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

[2024] AATA 1001

Hong and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1001 (9 May 2024)

Division:GENERAL DIVISION

File Number(s):2024/1119      

Re:Chee Keng Hong  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr Rob Reitano, Member

Date of decision:                  9 May 2024

Place:Sydney

I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of Chee Keng Hong’s BB Subclass 155 Five Year Resident Return visa.

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

Mr Rob Reitano, Member

CATCHWORDS

MIGRATION – visa cancellation – protection of the community – serious criminal offending – risk of re-offending – expectations of the Australian community – nature duration and ties to community – long period in Australia since childhood – close ties to mother – legal consequence of decision – impediments if removed – mental illness – severe and recurring depression – weight or respective considerations when compared to one another – satisfaction about other reason – decision to refuse set aside and substituted

LEGISLATION

Migration Act 1958 (Cth)

CASES

CRNL v Minister Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138

FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673

SECONDARY MATERIALS

Minister for Immigration, Citizenship and Multicultural Affairs, Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)

REASONS FOR DECISION

Mr Rob Reitano, Member

9 May 2024

1. This is an application for a review of a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (Minister). The delegate decided not to revoke the cancellation of Chee Keng Hong’s (Mr Hong) BB Subclass 155 Five Year Resident Return visa (visa) because the delegate was not satisfied that there was ‘another reason’ within the meaning of s.501CA(4)(b)(ii) of the Migration Act 1958 (Cth) (Act) for doing so.

2. A delegate of the Minister was obliged to cancel the visa because of s.501(3A) of the Act. That section required cancellation where the Minister was satisfied that Mr Hong failed the character test in the Act because he had been sentenced to a term of imprisonment of four years and was serving that term in a custodial institution.

3. The issue is whether the Tribunal is satisfied that there is ‘another reason’ within the meaning of s.501CA(4)(b)(ii) of the Act to revoke the delegate’s decision cancelling the visa. That is because the Tribunal stands in the place of the Minister in deciding whether to revoke a visa cancellation and does so afresh and irrespective of the delegates decision.

4. I have decided to set aside the decision refusing to revoke the cancellation of the visa and to replace it with a decision revoking the cancellation of the visa. These are my reasons. 

   IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?

5. As I have said, the issue concerns whether I am satisfied that there is ‘another reason’ why the Minister’s decision cancelling the visa should be revoked. That issue arises because that is the only basis in the Act for revoking the cancellation that is available to Mr Hong.

6. It is necessary to say a little about what is involved in reaching, or not reaching, a state of satisfaction about there being ‘another reason’ to revoke the cancellation.

7. A convenient starting point is Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction). The Direction is given to the Tribunal by the Minister who is entitled to do so under the Act.[1] The Tribunal is bound to conform to the Direction in exercising its powers and functions.

   [1] s.499(2A) of the Act.

8. The Direction contains ‘principles’ which provide a framework to decide whether a decision to revoke a decision cancelling a visa should be made, and ‘considerations’ that are the matters a decision-maker must consider in making that decision. The ‘considerations’ need only be addressed to the extent that they are relevant.[2]

   [2] Paragraphs 5.2(6) and 6.

9. The ‘principles’ emphasise that it is the Australian Government that decides who is allowed to come to and remain in Australia and that those who engage in criminal conduct should expect to lose the right to remain in Australia. The principles stress the importance of community expectations in the decision-making process, emphasising that people who have been living in Australia for a long time, especially since their formative years, will generally be afforded a higher degree of tolerance so far as criminal wrongdoing is concerned. The principles direct a decision-makers attention to the ‘considerations’ and the prospect that ‘countervailing considerations’ may justify a person remaining in Australia despite their criminal conduct or other misbehaviour. These aspects of the principles are important in this case because Mr Hong has been in Australia for a long time and there are relatively strong countervailing considerations to which I will refer later.

10. The ‘considerations’ are in two categories, which are ‘primary considerations’ and ‘other considerations’. It is only necessary to identify the three primary considerations that are relevant to this matter which are: the protection of the Australian community from criminal or other serious conduct, the strength, nature and duration of ties to Australia, and the expectations of the Australian community.[3] I will say a little more about each of these when I deal with them, especially because the Direction contains specific matters within each consideration that must be addressed. The ‘other considerations’ potentially relevant to this matter are: the legal consequences of the decision, and the extent of impediments if the person is removed from Australia. Again, I will say a little more about the content of what I am required to consider in relation to these considerations when I come to deal with them.

    [3] Paragraph 8.

11. I should also observe that the Direction provides that, ‘primary considerations should generally be given greater weight than ‘other considerations’.[4] The word ‘generally’ contemplates that there may be cases where it may not be appropriate to do that.[5] No single ‘primary consideration’ or ‘other consideration’ is required to be given greater importance than any other. The importance of each of the ‘considerations’ is left to the decision-maker.

    [4] Paragraph 7(1).

    [5] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [76] (per Charlesworth J).

12. The process of weighing the ‘considerations’ involves engaging in an active intellectual process of evaluating each consideration and comparing them to one another in order to determine which of them, or group of them, is of greater or lesser importance. Sight should not be lost of the fact that the entire process has as its focus arriving at a decision about whether there is another reason to revoke a visa cancellation.[6]

    [6] CRNL v Minister Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [34].

13. The obligation ‘to consider’ does not involve completing a checklist or the application of a formula.[7] The decision is likely to impact many people other than an applicant, such as an applicant’s children, immediate and extended family, friends, acquaintances, employers, business partners and potentially others, or like in this case the applicant’s mother, so it is important to give real consideration to all matters.[8] There are also potential serious ramifications for the Australian community that arise from any decision. This means it is necessary to consider the protection of the Australian community against future criminal offending and misconduct, especially where past behaviour has been particularly egregious with serious consequences for the community and a risk of happening again. There is also a need to pay regard to community expectations about a non-citizen’s offending.

    [7] Ibid at [38].

    [8] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].

14. The need to consider things must be done with care, weighing up the importance of the private and public interests that might or will be affected, and reaching a firm and reasoned conclusion about their respective and relative importance. It is ultimately that to which the Direction is focused and which when applied, ensures that all relevant public and private interests are considered, weighed, and given their respective importance, properly and appropriately so as to conclude one way or another whether there is ‘another reason’ to revoke the cancellation of a visa in a given case.

15. I will deal with the considerations that are potentially relevant in turn, ascribe them weight and then balance them against each other to determine whether there is ‘another reason’ to revoke the decision cancelling the visa. Where I refer to matters that I am required to consider, those requirements arise from the terms of the Direction.

    PROTECTION OF THE AUSTRALIAN COMMUNITY

16. I am required to consider the nature and seriousness of Mr Hong’s conduct which in this case involves criminal offending, and the risk to the Australian community, should Mr Hong commit further offences or engage in other serious conduct. In particular, I am required to have regard to the sentence or sentences imposed by the courts for Mr Hong’s criminal offending, the cumulative effect of Mr Hong’s repeat offending, the frequency of the offending and the fact that Mr Hong has repeated his offending after being made aware in writing that the consequence of repeat offending might be the cancellation of his visa.

17. Mr Hong’s criminal record commences with a series of offences committed in November 2013 which were all eventually dealt with by the District Court of New South Wales (District Court) on 13 April 2015. Those offences included two drug related offences, one of which was for possessing a prohibited drug for which Mr Hong was convicted and sentenced to one month imprisonment. At the same time, he was dealt with in respect of three driving offences, the most serious of which was for driving whilst under the influence of alcohol. He originally received the benefit of a bond for that offence and a period of disqualification from driving, but on breaching the bond he was sentenced to three months imprisonment.

18. On 14 March 2016, Mr Hong returned to the District Court to be sentenced in respect of two offences of supplying a prohibited drug, methylamphetamine, that he committed in 2015 on two different days about four months apart. The offences carried with them a maximum penalty of 15 years imprisonment and a fine of more than two million dollars or both. When sentenced, Mr Hong had five other offences committed around the time of the most serious offences taken into account in the sentencing. They involved possession of small quantities of other prohibited drugs, a knife and an amount of money which was the proceeds of the wrongdoing. The offences, including those taken into consideration in the sentencing, were all committed whilst Mr Hong was on bail for the offences committed in November 2013 which made the offending a little more serious. The seriousness of Mr Hong’s offending had escalated since his earlier rounds of convictions.

19. The circumstances of both offences involved the police being suspicious of Mr Hong for various reasons on two separate occasions and finding him in possession of just over 17.64 and 31.28 grams of methylamphetamine respectively. Mr Hong pleaded guilty to all of the offences. He was sentenced to one year and nine months imprisonment for the first offence and the matters taken into account, and to two years and three months imprisonment for the second offence. The sentences reflected objectively serious offending.

20. In August 2019, Mr Hong was sentenced in relation to four further offences that involved driving whilst unlicensed, driving with a prohibited substance in his blood, having stolen goods in custody and possessing prohibited drugs. Those offences could not have been serious as each attracted only small fines, but they do say something about Mr Hong’s continued propensity to break the law by committing drug related criminal offences.

21. On 14 January 2021, Mr Hong was sentenced to ten days imprisonment for another offence involving possession of prohibited drugs.

22. On 27 August 2021, Mr Hong appeared in the District Court and was sentenced to four years imprisonment for an offence of supplying a commercial quantity, 350 grams of methylamphetamine, that was committed about a year earlier. The sentencing judge, Judge Pickering, found that Mr Hong had a significant role in transferring the drugs and was actively involved in a joint criminal enterprise with another man. The offence was just below the mid-range of objective seriousness. The maximum penalty for the offence was 20 years imprisonment. Mr Hong was convicted of another offence of having stolen goods in custody, but no other sentence was imposed. Again, the offences were objectively serious.

23. Mr Hong’s offending, especially his two offences of supplying methylamphetamine committed in 2014 and the most recent offence of supplying methylamphetamine, is objectively serious. Criminal offending involving drugs, whether by way of supplying them to others for financial gain or by using them and driving on public roads, is by its nature serious, especially having regard to the human consequences of drug supply to which I will refer in a moment. Considered cumulatively, his offending is more serious if only by reason of the sheer number of serious drug related offences. The offences involving other traffic matters such as driving whilst unlicenced and the possession of a knife demonstrate a dangerous disregard for members of the Australian community. The offending reveals an escalation in seriousness over a period of a little more than six years. Mr Hong’s criminal offending must be considered overall to be at the high end of seriousness.

24. Another matter which informs the egregious nature of Mr Hong’s criminal offending is his continued offending after he was formally warned about the consequence of further offending.  After he was sentenced to two years and three months imprisonment in March 2016 Mr Hong was notified that his visa would be cancelled. He was sent a letter by the Minister telling him that, although a decision had been made to revoke the cancellation of his visa that his case might be ‘reconsidered again on character grounds in the event of further criminal offending by you’. It is difficult to conceive that there could have been any confusion about what the Minister was saying such that the criminal offending after then can only be fairly seen as wilfully in defiance of the warning. The most recent criminal offending for which Mr Hong was sentenced viewed in that light is all the more serious. 

25. Next, I must consider the harm that would be caused to the Australian community should Mr Hong be permitted to stay in Australia and should he engage in further criminal or other offending. There is little doubt that the consequences of any further offending would be grave. Prohibited drugs, like methylamphetamine, have a devastating impact on the Australian community as they promote crime and adversely affect the health of people in the community. The proliferation by supply of such drugs ruins the lives of people and devastates families and communities. Mr Hong’s other offences, in particular his driving offences, also carry a likelihood of causing serious harm to members of the community. His one offence of carrying a knife which he explained was something that he had purchased, does not have as serious a consequence especially because there is no suggestion that Mr Hong intended to harm anyone with the knife. There is not much room for doubt that the consequences of further offending of the same kind as a reflected by Mr Hong’s criminal record are serious and endanger the welfare of members of the Australian community.

26. Next, I must consider the likelihood of Mr Hong engaging in further criminal or other serious conduct. The Minister submitted that the risk in this case was an ‘unacceptable risk’, that is a risk that the community should not have to tolerate. That, of itself requires some assessment of the likelihood of re-offending and the consequences of re-offending.[9] I have already indicated the consequences of re-offending are likely to be very serious.

    [9] Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 at [89] – [104].

27. Judge Norrish QC, who sentenced Mr Hong on 14 March 2016, expressed the opinion that Mr Hong was unlikely to re-offend and had good prospects of rehabilitation. It is obvious with the benefit of hindsight that that assessment proved to be wrong.

28. Judge Pickering, when sentencing Mr Hong on 27 August 2021, said of Mr Hong’s likelihood of re-offending:

    This is a classic situation though where there is a long road ahead for Mr Hong. He was defined as having a medium risk of re-offending but clearly, given his history of prior supplies and continuing issues in relation to gambling and drug addiction, it would be optimistic for a judge to say that it was anything other than a real risk of re-offending in the future. I would have to be significantly guarded about his rehabilitation prospects - not because he does not have desire to engage in programs and achieve these results, but just because it is incredibly difficult for him to access the support required that would allow him to achieve these goals in his life.

29. Before he was sentenced Mr Hong was assessed by a psychologist who used the Level Service Inventory – Revised, an actuarial tool commonly used for assessing the service needs of offenders having regard to their risk of re-offending. Mr Hong was considered to be in the low to medium range of risk of re-offending. The psychologist also made diagnoses of Stimulant Use Disorder and Gambling Disorder.

30. More recently, on 29 April 2024, Mr Tim Watson-Munro an expert clinical psychologist prepared a report that dealt with what he considered to be Mr Hong’s likelihood of re-offending. Mr Watson Munro had the opportunity of speaking to Mr Hong on three separate occasions prior to preparing his report and had access to almost all of the material that was in evidence which included the sentencing remarks of Judge Norrish QC and Judge Pickering and the earlier psychologist’s report. The basis for the opinion expressed by Mr Watson-Munro appears to relevantly reflect the actual facts and circumstances or Mr Hong’s offending and his history more generally.  Mr Watson-Munro concluded his reasonably thorough assessment by saying:

    Having said that, it would appear that Mr Hong has matured as a consequence of his incarceration. He is well aware of the consequences which will accrue should he break the law again in any way. There are now a number of protective factors in place which will reduce the risk of him re-offending. These include his maturation, his expressions of remorse, his willingness to undertake psychological treatment, the strong bond he has with his mother and attendant to this, his deep concern for her welfare and in addition, his motivation to join the Australian workforce, with a view to assisting his mother. I note that he was previously assessed utilising the Level of Service Inventory-Revised, which indicated a Low/Moderate risk of re-offending. Some time has now lapsed since that instrument was administered. I believe that Mr Hong is now trending towards a low risk of re-offending and that with ongoing supervision and treatment, he will remain on a positive trajectory in terms of his forensic prognosis.

1. In his oral evidence, Mr Watson-Munro described Mr Hong’s ‘expressed strong motivation not to relapse and to not re-offend in the Australia community’ as being important to the opinion he set out in his report. It is also important to note here that if Mr Hong is released from detention he will remain on parole until September 2024, so at least in the immediate short term he will be subject to the supervision that comes with parole. As I record below, Mr Hong has expressed his intention to participate in further treatment and I accept his evidence in that regard. Mr Watson-Munro’s opinion as an expert is particularly weighty in my assessment of the risk of Mr Hong re-offending.

2. There are, as Mr Watson-Munro observed, matters that are likely to motivate Mr Hong against re-offending. These of course include the predicament of his mother who he clearly has a strong affection for, but there are other motivations not the least of which is his being returned to Malaysia and the prospect of further periods of incarceration and detention should he re-offend. These are particularly so given that his removal will see him separated from his elderly mother who is the only member of his family in Australia. There is also the risk of him being in a country where has not lived since he was 12 years of age where he knows just about nobody. Of course, those things have not, it seems, deterred him in the past and so there must be considerable caution attached to any assessment about the likelihood of re-offending. It is difficult to see how they will deter Mr Hong from re-offending in the future other than by reference to the fact that the present process more probably than not has brought home to Mr Hong the very real prospect to his return should he re-offend.  

3. Mr Hong referred to the insight he has gained into the effect of his offending on his mother, his preparedness to engage in rehabilitation, his actual engagement - albeit recently - in rehabilitation through the SMART program, his completion of a course with the Salvation Army in living a positive life, and his completion of a course in clothing production. His evidence when asked if he thought he still had ‘issues’, involved a particularly insightful acknowledgement that he may well still have ‘issues’ and that it was in respect of them that he wanted to seek help. His evidence about what he intended to do if he was permitted to remain in the Australian community had, generally speaking, an air of reality about it so far as it acknowledged and was concerned with his need for support and treatment. To these things might be added the fact of his remorse for his offences over time, which was initially indicated by his pleas of guilty and his statements as to his sorrow for his wrongdoing which I accept are genuine.

4. In my assessment, Mr Hong’s risk of re-offending is in the low to medium range but as Mr Watson-Munro opined moving towards a low likelihood of re-offending. I, like Judge Pickering, am guarded about Mr Hong’s prospects of rehabilitation but his determination to engage in such a process, together with what I have identified as the motivating factors against further offending, lead me to the conclusion I have expressed abut likelihood of re-offending. The risk is real but in the range I have identified.

5. In that light, even though the consequences of re-offending are likely to be serious, I do not consider that the risk of Mr Hong re-offending is an ‘unacceptable risk’. The risk is one that the Australian community can run if other factors suggest that is appropriate.

6. The protection of the Australian community weighs firmly against revoking the cancellation of the visa, especially when regard is had to the serious consequences that might result from re-offending and the low to mid-range risk that Mr Hong presents to the community.

   STRENGTH NATURE AND DURATION OF TIES TO AUTRALIA

7. I must consider the impact of my decision upon Mr Hong’s immediate family members in Australia where they are Australian citizens, Australian permanent residents, or people with a right to lawfully remain in Australia indefinitely. I am required to give more weight to this consideration where the ties involve children. I must consider the strength, duration and nature of family ties or social links generally to people in those categories.

8. I must consider the strength, nature and duration of other ties to the Australian community. I am to do so with reference to the length of time Mr Hong has resided in the Australian community and giving more weight to the time Mr Hong has contributed positively to the Australian community, and less weight to the time Mr Hong was not in Australia during his formative years and where the offending started soon after arriving in Australia. 

9. Mr Hong arrived in Australia in 1997 when he was 12 years of age which was both at a young age and in his formative years. His criminal offending did not commence until about 16 years later when he was about 28 years of age. It cannot be said his offending started ‘soon after’ his arrival in Australia. It is true that Mr Hong has spent some time overseas, at one time eight months continuously, but for the most part he has resided in the Australian community. Mr Hong completed his education in Australia and worked as a fruit picker, in a car wash for a short time and then as a plasterer for about six years including for three years before his most recent offending. It was not clear on what basis Mr Hong was engaged, but there is doubt whether he paid tax on his earnings. In any event, there is some contribution to the community involved in working in the community.  

10. Mr Hong’s only close family member in Australia is his mother who moved to Australia in late 1988. She became an Australian citizen in 2007. She is 75 years of age and in poor health with a range of medical conditions including hypertension and glaucoma, agoraphobia, cataracts in both eyes that require surgery, osteoporosis, tinnitus, and chronic lower back pain. She says she needs her son in Australia to assist with her health care and to support her. Mr Hong says that he saw his mother every day prior to going to gaol most recently which is not surprising as he lived with her at that time. Before then he spoke to her every two or three days. He said that he has maintained contact with her whilst in gaol speaking to her at least weekly as she has for one reason or another, the pandemic, and her health issues, been unable to visit him. Mr Hong says he is close to his mother which I accept, especially because of the likelihood that they are the only family members available for one another in Australia.

11. Mr Hong says his time in custody has presented difficulties for his mother and they will be even worse should he be returned to Malaysia. Mr Watson-Munro, who I referred to earlier in dealing with the risk of re-offending and who interviewed Mr Hong’s mother, expressed the opinion that she will suffer ‘significant psychological harm’ should Mr Hong be returned to Malaysia. There is not much room for doubt that if Mr Hong is returned to Malaysia, it will have a significant emotional, psychological, and practical impact on his mother.

12. The Minister pointed out that it was a little at odds with a close relationship that Mr Hong’s mother did not know much about Mr Hong’s criminal offending or his trips to Malaysia. So far as the offending is concerned, it is probably not that surprising that his mother was not told much about the detail of his offending, given that it is unlikely to be something that a son would wish to tell a parent about. So far as the latter is concerned it is curious, but I am unable to draw much of a conclusion about it. It is sufficient to say that I formed the strong impression from the evidence that there was in fact a close bond between mother and son. 

13. Mr Hong has lived in Australia for about 27 years, coming here when he was a child of 12 years of age. He did not commit any criminal offences for roughly his first 16 years in Australia. His long time in Australia since he was young means that he has a significant tie to Australia. So too does the fact that his mother is an Australian citizen and will be significantly impacted by a decision that sees her son returned to Malaysia. The practical impact on her, having regard to her deteriorating medical condition, is also important. I give this consideration considerable weight in favour of revoking the cancellation of the visa.

    EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

14. I am required to give weight to the expectations of the Australian community which is that people who are allowed to live and be in Australia will obey Australian laws, and that where someone who has been permitted to stay in Australia ‘has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to...remain in Australia’.

15. This means that ‘non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the non-citizen should not … continue to hold a visa’. Specifically, the expectation is that a visa should be cancelled if character concerns are raised through conduct involving acts of family violence, the commission of serious crimes against women or children, or commission of crimes against government representatives, amongst others.

16. I must decide what weight is to be given to the community expectation of non-revocation of mandatory cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences’.[10] This involves an evaluation about how strong this factor is in the circumstances of the case.

    [10] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [77] (per Charlesworth J).

17. The nature of the criminal offending is serious, but the risk of re-offending is not in my assessment, unacceptable.  The most recent offending occurred after Mr Hong was warned that further offending might see his visa cancelled. In those circumstances, the expectations of the Australian community weighs firmly against revocation of the cancellation of the visa.

    LEGAL CONSEQUENCES OF THIS DECISION

18. This consideration requires me to consider what will happen should Mr Hong’s visa not be restored. In ordinary circumstances a person who is not a citizen and who does not hold a visa is liable to be removed from Australia as soon as is reasonably practical. In the period before removal a non-citizen will be placed in immigration detention. A non-citizen who is the subject of a protection finding within the meaning of the Act will not be removed from Australia. I do not need to concern myself with that here as Mr Hong is not a person who is the subject of a protection finding.

19. A person who is not a citizen may make a claim engaging non-refoulment obligations:  obligations not to forcibly return, deport or expel to a place where they will be at risk of harm. The obligations arise under various international instruments to which Australia is a party. In a case where an applicant who is not subject to a protection finding makes a claim which may give rise to non-refoulement obligations they are required to be considered.

20. Mr Hong fears for his life from the person for whom he was selling the methylamphetamine that was the subject of his most recent offending. He claims that that person reminded him ‘just before [that person] was released and returned to Malaysia’ of the unpaid debts and threatened his life if the money, something like $110,000, was not repaid. That evidence was first exposed in Mr Hong’s statement which was filed shortly before the hearing. Mr Hong said its recency was explained by the recency of the threat that was made to him. It did not appear earlier in his representation to the Minister as they predated the making of the threat. It was by no means clear to me from Mr Hong’s evidence how the man who made the threat would find Mr Hong in Malaysia upon Mr Hong’s return. The whole scenario was reliant upon complete acceptance of Mr Hong’s assertions about what was said, that what was said was meant and that Mr Hong would be found somewhere in Malaysia.

21. In the circumstances of this matter, I have decided to adopt the Minister’s preferred course and to refrain from dealing with Mr Hong’s claim to be owed non-refoulment obligations given the paucity of the evidence and the capacity Mr Hong has to apply for protection visa. Mr Hong is likely to have his claim to be owed protection obligations more thoroughly examined and determined should he make an application for a protection visa.

22. In those circumstances, I consider that this consideration weighs in favour of revoking the cancellation because if it is not revoked, Mr Hong will remain in immigration detention until such time as any protection visa application is determined. As will be seen when I come to weigh the respective considerations, it is, in the circumstances, not significantly weighty.

    EXTENT OF IMPEDIMENTS IF REMOVED

23. This consideration requires me to consider the consequence for Mr Hong should the visa not be restored, and he is required to return to Malaysia and establish and maintain his life there. I am to consider the extent of any impediments that Mr Hong may face in establishing himself and maintaining basic living standards considering his age, health, any language or cultural barriers, and any social, medical, and economic support available to him if he is returned to Malaysia. This is to be considered against the measure of what is generally available to other citizens of Malaysia.

24. Mr Hong is in the middle of life at 40 years of age. He is physically in good health. His mental health is not good. He has been diagnosed with substance use disorder and a gambling addiction. Mr Watson-Munro also diagnosed him as suffering from ‘severe and recurring depression’. These things will undoubtedly be significant for a man trying to establish himself in a country where he has not lived for 27 years, even though he spent eight months there about 15 years ago. Should he be returned to Malaysia, he is also likely to be psychologically impacted by the separation from his mother who is the only family member he has had any significant relationship with for very many years if not his whole life.

25. Mr Hong says that he is unable to speak the local dialect that will be spoken in Malaysia should he return there. He claims this will place him at some disadvantage in obtaining employment and generally communicating. This is a little at odds with what he said in an interview in 2016 where he said he had basic speaking proficiency in Malay and intermediate speaking proficiency in Cantonese/Mandarin, and with some other aspects of his evidence. I consider Mr Hong’s evidence about his likely problems in communicating are more perceived than real and perhaps also overstated. Mr Hong’s ability to communicate in Malaysia is not a matter upon which I place much reliance.

26. His familiarity with Malaysian culture and society is very out of date and stems from a time that one would reasonably consider to be a distant memory to him when he was 12 years of age. Although he lived in Malaysia for eight months approximately 15 years ago, his long absence from Malaysia means he is unlikely to be very familiar with Malaysian culture today.

27. Mr Hong has some family in Malaysia which includes his siblings and some uncles, aunts, nieces, and nephews. It is reasonable to conclude, even if his relationship with his siblings is strained, as he claimed, that some of these people will provide support to him but that is a little speculative compared, for example, with what I know about the support he will have from his mother in Australia.

28. Mr Hong has not lived in Malaysia for 27 years. He left Malaysia as a 12-year-old child. He suffers from significant mental health problems. He has at present no identifiable social or family ties in Malaysia. If he is returned to Malaysia, he would be separated from the most important family tie he has had in his entire life, namely his mother. I consider that these things will present significant obstacles to Mr Hong establishing and maintaining a lifestyle commensurate with that of ordinary Malaysians. This consideration weighs in favour of revoking the cancellation of the visa.

    THE RELATIVE IMPORTANCE OF THE CONSIDERATIONS

29. This is a case where the relevant primary considerations considered individually are all important. The question arises as to how each of them are to be weighed when compared one to the other. In assessing their relative importance, the strongest factor that weighs against revoking the cancellation of the visa is the protection of the Australian community. The public interest in protecting the community looms large where the offending is serious, and the likely consequence of repeat offending is significant harm to members of the community and the community more widely. Nonetheless, the low to medium risk of re-offending makes that consideration less important than it might otherwise be.

30. In comparison, the private interests involved in Mr Hong’s ties to the community, especially given his very long time in Australia from a young age, and the significant impact a decision not revoking the cancellation would have on his aging mother, whose health is deteriorating and who is an Australian citizen, is in my assessment a very weighty matter. The expectations of the Australian community is less important than that consideration as the consequences to Mr Hong and his mother are so significant. His long time in Australia is a sound basis for giving that consideration less weight as the principles I referred to earlier suggest.  The weight of the primary considerations are relatively evenly balanced.

31. I consider that the practical obstacles confronting Mr Hong in establishing a life commensurate with that of ordinary Malaysians are likely to be significant given that he is a man who, as things presently stand, needs support to help him overcome his significant substance use disorder and gambling addiction. His severe and recurrent depression, in a country with which he has no significant social ties and whose familial ties are not firm, is likely to present a significant obstacle to him establishing any sort of reasonable lifestyle that would be commensurate with ordinary Malaysians. Mr Hong will confront difficulty re-establishing himself as he is a person not simply coming out of several years of imprisonment and detention, but who will be moving his whole life to a country and place that is a distant memory to him and, where it is no more than mere conjecture as to whether he will have familial support. This consideration in the circumstances is important and firmly tips the balance in favour of revocation of the visa cancellation.

    THERE IS ANOTHER REASON TO REVOKE THE CANCELLATION

32. The evaluation I have undertaken of the relevant considerations leads me to being satisfied that there is another reason to revoke the cancellation of the visa. This lays in the fact that Mr Hong has strong ties to the Australian community through his long time in Australia, his relationship with his mother, and what I consider to be the likely considerable impediments that will be presented to him in his circumstances in establishing himself and maintaining a basic living standard to the standard of those living in Malaysia.

33. I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of Chee Keng Hong’s BB Subclass 155 Five Year Resident Return visa.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member.

........................................................................

Associate

Dated: 9 May 2024

Date(s) of hearing:	6 May 2024
For the Applicant:	In-person
Solicitor for the Respondent:	Ms E Letcher-Boldt, Clayton Utz