He and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 797

He and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 797 (8 April 2021)

Division:GENERAL DIVISION

File Number(s):      2020/1221

Re:Lianhua He

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member R West

Date:8 April 2021

Place:Melbourne

The decision under review is set aside and the application is remitted to the Minister for reconsideration with a direction that the discretion in s 501(1) of the Act be exercised in favour of the Applicant.

................................[sgd]........................................

Member R West

Catchwords

REFUSAL OF RESIDENT VISA – Visa Applicant off-shore – criminal offences - character test under s 501(6)(d)(i) not satisfied – discretion under s.501(6) – factors to be considered under Direction 79 – discretion in favour of not refusing visa – matter remitted to Minister for reconsideration.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Sentencing Act 1991 (Vic)

Cases

CGX20 v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (No 2) FCA 1842

FYBR v Minister for Home Affairs [2019] FCAFC 185

PQSM v Minister for Home Affairs [2019] FCA 1540

Secondary Materials

Ministerial Direction 79 – 'Visa Refusal and Cancellation Under s501 and revocation of a mandatory cancellation of a visa under s501CA'

REASONS FOR DECISION

Member R West

8 April 2021

INTRODUCTION AND BACKGROUND

1. This matter concerns an application filed on 4 March 2020, by Ms Lianhua He (‘Applicant’), seeking review of a decision of a delegate of the Respondent dated 14 February 2020 to refuse to grant Mr Kairin Nakamoto (‘Visa Applicant’) a Return (Residence) (Class BB) visa pursuant to subsection 501(1) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Visa Applicant was born in China and became a citizen of Japan in 2000.  At the time of hearing of this matter, he was offshore and living in China.

3. The Applicant is an Australian citizen.  She is the wife of the Visa Applicant.  They were married on 12 March 2010.

4. The Visa Applicant first arrived in Australia on 12 June 2006 as the holder of a Student (Class TU) (subclass 572) visa.  He subsequently held a permanent Partner (Class BS) (subclass 801) visa (Partner Visa) based on his relationship with the Applicant.

5. On 6 September 2019, the Visa Applicant travelled from Australia to China to visit his family. The Partner Visa ceased to be in effect upon his departure.

6. On 16 September 2019, the Applicant applied on the Visa Applicant's behalf for a Return (Residence) (Class BB) visa while the Visa Applicant remained offshore. The Application was refused by a delegate of the Respondent on 14 February 2020 (‘Reviewable Decision’).

7. The Applicant applied to the Tribunal on 4 March 2020 for a review of the Reviewable Decision.

8. A hearing in relation to the review was held by video conference on 8 and 9 February 2021.  The Applicant was represented by Mr Matthew Keneally of counsel. Witnesses were assisted by a Mandarin interpreter. The Respondent was represented by Mr Bromley Hornsby, a solicitor from Minter Ellison.

9. The hearing was conducted in the context of restrictions placed on the community in response to the COVID-19 pandemic. These restrictions necessitated that the hearing be conducted without the parties attending in person or that it be deferred until after the restrictions were lifted. The Applicant and the Respondent each consented to the hearing proceeding on the basis that it be conducted by video conference. Pursuant to s 33A of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’) the Tribunal conducted the hearing by video conference.

   LEGISLATION

10. Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that they pass the character test.

11. There are two aspects to the discretion under s 500(1). The discretion to refuse an application under the sub-section only arises where the decision-maker is not satisfied that the applicant passes the character test.

12. In the Reviewable Decision the Minister’s delegate refused the visa to the Visa Applicant on the basis that he did not pass the character test and, after taking into account the relevant considerations, the delegate exercised the discretion in s 501(1) of the Act to refuse to grant the visa.

    ISSUES

13. The issues for the Tribunal on review are:

    (a) whether the Visa Applicant passes the character test as defined in s 501(6) of the Act; and

    (b) if he does not pass the character test, whether the discretion in s 501(1) of the Act should be exercised to refuse him a visa.

    EVIDENCE

14. In conducting the review, the Tribunal has had regard to:

    (a) the documents produced to the Tribunal by the Respondent pursuant to s 500(6F) of the Act (‘G Documents’)[1];

    [1] Referred to in this decision by the prefix G in relation to the original G Documents, SG in relation to the Supplementary Documents and FSG in relation to the Further Supplementary Documents as filed by the Respondent.

    (b)  the additional documents listed as exhibits in Appendix A; and

    (c)   the oral evidence of

    i.the Visa Applicant;

    ii.Pastor Jiansheng Ruan;

    iii.Muyuan Si;

    iv.the Applicant;

    v.Mika Nakamoto; and

    vi.Mr Tim Watson-Munro.

    Visa Applicant

15. The Visa Applicant provided three separate witness statements[2] and gave extensive oral evidence at the hearing.  His evidence was:

    [2] Exhibits A2 and A3 and G13 at p 116-118

    (a)  he was born in May 1962 in Shanghai, China.  He received tertiary education and worked as a steel rolling engineer in China; 

    (b)  in April 1992 he went to Japan to study a Bachelor degree in Electrical and Electronic Engineering on a scholarship.  He completed his degree in 1998 and worked in Japan for Anzen Food Manufacturing until 2002.  From 2002 until 2006 he had irregular work;

    (c)   in 1994 he briefly returned to China and married Tokurie Nakamoto (formerly known as Tan Deli), who he had known whilst growing up in China. He sponsored Tokurie to live with him in Japan and in March 1998 they had a daughter, Mika;

    (d)  in 2000 he was granted Japanese citizenship;

    (e)  in around April 2006 he and Tokurie were divorced; 

    (f)    he came to Australia as a student in May 2006. Tokurie and Mika remained in Japan, but he continued to have regular contact with Mika through social media;

    (g)  since his arrival in Australia he worked primarily as a driver, including tourist buses and heavy vehicles.  He said he had also undertaken work as a freelance cable technician maintaining surveillance video and telephone telecommunications equipment;

    (h)  in November 2009 he met the Applicant in Australia and they were married in March 2010.  In July 2011 they had a son, who will be known by the pseudonym ‘SW’.  The Applicant had a son, Kevin, by a previous marriage;

    (i)    in March 2011 there was a major earthquake and a tsunami in Japan which caused a serious incident at the Fukushima nuclear power plant.  This caused him to be concerned for the welfare of Tokurie and Mika and he persuaded them to come to Australia. He had invited them to stay in his home. At the time Tokurie and Mika moved into his home, the Applicant was pregnant with ‘SW’ and her own son Kevin was living with them.  This family dynamic resulted in a lot of arguments and tension for everyone, but especially between the Visa Applicant and the Applicant. Tokurie and Mika moved out of his home in August 2012 and Tokurie subsequently remarried and is now living in Castlemaine;

    (j)    the Visa Applicant acknowledged having been convicted of various offences between 2012 and 2015, including two counts of assault against his wife, one count of assaulting a police officer and multiple offences for breaching intervention orders.  The Visa Applicant was sentenced to a term of imprisonment for 90 days in July 2014 and 99 days in November 2015.  Including time spent in custody on remand, the Visa Applicant was incarcerated for a total of 472 days over the period from July 2012 until his release from prison on 18 November 2015;

    (k)   after his release from prison in 2015, he converted to Christianity and was baptized as a Christian in 2016.  Since 2016 he has attended the Holy Trinity Anglican Church at Doncaster under the pastoral care of Pastor Jiansheng Ruan and his wife.  Pastor Ruan and his wife had provided advice to him and the Applicant which helped them address issues in their marriage;

    (l)    in September 2019 he travelled back to China to see his father who was seriously ill.  His father later died. While in China he has lived with his older sister Shanzhu Wang in Shanghai. He remained in China on a visitor visa which has to be renewed every three months, with a maximum period of extension of one year which expired on 9 January 2021.  However, because of the COVID-19 pandemic and associated travel restrictions he has been allowed to stay in China beyond the twelve-month limit, with his current visa being extended to 16 February 2021.

16. A National Police History Check dated 27 September 2019 was produced to the Tribunal.[3]   It set out the Visa Applicant’s criminal history:

    (a)3 August 2012: the Visa Applicant was charged with the offence 'contravene family violence intervention order – intend harm/fear'.  The charge was adjourned by the Melbourne Magistrates’ Court until 1 February 2013 on the basis of a good behaviour bond;[4]

    (b)16 July 2014: the Visa Applicant was convicted by the Melbourne County Court of Victoria of two counts of 'unlawful assault', two counts of 'contravene family violence interim intervention order', and five counts of 'contravene family violence intervention order' for which he was sentenced to various terms of imprisonment, to be served in part concurrently, resulting in a total effective sentence of 90 days imprisonment;[5]

    (c)16 February 2015: the Melbourne Magistrates’ Court found the offence 'contravene family violence interim intervention order', proven against the Visa Applicant but dismissed it under s 76 of the Sentencing Act 1991 (Vic). This was in circumstances where the Visa Applicant had language difficulties and had been in custody for over one year without bail on the charge.[6]

    (d)10 March 2015: the Visa Applicant was convicted by the Melbourne County Court of Victoria of 'assault police' resulting in a $1,000 fine;[7] and

    (e)18 November 2015: the Visa Applicant was convicted by the Melbourne Magistrates’ Court of 'recklessly cause injury', 'contravene family violence intervention order – intend harm/fear', 'contravene family violence final intervention order', 'unlawful assault', and 'behave in offensive manner in public place', for which he was sentenced to 99 days of imprisonment and placed on a Community Corrections Order to be of good behaviour for six months.[8]

    [3] G3 at pp. 25-26.

    [4] SG 5.

    [5] SG 39, 40 and 43.

    [6] SG44.

    [7] SG41.

    [8] SG 46 and 47.

17. The G Documents confirmed the following history of intervention orders having been granted in relation to the Visa Applicant for the protection of the Applicant and other protected persons:

    (a)31 July 2012: full intervention order issued;[9]

    (b)7 August 2012: full intervention order issued prohibiting contact with the Applicant;[10]

    (c)13 December 2012: interim intervention order issued for the protection of the Applicant and prohibiting going within 200m of her places of work, residence or school or childcare;[11]

    (d)4 July 2013: interim intervention order issued prohibiting him from going within five metres of the Applicant;[12] and

    (e)14 January 2014: full intervention order varied to include the Visa Applicant’s son ‘SW’ as a protected person.[13]

    [9] G16 at p.139.

    [10] G28 and 29.

    [11] G29.

    [12] G30.

    [13] G17 at pp.142-143.

    Applicant

18. The Applicant provided three written statements[14] to the Tribunal and gave oral evidence.

    [14] Exhibits A8, A9 and A10.

19. The Applicant stated that she is an Australian citizen.  She works as a registered nurse at the Footscray Hospital and formerly at the Royal Melbourne Hospital.

20. She said she first met the Visa Applicant in 2009 and they were married in March 2010.  They have a son, ‘SW’, who was born in July 2011.  She described the Visa Applicant as a hard-working, diligent father and husband who, before leaving to go to China, worked hard to support her financially and in maintaining the household.  She said she keeps in daily contact with the Visa Applicant via WeChat and he supports her with love and care as her husband and partner.

21. She expressed concern that if the Visa Applicant cannot return to Australia it will place a burden on her to care for her son alone.  She said she works in a demanding job, made all the more difficult over the last year by the COVID-19 pandemic.  She has great difficulty caring for ‘SW’ over the school holidays when she has to work.  She said she also needs her husband’s financial support because she has multiple mortgage payments totaling $4,600 per month plus body corporate fees and council rates as well as bills for school.

22. She said that her son needs his father for physical, psychological and financial support.  She said that ‘SW’ and his father are very close and speak everyday over WeChat. She stated that her son had been the victim of bullying at school and in her view the Visa Applicant has a closer relationship with ‘SW’, and he would be better placed to help him deal with such personal issues.  She also said that the Visa Applicant assists her son with his schoolwork and has the patience and energy to teach him.

23. She claimed that she and the Visa Applicant would like to put the past incidents of domestic violence behind them.  She stated that they had been living a peaceful and happy life for 4 years after the Visa Applicant was released from prison in 2015.  She said they had each forgiven each other.  She stated that she did not believe her husband posed a risk to her or her son and confirmed that the last intervention order had expired in early 2018.  She confirmed her husband’s conversion to Christianity and their participation in the church.

24. She stated that she and her son had met up with the Visa Applicant in Thailand for a holiday together in December 2019 - January 2020.

25. In her oral evidence she confirmed that she had no concerns regarding the Visa Applicant looking after ‘SW’ and stated that he loves his son more than himself. 

    Pastor Jiansheng Ruan

26. Pastor Ruan provided a witness statement[15] and gave evidence by telephone at the hearing.

    [15] Exhibit A1.

27. He confirmed that he is the locum pastor at the Holy Trinity Anglican Church in Doncaster.  He said he was aware of the Visa Applicant’s criminal history.  He said the Visa Applicant had attended his church with his wife and son regularly for several years up until he returned to China.  He confirmed that the Visa Applicant continues to be involved in church activities even though he is overseas.

28. Pastor Ruan said that the Visa Applicant and the Applicant had approached him and his wife seeking counselling regarding their marital issues.  He said that he and his wife listened to their issues and then provided guidance from a Christian perspective.  He observed that over time the Visa Applicant and the Applicant had been getting on better as a married couple and they had reported to him and his wife that they felt their relationship had improved.

    Mika Nakamoto

29. Ms Nakamoto, the daughter of the Visa Applicant by his first marriage, provided a witness statement[16] and gave evidence at the hearing.  She stated that she was born in March 1998 in Hamamatsu, Japan.  She became an Australian citizen in July 2019.

    [16] Exhibit A14.

30. She came to Australia in 2011 after the Fukushima disaster with her mother and initially lived with the Visa Applicant and his family.  She stated that the domestic circumstances at the time were very hard for everyone, and that the Visa Applicant had frequent fights with the Applicant and her son Kevin over the fact that she and her mother had migrated to Australia. She recalled her father’s first arrest in 2012 following a big argument between the Visa Applicant and the Applicant.  She said her father was stressed and worried about her mother’s visa and her future and behaved aggressively towards everyone around him and had difficulty controlling his temper.

    She confirmed that the Visa Applicant was a loving and caring father and that after the divorce he kept in regular contact with her via Skype while she was in Japan.  She said they continue to have a close relationship and had dinner and shopped together fortnightly.  She said that she and his family all really need him to come back to Australia.

    Muyuan Si

31. Mr Si gave evidence at the hearing and provided a letter of support for the Visa Applicant.[17]  He is a director of Scafeast Building Supply Pty Ltd.  He confirmed that the Visa Applicant worked for his company as a truck driver and technician from January 2019.  He stated that the Visa Applicant was a skilled and reliable employee and the company was eager to employ him upon his return to Australia.

    [17] Exhibit A4.

    Character Witnesses

32. Written statements in support of the Visa Applicant were provided by Patrick Ni[18], Prasanna Venkatesh[19] and Chen Liqun.[20]  The statements were admitted into evidence as read.  The Respondent did not seek to cross examine any of the three deponents.

    [18] Exhibit A11.

    [19] Exhibit A12.

    [20] Exhibit A13.

33. Mr Ni, a director of Nison Engineering Co. Pty Ltd, stated that he had known the Visa Applicant for 10 years as he had provided transport services to the company and installed its surveillance equipment.  He attested to the Visa Applicant being a trustworthy and responsible person.  Mr Venkatesh, a neighbour of the Applicant, described the Visa Applicant as a nice man who gave him the impression of being a responsible father and husband.  Mr Chen, a parishioner at the Doncaster Anglican Church, attested to the Visa Applicant’s involvement in the activities of the Church community and stated that the Visa Applicant is a Christian who pursues spiritual awakening and works hard to practice it in his life – loving God and others.  He said the Visa Applicant was a father who was very fond of children and a husband who took good care of his wife, as well as a warm-hearted and friendly brother to the brothers and sisters in the group.

    Tim Watson-Munro

34. Mr Watson-Munro, consultant psychologist, interviewed the Visa Applicant by videoconference on 3 and 10 September 2020.  He took a detailed history and administered various psychometric tests. He set out his conclusions in a report dated 21 September 2020.[21] He also gave evidence at the hearing.

    [21] Exhibit A5.

35. In the report Mr Watson Munro noted that the Beck Depression Inventory, a self-reporting questionnaire, confirmed that the Visa Applicant suffered a moderate and recurring depressive disorder.  From the Hare Psychopathy Checklist – Revised (PCL-R) test Mr Watson Munro noted that the Visa Applicant’s results were unremarkable notwithstanding his prior criminal history and opined that:

    ..he cannot be considered to be psychopathic in his orientation. This is consistent with his expressions of remorse, his positive aspirations for the future, his pro-social attitude and his deep concern for his family, as well as his desire to maintain employment.

36. Mr Watson Munro’s overall conclusion was that the risk of the Visa Applicant reoffending was low. He stated:

    There was nothing in my assessment to indicate that he is innately predisposed towards anti-social behaviour. I say this advisedly notwithstanding his prior forensic history. He is an individual with insight, who is remorseful for his past behaviour. He has positive aspirations for the future in terms of his employment and he has now stabilised his domestic situation. There is no history of drug use or alcohol abuse. It nonetheless may be advisable, subject to him returning to Australia, for him to have some supportive and motivational psychotherapy with a view to reinforcing the progress that he has made.

1. Mr Watson Munro gave evidence to the Tribunal by telephone. He justified his opinion that the Visa Applicant has a low risk of reoffending by pointing to a number of factors, namely that:

   (a)his last conviction was 5 years ago;

   (b)he last contacted the police in 2018/2019;

   (c)his marriage was now stable;

   (d)his conversion to Christianity gave him structure and purpose;

   (e)he was not affected by drugs or alcohol;

   (f)he is intelligent and educated;

   (g)he has strong bonds with his wife, his son and his daughter;

   (h)he is keen to return to Australia; and

   (i)he has reflected on his situation while in China.

2. He confirmed that he did not think the Visa Applicant had a mental illness but thought psychotherapy would assist him to deal with his anxiety. However, his problems are mild and the risk would not be materially altered by undertaking psychotherapy.

3. He acknowledged that the Visa Applicant had unresolved issues with his stepson Kevin, but as Kevin now lives apart from him and they have nothing to do with each other there was a low risk of any flare up between them.  He stated that, although it is not ideal, avoidance can be an acceptable way of dealing with potential conflict.

4. He opined that the Visa Applicant was genuinely remorseful and understands the consequences of any further offending.  He said that the Applicant’s jealousy may have been a cause of their conflict but even if she remains jealous the Visa Applicant is better able to deal with it. 

   CONSIDERATION OF THE ISSUES

   Does the Visa Applicant satisfy the character test?

   41.In the Reviewable Decision the delegate determined that the Visa Applicant did not satisfy the character test in s501(6) on the following basis:

   Having considered all available information, in particular Mr NAKAMOTO’s criminal history and the risk of reoffending, I find that in the event that Mr NAKAMOTO was allowed to enter or to remain in Australia, there is a risk that Mr NAKAMOTO would engage in criminal conduct[22].

   [22] G2 at [23] on p.17.

   42.The delegate’s decision was clearly based on the Visa Applicant not satisfying the criterion in s.501(6)(d)(i), which relevantly states:

   (6) For the purposes of this section, a person does not pass the character test if:

   …

   (d) in the event the person would be allowed to enter or remain in Australia, there is a risk that the person would:

   (i) engage in criminal conduct in Australia; or…

5. Significantly, the delegate did not determine that the Visa Applicant did not satisfy the character test based on the criteria in s501(6)(c)(i) or (ii) which provides that a person does not pass the character test if:

   (c) having regard to either or both of the following:

   (i)the person's past and present criminal conduct;

   (ii)the person's past and present general conduct;

   the person is not of good character

6. The Federal Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16[23] considered the scope of the Tribunal’s power to review a delegate’s decision under s501(1). The Court concluded at [67]-[68]:

   [23] [2019] FCA 2033.

   67. ..the delegate exercised the power under s 501(1) to refuse to grant a protection visa on the ground that the applicant had not passed the criterion in s 501(6)(d)(i) of the character test. He made the material findings supporting his decision to refuse to grant her the visa that, if she were allowed to remain in Australia, there was a risk that she would engage in criminal conduct within the meaning of s 501(6)(d)(i). He addressed the forward-looking question posed by s 501(6)(d)(i) that related, at the time of his decision, to the existence of the risk that she would so offend in the future. In its review of the delegate’s decision, it was open to the Tribunal to have regard to any conduct or circumstances affecting the question under s 501(6)(d)(i) that occurred or came to light after the delegate’s decision and up to and including the time of its own decision, in considering whether to exercise the discretion to refuse to grant the visa under s 501(1) if she failed the character test in respect of s 501(6)(d)(i).

   68. The delegate had invited the applicant to satisfy him, in accordance with the rules of procedural fairness, on that sole matter of concern, namely s 501(6)(d)(i). That confined the scope of the review under s 43(1) of the Administrative Appeals Tribunal Act to the question whether, first, the applicant had passed the character test in s 501(6)(d)(i) and, secondly, only if she did not, how the Tribunal should exercise its power under s 501(1). And because the failure of the applicant to satisfy the delegate about the criterion in s 501(6)(d)(i) was the ground of his decision in the exercise of the power under s 501(1), that ground confined the issues on the review.

7. The Respondent contended that the Visa Applicant should also be found to fail the character test by reference to the criteria in s501(6)(c)(i) or (ii), but conceded that the Tribunal is bound to follow the approach of the court in CPJ16. The Applicant did not specifically address this issue but her submissions proceeded on the basis that the character test was to be determined based on the criterion in s501(6)(d)(i).

8. The Tribunal is satisfied that it should apply the approach set out by the court in CPJ16 and conduct the review by assessing whether the Visa Applicant meets the character test only on the basis of the criterion in s s501(6)(d)(i).

   DIRECTION 79

9. In considering a refusal under s501(1) of the Act, the decision-maker is required by subsection 499A(2A) of the Act to have regard to Ministerial Direction 79 – 'Visa Refusal and Cancellation Under s501 and revocation of a mandatory cancellation of a visa under s501CA’ (Direction 79). Direction 79 does not offer mere guidance nor is it a statement of policy that may be departed from if the circumstances justify departure; rather, it imposes requirements that are a precondition for the making of a valid decision.[24]

   [24] PQSM v Minister for Home Affairs [2019] FCA 1540 at [22] per Colvin J.

10. Section 2, paragraph 6 of Annex A to Direction 79 provides guidance on the application of the character test and assessment of risk in relation to future conduct under paragraph 501(6)(d).

11. Paragraph 6(2) provides that the ground is enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or remain in Australia, would engage in [the specified] conduct…. Paragraph 6(3) states that it is not sufficient to find that the person has engaged in such conduct in the past. There must be a risk that the person would engage in the specified conduct in the future.

12. In assessing whether the Visa Applicant satisfies the criterion in s 501(6)(d)(i) it is instructive to consider the type of criminal conduct engaged in by the Visa Applicant in the past. The offences for which he was convicted[25]  are set out in the National Police History Check dated 27 September 2019:[26]

    [25] The National Police History Check includes a record that on 3 August 2012, the Visa Applicant was charged with the offence 'contravene family violence intervention order – intend harm/fear'.  The charge was adjourned by the Melbourne Magistrates Court until 1 February 2013 on the basis of a good behaviour bond.  No conviction was entered.  Further, on 16 February 2015, the Melbourne Magistrates Court found the offence 'contravene family violence interim intervention order', proven against the Visa Applicant but dismissed the charge without a conviction being recorded under s 76 of the Sentencing Act 1991 (Vic).

    [26] G3 at pp. 25-26.

    a.on 16 July 2014, he was convicted of two counts of 'unlawful assault', two counts of 'contravene family violence interim intervention order', and five counts of 'contravene family violence intervention order'; 

    b.on 10 March 2015, he was convicted of 'assault police'; and

    c.on 18 November 2015, he was convicted of 'recklessly cause injury', 'contravene family violence intervention order – intend harm/fear', 'contravene family violence final intervention order', 'unlawful assault', and 'behave in offensive manner in public place.

13. The Visa Applicant’s criminal conduct began in late July 2012.  The offences for which he was convicted arose from domestic disputes within his extended family and spilled over into his dealings with the police.  While the assault offences involved physical violence, the evidence does not indicate that the Visa Applicant inflicted any significant physical injury on the victims.

14. The Visa Applicant’s offending arose initially out of a complex domestic situation which was highly stressful for the Visa Applicant.  It was early in his marriage to the Applicant when, by his own admission, they had not fully worked out the dynamics of their relationship.  The Applicant was pregnant with their first child. Her teenage son, Kevin, from her previous marriage, was living with them and he came into conflict with the Visa Applicant. The Visa Applicant stated that he suspected that Kevin thought he had stolen his mother.[27] The Applicant confirmed in her evidence that the Visa Applicant tried hard to get along with Kevin but Kevin disliked him after the marriage and their relationship deteriorated after ‘SW’ was born.

    [27] G15 at p.121.

    53.Into this mix, the Visa Applicant introduced his ex-wife and daughter both of whom had fled Japan because of the threats resulting from the nuclear disaster at Fukushima.  The Visa Applicant admitted in his oral evidence that he continued to have feelings for his ex-wife and he believed the Applicant was jealous and feared he would remarry her.  The Applicant acknowledged in her oral evidence that the Visa Applicant’s decision to bring his ex-wife and daughter to Australia was the trigger for issues between them.  She felt that the ex-wife threatened her marriage and that the Visa Applicant would leave her to be with his ex-wife.  They argued over his relationship with his ex-wife and the Applicant withdrew her sponsorship of the Visa Applicant’s permanent visa application at one stage.[28]  There were also cultural and language issues[29] to complicate the interactions between the various parties.

    [28] FSG 1.

    [29] The Applicant stated that the Applicant was from northern China and he was from southern China, which had differing cultural norms and Mika spoke only Japanese.

    54.This was a difficult emotional situation with which the Visa Applicant was ill equipped to deal.  He reacted badly to it.  For slightly less than three years between July 2012 and May 2015 things got the better of the Visa Applicant and he became stressed and anxious and responded to the situation with anger.  On several occasions this led to violence.  He assaulted his wife on two occasions (in 2012 and 2015).  He became aggressive and difficult to deal with for the North Melbourne police with whom he developed a strained relationship. In one confrontation he assaulted a female police officer who had attended their home in response to a report of domestic violence.

    55.During this three-year period the Visa Applicant committed multiple breaches of intervention orders taken out for the protection of his wife and later his son.  The majority of the breaches were for consensual contact between the Visa Applicant and members of his family and did not involve violence. The Visa Applicant was subject to an IVO until 2018 when it was cancelled, but he and the Applicant frequently stayed together in breach of the orders.[30] Many of the police reports of breaches of the IVO were the result of self-reporting by the Visa Applicant. The breaches frequently provided a setting for confrontation between the Visa Applicant and the police and often involved aggressive behaviour by the Visa Applicant.

    [30] See Exhibit A2 at [21].

15. The breaches of the IVOs involved irrational and antisocial conduct on the part of the Visa Applicant. The Visa Applicant explained that he had breached the initial IVO several times because he stubbornly insisted that it did not apply to him because his name was incorrectly spelt on the order.  He acknowledged in his evidence that his stubborn insistence led to conflict with the police. He said that he also self-reported breaches of the IVOs to attract the attention of the police.  He said he was annoyed that his criminal record had caused him to be refused employment and he called the North Melbourne police (and later 000) multiple times seeking their help to get his criminal record erased.  He also called the police to assist him in settling disputes with his wife. The Visa Applicant acknowledged that he stubbornly refused to accept that the police could not just remove his criminal record or resolve his disputes with his wife.

16. The Applicant confirmed in her evidence that the Visa Applicant had a habit of making untrue statements to the police to annoy them due to his antagonistic relationship with the police as well as his desire to erase his criminal record.[31] She said in her oral evidence that the Visa Applicant had lied to the police multiple times in phone calls to get them to attend his residence,[32] and had done so two or three times since his release from prison in 2015.

    [31] Exhibit A10 at [4].

    [32] See for example Exhibit A10 at [3].

17. The Applicant asserted that the Visa Applicant had not reoffended after his release from prison in 2015 and that many things had changed after the period between 2012 and 2015 which indicate that the Visa Applicant will not reoffend in the future.

18. The evidence confirms that there have been significant changes in the Visa Applicant’s circumstances since his release from prison in 2015. His ex-wife has remarried and moved away to the country.  The Applicant’s son Kevin, who is now 24 years old, has moved out on his own and has decided to have nothing to do with the Visa Applicant. The Applicanthas moved away from North Melbourne and has no contact with the North Melbourne police.  The intervention orders, which so troubled the Visa Applicant, were cancelled in 2018. The Visa Applicant has converted to Christianity and has become a regular churchgoer.  The Visa Applicant and the Applicant have sought help with their relationship issues and have received support from the pastor of their church.  They have attended group sessions and the Visa Applicant has seen a psychologist after he was released from prison in 2015 for six months as a condition of his release.

19. The Tribunal accepts that it is now over five years since the Visa Applicant was last convicted. The Visa Applicant has had time to reflect on what he has done and has expressed genuine remorse. He says he now understands that it was inappropriate to expect the police to expunge his criminal record or settle disputes with his wife.[33]

    [33] Exhibit A10 at [4].

20. The Tribunal acknowledges the confluence of issues which precipitated the Visa Applicant’s offending in 2012 and recognizes the significant changes in those circumstances.  The Tribunal also notes the professional opinion of Mr Watson Munro who assessed the Visa Applicant as having a low risk of reoffending and the optimistic comments of the Visa Applicant’s wife and his daughter, as well as those of people who gave evidence in support of him.[34] However, there are indications that the Visa Applicant’s propensity to engage in criminal conduct may not be solely linked to the domestic situation in 2012-2015 and he may pose a greater risk than those considerations warrant.

    [34] See Exhibits A11, 12 and 13.

21. The Visa Applicant is clearly an emotional man who has had anger management issues.  Mr Watson Munro identified him as having moderate depression.  The evidence suggests that the Applicant has been able to better control his aggression since 2015 as his domestic circumstances have improved, but he has an underlying propensity to be aggressive. The Visa Applicant acknowledged in his oral evidence that he had a bad temper which he felt had improved but he confirmed that he had not sought professional help to deal with anger management. His daughter Mika gave evidence that from 2012 to 2015 he was overly anxious about her and her mother which turned him to behaving aggressively towards everyone around him.[35] Incident reports from his time in custody indicate that the Visa Applicant behaved aggressively while in prison.[36]  The Applicant stated that since 2018 the Visa Applicant has been communicating better and his temper has improved a lot but previously he had a very bad temper, could not communicate well,  he was very stubborn, never smiled, and used to complain about everyone around him.[37]

    [35] Exhibit A14 at [6].

    [36] SG48 – 53 at pp.148-155.

    [37] Exhibit A8 at [16].

22. Having regard to this evidence, the Tribunal is not satisfied that the Applicant’s underlying issues with anger management have been resolved and there is a risk that he will respond aggressively in the future should he find himself in circumstances where he becomes anxious.

23. The Visa Applicant’s conduct after 2015 has not been unblemished. The Applicant said in her oral evidence that the Visa Applicant had lied to the police multiple times in phone calls to get them to attend his residence,[38] and had done so two or three times since his release from prison in 2015. Police records indicate that there were reports requiring the attendance of the police at the Visa Applicant’s residence on 23 January 2018, 6 March 2018, 4 May 2019, 10 June 2019 and 29 August 2019.[39]  The police records note that the police attended the Visa Applicant’s premises on several occasions prior to the cancellation of the IVO in 2018 in relation to alleged breaches of the IVO and complaints of verbal or physical arguments.[40]

    [38] See for example Exhibit A10 at [3].

    [39] See SG 33-37 at pp.69-79 and G5 at p.32.

    [40] SG 30-36 at pp. 59-81.

24. The evidence further discloses that during the period from his arrival in Australia until he departed for China in 2019 the Visa Applicant demonstrated a disregard for the law and disrespect for its enforcement in a variety of ways.  This includes repeated driving offences, including several after the suspension of his driver’s licence;[41] numerous breaches of family violence intervention orders; confrontations with the police including the assault on a police officer; numerous incidents of false reporting to the police and several confrontations with prison staff during his time in prison.[42]

    [41] SG55-56 at pp.158-162.

    [42] SG 48-53.

25. These factors suggest that the Visa Applicant’s propensity to commit offences has not been entirely addressed by the changes in his domestic circumstances and the risk of him re-offending, while not high, may not be as low as the Applicant contends.

26. Considering the evidence as a whole and having due regard to the professional opinion of Mr Watson Munro the Tribunal is satisfied that the risk of the Visa Applicant re-offending is low, but there is clearly more than a minimal or remote chance that the Visa Applicant, if allowed to enter or remain in Australia, would engage in further criminal conduct.

27. Accordingly, the Tribunal finds that the Visa Applicant does not satisfy the character test in s 501(6) of the Act.

    DISCRETIONARY CONSIDERATIONS

28. A finding that the Visa Applicant does not satisfy the character test in s501(6) enlivens the Tribunal’s discretion under s501(1) of the Act to determine whether to refuse the application for a visa. The exercise of the discretion is subject to Direction 79.

29. Under Part B of Direction 79 there are three primary considerations in deciding whether to refuse an application by a non-citizen for a visa:

    a.protection of the Australian community from criminal or other serious conduct;

    b.the best interests of minor children in Australia; and

    c.the expectations of the Australian Community.

    PRIMARY CONSIDERATIONS

    A - Protection of the Australian community

1. Clause 11.1 (1) of the Direction requires decision-makers to have regard to the protection of the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens, and to recognise that the Government has a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct.

2. Decision-makers are required to consider the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

   The nature and seriousness of the Visa Applicant’s conduct

3. The Direction stipulates that violent crimes, especially those against women or children, are viewed very seriously, regardless of the sentence imposed and that offences against government representatives or officials due to the position they hold, or in the performance of their duties, are serious. Any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test or is not of good character under section 501(6)(c), is considered to be serious.

   74.The Applicant’s offending was serious. It involved violence against his female partner and a female police officer in the course of her duties. The Direction makes it clear that such offending is to be treated as serious by decision-makers.  In addition, his conduct arose in circumstances where the Visa Applicant frequently acted in breach of intervention orders put in place for the protection of vulnerable members of the community.
   
   

   75.The Direction also relevantly requires the decision-maker to consider:
   
   

   a.the sentence imposed by the courts for a crime or crimes;

   b.the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

   c.the cumulative effect of repeated offending.

   76.The Visa Applicant was sentenced to 189 days in prison and was held in custody for 476 days including on remand. From 2012 to 2015 he appeared in court on five occasions.  While the seriousness of his conduct did not significantly increase during this period the cumulative effect of his offending caused ongoing distress and apprehension for his family and especially his wife and imposed a burden on the police in responding to continuing breaches of intervention orders.

4. Having regard to the terms of the Direction the Tribunal is satisfied that the Visa Applicant’s past criminal conduct was serious and by its nature, involved significant harm to the Australian community.

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

   78.For the reasons discussed in paragraphs [50] to [67] above, the Tribunal is satisfied that the risk of the Visa Applicant committing further offences of the kind he engaged in in the past or of engaging in other serious conduct is low.  Nevertheless, when taken together with the serious nature of his offending, the Tribunal is satisfied that the Visa Applicant poses a risk to the Australian community if he is granted a permanent resident visa. The Direction requires decision-makers to have regard to the principles that Australia has a low tolerance of any criminal or other serious conduct by visa applicants reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

5. The protection of the Australian community is a primary consideration and weighs against the Visa Applicant in the exercise of the Tribunal’s discretion under s 501(1) of the Act.

   Best interests of minor children in Australia affected by the decision

6. The Direction requires that decision-makers must consider the best interests of minor children. If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.   In this case the only minor child to be considered is the Applicant’s son ‘SW’, aged 10 years.

   81.In considering the best interests of the child, the Direction requires that specific factors be considered where relevant:

   The nature and duration of the relationship between the child and the non-citizen.

7. The Visa Applicant has had a continuing role as a father in ‘SW’’s life since his birth, although the opportunity for direct contact was curtailed by the limits on the Visa Applicant’s access imposed by intervention orders in the period July 2012 to September 2018, the time the Visa Applicant spent in custody and the time since 6 September 2019 when he has been absent in China. It is noted that the intervention orders did not name ‘SW’ as a protected person until January 2014 and the evidence of both the Applicant and the Visa Applicant was that the Visa Applicant frequently resided with the Applicant and ‘SW’ in breach of the orders. The Applicant gave evidence that she had taken ‘SW’ to visit the Visa Applicant in prison on several occasions and since he has been in China, the Visa Applicant has communicated with ‘SW’ on WeChat on a daily basis and they spent time together in Thailand over the new year in 2019-2020.

8. The Tribunal acknowledges that the Direction stipulates that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing court order restricts contact), however, the Tribunal is satisfied in this case that the Visa Applicant has maintained a close parental relationship with ‘SW’ throughout his life notwithstanding the limitations discussed.

   The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;

9. There are currently no court orders in place related to parental access and care arrangements for ‘SW’.  The Visa Applicant has expressed his genuine love for his son and his desire to perform his role as a father.  Various witnesses, including the Applicant have described the Visa Applicant as a loving and responsible parent.  The Tribunal has no reason to doubt that the Visa Applicant would play a positive parental role in the future if granted a visa to return to Australia.

   The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;

10. The evidence before the Tribunal does not show that the Visa Applicant’s prior misconduct has had any significant detrimental impact on ‘SW’.  If the Visa Applicant were to engage in similar conduct in the future, which the Tribunal assesses as involving a low risk, it may have an adverse impact on ‘SW’, although for reasons discussed more fully below, the evidence does not establish that the Visa Applicant has engaged in violent behaviour toward ‘SW’ in the past. The Applicant gave evidence that she does not believe that the Visa Applicant is a risk to ‘SW’ or to herself.

    The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

11. The Visa Applicant and ‘SW’ have shown that they can maintain a relationship via social media, but the evidence of the Applicant and Mika indicates that ‘SW’ needs his father’s presence for support in meeting the challenges of growing up and in his schooling.  The Applicant’s evidence was that ‘SW’ misses his father very much. She stated that ‘SW’ is very close to his father and his father’s absence is impacting on him at a psychological level.[43]

    [43] Exhibit A9 at [3].

    Whether there are other persons who already fulfil a parental role in relation to the child;

12. During the Visa Applicant’s periods of absence, ‘SW’ is cared for by the Applicant who fulfills the parental role as a sole parent. However, the Applicant has stated that she feels limited in her ability to deal with ‘SW’ issues such as bullying at school and with his schoolwork. In addition, she stated that the physical demands of her work and the lack of support at home make it difficult for her to fulfill the parental role when the Visa Applicant is away.

    Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

13. ‘SW’ did not provide a statement to the Tribunal.  Indirectly, the Applicant and Mika each stated that ‘SW’ misses his father and wants him to come home.

    Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect or that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

14. The evidence is generally that the Visa Applicant was a good father to ‘SW’. The Respondent asserts that ‘SW’ was the subject of the Visa Applicant’s aggressive behaviour, including on one occasion when the Visa Applicant is alleged to have punched ‘SW’ in the face when he was two years old.  The Respondent relied on information from the Law Enforcement Assistance Program database (LEAP records) of 10 August 2012[44] and 11 April 2014.[45]

    [44] SG6 at pp.9-10.

    [45] SG21 at pp. 39-40.

15. The LEAP records of 10 August 2012 did not state that the Visa Applicant had physically assaulted ‘SW’, only that he had broken one of his toys. It did state that the Visa Applicant was involved in a physical altercation with his stepson Kevin, then a teenager, in the presence of ‘SW’ who was one year old at the time.

16. The report of 11 April 2014 states that it was the Visa Applicant who rang the police and self-reported that he had assaulted his son.  The report notes that the police observed that ‘SW’ appeared to have sustained no visible injuries. The Visa Applicant was interviewed by police and the report notes that the Applicant admitted to smacking ‘SW’ forcefully. The Visa Applicant was not convicted of any offence involving ‘SW’ arising out of this incident.

17. The Applicant correctly asserts that there are a number of difficulties in relying on the LEAP records. They are investigative notes of uncertain authorship and are untested accounts of the events they purport to describe.  The LEAP reports of 10 August 2012 and 11 April 2014 were not put to the Visa Applicant by the Applicant or by the Respondent in cross examination, and although the Applicant was cross examined about other LEAP records, the incidents as related to ‘SW’ on 10 August 2012 and 11 April 2014 were not raised with her.

18. Even if the report of 10 August 2012 is accepted as accurate, it does not support the Respondent’s assertion that ‘SW’ was subject to the Visa Applicant’s aggressive behaviour.  While it may raise an issue of the Visa Applicant’s conduct toward his stepson, the report merely states that ‘SW’ was present, and one of his toys was broken.  As ‘SW’ was only one year old at the time and there is no medical evidence to indicate that the incident had any psychological effect on him, the Tribunal does not accept that ‘SW’ experienced any physical or emotional trauma arising from the Visa Applicant’s conduct as reported on 10 August 2012.

19. As to the incident reported on 11 April 2014, evidence was given that the Visa Applicant had made many false reports to police in order to get them to attend so that he could air his perceived grievances. This evidence, the noted absence of any physical harm to ‘SW’ and the fact that the Visa Applicant was not convicted of any offence related to the incident causes the Tribunal to be circumspect in regard to the report.  On balance, the Tribunal is not satisfied that the evidence before it establishes to the requisite standard that the Visa Applicant inflicted harm on ‘SW’ in the reported incident.

20. Taking all these factors into account, the Tribunal is satisfied that it would be in the best interests of ‘SW’ if the Visa Applicant was granted a resident visa.  The interests of minor children is a primary consideration under the Direction and weighs in favour of not refusing to grant the Visa Applicant a visa.

    C - Expectations of the Australian Community

21. The Direction states that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Decision-makers are required to have due regard to the Government’s views in this respect. Justice Charlesworth in FYBR v Minister for Home Affairs[46] explained at paragraph [11]:

    [46] [2019] FCAFC 185.

    …should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused.

    97.The Direction further provides that visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. The evidence clearly establishes that the Visa Applicant had acted contrary to the expectations of the Australian community by repeatedly engaging in criminal conduct over a prolonged period.  The conduct included instances of serious criminal conduct.  However, the nature of the Visa Applicant’s offending owes more to his lack of self-restraint and irrationality than to any defect of character.  Witnesses described him consistently as hard working and a caring family man.  His criminal behaviour arose from his inability to control his anger and his misguided sense of being wronged. The Tribunal does not accept that the Visa Applicant’s offending involved character concerns or offences such that the Australian community would expect that he not be granted a visa simply because of the nature of his offending.

22. The Visa Applicant’s offending is clearly contrary to the expectations of the Australian community as stated in the Direction and as such is a factor weighing against the grant of a visa.  It is to be considered together with the other considerations contemplated by the Direction.  The expectations of the Australian community is a primary consideration.

    OTHER CONSIDERATIONS

23. Direction 79 provides in Part B that, in deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

    a.    international non-refoulement obligations;

    b.    impact on family members;

    c.     impact on victims;

    d.    impact on Australian business interests.

    100.The decision before the Tribunal is a decision whether to issue a visa to the Visa Applicant and so the considerations relevant to the cancellation of a visa are not necessarily required by the Direction. However, in the exercise of its discretion under s500(1) of the Act, the Tribunal is not confined to the primary considerations stated in Direction 79 and it can have regard to such considerations where relevant.

    101.There is no evidence that the continued absence of the Visa Applicant from Australia will impact on Australian business interests in any significant way and this consideration is not relevant to the case under consideration.

24. A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. The circumstances of this case do not involve any such obligation.  The Visa Applicant was off-shore at the time the application was made on his behalf and he remains outside Australia.  He returned to China voluntarily.  The question of his forced removal does not arise.  However, the Visa Applicant’s circumstances at the time of the application and his possible exposure to the risks to which the Conventions[47] are directed, may be a relevant consideration in considering the impact on the Visa Applicant of a refusal to grant a visa, but the evidence in this case does not disclose any such risk to the Visa Applicant either in China or in Japan.

    [47] As referred to in clause 10.1(1) of Direction 79.

    Impact on Victims

25. Clause 12.3 of Part B of the Direction is concerned with the impact on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal.

    104.The relevant impact under cl.12.3 is the adverse impact likely to result from the non-citizen being granted a visa.[48]  In this case the principal victim of the Visa Applicant’s conduct is the Applicant.  She fully supports the granting of a visa. There is no evidence before the Tribunal as to the likely impact of granting a visa to the Visa Applicant on the police officer who was the victim of the Visa Applicant’s assault or on the Applicant’s son Kevin or any member of the public.

    [48] CGX20 v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (No 2) FCA 1842 at [17] - [21], which considers the analogue consideration at 14.4 of Direction No 79.

26. In the absence of evidence of adverse consequences of granting a visa, the Tribunal is satisfied that this consideration carries no weight, either for or against the grant of a visa to the Visa Applicant.

    Impact on Family Members

    
    
    

27. Clause 12.2 of Part B of the Direction directs the Tribunal’s attention to the impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

    107.The impact of a decision to grant or refuse to grant a visa to the Visa Applicant on his family is a relevant consideration. 

    108.The family members to be considered in this case are the Visa Applicant’s daughter Mika and his wife, the Applicant.  The Visa Applicant has been estranged from his stepson Kevin for several years and there is no evidence that the granting or refusal of a visa to the Visa Applicant would affect Kevin in any way. The impact on ‘SW’ is a matter for consideration under cl.11.2 of Part B of the Direction as he is a minor child.

    109.The Applicant professed in her evidence that she has a loving relationship with the Visa Applicant and, if he is not granted a visa, she will be denied the opportunity to continue her married life with him in Australia. She stated in her oral evidence that she had not contemplated moving overseas to be with the Visa Applicant as she was committed to a life in Australia. In a practical sense the Applicant gave evidence that she needs the support of the Visa Applicant in caring for her son and to support her in dealing with the demands of her work.  She gave evidence that she had run out of sick leave and was using her annual leave for additional time off work for illness. She also stated that she needs the financial support of the Visa Applicant in meeting their family expenses.

    110.The Tribunal accepts that the Applicant has demonstrated her ability to deal with the practical aspects of her life in the past when the Visa Applicant was in prison and now while he has been living in China.  However, the Applicant’s evidence was that this was not without a price.  She described the difficulties she had experienced in caring for her son, especially during the school holidays, and the burden she experienced in meeting her parental obligations and the demands of her job as a registered nurse.   To this can be added the emotional effect on her of an enforced separation from her spouse. 

    111.Taking these matters into account the Tribunal is satisfied that the Applicant will be significantly adversely impacted by a decision not to grant the Visa Applicant a visa and this consideration weighs in favour of exercising the discretion under s501(1) in the Visa Applicant’s favour.

    112.The Visa Applicant’s daughter Mika is 23 years old.  The evidence shows that she has a strong and continuing relationship with her father and that even when they were separated between 2006 and 2012 while she was in Japan and he was in Australia they maintained their relationship via social media.  Mika gave evidence that she sees her father regularly and he has helped her with her studies.

1. The Tribunal is satisfied that it would be in the best interests of Mika to have the Visa Applicant return to Australia, but it gives this consideration limited weight.  Mika is a young adult who has the support of her mother and is not dependant on the Visa Applicant financially or in other practical ways.  She would clearly benefit from continuing contact with her father but she is capable of maintaining a relationship with him if he is not present in Australia, as she did for six years while they were separated between 2006 and 2012, while he was in prison on three occasions between 2012 and 2015 and in the period since he left for China in 2019.

   Impact on the Visa Applicant

   114.Paragraph 12 (1) of Part B of the Direction makes it clear that the other considerations it lists are not exhaustive.  A relevant consideration in the exercise of the discretion is the likely effect of the Tribunal’s decision on the Visa Applicant’s individual circumstances[49]. 

   [49] This is expressly recognised in cl.14.5 of Part C in relation to the revocation of mandatory visa cancellations under s.501(3A) of the Act.

   115.If the Visa Applicant is not granted a visa to re-enter Australia, he is placed in an invidious position.  He is currently living in Shanghai with the support of his elderly sister who has limited financial resources.  He has no employment and is supported financially by his sister and by borrowing from his friends.  He has relinquished his citizenship of China by becoming a citizen of Japan. He is only able to remain in China because the visa rules have been relaxed because of the COVID pandemic.  Were it not for the relaxation of the rules he would not be able to remain in China legally because he has been there beyond the 12-month maximum period allowed for visitors[50].  It can be expected that the current relaxation will be ended at some point and he may be forced to leave China. If so, he has a right to enter and reside in Japan as a citizen of that country.  However, he has not lived in Japan for over 14 years.  He has no ties to Japan.  He has no family there.  He has no immediate employment prospects and at his age he would face significant difficulty in obtaining employment[51].  In addition, his access to social security benefits in Japan would be limited[52].

   [50] See Exhibit A2 at [34] and Attachment C.

   [51] Se Exhibits A16 and A21-23.

   [52] See Exhibits A17-19 and Exhibit A3 at [10]-[13].

2. Several options for the Visa Applicant were canvassed at the hearing, but no evidence was presented to confirm their viability.  It was suggested that it may be possible, for example, for the Visa Applicant to apply for the reinstatement of his Chinese citizenship so that he can remain in China where he has family.  However, even if this were possible, the Visa Applicant’s siblings are elderly, he has limited job prospects and his evidence was that he was living in temporary housing on the outskirts of Shanghai which was slated for demolition.  The Visa Applicant raised the possibility of migrating to New Zealand but there was no evidence before the Tribunal to indicate whether that option is feasible.

3. The Visa Applicant is in his late fifties. His prospects of re-establishing his life in either China or Japan are bleak. If he cannot re-enter Australia, he will be separated from his family. It is clearly in the best interests of the Visa Applicant that he be permitted to reside in Australia with his family where he has the prospect of secure employment. The denial of a visa should not be used to further punish an applicant for his past offending. The Tribunal accepts that there is room for human compassion in the exercise of the discretion under s501(1) of the Act within the guidance of the Direction.

4. In this case the likely consequences for the Visa Applicant of not being granted a visa weigh in favour of exercising the discretion in his favour.  That consideration must, however, be balanced against the other considerations required by the Direction.

   CONCLUSION

5. The exercise of the discretion under s500(1) requires the Tribunal to weigh up the factors for and against refusal of the application, having regard to the general principles set out in Direction 79.

6. The Tribunal is satisfied that if the Applicant is granted a visa, he will pose a low risk of committing offences of a violent nature and he thereby represents a risk of harm to the Australian community.  This is a primary consideration under the Direction. 

7. The Visa Applicant has acted contrary to the expectation of the Australian community that a non-citizen should abide by the laws of Australia and that it may be appropriate to refuse to grant a visa to a non-citizen who does not abide by the law.  This too is a primary consideration.  Justice Charlesworth in FYBR v Minister for Home Affairs noted[53] that:

   [53] [2019] FCAFC 185 at [79].

   … Strictly speaking, it is not correct to say that the expectation is one to which the Tribunal “must give effect”. The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do.

8. In considering whether or not to depart from the relative ascription of weight for which cl 8(4) “generally” provides the Tribunal notes that the Direction recognises Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time, but may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.  The Applicant has lived in Australia for approximately 14 years and as such falls somewhat between the alternative tolerance guidelines stated in the Direction. In these circumstances the Tribunal is satisfied that the Applicant warrants a higher level of tolerance than would apply if the Applicant had been in Australia for only a short time, but not as high as might apply if he had lived in Australia for most of his life.

   123.The Tribunal is also mindful of the nature and extent of the Applicant’s criminal offending and any character concerns that they may reveal.  The offences were confined to a relatively short period in the Visa Applicant’s life. His offences were the product largely of his own lack of self-control exacerbated by a very complex and difficult domestic situation.  While the offending included assaults on his wife and a female police officer the evidence does not indicate that they resulted in serious physical injury.  This does not diminish the seriousness of the offending, but it does point to emotion as the source of his criminal conduct rather than flaws in his character. It is also a reflection on the Visa Applicant’s character that he has taken positive steps to address the cause of his misconduct and has not offended for over five years.  While he continues to face challenges, the Visa Applicant has shown that his trajectory is a positive one. 

9. For these reasons the Tribunal is satisfied that it is appropriate to give less weight to the deemed expectations of the Australian community than would ordinarily be the case.  Those expectations, as a primary consideration under the Direction, do clearly weigh in favour of not granting the Visa Applicant a visa, but the Tribunal is satisfied that they should not weigh substantially in favour.

10. Against this, the Tribunal is satisfied that it is clearly in the best interests of the Visa Applicant’s son that the Visa Applicant be able to return to Australia and provide the parental support that the child needs and deserves.  This is a primary consideration.  In addition, the interests of the Visa Applicant’s wife and adult daughter would be best served by the Visa Applicant returning to Australia to take his place in the family.  While this consideration attracts less weight under the Direction it is nevertheless a significant factor in weighing up the competing considerations.

11. The final consideration is the impact on the Visa Applicant himself. The evidence shows that the Visa Applicant has been in many respects a responsible and productive member of the Australian community for much of the period from his arrival in 2006 until his departure in 2019.  Despite his offending, he has been a supportive husband to the Applicant who argues strongly for him to be returned to Australia to support her.  He has also shown himself to be a loving and caring father to his daughter and son.  He has been a valued employee and an active participant in the life of his church. If he is refused a visa he will be cast into an invidious situation.  He is a citizen of Japan but has no meaningful ties to the country.  He has some familial ties to China, but he has relinquished his citizenship and there is considerable uncertainty about his ability to remain in that country.  Whether he is able to remain in China or he has to move to Japan, at 58 years of age, he will find it very difficult to obtain employment and to establish himself in either country. He regards Australia as his home, it is where he has lived for much of the last 13 years and where his family is.

12. If the Visa Applicant is granted a visa, he has a family to support him and in turn to benefit from his support.  He has a home and good prospects for employment.  He has the support of his church.  Having observed the Visa Applicant give his evidence and having regard to the evidence of his wife and family, the Tribunal accepts that he is genuinely remorseful and intent on not repeating his prior behaviour.  Those most affected by his conduct trust him to do so.  The Tribunal’s objective assessment is that the Visa Applicant remains a low risk of reoffending.

13. On balance, the Tribunal is reasonably satisfied that the factors weighing against refusal outweigh those in favour and the discretion available to the Tribunal should be exercised to not refuse the Applicant’s application notwithstanding that the Visa Applicant does not satisfy the character test in s501(6) of the Act.

    DECISION

14. The decision under review is set aside and the application is remitted to the Minister for reconsideration with a direction that the discretion in s 501(1) of the Act be exercised in favour of the Applicant.

I certify that the preceding 129 (one-hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Member R West

...[sgd]..................................................................

Associate

Dated: 8 April 2021

Date of hearing:	8 and 9 February 2021
Counsel for the Applicant:	Mr Matthew Keneally
Solicitors for the Applicant:	Chua Tan Lawyers Pty Ltd
Advocate for the Respondent:	Mr Bromley Hornsby
Solicitors for the Respondent:	Minter Ellison

APPENDIX A – LIST OF EXHIBITS

Exhibit A1 – Witness Statement of Pastor Jiansheng Ruan, dated 2 February 2021.
Exhibit A2 – Witness Statement of Kairin Nakamoto, dated 8 September 2020.
Exhibit A3 – Witness Statement of Kairin Nakamoto, dated 25 January 2021.
Exhibit A4 – Letter from Muyuan Si, dated 22 May 2020.
Exhibit A5 – Consultant Psychologist Tim Watson-Munro Report, dated 21 September 2020.
Exhibit A6 – Letter of instruction to Tim Watson-Munro, dated 2 September 2020.
Exhibit A7 – Curriculum Vitae of Tim Watson-Munro.
Exhibit A8 – Statutory Declaration of Lianhua He, dated 9 September 2020.
Exhibit A9 – Statutory Declaration of Lianhua He, dated 6 October 2020.
Exhibit A10 – Statutory Declaration of Lianhua He, dated 28 January 2021.

Exhibit A11 – Reference Letter of Mr Patrick Ni, dated 20 April 2020.

Exhibit A12 – Letter of Support from Mr Venkatesh, dated 19 April 2020.

Exhibit A13 – Letter of Support from Liqun Chen, dated 19 April 2020.

Exhibit A14 – Statutory Declaration of Mika Nakamoto, dated 9 September 2020.

Exhibit A15 – Letter from County Court of Victoria, dated 30 July 2015.

Exhibit A16 – Annexure A to the Applicant’s Statement of Facts, Issues and Contentions.

Exhibit A17 – Annexure B to the Applicant’s Statement of Facts, Issues and Contentions.

Exhibit A18 – Annexure C to the Applicant’s Statement of Facts, Issues and Contentions.

Exhibit A19 – Annexure D to the Applicant’s Statement of Facts, Issues and Contentions.

Exhibit A20 – Department of Foreign Affairs and Trade, ‘Country Information Report: People’s Republic of China’, 3 October 2019.

Exhibit A21 – Heizo Takenaka, ‘Will Japan’s economy improve in 2021?’, The Japan Times, Japan (online, 11 January 2021) <Will Japan’s economy improve in 2021? | The Japan Times>

Exhibit A22 – Ji Ji, ‘Japan Records nearly 80,000 pandemic-linked job losses’ The Japan Times, Japan (online, 28 December 2020) <Japan records nearly 80,000 pandemic-linked job losses | The Japan Times>

Exhibit A23 – Keiji Kanda, Akane Yamaguchi and Yutaro Suzuki, ‘Japan’s Economy: Monthly Outlook (Jan 2021)’ (2021) Daiwa Institute of Research 1-10.