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

[2023] AATA 2335

CMTK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2335 (4 August 2023)

Division:GENERAL DIVISION

File Number(s):      2023/3540

Re:CMTK

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:4 August 2023

Place:Sydney

The decision under review is set aside and in substitution the mandatory cancellation of the applicant’s visa is revoked.  

................................[SGD]........................................

Senior Member A Poljak

CATCHWORDS

MIGRATION – mandatory cancellation of Class BB Subclass 155 Five Year Return (Residence) visa under section 501(3A) – where applicant does not pass the character test – applicant has substantial criminal record – whether the discretion to revoke the visa cancellation under section 501CA(4) should be exercised – consideration of Ministerial Direction No. 99 - decision under review is set aside and substituted

LEGISLATION

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Migration Act 1958 (Cth)

SECONDARY MATERIALS

Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member A Poljak

4 August 2023

1. CMTK, the applicant, is a citizen of China. The applicant first arrived in Australia on 13 March 2009 on a Vocational Education and Training Sector visa (subclass 572). Since his arrival, the applicant has left and returned to Australia four times in 2011, 2015 and 2017.

2. Between 20 November 2018 and 20 January 2020, the applicant attempted to export specimens to either Taiwan or Hong Kong by concealing the native specimens in parcels and lodging the parcels at post offices around Sydney. The parcels were intercepted by the Australian Border Force. The applicant entered a plea of guilty in respect of offences under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and was convicted in the District Court of NSW on 17 February 2021 (the offending conduct). The applicant received an aggregate sentence of 5 years’ imprisonment, with a non-parole period of 2 years and 10 months. On appeal to the NSW Court of Criminal Appeal, on 25 November 2022, the applicant was convicted of 14 counts of export regulated native specimen w/o permit/exemption and 5 counts of possess non-native CITES/regulated specimen. He was sentenced to a term of imprisonment for 3 years and 10 months, with a non-parole period of 2 years, commencing on 17 February 2021.

3. On 19 March 2021, the applicant's visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) (visa cancellation). On 19 May 2023, a delegate of the Minister decided, pursuant to subsection 501CA(4) of the Act, not to revoke the decision to cancel the applicant's Class BB Subclass 155 Five Year Return (Residence) visa (the visa). This is the decision under review in these proceedings (decision under review).

   Issues

4. The applicant does not pass the character test by virtue of his sentence of imprisonment for the offending conduct: subsections 501(6)(a) and 501(7)(c) of the Act. As such, the sole issue is for determination is whether there is another reason why the visa cancellation should be revoked, under subsection 501CA(4)(b)(ii) of the Act.

   Relevant Legislative Provisions

5. Subsection 501(3A) of the Act provides that 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 and is serving a full-time custodial sentence of imprisonment.

6. Subsection 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a “substantial criminal record” as defined by subsection 501(7). Subsection 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

7. Subsection 501CA(4) of the Act provides that the Minister may revoke the original decision if the Minister is satisfied that the person passes the character test as defined by section 501; or that there is another reason why the original decision should be revoked. This is a discretionary power.

8. A decision under subsection 501CA(4) of the Act involves an assessment and evaluation of the factors for and against revoking the mandatory cancellation decision. A determination under subsection 501CA(4) must be carried out in accordance with any written directions given by the Minister under the Act: subsection 499(2A).

9. In considering whether to exercise the discretion in subsection 501CA(4) of the Act, the Tribunal is required by subsection 499(2A) of the Act to have regard to the Minister’s Direction relevant to section 501CA, Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99).

10. The preamble to Direction 99 provides a framework for the guidance of decision-makers. Paragraph 5.1 of Direction 99 comprises a statement of objectives. Paragraph 5.2 sets out 'principles' that should inform the decision-maker’s exercise of discretion:

    (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2) 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.

    (3) 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 measureable risk of causing physical harm to the Australian community.

    (4) 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.

    (5) With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    (6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the 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. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

11. Paragraph 6 guides decision-makers as to the making of the visa cancellation, refusal or revocation decision. Relevantly in relation to considering revocation of a mandatory cancellation, it provides:

    Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

12. Paragraph 7 of Direction 99 states that decision-makers must take into account the primary and other considerations relevant to the individual case. Generally, primary considerations should generally be given greater weight than the other considerations: paragraph 7(2).

13. Paragraph 8 of Direction 99 identifies the five 'Primary considerations', which the Tribunal must consider in determining a revocation request. They are (paragraph 8(1)-8(5)):

    (a)protection of the Australian community from criminal or other serious conduct;

    (b)whether the conduct engaged in constituted family violence;

    (c)the strength, nature and duration of ties to Australia;

    (d)the best interests of minor children in Australia; and

    (e)expectations of the Australian community.

14. Paragraph 9 identifies other considerations which must be taken into account. Those other considerations listed are non-exhaustive, and are as follows (paragraph 9(1)):

    (a)legal consequences of the decision;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)impact on Australian business interests.

    Protection of the Australian community from criminal or other serious conduct

15. The Tribunal must have regard as a primary consideration to the protection of the Australian community from criminal or other serious conduct. In this respect, paragraph 8.1(1) of Direction 99 states as follows:

    When considering protection of the Australian community, decision-makers should keep in mind that 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.

16. Paragraph 8.1(2) of Direction 99 provides that decision-makers should also give consideration to:

    a) the nature and seriousness of the non-citizen’s conduct to date; and

    b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

    Nature and seriousness of the applicant's conduct

17. The applicant's conduct, specifically that related to the applicant’s offending conduct, is viewed very seriously. The circumstances of the offence are contained in the remarks on sentence in the District Court of NSW and on appeal to the NSW Court of Criminal Appeal.

18. In summary, the offending conduct involved the applicant attempting to export regulated native specimens to either Taiwan or Hong Kong. He concealed the native specimens in parcels and lodging the parcels at a number of different post offices around Sydney in the period 20 November 2018 until 20 January 2020. The applicant personally lodged 7 parcels and the co‑offender (on behalf of the applicant) lodged another 10 separate parcels at various post offices located around Sydney.

19. The species that the applicant attempted to export included 4 live carpet pythons, 9 live shingleback lizards, 4 live saw-shell turtles, 1 deceased saw-shell turtle, a live red bellied black snake, 3 live eastern long-necked turtles, a live eastern bearded dragon, 8 common blue tongue skinks, 4 live blotched blue tongue skinks, 8 live eastern water dragons, 2 live diamond pythons, 1 deceased common blue tongue skink, 35 turtles (various species), 12 ball pythons, 25 tortoises (various species), 19 South American horned frogs, 12 snakes (various species), 1 milk snake and 1 twisted-necked turtle. The intercepted parcels contained false sender details and false information about the contents. Further, a total of 105 regulated native specimens and exotic specimens were found during the execution of the search warrant at the applicant’s premises. They consisted of a large number of different varieties of turtles, tortoises and snakes. The enterprise was found to be planned and sophisticated, spanning a period of some 14 months; motivated by reasons of financial gain.

20. During the investigations into the offending conduct, the applicant admitted to the offending and admitted to packing some of the parcels, posting them and intending to send them to Hong Kong and Taiwan. He admitted to providing false particulars and receiving offers for reptiles through Facebook. He also admitted that he was in possession of Australian native and exotic specimens and those specimens found at the premises were his collection.

21. In sentencing remarks of the District Court of NSW it was found, ‘[t]here was undue cruelty to specimens and that some suffered harm, and all suffered potential harm. On two occasions the specimens were located in socks or stockings and taped to polystyrene, on two other occasions deceased specimens were located in parcels’. The applicant and his co-accused were ‘entirely indifferent to the risk to the safety and welfare of the specimens being posted in such a way’.

22. The NSW Court of Appeal also noted:

    ‘[O]n two occasions, specimens were located in socks or stockings and taped to polystyrene. On two other occasions, deceased specimens were located in the parcels and there had been a failure to provide proper and sufficient water to the animals. Further, the animals did not have appropriate ventilation to enable normal respiration and the animals’ forelimbs were taped to their bodies in 4 of the parcels. Placing anything around the chest like tape would prevent an animal from being able to breathe’.

23. On appeal, Cavanagh J concluded that the aggregate sentence imposed upon the applicant was unreasonable and plainly unjust for a number of reasons, some of which were as follows:

    ‘The applicant’s offending did not involve any importation or attempt to import offences. Whilst any attempt to export Australia’s native specimens may potentially have an effect on Australia’s fish, fauna and biodiversity, the effects are not of the type referred to as potentially catastrophic arising from the importation offences in Kennedy. The offending of the applicant remains serious offending but it does not fall in the category identified in Kennedy as some of the most serious offending of its kind. It falls below the level of offending in Kennedy.
    …
    …the concerns raised by the Court in Kennedy about the danger to the Australian ecosystem do not arise.
    …
    The offending in this matter did not involve the same level of sophistication or
    planning as in Kennedy. There was no international travel or scoping work. The
    applicant appears to have been responding to Facebook enquiries.

    Whilst the number of offences is high, they are all of the same type and all
    involve a small number of specimens. Except for the first offence which occurred
    a year earlier, all of the offending took place over a three-month period’.

24. In re-sentencing, Cavanagh J was of the view that:

    ‘[T]he offending was serious in that it involved an attempt to export a number of types of Australia’s native specimens over a period of 14 months. Further, I adopt the findings of the sentencing judge that in some respects the offending involved cruelty to the specimens. Having said that, other than in respect of Sequence 43, I consider that each of the offences fall below the mid-range of objective seriousness…I also adopt the finding of the sentencing judge that the attempt to export the Red Bellied Black Snake (Sequence 43) posed additional risks to the safety of persons because of its venom. That offending was more serious, albeit the actual offence only involved one specimen’. [Emphasis added]

25. The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him, firstly by the District Court of NSW and then on re-sentencing following a successful appeal to the Court of Criminal Appeal. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.

    Risk of Reoffending

26. For the following reasons, I am of the view that the likelihood of the applicant engaging in any further criminal conduct is low.  

27. On sentencing, the District Court of NSW and the Criminal Court of Appeal found that the applicant’s prospects of rehabilitation were good, and he was unlikely to reoffend.

28. In a report dated 26 October 2020, Mr Borkowski, principle forensic psychologist, opined that the applicant appeared to be a low risk of reoffending. He explained that the applicant presented with ‘a number of protective factors which lend to positive rehabilitation prospects’ but noted that to ensure his risk of re-offending did not escalate, he required some ‘clinical attention’, namely, cognitive behavioural therapy and psychosocial interaction. Mr Borkowski sets out in his report a number of custody-based treatment recommendations as well as community-based treatment options.

29. In the Pre-Release Report dated 9 December 2022, the applicant was classified at a low risk of reoffending. I note that the applicant is currently on parole and under supervision until 16 December 2024. The report included a supervision plan that in the event the applicant is not deported to China upon release, he will be required to address issues of:

    • Financial management – referral to appropriate service for financial counselling and budgeting advice.

    • Emotional regulation - referral to local General Practitioner for Mental Health Care Plan and access to psychological intervention for development of appropriate coping strategies.

    • Practice Guide to Interventions (PGIs) to focus on Communication, Self-Awareness and Managing stress and anxiety.

30. I do note that while incarcerated, the applicant had two recorded incidents. On 12 March 2021, shortly after the applicant was incarcerated, his cell mate hung underwear in their cell, and they were both reprimanded for failure to keep the cell clean and failure to keep property tidy. On 16 March 2021, the applicant was reported for disobeying a direction, failing to comply with correction centre routine and failing to attend muster. At hearing, the applicant explained that he was new to the jail and was on the phone at the time and failed to hear the roundup.  

31. Despite these incidents, the applicant appears to have been a model detainee while detained at Villawood Immigration Detention Centre. On 28 April 2023, Dom Karauria, General Manager of Junee Correctional Centre, wrote a letter of support for the applicant. He wrote that the applicant was classified as a C2 (minimum security) inmate and was employed in the kitchen as a level 4 Hygiene Worker. He stated:

    ‘[The applicant] has excellent attendance at work, undertakes his assigned duties, is a quiet and generally keeps to himself. [The applicant] is polite towards staff, mixes well with other inmates and has not been a management issue whilst employed in the kitchen area’.

32. In addition to the evidence supporting a finding that the applicant is a low risk of reoffending, I find the applicant’s circumstances a most compelling deterrent. He has lost years of his life being incarcerated and, most significantly, he lost all contact with his two young daughters. He also now faces the prospect of being removed to China and losing his de facto partner and young son. I am satisfied that the applicant understands the gravity of his previous actions on his life and the possible implications should he reoffend. At hearing, he expressed sincere remorse and took responsibility for his involvement in the offending conduct.

33. Despite the low risk of reoffending, the nature of the applicant’s offending conduct should he engage in further criminal conduct, could cause serious injury to members of the Australian community and harm Australia’s biodiversity.

1. As a whole, this primary consideration significantly weighs against revocation.

   Family Violence

2. This consideration is neutral in considering whether to revoke the cancellation of the applicant’s visa.

   Strength, nature and duration of ties to Australia

3. Paragraph 8.3(4) of Direction 99 requires that, in assessing this consideration, decision-makers must have regard to:

   a) the length of tie the non-citizen has resided in the Australian community, noting that:

   i. considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and

   ii. more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

   iii. less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.

4. The applicant arrived in Australia at the age of 22. He spent his formative years in China. Since arriving in Australia, the applicant has sought to establish a life for himself. He did this through employment and by starting a family. As already detailed in these reasons, he has three young children in Australia who were born in Australia. The applicant’s only other family in Australia are his aunt and uncle, both Australian citizens, with whom he claims to be in regular weekly contact.

5. The applicant has contributed positively to the Australian community through his work as a waiter and as a factory hand.

6. I do accept that the applicant’s strength, nature, and duration of ties to Australia favours revocation of the mandatory cancellation decision.

   The best interests of minor children in Australia affected by the decision

7. Paragraph 8.4(1) of Direction 99 requires the Tribunal to decide whether revocation is, or is not, in the best interests of minor children in Australia affected by the decision.

8. The applicant has two young daughters with his ex-wife who are aged 9 and 7 years old. They reside in Australia and are Australian citizens. The applicant also has a 3-year-old son with his de facto partner.

9. Prior to incarceration, the applicant was very involved in his daughter’s lives and played a significant parental role. He considered their relationship to be very meaningful and said he had been with them since birth. Current parental orders (parental orders) provide that the applicant has sole parental responsibility for one of his daughters and the other is to spend time with the applicant each Thursday and Friday after school and on Saturday and Sunday. At hearing, the applicant stated that prior to his incarceration, both daughters were living with him. The respondent accepts that before his imprisonment the applicant had a parental role in the lives of his daughters.

10. Following the applicant’s arrest and incarceration, the applicant said his ex-wife cut off all contact between himself and his daughters. He explained that as a result, he has not had contact with them in 2 years and 3 months. At hearing, the applicant explained that should he be released from immigration detention, he intends to resume a parental role in his daughter’s lives consistent with the parental orders. He stated that he had already sought legal advice about having contact with his daughters as soon as possible.

11. The respondent accepts that it is in the best interests of the applicant’s daughters to resume a relationship with him, and that there are better prospects of this occurring if the applicant is in Australia. However, the respondent contends that this is somewhat mitigated by the lack of any current existing relationship.

12. While I do note that the applicant’s ex-wife has been filling a parental role and the applicant does not currently have an existing relationship with his daughters, I accept that the applicant played a significant primary parental role in his daughter’s lives before incarceration and he intends to continue that relationship as soon as possible. The loss of contact he had with his daughters during his incarceration was not of his choosing.   

13. The applicant’s son is living in Australia with the applicant’s wife and is an Australian citizen.  The applicant was incarcerated when he was approximately 1 years old. The applicant has had limited in-person contact with his son since this time but has had ongoing telephone contact with him. The respondent accepts that if the applicant is released from detention, he will likely resume living with his wife and son and will resume a parental role.

14. This primary consideration significantly weighs in favour of revocation.

    The expectations of the Australian community

15. Paragraph 8.5 provides:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

    …

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

16. The applicant’s criminal offending plainly does not meet the expectations of the Australian community that as a non-citizen he will obey the laws of this country. I am satisfied that the Australian community would expect that the applicant should not hold a visa. This primary consideration weighs against revocation of the mandatory cancellation decision.

    Other Considerations

17. Other considerations are set out in Direction 99, at paragraph 9(1). The applicant has not made any claims in relation to the legal consequences of the decision, nor is there any evidence of any relevant impact on the victim or Australian business interests. As such, the consideration that is relevant in this case is the extent of impediments if removed.

    Extent of impediments if removed from Australia

18. Direction 99 provides, at paragraph 9.2, that:

    (1) Decision-makers 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 them in that country.

19. The applicant is an adult and is apparently in good health generally.

20. The applicant is a citizen of China and as such, the relevant country the applicant would be removed to is China. There are no evident language or cultural barriers for the applicant. The applicant’s mother resides in China. The applicant explained that he could possibly reside with his mother for a short period of time on his return to China, but any financial assistance would be very limited as she is retired. The applicant is a relatively young man with transferable skills from his employment as a factory worker and waiter. However, I do accept that he would suffer a period of adjustment both financially and practically due to the lack of support available to him in China.

21. It is accepted that the applicant would face emotional hardship upon being returned to China due to his separation from his children and the breakup of his current family.

22. Considering all of these factors, I consider that this factor weighs in favour of revocation.

    Decision

23. The primary considerations of the protection of the Australian community and the expectations of the Australian community weigh in favour of not revoking the visa cancellation decision. I am not persuaded, however, that these considerations outweigh the best interests of the applicant’s minor children in Australia. Additionally, the applicant’s strength, nature, and duration of ties to Australia and the extent of impediments if removed also weigh in favour of revocation.

24. The decision under review is set aside and in substitution the mandatory cancelation of the applicant’s visa is revoked.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.............................[SGD]...........................................

Associate

Dated: 4 August 2023

Date of hearing:	27 July 2023
Solicitor for the Applicant:	Ms M Mamarot, Southwest Migration and Legal Services
Solicitor for the Respondent:	Ms C Lewis, Australian Government Solicitor