CXWW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 3199
•19 August 2022
CXWW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3199 (19 August 2022)
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 August 2022
Date of written reasons: 9 September 2022
Place:Hobart
The decision under review is affirmed.
......................[sgd]..................................................
A G Melick AO SC, Deputy PresidentCatchwords
MIGRATION – Non-revocation of mandatory cancellation of a Partner (Subclass 801) (Residence) visa - where Applicant does not pass the character test – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – tobacco importation offence – decision under review affirmed.
Legislation
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
Minister for Home Affairs v Omar (2019) 272 FCR 589
Plaintiff M1/2021 V Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 400 ALR 417
R v CXWW [2020] VCC 950
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311
WKMZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
DFAT Country Information Report: People’s Republic of China (22 December 2021)
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
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
9 September 2022
INTRODUCTION AND BACKGROUND
The Applicant is 32 years old and a citizen of 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, however, he remained unlawfully in Australia until 22 April 2013 when he was granted a bridging visa. On 4 June 2014 the Applicant was granted a Partner (Subclass 801) (Residence) visa (“the Applicant’s visa”).
On 16 October 2011 the Applicant was arrested for unlawful wounding with a circumstance of aggravation and was sentenced to eight months imprisonment wholly suspended for 12 months.
On 15 September 2012 the Applicant’s first child, CY, was born. On 19th of December 2013, the Applicant married CY’s mother BS. Their second child,YY, was born on 28 June 2014.
In May 2015 the Applicant, BS and their children travelled to China where the Applicant’s wife left him and she had no further involvement with the children. She has remained in China. The Applicant returned to Australia on 27 June 2015, leaving the children with his parents in China.
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 16 February 2019, the Applicant married MZ , a former school friend with whom he had reconnected on social media.
On 25 February 2019 the Applicant was arrested in relation to unlawful tobacco importations and remained on bail until he was sentenced in July 2020.
On 8 March 2019 the Applicant’s wife applied for a partner visa with the Applicant being the sponsor. That application was refused on 15 March 2019 and the decision was subsequently affirmed by the Migration and Refugee Division of the Administrative Appeals Tribunal. That decision is currently being challenged in the Federal Court by the Applicant’s wife.
In July 2019 the Applicant’s children, who are Australian citizens, moved back to Australia to live with him and his wife.
On 9 July 2020 the Applicant was sentenced to three years imprisonment, to be released after 18 months after entering into a recognizance, for the unlawful tobacco importation.
On 13 August 2020, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that the Applicant did not pass the character test and was serving a full time custodial sentence.[1] On 9 September 2020, the Applicant made written representations to the Respondent requesting revocation of the cancellation of their visa (“revocation request”).[2] On 26 May 2022 the Respondent decided not to revoke the cancellation.[3]
[1] G-documents, 155.
[2] G-documents, 100-101.
[3] G-documents, 12.
The Applicant subsequently lodged an application for review in this Tribunal on 30 May 2022.[4] The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(ba) of the Act.
[4] G-documents, 1-9.
A hearing was held in this matter on 10 & 11 August 2022, with the Applicant and Respondent’s representatives appearing in person and the Applicant’s representatives by Microsoft Teams. The Tribunal received the joint tender bundle into evidence, marked as Exhibit 1.
Procedural History
The Tribunal published its decision in this application pursuant to s 43(1) of the Administrative Appeals Act 1975 (Cth) on 19 August 2022, the 81st day relevant to this matter. In doing so, the Tribunal met the requirements of s 500(6L) of the Act. Attached to these Reasons and marked “Annexure B” is a true and correct copy of this Decision.
In accordance with the principles outlined by the Full Federal Court in Khalil v Minister for Home Affairs (2019) 271 FCR 326 (“Khalil”), the Tribunal now publishes the written Reasons to the parties. In Khalil, the Full Federal Court said:[5]
The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84-day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271‑273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required it to give its reasons, oral or in writing, within a reasonable time of the decision.
…
What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…
[5] in Khalil v Minister for Home Affairs (2019) 271 FCR 326, [41], [48] (underining added).
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The 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.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[6]
…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[7]
[6] (2018) 267 FCR 320.
[7] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant pass the character test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 9 July 2020, the Applicant was sentenced to a term of imprisonment of three years to be released after serving 18 months on entering a recognisance in the sum of $20000, to be of good behaviour for 18 months.
Consequently, the Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, does not pass the character test.
Is there another reason why the cancellation of the Applicant’s visa should be revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[8]
[8] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles in paragraph 5.2 of the Direction are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on 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 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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) 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 8.4(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 of the Direction provides that:
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.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account whichare:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia; and
(d)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account whichare:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[9]
…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[10]
EVIDENCE
[9] [2018] FCA 594.
[10] Ibid, [23].
The Applicant
The Applicant is a Chinese citizen whose mother, brother and extended family live in China. He was born and educated in China but never worked there. His only close relationship in Australia are his two children and his wife, although the parents of his former wife operate a business in Melbourne.
His parents operated a takeaway food business in China before retiring and his father died shortly thereafter. His mother retired in 2016 and the Applicant’s evidence was that her financial circumstances are such that she only has enough to pay for her everyday expenses and maintain her current lifestyle.
The Applicant first came to Australia when he was 18 to study English. He came to Melbourne but only completed the first year of the course. His three year student visa expired in March 2010 and although he had no visa after, he did not approach immigration about getting a new visa. He chose to live in Australia unlawfully.
In 2009 he moved to Perth because a friend from school was living there. He started working as a plasterer. He had no formal training; only on the job training. He made enough money to support himself.
He met his first wife, who is the mother of his two children, whilst living in Perth. His oldest daughter was born in 2012 while he was still living unlawfully in Australia. He obtained another visa in April 2013 only after immigration officials approached him.
In October 2011 he was arrested and charged with unlawful wounding. His description of the circumstances were as follows.
(a)He was in a Perth night club drinking with friends and got into a fight with another group of people whom he did not know. He did not know what the fight was about because he had drunk too much, and he had difficulty understanding because of the language barrier.
(b)His friends got kicked out of the club and he met them outside.
(c)He grabbed a hammer from somebody else's hand and he hit the victim on the back of the head and the back of the neck. He doesn't know how many times he hit the victim, but it was more than once.
(d)When asked why he did it, he said that it was very chaotic and that he saw the weapon and wanted to take it from the person.
(e)He conceded that the victim was bleeding after he hit him.
(f)He was apprehended by security and taken to the police who later let him go on bail. His English was not good, there was no interpreter, and he did not know what he signed.
(g)He did not think he needed to go to court after hitting someone over the head with a hammer. He thought he was just going to be locked up for the night and then go home.
(h)He breached his bail conditions but denied that he did so. He did not want to go to court because he did not hold a valid visa at the time.
(i)He went to court after the police arrested him for breaching bail and pleaded guilty to breach of bail and unlawful wounding.
His marriage broke down in 2015 when they were in China for his wife and daughters to meet his parents.
One month after his marriage broke down, he decided to return to Australia alone, leaving his daughters with his parents. He thought he would have trouble working to make money if he had to look after his daughters. He left his daughters in China with his parents for about four years but kept in contact nearly every day by video and phone calls and went back to China every six months. Video and phone calls were also the same method in which he kept in touch with his family whilst in jail and immigration detention.
In June 2018 he rented a house in Notting Hill with a friend, W, who he knew from elementary school in China, and W’s wife. He had reconnected with his friend whilst in Perth. About two weeks after renting the house, his friends went to China and never came back to Australia.
His friend had hired the Applicant to do the work in Australia in relation to the importation of tobacco which they had done before but this was the first time that they had employed him.
He rented a warehouse with the intention of storing tobacco there; he was to pick up the tobacco and do what they told him. He searched the ASIC website to get information about directors of companys so that he could set up email accounts that looked like their accounts which were used for directing tobacco deliveries to him.
He received both lots of tobacco knowing that they came from China, but he does not know where from in China. He would tell his friend when the tobacco arrived and wait for further instructions.
The Applicant contends that he became involved because his father was sick and needed money for his medical treatment. The Applicant was not working at that stage and had not been for more than a year because of the downturn in the construction industry.
The Applicant’s payment for his role in the tobacco importation was going to depend on how much profit they made. When they estimated the profit, the suggested figure for his 10% share was $80,000.
In January 2018 he bought a $75,000 Land Rover with money given to him by his friend who the Applicant says could not purchase it because he did not have a visa. It was agreed that when the Applicant’s friend left in June, he could have sold the car for cash, but he did not so do until later. When he later sold the car for $55,000 and offered to use the proceeds for his father's medical treatment, his father declined, saying the Applicant needed the money for his legal expenses.
The Applicant did not know whether his friends were coming back from China but he knew they had one child, with another one on the way, and his friend intended on having an operation in China. The Applicant conceded that as his friend did not have a visa, he would have trouble getting back into Australia unless he applied for one whilst in China.
The Applicant was arrested in February 2019 after police found approximately $119,000 in a paper bag in his bedroom. He said that it was left behind by his friend who was not able to take that much cash back with him to China.
The Applicant denied that he had told the police that the money had come from his parents, although $10,000 came from his parents in 2018 before his father got sick.
The Applicant’s wife was a school friend from China with whom he reconnected on social media in 2018. They commenced their relationship in June 2018 and married in January 2019. He was arrested a week later.
When he was arrested, his wife was taken and placed in immigration detention because she was not lawfully in Australia. She was in detention for about a month after which she applied for a partner visa with the Applicant as a sponsor. That application was refused in March 2019. The Applicant had his children brought from China whilst he was on bail.
The Applicant did not think he was going to go to jail because he was not the main offender. He did not find out that he might go to jail until about July 2020, just before the final court hearing, when his lawyer first told him that he might go to jail.
I found his evidence confusing as to what he considered his options were for the care of his children if his wife’s visa application and appeals were unsuccessful and she had to return to China whilst he was in jail. She is still in Australia awaiting the results of her visa application. The Applicant conceded that if he was not allowed to remain in Australia, he would return to China and take his children with him. The Applicant said that his paramount concern was the welfare of his children and he did not want to be separated from them again.
He conceded that he and his wife had not thought of a back-up plan should they not be allowed to remain in Australia.
The Applicant said that if his children went back to China with him, they would be face lot of challenges as they are Australian citizens and hence not entitled to the benefits available to Chinese citizens including education and social welfare because China does not allow dual citizenship.
If he was allowed to stay in Australia and his wife was not, he would apply for yet another visa for her to return to Australia so that they could look after the children together.
He feared being prosecuted if returned to China and he would apply for a protection visa if his visa was not reinstated.
Upon re-examination, he said that if his wife cannot remain in Australia, he would be a sole parent with two children. He said that he intended to work in a career involving plastering and live at the same address where his wife and children were living at the moment. He would have to leave for work at about 7am but could make the childrens’ lunches before he left and their school was a few minutes walk from the house.
Currently, the children spend from Friday night to Sunday morning with his former wife’s parents and it was not intended for this arrangement to end
The Applicant’s Wife
The Applicant’s wife is a Chinese citizen who was born and raised in China and met her husband at school. They reconnected in 2018 via social media and commenced their relationship in January 2018 and moved in together in July 2018.
The Applicant was working in the construction industry until he was arrested.
The Applicant’s wife stated she was not usually able to work because she did not have a visa and all the money came from her husband.
The Applicant’s wife came to Australia in 2007 to study but her visa expired in 2010 so she stayed in Australia unlawfully. She was placed in immigration detention in March 2014 but was released when she promised to go back to China. She did not go back to China but instead lodged a protection visa application which was refused, as were her appeals of this refusal, so she became an unlawful non-citizen.
She was taken back into immigration detention when the Applicant was arrested but then she lodged her current application for a partner visa, of which the appeal process is still ongoing. She is currently living in a house with the children who she regards as her own.
The relationship between her and the Applicant’s children is very strong; they are like a family.
She did not think her husband was going to go to jail because he was not in control of the importation of the tobacco.
She and the Applicant decided to bring the children to Australia so that they could go to school here.The children arrived in Australia at the end of July 2019 which was the first time she physically met them.
I accept that the children are very close to the Applicant’s wife and treat her like their mother. She gave evidence that if she was forced to go back to China, the children would go back with her, however, she seemed confused about the family’s options should her husband be allowed to remain in Australia while she was forced to return to China.
The Applicant’s Former Mother-in-Law (XP)
XP is the 46 year old grandmother of the Applicant’s two daughters. Her husband is 50 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 who are now 9 and 8 years old.
She and her husband work as subcontractor delivery drivers. They live in a five bedroom house in Truganina which is about one hour away from where the children are now living. The Applicant’s two daughters spend their holidays and from Friday evening to Sunday mornings with her and her husband.
Her grandchildren are both happy kids and she often buys them clothes, books and other things they need. She and her husband have a deep and loving relationship with them. It makes her cry to think of them going back to China again. The children have their own room at her house with their own clothes and toys.
She and her husband cannot look after the children full-time because of the damands and hours required by their occupation, although there is a school close to their house. She and her husband deliver parcels for couriers from at least Monday to Friday and sometimes she has to work on Saturdays. There is not an exact schedule as their work depends on the number of jobs they have. She could not look after the children full time because she and her husband are responsible for large areas and each have to leave for work at about 7am each day. On Fridays, she often has to go back to work after she has s picked up the children, although she can work from home when doing accounts.
She was present when both girls were born and missed them very much when they were in China. It was difficult to see much of them after they returned to Australia because of COVID-19 restrictions but she has had the constant contact with the children described above since restrictions eased.
She believes it is in the children's best interest to remain in Australia and for the Applicant to be allowed to remain to care for them.
I found her to be an impressive and honest witness.
A statement was tendered from the Applicant’s eldest daughter and a drawing from the Applicant's youngest daughter. I accept that the children love being in Australia and don't want to go back to China. I also accept that they love the Applicant and his new wife. The children want their parents and grandparents to remain together here in Australia as a family unit.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to 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. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.
The nature and seriousness of the Applicant’s conduct to date
The unlawful wounding charge relates to an incident outside a Perth night club on 16 October 2011. They 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.
I find this behavior to be serious in that it was a violent offence that involved the use of a weapon to inflict injury.
In relation to the unlawful importation of tobacco, I refer to the sentencing judgment comments of Judge Morrish on 9 July 2020:[11]
…you became a party to two importations of tobacco products, knowing and intending that the revenue would be defrauded.
The first consignment arrived via see cargo into Melbourne on 22 September 2018. The consignment document declared the items as ‘household scales, night lamp, shredder’. The consignment consisted of two large wooden crates on pallets add another pallet containing 16 cardboard boxes. X-rays of the consignment showed anomalies consistent with organic substances. Further inspection revealed to crates of manufactured loose leaf tobacco. The two wooden crates contained 743 kg of manufactured loose leaf tobacco. The duty payable on Mattamy out of tobacco was $879,700.86 inclusive of GST. There has been no attempt to pay the duty.
The second consignment arrived by sea cargo into Melbourne on 2 October 2018. The consignment documents to clear 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 kg 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 are not the mastermind, you played a pivotal role in facilitating the importations. Essentially, you searched the details of legitimate trading companies and then establishing identities, making it appear as though you were connected with those companies. You manipulated the 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 consignment would be delivered…
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….
[11] R v CXWW [2020] VCC 950, [4]-[6], [19].
Her Honour also noted that $118,300 in cash was found on the Applicant’s premises when searched and that he expected to be paid $80,000 for his role in the importations.[12]
[12] Ibid [11], [18].
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(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.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(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.
Sub-paragraph (c) of paragraph 8.1.1(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.
I note that the Applicant has been sentenced to two terms of imprisonment, albeit one wholy suspended, with the latter sentence of three years being indicative of the seriousness of the Applicant’s offending. I consider this factor mitigates against revocation of the delegate’s decision
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
Although the two groups of offences for which the Applicant received prison sentences were unrelated in nature, they demonstrate a disregard of Australian laws. Also the amount of tobacco imported increased substantially between the two shipments. I consider this factor mitigates against revocation of the delegate’s decision.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
As noted above, the amount of tobacco in the second importation was a substantial increase from that of the first importation. Once again I consider this factor mitigates against revocation of the delegate’s decision.
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) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a 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. 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.
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.
I consider that the above matters demonstrate a disregard of Australian laws by the Applicant and once again I consider this factor mitigates against revocation of the delegate’s decision.
I do not consider factors (a), (b), and (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances.
The Applicant’s first offence involved violence using a weapon to inflict injury and, although not as serious, I note that the Applicant failed on several occasions to note his prior offending when seeking reentry into Australi. Accordingly, I consider that the rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view 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 that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(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 their 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 that such offending would cause financial harm to the Australian community as revenue from import duties is a significant source of government income and such income is necessary to fund government programs. The amount of duty sought to be evaded was approximately three million dollars and I consider the Applicant’s offending to be very serious.
Any further offending similar to the nature of 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.
Likelihood of 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 investiagtors 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.
Whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay
I note that Applicant wishes to permanently reside in Australia and, if allowed to do so, I do not consider that the risk of harm would be any different than if a shorter visa was granted. There were no submissions made in relation to the grant of a short stay visa and I do not consider this to be an appropriate circumstance for the granting of such a visa.
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. Accordingly, I place significant weight upon this primary consideration against setting aside the delegate’s decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)the extent to which the person accepts responsibility for their family violence related conduct;
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
I find no evidence that the Applicant has engaged in conduct that constitutes family violence as defined in the Direction.
Conclusion: Primary Consideration 2
I find this consideration not applicable in this matter and therefore weighs neutrally.
Primary Consideration 3: The best interests of minor children in Australia
Paragraph 8.3(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 8.3(2) and 8.3(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 refuse or cancel the visa 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
Paragraph 8.3(4) of 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 children from his previous relationship; his eldest daughter is almost 10 years old and his youngest daughter is 8 years old.
The Applicant’s two daughters are obviously very close to their stepmother, father and grandparents. I accept that their stepmother is raising them in a loving and caring manner, as are their grandparents. The children are wiell settled at a school in Australia but, having lived for several years in China, they are bilingual.
Their grandparents are permanent residents of Australia but their stepmother has yet failed to obtain a visa to allow her to remain in Australia. If the Applicant fails to regain his visa, I accept that his wife will have little chance of obtaining a visa as he is her primary sponsor. I also accept that if the Applicant is not allowed to remain in Australia, he will take his children with him back to China and his wife will accompany them.
I accept that this would mean a separation from their grandparents who have no intention of returning to live in China.
I also accept that the children's mother has no desire to be reconnected with them and that the Applicant and his wife have limited close contacts in China who could offer assistance.
The Applicant’s counsel submitted that if the children, who are Australian citizens, returned to China, they would not be able to obtain a Hukou, being a permit required to live in any particular city. Applicant’s counsel provided the following submissions and evidence in support of that submission:
(a)the Applicant is from Fujian Province;[13]
[13] G-Documents 119.
(b)The Nationality Law of the PRC provides inter alia that:
(i)the PRC does not recognize dual citizenship;[14]
[14] Nationality Law of the People’s Republic of China art 3.
(ii)people born abroad shall not have Chinese nationality if they acquired foreign nationality at birth;[15] and
[15] Ibid art 5.
(iii)it is possible to be naturalized.[16]
[16] Ibid art 7.
(c)The Regulations of the PRC on Household Registration provides:
(i)all citizens shall perform household registration;[17]
[17] Regulations of the People’s Republic of China on Household Registration, art 2.
(ii)household registration shall be carried out on the basis of households;[18] and
[18] Ibid art 5.
(iii)citizens will be registered as permanent residents in the place where they habitually reside and may only be registered in one place.[19]
[19] Ibid art 6.
(d)attention is drawn to DFAT Country Information for China which effectively says that Hukou's are geographically limited in some of the large cities;[20]
(e)A regime different to household registration applies to non-citizens and foreigners. That law is the Exit and Entry Administration Law of the People’s Republic of China (the “Entry and Exit Law”) which inter alia provides:
(i)a system of visas for entering China;[21]
(ii)that permanent residence is possible;[22] and
(iii)for registration of accommodation (including in hotels).[23]
(f)The answer to the question: “can the Australian citizen children get a Hukou registration?” is clearly “no”. Only Chinese citizens can get Hukou.
(g)The manner in which the Exit and Entry Law will apply to the children, including application procedures, processing times and how this will affect the children is currently unknown.
(h)In those circumstances the Tribunal can only be satisfied that the children's access of government services (including medical and education) will be less than would be available to a Chinese citizen. It is not in the best interest of the children to place them in this unknown situation.
[20] DFAT Country Information Report: People’s Republic of China (22 December 2021) at 5.26.
[21] Exity and Entry Administration Law of the People’s Republic of China, ch 3.
[22] Ibid art 47.
[23] Ibid art 39.
I have analysed the materials as best I can and accept that it is possible that, initially, the children's access to government services will be less than what would be available to Chinese citizens but, because their father and stepmother are Chinese citizens, there is nothing in the materials to suggest that the children could not be naturalized as Chinese citizens as noted in Article 7. This will then provide them with the same access to government services as children who are Chinese citizens but will also have the undesirable affect of having to forgo their Australian citizenship.
I consider it to be in the best interests of the children to live with the Applicant and his wife which would be possible in both China or Australia. I accept that if the Applicant returned to China, the children would lose the benefit of the relationship with thier grandparents and that overall they would seem to have better prospects for the future if they remain in Australia.
Conclusion: Primary Consideration 3
Accordingly, I find that is in the best interest of the Applicant's children that the Applicant’s visa cancellation be revoked and I will give this primary consideration significant weight in favour of the Applicant.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the 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:
(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.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
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.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[24]
[24] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Accordingly, in assessing the weight attributable to Primary Consideration 4, I have had regard to the following matters.
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.
Conclusion: Primary Consideration 4
I attribute significant weight to this consideration against the revocation of the cancellation of the Applicant’s visa.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d.
(a) International non-refoulement obligations
Paragraph 9.1(1) of the Direction defines a ‘non-refoulement obligation’ as 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”. Decision-makers are to be guided by the Act’s incorporation of the non-refoulement obligations arising from the international instruments to which Australia is a party, as the tests in the Act reflect “Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing”.
Under paragraph 9.1(2) of the Direction, decision-makers are counselled to:
…carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
Section 197C of the Act was amended by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021. Section 197C(3) of the Act now provides:
(3) Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non‑citizen to a country if:
(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.
Paragraph 9.1(6) of the Direction acknowledges that it may not be possible, in the context of the review of a section 501/501CA decision, to assess an Applicant’s claims of non-refoulement “in the same level of detail as those types of issues are considered in a protection visa application,” noting that the process for assessing protection visa applications “is specifically designed for consideration of non-refoulement obligations as given effect by the Act”. Therefore, if a non-citizen raises claims that make reference to international non-refoulement oblgiations as reflected by the Act, and that non-citizen can apply for a protection visa, those claims will, at the protection visa stage, “be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen” under paragraph 9.1(7).
It was identified by the majority in Plaintiff M1/2021 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Plaintiff M1”) that to the extent that Australia’s non-refoulement obligations are incorporated into domestic law, they are reflected in the sections of the Act relevant to protection visas.[25] The protection visa application process is “the specific mechanism chosen by Parliament for responding to protection claims”.[26]
[25] Plaintiff M1/2021 V Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 400 ALR 417, 423 [18].
[26] Ibid 430[38].
Accordingly, the Court found that where a non-citizen’s representations make reference to claims of non-refoulement “under domestic law”, while that claim may be considered by the decision-maker, it is open to the decision-maker “to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa”.[27] By contrast, where a non-citizen raises non-refoulement claims under unenacted international non-refoulement obligations, those obligations cannot be “mandatory relevant considerations” because Parliament has not chosen to incorporate them into Australia’s domestic law.[28]
[27] Ibid 427 [30].
[28] Ibid 427 [29].
This does not detract from the fact that, in considering the Applicant’s claims to fear of harm, a decision-maker must still “have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them”.[29]
[29] Ibid 425 [24].
It follows that I must identify and engage with any non-refoulement claims that are raised by the Applicant in this matter, or that are “clear from the facts of the case” (Direction, paragraph 9.1 (4)). If the Applicant’s non-refoulement claims make reference to unenacted international non-refoulement obligations, then they are not a mandatory relevant consideration, consistent with constitutional principle.
If, however, the Applicant’s non-refoulement claims make reference to protection obligations at domestic law, it is open to me to defer assessment as to whether he is owed those obligations if he can apply for a protection visa, noting that his claims would be more comprehensively assessed in that process before any disqualifying criteria were considered. Alternatively, noting that a decision to defer assessment of the Applicant’s claims would lead to a period of longer detention while any application for a protection visa were assessed, I can proceed to a substantive assessment of the Applicant’s claims.
Non-refoulement claims raised by the Applicant
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 Criminal Law”).[30]
[30] Applicant’s SFIC, [34]; Applicant’s Statutory Declaration, [28].
Article 10 of the Criminal Law states:
Any person who commits a crime outside PRC territory and according to this law bear criminal responsibility may still be dealt with according to this law even if he has been tried in a foreign country; however, a person who has already received criminal punishment in a foreign country may be exempted from punishment or given a mitigated punishment.
The Applicant has not previously applied for a protection visa.
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.[31] 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.
[31] See Minister for Home Affairs v Omar (2019) 272 FCR 589.
Risk of ‘Double Jeopardy’ punishment
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 Applicant may apply for a protection visa, and it is permissible for me to defer assessment of whether he is owed non-refoulement obligations upon the basis it is open to him to apply for a protection visa.[32]
[32] 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, there were some relevant material before me, much of which was not fully explored.
The majority in Plaintiff M1 observed:[33]
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.
[33] Plaintiff M1, 430 [39].
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, a factor noted in Direction 9.1(6).
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(7). of the Direction.
Accordingly, even though this consideration could bear significant weight, I defer consideration of international non-refoulement obligations and so it weighs neutrally.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant’s age and health
The Applicant is 32 years old and, apart from some claimed issues with depression, is in good health. There was insufficient evidence before me in relation to the extent, if any, of his depression and I do not find that there will be any significant impediment to the Applicant should he be removed to his home country
Whether there are any substantial language or cultural barriers
The Applicant lived in China until just prior to his 19th birthday when he first arrived in Australia. He has returned to China on multiple occasions including at least one for an extended period. There is no suggestion that he would have any language or cultural barriers and I note that during the hearing he had no difficulty in understanding the official language of China, Putonghua, which is also referred to as Mandarin.
Any other social, medical and/or economic support available to the Applicant in China
The Applicant’s mother and brother both reside in China, as do the immediate family of his wife. There are a significant number of other relatives of the Applicant living in China including his grandparents and some uncles, aunts and cousins. The only close relatives the Applicant has in Australia are his wife, who does not currently have an approved visa, and his two children, who are Australian citizens. He also appears to be close to his former parents- in- law.
I find that the Applicant could have recourse to the same social support as usually available to Chinese citizens and would also have the same access to health and welfare services as other Chinese citizens, although I recognize the standard of such services may not be of the same standard as those which are available in Australia.
I place limited weight upon this consideration towards revoking the applicant’s visa cancellation.
(c) Impact on victims
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 Other Consideration (c) is therefore neutral.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
(a)the strength, nature, and duration of ties to Australia; and
(b)the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
Immediate family
The Applicant’s children and wife live in Australia, although I note that his wife's ability to remain is linked to him being able to regain his visa. I accept that the relationship between the Applicant and his wife is very strong and genuine, and they have expressed a desire to have a child together.
If the Applicant’s visa is not reinstated, it is likely that his wife would not be able to stay in Australia. However, I note that the Applicant has stated that if he was forced to return to China, his children will go with him. Accordingly, I find it likely that, in view of her relationship with both the Applicant and his children, the Applicant’s wife would return to China with him rather than attempting to find another sponsor to enable her to remain in Australia.
The Applicant’s former parents-in-law also live in Australia and have established a business here. Although they are very fond of the Applicant’s children, they would not return to China if the Applicant and his family were forced to so do.
I accept that whilst the Applicant remains in immigration detention, he will be unable to provide emotional and financial support to his family which will continue to cause distress to his wife and children.
Other Ties
The Applicant has resided in Australia for 15 years.. Apart from his family, he has other ties to this country including friends in the Australian community, two of whom have provided statements of support. I accept that such friends will be disappointed if the Applicant is not allowed to remain in Australia.
I also accept that the Applicant will have other ties by virtue of his employment whist living in this country.
I place moderate weight upon these considerations in favor of revoking the delegate’s decision.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Potential prolonged or indefinite detention
The list of “other considerations” at paragraph 9(1) of the Direction is non-exhaustive and I may have regard to any other matter that is relevant to the Applicant’s circumstances. This invites consideration of “the human consequences’”[34] that flow from a decision in this application; namely, the prospect of prolonged or indefinite detention in the event that the cancellation of the Applicant’s visa is not revoked.
[34] Hands v Minister for Immigration and Border Protection(2018) 267 FCR 628 , [3].
Section 189(1) of the Act provides that an officer with knowledge or a reasonable suspicion that a person in the migration zone is an “unlawful non-citizen” must detain that person. As per s 198(1) of the Act, the officer is required to remove, as soon as reasonably practicable, an unlawful non-citizen who asks in writing to be so removed.
In the event of an adverse decision in this application, the Applicant would be able to apply for a protection visa, and would not be subject to removal while this application was being determined. However, if a “protection finding” is made in relation to the Applicant, but his application for a protection visa is refused, then s 197C(3) of the Act would neither require nor authorise his removal to China.
It is possible that the Minister may exercise his personal power under s 195A of the Act to grant a visa to the Applicant if he considers it is in the public interest to do so, or to determine that the Applicant is to reside at a specified place rather than being held in detention (as per s 197AB of the Act). Alternatively, the Applicant could be relocated to an alternate third country. However, there is no evidence in this matter to suggest that these options are being considered and as such, the most likely outcome is that the Applicant faces a period in immigration detention with no fixed end date.
In WKMZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Full Court of the Federal Court held as follows:[35]
The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a visa decision-maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law. As we explain below, for our own part we see no difficulty in attaching the adjective “indefinite” to such further period of detention, in circumstances where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom.
[35] (2021) 285 FCR 463 [123].
An adverse decision in this application means that the Applicant will be subject to a period of detention that can be fairly described as indefinite, with potentially significant consequences for his mental and physical health as a result. I attribute moderate, but not determinative, weight to this consideration in favour of revoking the cancellation of the Applicant’s visa.
Conclusion: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: deferred;
(b)extent of impediments if removed: limited weight;
(c)impact on victims: neutral;
(d)links to the Australian community: moderate but not determinative. This includes:
(i)the strength, nature, and duration of ties to Australia; moderate; and
(ii)the impact on Australian business interests: neutral;
(e)Potential prolonged or indefinitie detention: moderate weight.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
Primary considerations:
(a)Protection of the Australian community: significant weight against revocation of the cancellation of the Applicant’s visa;
(b)Family violence: neutral;
(c)Best interests of minor children: significant weight in favour of Applicant;
(d)Expectations of the Australian community: significant weight against revocation of the Applicant’s visa.
Other Considerations:
(a)international non-refoulement obligations: deferred;
(b)extent of impediments if removed: limited weight;
(c)impact on victims: neutral; and
(d)links to the Australian community: moderate but not determinative. This includes:
(i)the strength, nature, and duration of ties to Australia; moderate; and
(ii)the impact on Australian business interests: neutral.
(e)Potential prolonged or indefinitie detention: moderate weight.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I do not exercise the discretion to revoke the cancellation of the Applicant’s visa.
Decision
The decision under review is affirmed.
I certify that the preceding 181 (one-hundred and eighty-one) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President
.......................[sgd].................................................
Associate
Dated: 9 September 2022
Date of hearing: 10-11 August Counsel for the Applicant: Paul Cutler Solicitors for the Applicant: Stanley Immigration & Law Pty Ltd Counsel for the Respondent: Kylie McInnes Solicitors for the Respondent: Minter Ellison Annexure A – List of Exhibits
Exhibit 1: Joint Tribunal Book
Annexure B
Decision of the Tribunal of 19 August 2022
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) ) No: 2022/4332 General Division ) Re: CXWW
Applicant
And: Minister for Immigration, Citizenship and Multicultural Affairs
RespondentDECISION
TRIBUNAL: A G Melick AO SC, Deputy President
DATE: 19 August 2022
PLACE: Melbourne
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 26 May 2022 not to revoke the mandatory cancellation of the Applicant’s Class BS Subclass 801 Partner visa under section 501CA(4) of the Migration Act 1958 (Cth).
Written reasons will follow.
...........[sgd]..........................................
Deputy President
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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