Squad, who then commenced an investigation: Exhibit 1 at p 55 and p 280.
Between 12 April 2019 and 5 September 2019, the Applicant, without consent, stole a total of $188,536.12, in 45 separate transactions, from Taylor Marine. On each occasion, the Applicant transferred company funds from the company account into his personal account. The transactions were disguised by using the name of a Taylor Marine employee and his children’s names in the description of the transfer: Exhibit 1 at p 280.
Between 24 September 2019 and 18 August 2022, the Applicant, without consent, stole a total of $3,576,983.80 (in 50 separate transactions) from Taylor Marine. On each occasion, the Applicant transferred company funds from the company account into his personal account. The transactions were disguised by using a PAYG banking template called ‘ATO EFT Deposits Trust Account’: Exhibit 1 at p 280.
On 7 September 2023, detectives from the Financial Crimes Squad attended the Applicant’s home address and arrested him on suspicion of ‘Stealing as a Servant’ under s 378(7) of the Criminal Code (WA). A search warrant was executed resulting in several exhibits (related documents and electronic devices) being seized. The Applicant was conveyed to the Financial Crime Squad, where he participated in an Electronic Record of interview. During the interview, the Applicant made admissions regarding his previous employment with Taylor Marine but provided ‘no-comment’ responses to questions regarding the two alleged stealing offences. The Applicant was later charged with the two counts of ‘Stealing as a Servant,’ for the offences: Exhibit 1 at p 56 and p 280.
On 10 May 2023, prior to the Applicant’s arrest, the Applicant and Ms S Siew entered into a Settlement Deed with Taylor Marine whereby they jointly and severally agreed to pay Taylor Marine a total amount of $3,997,568.13, in four instalments, which amount included the total amount stolen by the Applicant from Taylor Marine plus legal costs (Settlement Deed). By 21 December 2023, the Applicant had paid Taylor Marine the full amount agreed under the Settlement Deed (Exhibit 1 at p 49 and p 281), as follows:

Date Received Amount Total Amount Repaid Total Amount Remaining

- 3,997,568.13

25/05/2023 735,000.00 735,000.00 3,262,568.13

02/06/2023 100,000.00 835,000.00 3,162,578.13

14/06/2023 205,341.75 1,040,341.75 2,957,226.38

14/06/2023 537,000.00 1,577,341.75 2,420,226.38

02/08/2023 470,000.00 2,047,341.75 1,950,226.38

08/08/2023 539,320.74 2,586,662.49 1,410,905.64

26/09/2023 288,242.83 2,874,905.32 1,122,662.81

18/12/2023 1,122,662.81 3,997,568.13 -

On 24 October 2023, the Applicant pleaded guilty to two counts of ‘Stealing as a Servant’, under s 378(7) of the Criminal Code (WA), in the Perth District Court of Western Australia: Exhibit 1 at pp 284-285.
On 5 April 2024, the Applicant was convicted of two counts of ‘Stealing as a Servant’, under s 378(7) of the Criminal Code (WA), in the Perth District Court of Western Australia, for which he received sentences of two years’ imprisonment (count one) and four years and eleven months’ imprisonment (count two), to be served concurrently, with the total effective sentencing being four years and eleven months’ imprisonment, backdated to commence on 15 March 2024.
The Applicant is currently serving his sentence at Wooroloo Prison Farm, a minimum-security facility, and he is eligible to apply for parole after he has served a minimum of two years and eleven months of imprisonment from 15 March 2024 (i.e. on 14 February 2027): Exhibit 1 at p 65 and Exhibit 2.
The Applicant has no prior criminal history: Exhibit 1 at pp 66-67.
FIRST PRIMARY CONSIDERATION: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1 of Direction 110)
Safety of the Australian community is the highest priority
In applying paragraph 8.1 of Direction 110, the Tribunal must be informed by the eight ‘Principles’ set out in paragraph 5.2 of Direction 110: see [21] above.
Paragraph 8.1(1) of Direction 110 states:
When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(emphasis added)
The safety of the Australian community as being the highest ‘priority’ is also stated as a ‘priority’ in the ‘Principle’ in paragraph 5.2(2) of Direction 110: see [21] above.
Direction 110 was made on 7 June 2024 and commenced on 21 June 2024. It replaced former Direction 99 which did not contain the principle that ‘the safety of the Australian community is the highest priority of the Australian Government’. The safety of the Australian community as being the highest ‘priority’ of the Australian Government, and in the application of Direction 110 by decision-makers, is reflected in the media release, published on 7 June 2024 by the Minister, Hon Andrew Giles MP (who authored both Directions 99 and 110), announcing Direction 110 as follows:[4]
[4] See also Acts Interpretation Act 1901 (Cth), s 15AB.
Today, I have signed Ministerial Direction 110, a new, revised Direction to strengthen the consideration of community safety in Australia’s migration system.
Since coming to office, the Government has refused and cancelled a large number of visas on character grounds in the interests of community safety.
However, it is clear the AAT has made a number of decisions independently of Government that do not reflect the Government’s intent or meet community expectations.
Since the beginning of last week, I have cancelled 40 visas in the national interest.
Today, we take the next step in strengthening our cancellation system to better reflect community expectations.
Ministerial Direction 110 is guided by two key principles; the protection of the Australian community and common sense.
This new revised Direction makes crystal clear that the Government expects the protection of the Australian community be given greater weight in visa decisions.
….
The revised Direction makes it clear that the safety of the Australian community is the Government’s highest priority – and includes this as a key principle of the decision-making framework.
….
Ministerial Direction 110 is an important step in ensuring that our migration system works in our national interest, and visa decisions are in line with common sense and the safety of Australians.
Community safety is and always will be our Government’s highest priority.
(emphasis added)
Accordingly, the phrase ‘safety of the Australian community,’ in the ‘Principle’ in paragraph 5.2(2) of Direction 110 and the first ‘primary consideration’ in paragraph 8.1(1) of Direction 110 (protection of the Australian community) is directed at the risk posed by a non-citizen to the safety of the Australian nation should they be granted a visa. It is not directed at the potential consequences for a segment of the Australian community (such as the non-citizen’s family members) should the visa not be granted or restored. The Tribunal must assess whether a non-citizen’s continued presence in Australia would ‘be opposed to the safety and welfare of the nation’: Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [94].
Paragraph 8.1(2) of Direction 110 states that, when considering protection of the Australian community, decision-makers should also give consideration to the:
(a)nature and seriousness of the non-citizen’s conduct to date: paragraph 8.1.1 of Direction 110; and
(b)risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct: paragraph 8.1.2 of Direction 110.
Nature and seriousness of the Applicant’s conduct to date (paragraph 8.1.1 of Direction 110)
The Tribunal must consider the ‘nature and seriousness’ of the Applicant’s criminal offending and other conduct to date: paragraph 8.1.1 of Direction 110.
In the Applicant’s SFIC (at [40]-[41]), the Applicant makes the following submissions regarding paragraph 8.1.1 of Direction 110 and the ‘nature and seriousness’ of the Applicant’s criminal offending to date:
38.The Applicant was convicted of two counts of stealing as a servant.
39.While the cumulative sentences received by the Applicant reflects the seriousness of his offences, the offending does not fall within the categories identified as “very serious” in Direction No. 110.
40.We submit that Direction No. 110 is intended to focus the decision-maker’s mind on:
(i)crimes of violence, rather than financial crime, although that is not to say that financial crimes are not without victims; and
(ii)the impact of crimes on individuals and the broader community.
41.In the present case:
(i)the Applicant’s crimes were not crimes of violence; [and] (sic.)
(ii)whilst the Applicant’s conduct resulted in financial harm to Taylor Marine, there did not appear to be any direct impact on any individual or the broader community.
(emphasis added)
In the Applicant’s SIR (Exhibit 1 at pp 478-479), in relation to the ‘seriousness’ of the Applicant’s offending, the Applicant submits:
7.It would be an error of logic to elevate all financial crime to the ‘violent and/or sexual crimes,’ ‘crimes of a violent nature against women or children,’ and ‘acts of family violence’ specifically mentioned in cl 8.1.1(1). It would be logically erroneous because it involves reasoning by category. It would be legally erroneous because it involves equating all ‘serious’ or ‘very serious’ conduct in the weighing exercise.
11.…. A financial fraud of $4M is no doubt serious conduct. The applicant accepts that. But within the prescriptive rubric of Direction 110, it is conduct that does not expressly require classification as ‘very serious’ under cl 8.1.1(1). There is no violence. Nor did it pose any ‘danger’ or risk to the ‘safety’ of any Australian citizen or other person.
(emphasis added)
For the following reasons, the Tribunal considers the Applicant’s above submissions are misconceived.
Paragraph 8.1.1(1)(a) of Direction 110 provides examples of the types of crimes or conduct that are viewed ‘very seriously’ by the Australian Government and the Australian community. Paragraph 8.1.1(1)(b) of Direction 110 provides examples of the types of crimes or conduct that are considered by the Australian Government and the Australian community to be ‘serious’.
Paragraph 8.1.1(1)(a) of Direction 110 begins with the words ‘without limiting the range of conduct that may be considered very serious’. Similarly, paragraph 8.1.1(1)(b) of Direction 110 commences with the words ‘without limiting the range of conduct that may be considered serious’.
It is abundantly clear from the use of the words ‘without limiting the range’, in paragraph 8.1.1(1)(a) and (b) of Direction 110, that Direction 110 is not intended to limit the types of crimes or conduct that the Tribunal may consider as ‘very serious’ or ‘serious’, under paragraph 8.1.1 of Direction 110, to the types of crimes or conduct specifically referred to in paragraph 8.1.1(1)(a) and (b) of Direction 110. Put differently, the types of crimes or conduct which may be considered by the Tribunal as ‘very serious’ or ‘serious’ for the purposes of paragraph 8.1.1 of Direction 110 is not exhaustive. That is, there is flexibility built into paragraph 8.1.1 of Direction 110 which enables crimes, when looking at their overall circumstances objectively, to be categorised as ‘very serious’ or ‘serious’, irrespective of whether a particular crime is specifically referred to in Direction 110 as ‘very serious’ or ‘serious’.
The fact that the Applicant’s crime of ‘Stealing as a Servant’ is not specifically referred to, in paragraph 8.1.1(1)(a) of Direction 110, as conduct which may be considered ‘very serious’ or, in paragraph 8.1.1(1)(b) of Direction 110, as conduct which may be considered ‘serious’, does not preclude it from constituting conduct which may be considered by the Tribunal as ‘very serious’ or ‘serious’. For the reasons below, the Tribunal considers the Applicant’s crimes of ‘Stealing as a Servant’ as ‘very serious’ for the purpose of paragraph 8.1.1 of Direction 110 (Nature and seriousness of the conduct) and the first primary consideration, in paragraph 8.1 of Direction 110 (Protection of the Australian community), more broadly.
The absence of physical ‘violence’ against ‘individuals’ of ‘natural persons’ in the Applicant’s crimes of stealing does not prevent those crimes from being ‘serious’ or ‘very serious’ for the purpose of paragraph 8.1.1 of Direction 110, as submitted by the Applicant. Indeed, the ‘Principle’ in paragraph 5.2(4) of Direction 110 provides that the Australian community expects that the Australian government can and should cancel the visa of a non-citizen who engages in conduct that raises serious character concerns and that:
This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(emphasis added)
More particularly, the fact that the Applicant’s crimes of stealing did not involve physical ‘violence’, family ‘violence’, crimes of a ‘violent and/or a sexual nature’ or crimes of ‘violent and/or sexual nature’ involving vulnerable members of the Australian community, such as women, children, the elderly and the disabled, does not preclude his crimes of stealing from being ‘serious’ or ‘very serious’ for the purpose of paragraph 8.1.1 of Direction 110, as submitted by the Applicant. Such a submission is without foundation. As stated above, it is clear from the words used in Direction 110 and, it follows as a matter of construction that the types of crimes or conduct that may be considered ‘very serious’ or ‘serious’, for the purpose of paragraph 8.1.1 of Direction 110, is not exhaustive and may extend to include ‘non-violent’ crimes, such as the crime of stealing.

For the following reasons, the Tribunal considers the Applicant’s crimes of two counts of ‘Stealing as a Servant’ as objectively ‘very serious’ for the purpose of paragraph 8.1.1 of Direction 110 (and, it follows, paragraph 8.1 of Direction 110). Not only does Direction 110, as a matter of construction, compel that conclusion, but the objective facts here speak to the ‘seriousness’.
Sentence imposed by the court for crimes
Paragraph 8.1.1(1)(c) of Direction 110 provides that in considering the nature and ‘seriousness’ of the Applicant’s criminal offending to date, the Tribunal must have regard to ‘the sentence imposed by the courts for a crime or crimes’, noting that, when reviewing the Minister’s decision whether there is ‘another reason’ to revoke a mandatory visa cancellation, the Tribunal may not impugn or ‘go behind’ either the conviction or the sentence: Minister for Immigration Multicultural Affairs v Ali (2000) 106 FCR 313 at [42]; Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at [5], [44], [102], and [104].
The maximum sentence for the crime of ‘Stealing as a Servant,’ under the Criminal Code (WA), is ten years’ imprisonment. The Tribunal considers that the maximum sentence, which is substantial, demonstrates how ‘seriously’ the Western Australian government considers such conduct.
In her Sentencing Remarks, made on 5 April 2024 (Sentencing Remarks), the Sentencing Judge, Tovey DCJ (Sentencing Judge), stated (Exhibit 1 at pp 62-63):
….the sentence I impose must be commensurate with the seriousness of your offending. I must not use a more sever sentencing option unless I am satisfied that it is not appropriate to use anyone of the less severe options available. Imprisonment is a sentence of last resort. When considering a sentence I must have regard to the purpose of imposing punishment to punish you and deter both you and others from committing offences in the future.
(emphasis added)
In the Sentencing Remarks, the Sentencing Judge stated the following in relation to the sentence (term of imprisonment) imposed on the Applicant for the two counts of ‘Stealing as a Servant’ (Exhibit 1 at pp 64-65):
Now, in my view, the seriousness of your offences are such that a term of imprisonment is the only appropriate disposition. The terms I impose are as follows:
In respect of count 1, a term of two years’ imprisonment.
In respect of count 2, a term of four years, 11 months’ imprisonment.
….
Now, in my view, in all of the circumstances, a total effective sentence of four years, 11 months’ imprisonment is the appropriate sentence having regard to all the matters I have mentioned…
…..
…..Given all of the circumstances of the offences, your personal circumstances, mitigating factors and all the circumstances generally, including the repayment of the moneys, I am positively of the view that it is not appropriate to suspend or conditionally suspend or partly suspend the term of imprisonment.
In my view, the seriousness of your offences is such that a term of imprisonment to be immediately served is the only appropriate sentence.
(emphasis added)
It is clear from the above Sentencing Remarks that the Sentencing Judge considered the Applicant’s conduct as serious, which is reflected in the significant cumulative (total) sentence imposed on the Applicant of six years and eleven months (from a maximum sentence of ten year’s imprisonment for the crime of ‘Stealing as a Servant’), with the Applicant receiving a concurrent total (effective) sentence of four years and eleven months of imprisonment.
The Applicant received two years and eleven months non-parole which seems, to the Tribunal, to be quite high for a first offence. In relation to the Applicant’s eligibility to apply for parole, the Sentencing Judge remarked (Exhibit 1 at p 65):
….you will be eligible for parole after having served two years less than the term. So the minimum period you must serve in custody is two years, 11 months’ imprisonment from 15 March 2024….whether you are granted parole at this time is a matter for the Prisoners Review Board.
In circumstances where the sentence of imprisonment imposed by the District Court on the Applicant was lengthy, despite the Applicant having no prior criminal record, and noting that sentences of imprisonment are the last resort in the sentencing hierarchy and that the Court sentenced the Applicant to a term of actual custodial imprisonment (with what seems like quite a high non-parole period for a first offence), the Applicant’s offending should, in the Tribunal’s view, be objectively viewed as ‘very serious’: PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
Breach of trust reposed in Applicant
In her Sentencing Remarks, the Sentencing Judge describes the ‘very serious’ nature of the Applicant’s crimes, involving a significant and continuing breach of trust against his employer and protracted dishonesty. Relevantly, the Sentencing Judge found (Exhibit 1 at p 63):
Now, you were employed as the financial officer and the chief financial officer of Taylor Marine. There was a significant and continuing abuse of trust reposed in you by the owners of the company and the roles you had within the company. Your offending involved a breach of trust of the company you were supposed to serve. Your offending was repeated.
(emphasis added)
The Sentencing Judge referred to the significant amount of money the Applicant stole from his employer, Taylor Marine, and that his crimes involved a sustained lengthy period of dishonesty, demonstrating the ‘very serious’ nature of his crimes, as follows:
Your offending involved disguising the transactions into your personal account. In respect of count 1, you disguised the transactions by using a Taylor Marine employee and your children’s names in the description section of the transfer. In respect of count 2, you disguised the transactions by using a Pay as You Go banking template called ATO EFT deposits trust account.
You stole over $3.7 million over a total period of approximately three years, four months. Your offending totalled 95 transactions over the entire period the subject of count 1 and count 2. Each of the transactions was an act of dishonesty and done for personal gain. Your offending involved a sustained lengthy period of dishonesty. The money or at least some of the money you stole was used to alleviate financial stress and to provide your wife what you thought was a good future.
(emphasis added)
On 8 January 2023, the Applicant and his family went on holiday to Malaysia, returning to Australia on 25 January 2023: Exhibit 1 at p 221. As stated above, it was while he was away on holiday that Ms Towers, Administration Supervisor at Taylor Marine, reported to Mr Halsted, that the administration team were unable to reconcile December 2022 credit card transactions (totalling approximately $235,000) against the Applicant’s credit card statements. This prompted Taylor Marine to telephone the Applicant, while he was on holiday in Malaysia, and question him about the company credit card transactions. It was only because the Applicant went on holiday, and someone stepped into his role, that he was caught for the much larger stealing offences: Exhibit 1 at pp 297-298. In the Sentencing Remarks, the Sentencing Judge observed that the Applicant ‘did not reveal’ (disclose) his other repeated offending which ultimately led to his convictions for ‘Stealing as a Servant’ to his employer at that time but, rather, kept this offending concealed: Exhibit 1 at p 57.
The Applicant’s offending only came to light when Mr Halsted, the Business Manager at Taylor Marine, conducted a thorough examination of Taylor Marine’s accounts after Taylor Marine’s administrative staff were unable to reconcile a payment entered into their accounting system by the Applicant: Exhibit 1 at p 55. This speaks to the profoundly dishonest nature of the Applicant’s offending and reflects poorly on his character.
Further, the Sentencing Judge referred to the fact that, following his arrest, the Applicant participated in an interview with the police and, when questioned by the police about his offending, he responded by way of ‘no comment’: Exhibit 1 at p 60 and p 280. Again, this reflects poorly on the Applicant’s character.
As stated above, based on the totality of the circumstances, the Tribunal considers the Applicant’s offending is objectively ‘very serious.’ The Applicant conceived the idea of stealing from his employer and implemented it without the assistance or pressure from others. The Applicant stole a considerable amount of money from his employer in the trusted roles of finance manager and chief financial officer, namely $3.7 million (plus the $235,000 in unauthorised credit card transactions). The Applicant’s offending was repeated through multiple transactions (i.e. 95 separate transactions) over a lengthy period (i.e. three years and four months). Inevitably, the Applicant’s repeated stealing was something discovered by his employer. Prior to this, the Applicant deliberately disguised and concealed his stealing. His offending was profoundly dishonest.
The Applicant’s offending did not involve a single decision by him to steal from his employer. What occurred is a sustained series of deliberate, premeditated decisions by the Applicant to misappropriate funds (steal) from his employer. The significant and continuing breach of trust against his employer, and protracted dishonesty, does not just arise because of the nature of the Applicant’s employment as an accountant and his trusted roles at Taylor Marine, first as finance manager and, later, as chief financial officer. There are aggravating factors at play here.
In his oral evidence at the hearing, the Applicant stated he was treated well by Taylor Marine and that they are ‘good people.’ The Applicant described Taylor Marine as a ‘family company’ and that they had ‘invited him into their family.’ The Applicant told the Tribunal that he got on well with his ‘boss’s son’ (i.e. the managing director’s son) and that he had betrayed their trust by stealing from them. The Applicant said that, at the time of his offending, he did not think his crimes of stealing would impact Taylor Marine as the ‘company was doing really well’ with ‘enormous profits coming in.’ However, the Applicant acknowledged that, at the time of the offending, he realised his stealing may impact other company employees and the staff ‘under him’ in that they may receive smaller ‘bonuses.’ Therefore, the Applicant took deliberate and repeated advantage of the trust reposed in him by his employer.
Further, in the Tribunal’s view, the Applicant’s conduct involved a degree of ‘sophistication’ which was conceded by the Applicant’s defence counsel, at the Applicant’s sentencing, as follows (Exhibit 1 at p 289):
It is also aggravating of course that there’s a degree of sophistication about the theft in the sense that they were disguised by someone, Mr Chow, who knew how the financial arrangements worked inside Taylor Marine, how the organisation interacted with, for example, the tax office, how payroll was processed. He was in charge of those things within the organisation, and – so knew how to disguise the amounts going to other places.
And it wasn’t until he was away, and ultimately other people were charged with some of those responsibilities, that these things then unravelled. Now, all of those things are significant. The breach of trust is an aggravating factor, and I need to add that to the list.
(emphasis added)
The ‘sophisticated’ nature of the Applicant’s repeated stealing, dishonesty and breach of trust is reflected in the following remarks of the Applicant’s own defence counsel, at the Applicant’s sentencing (Exhibit 1 at pp 297-298):
…he made more than one choice to offend. It’s not a case of swinging a single punch at someone or stealing a car or one drunken night.
It is a long series of decisions rather than one decision and, as I’ve said, it’s sophisticated. The stealing offences are reasonably well-covered. It took quite a lot of work and a number of coincidences before people started to find out what happened. It is possible Mr Chow might have got away with this for some more time had he not gone on holiday. You would expect something of this magnitude would eventually unravel but it had gone on for quite some time before it was discovered.
In his oral evidence at hearing, the Applicant accepted that he used the names of Taylor Marine employees to disguise some of the payments of company funds from the company account into his personal account: Exhibit 1 at pp 55-56. In the Tribunal’s view, and as submitted by the Respondent in closing, this demonstrates quite a ‘cavalier’ disregard of how these employees may themselves be suspected of wrongdoing when Taylor Marine ultimately investigated the Applicant’s offending. It does not automatically follow from the fact that other examples of fraud may be held up as being ‘more’ elaborate or ‘more’ sophisticated that the Applicant’s offending, as contended by the Applicant, was unsophisticated: Exhibit 1 at p 480 (Applicant’s SIR at [19]).
Frequency of offending & cumulative effect of repeated offending
Paragraph 8.1.1(1)(e) of Direction 110 requires the Tribunal to have regard to the frequency of the Applicant’s offending and whether there is any trend in increasing seriousness in considering the ‘nature and seriousness’ of the Applicant’s criminal offending or other conduct to date.
Further, the Tribunal must have regard to the cumulative effect of repeated offending in considering the ‘nature and seriousness’ of the Applicant’s criminal offending or other conduct to date: paragraph 8.1.1(f) of Direction 110.
In this regard, in the Applicant’s SFIC, the Applicant states (at [44]):
44. …..in terms of frequency and trend of offending, we submit that:
(1) the Applicant had no prior criminal record;
(2)whilst the offending took the form of multiple transactions over multiple occasions, the fact that they resulted in two charges suggest that each act of offending ought to be considered as part of a larger continuum such that the decision-maker ought not to take the view that there has been repeated offending or any trend of increasing seriousness.
(emphasis added)
For the following reasons, the Tribunal does not accept the above submissions of the Applicant that the Tribunal ‘ought not take the view that there has been repeated offending.’
There is objectively no doubt that the Applicant’s offending was ‘repeated’ and ‘frequent,’ noting he engaged in a total of 95 separate transactions of stealing over a period of three years and four months: paragraph 8.1.1(e) of Direction 110.
In the Sentencing Remarks, the Sentencing Judge describes the Applicant’s offending as ‘repeated’ as follows (Exhibit 1 at p 59)
…..your offending was repeated, so in that respect, at least after the commission of the first stealing, you cannot be said to be a person of prior good character.
(emphasis added)
It could be said that the Applicant’s offending demonstrates a ‘trend of increasing seriousness’ in that his offending began with using the company credit card on personal expenses (totalling approximately $235,000) and moved to disguising the transfer of a much more significant amount of company funds (in excess of $3,700,000) into his personal account using false transfer details. It was only because the Applicant was caught by Taylor Marine administrative staff and the Business Manager that his offending ceased. If gone unnoticed, it may have continued to escalate.
Conclusion: Nature and seriousness of the conduct (paragraph 8.1.1 of Direction 110)
For the above reasons, and as informed by the ‘Principles’ in paragraph 5.2 of Direction 110, the Tribunal considers the ‘nature and seriousness’ of the Applicant’s criminal conduct to date to be ‘very serious’: paragraph 8.1.1 of Direction 110.
In reaching this conclusion, the Tribunal notes that a majority of the Full Court recently held that the Tribunal is not bound by the expressed views as to the ‘seriousness’ of certain conduct found within paragraph 8.1.1(a) and (b) of Direction 110 and, instead, the Tribunal is required to assess for itself the ‘nature and seriousness’ of a non-citizen’s conduct to date and the weight that should be attributed to this consideration: BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 608 at [107]; Siale v Minister for Immigration and Citizenship [2025] FCA 608 at [34]; Minister for Immigration and Multicultural Affairs v Peralta Montes [2025] FCA 667 at [89]-[90].
Risk to the Australian community should the Applicant commit further offences or engage in other serious conduct (paragraph 8.1.2 of Direction 110)
The Tribunal must also consider the ‘risk’ to the Australian community should the Applicant commit further offences or engage in other serious conduct: paragraph 8.1.2 of Direction 110.
The concept of ‘risk’ and whether it is ‘unacceptable’, for the purpose of paragraph 8.1(2)(b) of Direction 110, is not the same thing as the ‘likelihood of the non-citizen engaging in further criminal or other serious conduct’, for the purpose of paragraph 8.1.2(2) of Direction 110.[5] For this purpose, an ‘unacceptable risk’ is a ‘risk’ which the Tribunal considers to be ‘unacceptable’ having had ‘regard to’, cumulatively:
[5] See Re RRRB and Minister for Immigration and Multicultural Affairs [2025] ARTA 471 at [74].
(a)the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct; and
(b)the likelihood of the Applicant engaging in further criminal or serious conduct, taking into account:
(i)information and evidence on the risk on the Applicant reoffending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community, if any, since his most recent offence.
Direction 110, directs the Tribunal’s ‘risk’ assessment by expressly stating that, informed by the ‘Principles’ in paragraph 5.2 of Direction 110, the:
(a)Australian Government is committed to ‘protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens’: paragraph 8.1(1) of Direction 110;
(b)Australian Government views that certain types of conduct may be considered by it and the Australian community as ‘very serious’ and ‘serious’: paragraph 8.1.1(1) of Direction 110; and
(c)Australian Government’s view is that ‘the Australian community’s tolerance of any further risk of future harm becomes lower as the seriousness of the potential harm increases’: paragraph 8.1.2(1) of Direction 110.
In Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424, Justice Mortimer (as her Honour then was) said (at [103]):
It is well established that, where the harm which might be caused by future conduct is particularly serious, a lesser likelihood of the conduct occurring may be required for the risk to be identified at a level requiring a particular decision to be made. It is also well established that the likelihood of a person engaging in conduct in the future is affected by both static and dynamic factors: that is, factors which can be assessed objectively against statistical models to predict the risk category a person falls into, and dynamic factors personal to an individual which may moderate or exacerbate the risk the person otherwise could be said to pose. Those factors might include family support, alcohol and drug abuse patterns, employment and the like.
Accordingly, the ‘risk’ referred to in the balancing exercise contemplated by Direction 110 is not just ‘any’ risk that a non-citizen may ‘commit further offences or engage in other serious conduct’, but is aimed at the Tribunal’s assessment of the nature and degree of harm said to exist in the particular circumstances of the case.

There is no statutory constraint on the way the Tribunal is to assess that risk, other than the requirement for the Tribunal to adopt a rational and probative approach to the assessment: Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [33]-[36].
Nature of the harm to individuals or the Australian community
In relation to the ‘nature of harm to individuals or the Australian community,’ in the Applicant’s SFIC, the Applicant submits (Exhibit 1 at pp 350-351):
41. In the present case:
….
(b)whilst the Applicant’s conduct resulted in financial harm to Taylor Marine, there did not appear to be any direct impact on any individual or the broader community.
42.The only evidence of impact was contained in Tovey DCJ’s sentencing remarks where Her Honour observed (G5, p 56):
I note for some bodies (?) [sic] that stealing by those who are supposed to serve them can have a devastating impact and affect them as a going concern. Fortunately, your actions did not have that impact on Taylor Marine, however, as I have been told this morning, had the money not been stolen, and the directors been aware of the true financial situation, there were business matters and opportunities that they would have been able to engage in to perhaps increase their profits. [emphasis added]
43.In other words, the only harm suffered by Taylor Marine was the possibility of additional profits.
…...
47.In the present case, the Applicant’s conduct did not cause direct physical, emotional, psychological or financial harm to any individual.
48.Rather it involved financial harm to a corporate entity, which harm was minimal so that it went largely unnoticed. The only evidence of harm, as stated above at para 42, was the prospect of greater profit by the company.
49.This suggests that the potential harm of the Applicant’s conduct to individuals or the community was negligible.
(emphasis added)
In the Applicant’s SIR, the Applicant submits:
4.In balancing the primary considerations, Direction 110 places emphasis on the physical and psychological ‘safety’ of individuals in the ‘Australia community’. ‘Loss of opportunity’ type damages sustained by corporate trustee shareholders of a corporate victim of fraud are not easily assimilated to this kind of ‘harm.’ Moreover, any loss of this kind is a deductible expense, and would need to factor in concessional corporate tax rates and trust laws before allocating any particular loss to any natural person recipient of dividends.
….
8.The language, structure and context if Direction 110 is directed at physical and psychological safety of natural persons comprising the ‘Australian community’. The ordinary meaning of ‘safety’ does not connote a loss of profit or opportunity loss ordinarily associated with the law of damages. Nor does it engage a reference to the legal fiction of a corporation.
9.The assumption of Direction 110 is directed to natural persons…
….
15.Of course, a striking aspect of the applicant’s case is that there was in fact no ‘harm’ actually caused. All of the money stolen was repaid. And in fact, the applicant agreed to repay more than he stole in that he (and his wife Ms S Siew, it seems) entered into a deed with Taylor Marine under which he (or they) agreed to also repay Taylor Marine’s legal expenses [footnote omitted]. Technically, therefore, Taylor Marine suffered no loss, economic or otherwise, because any rights merged in the deed.
16.But the position is more nuanced. The ‘victim’ here was a proprietary limited corporation, whose shareholders were other corporate entities holding those shares as trustee of various trusts [footnote omitted]. The traditional purpose of corporatisation is to insulate members from personal liability and also to realise lower corporate income tax rates.
17.Furthermore, this kind of fraud has long been recognised as a deductible business expense [footnote omitted]. Section 25–45 of the Income Tax Assessment Act 1997 (Cth) permits deductions of business expenses for misappropriation [footnote omitted]. Equating the ‘harm’ to the amount of the fraud requires significant conceptual modification here, despite repayment. Such an event may well have been insured in any event, although there is no evidence either way.
(emphasis added)
For the following reasons, the Tribunal outrightly rejects the above submissions of the Applicant and considers that they are utterly misconceived. Specifically, the submission that Direction 110 is focused on ‘natural persons’ and ‘individuals’ is incorrect and entirely unsupported by authority. It fails on a factual and legal basis. As submitted by the Respondent in closing, it is legally incorrect because it is conflating considerations of the impact on victims with the ‘risk’ of reoffending.
Some paragraphs in Direction 110 refer to ‘individuals or the Australian community’, thereby drawing a distinction between ‘individuals’, or natural persons, on the one hand, and the broader ‘Australian community’, on the other. For example, the first ‘Principle’ in paragraph 5.2(1) of Direction 110 refers to ‘harm’ to ‘individuals or the Australian community’. In contrast, the ‘Principles’ in paragraphs 5.2(2), (4), (5), (6) and (8) refer only to the ‘Australian community’, and not ‘individuals’ or natural persons. Paragraph 8.1(1) of Direction 110 refers to the ‘protecting’ of the ‘Australian community’ and ‘harm’ to ‘individuals or the Australian community’ and paragraph 8.1(2) of Direction 110 refers to the ‘risk’ to the ‘Australian community’, but no mention is made of ‘individuals’. Paragraph 8.1.1 of Direction 110 (The nature and seriousness of the conduct) refers, when discussing the ‘seriousness’ of the non-citizen’s offending, to ‘victims’ and the ‘Australian community’, but not to ‘individuals’.
Relevantly, paragraph 8.1.2(1) of Direction 110 provides:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view of the Australian community’s tolerance for any risk of future harm…
(emphasis added)
The phrase ‘including individuals, groups or institutions’, in paragraph 8.1.2(1) of Direction 110 (as set out immediately above) makes it very clear that when considering the need to protect the ‘Australian community’, Direction 110 is not focused only on the need to protect ‘individuals’ or natural persons from ‘harm’ and the ‘risk of future harm’, but is intended by the Australian Government to encompass the need to protect the broader ‘Australian community’ from ‘harm’ and the ‘risk of future harm’.
Paragraph 8.1.2(2) of Direction 110 provides that in assessing the ‘risk’ that may be posed by the non-citizen to the ‘Australian community’, more broadly, regard must be had to the three considerations set out in paragraph 8.1.2(2)(a) to (c) of Direction 110. Only paragraph 8.1.2(2)(a) (nature of harm) refers to the expression ‘individuals or the Australian community’.
The expression ‘Australian community’ is not defined in section 4 of Direction 110, titled ‘Interpretation’. The Tribunal takes the view that the ordinary meaning of the expression ‘Australian community,’ as it appears in Direction 110 (and, more particularly, in paragraph 8.1 of Direction 110), must, for the following reasons, include Australian proprietary limited companies, like JN Taylor & Company Proprietary Limited, trading as Taylor Marine (the Applicant’s employer). To suggest otherwise, is a nonsense. Recently, the Full Court confirmed, in Mizen v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 84 at [64] that the terms of Direction 110 should be construed according to the orthodox principles of statutory construction, namely that their meaning is to be ascertained by reference to the text, the context in which they appear, and their purpose.
A company is generally considered an artificial legal construct or entity, separate from its owners and treated as a legal ‘person’ under Australian law (such as the Corporations Act 2001 (Corporations Act) and the Australian Securities and Investments Commission Act 2001), even though it is not a ‘natural’ person. This means it can own property, enter contracts, sue and be sued like a natural person, even though it is not one. A company has a distinct legal identity, separate from its directors, shareholders and other “individuals” involved. This is commonly referred to as the ‘separate legal entity’ doctrine. Australian proprietary limited companies, like Taylor Marine, are formed and regulated by specific laws, including the Corporations Act.
The director/s of Australian proprietary limited company are individuals/natural persons and are subject to several key legal and ethical duties. For example, they must act in good faith, with reasonable care and diligence, and avoid conflicts of interest. They also have a duty to prevent insolvent trading and ensure the company can meet its financial obligations. Indeed, directors can be held personally liable for debts incurred by a company while it is trading insolvently. Further, directors must not use their position or company information for personal gain. Shareholders of a proprietary limited company need not be ‘individuals’ or natural persons. They may be companies and/or trusts. However, the ultimate ownership of such entities are, inevitably, individuals or natural persons.
The fact that ‘harm’ can be inflicted on Australian companies, as members of the ‘Australian community’, is evidenced by the very existence of the Australian Securities and Investments Commission (ASIC), which was established by the Australian Government, as the national corporate ‘watchdog’, to regulate company and financial services and enforce laws to protect the Australian community, including consumers, investors and creditors. Then there are the interests of the employees of a company to consider, who are ‘individuals’ or natural persons, and form part of the broader ‘Australian community’” requiring protection from harm under Direction 110.
Further, Australian superannuation funds, regularly invest the compulsory superannuation (retirement savings), of Australian ‘individuals’ or natural persons in Australian companies. Superannuation funds are regulated by the Australian Prudential Regulation Authority (with ASIC and the Australian Taxation Office also having regulatory roles). As such, Australian companies, including Taylor Marine, must fall within what is meant by ‘Australian community’ requiring protection under Direction 110.
In the Tribunal’s mind, there is no doubt that there are ‘individual,’ ‘natural person,’ and ‘human’ aspects to the way in which Australian companies (albeit fictitious legal ‘persons’) are owned, operated and regulated and, therefore, the expression ‘Australian community,’ in Direction 110, is intended to, and does, include Australian companies. It logically follows that when considering the protection of the ‘Australian community’ (which, as stated above, the Tribunal considers to include Australian companies), the Tribunal ‘should keep in mind’ that the safety of the ‘Australian community’ (including Australian companies) is the highest priority of the Australian Government and that the Australian Government is committed to protecting the ‘Australian community’ (including companies) from ‘harm’ as a result of criminal activity or other serious conduct by non-citizens: paragraph 5.2(1) and (2) and paragraph 8.1 of Direction 110.
As stated above, in both the Applicant’s SFIC and the Applicant’s SIR, the Applicant contends that, in the Applicant’s case, there was in fact no ‘harm’ actually caused to Taylor Marine, the Applicant’s employer, as a result of the Applicant’s crimes of stealing, because all the money stolen (plus legal costs incurred by Taylor Marine) was repaid. Further, according to the Applicant, because the Applicant and his wife Ms S Siew entered into the Settlement Deed with Taylor Marine, Taylor Marine suffered no loss, economic or otherwise, because any rights ‘merged’ in the deed. The Applicant’s representative made similar submissions in his opening and closing submissions at the hearing. Therefore, according to the Applicant, the only ‘harm’ suffered by Taylor Marine, because of the Applicant’s offending, was potential lost business opportunities and increased profits. For the reasons below, the Tribunal completely rejects these submissions. The Applicant’s SIR refers to, and the Applicant’s representative made similar submissions at the hearing, the fact that, in the absence of the stolen funds being repaid by the Applicant to Taylor Marine, Taylor Marine would have been entitled to a business tax deduction for the stolen funds and, further, that such an event ‘may well be’ an ‘insurable event’ for Taylor Marine. Even if this is correct, there is, on the Applicant’s own submission, ‘no evidence either way’: Applicant’s SIR at p 4 and Exhibit 1 at p 480. There is no evidence before the Tribunal that Taylor Marine either considered, or took, any of these steps. As such, these submissions are purely speculative and, frankly, unhelpful.
Leaving aside the fact that the Applicant repaid Taylor Marine the full amount of the stolen funds (plus Taylor Marine’s legal costs), Taylor Marine (who, for the above reasons, the Tribunal considered forms part of the ‘Australian community’ for the purpose of the Direction 110 ‘primary’ and ‘secondary’ considerations) was, in the Tribunal’s view, still ‘harmed’ by the Applicant’s conduct/offending.
Financial crimes are not ‘victimless’ crimes and can have catastrophic, financial, and other, consequences for the ‘Australian community,’ including their owners, employees, investors and the broader community. Financial crimes, like ‘Stealing as a Servant’ can obviously cause economic loss to the employer company. However, it goes much deeper than that. Financial crimes, such as ‘Stealing as a Servant,’ can potentially cause significant psychological, reputational, and/or financial loss for companies/businesses concerned and the “individuals” associated with those companies/businesses, such as the owners, the employees, the families and friends of the owners and employees and the broader ‘Australian community’ in which they operate.
As stated above, in the Sentencing Remarks the Sentencing Judge remarked that ‘stealing by those who are supposed to serve them can have a devastating impact and affect them as a going concern’ and that it was fortunate the Applicant’s stealing did not have that impact on Taylor Marine on this occasion: Exhibit 1 at p 63.
121.As stated above, because of the Applicant’s offending, Ms Towers (Taylor Marine’s Administration Supervisor), Mr Halsted (Taylor Marine’s Business Manager), and Taylor Marine’s administration team, more generally, had to, among other things, spend considerable time and effort (and money):
(a)reviewing the companies accounts in order to unravel the Applicant’s crimes (which may lead to it conducting its operations more cautiously/differently in the future);
(b)reporting the Applicant’s conduct to the police; and
(c)instructing solicitors, King & Wood Mallesons, to commence civil proceedings in the Supreme Court of Western Australia for the purpose of quantifying and recovering the stolen sum.
122.As submitted by the Respondent’s representative in closing, it is reasonable to assume, in the circumstances of this case, that the Applicant’s conduct, will potentially impact, or contribute to a level of suspicion, by which Taylor Marine will regard their employees in the future, and at the heart of every dishonesty offence is a breach of trust that impacts the person or persons, who have been subjected to that breach, into the future. As stated above, on his own evidence (in cross-examination), the Applicant accepted that the staff that work under him were impacted by his offending in that they could have been entitled to larger bonuses if he had not stolen from the company.
123.The nature of the harm to ‘individuals or the Australian community’ of the Applicant’s criminal conduct, especially as it involved an exceptionally large sum of money, is such that, in the Tribunal’s view, any ‘risk’ of reoffending is unacceptable to the Australian community.
Likelihood of the Applicant engaging in further criminal or other serious conduct
124.In the Applicant’s SFIC, the Applicant submits (Exhibit 1 at pp 352-354) that the Applicant is ‘unlikely’ to engage in further criminal or serious conduct. The Applicant’s SFIC states:
51.In this regard:
(1)Applicant had repaid all stolen amounts plus legal costs. This was recognised by Tovey DCJ, referring to Fleay v The State of Western Australia [2021] WASCA 214, as a reflection of “remorse, contrition or rehabilitation” (G5, p 53);
(2)Mr Owen Robinson, accredited mental health social worker, stated in his report dated 7 February 2024 (G23, p 211):
At no time did Mark [i.e. Applicant] demonstrate entitlement to minimal consequences or minimal restrictions being placed upon him. Mark has displayed a surprising and refreshing desire for accountability and application of justice for wrongdoing unparallelled in my clinical experience (commencing 1997 to present). Reoffending risk has not been evidenced in any way in the sessions Mark had with the writer.
(3)Mr Sean Ng, Clinical Psychologist, stated in his report dated 8 February 2024 (G24, p 212):
From the consistency of his remorse in conjunction with his willingness to bear responsibility for his actions, the writer does not believe that Mr Chow [i.e. the Applicant] is likely to reoffend as he has repeatedly and appropriately expressed responsibility, shame and regret for his choices.
(4)Referring to Mr Ng’s and Mr Robinson’s reports and other letters of support from family and friends, Tovey DCJ formed that view that “these are matters which bode well for your rehabilitation and continued rehabilitation” (G5, p 54);
(5)Members of the Applicant’s community do not believe that the Applicant will reoffend, for example:
(a)Stanley Tan states in his Statutory Declaration dated 22 November 2024 (G14, p 178-9) (confirmed by his Witness Statement dated 20 May 2025):
From the outset, Mark has taken full ownership of his wrongdoing; has expressed regret and remorse; and has sought to provide restitution to the company he stole from….
He is repentant, and has made the life-directed choice to continually challenge his negative thinking and accept the love, help and support that his God, church, friends and family have rallied for him.
(b)Mr D Lee states in his Statutory Declaration dated 21 November 2024 (G13 p 175) (confirmed by his Witness Statement dated 21 May 2025):
Throughout this time (including while incarceration [sic]), I have witnessed Mark’s deep remorse for the actions that led to his conviction. He has consistently expressed regret for the hurt and shame caused to his family and community. I firmly believe this remorse is genuine and reflective of his intention to reform;
I note that Mark has repaid in full the amount he stole, as acknowledged in the sentencing remarks. This demonstrates his willingness to take responsibility for his action and to make amends where possible….
(6)Applicant remains accountable to a strong community around him, including his wife, [Ms S Siew] and members of his church community. This is evidenced by the number of visits he has received whilst at Wooroloo Prison Farm.[footnote omitted]
(7)Applicant has continued to undertake courses in prison and intends to upskill himself so that he can embark on a new career in Australia upon his release from prison In his Witness Statement dated 20 May 2025, Applicant states at paragraphs 38-39:
I am determined to upskill so I can work when I leave prison.
I do not intend to return to office or accounting work. It would be better for me to start afresh in a different field.
(8)Whilst the Respondent’s delegate stated that Applicant’s behaviour in the community remains untested and unevaluated such that the delegate remained “somewhat guarded” in their view of Applicant’s rehabilitation, Applicant is noted as holding a “trusted position” in prison and is considered low risk. [Footnote omitted]

The Tribunal is not limited to the considerations it can take into account, as set out in Direction 110. The Tribunal is required to consider or read, identify, understand and evaluate representations and it is open for the Tribunal to give representations ‘weight,’ even if they do not arise under one of the ‘considerations’ in Direction 110: Plaintiff M1/2021 v Minister for Home Affairs (2020) 275 CLR 582 at [21] and [36].
The Applicant’s ‘Earliest Release Date,’ on parole, is 14 February 2017, and the Applicant is eligible to ‘apply’ for ‘Home Leave’ on 15 November 2025, with a ‘Date Eligible to Commence’ of 15 February 2026: Exhibit 2 at p 3. It does not necessarily follow from the fact that the Applicant is eligible to ‘apply’ for ‘parole’ or ‘home leave,’ on a particular date, that he will be granted ‘parole’ or ‘home leave’.
In Western Australia, when imposing a sentence, the Judge determines if, and when, the convicted person is ‘eligible’ for parole in accordance with s 89 of the Sentencing Act 1995 (WA) (SA). However, it is the Prisoner’s Review Board of Western Australia (Board) who determines if the prisoner is ‘suitable’ for ‘parole’ (i.e. ‘parole’ being the release of a prisoner after they have completed part of their prison sentence) in accordance with the Sentence Administration Act 2003 (WA) (SAA). The Board must consider the release conditions in s 5A of the SAA. If a prisoner is serving six months or more and the court made a parole eligibility order at the time of sentence, as is the case here, the prisoner will be assessed by the prison for parole on the basis of the ‘Parole Review Checklist and Community Corrections parole report’ (and the report is to be provided to the Board at least eight weeks before the prisoners earliest eligibility date), the prisoner’s parole plan, treatment reports, letters of support and any other relevant documents, including submissions to the Board. The Board must give the prisoner written notice of any decision on their parole application as soon as possible after the decision is made: s 107B of the SAA.
It is clear from the above that the Board’s decision whether to grant parole is not a ‘direct and immediate consequence’ of the Tribunal’s decision on whether to revoke the mandatory cancellation of a non-citizen’s visa requiring the Tribunal’s consideration under paragraph 9.1 of Direction 110. Whether parole is granted to a non-citizen, when they become eligible to ‘apply’ for parole (in accordance with any orders of the sentencing judge under the SA) is a decision for the Board having considered the release conditions in s 5A of the SAA. Eligibility to apply for parole comes about as a result of the sentencing judge applying s 89 of the SA in sentencing and the grant of parole depends upon the Board making a decision whether to grant parole under the SAA, being satisfied that the release conditions in s 5A of the SAA are met in any particular case. While the end result of parole being granted may differ as a result of the Applicant’s Visa cancellation not being revoked, being that a non-citizen parolee would likely be removed from Australia, the decision to grant parole itself is a separate statutory regime that relies upon separate considerations. Not only that, but it is also so far into the future, it is purely a matter of speculation, making it impossible for the Tribunal to attribute any ‘weight’ to it. Accordingly, the Tribunal affords this matter no weight.
The Commissioner’s Operating Policy and Procedure, ‘COPP 14.2 Home Leave,’ produced by the Government of Western Australia Department of Justice Corrective Services (COPP 14.2), sets out, among other things, the eligibility of prisoners to apply to the prison and the Community Corrections Officer for ‘home leave’. Paragraph 3.2.1 of COPP 14.2 states:
3.2.1 Prisoners are ineligible to apply for Home Leave:
a)where they are liable for, or have a confirmed order of deportation or removal from Australia.
Since, as stated above, the legal consequence of the mandatory cancellation of the Applicant’s Visa by a delegate of the Minister is that he became an ‘unlawful citizen’: ss 13- 15 of the Migration Act. Because of that status, the Applicant is required to be detained under s 189(1) of the Migration Act until he is either removed from Australia, under s 198 of the Migration Act, or he is granted a visa (including having his Visa restored to him under s 501CA(4) of the Migration Act). Section 198(2B) of the Migration Act provides for removal where there has been a mandatory cancellation and subsequent decision made not to revoke the cancellation. Accordingly, if the Tribunal decides not to revoke the mandatory cancellation of the Applicant’s Visa, he is ‘liable for removal’ from Australia for the purpose of paragraphs 3.2.1 of COPP 14.2 and, it follows, no longer eligible to apply for ‘home leave’ on 15 November 2025. In the Tribunal’s view, this is a direct and immediate ‘legal consequence’ of the Tribunal’s decision, for the purpose of paragraph 9.1 of Direction 110. However, overall, the Tribunal finds that this carries limited weight in favour of revocation, and it is not outweighed by the first ‘primary consideration’ (Protection of the Australian community), in paragraph 8.1 of Direction 110.
Another direct and immediate ‘legal consequence’ of a decision by the Tribunal not to revoke the mandatory cancellation of his Visa is his removal from Australia and separation from his wife, two children, his wife’s family and their church friends and community. The Tribunal finds that this carries limited weight in favour of revocation and it is not outweighed by the first ‘primary consideration’ (Protection of the Australian community), in paragraph 8.1 of Direction 110. As stated above, there is the possibility for the Applicant’s wife and two children to relocate from Australia to Singapore if the Applicant is removed to Singapore.
For the above reasons, the Tribunal considers that, overall, this first ‘other consideration’ (Legal consequences of the decision), in paragraph 9.1 of Direction 110, carries limited weight in favour of revocation.
SECOND OTHER CONSIDERATION: Extent of impediments if removed (paragraph 9.2 of Direction 110)
Paragraph 9.2 of Direction 110 provides that the Tribunal must consider:
…the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to the Applicant in their country.
(emphasis added)
(a) Applicant’s age and health
The Applicant is presently 39 years old.
There is no evidence before the Tribunal to suggest that the Applicant suffers from any physical health conditions. He currently works as a groundsman at the prison: Exhibit 1 at p 373 and the Applicant’s oral evidence at hearing. The Applicant’s Individual Management Plan, dated 26 November 2024, states:
Mr Chow has been employed in the Grounds work party since 06/05/2024 and is considered an above average worker. His Supervisor has indicated he has an excellent work ethic, is reliable and capable and works in a trusted position of Grounds Stores: Exhibit 2 at p 1.
In relation to the Applicant’s mental health, the Applicant states (Exhibit 1 at p 928):
4.I suffered a mental health episode during the army because the stress got too much for me. …
…
6.There were two episodes in total. I was given a leave of absence for about two days on the first occasion and then another 10 days on the second occasion…
7.My psychologist [Mr Ng] is aware of this. It happened about 19 years ago but was pretty isolated. It has never happened again. I don’t believe that I currently suffer from any mental health issues.
8.I did have one instance of attempted suicide in the second half of 2023, whilst I was on bail. It was the lowest I have ever felt in my life. I talked to [Mr Robinson] about this and also mentioned it to [Mr Ng] in our earlier sessions, but more recently this has not been an issue.
9.In my most recent session with [Mr Ng], he asked me if I had any feelings of wanting to hurt myself and I said no.
10.I told him I had been feeling quite good over the last six to nine months, although the current Tribunal process has been very stressful…
(emphasis added).
Accordingly, on the Applicant’s own evidence, despite some past mental health issues, he is currently in good mental health. That is not to say, that the Applicant’s past mental health issues may not resurface or be exacerbated if he relocates to Singapore. However, as stated below, as a Singapore citizen there should be no barriers to him accessing Singapore health system for treatment.
(b) Language or cultural barriers
There are no language or cultural barriers for the Applicant if he returns to Singapore. The Applicant was born and lived in Singapore until he arrived in Australia, aged 20.
(c) Social, medical and/or economic support in Singapore
As a citizen of Singapore, the Applicant has the same access to social, medical and economic support as other citizens.
Social
The Applicant is no stranger to Singapore. Given that the Applicant lived in Singapore until the age of 20 years old, and has returned to Singapore on multiple occasions since settling in Australia, including as recently as January 2023 (Exhibit 1 at p 221), it is reasonable to infer he has ongoing ties and social connections remaining in Singapore.
The Applicant has family in Singapore, comprising his parents and sister. The Applicant states that he did not get much emotional support from his parents (who were always working), or from his sister, growing up in Singapore: Exhibit 1 at p 115. The Applicant states that his relationship with his parents has ‘always been tense’: Exhibit 1 at p 372. The Applicant describes his ‘remaining connection with his parents ‘is solely the obligation to repay’ what he owes them and that if he returned to Singapore he would have ‘no support network to restart’ his life and that he does not believe ‘reconciliation’ with his parents is likely: Exhibit 1 at p 374. The Applicant says that he does not get along well with his sister, (Exhibit 1 at p 115) and that his contact with her is limited and that she shares their parents’ views: Exhibit 1 at p 374. She believes that, because of her parents’ ‘loan’ to the Applicant, her ‘inheritance’ has gone.
For the following reasons, the Tribunal is objectively unable to categorically accept the Applicant’s evidence that he will not receive support, from his parents, if he returns to Singapore.
First, the Applicant’s parents have gone to some considerable effort to loan him a substantial sum of money (i.e. $2,200,000) to repay the money he stole from Taylor Marine, notwithstanding the significant impacts it has had on them. That is, the Applicant’s parents had to come out of retirement and return to work because of the loan of their lifetime savings to the Applicant: Exhibit 1 at p 913. Furthermore, in their oral evidence, the Applicant and Ms S Siew both said that the repayment of what the Applicant owes his parents (currently approximately $2,000,000: Exhibit 1 at p 372) is a ‘flexible arrangement’ whereby the Applicant can begin repaying his parents once he is out of prison and earning an income (which may not happen for many years). In other words, in such circumstances, it must be said that the Applicant’s parents remain, at the very least, financially supportive of the Applicant.
Second, on 2 March 2024, the Applicant’s father wrote to the Perth District Court in support of the Applicant (Father’s Letter): Exhibit 1 at p 912. The Father’s Letter states:
Mark remains in our heart as an honest, trustworthy and caring son…
….
Our entire family is dedicated to supporting Mark. Our life-time savings has depleted in helping Mark to make recent restitution of money. Hence, Mark’s mother and I have resumed part-time works recently even though we had already retired a few years ago. The little income from part-time work helps takes (sic.) care of our daily expenses including treatment for mum’s Diabetes and my Hypertension. This helps with the remaining savings left with us.
If Mark is jailed, Mum at the age of 69 and I at 68 will have no choice but to return to full-time works (sic) as a nurse and engineer…
Third, the Applicant’s mother and father make ‘video calls’ to the Applicant’s wife occasionally to see and speak to their grandchildren: Exhibit 1 at p 383. Further, the Applicant’s mother helps his wife and children by coming to Australia and staying at their house for one or two weeks: Exhibit 1 at p 381. These actions, by the Applicant’s parents, demonstrate an ‘indirect’ support for him, but it is ‘support’ nonetheless.
The Applicant has close enduring friendships with Christian Singaporean citizens (Exhibit 1 at p 371), namely, Mr K Lwi (the Applicant’s best man at his wedding to Ms S Siew), Mr C Wong (the Applicant’s groomsman at his wedding) and Mr E Wong. Mr K Lwi and Mr C Wong visited the Applicant in prison in March 2025 and Mr E Wong visited him in prison in May 2025: Exhibit 1 at p 371. In his oral evidence at the hearing, the Applicant stated that these three Singapore based Christian friends have ‘stood by’ him since being told about his convictions. In the Tribunal’s view, there is nothing to suggest that the Applicant will not have their continuing friendship and emotional support if he returns to Singapore.
The Applicant converted to Christianity from Buddhism, in Singapore, around the age of 14, because many of his friends were Christian, and began attending the Bartley Christian Church in Singapore. The Applicant stated that as a teenager he was ‘more reliant on friends and the church community for emotional support’ than his family: Exhibit 1 at p 115. Indeed, it was at the Bartley Christian Church that he met Mr K Lwi, Mr C Wong, and Mr E Wong. In the Tribunal’s view, there is nothing to prevent the Applicant, if he returns to Singapore, from establishing a relationship with a church, and a church community, in the same way he did at the age of 14 (as a minor) and forming close connections because of interacting with that church.
In his oral evidence at hearing, the Applicant told the Tribunal that he has several aunts, uncles and cousins living in Singapore, although he is not close to them. Most of his aunts and uncles in Singapore are old (in their 70s and 80s) and he has limited contact with them since moving to Australia. He said he has not even met many of his cousins in Singapore and the ones he has met, he has had limited contact with since arriving in Australia. The Applicant thinks he will be rejected by his extended family if he returns to Singapore. Notwithstanding this, in the Tribunals’ view, it is a matter of conjecture that the Applicant will not have, or be able to establish, relationships with his extended family in Singapore if he returns there.
Medical
The country information on Singapore suggests that Singapore has an excellent health system: Exhibit 1 at p 450. There is nothing to suggest that the Applicant, as a Singapore citizen, will be unable to access Singapore’s health system to enable him to access treatment (for example, for any mental health issues should they arise in the future) in much the same way that he has in Australia.
Economic
The Applicant’s evidence is that, upon his release from prison, he does not intend to perform ‘office or accounting work’ (anything to do with ‘finances’) and that it would be ‘better’ for him to start ‘afresh in a different field’, such as bricklaying, plumbing or rail construction: Exhibit 1 at p 373 and oral evidence at hearing.
In the Tribunal’s view, it is difficult to see what the material differences would be in his employment situation and prospects in Australia and in Singapore, upon his release from prison. The Tribunal is not required to undertake a comparative exercise in this regard, but that does not mean that a comparative exercise cannot occur in terms of comparing his circumstances in both countries. On his own evidence, the Applicant will be seeking employment in a field he has not worked in before. There is no reason that he would be unable to pursue the same type of work in Singapore that he could in Australia. The Applicant will be relying on the same tertiary qualifications to obtain employment in Singapore as he would in Australia. The Applicant points to his criminal history as a barrier to obtaining employment in Singapore. However, he faces the same difficulties in Australia: Exhibit 1 at p 373.
In any event, it is a matter of speculation that his criminal offending will immediately be apparent to any future Singaporean employer (for example, because it will be a matter of public record), making it impossible for him to obtain employment in Singapore. There is no objective evidence to support this. The Applicant relies on the opinions of laypersons (friends) who are dual Singaporean Australian citizens to support the submission that shame and ostracism is faced by Singaporean nationals, like him, who have criminal history. The idea that the Applicant will be completely and utterly shunned by Singaporean employers (making it impossible to secure employment), if he returns to Singapore is simply not borne out on the evidence. Particularly in circumstances where, on the Applicant’s own evidence, he has received ongoing encouragement and support of a practical and emotional nature from Singaporean nationals, some of whom reside in Australia and others of whom reside in Singapore, despite them knowing of his criminal offending.
Conclusion: Extent of impediments if removed (paragraph 9.2 of Direction 110)
As stated above, the second ‘other consideration’ is directed at whether a person can establish themselves and maintain ‘basic living standards’ if removed from Australia to their home country.
For the above reasons, the Tribunal considers that the Applicant would be able to establish himself and maintain ‘basic living standards’ if removed from Australia to Singapore and, therefore, the second ‘other consideration’ (Extent of impediments if removed), in paragraph 9.2 of Direction 110, carries very limited weight in favour of revocation.
THIRD OTHER CONSIDERATION: Impact on Australian business interests (paragraph 9.3 of Direction 110)
Paragraph 9.3(1) of Direction 110 provides that the Tribunal must consider any impact on Australian business interests if the non-citizen is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501 or s 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence that any Australian business interests would be impacted by this decision. Consequently, the Tribunal considers that the third ‘other consideration’ (Impact on Australian business interests), in paragraph 9.3 of Direction 110, carries neutral weight in relation to revocation.
CONCLUSION - PRIMARY AND OTHER CONSIDERATIONS
For the above reasons, in relation to the five ‘primary considerations’ (in section 8 of Part 2 to Direction 110), the Tribunal concludes:
(i)Protection of the Australian community (paragraph 8.1 of Direction 110) – weighs very heavily against revocation;
(ii)Family violence committed by the non-citizen (paragraph 8.2 of Direction 110) – carries neutral weight in relation to revocation;
(iii)The strength, nature and duration of ties to Australia (paragraph 8.3 of Direction 110) – weighs heavily in favour of revocation;
(iv)Best interests of minor children in Australia affected by the decision (paragraph 8.4 of Direction 110) – weighs in favour of revocation; and
(v)expectations of the Australian community (paragraph 8.5 of Direction 110) – weighs heavily against revocation.

For the above reasons, in relation to the three ‘other considerations’ (in section 9 of Part 2 to Direction 110), the Tribunal concludes:
(i)Legal consequences of the decision (paragraph 9.1 of Direction 110) – carries limited weight in favour of revocation;
(ii)Extent of impediments if removed (paragraph 9.2 of Direction 110) – carries very limited weight in favour of revocation; and
(iii)Impact on Australian business interests (paragraph 9.3 of Direction 110) – carries neutral weight in relation to revocation.
Informed by the “Principles” in paragraph 5.2 of Direction 110, and having weighed the considerations in favour of revocation and the considerations against revocation, the Tribunal concludes that, on balance, in this case, the first ‘primary consideration’ (Protection of the Australian community), in paragraph 8.1 of Direction 110, and the fifth ‘primary consideration’ (Expectations of the Australian community), in paragraph 8.5 of Direction 110, carry greater weight than the ‘primary considerations’ which weigh in favour of revocation, namely the third ‘primary consideration’ (Strength, nature and duration of ties to Australia), in paragraph 8.3 of Direction 110, and the fourth ‘primary consideration’ (Best interests of minor children in Australia affected by the decision) and the first ‘other consideration’ (Legal consequences of the decision), in paragraph 9.1 of Direction 110, which carries limited weight in favour of revocation.
In reaching this conclusion, the Tribunal notes that, as stated above (at [26]), paragraph 7(2) of Direction 110 states that the first ‘primary consideration’ (Protection of the Australian community), in paragraph 8.1 of Direction 110, is generally given greater weight than the other four ‘primary considerations’ and that, otherwise, the ‘primary considerations’ (in section 8 of Part 2 of Direction 110) should generally be given greater weight than the three ‘other considerations’ (in section 9 of Part 2 of Direction 110).
For the above reasons, the Tribunal is not satisfied that there is ‘another reason’ why the mandatory cancellation of the Applicant’s Visa (i.e. the Cancellation Decision) should be revoked.
DECISION
For the above reasons, the Tribunal affirms the decision under review.

I certify that the preceding two hundred and fifty-two (252) paragraphs are a true copy of the reasons for the decision herein of Senior Member Chelsea Lyford

.......................[SGD]............................................
Associate
Dated: 17 July 2025

Dates of hearing: 19, 20, 23 and 24 June 2025

Counsel for the Applicant: Mr Matthew Crowley

Solicitors for the Applicant: Munro Doig Lawyers

Counsel for the Respondent: Ms Caitlin White

Solicitors for the Respondent: Sparke Helmore Lawyers

Date Received	Amount	Total Amount Repaid	Total Amount Remaining
-	3,997,568.13
25/05/2023	735,000.00	735,000.00	3,262,568.13
02/06/2023	100,000.00	835,000.00	3,162,578.13
14/06/2023	205,341.75	1,040,341.75	2,957,226.38
14/06/2023	537,000.00	1,577,341.75	2,420,226.38
02/08/2023	470,000.00	2,047,341.75	1,950,226.38
08/08/2023	539,320.74	2,586,662.49	1,410,905.64
26/09/2023	288,242.83	2,874,905.32	1,122,662.81
18/12/2023	1,122,662.81	3,997,568.13	-

Dates of hearing:	19, 20, 23 and 24 June 2025
Counsel for the Applicant:	Mr Matthew Crowley
Solicitors for the Applicant:	Munro Doig Lawyers
Counsel for the Respondent:	Ms Caitlin White
Solicitors for the Respondent:	Sparke Helmore Lawyers