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

CXWW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 33 (19 January 2024)
Division:GENERAL DIVISION
File Number: 2022/4332
Re:CXWW
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:A G Melick AO SC, Deputy President
Date:19 January 2024
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides that the cancellation decision of 13 August 2020 be revoked.
......................[sgd]..................................................
A G Melick AO SC, Deputy President
CATCHWORDS
MIGRATION - mandatory cancellation of applicant's Partner (Subclass 801) (Residence) visa - applicant has substantial criminal record - whether there is 'another reason' to revoke mandatory cancellation decision - unlawful wounding - unlawful importation of looseleaf tobacco - the countervailing considerations of best interests of minor children, ties to Australia, legal consequences and extent of impediments if removed outweigh primary considerations of protection and expectations of the Australian community - decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
UK Home Office, Country Information and Guidance China: Fear of punishment on return to China for crimes committed in other countries (September 2015)
REASONS FOR DECISION
A G Melick AO SC, Deputy President
19 January 2024

This is an application for review of a decision to not revoke the mandatory cancellation of the Applicant’s Partner (Subclass 801) (Residence) visa (the visa) under s 501(3A) of the Migration Act 1958 (Cth) (the Act).
INTRODUCTION
On 13 August 2020 the Applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on the basis that he did not pass the character test and was serving a full-time custodial sentence.[1]
[1] Exhibit 1, 53.
On 9 September 2020 the Applicant made representations in support of revocation of the cancellation decision.
On 26 May 2022 a delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision). On 30 May 2022 the Applicant applied to the Tribunal for review of the non-revocation decision. On 15 May 2023 the Tribunal’s decision to affirm the decision under review was quashed by the Federal Court. The matter was remitted from the Federal Court to the Tribunal by consent and was heard on 14 and 15 November 2023.
I was grateful for the assistance provided by the representative for the Respondent who conducted her case in a very professional and fair manner.
BACKGROUND
The Applicant was born in October 1989 in The People’s Republic of China (‘China’). He arrived in Australia on 22 May 2008, aged 18, on a student visa for the purpose of studying English. On 15 March 2010 the Applicant’s student visa ceased but he remained unlawfully in Australia until 22 April 2013 when he was granted a bridging visa. On 4 June 2014 the Applicant was granted the visa.
The Applicant has two daughters, aged 11 and 9, with his first wife. In May 2015, the Applicant, his then wife and children travelled to China. It was there that the Applicant and his first wife separated. She had no further involvement with the children and remained in China. The Applicant returned to Australia on 27 June 2015, leaving the children with his parents in China.
He married his second wife in February 2019 and in July 2019 the children returned to Australia to reside with them. The Applicant and his second wife divorced early last year.
On 16 October 2011 the Applicant was arrested for unlawful wounding with a circumstance of aggravation. On 1 October 2013 he was convicted and sentenced to eight months imprisonment wholly suspended for 12 months.
From about August to October 2018 the Applicant was part of a syndicate that arranged the unlawful importation of looseleaf tobacco into Australia with an intention to defraud the revenue. On 9 July 2020 he was convicted and sentenced to three years imprisonment, to be released after 18 months on entering a recognizance.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test is defined in s 501(6) of the Act. Section 501(6)(a) relevantly provides that a person does not pass the character test if the person has a ‘substantial criminal record’. For the purposes of s 501(6)(a), a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.[2]
[2] Migration Act 1958 (Cth) s 501(7)(c).
The discretion to revoke the mandatory cancellation of visas is conferred by s 501CA(4) of the Act. Relevantly, this provides that:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
If the cancellation decision is not revoked by a ministerial delegate, the Tribunal’s jurisdiction is enlivened.[3]
[3] Ibid s 500(1)(ba).
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act.
ISSUES BEFORE THE TRIBUNAL
There are two issues presently before the Tribunal:
(a)Whether the Applicant passes the character test; and if not
(b)Whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa.
Does the Applicant pass the character test?
I find that the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) for the mandatory cancellation of the visa to be revoked as he has been sentenced to a term of imprisonment of three years, and therefore has a ‘substantial criminal record’.
Is there another reason to revoke the mandatory cancellation of the Applicant’s Visa?
In making its decision, the Tribunal must comply with any directions made under s 499(2A) of the Act. In this case, Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99) has application. The Tribunal must comply with Direction 99.[4]
[4] Ibid s 499(2A).
The principles contained in paragraph 5.2 of Direction 99 provide a framework within which the Tribunal should approach its task of deciding whether to revoke the mandatory cancellation decision:
(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)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 measurable 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 8.5(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.
Paragraph 6 provides that informed by the principles in paragraph 5.2, the Tribunal must take into account the considerations identified in paragraphs 8 and 9 where relevant.
Paragraph 8 of Direction 99 sets out five primary considerations being:
(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;
(e)expectations of the Australian community.
Paragraph 9 of Direction 99 sets out a non-exhaustive list of other considerations, as follows:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims;
(d)impact on Australian business interests.
In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[5]
[5] Direction 99 at 7.
EVIDENCE
The Tribunal received submissions from the Applicant’s representative dated 14 August 2023, annexed to the submissions are statutory declarations from the Applicant and the Applicant’s first wife’s mother.
The Tribunal also has before it the statutory declaration provided by the Applicant in the remittal bundle, that statutory declaration is dated 8 June 2022.
I will set out the relevant parts below, followed by the oral evidence.
The Applicant
The Applicant met his first wife in June 2011, they were married on 19 December 2013 and had two children together.
The Applicant applied for a partner visa with his first wife as a sponsor. The Visa was granted on 4 June 2014.
In May 2015 the family returned to China. During the trip the Applicant’s wife said she had to return to her hometown. She separated from the Applicant and her daughters and returned to her family. The Applicant asked his mother if she could look after the children. She agreed and the Applicant returned to Australia in June 2015.
The Applicant’s children lived in China with his mother for four years. The Applicant found work as a gyprocker and his daughters returned to Australia in 2019.
The Applicant met his second wife in 1997 when they attended primary school together. In January 2018 they reunited and then married on 16 February 2019.
In the statutory declaration dated 14 August 2023, the Applicant describes his updated circumstances, he and his second wife divorced on 14 March 2023. She left his daughters and remarried.
The Applicant has full custody of his daughters but cannot look after them whilst in detention. They are residing with their grandparents temporarily.
The Applicant describes the grandparents’ situation noting that they have had to reduce their delivery business to take care of the children. The grandfather is suffering from depression and the grandmother now has to work in a factory from 2PM to 10PM. She is the main provider for the family.
The children struggle to communicate with their grandparents and the Applicant’s eldest daughter has had thoughts of self-harm. He describes her emotional state as unstable and says that she relies on him for comfort and encouragement.
The Applicant has learnt his lesson and the separation from his daughters is the largest punishment. When he was told his daughter tried to hurt herself it was the hardest thing for him to hear. He regrets his actions and does not want his daughters to be punished for mistakes he has made in the past.
The Applicant’s first wife’s mother
The Applicant’s first wife’s mother is a permanent resident of Australia. She arrived with her husband in 2006 on an employer sponsored Visa.
The Applicant’s daughters are currently in her care, because of this she and her husband have had to reduce their delivery business and she has had to take up work in a vegetable factory from 2PM to 10PM.
Her financial situation is difficult. She pays $3,200 per month for her mortgage and struggles with the increased cost of living.
She outlines that her granddaughters do not talk to her very often and mainly communicate with their father. They do this by calling and texting.
Her eldest granddaughter’s teacher called her and said that she had intentions to self-harm at school. After she was informed of this she took her granddaughter for counselling.
She cannot provide them with any help on their school work and cannot take them to extra-curricula activities.
She would like the Applicant to be able to care for his daughters and believes it would be in their best interest for this to occur.
ORAL EVIDENCE
The Applicant
The Applicant affirmed the correctness of his statutory declaration referred to above and gave the following oral evidence as set out below.
The Applicant’s most recent marriage ended in March 2023. His children are now living with their maternal grandparents and are being supported by them.
He talks to his children three times a week and he is concerned that his eldest daughter is quite confused about her sexuality. He has tried to talk to her about it and has asked her grandparents to give her some knowledge about sexuality issues.
He said he needs more chances to communicate with his children. He considers that his daughter would have significant issues if forced to return to China with him as the issues she is dealing with are not as well accepted in China as in Australia.
He noted that the children’s grandparents’ English was very poor and his children would speak to him and let him communicate to their grandparents.
He is concerned that the grandparents do not have time to take the children to extra-curricula activities and that when he has video chats with his children, they indicate that they envy others but understand that their grandparents do not have the income for such activities.
He said that he would have difficulty finding a job in China because of the high percentage of unemployment and he does not have any Chinese work experience. He would find it difficult to support his children on whatever income he could earn in China which would make it difficult for them to have a normal life. However, as a plasterer in Australia, he could earn at least $35 an hour, or about $1,200 per week. He has a friend working as a plasterer who said the Applicant should not have any difficulty finding a job.
During cross-examination he indicated that he had known his plasterer friend from about 2013 and had met some other friends from when he worked as a plasterer and a masseuse from about 2018. He was living in Perth from 2013 and Melbourne from 2018 and he said his friends would introduce him to some work. He lost contact from 2020 to 2022 when he went into the detention centre. When asked why his friend had not helped him find a job in 2018 he responded that at that time he did not tell him that he was without a job and did not ask for support because he was not in a good frame of mind due to the breakdown of his first marriage.
When asked who would look after the children when they finished school for the day, he said he would rent a property near the grandparents and the grandparents working hours would be the opposite of his own. He also said he could provide financial support to the grandparents.
He said that he wanted to look for professional help for his eldest daughter’s sexuality struggles. He was questioned as to why he left them in China for four years. He said he was too young, not mature enough and did not properly understand his parental responsibility. He has now learnt his lesson and is trying his best to learn from his mistakes. He cannot make the mistakes that he did in the past as the children have suffered the consequences of his mistakes and it is his duty as a father to look after them.
There would be difficulties if he took them to China because they do not speak the language well and his brother who lives in China does not speak English.
When his children were in China he spoke to them by video approximately three times a week and every six months he would visit them in China. He used to send money back to his parents in China. He still speaks to his mother and brother and they tell him that there is no work for him in China. His friends from school in China have cut off contact with him.
The Applicant’s first wife’s mother
The Applicant’s first wife’s mother still works in the delivery business and earns a bit over $800 a week, she also earns a bit over $1000 a week washing and cutting vegetables. Her work hours are 1:30PM to 11:30PM and she gets up early to look after the children. They have a home loan of $3,200 a month. She said they are not making enough money, it has been very difficult financially and they have had to depend upon their savings.
She does not think she can continue to look after them under the current circumstances for much longer and does not know what will happen to them. She thinks it will be quite difficult to take them back to China and her daughter now has her own family and could not help.
She talks to her granddaughters in Chinese and sometimes they respond in English but they very seldom talk to her because of the language difficulties.
The children cry a lot at home and talk to their father often.
When cross examined, she said she does not speak to the children’s mother often and that she is moody and emotional.
She prepares breakfast for them, and her husband watches them when they finish school. They are close to the children but are not sure what will happen when they grow up. Although they are prepared to have the Applicant live with them for a short time until he is settled, it would be difficult for him to live with them on a permanent basis. If the Applicant works he can continue to look after the children.
Although she thinks she could visit the children if they moved to China, she could not provide any financial support.
CONSIDERATION
Protection of the Australian community – 8.1 of Direction 99

In considering the protection of the Australian community, the Tribunal has regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering 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.
The totality of the Applicants offending, as recorded on the Police Check dated 9 September 2020[6] is as follows:
[6] G Docs, page 38.

Court

Date

Offence

Sentence

Melbourne County Court

9 July 2020

Cth – Importing tobacco products with intent to defraud the revenue

Convicted and sentenced pursuant to s 20(1)(B) of the Crimes Act 1914 to 3 years imprisonment to be released after serving 18 months on entering recognizance self $2000 to be of good behaviour or 18 months [Counts 1] SUSP IMP Order

Perth Magistrates Court

1 October 2013

Unlawful wounding with a circumstance of aggravation. Criminal Code (WA); 30(1) B

8 Months concurrent suspended 12 Months from 01-Oct-2013

Perth Magistrates Court

1 October 2013

Breach of Bail Undertaking; Bail Act (WA) 1982; 51 (1)

[Counts 1] FINE $500

In determining this consideration, I have regard 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.
The nature and seriousness of the Applicant’s conduct – 8.1.1 of Direction 99
The unlawful wounding charge relates to an incident outside a Perth night club on 16 October 2011. I accept the Applicant’s evidence that he took the hammer off a member of the opposing group and then struck one of their members several times around the head and back. The victim was taken to hospital, suffering lacerations to his head and bruising to his back.
In relation to the unlawful importation of tobacco, I refer to the sentencing remarks of Morrish J on 9 July 2020:
…you became a party to two importations of tobacco products, knowing and intending that the revenue would be defrauded.
The first consignment arrived via sea cargo into Melbourne on 22 September 2018. The consignment documents declared the items as ‘household scales, night lamp, shredder’. The consignment consisted of two large wooden crates on pallets and another pallet containing 16 cardboard boxes. X-rays of the consignment showed anomalies consistent with organic substances. Further inspection revealed two crates of manufactured loose leaf tobacco. The two wooden crates contained 743 kilograms of manufactured loose leaf tobacco. The duty payable on that amount of tobacco was $879,700.86, inclusive of GST. There has been no attempt to pay the duty.
The second consignment arrived via sea cargo into Melbourne on 2 October 2018. The consignment documents declared the contents to be ‘kitchen knife sharpener’. The consignment consisted of four pallets containing wooden crates. X-rays of the consignment showed anomalies consistent with organic substances. Further inspection revealed four crates of manufactured loose leaf tobacco. In total, 1697 kilograms of manufactured loose leaf tobacco was found. The duty payable on that amount of tobacco was $2,009,222.55, inclusive of GST. There has been no attempt to pay the duty.
Your role in the importations
Although you were not the mastermind, you played a pivotal role in facilitating the importations. Essentially, you searched the details of legitimate trading companies and then established false identities, making it appear as though you were connected with those companies. You then manipulated information to make it appear that those legitimate companies were in fact the importers of the goods, when in fact they had no knowledge of and had nothing to do with, the importations. Using false paperwork, you managed to gain control of the importations and direct them away from the legitimate addresses of the named consignees. You secured premises to which the consignments would be delivered…[7]
…
It must also be noted that there were two importations and that your involvement continued for a protracted period. The amount of tobacco imported was significant and the amount of duty evaded staggering…[8]
[7] Exhibit 1, 74-75 [4]-[7].
[8] Ibid 77 [19].
Her Honour also noted that $118,300 in cash was found in the Applicant’s premises when searched and that he expected to be paid $80,000 for his role in the importations.[9]
[9] Ibid 76 [11], 77 [18].
Sub-paragraph (a) of paragraph 8.1.1 of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
I find the behaviour related to the unlawful wounding charge to be very serious in that it was a violent offence that involved the use of a weapon to inflict injury.
Sub-paragraph (b) of paragraph 8.1.1 provides that without limiting the range of conduct that may be considered serious, the types of conduct that are considered by the Australian Government to be serious are:
(a) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(b) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(c) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(d) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
The Applicant was not the mastermind but played a pivotal role in facilitating the importations including misappropriating corporate and personal identities. I take into account the significant amount of tobacco that was unlawfully imported, the substantial increase in the amounts imported between shipments and the significant amount of duty evaded. The amount of duty sought to be evaded by the operation was approximately three million dollars. This is a large sum of money that would have a considerable impact on the Australian community and for that reason I consider the Applicants offending to be serious.
Sub-paragraph (c) of paragraph 8.1.1 of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.
The Applicant has been sentenced to two terms of imprisonment, albeit one wholly suspended, with the latter sentence of three years being indicative of the seriousness of the Applicant’s offending.
Sub-paragraph (d) of 8.1.1(1)(d) requires a decision maker to have regard to the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness.
Sub-paragraph (e) of the Direction requires an examination of the cumulative effect of the Applicant’s repeated offending.
Sub-paragraph (f) provides the decision maker must consider whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
The Applicant failed to disclose his previous conviction for unlawful wounding on his incoming passenger card upon returning to Australia on six occasions.[10] The passenger cards were in his native language so I do not accept his explanation that he did not realize that he should have been disclosing his previous conviction.
[10] Exhibit 1 139, 180-185.
Furthermore, the Applicant failed to approach the Department after his student visa ceased and he was living unlawfully in Australia for over three years until 22 April 2013. On that day, he was approached by Departmental officials, following which he was granted a Bridging Visa E.[11]
[11] Ibid 59.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
Sub-paragraph (h) considers where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
I do not consider factors (d), (e), (g) and (h) of paragraph 8.1.1(1) of the Direction to be applicable to the Applicants offending and circumstances.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant paragraphs contained in paragraph 8.1.1(1) of the Direction to the evidence surrounding the Applicant’s offending. I am satisfied that those relevant paragraphs give rise to finding that the totality of the Applicant’s unlawful conduct suggests a disregard for Australian law and can be considered to be serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – 8.1.2 of Direction 99
Sub-paragraph 8.1.2(1) provides that when considering the risk to the Australian community, a decision maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated is unacceptable.
Sub-paragraph 8.1.2(2) provides that when considering the risk to the Australian community, a decision maker must have regard to the below factors on a cumulative basis:
(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c) where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
Should the Applicant engage in further criminal conduct of a similar nature to the tobacco importation, I consider the offending would cause financial harm to the Australian community as the revenue from import duties is a significant source of government income which is necessary to fund government programs.
Regarding the Applicant’s unlawful wounding charge, the incident relates to an incident outside a Perth night club on 16 October 2011. There were some conflicts between the statement of facts provided by the police and the evidence given by the Applicant, which is set out above, but for the purpose of this matter, I accept the version given by the Applicant that he took the hammer off a member of the opposing group and then struck one of their members (he was not sure if it was the person from whom he took the hammer) several times around the head and back. The victim had to be taken to hospital for treatment, suffering lacerations to his head and bruising to his back.
Any offending similar to the Applicant’s unlawful wounding conviction would have the potential to cause physical and emotional harm to members of the Australian community especially if, yet again, a weapon was used in an assault. The use of a hammer or weapon would have the potential to cause serious injury or even death.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Factors contributing to past conduct
In relation to the offence of unlawful wounding, I accept the Applicant was affected by alcohol at the relevant time and note that he has not reoffended in relation to any crime involving violence. I also accept that the offending was contributed to by his choice of inappropriate friends but remain concerned that he resorted to the use of a hammer to strike a person from behind.
I accept that the Applicant has shown significant remorse since the unlawful wounding and ceased drinking alcohol after that incident.
Taking into account his subsequent behaviour in relation to crimes of violence, I consider the risk of him reoffending in a similar manner to be low.
The Applicant entered a plea of guilty at his committal hearing to the offences relating to the importation of tobacco and also provided investigators with information about his co-offenders. This was a clear indication of remorse on the part of the Applicant.
I accept that the Applicant would have experienced emotional hardship after being abandoned by his first wife and that he was under pressure to provide for his children and new wife. I consider this may have motivated him to undertake the illegal course of action in an attempt to make a substantial amount of money.
His imprisonment and detention have provided a salutary lesson to the Applicant and I consider that the risk of him reoffending in relation to such crimes to be low.
Conclusion: Primary Consideration 1
Although I have found that the risk of the Applicant reoffending is low, the result of any future offending will have, as set out above, serious consequences for the Australian community. I place significant weight upon this primary consideration against revoking the cancellation decision as I find that despite the low risk of reoffending, any possibility of the Applicant re-offending would be of serious detriment to the Australian community.
Primary Consideration 2: Family violence – 8.2 of Direction 99
I find no evidence that the Applicant has engaged in conduct that constitutes family violence. This factor weighs neutral.
Primary Consideration 3: Strength, nature and duration of ties to Australia – 8.3 of Direction 99
The Direction requires decision-makers to have regard to the strength, nature and duration of an Applicant’s links to the Australian community. There are four requisite considerations to be addressed in this paragraph 8.3 including the strength, duration and nature of any family or social links generally with Australian citizens, permanent residents and/or people who have a right to remain in Australia indefinitely.
The Direction also states that 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 begun offending soon after arriving in Australia.[12]
[12] Paragraph 8.3(4)(a)(iii) of the Direction.
I have found that the Applicant did not spend his formative years here. He arrived in Australia in 2008 and began offending approximately three years later in 2011. There was a notable gap of 8 years between this offence and the Applicant’s next offence. I find that the Applicant did not begin offending soon after arrival in Australia.
The Applicant was employed between 2014 and 2018 and from 2019 until his incarnation as either a masseuse or renovation worker.[13] I find that he has contributed to the Australian community by undertaking this work, however the work was for a limited time, therefore the amount of weight I can attribute is limited.
[13] Exhibit 1, 135-136.
The Applicant relies on his former parents in law to care for his minor children. Ms XP is the 47-year-old grandmother of the Applicant’s two daughters. Her husband is 51 years old. They are both permanent residents of Australia. She does not agree with the things the Applicant has done although she respects him as the father of her two granddaughters.
They are facing financial difficulties. Her husband now suffers from depression and anxiety and is unable to work. She and her husband have a deep and loving relationship with the children. She is concerned about the children’s wellbeing and works night shifts at a vegetable factory to care for the children. She is the breadwinner of the family. They are not able to look after the children long term.
She and her husband live with the children in a five bedroom house in Truganina. They now pay about $3,200 per month for their mortgage. Due to the increase in cost of living, they have to calculate every dollar they spend.
I found the children’s grandmother to be an impressive and honest witness. I accept that if the Applicant was not allowed to remain in Australia, Ms XP and her husband would continue to experience financial difficulties. As noted above, the Applicant has two children who are Australian citizens. I will consider the interests of the Applicant’s children separately but I give more weight to the Applicant’s ties to Australia because of those children. These family connections are a very significant tie to Australia.
The Applicant has resided in Australia for about 16 years. Apart from his family, he has other ties to Australia including friends in the community, two of whom have provided statements of support. I accept those friends will be disappointed if the Applicant is not allowed to remain in Australia. I also accept that the Applicant will have other ties through his former employment.
Conclusion: Primary Consideration 3
I conclude that the strength, nature and duration of the Applicant’s ties to the Australian community through his former parents in law are significant. His ties to friends and former co-workers are less significant. The Applicant arrived in Australia in 2008 when he was 18 years old. He is now 34 years old and has spent over a decade in the Australian community. I conclude that his ties to Australia is a factor that weighs moderately in favour of revoking the cancellation decision.
Primary Consideration 4: Best interests of minor children – 8.4 of Direction 99
Paragraph 8.4(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

The Applicant has two minor children that reside in Australia, aged 11 and 9. His daughters currently live with his former parents in law as the Applicant has full custody of the children but cannot care for them. He gave evidence that his daughters have limited communication with their grandparents.
His eldest daughter has thoughts of self-harm and her emotions are very unstable. He said she calls him every two days and depends on him very much. He always comforts and encourages her.
The two daughters do not participate in any extracurricular activities. Their grandparents have limited knowledge and cannot afford to let them participate in extra activities such as art, dance and sports in which they would like to participate in.
It is in the best interests of the children for the Applicant to be reunited with his daughters. They have a close and loving relationship. He intends to support them both financially and emotionally, and with their studies. He says that he would be unable to support the children financially from China as he would be unable to find employment there.
Application of factors at 8.4.4(4) of the Direction to the evidence
Paragraph 8.4(4)(a): I consider the relationship between the Applicant and his children to be durable. The Applicant has been present for much of their lives and has stayed in contact while incarcerated. The children are young and would benefit from the Applicant’s presence for the remainder of their formative years.
Paragraph 8.4(4)(b): Having regard to the cumulative number of years until both children turn 18, the Applicant would have the opportunity to play a positive role in their lives. The Applicant would likely be able to support and care for the children for much of their formative years. The Applicant’s eldest daughter is only 11, with his other daughter only being two years younger. I accept that the Applicant’s presence in their lives would have a positive impact on the 7 and 9 years they have until turning 18.
Paragraph 8.4(4)(c): There was no evidence that the Applicant’s conduct has had an impact on the children.
Paragraph 8.4(4)(d): The Applicant gave evidence regarding the impact that his incarceration and detention had upon his children and the likely impact his removal would have on them. The Applicant’s evidence at the hearing confirmed this and is outlined in detail throughout the above paragraphs.
Paragraph 8.4(4)(e): It is noted that other people have played a parental role in caring for the children, however not a sustainable role. The Applicant’s Statement of Facts, Issues and Contentions (SFIC) describes the role the grandparents have played but note the effect it has had on their health and that they would not be able to care for the young children in a long-term capacity. The ability of the grandparents to care for the children is also affected by the barriers to communication, as outlined in the Applicant’s SFIC. The Applicant’s evidence was that if his visa was reinstated, he would be the primary parental figure in the children’s lives. I accept that evidence.
Paragraph 8.4(4)(g): There is no evidence that the children have been or are at risk of being exposed or subjected to family violence perpetrated by the Applicant nor that they have suffered any of the abuse or neglect contemplated by this sub-paragraph (g) which should be put to one side and rendered neutral for present purposes.
Paragraph 8.4(4)(h): There is no evidence that the children have suffered or experienced physical or emotional trauma arising from the non-citizen’s conduct.
Conclusion: Primary Consideration 4
Whilst the Applicant has not been present for the last three years during his custody, he has maintained regular contact with his children by telephone and/or video and I accept that he wants to continue to play a parental role to the children in the future. Both children would benefit significantly from having their father in their lives and it is in their best interests that the cancellation decision be revoked. Accordingly, I consider the primary consideration of best interests of minor children weighs very significantly in favour of revoking the cancellation decision.
Expectations of the Australian Community – 8.5 of Direction 99
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[14] The Direction further explains:
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 [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.[15]
[14] Paragraph 8.5(3) of the Direction.
[15] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:
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.
The Applicant has breached the Australian community’s expectations due to his record of criminal offending in Australia which is evidenced by two serious breaches of Australian law. Therefore, the Australian community ‘as a norm’ expects the Australian government not to allow him to remain in Australia.
The Direction also states that non-revocation of a mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:[16]
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
[16] Paragraph 8.5(2) of the Direction.
I have examined the Applicant’s offending in light of the above and have concluded that the offending could not be categorised as raising serious concerns about the Applicant’s character, in the context of paragraph 8.5(2) of the Direction.
The next question I must consider is whether there are any factors which modify the Australian community’s expectations. The question is informed by the principles set out in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:
·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;[17]
·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;[18]
·The community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;[19]
·The nature of a 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 a visa outcome that is not adverse to the non-citizen;[20] and
·If a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f) (inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[21]
[17] Paragraph 5.2(4) of the Direction.
[18] Paragraph 5.2(5) of the Direction.
[19] Paragraph 5.2(5) of the Direction.
[20] Paragraph 5.2(6) of the Direction.
[21] Paragraph 5.2(6) of the Direction.
The Applicant has resided in Australia for approximately 16 years. I find that this is a reasonable amount of time, and that 16 years could not be considered ‘short’ for the purposes of the sub-paragraph.
The Applicant began living in Australia at aged 18. I do not find this to be a ‘very young age’, the Applicant is 34 years old and while 16 years is a significant period, it is not ‘most’ of his life.
Although I have already found that the Applicant did not spend his formative years in Australia, I give weight to the fact that the Applicant has spent 16 years in Australia and has contributed to the Australian community by being employed for significant periods.
I refer to paragraph 85 where I considered the extent of the Applicant’s offending and the impact on the Australian community.[22]
[22] Paragraphs 85-87.
I consider that in this case the expectation counts heavily against the Applicant as Australians have a low tolerance of criminal conduct by non-citizens, and the Australian community expects that those who commit serious crimes should have their visa cancelled. The Applicant has attempted to defraud the government of approximately three million dollars and at the time had a prior conviction for unlawful wounding.
I find the Applicant’s offending to be serious and the Australian community would expect that the Australian Government can and should cancel the Applicant’s Visa.
Conclusion: Primary Consideration 5
I find that Primary Consideration 5 weighs significantly against the cancellation decision being revoked.
Other considerations
Legal consequences of decision – 9.1 of Direction 99
This consideration requires an assessment of whether Australia has non-refoulment obligations in relation to the Applicant. Paragraph 9.1(2) and (3) of the Direction provides:
(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
It is contended by the Applicant that if he is returned to China in the event of an adverse decision, he may be at risk of criminal prosecution by virtue of Articles 7 and 10 of the Criminal Law of the People’s Republic of China (‘the Chinese Criminal Law’).
The Applicant has not previously applied for a protection visa but it is open for him to do so.
I must give meaningful consideration to clearly articulated claims of harm or hardship made by the Applicant, including those claims, which if made out, would result in Australia owing non-refoulement obligations in respect of the Applicant. I must assess the risk of harm and/or hardship that the Applicant claims he will face if removed to China in its own right. That assessment will also inform my assessment of whether the Applicant is someone to whom Australia owes non-refoulement obligations. A risk of harm or hardship that is not clearly articulated but arises on the evidence also warrants consideration. The Tribunal is not required to carry out the same level of analysis in this matter as would be expected in the assessment of a protection visa application.
The Applicant’s evidence concerning Australia’s non-refoulment obligations
The Applicant relied upon the evidence presented at the first hearing, they are as follows:
Risk of ‘Double Jeopardy’ punishment
The Applicant states there is a risk of double jeopardy and that he faces a significant term of imprisonment if he is returned to China as the Chinese Criminal Law empowers the re-prosecution of overseas offenders. He says this potentially engages Australia’s international non-refoulement obligations and provided a country information report from the UK Home Office in support of his claims.
The UK Home Office Country Information and Guidance China: Fear of punishment on return to China for crimes committed in other countries (September 2015) states at 2.3.1:
…the Tribunal found that whilst there is a risk of prosecution or re -prosecution under Article 7 and 10 of the Chinese Criminal Law for overseas offenders returning to China, use of the legal provisions is discretionary and extremely rare. Without particular aggravating factors, commonly the risk falls well below the level required to engage international protection.
The aggravating factors included where there was substantial adverse publicity within China about the case, if it caused significant embarrassment to Chinese authorities or political factors, none of which appear to be present in this case.
It is permissible for me to defer assessment of whether the Applicant is owed non-refoulement obligations on the basis it is open to him to apply for a protection visa and I decide to do so in this case.[23]
[23] See Plaintiff M1, 427 [30].
I do not suggest that the Applicant’s claim that he might suffer harm if he is returned to China are without merit but, as set out above, I consider that in this case it has not been possible to consider the non-refoulement issues with the same level of detail as they would be considered in a protection visa application.
I have nevertheless taken into account the Applicant’s claims that there is the possibility of double jeopardy if returned but give this minimal weight in all the circumstances. As the majority in Plaintiff M1 observed:
Where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being “another reason” why the cancellation decision should be revoked.[24]
[24] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 [39] (‘Plaintiff M1’).
I also note that where an Applicant is able to make a valid application for a protection visa, those claims will, if and when the Applicant makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the Applicant according to paragraph 9.1 of the Direction.
I accept that if the cancellation decision is not revoked and the Applicant makes an application for a protection visa, he would remain in immigration detention while that application is considered or the Minister considers the exercise of a personal discretion in favour of the Applicant. There is no evidence to suggest that any personal discretion powers will be exercised. This period of time in detention may therefore be uncertain and lengthy and I give this significant weight in favour of revoking the cancellation decision.
Extent of impediments if removed – 9.2 of Direction 99
This consideration requires a decision-maker to consider the impediments a non-citizen is likely to face in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) if they are removed from Australia to their home country. In doing so, a decision maker is required to take 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.
Paragraph 9.2(1)(a): The Applicant is 34 years of age. There is nothing in the material available to me that suggests the Applicant suffers any kind of medical abnormalities.
Paragraph 9.2(1)(b): The Applicant last resided in China in 2008, however the Applicant travelled to China in 2015 to visit his children who were residing there at the time. Linguistically, the Applicant speaks Putonghua fluently and would not face any significant language or cultural barriers.
Paragraph 9.2.1(c): This sub-paragraph looks for any social, medical and/or economic support available to the Applicant in China. The Applicant contends that he would face economic difficulty if returned to China, it was submitted that the unemployment rate in China has ‘significantly increased’.[25]
[25] Applicant’s SFIC dated 12 August 2023.
Although not included under this heading or as part of Direction 99, I am required to consider the Applicant’s representations about possible prosecution in China under this consideration as a result of the Federal Court decision in this matter.
There was no evidence supplied as to any examples of people being prosecuted in China for this offence once having been prosecuted in Australia. The material before the Tribunal indicated a risk of prosecution, or double jeopardy, in China was only significant in matters involving offences against the Chinese State or having political overtones. I consider it unlikely that the Applicant would be prosecuted in China and give this minimal weight.
Conclusion of Other Consideration (b): Extent of impediments if removed
Weighing up the difficulties the Applicant would have attaining employment in China, and the low risk of him being prosecuted, I place moderate weight on the extent of impediments if removed in favour of revoking the cancellation decision.
Impact on victims – 9.3 of Direction 99
This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This factor weighs neutral.
Impact on Australian business interests – 9.4 of Direction 99

The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This factor weighs neutral.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
·Other Consideration (a): legal consequences of the decision: is of significant weight in favour of revoking the cancellation decision;
·Other Consideration (b): extent of impediments if removed: is of moderate weight in favour of revoking the cancellation decision;
·Other Consideration (c): impact on victims: is of neutral weight;
·Other Consideration (d): impact on Australian business interests: is of neutral weight.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied that there is another reason, pursuant to the Direction, to revoke the mandatory cancellation of the Applicant’s Visa. As noted previously in these Reasons, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the power afforded by s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: carries significant weight against revoking the cancellation decision;
·Primary Consideration 2: is of neutral weight;
·Primary Consideration 3: carries moderate weight in favour of revoking the cancellation decision;
·Primary Consideration 4: carries very significant weight in favour of revoking the cancellation decision;
·Primary Consideration 5: carries significant weight against revoking the cancellation decision.
The primary considerations of the protection and expectations of the Australian community weigh against revoking the cancellation decision. The Applicant has failed to obey the laws of Australia and should expect to be removed from the community. The countervailing considerations are his ties to Australia, the best interests of minor children, legal consequences and impediments if removed. I find that the countervailing considerations outweigh the protection and expectations of the Australian community in this case.
I do not consider this to be a case where there is an unacceptable risk of harm to the Australian community if the Applicant is released. While the Applicant has committed serious crimes, they were unrelated incidents and I have found the Applicant’s risk of reoffending to be low. His most recent offending was in 2018 for which he has expressed genuine remorse. The most significant countervailing factor is the interests of his two daughters who are only 9 and 11 years old and need their father to play a parental role in their lives while they grow up. It will be difficult for the current care arrangement to continue. I have also considered the difficulties he will face if returned to China and take into account the length of time the Applicant has been in Australia and his significant periods of positive contribution to the community through employment.
Considering the balance of the considerations, I am satisfied there is another reason to revoke the cancellation decision.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that the cancellation decision be revoked.

I certify that the preceding 163 (one hundred and sixty-three) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President

........................[sgd]................................................
Associate
Dated: 19 January 2024

Dates of hearing: 14 & 15 November 2023

Advocate for the Applicant: Penny Low

Solicitors for the Applicant: Stanley Immigration & Law Pty Ltd

Advocate for the Respondent: Alexandra O'Grady

Solicitors for the Respondent: MinterEllison

[2024] AATA 33

19 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Court	Date	Offence	Sentence
Melbourne County Court	9 July 2020	Cth – Importing tobacco products with intent to defraud the revenue	Convicted and sentenced pursuant to s 20(1)(B) of the Crimes Act 1914 to 3 years imprisonment to be released after serving 18 months on entering recognizance self $2000 to be of good behaviour or 18 months [Counts 1] SUSP IMP Order
Perth Magistrates Court	1 October 2013	Unlawful wounding with a circumstance of aggravation. Criminal Code (WA); 30(1) B	8 Months concurrent suspended 12 Months from 01-Oct-2013
Perth Magistrates Court	1 October 2013	Breach of Bail Undertaking; Bail Act (WA) 1982; 51 (1)	[Counts 1] FINE $500

Dates of hearing:	14 & 15 November 2023
Advocate for the Applicant:	Penny Low
Solicitors for the Applicant:	Stanley Immigration & Law Pty Ltd
Advocate for the Respondent:	Alexandra O'Grady
Solicitors for the Respondent:	MinterEllison