Foster and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 864

Foster and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 864 (24 April 2023)
Division:GENERAL DIVISION
File Number: 2022/10214
Re:Warwick Foster
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Dr D. Dragovic
Date:24 April 2023
Place:Melbourne

The decision under review is affirmed.
..................................[sgd]......................................
Deputy President Dr D. Dragovic
Catchwords

MIGRATION – visa refusal on character ground – foreign conviction – sentence of a term of imprisonment of more than 12 months – whether s 501(7)(c) of Migration Act 1958 (Cth) applies to a sentence imposed by a foreign court – crime of sexual nature against a child – allegations of corruption in the foreign judicial system – decision affirmed.

Legislation
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases

Darnia-Wilson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3019

Dougherty and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 8

HZCP v Minister for Immigration and Border Protection [2018] FCA 1803

HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121

Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575

Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313

Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Darnia-Wilson (2022) 289 FCR 72

Secondary Materials

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)

REASONS FOR DECISION
Deputy President Dr D. Dragovic
INTRODUCTION AND BACKGROUND

Mr He Zhu is a 36-year-old male from Jilin Changyi District, China. In 2013, there was an incident which led to Mr Zhu’s conviction in a Chinese court for sexual molestation of a child. He was sentenced to serve one year and six months in prison.
On 23 November 2016, Mr Zhu applied for a visitor visa (Class FA) for the purpose of visiting his mother and stepfather, Mr Foster. The visa was rejected by a delegate of a Minister administering the Migration Act 1958 on the basis that Mr Zhu did not meet the Public Interest Criteria (‘PIC 4020’),[1] namely that Mr Zhu had not declared the conviction and, as such, had provided false information.
[1] Migration Regulations 1994 (Cth), sch 4 (Public interest criteria and related provisions).
The decision was appealed to the Administrative Appeals Tribunal (‘Tribunal’) in 2017 and decided in February 2018. The Tribunal, as then constituted, found that Mr Zhu had provided false information and a bogus document, but remitted the matter to the Department of Home Affairs (‘Department’) for further consideration on the basis of compassionate and compelling circumstances.
As the Department moved to consider other criteria of the visa, another delegate of the Minister refused the same visa on a different ground, namely the requirement that Mr Zhu genuinely intended to stay temporarily in Australia. The Minister’s delegate found that he did not and, as such, he did not meet cl. 600.211. The matter was appealed and heard once again at the Tribunal, with the Tribunal, as then constituted, finding in favour of Mr Zhu in January 2019, concluding that he has a genuine intention to stay temporarily and remitted the case back to the Department for further reconsideration.
A different delegate of the Minister then considered the other criteria for a visitor visa and identified that Mr Zhu may not pass the character test under s 501(1) of the Migration Act 1958 (Cth) (‘Act’). The delegate provided a notice of intention to consider refusal on 6 May 2020 to Mr Zhu.
Mr Zhu has remained offshore since his visa application and throughout the appeals process. For this reason, Mr Warwick Foster, his stepfather, lodged the application for review with the Tribunal on 14 December 2022 and for the purposes of this review is the review applicant.
The basis of the refusal on character grounds is that a Chinese police certificate dated 18 February 2019 indicates that, on 16 September 2013, Mr Zhu was convicted in the Shenzhen Bao’an District Procuratorate of ‘indecent acts against a child’. He was sentenced to one year and six months imprisonment, which he served in full.
Mr Zhu was released on 14 March 2015.
The specific details of the offending are difficult to ascertain as no sentencing remarks or a document of a similar nature are available.
The test of whether someone does not pass the character test is detailed in s 501(6) of the Act, of which, and relevant to Mr Zhu, subsection (a) states that a person does not pass the character test if ‘the person has a substantial criminal record (as defined by subsection (7))’. Subsection (7) defines ‘a substantial criminal record’ as including a person who has ‘been sentenced to a term of imprisonment of 12 months or more’.[2]
[2] Section 501(7)(c).
Sections 501(6) and 501(7)(c) were the basis upon which the Minister’s delegate considered that Mr Zhu may not meet the character test and was the basis upon which the delegate ultimately refused the visa on 23 November 2022.
This is the appeal of the refusal of the visitor visa on character grounds. The Tribunal, in this matter, must consider whether Mr Zhu passes the character test and, if not, then consider whether to exercise the discretion to refuse to grant the visa. Guidance in exercising this discretion is found in Direction No. 99: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (‘Direction’).[3]
[3] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023).

Procedural matters

Mr Zhu was at the time of the visa application, and through to the hearing and decision of this Tribunal, offshore. As such, his stepfather, Mr Foster, had standing as the review applicant. Mr Foster chose not to retain the services of a representative.
Mr Foster’s wife (‘Ms Foster’), who is the mother of Mr Zhu, accompanied Mr Foster to the hearing. She explained that she had been the review applicant in two earlier proceedings before the Tribunal on appeals related to the same visa, as detailed above. She explained that it was an administrative error on their part that led to Mr Foster being the named review applicant in the current proceeding. She explained that she was more familiar with the circumstances and the case.
I note that as the case involves a visa applicant who is not in the migration zone, ss 500(6H) and (6J), which together outline the ‘two-day rules’, are not applicable.
The combination of an unrepresented visa applicant who was offshore and required an interpreter, being assisted by two individuals who have had a long and contentious battle with the Department over a period of seven years on his behalf, led me to adopt a more fluid approach to the hearing. Every effort was made to ensure procedural fairness while accepting where necessary a departure from what would otherwise be considered as normal processes and stages of a hearing.
The matter was heard in Melbourne on the 27 and 28 March 2023, with the attendance in person of the Minister’s representative, Mr Keith Sypott of the Australian Government Solicitor’s offices.
A number of witnesses appeared before the Tribunal including Mr Zhu, who appeared by telephone. Mr Zhu appeared by telephone at the request of the review applicant, Mr Foster, as conveyed in correspondence dated 21 March 2023 to the Tribunal. The reasoning was that there was concern over monitoring by the Chinese authorities of video communication. Based upon this request and the concern over Mr Zhu possibly withholding information for fear of government monitoring, the Tribunal took the view that, on balance, it would be preferable to receive evidence by telephone and accepted the request.
A number of submissions were made to attest to the character of the review applicant and his wife, including from a member of parliament. These are noted, but as no credibility concerns of the two were raised nor arose from the material and through the hearing, these character witness statements are not engaged with any further in these reasons.
Documents were received post-hearing from Mr William Wang, a witness called by Mr Foster at the hearing. The nature of the documents was unknown at the time of the hearing in that it was believed that they may differ from those already available. As such, notice was given to the parties that if the documents were different and offering new evidence, then a further hearing would be required. The documents did not offer new evidence. The documents were provided to the parties and notice was given by way of email dated 4 April 2023 that as no new evidence arose from the documents, a further hearing would not be necessary.
A further submission was received by the Tribunal from Mr Foster, dated 30 March 2023. The introduction to the submission explains the purpose, namely, ‘[o]n behalf of my family, I would like to present to Member Mr Dragovic a summary of the two days of the AAT hearing, our reflections and the issues that we did not have time to complain about due to time constraints’. While the hearing had concluded, there is no option available to this Tribunal to outright reject and ignore the submission as the matter remains open until such time as the Tribunal is functus officio. Instead, the obligation on the Tribunal is to provide procedural fairness to both the Applicant and Respondent. As such, the submission was provided to Mr Sypott, along with an opportunity to respond.
Mr Sypott responded on 5 April 2023 that the Minister did not object to the lodgement of the ‘unsolicited 31 page submission’, noted that ‘most of the submission largely repeats matters already before the Tribunal’, but raised a concern over the submission’s identification of a purported new claim, namely the impact of seven years of applications and litigation upon the mental and physical health of Mr and Ms Foster. On page 28 of the submission the authors write:
Our family and our son have been waiting for over 7 years, which has taken a serious toll on our mental and physical health, causing me to suffer from severe "depression", dependence on medication to sleep at night, and the use of medication that has severely damaged our health, resulting in a serious endocrine disorder due to prolonged use of medication.
In 7 years we have not only lost a lot of money, we have lost our health, not just to anyone and the AAT, but to the Immigration Department and the Home Office, which has caused us physical and mental damage and a lot of financial loss!
In his written response, Mr Sypott then proceeds to object to the claim arising from these two paragraphs being considered because they were not raised orally at the hearing or in written material prior to the hearing; that the Minister did not have a chance to cross examine the applicant or his wife in relation to it and that it is not accompanied by any evidence from an appropriately qualified medical practitioner or psychologist.
I note that Ms Foster had mentioned the toll the efforts to bring her son to Australia had taken on her in oral statements. For example, she said at the hearing:
I haven’t seen him for seven years already. ... Over seven years or so my health has been deteriorating slowly. I have been suffering from depression and insomnia. It is not because of my husband. It was not because of the Member or the Tribunal. The root cause lays on the Department of Immigration where they rejected the visa application. Based on what ground does the Department come to the conclusion that he is a danger to the society and the people here? I think this is an insult. He is not a criminal.
As it was raised orally, Mr Sypott’s first two objections are not supported. I do accept, though, the claim that there is no evidence that either Mr Foster or Ms Foster have been diagnosed by a relevant medical professional and that no report from such a professional was submitted to the Tribunal. Nevertheless, I find that the evidence provided by Mr and Ms Foster of the hardship experienced throughout their seven-year process can be considered if and where it is of relevance. I have also reviewed the entirety of the submission and find that there is no new material that was not considered and addressed at the hearing.

CONSIDERATIONS
Does Mr Zhu pass the character test?

As noted above, a person does not pass the character test if, among other triggers, the person has a substantial criminal record, such that they have been ‘sentenced to a term of imprisonment of 12 months or more’.
Submissions on behalf of Mr Zhu, both to the Department and the Tribunal, centred on the wrongful conviction of Mr Zhu in a Chinese court and claimed that, as such, he does pass the character test.
The delegate of the Minister briefly addressed this in their decision to refuse the visa by finding that:
Whilst I have considered the representations, they do not throw doubt on the accuracy or currency of information contained in the Chinese Notarial Certificate because, as an independent and authoritative source, I place more weight on the accuracy of the information and exercise caution in accepting the representations presented by Mr ZHU without independent and authoritative documents to substantiate them.[4]
[4] G Documents, p5.
As the written and oral submissions to the Tribunal by Mr Foster centred on the issue of corruption and wrongful conviction, I will engage with this issue at some length.
The material from China is limited to the following:
(a)a translated certificate with the name of Mr Zhu certifying that he has been sentenced to one year and six months in prison in Shenzhen Bao’an District Procuratorate on 16 September 2013 ‘due to indecent acts against a child’;
(b)details within the ‘Petition for Appeal’[5] to the Guangdong Provincial People’s Procuratorate, dated 5 December 2013, lodged by a law firm on behalf of Mr Zhu. The basis of the appeal is listed as:
(i)‘[d]isputed facts are not clear enough for a conviction’ and ‘there was a sentencing error’;
(ii)the appeal claims that Mr Zhu did not touch any private parts ‘in any way that could be considered indecent’. It is claimed that he only embraced the shoulders and hugged the girl for a few seconds. It claims that the statements from the alleged victim and the accused did not align and there were no witnesses. Furthermore, there was sufficient evidence to suggest that the victim was not 10 but 12 years old, which would affect the sentencing outcome;
(iii)the appeal claims that the court’s sentencing of Mr Zhu to one year and six months is six months beyond the guidelines for its jurisdiction; and
(iv)within the ‘Petition for Appeal’ document, it explains that, through mediation with the family, it was agreed that Mr Zhu would pay 20,500 yuan but he did not have the resources to pay on the spot and instead the authorities took the case as a criminal case. It is claimed that when the victim’s family learned that Mr Zhu’s mother is based out of Australia, they upped the demands for settlement but when that was not agreed they threatened the local judge to ensure that he did not give a lenient sentence. Mr Zhu claims that extortion was the intent of the victim’s family; and
(c)a statement by Mr Zhu accompanying the appeal.[6] The statement has 17 points running across six pages. It includes accusations of improper conduct by the Chinese police, collusion between the Chinese police and the victim’s family, Mr Zhu being beaten by the victim’s father, extortion by the victim’s mother, Mr Zhu being mistreated by the police while in custody, claims that the girl had not developed breasts and had no ‘female secondary sexual development’, accusation that the Deputy Director of the police station was a ‘friend and fellow-townee’ of the victim’s father. The statement concludes with, ‘[i]f Guangdong Provincial People’s Procuratorate does not correct the judgement, I, my parents and my family will definitively and firmly report to the Supreme People’s Procuratorate of China in Beijing until the judgement is overturned and my reputation is restored’; and
(d)a notarial certificate from the Jilin City Jiangcheng Notary Public Office, Jilin Province, certifying that ‘Zhu He has no record of committing offences against the criminal law during his residence in the People’s Republic of China up to March 19, 2015’.
[5] G Document, p15.
[6] G Documents, p23.
In correspondence from the Department to Mr Zhu via email on 6 January 2021, the Department asked for further information pertaining to the claim that he had appealed his conviction to the Guangdong Provincial People’s Procuratorate in China and to the Supreme People’s Procuratorate of China in Beijing. In addition, a request was made for a copy of the original Shenzhen Baoan District People’s Court criminal judgment.
Mr Zhu responded by way of written correspondence dated 26 January 2021:
Regarding the original and photocopy of the criminal judgment of Shenzhen Bao’an Court, they informed us that they could not find the prosecutor who originally tried the case in Bao'an Court and had resigned (due to corruption, he left and changed the prosecutors several times because of corruption). Over time, China's laws have changed a lot. China's courts and procuratorates no longer provide and issue any legal information for individuals and related departments, let alone issue any legal information for foreign government service agencies. This is China's Guangdong Provincial Procuratorate. And the clear answer given to me by Shenzhen Bao’an Court.
Regarding the update on his subsequent appeals, he claimed, in response to the Department’s record, that calls to the Supreme People’s Procuratorate of Guangdong Province for an update have been met with a request to travel there but, due to the Coronavirus lockdowns, he has been unable to travel. Mr Zhu added that many of the officials involved in his matter in Shenzhen Bao’an have since been arrested and imprisoned due to corruption and that the relevant papers from his case cannot be found as a result.
Mr and Ms Foster provided a statement with similar details, as was provided by Mr Zhu.
Before considering whether there are grounds for cancellation, there is a threshold question and that is whether Mr Zhu’s conviction in China is a sentence that can be considered under s 501(7)(c) as having been ‘sentenced to a term of imprisonment of 12 months or more’. In other words, should a foreign court’s sentence be accepted as a basis to find that a person does not meet the character test and, as such, be barred from entering Australia.
There have been two approaches taken to this question in this Tribunal. In Dougherty and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration),[7] Senior Member Nikolic AM CSC considered the question of whether a foreign court’s convictions should be considered, and arrived at the conclusion that they should, but only under the discretionary considerations in the context of the nature and seriousness of the conduct. He did not consider the threshold question of whether the criminal convictions in Thailand could be applied to the character test under s 501(6)(a) and specifically whether the person has a substantial criminal record as defined by s 501(7)(d). Instead, he accepted that the visa applicant did not pass the character test based upon two foreign convictions. This omission was presumably intentional as the issue was engaged with for other purposes with the explicit approach being that convictions of foreign courts can be the basis of findings in the context of s 501.
[7] [2021] AATA 8.

The alternative approach taken on this matter was by Senior Member Emeritus Professor Fairall in Darnia-Wilson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration).[8] In this case, the Senior Member did engage with the question of whether a foreign jurisdiction’s conviction could serve as the basis of the applicant in that proceeding not passing the character test. At the heart of Senior Member Fairall’s approach is that the Act explicitly references ‘foreign’ elsewhere in reference to a ‘foreign offence’ or a ‘court in Australia or a foreign country’, arguing that were the intention for the character test to include convictions under foreign courts, then Parliament would have written it into the legislation. He writes in his decision at [18],
The suggestion that a person automatically fails the character test if sentenced to 12 months or more by a foreign court or tribunal is a startling proposition. There have been many persons of character, from Mandela to Gandhi, to journalists in Egypt, and modern democracy activists in Hong Kong, who must fail this standard. Some former Presidents and Prime Ministers may struggle.
[citations omitted]
[8] [2021] AATA 3019.
This divergence was resolved by the Full Bench of the Federal Court of Australia (‘Federal Court’) in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Darnia-Wilson.[9] In that matter, Rares J, with whom Bromwich and Goodman JJ, who comprised the remainder of the Full Court concurred, found that:
[T]here is no sufficient reason to consider that s 501(7)(c) has any meaning other than its ordinary and natural meaning, namely a sentence of imprisonment per se regardless of its territorial nexus...[10]
[9] (2022) 289 FCR 72.
[10] Ibid [29].
With this clarity, I now turn my mind to consider whether Mr Zhu meets the character test. Mr Zhu’s objections to his foreign conviction being considered were two-fold: that corruption played a role in his conviction and that the sentence given by the judge exceeded the relevant sentencing guidelines.
In effect, Mr Zhu is asking this Tribunal to look behind the foreign conviction and find that it was wrong. I noted at the hearing that this Tribunal does not have the expertise, resources nor access to the alleged victim to undertake such an endeavour. I furthermore noted that this Tribunal is confined by court authorities on such matters. In summarising what these are, Bromberg J wrote at [78] in HZCP v Minister for Immigration and Border Protection (‘HZCP’):[11]
Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.[12]
[11] [2018] FCA 1803.
[12] Ibid [78]. I note that this case was appealed in HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, but the case was dismissed.
For this reason, both bases upon which Mr Zhu’s argument stands should not be considered in this proceeding.
With regard to the appeal that was lodged to the next tier in the Chinese judicial structure, I note that the evidence provided to the Tribunal is that it has not been finalised and that Ms Foster is required to travel to China to have it heard. Until such time as the conviction is overturned through a lawful process, the applicant’s conviction stands.
For these reasons, as Mr Zhu was sentenced for a period of imprisonment of 12 months or more, I find that Mr Zhu does not pass the character test.

Whether there is another reason why the visa should not be refused

Section 501(1) of the Act states that the Minister ‘may’ refuse to grant a visa if the person does not pass the character test. The term ‘may’ establishes a discretionary element.
Under the powers granted to the Minister in s 499 of the Act, the Minister has provided guidance on how decision-makers should exercise this discretion in the form of the Direction. Section 499(2A) of the Act states that decision-makers must comply with any given direction. As such, I now turn my mind to the Direction and whether the visa should not be refused.
The Direction has overarching principles, along with primary and other considerations that should be considered, with detailed guidance for each consideration. The primary considerations are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations are:
(1)legal consequences of the decision under section 501 or 501CA;
(2)extent of impediments if removed;
(3)impact on victims; and
(4)impact on Australian business interests.
Informed by the Preliminary guidance in Part 1 of the Direction, I now turn my mind to applying the guidance to exercising the discretion as to whether there is another reason why the cancellation should be revoked, as detailed in Part 2 of the Direction.

PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

The Direction instructs decision-makers to have ‘particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.’ In addition, the Direction states that decision-makers should also give consideration to the nature and seriousness of the conduct and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

Nature and seriousness of the conduct (paragraph 8.1.1)

There was considerable uncertainty over what the conduct was for which Mr Zhu was convicted, though he was adamant that it did not amount to sexual molestation. There are no sentencing remarks available to this Tribunal. Mr Zhu’s Chinese lawyers could not appear due to a claim that they are barred from speaking or appearing in foreign jurisdictions. The only evidence of the facts which were accepted by the Chinese court are those that appear in Mr Zhu’s ‘Petition for Appeal’, prepared by his Chinese lawyers, and the evidence he gave at the hearing.
Through the process of attempting to shed light on what the offending was, for the purpose of appreciating the nature and seriousness of the conduct, it became apparent that three different narrations of the event had been presented.
What is common across all three is that Mr Zhu had some plastic bottles in his home. He invited a family who collects bottles to take them away. The father of the family who collects bottles sent his 12-year-old daughter upstairs to Mr Zhu’s apartment to collect the bottles. What happened while the child was in Mr Zhu’s apartment is subject to conflicting evidence.
At the hearing, Mr Zhu said that the plastic bottles included cigarette butts and spit and as the child was collecting them and emptying them into the toilet, she spilled some of the bottles’ contents on her. He claims that he took a towel from his bathroom and wiped her down, helping her to clean up. He said that at that moment her younger brother rang the doorbell and that when Mr Zhu opened the door, the brother was surprised by what he saw and ran back downstairs.
I asked Mr Zhu what could have surprised the boy, given that Mr Zhu would have had to leave the bathroom to open the door. Mr Zhu responded that he thinks that it was seeing him helping the girl wipe the dirt off her clothes. I asked how the boy could have seen that when he had said that he had to have opened the door and was holding the door before the boy went away. In response, he said that the girl probably got a bit freaked out and probably could not understand that he was only trying to help her clean the dirt off her.
Under cross-examination, Mr Sypott presented to Mr Zhu a second version of events which came from a statement dated 15 February 2023:
From my heart, I only acted out of kind thoughts. My actions were simply to move her away from my doorstep (my hand only toucher her shoulder), so that I could enter the room behind her (because my apartment was very narrow and only allowed one person to pass through at the time), as I needed to retrieve some bottles for her…
The difference in the two versions was put to Mr Zhu. Mr Zhu said the difference arose from a desire to wait for an opportunity to give more details at the hearing. He added that to tell the complete story he would need to collate all the documents to put it all together as it had been a while and he was badly hurt, and a lot of documents were missing.
It was put to him by Mr Sypott that he had provided two completely different accounts, not one with few details and another with more. He apologised saying that it was not his intent, he said that he is the victim and apologises for the missing details.
My Sypott took Mr Zhu to the ‘Petition for Appeal’ document, prepared by Mr Zhu’s Chinese lawyer, which outlined what happened in the apartment. Under the heading, Facts and reason, the appeal document notes, ‘he only displayed a brotherly love for the person, maybe he also felt a little sorry for the person because they were poor but no sexual assault occurred…the appellant merely illustrate just hugged back atop the victim, neck, chest, when the parties do not accidentally hit a twisting, no petting nakedness.[13]
[13] G Documents, p16.
In addition, in Mr Zhu’s statement accompanying the appeal, he wrote, ‘I didn’t think that I had done anything wrong. I embraced the girl out of love and mercy with a feeling that I’m like a father or older brother to her.’[14] Mr Sypott identified these statements as the third version of what happened.
[14] G Documents, p24.
When asked why there were three different versions, Mr Zhu said that his lawyer was to blame and that he was unsatisfied with the performance of the lawyer. Mr Sypott noted that the lawyer’s narrative aligned with a statement that Mr Zhu had written. In response, Mr Zhu affirmed that the fault was of his then lawyer.
Mr Zhu then said that he took the girl by her shoulders and moved her and that is what he meant by a hug. He said that he did not say this earlier at the hearing as he did not want to waste the time of the Tribunal. He said that it is hard for him to recollect what happened. He reiterated that he would not have hurt her.
Mr Zhu stated that, to his recollection, he was charged and convicted of touching the buttocks of the girl.
Mr Foster gave evidence that the Chinese lawyer had told them that Mr Zhu was convicted on the basis of placing his hands on the buttocks and breasts of the child.
Ms Foster stated that her son was charged with touching the child’s breasts. She added that the mother of the child had accused Mr Zhu of touching the child’s buttocks as well.
A statement dated 28 November 2013 from Mr Zhu’s defence lawyer in China, Mr Xiao Li, was made available to the Tribunal (Exhibit 9). In this statement, Mr Li states the view that Mr Zhu ‘gently placed his hands on the girl’s shoulders from her back over the clothes’. In addition, he writes that there was no malicious intent on the part of Mr Zhu but does not mention the actual charges.
Based upon the evidence provided by Mr Zhu, what appears to have happened in China is that he was asked to sign a document while in remand. He did not have his glasses with him and was unable to read the document. He has variously claimed that he signed it under pressure or duress. He was assured by his lawyer that by signing the document he would be set free. Instead, it appears likely that the document was some sort of confession. Mr Zhu said that his lawyer gave him advice to participate in a ‘streamline process’, promising him that he would be released quickly and that is why, he claims, when he was questioned by the judge, he admitted to the charges. It is possible that, for this reason, there are no sentencing remarks or any other documents which can help shed light on what the basis of Mr Zhu’s conviction was. Noting that the event occurred on 13 September 2013, and he was convicted on 16 September 2013, this strongly suggests that at least some streamline process was adopted.
An alternative source of information on the nature and seriousness of the offending could be the length of the sentence. The sentence was for one and a half years in prison. This is not a light sentence reflecting a minor infraction. Mr Foster argued that the sentence was beyond the jurisdiction of the first instance court and the appeal document prepared by Mr Zhu’s lawyer affirms this view. It was strongly put to the Tribunal that not only was the conviction influenced by corruption but so too was the sentence.
In considering this claim, I return to the summary of relevant caselaw undertaken by Bromberg J in HZCP, which references Minister for Immigration and Multicultural Affairs v SRT[15] in which the Full Court of the Federal Court in a joint statement grappled with the issue of whether a Tribunal could engage with issues that may only be considered in passing by a sentencing judge such as the risk of recidivism. Their Honours concluded that, in such a situation, the Tribunal would still need to accept the essential facts associated with the conviction but would be able to accept further evidence in relation to those matters. In this instance, the question is not about some other matter. It is at the heart of the conviction as it revolves around the nature and seriousness of Mr Zhu’s actions that led to the conviction.
[15] (1999) 91 FCR 234.
Furthermore, in HZCP, Bromberg J referenced Fox J, sitting on the Full Federal Court in Minister for Immigration and Ethnic Affairs v Gungor (‘Gungor’)[16] in which he found that:
What does seem to me to be highly improbable is that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source (albeit one functioning in a number of respects like a court, and comprising a judge) should review the conviction on its essential factual basis. The policy must be that the conviction is a matter for the criminal law and its procedures. Appeals are there available. If new or fresh evidence comes to hand, the criminal procedures can be availed of.[17]
[16] (1982) 4 ALD 575.
[17] Ibid 578.
The Chinese court system has an appeals process. Mr Zhu has utilised the first rung, which did not deliver a favourable result, apparently because he pled guilty in the first instance, and, according to the evidence provided by Mr Zhu and Ms Foster, they are preparing for an appeal to a higher court. That Mr Zhu claims to have not been given a fair opportunity to review the statement he signed or that he was pressured through the process is a matter for the appeals processes to consider in the Chinese judicial system.
That the Chinese system may be corrupt, including that two police officers and one judge in Mr Zhu’s case were removed, as claimed in written and oral statements, or more generally that corruption ails the entire system, as Mr Foster alleged, may be a relevant public policy concern for future revisions of legislation or for the courts to consider when finding the correct application of the law. But for the purposes of this Tribunal, as the law currently stands, this is not a relevant consideration even were we to be considering hypothetical visa applications from revered people such as Mandela or Gandhi, as Senior Member Fairall argued.
As noted at the hearing by this member, the Tribunal is not in a position to adjudicate on whether the judgement in the criminal matter was corrupted for the same reasons that Fox J noted some forty years earlier in the case of Gungor.
For this reason, I have not considered further Mr Zhu’s claims of corruption relating to the Chinese court exceeding its jurisdiction by imposing a sentence far greater than was allowed under Chinese law, even though the verbal evidence (from Mr Zhu’s former manager) and limited documentary evidence (the Petition for Appeal and Mr Zhu’s statement accompanying the appeal) would suggest that was a possibility in Mr Zhu’s case.
The Direction also requires the Tribunal to give consideration to whether Mr Zhu had previously ‘provided false or misleading information to the Department, including by not disclosing prior criminal offending’.[18] The decision record in Mr Zhu’s earlier appearance at the Tribunal on the matter of whether he met PIC4020 was tabled as evidence by Mr Sypott.
[18] Direction, paragraph 8.1.1(f).
For PIC 4020 to be met, the following criteria need to be satisfied:
There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.[19]
[19] Migration Regulations 1994 (Cth), sch 4 (Public interest criteria and related provisions).
In making its decision the earlier Tribunal found that Mr Zhu had provided false or misleading information with regard to not notifying the Department at the time of his visitor visa application that he had a criminal conviction, specifically in regard to two questions:
Have you ever been convicted of an offence in any country (including any conviction which is now removed from official records)?
Have you ever been found guilty of a sexually based offence involving a child (including where no conviction was recorded)?
When the decision of the previous Tribunal was put to him, Mr Zhu explained that when he was requesting the police files from Jilin it took a long while, and as he was confident that he would be able to overturn the conviction and prove himself innocent, he indicated that he did not have any convictions.
It was also argued that Mr Zhu was not involved in producing the documents or preparing the visa application and instead it was all done through his parents providing information to a migration agent. It was claimed that Mr Zhu only received the forms that required his signatures for him to sign. Mr and Ms Foster noted that they had lodged a complaint against the migration agent to the Office of Migration Agents Registration Authority about her conduct and that their complaint was upheld.
The earlier Tribunal’s decision record, dated 6 February 2018, which was lodged as evidence by the Respondent summarises the evidence provided by Ms Foster which is consistent with the evidence given at this hearing:
The review applicant claims that the first two applications were completed by herself and her husband, Mr Foster. The third application was prepared by a different registered migration agent. Because of their dissatisfaction with the service provided by this agent, when the review applicant decided to apply for a visitor visa on behalf of the visa applicant she engaged the services of a different registered migration agent. On this occasion, when the review applicant was making enquiries of the registered migration agent’s services an email was sent (dated 16 October 2016) to them that, among other things, fully disclosed the information about the offence and time spent in custody. In addition, the review applicant claims that after she formally engaged the services of the registered migration agent and later sent documents to support the application, she also sent the information fully disclosing the visa applicant’s conviction and time served. The review applicant has provided a further two emails (dated 4 & 6 January 2017) sent to the registered migration agent after DIBP sought comment about the false and misleading information. These e-mails strongly state that review applicant had previously provided the information relating to the criminal conviction to the registered migration agent before the application was lodged.

But even were I to accept that it was the parents of Mr Zhu who completed the form and that the migration agent had acted improperly, Mr Zhu admitted at the hearing that he had allowed the incorrect information to be put, thinking that he would have the decision overturned. While the role of Ms Foster in arranging for the migration agent to manage the application and the migration agent not undertaking their role properly substantially reduces Mr Zhu’s culpability, it does not wipe the slate clean as, according to his own evidence, he thought that his record would be expunged and, as such, at the very least, did not ensure that the application properly recorded the offence.
The same decision also found that Mr Zhu had provided a false document, namely a ‘notarial certificate’ from the Jilin City Jiangcheng Notary Public Office, Jilin Province. The document certifies that Mr Zhu ‘has no record of committing offences against the criminal law [during his residence in the People’s Republic of China] up to 19 March 2015’.
The applicant entered remand and was convicted on 16 September 2013 and left prison after completing his 18-month sentence on 14 March 2015. When this apparent discrepancy was put to Mr Zhu, he said that the fact that it shows that he has no convictions is indicative of how corrupt the system is and, at another time in the hearing, he said that it suggested that he does not have a conviction. Ms Foster suggested that the document is only for a portion of China and not inclusive of the location where the offence occurred. Neither of these explanations is convincing.
That it shows no conviction is not indicative of a corrupt system, as opposed to an inefficient or unreliable system. That it does not reference his conviction but a subsequent and more recent record upon which the refusal was based does, would suggest that there was a conviction and, as such, his argument is not sustained. Regarding Ms Foster’s claim, the notarial office that purportedly produced the document is from Jilin Province, which is separate to where the offence occurred, but it states that the record shows no offending in the ‘People’s Republic of China’. Alternatively, it may be that records are not updated until after someone leaves prison which would be one reason why the document shows that five days after he completed his 18-month sentence there was no record of it. Or, as a different Tribunal found, it was a bogus document. Considering my finding of the credibility of Mr and Ms Foster, I give the applicant the benefit of the doubt and find that the document is genuine but for reasons unknown and most likely administrative error or bureaucratic processes, the record did not properly reflect the situation.
The Direction requires that decision makers have regard to where ‘the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.’ (paragraph 8.1.1(h)). I note that indecent acts against a child are an offence in all Australian jurisdictions.
Based upon Mr Zhu’s conviction of ‘sexual molestation’ and the severity of the sentence amounting to one and a half years within the context of the Direction, which indicates that sexual crimes should be considered ‘very serious’, and noting that Mr Zhu had allowed incorrect information to be provided, I place considerable weight on the nature and seriousness of the offending.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)

When considering the risk to the Australian community, the Direction explains that decision-makers ‘should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable’. In considering this factor, decision-makers must consider the nature of the harm to individuals or the Australian community if Mr Zhu was to engage in the conduct again, the likelihood of Mr Zhu engaging in such conduct and the duration and purpose of Mr Zhu’s intended stay, including whether there are strong or compassionate reasons for granting a short-stay visa.
At this stage it is relevant to return to HZCP and consider whether Mr Zhu’s claims of corruption can be considered when looking at the risk of offending in the future, as opposed to the more limited examination of the nature and seriousness of the offence he was convicted of. As referenced earlier, there is some scope for further evidence to be given regarding, for example, matters that may not be considered by a sentencing judge. This exercise becomes somewhat fraught when dealing with foreign convictions as the processes are different including when, as is apparent in this instance, there are no sentencing remarks which would allow this Tribunal to determine what was considered during sentencing. However, in Minister for Immigration and Multicultural Affairs v Ali (Ali),[20] Branson J distinguished the leeway given to the Tribunal to consider the underlying facts only in convictions not forming the basis upon which the Tribunal is exercising its power. This approach was adopted by Bromberg J in HZCP. As such, even when considering wider issues such as the risk of recidivism, the Tribunal is required to accept the facts upon which the criminal court based its conviction.
[20] (2000) 106 FCR 313.
Based upon this understanding of the law, with regard to the question of the impact to individuals if Mr Zhu was to engage in the conduct again, I note that sexual molestation of a child can have long term ramifications. It is not an insignificant action with a passing impact.
With regard to the likelihood of Mr Zhu engaging in such conduct, I take into consideration Mr Zhu’s entire criminal record, character witnesses, status of his ties to China that may constrain any risky behaviour while in Australia and remorse.
Mr Zhu’s sole conviction is the one at the heart of this matter. There is no evidence or suggestion that would indicate that he has transgressed any other laws.
In support of Mr Zhu’s character, five witnesses gave evidence. They provided oral evidence to the hearing in addition to written statements. The witnesses were:
Warwick Foster – stepfather
Zhiying Chang (Ms Foster) – mother
Zhiqin Chang – aunt with whom Mr Zhu had lived with
William Wang – solicitor who handled earlier visa applications
Li Xue Qian – former employer in China
Mr Foster provided oral and written evidence regarding Mr Zhu’s character. He said that he first met Mr Zhu in 2012 and had spent a total of several months of interactions with Mr Zhu. He spoke positively about Mr Zhu’s morals but noted that he is naïve and not street-wise. He noted that Mr Zhu has not had any engagement with the police in China before or after the incident. Mr Foster explained that he was trained in interrogation in his previous employment for a security division within Australia’s external affairs agency. He explained that his training included cross-cultural interrogation and that, drawing upon his skills, he believes that Mr Zhu is telling the truth when he says that he would not engage in such behaviour.
Ms Foster, Mr Zhu’s mother, spoke positively of his character. She did not accept that he would have undertaken such behaviour and believed that he would not do so in the future. In written statements, she affirmed that her son is not a criminal, that he does not pose a risk, that he is a cultured and kind-hearted person without malicious thoughts or behaviours and that he does not have a tendency towards violence. Ms Foster noted that, upon graduation, Mr Zhu had been recruited by his university to work as an instructor for a year and noted that such an appointment would not occur if there were any character concerns.
Mr Zhu’s aunt, with whom he had lived, spoke about Mr Zhu’s character. She said that she has known him since his childhood and that he had grown up near her, including while he was at school. Mr Zhu then moved away from his hometown, first to university and then to follow his mother to Guangdong province, where he remained until returning to live with the aunt in 2019. She said that he respects his parents and has not had any issues with the law.
Mr Zhu’s prior solicitor in his migration matters, Mr Wang, provided two written statements and oral evidence. He wrote that he has known Mr Zhu since 2016 when he was Mr Zhu’s agent for a student visa. At the hearing, he spoke positively of Mr Zhu’s character. He believes that Mr Zhu did not have any intention to disobey Chinese law. He wrote in his submission, dated 21 June 2020, that Mr Zhu is ‘honest, consistent and is a man with integrity; further he is always respecting and following rules’.
Mr Zhu’s former employer, Mr Qian, gave evidence. He explained that he knew Mr Zhu since 2015 when he came to his shop to apply for a position. At that time, Mr Zhu told him about his conviction. Mr Qian explained that he was initially hesitant, but he spoke with a senior lawyer who told him that it was a false accusation. As Mr Zhu was very competent, Mr Qian hired him. During his time working with Mr Zhu, he stated that he never saw any inappropriate behaviour. Mr Qian’s company closed during the Covid pandemic, and Mr Zhu has not worked with him since, but were Mr Zhu to seek employment with him again, Mr Qian said that he would rehire Mr Zhu.
Mr Zhu claimed in the hearing that while in prison, he published an article in the prison’s magazine about families and faith and he taught other prisoners about Christianity, Confucius and Daoism. In the Personal Circumstances Form, he wrote that he had also taught computers and language to inmates. I accept that the applicant made positive contributions to the prison community, which reflects positively on his character.
Regarding Mr Zhu’s ties to China that may mitigate any possible intention or inclination towards bad behaviour in Australia arising from a risk of being imprisoned, Mr Zhu has a girlfriend, family and a business in China.
Regarding his girlfriend, he said that they are not planning to get married as he is prioritising his career. He explained that one of his girlfriend’s parents has a problem with the brain which requires long-term care and as such his focus over the long-term is on remaining in China.
Mr Zhu has family in China, including his aunt who gave evidence from which it can be concluded that he has a close relationship.
Mr Zhu has an e-commerce business which provides him with a comfortable life, according to his oral evidence. Mr Wang stated in his letter dated 18 October 2022 that Mr Zhu earned 80,000RMB per month through his business, which Mr Wang further commented, ‘suffices to support his living and travel expenses’.
I note that Mr Zhu has applied for a visitor visa and has indicated that he would stay about a month, depending upon what his employment allows. This is relevant as the Direction requires this Tribunal to consider ‘whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa’.
Mr Zhu’s parents gave assurances that during his short visit he would be accompanied at all times beginning at the point of arrival and throughout his stay noting that he does not have a driver’s licence and cannot speak English. I accept the assurances of the parents and note that the visa being for a short-stay limits the risks to the Australia community. I note that Mr Zhu had been tested at an earlier stage by the Tribunal on whether he had a genuine intention to stay temporarily where it was found that he had. There is no reason for me to doubt this finding.
I also accept that there are some compassionate grounds to allow Mr Zhu to visit his parents as they are older than in the years prior to the Covid pandemic when they more freely travelled back and forth from China. Mr Wang, in his written statement of 21 June 2020, noted that in Chinese culture ‘family reunion means a lot for every Chinese person’. Mr Zhu said that he wants to see his parents because of his concerns about their health and that he has not seen them for several years. He said that he is worried that were his parents to travel on a plane they could get Covid, and it would affect them more so than him. He noted how he had lost his father at a young age, and as a person who has honoured his parents, he wants to visit them. He wrote that it costs twice as much for both of his parents to travel instead of a single fare for him. A medical certificate was provided by Dr Mark McCoid which states that Ms Foster suffers from ‘significant somatic symptoms’ arising from the ‘refusal of visa to her son’. Dr McCoid goes on to write that it would benefit her health if her son was able to visit.
Nevertheless, the parents did indicate that they would return to China, including for the reason of lodging the appeal but that they had no specific plans as to when. Mr Foster indicated that it could be as soon as February 2024.
Mr Foster identified the reason for Mr Zhu’s visit as to see how his mother lives and spend time with this mother. He said that Mr Zhu would visit the grave of a parent of Mr Foster in Port Macquarie. Mr Foster said that his wife would be disappointed if her son were unable to visit.
Ms Foster noted that she had not seen her son in seven years and she identified this as the reason for her son to visit. But she acknowledged that she was last in China in 2018 but did not have a chance to visit him. That she has not seen him for seven years carries a limited weight, considering that the last time she was in China they did not arrange to meet.
When I asked Mr Zhu what he had learned from his experiences, he expressed no remorse. I do not place any weight on this as he is adamant that there was a wrongful conviction. Similarly, I note that Mr Zhu has not completed any rehabilitation courses or sexual offenders’ courses. When asked about this, he noted that China’s prison system does not offer such pathways and, in addition, he reaffirmed that he is not a sexual offender. I place no weight on the lack of participation in any courses.

Conclusions on the risk to the Australian community

Taking into considering the impact of Mr Zhu offending, the risk of him offending and the circumstances of his short stay, overall, I place limited weight in favour of refusing Mr Zhu’s visa. The applicant is applying for a short stay visa and intending to say approximately four weeks which limits the potential risk to the Australia community. His parents have committed to remain with him throughout his visit further protecting the Australian community. The applicant has a lot to lose were he to commit an offence in Australia. He has a girlfriend, a good business and strong relationships with his relatives. The purpose of his visit is moderately compelling in that his parents are several years older than they were when they last travelled to China and saw him. There is a risk for them travelling to China and some level of discomfort. The applicant has a strong sense of filial obligations which oblige him to see how his parents are living which is compounded by Chinese cultural elements. Any transgression in Australia would lose him the respect he holds in the eyes of his parents, relatives and community which would be harder to overcome than has been the case with the claim of corruption in his earlier case. With regards to his character, the witnesses were a diverse group of family, a work colleague and a migration agent. Across all of the witnesses the applicant’s character was conveyed as being overwhelmingly positive and there was a high level of confidence that the applicant would not offend while in Australia.

Conclusion: Primary Consideration 1

In turning my mind to the protection of the Australian community, I note that the nature and seriousness of the crime was given considerable weight. Any sexual crime is to be considered a ‘very serious’ crime according to the Direction. But when considering the risk of offending, I place limited weight as there are considerable factors which minimise the likelihood of offending. Overall, when considering the two together, I place moderate weight in favour of refusing the visa.

PRIMARY CONSIDERATION 2: WHETHER THE CONDUCT ENGAGED IN CONSTITUTED FAMILY VIOLENCE

The Direction informs decision-makers that the Government ‘has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen’.[21]
[21] Direction, paragraph 8.2(1).
Mr Zhu is not married. There are no claims that within his family unit there has been any family violence. Based upon the evidence before me, I place neutral weight on this factor.

PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

This factor requires the decision-maker to have regard to the strength, nature and duration of the non-citizen’s ties to Australia.
Mr Zhu’s mother is a permanent resident of Australia. His stepfather, whom he acknowledges as his father, is an Australian citizen. They both reside in Tasmania. Mr Zhu is an only child and, arising from the material presented to the Tribunal, he is close to his parents and has a filial outlook.
While the parents have indicated that they have intentions to travel to China, there are reasons for why this is difficult, including the cost of two trips, the age of the parents and the risks arising from Covid.
As noted in in paragraphs [22] and [24], Ms Foster has experienced emotional hardship arising from her inability to bring her son to Australia. The nature of the relationship between mother and son has been impacted by this unresolved ambition to have Mr Zhu visit and appears to weigh heavily upon her, as well as Mr Foster. I accept that, as a result, the strength and nature of Mr Zhu’s ties to Australia is greater than it otherwise would have been.
It was noted by Mr Sypott that Mr Zhu can apply for a visa in the future when the criminal appeal process is finalised favourably. Accepting the claims that the applicant has a strong case leads to finding that sometime in the future, following a successful appeal in China, the applicant will be able to apply for a new visitor visa and will not have the character concerns overhanging the application.
When considered overall, I place some weight against cancellation, based upon the strength, nature and duration of ties to Australia.

PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

The Direction requires decision-makers to consider whether a cancellation, refusal or non-revocation ‘is, or is not, in the best interests of a child affected by the decision’. The Direction provides a list of relevant factors that must be considered when weighing the bests interests of the child.
Mr Zhu does not have any children and no children are claimed to be impacted by this decision. Based upon the evidence before me, I place neutral weight on this factor.

PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

The Direction details the expectations of the Australian community which must be taken into consideration by the decision-maker. The Direction notes that ‘the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia’.[22]
[22] Direction, paragraph 8.5(1).

The Direction goes on to add:
In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
…
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect
Mr Zhu was convicted of sexual molestation of a 12-year-old girl. While Mr Zhu has denied that he committed this crime and presented oral evidence and legal statements to support a view that corruption played a role in the conviction and severity of the sentence, the law remains that this Tribunal is unable to go behind the conviction. That Mr Zhu was convicted of sexual molestation amounts to a crime of a sexual nature and as such is a serious crime that triggers the deemed understanding that the ‘Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere’.
Arising from the nature of the conviction and the accompanying sentence, I place considerable weight in favour of refusing Mr Zhu’s visa.

OTHER CONSIDERATIONS
Other Consideration: Legal consequences of the decision (paragraph 9.1)

Mr Zhu currently resides in China. There is no claim by either party, nor does evidence arise from the material, that there is a risk of a breach of Australia’s international obligations regarding non-refoulement obligations or any other legal obligations were the decision not to be set aside. Even were Mr Zhu’s visa to be refused, there are no legal consequences preventing Mr Zhu from applying for another visa while offshore.
As such, I place neutral weight on this consideration.

Other Consideration: Extent of impediments if removed (paragraph 9.2)

The Direction requires the decision-maker to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country. As Mr Zhu is not onshore and is currently residing in his home country, no matters arise under the extent of impediments. As such, I place neutral weight on this consideration.

Other Consideration: Impact on victims (paragraph 9.3)

This consideration relates to any known views of victims who are aware of the potential migration implications for the non-citizen.
There is no victim impact statement.

Other Consideration: Impact on Australian business interests (paragraph 9.4)

No submissions were received regarding any impact non-revocation would have on Australian business interests and, as such, I place neutral weight on this.

CONCLUSION

There are three relevant considerations, Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct, Primary Consideration 3: The Strength, Nature and Duration of Ties to Australia, and Primary Consideration 4: Expectations of the Australian Community. Based upon the weightings given for the first and second primary consideration, they negate each other leaving only the weight of the last of the three. In this matter, the deemed expectations of the Australia community lead to an overall weight in favour of refusing the visa.

DECISION

It follows that the Tribunal affirms the reviewable decision.

I certify that the preceding one hundred thirty-two (132) paragraphs are a true copy of the written reasons for the decision of Deputy President Dragovic.

..................................[sgd]......................................
Associate
Dated: 24 April 2023

Date of hearing: 27-28 March 2023

Advocate for the Applicant:
Applicant in Person

Advocate for the Respondent:

Solicitors for the Respondent:

Mr Keith Sypott

Australian Government Solicitor