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

DGYT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3895 (18 November 2022)
Division:GENERAL DIVISION
File Number: 2021/6209
Re:DGYT
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Deputy President Britten-Jones
Senior Member Tavoularis
Date:18 November 2022
Place:Melbourne

The Tribunal affirms the reviewable decision of the delegate notified by letter dated 7 July 2021 to refuse the Applicant’s application for a Protection (subclass 866) visa.
.....[sgd]..................................................
Deputy President Britten-Jones
CATCHWORDS
MIGRATION – citizen of the People’s Republic of China - protection visa application – does not satisfy section 5H(2) and section 36(2C) of the Migration Act 1958 – consideration of the meaning of non-political crime - Applicant committed serious non-political crime in China before arriving in Australia – therefore, does not meet the definition of a refugee - ineligible to be granted a protection visa – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Criminal Code 2002 (ACT)
Extradition Act 1988 (Cth)
Extradition Regulations 1988 (Cth)
Migration Act 1958 (Cth)
CASES
Associated Newspapers Ltd v Wavish (1956) 96 CLR 526
Arquita v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 321; [2000] FCA 1889
C&J Clark Ltd v IR Commissioners [1973] 1 WLR 905
Dhayakpa v the Minister of Immigration and Ethnic Affairs (1995) 62 FCR 556 at 563
FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1; [2014] HCA

Harding v Coburn [1976] 2 NZLR 577
Re Ramirez v Canada (Minister of Employment and Immigration) (1992) 89 DLR (4th) 173; [1992] 2 FC 306)
ZYVZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 28
SECONDARY MATERIALS
D Pearce, ‘Statutory Interpretation in Australia’ 9^th edition LexisNexis
REASONS FOR DECISION
Deputy President Britten-Jones
Senior Member Tavoularis
18 November 2022
INTRODUCTION

DGYT (the Applicant) is a 29-year-old citizen of the People’s Republic of China (China). The Applicant seeks review of a decision (the reviewable decision) made by a delegate of the Minister for Home Affairs[1] (the delegate) pursuant to s 65 of the Migration Act 1958 (Cth)[2] refusing to grant him a Protection (Subclass 866) visa (Protection visa).
[1] The delegate made his decision on 16 April 2021 and it was notified to the Applicant on 7 July 2021. See T-documents, T1, p 8 to 71
[2] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
The Tribunal heard evidence on 13 & 14 December 2021, 11 February 2022 and 28 March 2022. The Applicant and his mother-in-law gave written and oral evidence. A significant volume of documentary material was submitted both prior to and during the hearing of this matter. On 19 July 2022, by consent of the parties, the Tribunal made a direction that the totality of the material relied upon by the Applicant comprised the “Applicant’s Amended Materials” (hereinafter referred to as the Applicant’s Bundle or AB) which was provided to the Tribunal on 29 March 2022 and included a video clip. The Applicant’s Bundle included affidavits from the Applicant and his mother-in-law and exhibits in both Chinese and English. The Respondent did not call any witnesses but relied upon the documents it had lodged with the Tribunal under s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) (the T-documents).
Relevant legislation
There are two legislatively mandated requirements for the grant of a Protection visa under s 36:
Protection visas -criteria provided for by this Act
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 ).
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia's security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receivingcountry, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant.
By operation of s 5H(2)(b), a person cannot be a “refugee” for the purposes of s 36(2)(a) if the Respondent has serious reasons for considering that the person committed a serious non-political crime before entering Australia. Further, a person will not meet the “complementary protection criterion” for the purposes of s 36(2)(aa) and thus also not be eligible for a Protection visa if the Respondent has serious reasons for considering that the person committed a serious non-political crime before entering Australia.[3]
[3] Section 36(2C)(a)(ii).
In the reviewable decision, the delegate found that:
(a)Pursuant to s 5H(1)(a), the Applicant’s claimed fears of harm or persecution upon a return to China were well-founded but that;
(b)Pursuant to s 5H(2)(b), the Applicant could not be found to be a refugee because he had committed a serious non-political crime before entering Australia.
This Tribunal has, pursuant to s 500(1)(c)(ii), the power to entertain this application on the basis that the Applicant did not meet the requirements of s 36(1A)(b) for the grant of a Protection visa.
SOME BACKGROUND facts
On 25 July 2019, the Applicant lodged an application for a protection visa. In a statement and supportive materials accompanying this application for a Protection visa, the Applicant made a number of claims including:[4]
(a)That he had participated in espionage activity in China and Hong Kong;
(b)His involvement in those activities ceased when he received instructions to engage in activity contrary to principles of democracy and human rights in Taiwan such as to imperil Taiwan’s sovereignty;
(c)The Chinese government apparently provided him with false identity documents which he submitted as part of his Protection visa application;
(d)He worked in Hong Kong with an individual (who will be referred to as Mr XX) who was the director-general of a corporate entity funded by the Defence Ministry of Mainland China; and
(e)That this state-funded corporate entity led by Mr XX was apparently engaged in the suppression of democratic advocates in Hong Kong.
[4] T-documents, T6, p 418 to 434.
The Applicant further claimed that this suppressive and disruptive activity in Hong Kong saw him engaged in:
(a)The infiltration of universities;
(b)The theft of military intelligence;
(c)The purchase of weapons for transport to China;
(d)The receipt and actioning of instructions from the Chinese Communist Party (CCP);
(e)Infiltration and manipulation of Taiwanese electoral processes; and
(f)The embezzlement of Taiwanese public assets through corporate espionage activities which he had been instructed to engage in.
The Applicant then made his claims public:[5]
(a)In October 2019, he gave details of his claimed espionage activities to a Chinese media outlet in Australia;
(b)On 23 November 2019, he made similar claims to the Australian print media via the publication of an article in the Sydney Morning Herald; and
(c)On 24 November 2019, the Applicant recounted his above-described claims of espionage activity on prime-time Australian national television via Channel 9’s 60 Minutes program.
[5] T-documents, T14.
On 24 November 2019, the Chinese Embassy in Australia issued a press release which included as follows:
On April 19, 2019, the Shanghai police opened an investigation into [the Applicant] who allegedly cheated 4.6 million yuan (about 654,339 U.S. dollars) from a person surnamed Shu through a fake investment project involving car import in February, the statement said.
[The Applicant] left for Hong Kong on April 10, carrying a fake Chinese passport and a fake permanent resident ID of Hong Kong, it added. The Shanghai police said they are investigating this case.
[The Applicant] was reported by some foreign media including The Sydney Morning Herald to have defected to Australia and confessed that he had worked as a secret agent in Hong Kong and Taiwan…[6]
[6] T-documents, p 581.
On 27 November 2019, the Applicant engaged with the relevant delegate of Respondent in a mandatory interview relating to his Protection visa application.
On 9 December 2019, the Applicant provided post-interview submissions to the delegate in which he sought to deny the allegations of fraud raised in the abovementioned press release of the Chinese Embassy. The Applicant asserted that, instead of committing a fraud, he was in fact the victim of a fraud carried out by Mr XX because the Applicant refused to engage in further espionage activities for him.
On 23 January 2020, the abovementioned victim of the alleged fraud, Mr Shu, brought an ex-parte application in the Supreme Court of New South Wales seeking a freezing order over the assets of the Applicant and his wife. In supportive affidavit material, Mr Shu claimed to be owed $3 million.[7]
[7] T-documents, p 744.
On 24 January 2020, the Supreme Court of New South Wales granted a mareva injunction:
[5] An order against each and both of the first defendant and second defendant in the nature of freezing orders pursuant to rules 25.11, 25.12 and 25.14 of the UCPR, or the court's inherent jurisdiction in terms of the Draft Order annexed to this summons and marked 'A'…[8]
[8] T-documents, p 747; the “first defendant” is the Applicant’s wife; the “second defendant” is the Applicant.
On 3 June 2020, default judgement was made in favour of Mr Shu. The Applicant and his wife were ordered to pay a total of $3,596,848. The Applicant and his wife said that they were unable to file a defence in the Supreme Court proceedings because of a lack of funds to retain lawyers.[9]
[9] Applicant’s closing written submissions dated 4 April 2022 at [49].
On 16 June 2020, the Applicant participated in a second interview as part of his Protection visa application.
On 7 July 2021, the Applicant was notified of the reviewable decision by which his application for a Protection Visa was refused.[10]
[10] T-documents, T1, p 8.
The issues
The Respondent contends that the Applicant meets s 5H(1) and is a “refugee” but he fails to satisfy s 5H(2)(b) because there are “serious reasons” for considering that he committed a “non-political” crime “before entering Australia”. The Respondent adopts a similar position with reference to the Applicant’s failure to meet the complementary protection criterion in s 36(2C).
The Applicant contends that the exclusionary effects of s 5H(2)(b) and 36(2C)(a)(ii) do not apply to him. In order to reach such a finding, we must determine whether there are serious reasons for finding that the Applicant committed a serious non-political crime before entering Australia.
THE EVIDENCE RELEVANT TO THE ALLEGED FRAUD
The affidavit of Xin Shu dated 23 January 2020 filed in the Supreme Court proceedings contains allegations of the fraud which are relied upon by the Respondent in claiming that the Applicant’s behaviour constituted a serious crime. We take into account that Mr Shu did not give oral evidence before the Tribunal and that he was not cross examined on his affidavit. However, as we find below, much of his affidavit evidence is not in dispute and therefore can be relied upon.
Mr Shu deposes in his 23 January 2020 affidavit to the effect that:[11]
[11] T-documents, T43, p 736.
(a)In about 2013 he was introduced to the Applicant’s wife in Sydney because they were both members of a Chinese organisation known as “Chinese volunteer Australia”;
(b)In about 2015 he assisted the Applicant’s wife in obtaining an internship in Sydney as a salesperson in a wine company;
(c)In about September 2018 the Applicant’s wife asked him to lend her 300,000 Yuan to pay the land tax required for settlement on a property in Shanghai (the Shanghai Property) on the basis that the loan would be repaid within seven to ten days;
(d)On 21 September 2018, the Applicant’s wife sent Mr Shu a message containing an image of the Applicant’s bank account details for the purpose of him transferring the sum of 300,000 Chinese Yuan (Yuan) to him;
(e)On 25 September 2018, Mr Shu transferred the sum of 300,000 Yuan from his father’s bank account to the Applicant’s bank account;
(f)On or about 29 September 2018, the Applicant’s wife introduced Mr Shu to the Applicant through the messaging application WeChat. Between 2 October and 10 October 2018, the Applicant and Mr Shu communicated through WeChat and the Applicant informed Mr Shu of an investment opportunity in a business project of transporting luxury cars from Germany to China for sale in China (the Car Project) which would purportedly provide a return of 26 million Yuan by the end of February 2019.
(g)Mr Shu offered to invest 1 million Yuan in the Car Project which would include the 300,000 Yuan already transferred. Between 8 and 10 October 2018, Mr Shu transferred 722,837 Yuan into the Applicant’s bank account.
(h)Between 15 and 16 October 2018, the Applicant and Mr Shu discussed a further 6 million Yuan investment by Mr Shu in the Car Project;
(i)On 19 October 2018, Mr Shu entered into a written Share Trust Agreement[12] with the Applicant for him to invest 6 million Yuan for 42.85% of the shares in Duoda Innovation Investment and Management Co Ltd (Duoda Innovation) which the Applicant stated was the company that held the contract for the Car Project;
[12] This is a reference to the Entrusted Shareholding Agreement between the Applicant and Mr Shu dated 19 October 2019 and exhibited to the Applicant’s affidavit and marked WL-86, Applicant’s Bundle (AB) p 87 - 91.
(j)Between 17 October 2018 and 30 January 2019, the Applicant transferred the sum of 6,246,326 Yuan to the Applicant’s bank account;
(k)The Applicant provided Mr Shu with copies of bank transaction records purporting to show that he had transferred 14 million Yuan for the purposes of the Car Project;
(l)In late-February, the Applicant sent to Mr Shu, via WeChat, an image of what appeared to be a text message from the Bank of China advising that a transfer to him of 30,000,000 Hong Kong Dollars (HKD) was in process. The Applicant then informed Mr Shu that the sum of 30,000,000 HKD was frozen by the Chinese government and had been returned to the original account.
(m)In late February 2019, the Applicant advised Mr Shu that he and his wife needed more time to pay the outstanding money. It was agreed between them that the total outstanding money due to Mr Shu was 14,957,428 Yuan and that to secure this money, a mortgage would be granted over the Shanghai Property, with interest paid at 2% per month;
(n)Mr Shu received the sum of 2,898,227 Yuan from the Applicant in March 2019 but no further monies have been paid and nor has the mortgage been granted;
(o)In late March 2019, Mr Shu spoke to the Applicant and his wife who said that they were in Australia but agreed to enter into a written loan agreement reflecting the amount outstanding;
(p)On 9 April 2019, Mr Shu met the Applicant and his wife in front of the Shanghai Property but they were refused entry. Later that evening Mr Shu entered into a written loan agreement with the Applicant and his wife;
(q)Between 10 and 17 April 2019, Mr Shu attempted to contact both the Applicant and his wife but could not contact them. Mr Shu attended at the Shanghai Public Security Bureau to report the conduct of the Applicant and his wife;
(r)Mr Shu was informed by the Shanghai Public Security Bureau that:
(i)The Applicant and his wife are not and never were the owners of the Shanghai Property;
(ii)The documents provided by the Applicant purporting to show ownership of the Shanghai Property are fraudulent documents;
(iii)The image of the 30,000,000 HKD receipt was a fraudulent document;
(iv)The Chinese police would be charging the Applicant and his wife “for swindling’' Mr Shu.
(s)Mr Shu believes that the Shanghai Property is not owned by the Applicant or his wife and that the money he provided to the Applicant was not invested in the Car Project;
(t)A “Notification of Filing” records that the Shanghai Public Security Bureau will be filing a criminal case against the Applicant and his wife.
Mr Shu’s affidavit was filed in the Supreme Court of New South Wales in support of an application for freezing orders over the assets of the Applicant and his wife. The freezing orders were made on 24 January 2020.
The Applicant’s wife filed an affidavit[13] in the Supreme Court proceedings. The Applicant’s wife deposed in much more detail than in the affidavit of Mr Shu regarding the dealings with Mr Shu. Despite stating that “the evidence that Mr Shu provided is undependable”, she confirmed the key events deposed to by Mr Shu in his affidavit namely that:
(a)She asked Mr Shu to lend money and that he transferred 300,000 Yuan to the Applicant’s bank account on 25 September 2018;
(b)She introduced Mr Shu to the Car Project which involved an investment of 14 million Yuan with a return of 26 million Yuan;
(c)Mr Shu initially agreed to invest 1 million Yuan (which included the loan of 300,000 Yuan) and then agreed to invest 6 million Yuan;
(d)Mr Shu was late in paying his agreed investment but on, “9 Nov 2018, ten days late, Mr Shu paid out the balance”; and
(e)On 4 March 2019, the Applicants stated that the “Bank of China received notification of the money in transition but never received the money”.
[13] T-documents, T45, Applicant’s wife’s affidavit p 749.
The Applicant’s wife also deposed:
23 Nov 2019, when the news of [the Applicant’s] defects to Australia was reported, Shanghai police published a statement said [the Applicant] is a fraud and owes Xin Shu 4,600,000 Yuan, the number is inconsistent with the AU$3,200,000, which he submitted to NSW supreme court. This shows his words cannot be trusted.[14]
[14] T-documents, T45, Applicant’s wife’s affidavit at p 762.
The Applicant does not deny that monies are owing to Mr Shu by him and his wife. The Applicant says that he has not paid Mr Shu because he has not been paid the promised return on investment from the Car Project.
The Applicant’s evidence relevant to the allegations in Mr Shu’s affidavit is as follows:
(a)In early 2015, the Applicant began working for Duoda Innovation which was a company controlled by Mr XX.[15] He had experience in cultural education training because he had studied painting and founded a studio for students.[16] He met with Mr XX who said his company wanted to target students and to develop what was described as the “Wealth Storm platform”. He met Mr XX’s wife and other business associates, including the CEO of Hong Kong TV. He discussed his remuneration with Mr XX. That was their first meeting;[17]
[15] AB p 346, Applicant affidavit affirmed on 19 November 2022 (Applicant’s affidavit) at [7] and transcript p 33.
[16] AB p 345 – 346, Applicant affidavit at [4] – [5].
[17] AB p 347 - 352, Applicant affidavit [11] – [33].
(b)In September 2015, the Applicant met Mr XX in Hong Kong[18] and thereafter there were numerous trips to Hong Kong where he met the CEO of Hong Kong TV and was tasked with influencing Hong Kong student activists who were seeking independence.[19] Mr XX emphasised to the Applicant that, “the US, Taiwan and China are listening and watching” and that they could not use the company email between them. They usually only communicated by mobile phone or through WeChat;[20]
[18] AB p 352 - 353, Applicant affidavit [34] – [38].
[19] AB p 354 - 358, Applicant affidavit [39] – [51].
[20] AB, Applicant affidavit at p 356 of exhibit 18 incorrectly described as [55] and transcript p 35 and 36.
(c)The Applicant was paid a salary of 20,000 Yuan per month[21] plus commission based on the profits from projects he was working on.[22] The transactions which recorded the payment of salary and commissions were all removed from the Applicant’s bank account statements;[23]
[21] Transcript p 28.
[22] Transcript p 32.
[23] Transcript p 52.
(d)In addition to his espionage activities the Applicant worked on the Wealth Storm platform which was a platform to develop online education;[24] and
[24] Transcript p 31.
(e)From March 2017 the Applicant began working on the Car Project.[25]
[25] Transcript p 39.
Dealings with Mr Shu and the Car Project
(f)On 25 September 2018, Mr Shu paid 300,000 Yuan to the Applicant’s bank account as a loan;
(g)The Applicant told Mr Shu about the Car Project and Mr Shu said he would invest 1 million Yuan up front.[26] The Applicant said that he could subtract the 300,000 Yuan owed to him and invest 700,000 Yuan;[27]
[26] AB p 383, Applicant affidavit [129] – [130].
[27] AB p 383, Applicant affidavit [131].
(h)On 11 October 2018, Mr Shu called the Applicant and said he wanted to invest 6 million Yuan, but Mr Shu then delayed in making the agreed payment.[28] Mr Shu wanted to proceed with the transaction on 18 October 2018 and asked the Applicant if he could borrow the 6 million Yuan.[29] Mr XX agreed to this with a repayment date of 31 October 2018;[30]
[28] AB p 383, Applicant affidavit [133].
[29] AB p 384, Applicant affidavit [134] – [135].
[30] AB p 384, Applicant’s affidavit [136].
(i)At 2.38pm on 18 October 2018 the Applicant received the amount of 6 million Yuan into his bank account from a company controlled by Mr XX.[31] The balance of 8 million Yuan needed for the investment in the Car Project was already in the Applicant’s account.[32] This amount came from profits on previous projects;[33]
[31] AB p 384, Applicant’s affidavit [136] and WL 82 and transcript p 43.
[32] Transcript p 48 line 31.
[33] Transcript p 48 line 14.
(j)On 18 October 2018 the Applicant transferred 14 million Yuan to Duoda Innovation;[34]
[34] AB 384 - 385, Applicant affidavit [137].
(k)The entries recording the transactions for 8 million Yuan, 6 million Yuan and 14 million Yuan have been removed from the Applicant’s bank statements;[35]
[35] Transcript p 47 line 11 and p 48 lines 24 to 26 and lines 37 to 39.
(l)On 9 November 2018, Mr Shu continued to transfer money to the Applicant and the loan money finally arrived in full ten days after the default;[36]
[36] AB p 387, Applicant affidavit [148].
(m)On 25 February 2019, Mr XX informed the Applicant by email that he had transferred $30,070,000 HKD (approximately 26 million Yuan) through his wife’s bank account in Hong Kong. The Applicant received an SMS notification from the Bank of China advising of the remittance.[37] Mr XX then sent an email to the Applicant explaining that the payment had been returned due to a problem with the bank information;[38]
[37] AB p 407, Applicant’s second affidavit affirmed on 12 December 2021 (Applicant’s second affidavit) [6].
[38] AB p 407, Applicant’s second affidavit [7].
(n)The Applicant alleges that Mr XX forfeited the investment sum of 14 million Yuan as retribution for the Applicant emigrating to Australia and refusing to engage in further espionage activities for him;[39]
[39] AB p 372 - 373 and 377 respectively, Applicant affidavit [93] and [106]
(o)The Applicant told Mr Shu that he was willing to take personal responsibility if Mr Shu did not get his money back because of Mr XX not transferring the Car Project income to the Applicant;[40]
[40] AB p 377, Applicant affidavit [107].
(p)Some time in March or April 2019, the Applicant offered the Shanghai Property as security for the loan and the return on investment;[41]
[41] Transcript p 57 lines 8 to 18 and p 82.
(q)At the beginning of April 2019, as Mr Shu and the Applicant still had not received the money, the Applicant and his wife flew to Shanghai to prepare for the arrangement of the Shanghai Property with Mr Shu. The day after arriving in Shanghai, the Applicant arrived at the Shanghai Property Exchange Centre with Mr Shu and tried to do a pledge. The parties made enquiries with the Exchange Centre and found out that the Shanghai Property was not in the name of the Applicant’s wife;[42]
[42] AB p 392, Applicant affidavit [174].
(r)In mid-June 2019, the Applicant met with Mr Shu in Sydney and told him, “I’m going to apply for a protection visa in Australia. I want to expose what [Mr XX] and the others are doing”;[43]
[43] AB p 394 - 395, Applicant affidavit [180].
(s)The Applicant made numerous payments to Mr Shu from June to October 2019.[44]
[44] AB p 393 - 394 , Applicant affidavit [178].
The Shanghai Property
(t)The Applicant’s wife became pregnant in 2017 and Mr XX said that he could help them buy a property in Shanghai, namely the Shanghai Property.[45] They chose a property and told Mr XX who said, “Ok, I’ll do it for you”. A month later, Mr XX said, “You’d better buy this property in your wife’s name”.[46] On 1 March 2018, the Applicant’s wife transferred a deposit of 2 million Yuan to COFCO Real Estate Group (COFCO) as recorded in the exhibit to the Applicant’s affidavit, marked WL-103.[47] In March 2018 the Applicant transferred 4.67 million Yuan (10% deposit) to COFCO through his wife’s bank account;[48]
[45] AB p 347 - 375, Applicant affidavit [99] – [100].
[46] AB p 375 - 376, Applicant affidavit [104].
[47] AB p 408, Applicant’s second affidavit [11] and WL-103.
[48] AB p 377, Applicant’s affidavit [108].
(u)Mr XX transferred to the Applicant’s account the money to make the purchase.[49] On 20 September 2018 the Applicant received an invoice for the purchase of the Shanghai Property which recorded the purchase price of 46.7 million Yuan;[50]
[49] Transcript p 53.
[50] AB p 377, Applicant’s affidavit [109] and WL-84.
(v)The Applicant needed to pay another 3% purchase tax of 1,401,000 Yuan to obtain the property certificate:[51]
[51] AB p 377 - 378, Applicant affidavit [109] – [110].
The sale of the three properties would generate a total of over RMB 1.4 million, which was just enough to cover the purchase tax in Shanghai.[52]
[52] AB p 377 - 37, Applicant affidavit [110].
(w)As a result of a dispute with the developer, the Applicant was required to pay legal fees of roughly 300,000 Yuan before the three properties could be settled:[53]
So I need the RMB300,000 to be paid into a court-appointed account to settle the final payment for the three properties before I can legally trade the three properties to get the money for them and pay the 3% stamp duty on the total amount of the property in Shanghai (approximately 1.4 million).[54]
(x)In September 2018, the Applicant told his wife that they needed to find another 300,000 Yuan for the purchase tax and, much to his surprise, his wife borrowed the money from Mr Shu;[55]
(y)The Applicant paid the money from the sale of the three properties to his wife who then paid the purchase tax amount of 1.4 million Yuan.[56] The Shanghai Property ownership certificate was then issued and sent to the residence of the Applicant’s father-in-law;[57]
(z)In April 2019, the Applicant flew to China with his wife, willing to mortgage the Shanghai Property to return the money to Mr Shu. On 8 April 2019, they made an appointment to go to the Real Estate Trading Centre to get a mortgage on the Shanghai Property.[58] He met with Mr Shu and others to apply for the mortgage and was shocked to be told that the property no longer belonged to his wife. He immediately contacted the wife of Mr XX and asked why the Shanghai Property did not belong to him. The Applicant’s wife told him that it was Mr XX who, “made an arrangement of all your stuff” because Mr XX was afraid that the Applicant was emigrating to Australia and would not come back;[59]
(aa)The Applicant does not know if Mr XX is the owner of the Shanghai Property, but he did something to prevent the property from being owned by him. Mr XX’s wife told the applicant that Mr XX had “done something” and is behind all these things.[60] The Applicant went to the Chinese authority with Mr Shu and provided them with the certificate of title for the Shanghai Property but was told that there was something wrong with the certificate.[61] He also provided them with a copy of the invoice for the full purchase price;[62] and
(bb)On 10 April he provided the property certificate and his marriage certificate to Mr Shu.[63]
[53] AB p 378, Applicant affidavit [111].
[54] AB p 378, Applicant affidavit [111].
[55] AB p 381 - 382, Applicant affidavit [120].
[56] AB p 378, Applicant affidavit [112].
[57] AB p 378, Applicant affidavit [112].
[58] AB p 380 – 381 and 392 respectively, Applicant’s affidavit [117] but see also [174].
[59] AB p 378- 380, Applicant affidavit [114]. See also transcript p 59 and p 82 where the Applicant explains that explained that by ‘mortgage’ he meant that he was using the Shanghai Property as security for the payments.
[60] Transcript p 60 lines 7 to 14.
[61] Transcript p 65.
[62] Transcript p 66.
[63] AB p 381, Applicant’s affidavit [118].
SOME FACTUAL FINDINGS

We pause to make findings of fact as follows with respect to the claims made in Mr Shu’s affidavit. The Applicant denies engaging in any misleading or deceptive conduct and any fraud but it is apparent from the Applicant’s Statement of Facts, Issues and Contentions dated 19 November 2021 at paragraphs 16 to 53 that there is no significant dispute about much of the factual substratum deposed to by Mr Shu. For example, there is no dispute that Mr Shu transferred considerable sums of money to the Applicant for his investment in the Car Project based on the representations of the Applicant and his wife of very significant returns. There is no dispute that, despite the offer from the Applicant, the Shanghai Property was not available to be mortgaged in favour of Mr Shu and that the investment funds have not been repaid. There is no dispute that as at November 2019 the Shanghai police published a statement that the Applicant is a fraud and owes a significant sum of money to Mr Shu.
Given the extent to which the matters deposed by Mr Shu in his affidavit are consistent with the Applicant’s own evidence, we are prepared to accept Mr Shu’s affidavit as strong evidence of the matters deposed to therein. We consider that there is strong evidence to support the following findings:
(a)The Applicant’s wife became pregnant in 2017 and Mr XX said that he could help them buy the Shanghai Property.[64] They chose a property and told Mr XX who said, “Ok, I’ll do it for you”. A month later, Mr XX said, “You’d better buy this property in your wife’s name”;[65]
[64] AB p 374 - 375, Applicant affidavit [99] – [100].
[65] AB p 375 - 376, Applicant affidavit [104].
(b)The Applicant’s wife had formed an acquaintance with Mr Shu and asked him if she and her husband could borrow 300,000 Yuan for the purpose of paying a tax liability arising from the purchase of the Shanghai Property. Mr Shu agreed and paid 300,000 Yuan to the Applicant’s bank account on 25 September 2018;
(c)The sum of 300,000 Yuan was used by the Applicant to pay a liability for legal fees arising from a dispute with the developer of three properties unrelated to the Shanghai Property. The money paid by Mr Shu was not used to pay the purchase tax liability on the Shanghai Property which, on the Applicant’s own evidence, was for an amount of 1,401,000 Yuan. It follows that the Applicant’s wife misled Mr Shu about the purpose for making the loan;
(d)In late September 2018, the Applicant’s wife introduced Mr Shu to the Applicant who informed him of an investment opportunity in the Car Project which would provide a prospective return of 26 million Yuan by the end of February 2019. At first, Mr Shu said he would invest 1 million Yuan (less the 300,000 Yuan loan) but on 11 October 2018 he agreed to invest 6 million Yuan. The total investment in the Car Project was 14 million Yuan. The Applicant would provide the balance of 8 million Yuan;
(e)The investment vehicle for the Car Project was Duoda Innovation, a company controlled by Mr XX. On 19 October 2018, Mr Shu entered into a written Entrusted Shareholding Agreement[66] with the Applicant which recorded Mr Shu’s entitlement to a 42.85% share of the Car Project of Duoda Innovation;
[66] AB p 114, WL-86.
(f)Between 17 October 2018 and 30 January 2019, the Applicant transferred the sum of 6,246,326 Yuan to the Applicant’s bank account;
(g)The Applicant provided Mr Shu with a copy of his bank transaction record[67] purporting to show that he had transferred 14 million Yuan on 18 October 2018 for the purposes of the Car Project;
(h)In late February the Applicant sent to Mr Shu via WeChat an image of what appeared to be a text message from the Bank of China advising that a transfer to him of 30,070,000 HKD was in transit.[68] The Applicant then informed Mr Shu that the sum of 30,070,000 HKD was frozen by the Chinese government and that it had been returned to the original account.
(i)In late February 2019, the Applicant advised Mr Shu that he and his wife needed more time to pay the outstanding money. It was agreed between them that the total outstanding money due to Mr Shu was 14,957,428 Yuan and that to secure this money, a mortgage would be granted over the Shanghai Property, with interest payable at 2% per month;
(j)Mr Shu received the sum of 2,898,227 Yuan from the Applicant in March 2019 but no further monies have been paid, nor has the mortgage over the Shanghai Property been granted in favour of Mr Shu;
(k)In late March 2019, Mr Shu spoke to the Applicant and his wife who said that they were in Australia but agreed to enter into a written loan agreement reflecting the amount outstanding;
(l)In early April 2019, the Applicant offered the Shanghai Property as security for the amount outstanding. The Applicant, his wife and Mr Shu met at the Real Estate Trading Centre.[69] The Applicant and his wife told Mr Shu that a mortgage could not be granted as the Shanghai Property was not in the name of the Applicant’s wife. Later that evening Mr Shu entered into a written loan agreement with the Applicant and his wife;
(m)On 18 April 2019, the Applicant attended the Shanghai Public Security Bureau and provided a detailed report of the conduct of the Applicant and his wife. The Shanghai Public Security Bureau told Mr Shu that documents purporting to show ownership of the Shanghai Property and transfer of funds were fraudulent documents;
(n)Mr Shu believes that the Shanghai Property was never owned by the Applicant or his wife and that the money he provided to the Applicant was not invested in the Car Project;
(o)A “Notification of Filing” records that the Shanghai Public Security Bureau will be filing a criminal case against the Applicant and his wife. On 23 Nov 2019, the Shanghai police published a statement which said that the Applicant is a fraud and owes Mr Shu 4.6 million Yuan.
[67] AB p 111 and 59 respectively, WL-83 (Chinese version) and WL-29 (English translation).
[68] AB p 407, Applicant’s second affidavit at [6].
[69] Also referred to by the Applicant as the Shanghai Property Exchange Centre.
In our view, the critical and most contentious facts relate to whether:
(a)The Applicant or his wife were the owner of the Shanghai Property (at any stage); and
(b)The Applicant invested Mr Shu’s money in the Car Project (or whether the Applicant transferred the 14 million Yuan to Duoda Innovations for this purpose).
The parties placed considerable emphasis on the evidence relating to whether the Applicant was employed with Duoda Innovations and Mr XX. We acknowledge that the evidence in relation to the Applicant’s employment status and his role with Mr XX and Duoda Investments is contentious and not clear. However, we do not consider this to be an essential element of the alleged fraud and we have not attempted to make findings of fact in this regard.
In our determination as to whether there are serious reasons for considering that the Applicant has committed a serious non-political crime before entering Australia, we agree with the way that the delegate posed the question in the reasons for the reviewable decision as follows:[70]
What is to be considered is whether the applicant or both applicants committed fraud in their dealings with Mr Shu in relation to Mr Shu’s transfer of funds to the applicant for the purpose of a loan to pay the purchase tax on their alleged purchase of the Shanghai property and the later investment in the car project (described by Shanghai police as the Shanghai fraud), and whether these dealings amount to a serious non-political crime.
[70] T-documents, T1, p 59
IS THERE EVIDENCE OF FRAUD?
We consider that the Applicant’s evidence generally lacks credibility. Much of the Applicant’s evidence was either patently implausible, incapable of verification or was otherwise sought to be rationalised on the basis of certain cultural (or similar) differences in how commercial enterprises and ventures are conducted in China compared to Australia.
We have misgivings about the evidence around the Applicant’s purported employment with Duoda Innovations and the nature of his claimed employment in the field of “financial investments” when his tertiary qualifications have been limited to the field of fine arts. There are similar difficulties in the evidence around the nature and extent of the Applicant’s claimed legitimate employment and business relationship with Mr XX and how, if at all, this Tribunal can safely find that the Applicant was engaged in espionage activities at the direction of, or with that individual. However, as set out above, we do not consider it necessary to make definitive findings of fact about employment issues or espionage activities.
We do not accept the Applicant’s evidence around the ownership of the Shanghai Property and the state of his bank statements with particular reference to his evidence around alteration of those bank statements apparently done on instructions he provided to his bankers.
We note that our conclusions with respect to the Applicant’s credibility are consistent with the findings made by the delegate in the reviewable decision. We accept those findings as follows:[71]
Based on a totality of inconsistencies, implausibility, admissions of forgery/procuring false documents and a history of lying to the Department in order to achieve a migration outcome, I find that the Applicant’s credibility is for the most part, unreliable. I find that he (by his own admission) has a tendency to engage in deceptive behaviour if he believes he can justify the outcome, or that the outcome will benefit him in some way. As a consequence of his diminished credibility, in the absence of strong probative evidence or evidence that is objectively verifiable, I am unable to accept the majority of his claims.
[71] T-documents, T1, p 48
Did the Applicant invest Mr Shu’s money in the Car Project?
The evidence relating to the payment of the 14 million Yuan in October 2018 is critical to the outcome of this case because the Applicant says that he transferred the 14 million Yuan to Duoda Innovations on 18 October 2018 in accordance with the agreement to invest by Mr Shu (in the sum of 6 million Yuan) and the Applicant (8 million Yuan).
The Applicant has provided his bank statements[72] for May to November 2018 and transaction receipts[73] for specific transfers.
[72] T-documents, T50, p 921 to 998.
[73] AB, WL-29 at p 58, WL-82 at p 110, WL-83 at p 111.
The 8 million Yuan
The evidence from the Applicant was that he had 8 million Yuan in his bank account which had previously been paid to him by Mr XX for profits derived from “previous car dealing”.[74] There is no documentary evidence of the receipt of this money.
[74] Transcript p 48 line 15.
The 6 million Yuan
The evidence from the Applicant and his wife was that Mr Shu’s investment of 6 million Yuan was provided by Mr XX’s company as a loan to Mr Shu because Mr Shu was unable to transfer his 6 million Yuan investment on time. Consequently, Boss Dream Culture Communication Co Ltd (Mr XX’s company) transferred 6 million Yuan to the Applicant on 18 October 2018. The documentary evidence for this transfer is a Bank of China “voucher” printed at 2.38pm on 18 October 2018 for an amount of 6 million Yuan.[75]
[75] AB, WL-82 at p 110. See also p 3 of the affidavit of the Applicant’s wife at T-documents, T45 p 751 and the Applicant’s 12 December2021 affidavit at [18] p 410 of AB.
The 14 million Yuan
The Applicant said that he transferred the 14 million Yuan to Duoda Innovation on 18 October 2018. The documentary evidence for this transfer is a Bank of China “Client Receipt” for a transfer amount of 14 million Yuan at 3.09pm on 18 October 2018.[76] The Applicant explains that the record of this transfer together with other transactions have been removed from his bank statements on his direction (after being instructed to do so by Mr XX). The Applicant also relies upon photographs of transaction receipts purporting to record the transfer. We will consider this evidence in more detail below.
[76] AB, WL-29. See also Applicant’s 19 November 2021 affidavit at [137] p 384 of AB and the Applicant’s 12 December2021 affidavit at [18] p 410 of AB.
The Bank Statements
The relevant bank statement appears in the material.[77] This bank statement/transaction history is dated 18 October 2018 and records activity on this account during the period 12:50pm to 2:22pm on that day. At the end of this transaction period (i.e. 2:22pm) it is recorded that the sum of 390,103 Yuan appeared in the Applicant’s account. The bank statement is configured such that the relevant columns from the bank account comprise the first, second and fifth columns from the left-hand side. The first column records the date, the second column records the time, and the fifth column records the balance.[78] This bank statement is for the Applicant’s Bank of China account.
[77] See T-documents, T50 at p 966.
[78] T-documents, T50 at p 966..
This bank statement must be contrasted with the specific documents detailing the abovementioned transfers of 6 million Yuan and 14 million Yuan. The Applicant relies upon the Bank of China “voucher” to support his claim that he received the sum of 6 million Yuan into this account at 2:38pm on 18 October 2018.[79] The Applicant relies upon the Bank of China “Client Receipt” to support his claim that he made a transfer from this account in the sum of 14 million Yuan at 3:09pm.[80] Yet there is silence in the bank statements about the inward receipt of six million Yuan and the outward payment of 14 million Yuan.
[79] AB, WL-82 at p 110.
[80] AB, WL-29 at p 58.
Respondent’s analysis of transaction receipts
When considering the Applicant’s Protection Visa application, the delegate made a forensic analysis of the transaction receipts provided by the Applicant. We accept and adopt the reasons of the delegate in the reviewable decision which provide:[81]
The Applicant was questioned at length during the second PV interview regarding the alleged RMB 14 million transfer to [Mr XX]’s company. The Applicant was adamant that he had used his BOC bank account for this transaction, confirmed he only had one BOC account and referred to two other significant transactions between him and [Mr XX]. The proof he provided when pressed at his second PV interview, was a transaction record that he claimed to have printed out “on site" when he made the transfer at the branch. This “picture… a snapshot” of the transaction record was photo which was provided as an attachment to Applicant’s 2’s affidavit. In relation to the transaction receipts for the significant money transfers, a photo of the transaction receipts provided as evidence that these transfers were made and received by the Applicant are located on departmental drives. The photo of these two receipts were then examined by an officer from the Department who performed various open source checks including web-based tools to verify the bank/card numbers (maestro, Luhn check digit, ICBC website). Discrepancies were identified in regards to the bank account purported to belong to [Mr XX]’s company including returning an ‘invalid card number’ result, as well as the BOC verification website stating that the entered digital stamp code and date provided on the bottom of the receipt “do not match”. Further, the bank handling fee charged for processing the alleged RMB 14 million transfer on 18 October 2018 (RMB 50) as appearing on the transaction receipt in the photo does not appear to be consistent with what the BOC charges for processing an amount this large.
A full analysis of the transaction receipts can be found on departmental drives. However, the analysis indicates that the purported transactions that the Applicant claims were made between him and [Mr XX] on 18 October 2018 and on 30 November 2018 were unable to be verified, while most other transactions not in dispute that featured on the Applicant’s BOC bank statements provide to the Department in 2018 were able to be verified using the same methodologies. As a result of not being able to verify the bank transactions and with the Department, I do not accept that these significant money transfers including the RMB 14 million, were made as stated by the Applicant.
[Internal footnotes omitted]
[81] T-documents, T1, p 36 to 37
The Applicant’s explanation for the Bank Statements
The Applicant provided an explanation in his 12 December 2021 affidavit[82] in which he said:
[18] In November 2018 I submitted a bank statement to the immigration office. As I was applying to Mr XX to go abroad, Mr XX asked me not to show any transactions with the company in my bank statements and not to use the real company for my work certificates. So I deleted all the transactions related to Mr XX’s company with the help of my father-in-law’s goddaughter Luyunyi. The RMB 6 million was paid by Boss Dream Culture Communication Co., Ltd, and the RMB 14 million was transferred to the Duoda Innovations & Investment Management Co., Ltd (of which RMB 6 million was invested by Mr Shu) (T751), were not reflected in the bank statements.
[82] AB p 406.
In addition to deleting the transfers of 6 million Yuan, 8 million Yuan and 14 million Yuan, the Applicant gave evidence that he arranged for all the monthly salary entries in the bank account to be deleted. The statements of the bank account were allegedly modified by his father-in-law’s goddaughter so as to remove any reference to Mr XX’s companies. These modifications were made at the direction of Mr XX.[83]
[83] Transcript p 29 lines 20 to 37.
When the Applicant was being interviewed in relation to his Protection Visa application, the Applicant did not provide any details about the goddaughter of his father-in-law modifying the bank statements. The delegate’s reasons in the reviewable decision provide:[84]
Significantly, when the interviewing officer asked the Applicant why none of the transactions appeared in his BOC bank statements, he responded “I don’t know when you start to prepare, to get the bank statement. But if I say they've got a way to delete...to modify the bank transactions...will you trust me if I say so?”
…
The Applicant’s statements are not only highly implausible based on international banking practices, but not possible based on the BOC bank statement provided by the Applicant to the Department. This is because any alteration or modification to the transactions would result in a different balance being generated in the statement itself, that is, the amounts would not tally up. Contrary to the Applicant’s assertions that he had ‘selected’ and deleted transactions before printing them out, the BOC bank statements provided to the Department in 2018 appear to be regular with no inconsistencies, no deletions and all tally up correctly from one day to the next.
By his own admissions, the Applicant’s evolving responses were not particularly credible (“Ok I know that this explanation sounds quite weak.”). On the basis of the foregoing, I reject the claim that the Applicant was able to choose what transactions he wanted to appear in his bank account and do not accept the Applicant’s explanation for why [Mr XX] or any transactions relating to him or his company, do not appear in the Applicant’s BOC bank statements.
[Internal footnotes omitted]
[84] T-documents, T1, p 37 to 38
We accept and adopt the above reasons.
The story of an employee of the Bank of China agreeing to falsify bank records is simply not plausible without further evidence to support this claim.
We reject the Applicant’s evidence that he arranged for his bank statements to be modified at the Direction of Mr XX.
The Applicant was challenged about the evidence surrounding his bank statements. He stated that he caused the respective 6 million and 14 million Yuan funds to simply be deleted from his bank statements because those payments evidenced commercial activity between him and Duoda Innovations which, according to the evidence of the Applicant, Mr XX has prohibited him from doing. His totally implausible explanation for the absence of any reference to these two transactions in the running balance history of the bank statement was expressed in cross-examination as follows:
MS THOMPSON: These two transactions, the 6 million Yuan and the 14 million Yuan, they occurred in between those two timestamps, is that correct? Yes?
INTERPRETER: Yes, correct.
MS THOMPSON: Those were the two transactions that you asked to have removed from this record?
INTERPRETER: Yes.
MS THOMPSON: Just in that time period between 14.22 and 16.08, were there any other transactions that you can recall in that time period that you asked to have removed?
INTERPRETER: Yes, I can't remember, because maybe there is some small transaction occurring, but these two transactions because I do have the receipt, that's why I can remember.
MS THOMPSON: You said in your evidence that you had the 6 million Yuan come into your bank account, you put that with 8 million Yuan you had and then you transferred 14 million Yuan out of your bank account. That's correct, right?
INTERPRETER: Correct.
MS THOMPSON: Are you able to explain why the balances in that fifth column across, which you confirmed were the running balances in relation to your account, why don't they reflect these big adjustments?
INTERPRETER: Because if you do remove some transaction entry the computer just automatically just adjust those has been removed.[85]
[85] Transcript, 13 December 2021, p 47, lines 1-33.

We reject the evidence of the Applicant that the deposit of this additional 8 million Yuan into the account was also “removed” from the transaction history at the instigation of the Applicant. His totality implausible evidence about this additional 8 million Yuan was expressed thus in cross-examination:
MS THOMPSON: Thank you. Mr Applicant, you said that you had combined the 6 million Yuan with 8 million that was in your account in order to make the $14 million transfer. So, it's apparent that you had 390,103 Yuan in your bank account before these transactions were made. Can you explain where that 8 million Yuan came from?
INTERPRETER: That's the - 8 million is coming from my previous profit, the previous car dealing.
MS THOMPSON: Yes. But the transaction receipt that you've provided suggests that in about a half-an-hour period between 2.38 pm on 18 October 2018 you received 6 million Yuan and then by 3.09 pm on the same day, you had transferred 14 million Yuan out of your bank account. So, where did that 8 million Yuan come from because it is not in your bank account on 18 October?
INTERPRETER: That 8 million transaction also been removed because that's coming from the stealing, stealing from the company, so that entry has also been removed.
MS THOMPSON: That money was paid into your account during that half-hour period?
INTERPRETER: That money I already have in my account.
MS THOMPSON: Mr Applicant, I put to you that it's not apparent in your account based on the account balances that appear immediately before that transaction took place?
INTERPRETER: I told you before, because every transaction that's related to company, I have asked the bank staff to remove, that's explain why the $8 million not appear on my account. I want to give you another example, because in China, it's quite a normal practise, just like you ask the bank staff to adjust the total amount in order to get the home loan mortgage.[86]
[86] Ibid, p 48, lines 8-41.
The Applicant’s explanations about how the 8 million Yuan shortfall materialised must be completely rejected. There is no probative evidence that those funds were ever introduced into the subject account from which the Applicant said he transferred 14 million Yuan. Further, there is insufficient evidence to establish that he sourced the 8 million Yuan shortfall from his “previous profit” in relation to car dealing activities. There is no corroborative evidence of this profit and it is not supported by his bank statements.
We reject the Applicant’s contention that it is a matter of regular commercial custom and banking practice in China for one to simply contact their bank and instruct banking staff to amend historical bank statements. By their very nature, banks are institutions that operate on very precise record-keeping and recording of transactions. No reputable and viable banking institution would tolerate a position where its customers could cause their historical transactional history to be modified.
To the extent the Applicant may suggest, “it’s quite a normal practice” for banking customers in China to alter their transactional history, he has produced no independent evidence from any expert in Chinese banking to explain how such a practice is in any way “normal” in China.
Accordingly, the Applicant has not provided satisfactory evidence of the transfer of the 14 million Yuan. Further, we are not satisfied that the Applicant has adequately demonstrated how he was in any position to arrange for the modification of his bank statements to purportedly conceal his claimed commercial relationship with Mr XX and/or Duoda Innovations.
The Respondent submits that if the Applicant is unable to establish on the evidence that the money was in fact paid to Duoda Innovations in accordance with the agreement to invest in the Car Project, then it is open to the Tribunal to find that the money was never invested as agreed and was fraudulently misapplied.
It should have been a very simple process for the Applicant to point to a record in his bank statements of the receipt of the investment monies and then the transfer to Duoda Innovations, but bank statements provided by him do not record those transactions. The Applicant has failed to provide probative and credible evidence to support his version of the events.
The evidence around the Applicant’s claimed bank transaction history referrable to his claimed attempts to conceal any commercial or any other connection with Mr XX or Duoda is thus not credible. All that remains, in terms of bank statement evidence, is the bank statement history provided by the Applicant as part of his application for a Visitor visa. Having regard to that specific category of his bank statements, the logical finding must be that those bank statements were genuine and were not altered by the goddaughter of his father-in-law.
The judgment/order of the Supreme Court of NSW made on 24 January 2020
The Applicant contends that the freezing order and default judgment provide further evidence of fraudulent conduct. We reject that contention as the Applicant does not deny owing money to Mr Shu. The existence of a judgment debt (in circumstances where it is not denied) does not provide evidence to support a finding of fraud.
Was the Shanghai Property owned by the Applicant’s wife?
The evidence relating to the purchase of the Shanghai Property is of a critical nature because the Applicant says that his wife was the owner of the Shanghai Property and that his offer to provide it as security for the unpaid investment funds was genuine. The Respondent contends that if the Applicant is unable to establish on the evidence that his wife was the owner, then the offer to use it as security was in and of itself, fraudulent. It should have been a very simple process for the Applicant to provide documentary evidence of the purchase and therefore ownership at the time the Shanghai Property was offered as security. We will consider this evidence in more detail below.
We have already found that the Applicant’s wife misled Mr Shu in causing him to advance the first payment of 300,000 Yuan. It is plain from the evidence of the Applicant, his mother-in-law, and his wife that Mr Shu had been told that these funds were required for the purpose of paying land tax on a property that the Applicant and his wife held in Shanghai. However, the evidence establishes that these funds were applied towards the settlement of a dispute which, in turn, the Applicant says facilitated the sale of three other properties and the proceeds of those other sales were actually applied to meeting the land tax liability on the Shanghai Property. The Applicant’s evidence about the purpose of the funds was false and lacked credibility.
A similar absence of credibility and further implausibility is to be found in the state of the evidence around the Applicant’s purported ownership of the Shanghai Property. The Applicant said that Mr XX owed him some money which he transferred to the Applicant’s account so that he could purchase the Shanghai Property.[87] The Applicant deposed in his first affidavit that, in March 2018, he transferred 4.67 million Yuan as a 10% deposit to COFCO through his wife’s account.[88] There is no supporting documentation to corroborate this payment. The Applicant’s evidence in his second affidavit differed because he said that on 1 March 2018, the Applicant’s wife transferred a deposit of 2 million Yuan to COFCO (as recorded in an exhibit to the applicant’s affidavit marked WL-103). [89]
[87] Transcript p 40 and p 53.
[88] AB p 377, Applicant’s affidavit [108].
[89] AB p 413 and p 143 respectively, Applicant’s second affidavit [11] and WL-103 payment receipt.
The Applicant deposed in his first affidavit that on 20 September 2018 he obtained the invoice for the purchase of the Shanghai Property.[90] The invoice contains a reference to an amount of 46.7 million Yuan but there is no record of the purchase price being paid (either in the form of a bank statement or a bank transaction receipt). The Applicant said that a week later his wife paid the purchase tax of 1,401,000 Yuan,[91] but again, there is no supporting documentation for that payment. The Applicant deposed that the Shanghai Property ownership certificate was sent to his father-in-law’s residence on 28 September 2018.[92] The explanation for not having the ownership certificate is that on 10 April 2019 he said that he handed it to Mr Shu.[93] Mr Shu makes no mention of that in his affidavit. Instead, he states that on 10 April 2019, he had located a prospective purchaser of the Shanghai Property and had arranged to meet the Applicant and his wife. Instead of helping to facilitate the purchase, Mr Shu states that both the Applicant and his wife left the meeting and were unable to be contacted during the following week.[94]
[90] AB p 377 and p 85 respectively, Applicant’s affidavit [109] and WL-84.
[91] AB p 378, Applicant’s affidavit [112].
[92] AB 378 and 37 respectively, Applicant’s affidavit [112] and [105].
[93] AB 381 and 392 respectively, Applicant’s affidavit [118] and [174].
[94] T-documents p 743, Shu affidavit [40] and [41].
In summary, the only documentary evidence of the purchase and ownership of the Shanghai Property is a receipt for the deposit of 2 million Yuan, dated 1 March 2018,[95] a copy of an invoice for the sale of real estate with an issuing date of 20 September 2018[96] and a short video of someone turning the pages of a Chinese document which purportedly is the certificate of title.[97] These documents are said to be the proof of the purchase of the Shanghai Property.[98] We do not accept that this evidence establishes that the Shanghai Property was ever owned by the Applicant’s wife. We find it more likely that the Shanghai Property was owned by Mr XX at all times which explains why the Applicant, “found out that the property was not in the name of [his] wife” when he went to the Shanghai Property Exchange Centre.[99] It logically follows that the Applicant had no legal right to mortgage the Shanghai Property or to offer it as security for the repayment of the money owing to Mr Shu.
[95] AB p 143, WL-103.
[96] AB p 112, WL-84.
[97] AB p 376 and p 29 respectively, Applicant’s affidavit [105] and WL-2.
[98] AB p 408, Applicant’s second affidavit [11].
[99] AB p 392, Applicant’s affidavit [174].
It is implausible for the Applicant to now suggest that he genuinely believed he held a proprietary interest, over which title a mortgage could be registered, only to later find, indeed, to be taken by surprise, that he never held any such proprietary interest. He attempts to explain the absence of any proprietary interest in the Shanghai Property on the basis that the authorities in China told him, “there was mistakes contained in the certificate [of title]” and that even though they told him about these “mistakes” they refused to provide him with any further details in this regard. [100] This is implausible explanation of the absence of any proper evidence of a proprietary interest and must be rejected.
[100] Transcript, 14 December 2021, p 83, lines 5-16, lines 23-41, lines 45-47; p 84, lines 6-8.
The further implausible dimension the Applicant seeks to introduce into his evidence about the claimed difficulties with the certificate of title is to purport to blame a third party. In his evidence given in cross-examination he says, “…I wondered if [Mr XX] has cancelled the certificate.”[101] His further evidence was that Mr XX was apparently capable of and had the means to do something like this and that such a thing (i.e., the arbitrary deprivation of someone’s proprietary rights in real property) is something that can occur in China. Our views and findings about this evidence are similar to our views about the Applicant’s evidence around unilateral alteration of bank certificates in China.
[101] Transcript, 14 December 2021, p 84, lines 36 - 37
We consider it very unlikely that any proprietary interest held by the Applicant or his wife could be extinguished or cancelled by Mr XX:
MS THOMPSON: Okay. So what were you told about the mistakes in the title?
INTERPRETER: Not much, but only that the property is not under the name of the wife. So Shu Xin got his friend to check with the office as well, but was told that he was not a party and due to privacy he was not allowed, you know, further information.
MS THOMPSON: So what did you do following that? Did you make inquiries?
INTERPRETER: Okay, so like I said in my affidavit, the first thing that I thought of was I wondered if [Mr XX] has cancelled the certificate.
…
INTERPRETER: Yes, but what I want to demonstrate was that he, [Mr XX], was able to - he was capable of doing something like this, and this is something possible to happen in China.
MS THOMPSON: Immediately after finding out that you didn't own the property, did you make any inquiries at the real estate centre you were at? Did you make any inquiries while you were there?
INTERPRETER: We have - I have asked and I have authorised [Mr XX] to inquire, and the certificate was left with him. So he was my first person to ask any further. Shu Xin.
WITNESS: Yes.
MS THOMPSON: But when he was told that they couldn't give him information because he wasn't a party, did you make any further inquiries after that?
INTERPRETER: …So in paragraph 93 in my statement I have explained that Gong Qing has told me at the airport that it was [Mr XX] who did it.[102]
[102] Transcript, 14 December 2021, p 84, lines 25-37; p 85, lines 31-47; p 86, lines 2-3.
The Applicant was asked why he did not refer something as serious as the unilateral deprivation of a person’s claimed proprietary interest over a property to the authorities. According to his evidence, “it won’t help” because, “this truly was what happened as it is not something I can rebut or fight in China”.[103] It was put to him that he, in fact, never owned the Shanghai Property and his response to that suggestion was both unconvincing and implausible:
MS THOMPSON: Why didn't you think about going to authorities - police or government department officials - to ask why your property title had changed?
INTERPRETER: It won't help. If you complain to those authorities in China, it won't help. … .
MS THOMPSON: Okay, but you had evidence of having paid for the property, and you had certificate of title with your wife's name on it.
INTERPRETER: I can understand from an Australian point of view this is incredible, but this truly was what happened and it is not something I can rebut or fight in China.
MS THOMPSON: Well, I put to you, Mr Applicant, that it's completely implausible that the genuine owner of a property wouldn't be able to approach authorities to assert their ownership.
INTERPRETER: I have asked my father-in-law about it and I was told that we can only, you know, leave to [Mr XX] - I have not mentioned it in my first affidavit about my property in Shanghai, because I was still wondering if I can obtain, you know - I can do something about ownership in relation to the Shanghai property.[104]
[103] Transcript, 14 December 2021, p 86, lines 22 – 25.
[104] Transcript, 14 December 2021, p 86, lines 11-34.
Conclusion as to Fraud
Having considered all of the evidence before us, we consider that there is strong evidence of fraudulent conduct by the Applicant in relation to the Shanghai Property and the investment of Mr Shu’s money in the Car Project. There is no dispute that Mr Shu is owed a considerable sum of money and that the Applicant failed to provide him with the security he offered over the Shanghai Property. That in itself may not amount to fraud but there is strong evidence to support a finding that Mr Shu’s money was never invested with Duoda Investments and that the Applicant (or his wife) never owned the Shanghai Property.
CONSIDERATION OF THE ISSUE
The issue for determination, as set out earlier in these reasons, is whether there are serious reasons for considering that the Applicant committed a serious non-political crime. This requires an analysis as to whether:
(a)There are “serious reasons for considering” that the Applicant committed a crime;
(b)The crime is “serious”;
(c)The crime is “non-political” in nature; and
(d)The crime was committed by the Applicant “before entering Australia”.
Whether there are “serious reasons”
The Migration Act does not provide a definition for “serious reasons for considering”. However, the relevant Explanatory Memorandum states at paragraph [1173] that:
Consistent with the Refugees Convention, the threshold for a person to satisfy the paragraphs in new subsection 5H(2) is that the Minister has serious reasons for considering the person is captured by the subsection. ‘Serious reasons for considering’ is not intended to be equated with a level of satisfaction ‘beyond reasonable doubt’ or ‘on the balance of probabilities’ but requires strong evidence.
This Explanatory Memorandum goes on to say that the, “…new subsection 5H(2) is intended to be interpreted consistently with the existing Australian case law in regards to Article 1F of the Refugees Convention”.
Numerous judicial authorities have considered the phrase, “serious reasons for considering”, in the context of Article 1F of the Refugees Convention. In Dhayakpa v the Minister of Immigration and Ethnic Affairs (1995) 62 FCR 556 at 563 (Dhayakpa), French J made the following observations about Article 1F of the Refugees Convention:
Article 1F excludes from the application of the Convention persons with respect to whom there are serious reasons for considering that they have committed the classes of crime or been guilty of the classes of act there specified. The use of the words ‘serious reasons for considering that’ suggests that it is unnecessary for the receiving State to make a positive or concluded finding about the commission of a crime or act of the class referred to. It appears to be sufficient that there be strong evidence of the commission of one or other of the relevant crimes or acts. The precise construction of that phrase does not fall for consideration in the present case as it is not in dispute that the crime relied upon by the Tribunal to ground the rejection of the claim for refugee status was committed.
In Arquita v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 321; [2000] FCA 1889 (Arquita), Weinberg J cited the above passage from Dhayakpa. His Honour then provided the following summary of other relevant cases where the phrase “serious reasons for considering” has been judicially considered:
[40] This dictum by French J was accepted as correctly stating the relevant legal principles in Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 385; 27 AAR 203 by Marshall J at first instance. His Honour said at ALR 388:
Notwithstanding that French J's views about the words “serious reasons for considering” were not central to his reasons for judgment and notwithstanding that Mr Dhayakpa had been found guilty of conspiracy, whereas Mr Ovcharuk has not, I consider his Honour’s approach to the meaning of those words to be highly persuasive.
[41] On appeal, the Full Court in Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 17; 51 ALD 549; 158 ALR 289 also considered the construction of Article 1F. In that context, Whitlam J at 294 observed:
What is most striking to me about Art 1F is the plain, matter-of-fact requirement that there should be “serious reasons for considering that” a person “has committed” a specified type of crime (paras (a) and (b)), or “has been guilty” of the proscribed acts: para (c). Charges or convictions are not required. Indeed, in some cases, even though a person claiming to be a refugee has been charged with or convicted of an offence, it may be perfectly clear that there are no serious reasons to consider that person has committed a crime. In other cases, such facts may be strongly probative of such serious reasons. It all depends on the facts of the particular case.
[42] In W97/164 v Minister for Immigration and Multicultural Affairs [1998] AATA 618 (unreported, AAT, President Mathews, No 12974, 10 June 1998) Mathews J, sitting as President of the AAT, reviewed the authorities governing the meaning to be ascribed to the expression “serious reasons for considering” in Art 1F(b). Her Honour said: ... I do not agree with the standard which was set in Ramirez. I find it difficult to accept that the requirement that there be “serious reasons for considering” that a crime against humanity has been committed should be pitched so low as to fall, in all cases, beneath the civil standard of proof. The seriousness of the allegation itself and the extreme consequences which can flow from an affirmative finding upon it would, in my view, require a decision-maker to give substantial content to the requirement that there be “serious reasons for considering” that such a crime has been committed. The process whereby the seriousness of the allegation influences the level of proof required to substantiate it is well known to Australian courts (Briginshaw v Briginshaw (1938) 60 CLR 336; 44 ALR 334 ; 12 ALJR 100, Helton v Allen (1940) 63 CLR 691; 46 ALR 298; 14 ALJR 196…

Following review of these authorities in Arquita, Weinberg J relevantly concluded that:
[51] It was for the AAT to determine, upon all the evidence, whether Art 1F operated so as to preclude the applicant from being considered for the grant of a protection visa. As Branson J said in Ovcharuk at FCR 186; ALD 561; ALR 301:
Whether there are serious reasons for so considering will depend upon the whole of the evidence and other material before the decision-maker.
[52] I regard the observations of French J in Dhayakpa as being particularly helpful in elucidating the meaning of the expression ‘serious reasons for considering’. It was unnecessary, in accordance with those observations, for the AAT to ‘make a positive or concluded finding about the commission of a crime’. It was sufficient if there was ‘strong evidence of the commission of’ the crime specified.
[53] In my view the applicant’s contention that Art 1F(b) requires the relevant Decision-maker to be satisfied beyond reasonable doubt that the applicant has committed a serious non-political crime cannot be sustained. Nor can his alternative contention that Art 1F(b) requires proof on the balance of probabilities. There is nothing in the language of Art 1F(b) that suggests it should be read as imposing upon a decision-maker an obligation to apply either of these curial standards of proof.
[54] It is sufficient, in my view, if the material before the decision-maker demonstrates that there is evidence available upon which it could reasonably and properly be concluded that the applicant has committed the crime alleged. To meet that requirement the evidence must be capable of being regarded as ‘strong’. It need not, however, be of such weight as to persuade the decision-maker beyond reasonable doubt of the guilt of the applicant. Nor need it be of such weight as to do so on the balance of probabilities. Evidence may properly be characterised as ‘strong’ without meeting either of these requirements.
[55] To the extent that the reasons of Mathews J in W97/164 v Minister for Immigration and Multicultural Affairs; N96/1441 v Minister for Immigration and Multicultural Affairs; and W98/45 v Minister for Immigration and Multicultural Affairs suggest to the contrary, I respectfully disagree.
In FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1; [2014] HCA
26 (FTZK), French CJ and Gageler J at 8–9 [14] said the following with respect to the construction of Article 1F(b):
The qualifying term ‘serious’ indicates that the reasons must be sufficient to support a strong inference…
Underpinning the requirement for strong evidence is a consciousness of the potentially profound adverse consequences of exclusion from the protection of the Refugees Convention for a person otherwise entitled to that protection.
The above authorities concerned Article 1F of the Refugee Convention. However, in ZYVZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 28, Colvin J considered the phrase “significant reasons for considering” in the context of s 36(2C):
[24] I note that at the time of the decisions in Arquita and FTZK, the form of the legislation was to incorporate the provisions of the Convention as expressing Australian law. That form led the Court in FTZK to consider the meaning of the provisions as a matter of international law. Such meaning depends upon the construction which the international community would attribute to the treaty and the application of the principles codified in the Vienna Convention on the Law of Treaties: CRI026 v The Republic of Nauru [2018] HCA 19 at [22].
[25] The present form of the legislation is different. It enacts a provision which reflects the language of the Convention as Commonwealth statute law. However, it may be comfortably concluded that the law was intended to give effect to Australia’s treaty obligations. As explained by Edelman J in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [69]– [71] the scheme for complementary protection was introduced into the Migration Act for the express purpose of conforming its terms to the requirements of the Convention: see also Kiefel CJ, Nettle and Gordon JJ at [1]. Therefore, a construction which accords with those obligations should be favoured: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 38; and Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287 (Mason CJ and Deane J).
[26] For those reasons, the phrase ‘significant reasons for considering’ should be interpreted in the manner described in FTZK.
We are of the view that the Applicant’s conduct, and the evidence he has produced to purportedly explain it, clearly demonstrates that there are serious reasons to believe that the Applicant committed a serious non-political crime prior to arriving in Australia. Our findings set out above with respect to the fraudulent conduct of the Applicant establish that there is strong evidence that the Applicant has committed a fraud by misrepresenting that he would invest Mr Shu’s funds as agreed in the Car Project and by misrepresenting that a mortgage would be granted because he (or his wife) owned the Shanghai Property. The ‘serious reasons’ are supported by the fact (as deposed to by the Applicant’s wife[105]) that the Shanghai police published a statement that the Applicant is a fraud and by the statements of the Shanghai Public Security Bureau made to Mr Shu in April 2019 including that the Chinese police would be charging the Applicant for fraud.[106]
[105] T-documents, T45 at p 762 in the affidavit of the Applicant’s wife.
[106] T-documents, T43 at p 743 and 744 in the affidavit of Mr Shu at [42].
We therefore arrive at the conclusion that there is sufficient evidence before the Tribunal to cause us to have serious reasons for believing this Applicant has committed the crime of fraud.
Whether the crime is “serious”?
In the reviewable decision, the delegate assessed the seriousness of the Applicant’s conduct by reference to relevant provisions of the Chinese criminal law and said the following: [107]
[107] T-documents, T1 at p 54.
In relation to the Chinese authorities threats of charging the Applicant with offences on his return, specifically, the current alleged Shanghai fraud investigation which is understood to relate to Mr Shu and his claims raised in the NSW Supreme Court, whilst noting no such charges have been laid to the Department’s knowledge and an Interpol Red Notice has not been issued for the Applicant, despite a request by China to do so, the possible penalties for fraud offences under Chinese criminal law are:
·Article 266 - “whoever swindles public or private money or property”, depending on the amount, the sentence is a fine, 3-10 years imprisonment, life imprisonment or confiscation of property;
·Article 192 - “unlawfully raises funds by means of fraud”, depending on the amount, attracts a range of penalties between five years imprisonment and death; and
·Section 199 - “whoever commits the crime mentioned in Article 192...if the amount is especially huge”, attracts life imprisonment or death and also confiscation of property.
Based on available country information, in considering the seriousness of the fraud, according to a guide to white collar crime in China published by Thomson Reuters, the severity of relevant penalties are as follows:
Sentencing guidelines appear in the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate regarding Certain Issues Related to Specific Application of Laws in Handling Criminal Cases involving Fraud. For example, Article 1 provides that the value of the property involved in a fraud case will be regarded as "relatively large" if it exceeds RMB3,000, as "huge" if it exceeds RMB30.000, and "especially huge" if it exceeds RMB500,000. Most fraud related crimes incur similar criminal penalties.
[Internal footnotes omitted]
Fraud in the nature of the Applicant’s conduct would be regarded as a crime of significant magnitude in China attracting a custodial sentence up to life imprisonment. Confiscation of the property of convicted fraudsters is also one of the nominated punishments.
We have earlier referred to s 5(1) which does not define what constitutes a “serious non-political crime” in a matter involving s 5H(2)(b). However, s 5(1) defines the terms “serious foreign offence” and “serious Australian offence” to include offences punishable by imprisonment for life or a fixed term or a maximum term of not less than three years.
In the definition of “serious foreign offence” at s 5(1), there is reference to an assumption, “…that the act or omission constituting the offence had taken place in the Australian Capital Territory…” and that, “the act or omission would have constituted an offence…against a law in force in that Territory”.
The Criminal Code 2002 (ACT) (ACT Criminal Code) relevantly contains specific provisions relating to fraud-type conduct. Both the Respondent in its Statement of Facts Issues and Contentions and the delegate in the decision under review have referenced relevant provisions in that legislation that deal with fraud-type conduct. Those provisions comprise:
(a)Section 326 – obtaining property by deception which stipulates a maximum term of imprisonment of 10 years;
(b)Section 332 – obtaining financial advantage by deception which stipulates a maximum term of imprisonment of 10 years;
(c)Section 333 – general dishonesty which provides for a maximum term of imprisonment of five years; and
(d)Section 347 – using false document which provides for a maximum term of imprisonment of 10 years.
We consider that there is strong evidence to support a finding that the Applicant has breached s 326 of the ACT Criminal Code by inducing Mr Shu to pay him money by deceptive conduct. Mr Shu was also told (falsely) that he could safely secure his money over a property the Applicant owned in Shanghai when there is strong evidence that the Applicant never owned the Shanghai Property. The Applicant thus dishonestly and deceptively put these matters to Mr Shu, who, in reliance upon those falsities, acted to his financial detriment.
Second, there is strong evidence to support a finding that, in breach of s 332 of the ACT Criminal Code, the Applicant has obtained a financial advantage from Mr Shu by means of deceptive conduct towards him. The “financial advantage” derived by the Applicant consequent upon deceiving Mr Shu comprises the obtaining of further funds from Mr Shu for investment in the Car Project which are yet to be repaid to Mr Shu.
Third, there is strong evidence to support a finding that, in breach of s 333 of the ACT Criminal Code, the Applicant has acted in a generally dishonest manner towards Mr Shu and that he did, as a consequence, obtain a financial advantage from Mr Shu and otherwise cause him quantifiable loss.
Fourth, there is strong evidence to support a finding that the Applicant’s conduct has breached s 347 of the ACT Criminal Code by using false documents. Mr Shu deposed in his affidavit that the Shanghai Public Security Bureau told him in April 2019 that the documents provided to him by the Applicant purporting to show ownership of the Shanghai Property were false and that the image provided to him by the Applicant of the HKD30,000,000 entering his account was a fraudulent document.[108]
[108] T-documents, T43 at p 743 and 744 in the affidavit of Mr Shu.
Having regard to the four abovementioned provisions of the ACT Criminal Code, we are satisfied that there is strong evidence that the Applicant has committed both a “serious Australian offence” and a “serious foreign offence” punishable for a term of imprisonment of up to 10 years.
We are therefore satisfied that the Applicant’s fraudulent conduct towards Mr Shu is a serious crime.
Whether the crime is non-political in nature?
The Migration Act provides an interpretation of “non-political crime”. Section 5(1) of the Migration Act relevantly provides that the term “non-political crime”:
(a) subject to paragraph (b), means a crime where a person’s motives for committing the crime were wholly or mainly non-political in nature; and
(b) includes an offence that, under paragraph (a), (b) or (c) of the definition of political offence in s 5 of the Extradition Act 1988, is not a political offence in relation to a country for the purposes of that Act.
Section 5 of the Extradition Act 1988 (Cth) (the Extradition Act) defines “political offence” thus:
political offence, in relation to a country, means an offence against the law of the
country that is of a political character (whether because of the circumstances in which it is committed or otherwise and whether or not there are competing political parties in the country), but does not include:
(a) an offence that involves an act of violence against a person’s life or liberty; or
(b) an offence prescribed by regulations for the purposes of this paragraph to be an extraditable offence in relation to the country or all countries; or
(c) an offence prescribed by regulations for the purposes of this paragraph not to be a political offence in relation to the country or all countries.
The interpretative provision in s 5(1) of the Migration Act for non-political crime has two limbs. Limb (a) of the interpretative provision is expressed as a definition by which a meaning is given to a non-political crime. This definition is expressed to be “subject to paragraph (b)” which directs that attention is to be given to the second limb when considering the first limb. Limb (b) of the interpretative provision is expressed not as a definition but as an inclusive provision and adopts offences that do not fall within the definition of a political offence in s 5 of the Extradition Act. This suggests that Parliament intended that those offences which are specifically excluded from the definition of political offence in the Extradition Act would be non-political crimes for the purpose of the Migration Act. The more difficult question posed by the Applicant is whether, if limb (b) is not satisfied, there can still be a finding of a non-political crime by satisfying the definition in limb (a). That question arises in this case because both parties agree that the crime alleged to have been committed by the Applicant does not fall within the offences listed in s 5(a), (b) and (c) of the Extradition Act.
The Applicant contends[109] that the alleged crime is not a non-political crime because it does not fall within s 5(b) or (c) of the Extradition Act. The Applicant says that to constitute a non-political crime the Applicant’s crime must satisfy both limb (a) and limb (b) of the interpretative provision in s 5(1) of the Migration Act. This would mean that the non-political crime must fall within the limb (a) of the interpretative provision and relevantly, either of the offences described in s 5(b) and (c) of the Extradition Act. In effect, the Applicant treats the interpretative provision as providing a definition of non-political crime with two cumulative limbs which must both be satisfied.
[109] Applicant’s Statement of Facts, Issues and Contentions, dated 19 November 2021 p 21 at [84].
The Applicant relies on the conjunction “and” together with the expression “subject to paragraph (b)” to argue that there are two limbs which must be satisfied when interpreting a non-political crime.
First, we consider the expression “subject to paragraph (b)”. The effect of a “subject to” provision was considered by Cooke J in Harding v Coburn [1976] 2 NZLR 577 at 582 as being “a standard way of making clear which provision is to govern in the event of conflict”. Megarry J in C&J Clark Ltd v IR Commissioners [1973] 1 WLR 905 said at 911 “Where there is no clash, the phrase does nothing: if there is collision, the phrase shows what is to prevail”. In this case, there is no clash because the crime which is the subject of this case does not fall within s 5(a), (b) or (c) of the Extradition Act. Therefore, the “subject to” phrase does nothing and limb (b) of the interpretative provision in s 5(1) of the Migration Act has no work to do.
Next, we consider the word “and” which appears between limb (a) and limb (b) in the interpretative provision in s 5(1) of the Migration Act. The author of “Statutory Interpretation in Australia”[110] refers to a group of cases in which the court’s reasoning produced a disjunctive effect despite the presence of the word “and”. Reference is made to Associated Newspapers Ltd v Wavish (1956) 96 CLR 526 where the High Court found that a definition with two limbs separated by “and” could be satisfied if either of the limbs were fulfilled. In Re Peat Resources of Australia Pty Ltd; ex parte Pollock (2004) 181 FLR 454 at [23] it was held that a purposive approach to statutory interpretation could result in reading “and” for “or” and vice versa. It follows from these authorities that the mere presence of the word “and” between limb (a) and limb (b) in the interpretative provision for non-political crime does not mean that it is necessary to satisfy both limbs if a purposive and contextual interpretation suggests otherwise.
[110] D Pearce, ‘Statutory Interpretation in Australia’ 9^th edition LexisNexis at [2.48] and [2.49]
We disagree with the Applicant’s contention that there are two cumulative limbs which must both be satisfied. The approach of the Applicant does not take into account the structure of the interpretative provision which provides in limb (a) a definition of non-political crime and further provides in limb (b) a statement as to what a non-political crime includes. We read the interpretative provision in s 5(1) of the Migration Act as providing that, unless the contrary intention appears:
(a)non-political crime, subject to paragraph (b), means a crime where a person’s motives for committing the crime were wholly or mainly non-political in nature; and
(b)non-political crime includes an offence that, under paragraph (a), (b) or (c) of the definition of political offence in s 5 of the Extradition Act, is not a political offence in relation to a country for the purposes of that Act.
It follows that a non-political crime can be a crime under limb (a) or an offence under limb (b). Support for this interpretation comes from a consideration of the Extradition Regulations 1988 (Cth) regulation 2B which, for example, provides that for paragraph (c) of the definition of political offence in s 5 of the Extradition Act, an offence is not a political offence, in relation to certain countries, if the offence is constituted by taking the life of a person. It would seem an odd interpretation of non-political crime in the Migration Act if there was a further requirement to establish a non-political motive under limb (a) for the taking of the person’s life despite having already established that the offence is not a political offence under the Extradition Act.
When determining whether there is a non-political crime, the approach of a decision maker would be to first consider whether there is an offence under limb (b) of the interpretative provision for non-political crime in s 5(1) of the Migration Act which in turn directs attention to the offences set out in s 5(a), (b) and (c) of the Extradition Act. If limb (b) of the interpretative provision is satisfied, then a non-political crime will have been established and there will be no need to consider limb (a). If limb (b) is not satisfied, then the decision maker would turn their mind to limb (a) to determine the person’s motive.
In the Applicant’s case, there is no dispute that his alleged conduct does not fall within s 5(a), (b) or (c) of the Extradition Act. It follows that the definition of non-political crime may be satisfied by reference to limb (a) of the interpretative provision for non-political crime in s 5(1) of the Migration Act.

With respect to limb (a) of the interpretative provision, there is strong evidence that the Applicant has committed the crime of fraud and the circumstances of his offending make it clear that it was committed for personal gain. The offending was wholly non-political in nature and therefore, we are satisfied that the Applicant has committed a non-political crime.
Whether the crime was committed before the Applicant entered Australia?
Sections 5H(2)(b) and s 36(2C)(a)(ii) of the Migration Act both provide that the Applicant must be found to have committed a serious non-political crime, “before entering Australia”. There is no dispute that the relevant conduct occurred before the Applicant entered Australia.[111] Accordingly, we find that this Applicant committed the conduct constituting his serious non-political criminal offending before entering Australia.
[111] See Applicant’s Closing Written Submissions dated 4 April 2022, p 65 [225]; see also Respondent’s Written Closing Submissions dated 22 April 2022, p 17, [61].
Conclusion
We are satisfied that there is strong evidence of fraudulent conduct by the Applicant. Mr Shu’s considerable investment in the Car Project has not been repaid and we are not satisfied that the Applicant invested the funds in accordance with their agreement. We do not accept the Applicant’s explanation that his bank statements were modified and that the Shanghai Property was wrongfully transferred. We acknowledge that the Applicant has not been charged with any offence in China but there is undisputed evidence that the Shanghai police investigated the Applicant and published a statement that he was a fraud. For the reasons outlined above, we are satisfied that there are serious reasons to consider that the Applicant committed a serious non-political crime prior to entering Australia.
decision
The reviewable decision of the delegate notified by letter dated 7 July 2021 is affirmed.
I certify that the one hundred and five (105) paragraphs are a true
copy of the reasons for the decision herein of Deputy President Britten-Jones and Senior Member Tavoularis
…[sgd]…………………………………………………….
Associate
Dated: 18 November 2022
Dates of hearing:   13 & 14 December 2021
11 February, 28 March, 9 May & 1 June 2022
Counsel for the Applicant:                 Uche Okereke-Fisher
Solicitors for the Applicant:                Victoria & Hancock (no longer acting)
Advocate for the Respondent:           Sarah Thompson
Solicitor for the Respondent:             HWL Ebsworth Lawyers

[2022] AATA 3895

18 November 2022

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