Guo and Minister for Immigration and Border Protection (Migration) - [2017] AATA 778

Guo and Minister for Immigration and Border Protection (Migration) [2017] AATA 778 (10 May 2017)
Division:GENERAL DIVISION
File Number(s): 2014/6365; 2015/1261
Re:Qi Guang Guo (No 4)
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Justice D Kerr, President
Prof R Deutsch, Deputy President
Date:10 May 2017
Place:Sydney

The Tribunal affirms the decision to refuse the Applicant a Class 815 (PRC) (Permanent) entry visa.
................[sgd]..............................
Justice D Kerr, President
CATCHWORDS
MIGRATION – review of re-notified decision originally made 17 September 1996 – application for Class 815 (PRC) (Permanent) entry visa – other visa history and unlawful detention not relevant to review – transition provisions – s 501 Migration Act 1958 as in force immediately before 1 June 1999 – Directions pursuant to s 499 Migration Act 1958 not relevant to review – special cross-examination arrangements to protect confidentiality of witness’ evidence of informants and police methodologies – character – criminal conduct – criminal associations – standard of proof required – balance of probabilities – evaluation of circumstantial evidence – discretion – decision to refuse application affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975
Crimes (Sentencing Procedure) Act 1999 (NSW)
General Direction - Visa Refusal s 501 - No 5
Migration Act 1958
Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998
Migration Reform (Transitional Provisions) Regulations 1994
Migration (1993) Regulations (Amendment) (No 11/1994)
Ministerial Direction 65 (23 December 2014)
CASES
Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265
Camakau and Secretary, Department of Immigration [1999] AATA 789 (22 October 1999)
Commissioner of Police, New South Wales v Guo [2016] FCAFC 62 (20 April 2016)
Edwards v the Queen (1993) 178 CLR 193; 117 ALR 600; 68 A Crim R
Gruszkowski and Minister for Immigration and Multicultural Affairs [2000] AATA 402 (23 May 2000)
Guo and Minister for Immigration and Border Protection (Migration) [2016] AATA 125 (24 February 2016)
Guo and Minister for Immigration and Border Protection (Migration) [2016] AATA 897 (26 September 2016) (Guo No 2)
Guo and Minister for Immigration and Border Protection (Migration) [2016] AATA 901 (27 September 2016) (Guo No 3)
Guo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 729 (9 July 2004)
Lam v Minister for Immigration & Multicultural Affairs (2002) 117 FCR 325; 66 ALD 569
LSDG and Minister for Immigration and Border Protection (Migration) [2016] AATA 55 (4 February 2016)
Lu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 141 FCR 346
Madafferi and Minister for Immigration and Multicultural Affairs [2000] AATA 450 (7 June 2000)
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; 25 NSWCCR 218
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; 66 ALR 299; 60 ALJR 560
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; 329 ALR 491
Minister for Immigration & Citizenship v Haneef (2007) 160 CLR 414; 163 FCR 414; 243 ALR 606
Minister for Immigration and Ethnic Affairs v Pochi (1981) 149 CLR 139
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41; 31 ALR 666; 4 ALD 139
O’Sullivan v Farrrer (1989) 168 CLR 210; 64 ALJR 87; 89 ALR 71
Prior v Mole [2017] HCA 10
Pulepule and Department of Immigration and Multicultural Affairs [1999] AATA 1018 (24 December 1999)
Racoma and Minister for Immigration and Multicultural Affairs [2000] AATA 665 (7 August 2000)
Sands v State of South Australia [2015] SASCFC 36
Shi v Migration Agents Registration Authority (2008) 235 CLR 286; 82 ALJR 1147; 248 ALR 390
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; 322 ALR 581; 64 AAR 120
Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177
REASONS FOR DECISION
Justice D Kerr, President
Prof R Deutsch, Deputy President
10 May 2017
Contents
Decision
REASONS FOR DECISION
INTRODUCTION
Decision under review
Parties’ positions
The Applicant’s background
The visa application and decision
Notification of the 1996 Decision
Delay
Applicant’s visa history, claims, and prior periods in immigration detention
INTERLOCUTORY DECISIONS
Summons
Claim for public interest immunity
Crime Commission evidence
THE APPLICATION
The issues
The applicable law
The date at which the Tribunal is to consider the facts
Do any Ministerial Directions apply?
EVIDENCE ADDUCED ON BEHALF OF THE APPLICANT
Mr Qi Guang Guo’s evidence
Credit of Mr Guo
Evidence of Mr Jia Ning (Charlie) Guo: Exhibit A4
Credit of Mr Jia Ning (Charlie) Guo
Evidence of Mr Jia Rong (William) Guo: Exhibit A5
Credit of Mr Jia Rong (William) Guo
Evidence of Ms Wei Shi: Exhibit A6
Credit of Ms Wei Shi
Reference from Mr Zhaobang (Bill) Huang: Exhibit A7
Credit of Mr Zhaobang (Bill) Huang
Reference from Mr Yi Cheng: Exhibit A8
Credit of Mr Yi Cheng
EVIDENCE ADDUCED BY THE RESPONDENT
Detective Inspector Cadden
Mr Wayne Armstrong
Mr Timothy O’Connor
Exhibit R5
RESPONDENT’S EVIDENCE: CREDIT AND OBJECTIONS
Credibility
EVALUATION OF THE EVIDENCE: STANDARD OF PROOF
CONSIDERATION AND FINDINGS
Criminal convictions
Criminal conduct found by the Tribunal on the balance of probabilities
Conclusions on character having regard to past criminal conduct
Character as demonstrated by association with other persons or a group or organisation
Conclusions on character having regard to associations
Danger to the community
Enduring moral character
THE DISCRETION
Applicant’s submissions
Respondent’s submissions
Applicant’s submissions in reply
EXERCISE OF THE DISCRETION: CONSIDERATION
DECISION
NOTE ON THE CLOSED PART OF THE HEARING AND OUR CLOSED REASONS
INTRODUCTION
Decision under review

This matter requires the Administrative Appeals Tribunal (the Tribunal) to review a decision made over two decades ago, on 17 September 1996, by a delegate of the Respondent (then titled Minister for Immigration and Ethnic Affairs). The decision was to refuse the Applicant, Mr Qi Guang Guo, a Class 815 (PRC) (Permanent) entry visa.[1] The decision was made in reliance upon s 501(1) of the Migration Act 1958 (Cth) (Migration Act) as was then in force.
[1] Respondent G-Documents, undated letter, G2.
The reasons for the extraordinary period that has elapsed between the delegate’s decision and this review are summarised under the heading ‘Visa history’ below. The history of this matter is replete with mishaps.
Despite those mishaps it is not in dispute between the parties, and the Tribunal accepts, that although the decision currently under review was made many years ago, it was only recently notified to Mr Guo in a valid and lawful way. Upon it being so notified Mr Guo’s application for review was then made within time. The Tribunal accordingly has jurisdiction.
The issue for determination is whether the decision to refuse Mr Guo the visa he applied for in 1994 is the correct and preferable decision.
Parties’ positions
The Respondent submits (summarised and paraphrased) that Mr Guo should be refused that visa because the evidence and materials before the Tribunal establishes, inter alia, that he is not of good character both by reason of his own criminal conduct and because of his associations with others involved in criminal activities. In support of that contention the Respondent relies not only on Mr Guo’s admitted and proven convictions but also upon reports put into evidence through officers of New South Wales Police (NSW Police) and the New South Wales Crime Commission (Crime Commission). The Respondent submits that that evidence, notwithstanding its hearsay character, is credible, highly persuasive and should be accepted. The authors of the reports relied upon gave evidence to the Tribunal. The import of their evidence is that the Applicant was, and remains, a significant figure in Chinese organised crime in Australia.
The Applicant (again summarised and paraphrased) refutes those allegations. He submits that the proposition that he is or was a member of the “Big Circle Gang” crime syndicate and/or has been involved in serious organised crime is false and is entirely based on unreliable hearsay. He rejects all of the most serious of the allegations against him. He submits, to the extent that he has a criminal record, the convictions are for relatively minor matters. They do not justify the Tribunal concluding that he is not of good character. To the extent that those propositions are not accepted he submits the Tribunal should take into account the adverse consequences he will face if he is forced to leave Australia and return to China. His wife and children would be devastated. For those reasons the discretion to refuse the visa should not be exercised.
The Applicant’s background
The Applicant’s background is set out in his statement of 23 January 2015. He was born in Guangzhou City, the People’s Republic of China on 27 April 1957. He had married Ms Wei Shi on 11 February 1988, six months before travelling to Australia. They have two sons.
Since arriving in Sydney Australia on 5 August 1988 on a six month student visa Mr Guo has resided continuously in Australia. That amounts to a continuous period of residency in Australia of some 27 ½ years.
It is not in dispute that his wife and two adult sons are Australian citizens. They all reside in Australia.
On 28 November 1991 he was granted a temporary entry permit as a citizen of the People’s Republic of China resident in Australia in the aftermath of the Tiananmen Square protests. On 30 June 1994 he applied for a Class 815 PRC (Permanent) entry permit. His application (the decision under review) was refused on 17 September 1996.
In common with many others in his position, he was permitted to remain in Australia beyond the period normally applied to persons holding student visas as a result of Australia’s compassionate response to the suppression of the Tiananmen Square protests by the Chinese authorities. Special visa arrangements were put in place to allow Chinese nationals who held fears about returning to the PRC to claim protection.
The visa application and decision
On 30 June 1994, Mr Guo applied for a Class 815 (PRC) (Permanent) entry permit. That class of entry permit had been introduced by the Migration (1993) Regulations (Amendment) (No 11/1994) (1993 Regulations). The 1993 Regulations commenced operation on 1 March 1994.
Under the 1993 Regulations an application for the Class 815 entry permit was taken also to be an application for a Class 437 entry permit. Mr Guo subsequently was granted a Class 437 entry permit on 1 July 1994.
The 1993 Regulations provided that where the holder of a Class 437 entry permit was also an applicant for a Class 815 entry permit, the Class 437 entry permit would remain in force until the holder of that permit was notified in accordance with the those Regulations of the decision made in relation to the holder’s application for the Class 815 permanent entry permit.
As from 1 September 1994, the Migration Reform (Transitional Provisions) Regulations 1994 (Transitional Regulations) applied. These were new transitional regulations which had the effect of:
·taking the Applicant’s application for a Class 815 entry permit to be an application for a transitional (permanent) visa, that application to be decided according to the criteria that applied to the entry permit for which the Applicant’s original application was made; and
·ensuring that the Applicant’s Class 437 entry permit would continue in effect as a transitional temporary visa until the Applicant was notified of the decision made in relation to the application for a transitional (permanent) visa.
Correspondence dated 21 August 1995 from (then) Detective Sergeant (Det Sgt) Timothy O’Connor, of the NSW Police Drug Enforcement Agency (DEA), alerted the Department of Immigration and Ethnic Affairs (the Department) to his belief that Mr Guo was a more serious criminal than his formal record of convictions might suggest.[2] The information provided was considered in the preparation of a draft submission in relation to Mr Guo’s entitlement to a permanent visa. That draft was prepared by Ms Baumhammer, the acting Assistant Director ‘November 1 Task Force’. She replied to Det Sgt O’Connor:[3]
…Mr Guo meets all the core requirements. As there are no major convictions against [him], it is likely that his application…would be granted. Information available to the Department relates to activities Mr Guo is believed to have be involved in, and not to positive knowledge and evidence of involvement in criminal activities or membership of Triad or criminal gangs. Would it be possible for you to provide positive information on [Mr Guo] that would confirm his involvement in criminal activities.
[2] Exhibit R1, G9, letter to Ms Baumhammer.
[3] Exhibit A2, Annexure A, letter dated 30 August 1995.
She provided Det Sgt O’Connor with a copy of s 501 of the Migration Act for reference. She advised that she did not have “the required evidence which would substantiate the refusal of the grant of visa…” and the evidence “required would need to stand up to any challenge … through the Immigration Review Tribunal and the Federal Courts”.[4]
[4] Exhibit A2, Annexure A, letter dated 30 August 1995.
Subsequently the Department was supplied with a document, dated 15 February 1996, titled ‘Summary of Information with the New South Wales Crime Commission and the New South Wales Drug Enforcement Agency relating to the criminal associates of Guo Qi-Guang’[5] (1996 Summary). The 1996 Summary, signed by Det Sgt O’Connor, refers to certain specific matters involving seizures of large amounts of heroin and an assertion of the Applicant’s involvement with criminal associates in those regards. It concluded:[6]
It is the opinion of the writer that GUO is a large scale heroin dealer who is yet to be convicted. He is a close associate of many Sydney based South East Asian criminals who are linked to triad societies…
[5] Exhibit R1, G10.
[6] Exhibit R1, G10.
On 17 September 1996 Deputy Secretary, Mr Dennis Richardson, as delegate of the Minister, (the Delegate), made a decision, relying upon s 501 of the Migration Act, to refuse Mr Guo a transitional Class 815 (PRC) (Permanent) entry visa (1996 Decision).[7]
[7] Exhibit R1, G11.
The briefing paper before the Delegate set out the evidence said to justify that decision. It referred to advice that had been received by law enforcement authorities (the Australian Federal Police (AFP), the Crime Commission and the DEA) concluding, under the heading the ‘Assessment,’ (at [12]):[8]
[8] Exhibit R1, G11, p 41.
In our view, there is evidence that:
Mr Guo is not of good character having regard to his general conduct, s 501(2)(a). Mr Guo has attempted to deceive law enforcement officers and there are convictions against him;
Mr Guo is not of good character because of his association with another person, or with a group or organisation about whom there are reasonable grounds to believe, on the balance of probabilities, has been involved in criminal conduct, s 501(2)(b). The AFP have stated that Mr Guo was a member of the Triad group, and that seven of his colleagues are in prison and one is on bail;
If Mr Guo was allowed to remain in Australia he would be likely to engage in criminal conduct, s 501(1)(b)(i);
Mr Guo represents a danger to the Australian community or a segment of the Australian community, whether by way of being liable to become involved in activities that are disruptive to, or violence threatening harm to, that community segment or in any other way. Mr Guo’s past criminal record, activities and association with persons and groups involved in criminal conduct and drug trafficking, s 501(1)(b)(iv).
The briefing recommended to the Delegate:[9]
(A) That you rely on all of the substantiated grounds and find that the applicant Mr Guo Qi Guang is not of good character.
(B) You exercise the discretionary power in section 501 to refuse to grant of a visa Mr Guo Qi Guang.
[9] Exhibit R1, G11, p 42.
Both recommendations were accepted. The Delegate concluded, inter alia, that the Applicant had associations with persons or groups which, on the balance of probabilities had been involved in criminal conduct, and that on the balance of the evidence available Mr Guo would be likely to engage in criminal conduct if he was allowed to remain in Australia and that would represent a danger to the Australian community. The Delegate accepted that the interests of Mr Guo’s (then young) children was of central importance but not such as to outweigh those considerations.[10]
[10] Exhibit R1, G11, p 42.
Notification of the 1996 Decision
The 1996 Decision to refuse Mr Guo the grant of the visa he had was advised by a letter dated 25 October 1996, sent to him by registered mail (Original Notification).
It was later revealed that the Original Notification was flawed. However, before that defect was known, a number of events took place on the incorrect but then shared assumption that the Original Notification had been validly given.
In November 1996 Mr Guo applied to the AAT to review the decision. On 3 November 1997 that application was dismissed in consequence of his failure actively to pursue it.
The Tribunal is not aware of what may have prompted the issue to be again brought before the Tribunal. However on 17 January 2003 Mr Guo lodged two further applications. The first application was to reinstate his earlier review, the second was for an extension of time to lodge a new application.
On 9 July 2004 both applications were refused by Deputy President Handley (Guo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 729 (9 July 2004)). In neither of those proceedings was a defect in the Original Notification identified.
However it is uncontentious that at some later point in time the Department and Mr Guo became aware that the Original Notification had been legally deficient.
The defect was that the Original Notification had failed to inform him of the applicable time limits to make an application for merits review in the Tribunal. Accordingly it had not complied with the mandatory requirements for a valid notice for the purposes of reg 2.8 of the 1993 Regulations.
For that reason, (notwithstanding that Mr Guo arguably had suffered no detriment by the omission given that he had availed himself of the opportunity to make an, albeit failed, application for merits review) the Respondent accepted that the Applicant had never received legally effective notification of the 1996 Decision.
In order to remedy that oversight on 3 December 2014 Mr Guo was re-notified of the visa refusal decision by letter from the Department of Immigration and Border Protection (2014 Re-notification).[11]
[11] Exhibit R1, G1,letter dated 3 December 2014.
On 7 December 2014, the Applicant applied to this Tribunal for review of 2014 Re-notification.[12]
[12] Tribunal file number 2014/6365.
Unfortunately that also was blighted by mishap. There had been an error in the 2014 Re-notification. It too was a nullity.
A revised re-notification of the 1996 Decision was then sent to Mr Guo on 6 March 2015 (2015 Revised Re-notification) in order to correct the error in the 2014 re-notification.
The validity of the 2015 Revised Re-notification is not disputed.
It is common ground between the parties, and the Tribunal accepts, that because Mr Guo was not given an effective notification of the 1996 Decision until he received the 2015 Revised Re-notification the terms of the Transitional Regulations continued to apply to 6 March 2015.
That circumstance requires the conclusion that the Applicant continued to hold a transitional (temporary) visa until that time.
Only after he received lawful notice of the 1996 Decision did his Class 437 entry permit cease to be in force by virtue of s 501F (3) of the Migration Act. The Applicant thereupon became an unlawful non-citizen.

As an unlawful non-citizen the Applicant became subject to detention pursuant to s 189 of the Migration Act. For the reasons discussed below he was already in immigration detention at that time. His detention has continued.
Mr Guo filed an application for review on 18 March 2015 in respect of the 1996 Decision as notified by the 2015 Revised Re-notification.[13] That is the application before this Tribunal. Pending the determination of this review Mr Guo is residing at the Villawood Immigration Detention Centre (Villawood IDC).
[13] Application for review of decision, filed 18 March 2015.
Delay
The Applicant’s status as a person currently deprived of his liberty has weighed heavily with the Tribunal. Until these proceedings are determined Mr Guo remains in Villawood IDC. For that reason the Tribunal sought to complete this review as promptly as was reasonably possible. Unfortunately, despite those intentions, it could not be concluded quickly.
Both prior to and during the course of the hearing there were significant interlocutory proceedings in this Tribunal which required time to consider and dispose of: LSDG and Minister for Immigration and Border Protection (Migration) [2016] AATA 55 (4 February 2016) (LSDG); Guo and Minister for Immigration and Border Protection (Migration) [2016] AATA 125 (24 February 2016) (Guo and MIBP); Guo and Minister for Immigration and Border Protection (Migration) [2016] AATA 897 (26 September 2016) (Guo No 2); Guo and Minister for Immigration and Border Protection (Migration) [2016] AATA 901 (27 September 2016) (Guo No 3) (Guo No 3). There was also an appeal in one instance to the Federal Court of Australia (Federal Court): Commissioner of Police, New South Wales v Guo [2016] FCAFC 62 (20 April 2016) (Commissioner v Guo).
There were also occasions when the hearing was adjourned to accommodate the availability of the Applicant’s counsel. The Tribunal was advised that Mr Guo had given express instructions that he accepted the consequences of such delay.
Given the Tribunal’s statutory objectives, set out in s 2A of the Administrative Appeals Act 1975 (AAT Act), the length of time taken required to conclude this review is regrettable but it was in large measure unavoidable.
Applicant’s visa history, claims, and prior periods in immigration detention
Bridging visa history
Assuming, as the Tribunal and the parties commonly accept, the above accurately reflects the true legal position in respect of Mr Guo’s visa status then he held a valid transitional (temporary) visa, pursuant to the Transitional Regulations, at all relevant times until 6 March 2015. Therefore the proposition that Mr Guo might require a bridging visa prior to that date would be based on a false (if understandable) premise.
However, the materials before the Tribunal show that from 1 September 1994 up until 1 July 2011 the Applicant also held 12 separate bridging visas for varying periods as follows:[14]
[14] Applicant’s SOFIC, p 10 and Exhibit A9.
Visa Class                 Granted:  Valid to:
Class WA-010  1 September 1994                 2 December 1996
Class WC-030  12 May 1998  17 October 2007
Class WE-050  9 May 2005  23 May 2005
Class WE-050  23 May 2005  7 June 2005
Class WE-050  7 June 2005  21 June 2005
Class WE-050  21 June 2005  4 August 2005
Class WE-030  17 October 2007  15 May 2009
Class WE-050  18 June 2009  30 October 2009
Class WE-050  3 November 2009                  2 February 2010
Class WE-050  2 February 2010  16 February 2010
Class WE-050  16 February 2010                   2 March 2010
Class WE-050  3 March 2010  1 July 2011
As a matter of prudence, lest we be mistaken as to their significance, we note that those bridging visas were issued. However, we proceed on the basis that they were redundant, as a matter of law, and irrelevant to the matter before us.
Immigration Detention
It is uncontentious that the Applicant is currently in Villawood IDC. This period of detention appears to have commenced on 3 December 2014 in the aftermath of the 2014 Re-notification.[15]
[15] Exhibit A2, Applicant’s statement, 23 Jan 2015, para 33(f).
Since 6 March 2015, when the Applicant finally received lawful notice of the 1996 Decision and his Class 437 entry permit ceased to be in force by virtue of s 501F (3) of the Migration Act, Mr Guo’s detention pursuant to s 189 of that Act clearly has been lawful. Before that time, on the several occasions where there is evidence of it having occurred, it may not have been.
It was not disputed that, at least in one instance, his detention had been determined to have been unlawful. Mr Guo gave evidence that following detention by the NSW Police on 19 December 2004 he was transferred to Villawood IDC. He was released on “6 May 2005 after it was determined that I had been unlawfully detained for a period of 132 days”.[16] Mr Knowles, counsel representing the Respondent, did not put in issue Mr Guo’s assertion that he had received $100,000 in compensation for “the illegal detention”.[17]
[16] Exhibit A2, Applicant’s statement, 23 Jan 2015, para 33(d).
[17] Exhibit A2, Applicant’s statement, 23 Jan 2015, para 33(d).
In our view, the only facts relevant to these proceedings are that the Applicant:
(a) served several periods in immigration detention; and
(b) received $100,000 sometime after 6 May 2005 as compensation.
Their relevance is in relation to where he was and what he was doing at certain times and his access to funds.
However in our view it is not the Tribunal’s task to make findings regarding the lawfulness of any particular period spent by the Applicant in detention. If such matters are to be pursued they must be pursued in other forums.
INTERLOCUTORY DECISIONS
Summons
One significant issue requiring interlocutory determination by the Tribunal involved an application to set aside a summons issued by the Applicant to Mr John Giorgiutti, a former Senior Legal Officer and acting Commissioner of the Crime Commission.
The parties and counsel for the Crime Commission (appearing with leave of the Tribunal) filed considerable evidentiary materials and made extensive submissions on a range of legal and constitutional issues with respect to the summons.
That issue was ultimately resolved, prior to the commencement of the hearing, for lack of an adequate forensic basis for the summons and it was set aside: LSDG.
Claim for public interest immunity
A second set of interlocutory decisions concerned whether or not the Tribunal could or should permit cross-examination of witnesses called on behalf of the Respondent in respect of matters over which a claim for common law public interest immunity had been made.
That question arose in the following circumstances:
(a)The materials tendered by the Respondent in these proceedings included a letter to the Department dated 6 April 2006 sent by (now) Detective Inspector (Det Insp) Cadden in his then capacity as head of the NSW Police’s South East Asian Crime Squad.
(b)The letter referred to information in the ‘COPS’ database and information based on NSW Police ‘Intelligence Holdings’. The letter concluded with Det Insp Cadden expressing his belief, based on “intelligence and previous investigations,” that the Applicant was a person of considerable “bad character” involved at the highest level with the planning and carrying out of organised criminal activities.
(c)Det Insp Cadden when called as a witness by the Respondent adopted that statement. He gave evidence inter alia that his sending the letter of 6 April 2006 had been part of a strategy having the object of “getting rid” of Mr Guo from Australia.
(d)In the course of cross-examination Det Insp Cadden was asked a question regarding what he had been told by certain informants. An objection was made by counsel instructed by the NSW Commissioner of Police (the Commissioner) present at the hearing by leave of the Tribunal. The objection was taken on the basis of common law public interest immunity.
(e)The Tribunal overruled the objection (Guo and MIBP). The decision was on the basis (a) that common law public interest immunity did not apply in the Tribunal and (b) that the legitimate public interest which the Tribunal accepted existed regarding non-disclosure of the identity of informants could be adequately protected by directions proposed to be made by the Tribunal.
The Commissioner sought judicial review of the Tribunal’s decision. In Commissioner v Guo Robinson and Griffith JJ, Collier J concurring, held that by contrast to s 36D(6) of the AAT Act which expressly excluded the operation of “any rules of law that relate to the public interest and would otherwise apply in relation to the disclosure of information, or of matter contained in documents, in proceedings before the Tribunal,” the AAT Act was silent regarding the operation of those rules of law as they applied to answering questions at a hearing. It was held that because public interest immunity is a fundamental principle of the common law, the doctrine must continue to apply to the residual extent it had not been explicitly statutorily abrogated. The Tribunal had therefore erred in concluding that common law public interest did not apply in the case of oral testimony in the Tribunal.
When Det Insp Cadden’s cross-examination resumed the Commissioner renewed that objection on the basis of common law public interest immunity. Whether or not cross-examination should be permitted became the subject of written and oral submissions from the parties (both, but for different reasons, submitting that the balancing of the relevant public interests fell in favour of disclosure) and counsel representing the Commissioner (to the contrary).
The Tribunal overruled the Commissioner’s objection. We concluded, in Guo No 3, that in the circumstances:
(a)the Minister was relying on and urging the Tribunal to give significant weight to Det Insp Cadden’s evidence; and
(b)fairness to the Applicant required that it be capable of being robustly tested; and the Tribunal could provide a high level of assurance could be given that sensitive information would be protected; and
(c)that the balance of the relevant public interests in this particular review favoured the public interest of disclosure to the Tribunal over the public interest of non-disclosure.
The undertakings given by counsel for the parties and the terms of the directions made by the Tribunal to give a high level of assurance of subsequent non-dissemination of any sensitive evidence adduced under cross-examination are set out in an Annexure to our decision in Guo No 3.
On the basis of those directions, and subject to those undertakings, cross-examination of Det Insp Cadden, on those matters for which claims of public interest immunity had been made, was undertaken in the absence of the Applicant but in the presence of his counsel.
Cross-examination of the other witnesses for the Respondent, where that evidence was within the terms of those directions was also permitted, over objection, on a similar basis.
Crime Commission evidence
There was a third significant matter requiring an interlocutory decision.
The materials disclosed to Mr Guo in support of the Respondent’s case that the Applicant should be found to be not of good character included a statement dated 27 April 2015 made by Mr Timothy O’Connor, the Director of Criminal Investigations, Crime Commission.
Counsel for the Applicant objected to its admission. It was submitted that information in Mr O’Connor’s statement included a copy of an earlier document dated 3 November 1997 that he had sent to the Department. The contention was that the sending of the document involved a serious breach of Mr O’Connor’s duty as an officer of the Crime Commission because, at that point in time, he had not been delegated to disclose that information. It would involve a serious breach of NSW law were he now permitted to give that evidence to the Tribunal.
We held in Guo No 3 that it was unnecessary to decide what might have been the position in 1997 because Mr O’Connor had since been conferred with unimpeachable authority to disclose that information. We rejected the Applicant’s objection.
In our view, the above is sufficient to give a thumbnail sketch of the interlocutory rulings. The Tribunal’s published reasons address the relevant issues for each in much more detail and it is intended they be read as part of this decision.
THE APPLICATION
The issues
Counsel for the Applicant submitted that:[18]
The Tribunals’ task on review is to determine whether the correct and preferable decision is to grant the Applicant’s application for a transitional (permanent) visa under s 501(1) of the Migration Act.
[18] Applicant’s SOFIC, filed 21 April 2015, [5].
Counsel for the Respondent made submissions to the same effect.
In doing the Applicant submitted two primary issues arose:[19]
(a)First, whether the power to refuse the applicant’s application is enlivened, that is, whether the Tribunal is satisfied of any of the matters stated in ss 501(1) and (2) as in force immediately before 1 June 1999 (the applicable s 501).
(b)Secondly, if the refusal power under the applicable s 501 is enlivened, whether the correct and preferable exercise of the residual discretion is to grant or refuse the applicant’s application.
The Tribunal accepts those propositions to be correct.
[19] Applicant’s SOFIC, filed 21 April 2015, [6].
The applicable law
It is necessary to explain why the relevant legislative provisions governing the refusal of Mr Guo’s visa in this review are those which existed as in force immediately before 1 June 1999 rather than the current provisions of s 501.
The Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth) (Strengthening Act) introduced a number of significant procedural and substantive changes to s 501 of the Migration Act which came into force as from 1 June 1999. However, the Strengthening Act also made provision for transitional instances.
Item 32 of Schedule 1 of the Strengthening Act preserved the operation of s 501 as in force immediately prior to the commencement. Therefore the earlier version of s 501 continued to apply in circumstances where the Tribunal was to conduct a review of a visa refusal decision when the primary decision had been made prior to that date.
Previous authority of the Federal Court and prior reasoning of this Tribunal is consistent with that conclusion: Lam v Minister for Immigration & Multicultural Affairs (2002) 117 FCR 325; 66 ALD 569 at 5; Lu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 141 FCR 346 at 90 - 95; Pulepule and Department of Immigration and Multicultural Affairs [1999] AATA 1018 (24 December 1999) at 15; Gruszkowski and Minister for Immigration and Multicultural Affairs [2000] AATA 402 (23 May 2000) at 11; Camakau and Secretary, Department of Immigration [1999] AATA 789 (22 October 1999) at 15; Racoma and Minister for Immigration and Multicultural Affairs [2000] AATA 665 (7 August 2000) at 19.
Accordingly we were satisfied that in determining this review the Tribunal must apply s 501 of the Migration Act as was in force immediately before 1 June 1999 (s 501 as was in force).
At that point in time the section was as follows:
(1)   The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:
(a)   subsection (2) applies to the person; or
(b)   the Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would:
(i)be likely to engage in criminal conduct in Australia; or
(ii)vilify a segment of the Australian community; or
(iii)incite discord in the Australian community or in a segment of that community; or
(iv)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or violence threatening harm to, that community or segment, or in any other way.
(2)   This subsection applies to a person if the Minister:
(a)   having regard to:
(i)          the person’s past criminal conduct; or
(ii)          the person’s general conduct;
is satisfied that the person is not of good character; or
(b)   is satisfied that the person is not of good character because of the person’s association with another person, or with a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct.
(Emphasis added to indicate the potentially relevant provisions as identified by the Respondent)
The date at which the Tribunal is to consider the facts
The Tribunal does not conduct its review on the basis of the facts as they stood when the decision was made. Rather the Tribunal’s duty is to make the correct and preferable decision in light of the circumstances applying at the time of review (Shi v Migration Agents Registration Authority (2008) 235 CLR 286; 82 ALJR 1147; 248 ALR 390).
That is potentially important, particularly given the passage of time between the decision and this review. Hypothetically, the Tribunal could conclude that the decision maker had been correct to have been satisfied at the time of the decision that the Applicant was likely to engage in criminal conduct, but on the basis of post-decision information the Tribunal might be satisfied that such a conclusion is no longer warranted and so set the decision aside. Equally, hypothetically, the Tribunal might be of the view that materials before the decision maker had been inadequate then to justify the decision, but on the basis of further evidence relating to the Applicant’s subsequent conduct, nonetheless affirm it.
Similar factors would be relevant with regard to whether or not the Tribunal ought to be satisfied, or not satisfied, that the Applicant is relevantly “not of good character”.
The parties submit, and the Tribunal accepts, that the references to “character” in s 501 as was in force must be understood as alluding to the person’s ‘enduring moral character’.
However, even a person’s enduring moral character is not set in stone.
Again hypothetically, if the Tribunal was to be satisfied that as at the time of decision 20 years ago the Applicant had not been of good character but had since undergone genuine change such that, at the time of review he had become a person of (enduring) good moral character, any decision based the character test in s 501 would be liable to be set aside.
Do any Ministerial Directions apply?
Section 499 of the Migration Act authorises the Minister to give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Any direction must be laid before each House of the Parliament within 15 sitting days. A direction under s 499 must be complied with by those subject to it. There is no question that the Tribunal is relevantly a ‘body having functions under the Act’ and, to the extent any such direction is applicable in the relevant circumstances, is binding on this Tribunal.
The 1997 Direction
On 25 November 1997 the then Minister, pursuant to s 499 of the Migration Act, made a direction General Direction – Visa Refusal s 501 – No 5 (1997 Direction) to govern the principles and prescribe in greater detail how the statutory task under s 501 as was in force was required to be undertaken.
Had the 1997 Direction not been repealed the Tribunal may have been duty bound to comply with its terms. However, perhaps in the expectation that all transitional matters would have been dealt with by that time, the 1997 Direction was repealed by an instrument issued by the Minister dated 25 November 2008.
Both the Applicant and the Respondent agree this Tribunal cannot apply, nor have regard to, the 1997 Direction in conducting this review. We accept that to be correct.
Ministerial Direction 65

The current Ministerial Direction applying to visa refusal and cancellation came into effect on 23 December 2014 (Direction 65). It revoked an earlier relevant Ministerial Direction, Direction No 55, dated 25 July 2012.[20]
[20] Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction no 65), commenced on 23 December 2014.
A difficulty equally acknowledged by the parties but in respect of which they offered a different analysis, was that Direction 65 prescribes in detail how a decision maker must apply the current law rather than s 501 as was in force. It is the latter which is applicable to this review.
Ministerial Direction 65: Submissions by the parties
Counsel for the Applicant submitted Direction 65 must be read as applying exclusively to the duties of decision makers exercising the powers and functions conferred upon them by s 501 as currently in force:[21]
[Direction 65]…does not represent, and does not purport to represent, current government policy for the execution of the applicable s 501, which is the law that the Tribunal must apply in the conduct of this review. It is also part of a different statutory scheme.
When regard is had to the content of the 2014 Direction it becomes plain that, if a copy of the 2014 Direction had been placed before the delegate in 1996, it would not have been lawful for the delegate to give force to that direction in making his decision under the applicable s 501.
[21] Applicant’s closing submissions, dated 17 October 2016, [3].
Counsel for the Respondent accepted that Direction 65 could not apply in terms binding the Tribunal but was nonetheless relevant. That was because it could be regarded as an expression of government policy. Counsel submitted that the “…Tribunal, in reaching its decision, should have regard to government policy as outlined in Direction 65.”[22]
[22] Respondent’s closing submissions, [5].
In putting that submission, the Respondent acknowledged that:[23]
The direction does not apply in this case by force of s 499 of the Act. Further, some aspects of the direction (eg aspects of Annexure A) are of no application to this case because the “character test” as set out in the current legislation is substantially different to that applicable in this case.
Ministerial Direction 65: Discussion
[23] Respondent’s closing submissions, [7].
We have earlier noted that the Strengthening Act introduced a number of significant procedural and substantive changes to s 501 of the Migration Act.
We think it is sufficient to note that the Strengthening Act introduced some entirely new notions into s 501 including, but not limited to, substituting the threshold degree of satisfaction required in most instances to that of ‘reasonably suspects’ instead of ‘believes’ as well as entirely rewriting the character test.
As the short title to the Strengthening Act accurately reflects, those changes were meant to enact a stronger statutory framework for visa refusals and cancellations.
By contrast Item 32 of Schedule 1 of that Act was intended to ensure those changes would not have retrospective operation when a decision that had been made under the superseded s 501 became the subject of merits review.
We note counsel for the Respondent frankly acknowledged that Direction 65 does not directly apply by force of s 499 of the Migration Act.
In our view that concession must be correct. The provisions of Direction 65 are drafted on the basis that it applies to a person with the duty of exercising the functions or powers currently expressed by s 501. Compliance in terms with such a direction would be directly inconsistent with the duty of the Tribunal to decide this review on the basis of the law as was in force at the relevant time, immediately before 1 June 1999. That would impermissibly require the Tribunal to give retrospective application to the amendments introduced by the Strengthening Act notwithstanding the beneficial transitional arrangements effected by Item 32 of Schedule 1.
We have concluded that there is nothing in Direction 65 to suggest it should be construed as applicable to these proceedings. Moreover, if it be so construed it would be beyond power. The Minister cannot make a direction under s 499 that is inconsistent with the Migration Act (see s 499(2)). As a matter of orthodox statutory construction, we are satisfied that Direction 65 neither purports to, nor could it lawfully, apply to a review required to be conducted by this Tribunal of a decision made prior to 1 June 1999.
Relevance of Direction 65 as a statement of government policy
The Tribunal is unpersuaded that, notwithstanding it can be of no mandatory legal effect, Direction 65 nonetheless can be regarded as an expression of government policy with respect to this review.
Direction 65 is not directed to the task the Tribunal is required by law to undertake. It is a legally binding instrument (see s 499(2A) of the Migration Act) that must be complied with by decision makers applying the significantly different law that was brought into force by the Strengthening Act.
We accept the submission for the Applicant that there is nothing in Direction 65 to suggest that it, or any part of it, represents, or purports to represent, government policy with respect to how a decision maker should now apply s 501 as was in force.
No relevant policy statement
Save as discussed above, neither party could point to any statement of government policy relevant to the Tribunal’s present review task.
It may be thought hardly surprising that none exists. The series of mishaps that have plagued this matter over 20 years should be, and we hope will be, unique.
We are satisfied, for the reasons given, that there is no past or present direction under s 499 of the Migration Act which must be complied with.
We reject the submission that Direction 65 provides relevant policy guidance.
Statute prescribes the Tribunal’s duty
The absence of an obligation to comply with a Direction under s 499 of the Migration Act and the absence of any statement of government policy as applying to our task is no obstacle to the Tribunal conducting this review. As the parties accept, the Tribunal’s duty is to apply the law, as expressed in s 501 as was in force, to the evidence.
The text of that provision, read in its statutory context, identifies the Tribunal’s duty. No further gloss is necessary. The absence of a relevant Direction does not mean the Tribunal is free to decide this review upon a whim. Every statutory power and discretion implicitly is fettered. A power or discretion must be exercised within the boundaries, express or implicit, set by the enactment conferring it (Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265 at 375; 272-272 per Woodward J and see also Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; 66 ALR 299; 60 ALJR 560 per Gibbs CJ, Mason, Brennan, Deane and Dawson JJ at 39-40; 308-309; 565 per Mason J with whom Gibbs CJ and Dawson J agreed; O’Sullivan v Farrrer (1989) 168 CLR 210; 64 ALJR 87; 89 ALR 71 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ). The text of s 501 as was in force, properly construed in its statutory context, sets the boundaries in these proceedings.
EVIDENCE ADDUCED ON BEHALF OF THE APPLICANT
The Applicant adduced evidence. Some of it was written testimony and some evidence given before the Tribunal. Set out below is a summary of the evidence adduced together with our findings on credit.
Mr Qi Guang Guo’s evidence
Mr Guo gave evidence-in-chief in part by adopting two written statements (dated 23 January 2015 and 4 February 2015) that he had signed intending their submission to the Tribunal. He also gave oral evidence on 23 February 2016 and was cross-examined (on 23, 24 and 25 February 2016) and re-examined.
The Applicant does not read English and is not a fluent English speaker, but has some capacity to comprehend and speak English. He was assisted with translation of his written evidence and at the hearing was aided by interpreters. He indicated that he spoke Mandarin and Cantonese but was more capable in Mandarin.
Mr Guo gave his testimony with the assistance of a number of different interpreters (usually in Mandarin, but on occasion in Cantonese). The quality of interpretation appeared to us to vary between excellent and adequate. There were a number of occasions when one or more of the complex notions that needed translation, the length of a question, or the challenge of conveying with accuracy the names of places and venues or people not known to an interpreter led to difficulties for the witness and counsel. This is dealt with in the discussion and our conclusions regarding Mr Guo’s credit as a witness.
Mr Guo’s witness statement of 23 January 2015: Exhibit A2
Mr Guo’s statement of 23 January 2015 (Ex A2) began by recounting uncontentious background facts about his family and the decision under review (set out above under ‘The Applicant’s background’). He included an outline of visa resolution proceedings.[24]
[24] At [29]-[32].
With respect to his family he stated:[25]
i.There was a “heavy toll” on his family from the periods of detention.
ii.He had always sought to be a “good family man” trying to create a good life for his family.[26] While he had not been a perfect father and husband, especially in the early days when he used to gamble too much, he had since dealt with that issue. His family was everything to him. Even when his financial situation was difficult he tried to do things as a family and they had travelled to Melbourne, Tasmania and the Gold Coast.
He is concerned about the welfare of his family.[27]
[25] At [34]-[46].
[26] At [36]-[37].
[27] At [43].
He also deposed in his statement (Ex A2):
i.At the time of the 1996 Decision, his only criminal convictions were:
(a)possession of a falsified passport, used to attempt to visit his dying father in China, for which he had been fined $500; and
(b)being found in an illegal gambling house (where he says that he was sleeping, not gambling) for which he had been fined $150.
ii.He had been charged with conspiracy to supply a commercial quantity of a prohibited drug in 1994 but stated “I have always maintained my innocence against this charge and the charge was dropped prior to trial as the prosecution was unable to produce any evidence against me”[28] and he denied “all allegations” made by the Crime Commission of involvement with heroin distribution.[29]
[28] At [14].
[29] At [26]-[28].
iii.He had been charged for several other crimes but those charges were dropped because the police had no evidence. He regarded his being charged in those instances as “discrimination and pre-judgment by the police”.[30]
[30] At [15].
iv.He denied ever having been involved in large scale heroin distribution or being a member of any group, gang, triad or organisation involved in criminal conduct.
v.In respect of his alleged criminal associations Mr Guo said he had no idea who some of them were or knew others “only very casually”.
(a)One, Mr Qing-Quan Liang, “was a friend of a friend who was able to wire money to China”.[31] Mr Guo had “asked him to wire money to Hong Kong”[32] but there was no further association with him.
[31] At [20].
[32] At [20].
(b)Others were people he simply met in Long Bay Gaol, while awaiting trial for a crime for which he had not been convicted, who he would not have associated with otherwise.
(c)He stated that “I now guess” some of the people met in gambling houses and Long Bay Gaol were associated with criminal activities. However that did not mean he had known what those people did for a living nor whether they were involved in illegal activities. He asserted that it did not mean he was involved in their activities.
(d)He was not currently in contact with any of them (the people listed in Attachment H).
vi.He had been detained on six occasions.[33] So far as those periods of detention are relevant to this review they included the period following his arrest on 12 December 2001 by NSW Police after they had located suspected stolen goods at his house. The Applicant stated that those goods “were gold jewellery, which I accepted as payment for some loans...”[34] but he was unaware they were stolen.
[33] At [33].
[34] At [33].
vii.Also relevant to the proceeding, he had been detained again on 8 February 2012 after being charged by NSW Police in relation to prohibited drugs. Those drugs had been for personal use.
viii.He outlined his financial circumstances:[35]
[35] At [34]-[46].
(a)When he first arrived in Australia he had received some income as “a partner in an import/export type business in China” that “sourced permits in industries with quotas”.[36] The business would “obtain the permit as an intermediary and then on-sell those rights to foreign businesses, mostly in Hong Kong.” He had received money from that business until 1994/1995.
[36] At [38].
(b)Until 1995 he held a work permit and a tax file number. That had allowed him to undertake work “as a cleaner, in a restaurant and other casual jobs”.[37]
(c)Since 1996 he had been unemployed but made ends meet “through gambling and odd jobs through lending money to associates”.[38] Sometimes he had borrowed money from family and friends.
(d)From 2000 his financial position had improved somewhat when he “became a co-owner in a business which runs licenced massage parlours”.[39]
ix.He couldn’t prove that he was “an excellent person”[40] but stated that:
I think I’m just an ordinary person in society who tries to live by principles and to do the best to get by. I sometimes have dinner and drinks with friends, but I generally lead a very simple life, keeping to myself and spending time with my family.
x.His goal, if able to stay in Australia, would be to “make up what has been lost” to his family by reason of his issues with his visa and the police.[41]
xi.He had never hurt anyone in his “whole life in Australia” and he had not been convicted of any offence in the last 10 years.[42]
[37] At [39].
[38] At [41].
[39] At [41].
[40] At [44].
[41] At [45].
[42] At [46].
Mr Guo’s witness statement of 4 February 2015: Exhibit A3
The second witness statement adduced by Mr Guo was dated 4 February 2015 (Ex A3). The following summarises the evidence deposed in Ex A3:
i.He corrected a mistake he had made in his earlier statement, Ex A2 at [46], that stated he had not been convicted of any offence in the last 10 years. He clarified that he had not been thinking of his conviction “for possession of prohibited drugs in 2012 for own use to release my stress because no penalty had been imposed.”[43] He had been discharged with no penalty pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A.
[43] At [5].
ii.Mr Guo said that the substance of the allegations made against him by the Respondent in the Respondent’s Statement of Facts and Contentions, filed on 2 February 2015, (Respondent’s SOFIC) had been translated for him.
iii.In respect of the allegation that he had been involved in a conspiracy to supply a commercial quantity of a prohibited drug in 1994, he reasserted the denial made in Ex A2. He stated that the charges laid against him had been dropped because the “police did not have evidence for what they alleged”.[44] Furthermore, he asserted that he had not offered “any witness a bribe of $200,000 (or any other amount), or otherwise bribed or interfered with any witness in any way”,[45] and he knew nothing about the alleged bribe.
[44] At [7].
[45] At [7].
iv.In respect of the allegation that he had deliberately and repeatedly provided false information when apprehended after trying to leave Australia in 1994 on a false passport he admitted to giving false names. He explained that he had purchased a false passport when his father was dying. He said that he could not leave Australia under his own name because of his visa status. He had used the false passport to return to China to make funeral arrangements after his father died. He had been very emotional and upset at the time and had not appreciated the seriousness of those actions at the time.
v.Mr Guo explained certain large cash transfers made by him to his sisters in Hong Kong as having been “as noted in my previous statement [although no such statement appears]…payments made to repay loans to my sister”.[46] About half the money:[47]
[46] At [9].
[47] At [9].
…I had received from my sister, either through wire transfers or via friends who brought money in when they were visiting…I repaid the rest of the loan from money I had saved here in Australia that I made gambling or from interest I received through loans I had made to friends.
vi.He reiterated that in respect of the police having located suspected stolen goods (jewellery) at his house, the jewellery had been given to him to extinguish a debt and he didn’t know it was illegally obtained. He stated that at that time he had had money to lend.
vii.He denied ever having assaulted his wife, at [10]:
My wife often belived [sic] that I have various girlfriends. At times my wife and I had arguments…but I never hit kicked or punched my wife…I believe my wife called the police…because she was very angry with me and knew the police would make trouble for me...
viii.He explained the circumstances in which the police had found a large sum of cash and ecstasy tablets at his home in December 2001:[48]
[48] At [11].
The $769,300 in cash in a suitcase…I was holding for a friend of mine, Mr Jin Bao Liu…I had previously had many business dealings with Jin bao Liu while in China. The money was to be used to buy a farm in Australia…Jin Bao Liu had asked me to be power attorney [sic] for him because he had temporarily returned to China and the purchase contract had not yet been signed.
ix.He denied having had knowledge of the ecstasy tablets that had been found in the garage. He had not been charged in relation to them.
x.In response to claims that he was a member of the Big Circle Gang, he strongly denied those allegations. It was unfair to ask him to prove he was not a member of the Big Circle Gang. He believed people in the Chinese Ashfield community would say that the allegation was “ridiculous”.[49]
xi.He rejected as “complete nonsense” the allegation that Mr Zhong Sui Wang had been his bodyguard and had been shot on 14 July 2002 while acting as a human shield for him:[50]
I do not have a bodyguard I do not remember anyone getting shot the night referred to…I was very drunk that night and needed help getting out of the club…I do not think anyone got shot that night and I don’t have any knowledge about the alleged dispute between gangs over drugs…I strongly requested to have Zhong Sui Wang to produce evidence…
xii.He denied any knowledge of or involvement in Mr Wang’s alleged escape from Villawood IDC.
xiii.He strongly denied the allegation that he had been involved in an attack on Mr Zhen Chi Chen at “Chequers Health Centre in Goulburn St Sydney” (Chequers).[51] Although at Chequers on the evening he had been relaxing in a room, and had not been present at the time of the attack in the hall. When he was told by staff that fighting had broken out he went to have a look, saw Mr Chen had been injured and had been made aware that a taxi had been called for Mr Chen. He said police never contacted him about that incident.
xiv.He stated that he had not been living at the Strathfield residence in April 2010, although he was visiting several times a week. It was not correct that when the police searched the property that they found a number of chemicals and apparatuses commonly used in the manufacture of prohibited drugs, rather “all the police found were two plastic bottles of waste water of the type used as bongs”.[52]
[49] At [13].
[50] At [14].
[51] At [16].
[52] At [17].
Mr Guo’s oral examination-in chief

Mr Guo also gave oral evidence-in-chief.[53] This is a summary of that testimony (Transcript pp 144-176):
[53] 23 February 2016.
i.The passport, he tried to use for travel from Perth in 1994, was obtained from a Malaysian national. It was a Singaporean passport. He could not remember the name on it. He was unaware that the passport had been the subject of an alert by the AFP for currency offences. His charges for using a false passport had been dealt with in Sydney.
ii.He had also been charged with taking too much money out of the country (see clarifications relating to the translation: Transcript pp 152 to 153). Those charges had been dealt with in Perth. He could not remember whether he had been represented by a lawyer at the time, but if he had been nothing had been explained to him in a language he could understand.
iii.He denied having been a runner for anyone dealing in drugs. He had never been involved in agreeing to supply or in supplying illegal drugs.
iv.When asked “You have used drugs, yourself?” he answered “no”.[54]
[54] Transcript p 150.
v.He had heard about the Big Circle Gang, but he was not a member. Members of the Big Circle Gang had been pointed out to him but he had not joined them. The police had also alleged he was a member of another underworld gang, the “Sing Wo”. He had never been a member of Sing Wo either.
vi.He had heard about a man being stabbed in 2001 at a fish restaurant in Liverpool St, Ashfield. He did not own the restaurant, did not know its name, and he did not know Mr Zhang, the man who had been stabbed. He was not the person who had called the police.
vii.Several shareholders of the “Black Genie” in Ashfield were friends of his. As far as he was aware they were all business owners and not members of the Big Circle Gang or Sing Wo. He was not a shareholder in the Black Genie.
viii.He knew that a stabbing had happened in 2002 at Chequers. He knew Mr Zhen Chi Chen, who had been stabbed. He did not know if the stabbing had arisen out of a dispute between members of Sing Wo or the Big Circle Gang. He hadn’t been there when the dispute arose. He said:[55]
[55] Transcript p 158.
The service personnel reported to me that there was a fight outside and I went out and saw him…He said someone attacked me. I said who and then he identified someone so I took him out and got him a taxi.
ix.He said he had no relationship at all with “Mr Wang Shong Sui” (the Tribunal is satisfied this is a reference to Mr Zhong Sui Wang, his alleged bodyguard: see above Ex A3) who had been shot in 2002.
x.He had not attended a meeting of the Big Circle Gang at the Silver Spring Restaurant in Haymarket. The Silver Spring Restaurant was known by him as Manhan Restaurant. It could seat around 500 people. He had attended a birthday party there, along with other people some over the age of 60 years old and also children. A number of those other people had been detained by the police and officials of the Department. Mr Wang was detained.
xi.He knew nothing about Mr Wang’s escape from Villawood IDC the next day.
xii.The circumstances of his conviction for having had stolen goods in his custody were:[56]
[56] Transcript p 164.
In December 2001 police searched my place and took me to detention and two months later I was interrogated and I told them the jewellery belonged to me. They then charged me with…receiving and distributing stolen goods. I disputed that, so we went to court and because there was a hung jury…they continued to want to charge me. And then the lawyer advised that I might as well accept the smaller - lesser charge and we can negotiate and I asked what would be the consequence and they say I didn’t have to be imprisoned for even one day. I agreed with that proposition. The final judgment was the term for five months and 15 days, including three months when I spent in my detention.
xiii.With respect to his having been convicted for being in an illegal gaming house, a lawyer belonging to the gambling den had represented the group of 40 people who had been swept up in the police raid:[57]
[57] Transcript p 166.
When the police asked me, I said I was asleep and then their lawyer [the lawyer engaged by the illegal gambling den] came over and talked to them…the lawyer represented a lot of people and we were all fined $150. I didn’t even have to pay $150. The gambling den paid it.
He said he had never spoken to the lawyer.
xiv.Asked about the sources of his income Mr Guo said he had worked as an importer and exporter in China. When he came to Australia he brought his money with him. Also, he had “properties which...collected rent and tourist companies” in China from which he collected rent and payment was from an unidentified person who “regularly remitted it on to me.”[58]
[58] Transcript p 167.
xv.After arriving in Australia he had done casual work, including short term work as a waiter. That had stopped when he no longer had a work permit or a tax file number. Because he had only done casual work his tax had been sporadic.
xvi.The Black Genie had given him a “dry share”[59] in one gaming table. He was paid if he introduced customers and looked after them and the business. Private gambling casinos (including the Black Genie) had closed after the Sydney Casino opened.
xvii.The Sydney Casino had barred him a long time ago.
xviii.He had only ever rented, rather than owned, his accommodation. The houses and units he had rented for the convenience of his children going to school. Because he was “illegal” he had rented in the name of his friends or his wife.[60] During times he was in custody his friends had helped him pay the rent.
xix.With respect to living arrangements he answered “always” to the question of whether his family lived with him.[61] His wife paid the rent for the last house the family had lived in at Concord.
xx.He said that the allegation that he assaulted his wife in November 2004 was false. He accepted that their relationship had suffered as a result of his forced absences, and “[w]ithin those 20 years I’ve been in detention I’ve been arrested etcetera, who can say that our relationship can still be harmonious?”[62]
xxi.He restated that he loved his sons very much. They still had a good relationship and had been supportive of him. He felt bad because they had had to spend a lot of time visiting him in detention. Whether he could maintain a relationship with them if he was returned to China was “up to Australia.”[63]
xxii.His friendship network had shrunk as a result of his repeated detentions and the things that had happened to him. He was grateful to the people who had remained his friends, as they had been good to him.
xxiii.He would be embarrassed to see Mr Liu, his friend, who had given him the money to purchase the farm.
xxiv.He stated that if removed from Australia we could only go to China, and not to Hong Kong where his mother and one sister lived. His other sister now lives in England.
[59] Transcript p 168.
[60] Transcript p 169.
[61] Transcript p 169.
[62] Transcript p 174.
[63] Transcript p 174.
Cross-examination and re-examination
The cross-examination of Mr Guo occupied some considerable time on 23 and 24 February 2016. He was re-examined. A degree of latitude was extended in re-examination. For that reason it is convenient to deal with those matters together.
Criminal history - background to cross-examination
Mr Guo had deposed in his statement, Ex A2, that as at the date when his application had been refused, his only criminal convictions had been for (a) possession of a falsified passport and (b) being found in an illegal gambling house. In Ex A3 he had clarified that he also had possession for prohibited drugs in 2012.
A preliminary issue about the Applicant’s criminal history had arisen on the first day of hearing, 22 February 2016, after the opening statement of Mr James. At that time Mr Knowles sought to clarify Mr Guo’s criminal record:[64]
[64] Transcript p 33.
MR KNOWLES I’m just trying to clarify the criminal history as it’s recorded in the two
statements and there seems to be a discrepancy…the respondent’s statement of facts, issues and contentions differs in one material respect…[to] the applicant’s statement…There is a reference to a conviction on 17 January 1994 in paragraph 45 of the respondent’s statement, which does not appear in the applicant’s. I’m just trying to clarify.
MR JAMES Well, we say that that one is recorded as having been “convicted of the following offences, the failure to declare currency” is not us.
MR KNOWLES Is not you?
MR JAMES Is not us, and we will deal with that in cross-examination.
Mr James added:[65]
I can indicate, amongst other things, that the conviction is in the name of somebody else. So for it to be us, it would have to be proven appropriately.
[65] Transcript p 34.
Mr Knowles then put Mr Guo’s conviction history squarely in issue as follows:[66]
…the one conviction that is in issue is a conviction in relation to holding excess currency…there is a record of a conviction in the name of Lim Hui Hiong.
…It will be my submission that that conviction is in the name of – or that that name is the same name as the false passport on which the applicant tried to leave Australia and, therefore, that conviction should not only count against him in terms of character but perhaps doubly so because he allowed the court to proceed on the basis of a conviction under a false name.
[66] Transcript p 135.
When Mr Guo gave evidence-in-chief, his counsel asked him whether he had been charged with a currency offence and what had happened.[67] Mr Guo’s answers acknowledged that he had been charged with and prosecuted for such an offence, but made no admission of having been convicted.[68]
Criminal history – cross-examination
[67] Transcript p 147.
[68] Transcript p 148.
Under cross-examination Mr Guo sought to maintain that the person who had been convicted had not been him:[69]
MR KNOWLES Are you aware that that conviction was recorded under the name Hui Hong Lim? -- I can’t remember.
MR KNOWLES …but you agree that the person who was convicted was in fact you? -- In fact it wasn’t me.
PRESIDENT Sorry? -- In fact it was not me. The passport wasn’t me.
MR KNOWLES But the person who appeared in court was you? -- Yes.
[69] Transcript p 222.
The inevitable formal admission came some time later:[70]
PRESIDENT    Yes. Mr James, can I just clarify with you, in particular, the currency issue that was raised. Are we now on common ground that that is an offence that is part of the criminal history of the applicant? Or is that still in dispute?
MR JAMES     No, it’s not in dispute.
PRESIDENT    Right.
MR JAMES That is to say, he did commit a currency offence, that the name under which the currency offence was committed was the name of the false passport. The materials also disclose notes from immigration officers concerning his use of that name and the reasons he gave for the false passport, the - and that he, on those notes, is shown as giving other names, and they’re set out in the relevant passages and I take the court [sic] to them. ...
[70] Transcript p 234, 24 February 2016.
It was ultimately accepted for the Applicant that the correct summary of Mr Guo’s criminal history was as had been presented by the Respondent.
Domestic life
Under cross-examination Mr Guo reconfirmed the details of his family and his arrival in Australia. He provided the following background:[71]
[71] Transcript pp 176-180.
i.His wife and child followed him to Australia around August 1992, and that was the first time he had seen his son. In December of that year she had left Australia and returned to China without telling him of her intentions.
ii.Although Mr Guo was unclear on the dates he admitted he had had a girlfriend, Vivien, around the time his wife left Australia in 1992.
iii.He had visited China for 7 days on a special visa in 1992.
iv.His father had died in 1993.
v.His wife had remained in China for another two years and their second son was born before she returned to Australia to live, around May 1994. The younger son joined them in 2000.
vi.He said in over 20 years with his wife “there was no problem. No big problem…”[72] They had had arguments but there was no violence. There were times where he had run out of the house after such an argument. He did not know what his wife had done after he had run out of the house but on one occasion he had later been charged by the police.
vii.In re-examination he conceded that he had had relations with various other women during his marriage. His wife had found out around 2004 and she had quarrelled with him.[73] In 2008 he had a girlfriend.[74]
viii.He gave evidence that there were times that he and his wife had separated. When his wife was living at Strathfield he used to visit her two or three times a week to have a meal and visit the children.[75]
ix.He had a key to his then girlfriend’s unit in Ultimo where he often went, probably weekly. He accepted that when the police had searched those premises in 2012 they had found $19,800 in cash, jewellery and a drug pipe. He said he had bought her the jewellery, but he had never seen any large amounts of cash or a drug pipe.[76]
x.He knew that, from time to time throughout his marriage, his wife had been charged with offences relating to drugs. He had never participated in her business and had distanced himself from it. He had not been satisfied with her friends, her behaviours or her actions.[77] Although he visited her home to see the children several times a week he had not known she was manufacturing illegal drugs at her house at Strathfield. In re-examination he stated that he did not think she had been involved in the Big Circle Gang or any other organised crime group.[78]
Means of financial support
[72] Transcript p 245.
[73] Transcript p 298.
[74] Transcript p 247.
[75] Transcript pp 252-253.
[76] Transcript pp 253-255.
[77] Transcript p 253.
[78] Transcript pp 305-306.
The Applicant gave evidence about his sources of income since coming to Australia:
i.He denied that he had ceased to receive rents from his properties in China in 1996. He stated he was still receiving rents now.[79] He had maintained his livelihood around 1994/95 “through various methods”.[80]
ii.Asked if he maintained what he had said in his statement (Ex A2, [40]) that he had been unemployed since 1996, that it had been very harsh on his family, that he had made “ends meet through gambling and odd jobs and lending money to associates” and had had to borrow money he replied: “It was the general situation at the time”.[81]
iii.Asked if he had become a part owner of a massage parlour in 2000 he replied “Yes, somebody looked after me.”[82] When asked what he meant by that expression he explained: “At that time, because of my condition - my situation then, I did not have any status. So out of the goodness of their heart, they helped me”.[83]
iv.The massage parlour, he said was named “Health Centre”, was licensed. It had been located in a big tall building in Haymarket. He stated that it was a “health business, such as foot health, blood circulation, and relaxation, whole body relaxation. Nothing to do with sex.”[84]
v.He acknowledged that he had not produced any records of income to the Tribunal from that business. His explanation was that he had had no tax file number: “If I don’t have any status, why should I provide that? I do not have the right, why should I have the responsibility?”[85]
vi.He clarified the money he had made by gambling was the result of a table he had owned in an illegal casino, rather than by placing bets at a casino.[86]
vii.He acknowledged that he had been gifted a share of a gaming table at the Black Genie, which “was a karaoke. They came to spend money, sing and drink”.[87] He said he got money for looking after customers. He had not supplied drugs and “If drugs were used it was individual behaviour”.[88]
viii.He clarified that he had made money through lending money: “If you want the table to continue functioning, you have to lend money for people to gamble”.[89] He denied threatening anyone when collecting the money and said that “[i]f they need threatening I would not lend them the money, sorry”.[90] His reason for not having declared any income from the Black Genie for tax was that “[a]t the end of the business, Black Genie did not make any profit”.[91] He claimed never to have received money from his dry shareholding.[92]
ix.Mr Guo admitted that the casinos he had earned money from had been un-licenced. In response to a question suggesting he had been aware the casinos were “operating against the law” he answered: “At that time I wasn’t quite - I couldn’t - I wasn’t - I couldn’t - I wasn’t able to comprehend”.[93] He then admitted that he had been earlier convicted for the offence of gambling in an unlawful casino.
Gambling expenditure
[79] Transcript p 199.
[80] Transcript p 199.
[81] Transcript p 199.
[82] Transcript p 192.
[83] Transcript p 192.
[84] Transcript pp 192 and 194.
[85] Transcript p 195.
[86] Transcript pp 186 and 188.
[87] Transcript pp 195-196.
[88] Transcript p 197.
[89] Transcript p 200.
[90] Transcript p 201.
[91] Transcript p 198.
[92] Transcript p 198.
[93] See Transcript pp 184-185.
The Applicant was cross-examined about his gambling:[94]
i.Asked whether, between 1995 and 1997, he had “gambled quite a lot of money at Star City [Casino]…large amounts” he answered “Don’t know”.[95] He disagreed that he had bet more than $900,000 and lost more than $600,000 at Star City Casino gambling over the two years.
ii.He did not dispute that Star City Casino records disclosed that in a two year period between 1995 and 1997 the holder of a VIP card in his name had laid bets of more than $900,000 at Star City Casino, and had lost more than $600,000. Nor did he dispute that Star City Casino records disclosed that a VIP card in his wife’s name had recorded bets of more than $2,300,000, and losses of more than $650,000. However he denied that the VIP card transaction totals represented bets he and his wife had made.
iii.The Star City Casino VIP cards issued at the time did not have photo ID. He said that such cards could be, and had been, used by others. He had lost 7 to 10 of his VIP cards and those cards were out of his control. Both he and his wife had also lent their VIP cards to other people. They had done that in order to accumulate points that entitled them to meals at Star City Casino. Mr Guo denied having acted dishonestly by lending his VIP card to other people because “everyone is doing it”.[96]
iv.He said that neither he nor his wife had made large bets.
v.He had been banned from Star City Casino in 1997.
Personal use of drugs
[94] See Transcript pp 201-206.
[95] Transcript pp 201-202.
[96] Transcript p 204.
The Applicant gave evidence about his history of drug use:
i.He claimed that he had been “against using drugs” between the time of his arrival in Australia and 2009.[97] He said that he had started using ice after someone had suggested it could pacify or lessen his stress. He was not an addict. He had not used ice for four years.
[97] Transcript p 206.
ii.Mr Guo denied that in 2004 he had taken drugs ingested by way of tablets but then stated that he had no memory of what he may have done at that time:[98]
MR KNOWLES Your evidence is that you didn’t use drugs at all in 2004; is that right? -- I cannot remember.
MR KNOWLES So you don’t know whether or not you used drugs? -- I don’t know what drugs. Nobody tells me they are drugs.
MR KNOWLES So you just take the pills that people give you; is that the position? -- I can’t remember.
iii.When pressed he claimed that he “Didn’t know” that ice was an illegal drug.[99] He later admitted knowing that ice, heroin and ecstasy were illegal drugs and he had known since at least 2004 that ice was illegal.[100]
iv.Mr Guo admitted that he had been convicted for possession of ice on 9 February 2012.[101] He had told police it was for his own use.
Alleged conspiracy to supply a commercial quantity of a prohibited drug (1994)
[98] Transcript pp 212-213.
[99] Transcript p 208.
[100] Transcript pp 244-245.
[101] Transcript p 253.

Consistently with that approach we are satisfied that ‘at the final stage of the process’ the various facts and circumstances which we have referred to above raise the inference, on the balance of probabilities, that Mr Guo conspired in and around 1992 with Mr Liang to supply a commercial quantity of a prohibited drug (heroin).
Our reasons are as follows:
(a)Mr Guo knew Mr Liang. In 1992 through the agency of Mr Liang, Mr Guo transferred $59,000.00 overseas to Hong Kong. Through his wife and girlfriend Mr Guo transferred a further $84,000.00 to Hong Kong the same year. We give no credit to Mr Guo’s account that he was returning money he owed to his sisters. In light of the circumstances that followed we think it open to the Tribunal to infer that that money was intended by Mr Guo and Mr Liang to procure heroin.
(b)Mr Guo was with Mr Liang on the day Mr Liang had collected 5lbs of block high grade heroin. He fled following Mr Liang’s arrest. We are entitled to regard that as an acknowledgment of guilt and do so. He had remained in hiding until caught trying to leave the country with a false passport. He lied to the Tribunal about his knowledge of Mr Liang and his lack of knowledge of Mr Liang’s arrest. We are entitled to regard that also as an acknowledgment of guilt. We do so. Mr Liang then named Mr Guo as a co-offender and received a discount on his sentence for undertaking to give evidence against him. Mr Liang later changed his mind. There is a plausible basis for the Tribunal to conclude that Mr Liang withdrew his evidence having being promised $200,000.00 to do so by Mr Guo. Mr Guo’s bank records then show substantial withdrawals over a short period in 1996 totalling slightly more than that sum. First hand hearsay confirms that $200,000.00 was paid to Mr Liang.
Evaluated as a whole those circumstances lead inexorably to a single conclusion. We find on the balance of probabilities that Mr Guo conspired in and around 1992 with Mr Liang to supply a commercial quantity of a prohibited drug (heroin).
No-one could suggest that a person of good character would have been involved in such a conspiracy. We formally record a finding that he is not of good character for that reason.
Conclusions on character having regard to past criminal conduct
Taking into account our several findings and conclusions cumulatively (and individually in the case of his conspiring to supply a commercial quantity of heroin) set out above we are satisfied that on the balance of probability, having regard to his past criminal conduct it has been established that Mr Guo is not of good character within the meaning of s 501(2)(a)(i) as was in force.
We would be so satisfied even if we are in error in finding that on the balance of probabilities that Mr Guo conspired in and around 1992 with Mr Liang to supply a commercial quantity of heroin.
Having reached that conclusion we need not make findings about other alleged past criminal conduct of Mr Guo including his having been the instigator of a stabbing which occurred at Chequers, any part he may have played in a shooting of a man alleged to be his bodyguard who subsequently escaped from Villawood IDC, or his participation in the manufacture of drugs with his wife.
Further, because the Tribunal is satisfied that Mr Guo is not of good character by reason of his past criminal conduct we need not make findings regarding his want of character under the second “general conduct” limb of s 501(2)(a) as was in force. We note however that Mr Guo’s lies to immigration officials, his lies to a previous Tribunal, and his lies to this Tribunal would have counted powerfully towards the like conclusion had that been necessary to determine.
Character as demonstrated by association with other persons or a group or organisation
The Tribunal should make brief findings with respect to Mr Guo’s associations. The power to cancel a visa pursuant to s 501(2)(b) as was in force is also enlivened if the Minister is satisfied that “because of his association with another person, or with a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct” he is not of good character.
Having regard to the evidence given by both Mr Armstrong and Mr O’Connor in the closed hearing we think it is not possible for the Tribunal to make a finding that Mr Guo was a leader of the Big Circle Gang in Australia as contended by the Respondent. Evidence given by Mr Armstrong and Mr O’Connor under cross-examination in the closed part of the hearing has led us to conclude that while there is a Big Circle Gang in China with identifiable members there is nothing quite of that nature in Australia. Rather there are shifting opportunistic alliances of organised criminals within which alliance leaders emerge. While some criminals of Chinese ethnicity claim membership of, and may commonly be spoken of as members of the Big Circle Gang, given the evidence of those senior law enforcement officials the Tribunal cannot affirmatively find that Mr Guo was a leader of the Big Circle Gang.
We nonetheless find that for the purposes of s 501(2)(b) as was in force that Mr Guo is not of good character because of his associations.
Even discounting our earlier finding that Mr Guo conspired with Mr Liang to supply a commercial quantity of heroin the evidence clearly establishes that Mr Guo did associate with Mr Liang. Mr Liang was sentenced to a minimum term of six years imprisonment for supplying heroin.
The evidence before the Tribunal at also establishes that when Mr Guo was in remand pending trial for the conspiracy offence he was twice visited by Mr Tang. Mr Tang was convicted of knowingly taking part in the supply of heroin a very short time later. Following his release from remand Mr Guo made four separate visits to two prisoners Mr Cheng and Mr Beng. Both Mr Cheng and Mr Beng were imprisoned for drug offences.
Having rejected Mr Guo’s general credit we place no credence on his exculpatory account that he had no relationship with Mr Tang, or that their discussions had been about “buying food, buying stuff.” Nor do we accept that he could not recall visiting Mr Cheng in Long Bay Gaol.
We accept that for the purpose of s 501 as was in force a relevant association with a person, group or organisation will only be established if the Tribunal is satisfied that there is an association “involving some sympathy with, or support for, or involvement in common of the criminal conduct of the person, group or organisation. The association must be such as to have some bearing upon the person’s character”: Minister for Immigration & Citizenship v Haneef (2007) 160 CLR 414; 163 FCR 414; 243 ALR 606 at 130.
We so characterise those visits. We are satisfied that those visits and his admitted visit to Mr Mok in prison reveal a pattern of association with major drug dealers.
We are further satisfied that the evidence establishes that Mr Guo could, and did, exercise significant authority over other persons involved in organised crime. Putting aside the issue of whether or not Mr Guo instigated the stabbing (which we have concluded we do not need to decide) that can be illustrated by events which took place at Chequers when Mr Chen was stabbed.
We accept the evidence of Det Insp Cadden that Mr Chen was stabbed during an altercation between members of rival organised crime gangs in a brothel. Whatever the reliability of the names that Det Insp Cadden attributed to those rival groups, there is no reason to reject his evidence in that regard.
Det Insp Cadden’s gave evidence that he had seen video showing Mr Guo exercising power and authority over other Chinese organised crime figures that night. He had intended to produce that video to the Tribunal but it had been misplaced. However we accept his evidence that he had seen that video. We also accept that as a senior investigator of South East Asian crime groups he had the capacity to identify those involved in the fighting as members of rival criminal groups. He was not challenged in that regard.
Mr Guo’s own evidence confirmed that he did exercise power and authority over those involved.
His evidence was that he had been in Chequers in a small room resting. A waitress had come in to tell him of the stabbing. He had just got out of the shower so he got dressed. He had then intervened to stop the fighting, pulled them apart and arranged for the injured to be taken away.
The Tribunal finds it implausible that any ordinary client of Chequers would have had the authority (or the courage) to effectively intervene in such a fight. Only a person with significant authority in the eyes of those involved would, or could, have done that.
Conclusions on character having regard to associations
We are satisfied that Mr Guo, because of his association with drug dealers and other participants in organised crime, is not of good character within the meaning of s 501(2)(b) as was in force.
Danger to the community
We make no finding that Mr Guo is not of good character within the meaning of s 501(1)(b)(iv) as was in force.
As a matter of statutory interpretation we are of the view that any probability of Mr Guo resuming a life of crime would not fall within the meaning of those words. We think all ‘ordinary’ criminal conduct and associations was intended to be dealt with exclusively pursuant to the more specific provisions of s 501 to which we have given detailed attention.
Enduring moral character
We gave attention earlier in these reasons that references to good character, in s 501 as was in force, must be understood as references to a person’s enduring moral character. We noted hypothetically, that if the Tribunal was to find that 20 years ago Mr Guo had not been of good character but had since undergone genuine change such that, as at the time of this review he had become person of (enduring) good moral character, a decision based on his former character could not be sustained.
However no such case was made on Mr Guo’s behalf. Instead it was urged that having acquired an undeserved reputation Mr Guo was unfairly treated with suspicion by law enforcement. We have rejected that premise.
The Tribunal is satisfied that Mr Guo’s want of good character, as recorded in our findings, remains his enduring moral character. We find that, given the opportunity, Mr Guo would again seek to earn his income through unlawful means. That conclusion is reinforced by Ex R5.
THE DISCRETION
Applicant’s submissions
Mr James and Mr King correctly submitted that even if the power to refuse Mr Guo’s visa is enlivened the Tribunal still must decide on balance whether to exercise the discretion whether to do so under s 501 as was in force. In their written closing submissions counsel put the following:[176]
·the consequences of the review are relevant to the exercise of the discretion;[177] and
·as a result of the procedural history the Applicant has suffered prejudice, in particular that he has been treated in a way that a person without lawful entitlement may be treated by the Minister, police and the Crime Commission.[178]
[176] Applicant’s closing submissions, 2-4.
[177] Applicant’s closing submissions, [4]-[5].
[178] Applicant’s closing submissions, [6].
Respondent’s submissions
Mr Knowles submitted:[179]
·The consequences of the review, including impact on the Applicant’s family, are relevant once “the power under s 501 is enlivened”, but the duration of the Applicant’s time in Australia “is not a matter which would support an exercise of the discretion” in his favour;[180]
·There was no prejudice arising from the defect in notification;[181]
·The prior convictions and the Applicant’s conduct go to dishonesty, a willingness to give false information, and consciousness of guilt in serious criminal charges;[182] and
·The Tribunal should take account of the Applicant’s evidence as an “unimpressive witness.”[183]
[179] Respondent’s closing submissions, pp 2-10.
[180] Respondent’s closing submissions, [10].
[181] Respondent’s closing submissions, [11].
[182] Respondent’s closing submissions, [21]-[27].
[183] Respondent’s closing submissions, [28]-[35].
Applicant’s submissions in reply
In reply the following arguments, inter alia, were advanced:
·Mr Guo’s past criminal conduct is limited to minor convictions and “does not require a finding now that the applicant is not of good character.”[184]
·The Respondent has failed to prove “that the applicant was involved in the criminal conduct of any person alleged to be an associate.”[185]
·On the evidence available to it, “the Tribunal cannot find that the applicant would be more likely than not to engage in criminal conduct in Australia.”[186]
·There is insufficient evidence that the “the applicant would more likely than not represent a danger to the Australian community.”[187]
·Given the family circumstances of the Applicant it would be preferable that he remain in Australia.[188]
·The evidence is largely hearsay or remote hearsay and the “conclusions sought by the Minister cannot follow as rational inferences from such circumstantial facts as have been established.”[189]
·Consideration should be given to the duration of residency in Australia.[190]
[184] Applicant’s closing reply, [1(a)].
[185] Applicant’s closing reply, [1(b)].
[186] Applicant’s closing reply, [1(c)].
[187] Applicant’s closing reply, [1(d)].
[188] Applicant’s closing reply, [1(e)].
[189] Applicant’s closing reply, [4]-[8].
[190] Applicant’s closing reply, [9]-[10].

EXERCISE OF THE DISCRETION: CONSIDERATION
We have rejected that Mr Guo’s past criminal conduct can be categorised as minor. That proposition is inconsistent with the Tribunal’s findings.
We are satisfied that the findings we have made entitle the Tribunal to exercise the discretion to refuse Mr Guo a visa. That discretion must be exercised within the boundaries, express or implicit, required by s 501(1) as was in force.
The terms of s 501 as was in force point to the protection of the Australian community as a relevant consideration to the exercise of that discretion. The Respondent submits that the seriousness of Mr Guo’s conduct strongly favours the discretion being exercised to affirm the original decision. However the provisions of s 501 as was in force require the Tribunal to balance against that the consequences to Mr Guo personally, to his family and the wider community of an adverse decision.
We therefore turn to the considerations that are in favour of the balance being otherwise struck.
We accept the submission advanced on Mr Guo’s behalf that the consequences of an adverse decision for Mr Guo are relevant and will be significant.
If Mr Guo is refused the visa he will be required to return to China. It is not implausible that a person with Mr Guo’s background might already have come to the notice of the Chinese authorities such that, if he was to return, he would become subject to law enforcement surveillance. However, it is equally likely that he would be subject to similar law enforcement attention if permitted to remain in Australia. We reject the proposition that a prospect of his coming under police surveillance if returned should be accorded any weight as a factor in exercising our discretion in his favour.
The Tribunal accepts that since the death of his father Mr Guo has no immediate family in mainland China. There is nothing before us to dispute his contention that he would not be able to relocate to Hong Kong where his mother and one of his sisters live. We accept that Mr Guo will have some difficulty re-establishing a settled life in China, but given his past he would confront difficulties even if he is permitted to remain in Australia. He has no history of his having earned a living by legal means, or possession of the skills and education that would assist with his doing so.
In our opinion, being required to return to China would be difficult for Mr Guo but would not leave him incapable of rebuilding his life. He has been away from China for some decades but he grew up and lived there until his early adulthood. Mr Guo speaks both Mandarin and Cantonese as native languages. Both Mr Guo and his wife gave evidence that Mr Guo owns businesses in China. Mr Guo’s evidence was that he still receives money from those businesses. Having no immediate family in China is a relevant consideration, but in the circumstances we give it only modest weight as a factor inclining the Tribunal to exercise the discretion in his favour.
Also in Mr Guo’s favour is the length of time he has lived in Australia. We reject the Respondent’s submission to the contrary. We are entitled to assume that after more than two decades Mr Guo would have made local friendships and connections that will be detrimentally affected if he is no longer permitted to remain part of the Australian community. The more than twenty years Mr Guo has lived in Australia therefore must be a relevant consideration. However it is not a significant consideration in Mr Guo’s favour given that his associates have often been, as we have found, criminals. We give this factor, considered in isolation from his ties to his family, only small weight.
We therefore turn to a matter conceded by the Respondent to be in Mr Guo’s favour - the impact on his family.
Given Mr Guo’s evidence under cross-examination, we give no weight to his relationship with his wife as a factor for the exercise of the discretion in his favour.
The position is different with respect to his two sons, even accepting both are now adults.
We are satisfied that, whatever Mr Guo’s deficiencies as a father may be, his sons still genuinely and deeply care for him. They view it as their duty to look after him in his old age and they want him to be present to see his grandchildren. They each will be distressed if the outcome of this review results in their father being removed from the Australian community.
On its face that is a significant consideration for the exercise of our discretion in Mr Guo’s favour.
However, the materials that Mr Guo adduced, reveal that he has previously expressed equanimity about the prospect of returning to China at a time when his children were young (Ex A1, p 59). There is also the material in Ex R5.
The Tribunal is unpersuaded that his sons’ concern for, and sense of duty towards, their father is equally matched by his for them.
While it may be of little immediate comfort to his sons we note that there would appear to be nothing to prevent them, as Australian citizens, visiting their father in China were he to return there. However we accept that their distress is a significantly relevant factor for us to take into account.
Finally the Tribunal accepts that the procedural history of his review reveals that the Applicant has at least on one occasion been unlawfully detained. The Tribunal has made no findings, but does not discount, that there may have been other occasions where Mr Guo’s detention might be asserted to be similarly unlawful. If he is required to leave Australia it may be more difficult for him to pursue any legal proceedings that he may be advised to initiate. However, in light of the fact that the same procedural history reveals that some administrative errors have been to be to his advantage by permitting him to remain in Australia, we give that consideration only modest weight.
Balancing all of the considerations that we have accepted to be relevant, we are satisfied that the seriousness of Mr Guo’s proven criminal conduct and his proven association with persons involved in criminal conduct show such want of good character as to outweigh what we have found to be relatively modest factors in his favour - with the exception of the distress that his removal will cause to his sons. Even with that significant factor added to the balance, we would still exercise the discretion to refuse Mr Guo the visa he has sought.

We accept the Respondent’s submissions that s 501 as was in force requires us to take into account the protection of the Australian community. We have found Mr Guo’s conduct and adverse character as proven in these proceedings is sufficiently serious as to engage those principles. We do not find the countervailing factors sufficient to outweigh that. We decline to exercise the discretion in his favour.
DECISION
We affirm the decision under review.
We amend the s 35 order by Deputy President Deutsch, dated 7 May 2015, applying to the statement of Mr Wayne Armstrong so as to permit the publication of the extracts contained in these reasons. The order otherwise remains in effect.
NOTE ON THE CLOSED PART OF THE HEARING AND OUR CLOSED REASONS
The closed part of our hearing ensured that counsel were able to cross-examine and re-examine the three law enforcement witnesses called by the Respondent notwithstanding claims of public interest immunity.
In Madafferi and Minister for Immigration and Multicultural Affairs [2000] AATA 450 (7 June 2000) then Deputy President Alan Blow (now Chief Justice of Tasmania) indicated that he had gained little assistance from such a procedure. That was not the case in these proceedings. That was in no small part due to the extensive cross-examination of those witnesses by counsel for the Applicant.
We have taken into account the frank concessions made which were to the Applicant’s advantage. However some additional evidence favourable to the Respondent’s case also emerged. While the process was undoubtedly cumbersome, given the history of these proceedings we are comfortably satisfied that its worth was proven. We thank counsel for the parties, counsel for the Commissioner and the Commission, and the witnesses who were inconvenienced by various delays for their good will and cooperation in assisting the Tribunal reach a correct and preferable decision.
We have been able to refer to the evidence that was given in the closed part of the hearing and to explain our conclusions without the need for a transcript.
Our brief closed reasons refer only to two specific items of evidence Exhibit R5 and the first hand hearsay evidence referred to regarding the payment of a bribe of $200,000 to Mr Liang.
Access to those closed reasons and material subject to orders that the Tribunal has made under s 35 of the AAT Act will remain unavailable, save on terms provided for by our prior directions.
In addition, these reasons have been redacted prior to publication to protect third party privacy, consistent with the Tribunal’s procedures.

I certify that the preceding 342 (three hundred and forty -two) paragraphs are a true copy of the reasons for the decision herein of Justice D Kerr, President , Prof R Deutsch, Deputy President

.......................[sgd].................................................
Associate
Dated: 10 May 2017

Date(s) of hearing: 22 - 25 February; 26, 27 and 29 September 2016

Date final submissions received: 12 January 2017

Counsel for the Applicant: Mr G James QC with Mr J King

Advocate for the Applicant: Ms Y Zhang

Solicitors for the Applicant: Ren Zhou Lawyers

Counsel for the Respondent: Mr P Knowles

Advocate for the Respondent: Ms D Watson

Solicitors for the Respondent: Australian Government Solicitor

Counsel for the Non-Party: Mr T Glover

Advocate for the Non-Party: Ms P Csenderits

Solicitors for Non-Party: NSW Crown Solicitor’s Office

Date(s) of hearing:	22 - 25 February; 26, 27 and 29 September 2016
Date final submissions received:	12 January 2017
Counsel for the Applicant:	Mr G James QC with Mr J King
Advocate for the Applicant:	Ms Y Zhang
Solicitors for the Applicant:	Ren Zhou Lawyers
Counsel for the Respondent:	Mr P Knowles
Advocate for the Respondent:	Ms D Watson
Solicitors for the Respondent:	Australian Government Solicitor
Counsel for the Non-Party:	Mr T Glover
Advocate for the Non-Party:	Ms P Csenderits
Solicitors for Non-Party:	NSW Crown Solicitor’s Office