Huang and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 57

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 57

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1431

GENERAL ADMINISTRATIVE DIVISION		)
Re		Min Huang

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date20 January 2005

PlaceSydney

Decision The decision under review is set aside and the matter remitted to the respondent with a direction that the discretion not to cancel Mr Huang’s protection visa under s 501(2) of the Migration Act 1958 should be exercised in his favour.

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

Professor GD Walker
  Deputy President  

CATCHWORDS

IMMIGRATION – on-shore visa application – cancellation of protection visa – visa cancelled on the grounds that the visa applicant fails the character test because of his past and present criminal conduct and substantial criminal conduct – supply of prohibited drugs (heroin) – discretion that the tribunal may exercise where the applicant fails the character test – examination of the applicant’s substantial criminal conduct – examination of the applicant’s family life in Australia – necessity to balance the protection and expectations of the Australian community against the hardship to the applicant if he were returned to China – held that the actions of the applicant caused more harm to the applicant and his family than to the community, the risk of recidivism is small, deterrence is adequately served by the sentence imposed, the community would not be averse to allowing the applicant a second chance there being real evidence of rehabilitation and reform – found that the applicant is devoted to his children and they to him and their best interests weigh in favour of the applicant  – discretion weighs in favour of the applicant remaining in Australia – decision is set aside and the matter remitted to the respondent.

Migration Act 1958 ss 499, 501(2), 501(6)(a), 501(7)

Drug Misuse and Trafficking Act 1985 (NSW) s 25A

Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

REASONS FOR DECISION

20 January 2005	Professor GD Walker, Deputy President
Summary

1.      The applicant, Min Huang (also known as Jack Huang), who is aged 45 and a citizen of the People’s Republic of China, first arrived in Australia on 27 December 1989 on a student visa.  On 4 July 1991, Mr Huang applied for a domestic protection (temporary) entry permit.   On 29 November 1996, he was granted a protection visa.   On 2 November 1999, Mr Huang was convicted of supplying a prohibited drug (heroin) and sentenced to a minimum term of six years with an additional term of two years.

2.      The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, decided to cancel Mr Huang’s protection visa on the ground that he does not pass the character test because of his substantial criminal record.  This is the decision to be reviewed by the tribunal.

Background

3.      The applicant, Mr Huang, was born in Fujian Province, China, on 10 August 1959 and is aged 45.   In January 1985, Mr Huang married Lanhua Ni.  On 20 December 1987, their elder son, Jinghan Huang, who is now aged 17 was born.  Mr Huang has a mathematics degree from the Fujian Teachers University and worked as a high school teacher in China before coming to Australia.

4.      In June 1989, Mr Huang applied for a student visa to come to Australia. He first arrived on 27 December 1989 on a subclass H33 full fee paying (student) visa valid until 30 June 1990.   Mr Huang’s wife and child did not accompany him.

5. On 4 July 1991, Mr Huang applied for a subclass 784 domestic protection (temporary) entry permit on the grounds that he could not return to China because of his fear of persecution resulting from his involvement in student protests in Tiananmen Square and his strong opposition to the Communist Party and its corruption. On 25 February 1994, his application was refused and on 14 March 1994, he applied for a review of this decision by the Refugee Review Tribunal (“RRT”). On 1 September 1994, due to the introduction of the Migration Reform Act (Transitional Provisions), Mr Huang’s application for a domestic protection permit was taken to be an application for a subclass 866 protection visa. On 29 November 1996, Mr Huang was granted a protection visa.

6.      In December 1997, Ms Ni and their son, Jinghan, arrived in Australia under the family unification scheme. 

7.      On 19 November 1998, Mr Huang was arrested and charged with four counts of supplying a prohibited drug.  

8.      On 28 February 1999, Mr Huang’s second son, Wei William Huang now aged almost six, was born, and acquired Australian citizenship by birth.

9.      On 2 November 1999 at the Parramatta District Court, Mr Huang pleaded guilty to the charge of supply prohibited drug and sentenced to a total term of eight years with a minimum term of six years with an additional term of two years (the sentence being confirmed on 21 March 2001 when an appeal against severity was dismissed).  The conviction related to the supply of heroin to an undercover police officer and included on 5 November 1998 the supply of 27.9 grams for $6,200; on 12 November 1998 the supply of 83.5 grams for $18,000; and on 19 November 1998 the supply of 346.9 grams for $72,000.  Mr Huang’s accomplice was sentenced to a total term of 10 years with a minimum term of seven and a half years and an additional term of two and a half years.  In sentencing Mr Huang, Judge Nield said:

… as neither prisoner gave evidence before me I have some difficulty in determining for myself the role of each prisoner in the acts of supply because the only evidence of the role of each of them is the objective circumstances of the acts of supply. … The prisoner Huang negotiated the purchase price, received the heroin from the prisoner …, supplied it to … in exchange for the purchase price and handed the purchase price or part thereof over to the prisoner …  However, whatever was the exact role of each of them, each prisoner was an active participant in the actual supplying of a considerable quantity of heroin on three separate occasions … which acts of supply amount to the commission of a very serious offence, one which demands the imposition of an appropriate salutary penalty.

… The prisoners were motivated solely for financial gain …

… The Crown’s case against the prisoner Huang was strong to the point of being overwhelming.  He could not realistically or sensibly have done anything but plead guilty. …

10.     Judge Nield also commented:

Each has responsibility to his wife and child or children, but that responsibility did not prevent either prisoner becoming an active participant in the supplying of almost one pound of heroin.

11.     On 8 November 2001, Ms Ni and Jinghan Huang were granted Australian citizenship.

12.     On 5 February 2004, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”), New South Wales Compliance Cancellations Section, informed Mr Huang that the Minister or his delegate was considering cancelling his protection (permanent) visa because of his substantial criminal record and inviting him to comment (G5 p31).    On 23 February 2004, Mr Huang made written submissions to DIMIA.  He stated that when he applied for his family to come to Australia he knew that it would cost more to support them than he had.  He began to gamble “but immediately got sunk into financial crisis” and then “succumbed to crime involving selling heroin to an undercover police”.   He said that since his imprisonment, he had worked hard to improve his English and had repented for his wrongdoings and was trying his best to correct his bad habits.   He also said that he owed a sincere apology to the Australian government who had given him a second chance by allowing him to live in Australia and that he would teach his children to be law-abiding citizens (G6 p36).

13.     On 20 August 2004, an officer from DIMIA Onshore Protection NSW, reported to the NSW Character Section that he had investigated whether protection obligations were owed to Mr Huang which would prevent his protection visa from being cancelled.  The officer stated:

The RRT, in 1996, found that Mr Huang’s actions had led to a real chance that he would be persecuted for political reasons if he returned to China.  Country information indicates that the CDL is still supportive of CCP policies and actions.  However the passage of time since the student demonstrations of 1989, Mr Huang’s absence from China since December 1989, and the fact that he has been removed from the Australian community since his imprisonment in November 1989 and has clearly therefore been politically inactive during that time, if not for years previously, cause me to find that there is not a real chance, currently or in the reasonably foreseeable future, that Mr Huang would be persecuted for a Convention reason if he returned to the PRC.  … I have found Mr Huang to not be a “refugee” under Article 1 of the Refugees’ Convention.

…

Mr Huang has been convicted of a serious drug offence in Australia for which the prescribed penalty is imprisonment for a maximum of twenty years.  Mr Huang is currently serving a term of imprisonment totalling eight years.  He therefore is a person who has been convicted of “a particularly serious crime” as prescribed by section 91U(1)(a).   … I would not be satisfied, from the information before me, that Mr Huang is not a continuing danger to the Australian community.  Accordingly, in the event that Mr Huang had been found to be a refugee under Article 1, I find that Article 33(2) could have been invoked in this case to determine that Mr Huang is a person to whom Australia does not owe non-refoulement obligations under the Refugees’ Convention.

14.     On 29 September 2004, an officer of DIMIA’s NSW Compliance Cancellations Section informed Mr Huang that as she had not received any submissions from him with the exception of his letter of 23 February 2004, that she would allow him until 7 October 2004 to make further submissions (G p46).   By facsimile dated 5 November 2004, Mr Huang responded enclosing two character references and certificates for courses undertaken while in prison.  He submitted that his family were very supportive of him and had visited him on a regular basis whilst he has been in prison and were hopeful that they would be reunited.  He said that if the department were to make a favourable decision that he would never break the laws of Australia again but would find work to support his family (G p49).

15. On 29 October 2004, a delegate of the respondent decided to cancel Mr Huang’s protection visa because of his substantial criminal record and having exercised her discretion under s 501(2) of the Migration Act 1958 (“the Act”) to cancel his visa (G1).  This was notified to Mr Huang on 3 November 2004 and on 5 November 2004, he lodged an application for a review of this decision by the tribunal.

16.     Mr Huang was released from Silverwater Correctional Centre on 18 November 2004 and is presently being detained at the Villawood Immigration Detention Centre, New South Wales.

17. At the hearing of this matter, the applicant was represented by Julian Gormly, counsel, and the respondent was represented by Patrick Reynolds, solicitor, of Clayton Utz, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G Documents”), taken into evidence as Exhibit A1, together with the evidence tendered by the parties at the hearing. Mr Huang and Ms Ni gave oral evidence in person.

Relevant Law and Policy

18. Under s 501(2) of the Act, the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he does in fact pass the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are s 501(6)(a) and s 501(6)(c)(i). Section 501(6)(a) provides:

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

(a)the person has a substantial criminal record (as defined by subsection (7));

…

”Substantial criminal record” is defined in s 501(7) to include a person who “has been sentenced to a term of imprisonment of 12 months or more”.

19.     Section 501(6)(c)(i) states:

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

(i)        the person’s past and present criminal conduct

…

the person is not of good character; …

20. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.

21. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Issue

22. In the present case, Mr Huang does not pass the character test because of his “substantial criminal record”, having received on 2 November 1999, a total term of imprisonment of eight years with a minimum term of six years, for supply prohibited drug (heroin). The issue remaining, therefore, is whether the tribunal should exercise the discretion under s 501(2) not to cancel Mr Huang’s protection visa.

Consideration

23.     Mr Huang and Ms Ni both gave oral evidence in person.  A Mandarin interpreter was sworn in to assist the witnesses.

24. As was stated above, there is no dispute, and I find accordingly, that Mr Huang does not pass the character test by reason of s 501(6)(a) of the Act because he has a “substantial criminal record”, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more. As stated above, Mr Huang has been convicted of supplying a prohibited drug (heroin), for which he received a minimum term of imprisonment of six years with an additional two years.

25. The issue for the tribunal therefore is whether to exercise its discretion under s 501(2) to decide, nevertheless, not to cancel Mr Huang’s visa. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.

26.     Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a)       the protection of the Australian community, and members of the community;

(b)       the expectations of the Australian community; and

(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

Paragraph 2.4 explains:

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community

27.     Examples of what the Government views as serious offences are set out in paragraph 2.6.  This includes, in subparagraph (a) the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs.  Paragraph 2.6 of Direction No 21 states:

Person who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people;

The Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders.  It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and

Offences involving illicit drugs of dependency or addiction, such as heroin, are also of particular concern to the Government and the community; …

28.     Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons. 

Protection of the Australian Community

29. The first factor to be considered under this heading is the seriousness and nature of the conduct involved. As stated above, the supply of illicit drugs and, in particular, heroin, is considered to be very serious by the Commonwealth government. Mr Huang received a total sentence of eight years for this offence, being an offence contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW), for which the prescribed penalty is imprisonment for a maximum of twenty years or a fine of a maximum of $385,000 or both. Paragraph 2.7 of Direction No 21 states:

It is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offender’s conduct against the community.  Decision-makers should have due regard to the Government’s view in this respect, including:

(a)       the extent of the person’s criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; …

There is no question that Mr Huang has committed a very serious offence.  In his sentencing remarks, Judge Nield stated: 

… each prisoner was an active participant in the actual supplying of a considerable quantity of heroin on three separate occasions to …, which acts of supply amount to the commission of a very serious offence, one which demands the imposition of an appropriate salutary penalty.

…

As I have said already, a prisoner’s guilty plea may show contrition but I do not think that either prisoner’s guilty pleas shows contrition.  I do not think for one moment that either prisoner is sorry for being involved in the supply of such a deleterious drug as heroin, one which causes untold suffering and often death.

In his letter to the department dated 23 February 2004, the applicant wrote that, “I deserve my 6 years of imprisonment plus 2 years of parole period”, a proposition with which I agree.  In his evidence at the hearing, he said he learned the full extent of the harm caused by drugs through his participation in two drug and alcohol courses while in jail.  Observing former heroin addicts undergoing methadone treatment in prison had deepened his understanding of drug-related problems.  He now considered it fortunate that he had sold the drugs only to an undercover police officer and that they had therefore not found their way into the community.  Judge Nield had also said in his sentencing remarks that, “It is fortunate for the community that that small amount, as indeed it is a small amount when compared against that which is used within the community every day, has been taken out of circulation and destroyed” (G p61).  The applicant’s wrongdoing has put the state of New South Wales to the expense of maintaining him for six years in jail, and the Commonwealth to the expense of supporting his family on welfare benefits during that period.  But I do not think it necessary to disregard the fact that his actions did not cause any harm to any individual, apart from himself and his family

30.     Under paragraph 2.7 of the Direction, the tribunal when considering the seriousness of the conduct is to have due regard to “the extent of the person’s criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence”.  The offence for which the applicant was sentenced is his only conviction.  Before that he had an unblemished record both in Australia and China.  While in prison he has not committed any disciplinary offences and has been a model prisoner.  It may also be a mitigating factor (see paragraph 2.8(a)) that the motive for his law-breaking, although financial gain, was not simple greed or the desire to enjoy an affluent lifestyle.  It was an attempt to obtain the means to pay off large gambling debts that he had foolishly incurred in an attempt to raise the funds associated with bringing his wife and son from China and accommodating and supporting them after their arrival.  Because of his injured knee, he was living on modest worker’s compensation payments and had exhausted his savings in meeting the additional expenses resulting from his injury.  He could see no way to meet the costs of his family’s airfares and the expenses associated with establishing them after their arrival.  Those facts tell somewhat in the applicant’s favour, but given the seriousness of the offence they cannot be given substantial weight.  

31.     Next, the tribunal must consider the risk of recidivism.  The applicant points out that this is not a case in which a non-citizen has committed a further offence after having been warned previously of the risk of visa cancellation (paragraph 2.10(a)) and presents the absence of a warning as an argument in his favour in itself.  But, as an intelligent and educated man, the applicant must have been well aware at all times that committing a crime in a foreign country is liable to result in deportation or removal.  On the other hand, this is his only conviction (paragraph 2.10(b)) and, as the respondent concedes, there is evidence of rehabilitation.  While in jail he undertook almost two years of English classes to prepare for better integration into the Australian community.  His teacher, Ms Maxine Campos writes that he worked diligently to improve his English skills (G p50).  Whereas at the beginning of his course he required interpreters to carry out personal interviews, through consistent work he developed the ability to express thoughts and opinions and convey meanings successfully, such that he no longer needed an interpreter.  “He grasps complex ideas and internalises them.  He consolidates what he has learned by applying them in daily transactions. … He participates well in class and is enthusiastic.  He has an inquisitive mind and a thirst for knowledge.  He demonstrates an excellent attitude and a willingness to adapt to change”, she wrote. 

32.     The applicant successfully completed a number of other useful courses and worked efficiently in a number of capacities while in custody.  The Regional Food Service Manager at Silverwater Correctional Centre, Mr Alex Dilworth, reported that the applicant had worked in food services at Silverwater for over a year and that his work, manner and punctuality had been excellent (G p48).  He was able to meet the demands of tight schedules and displayed a co-operative team spirit.  “Min has proved to be a trusted team member with a pleasant and caring personality.  I am aware of his crime and the loving support of his family who are standing by him.  I firmly believe that he has accepted what he did was wrong and he has addressed his offence and has made the effort while incarcerated to improve his future prospects through education and good works” (G p48). 

33.     Mr Timothy Kam Hung Leung, a senior minister of the Grace Chinese Christian Church and a volunteer prison chaplain, stated in his affidavit (Exhibit A3) that he has known the applicant since 1999, both at Long Bay and at Silverwater.   From quite early in his sentence, the applicant became a regular attender at the Chinese Christian fellowship and a keen student of the Bible and Christian teaching.  “Through the Christian Fellowships for the past years and through this face-to-face talk [on 14 October 2004]”, Mr Leung states, “I can see that Mr Min Huang has gone through a great change in his character and has become a reformed person, and that he is determined to make contributions to the community”.  There is evidence to a similar effect in the affidavit of Mr Chung Ping Rhombus Ning (Exhibit A4), who also notes that the applicant has declared that if released he will serve the community by participating in the work of the Salvation Army.  Mr Ning has known the applicant only since May 2004, but is convinced of his genuineness and sincerity. 

34.     At the hearing the applicant seemed angry with himself over the stupidity and destructiveness of his conduct.  He acknowledged the wrongness of his criminal behaviour but, possibly out of a sense of shame, displayed some impatience, bordering on asperity, when required in cross-examination to dwell on it.  Applying the s 501 discretion does not, however, involve inquiry into an applicant’s congeniality, but into whether he still presents a danger to the community.  His role in the Chinese Democracy Movement may provide a partial guide in that respect.  In 1987, he was appointed provincial chairman of the Democratic League Party of China and was a vocal critic of what he termed “the dictatorial leadership of the Communist Party and its corruptions” (G p36).  It is significant that he remained a strong supporter of the Student Democracy Movement even after the Tienanmen Square massacre in May 1989.  While it was one thing to support the movement when it seemed to be tolerated by the government and had become almost fashionable among urban Chinese youth, to keep supporting it openly after Tiananmen Square required courage and determination.  His resulting treatment by the government authorities was the main factor in his decision to leave the country and come to Australia. 

35.     The respondent argues that if Mr Huang’s visa is not cancelled, there is a risk that if he faces financial pressures again in the future, he may again break the law.  His wife firmly states that such an outcome is “impossible”, but when attempting to predict future conduct in these circumstances one can never totally exclude the possibility of a relapse.  Nevertheless, I believe the evidence shows the applicant to be a man who, if he sets his mind on a course of action, will see it through.  He is devoted to his family and sees his future in supporting them and helping his sons with their studies and development.  When sentencing the applicant, Judge Nield said, “I cannot say for myself whether either prisoner will turn his back on criminal offending and resume a law abiding life in the community” (G p61), but events in the intervening six years are indicative.  Before his knee injury, the applicant had a consistent record of lawful employment, and of always paying his taxes, and his conduct while in custody has shown that he is willing and able to work efficiently, to improve his skills and generally to fit himself for a productive and law-abiding life.  I conclude that the risk of recidivism in this case is small.

36.     The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences.  “Whilst not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa“ (Direction No 21 para 2.11).  In imposing his sentence, Judge Nield stated:

In any sentence imposed upon any offender there must be an element of specific deterrence and general deterrence.  The prisoners must be made aware that criminal conduct of the kind in which they have engaged will not be tolerated.   Moreover, others who become aware of the sentence imposed upon the prisoners must be deterred from doing what the prisoners have done by the sentence imposed upon the prisoners.  People will hear about the sentences that I will impose upon the prisoners.  Hopefully the sentences that I will impose upon the prisoners will deter others from doing what the prisoners have done.  General deterrence cannot be ignored or undervalued.

37.     I respectfully agree, especially with Judge Nield’s observation that “General deterrence cannot be ignored or undervalued”.  I have expressed similar views in earlier decisions.  General deterrence was a significant factor in the sentence his Honour imposed.  Given that this was a first and only offence, I think deterrence is adequately served by the sentence imposed, by his additional months in immigration detention and by the general anxiety and expense these proceedings have caused him.

Expectations of the Australian Community

38.     The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia.  Failure to do so may make it appropriate to cancel such a person’s visa.  “Visa refusal or cancellation and removal of the non-citizen 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 be removed from Australia”.  Such might well be the case if one considers the offence committed by the applicant.  At the same time, I think the community view might be different in the case of a sole offence committed by someone who has not acted from motives of sheer greed but out of a desire to provide for his family’s needs at a time when, because of his injury, he was unable to do so himself and who, in the event, caused no harm to any individual.  In those circumstances I do not think the community would be averse to offering the offender a second chance if the facts showed a minimal risk of repeat offending.

The Best Interests of the Child

39.     The third primary consideration is the best interests of the child.  I note the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”. Direction No 21 also provides that when considering the best interests of the child or children that it should not be assumed that the interests of each child will coincide (paragraph 2.14) and that the decision-maker should have regard to the duration of the relationship and the hypothetical prospect for developing a stronger and better relationship in the future (paragraph 2.16(b)).

40.     In this case, Mr Huang has two children in Australia whose interests must be considered, his sons Jinghan Huang and Wei William Huang (“William”), aged 17 and almost six respectively.  It is clear that neither child is an “anchor child” brought into the world for the purpose of strengthening the parents’ case for permanent residency in Australia.  Jinghan is in year 12 at Ashfield Boys’ High School and will complete the higher school certificate this year.  William is in year one at Ashfield Public School.  Jinghan was aged two when Mr Huang came to Australia and was aged 10 when they were reunited in December 1997.   Within one year of being reunited, Mr Huang was arrested on the offence for which he was subsequently convicted.  Mr Huang’s second son William was born when Mr Huang was in custody and has not yet had the opportunity to form a bond with his father outside the prison or detention centre environment.

41.     Ms Ni has made clear her intention in the event that her husband’s visa is cancelled: “If my husband is deported, I must go and join him in China”, she writes in her affidavit (Exhibit A7).  “I do not want to live our lives separately like the past six years, or the eight years I was in China and my husband was in Australia”.  Jinghan has expressed a wish to remain in Australia in that event, as he wishes to attend university here and would have considerable difficulty reintegrating into Chinese society and its education system.  If he remains here he will be alone and without family support or assistance.  As he is entering year 12 and undertaking the Higher School Certificate this year, his school work, and probably his general welfare, could suffer.  He has in the past benefited considerably from his father’s assistance with his mathematics studies, even though that was mainly given in the form of advice over the telephone.  Mathematics is Jinghan’s best subject at school and he hopes to undertake tertiary study in one of the mathematically-related disciplines. 

42.     If Ms Ni were to return to China to be with her husband, she would need to take William with her, for there is no one else to look after him in Australia.  The applicant points out that William was not born in China, nor does he have the “birth permit” required under China’s eugenics policies.  “He would become a black child in China.  All basic entitlement of a Chinese child would have are not available to a black child, including education and health support.  The Applicant would bear all the special costs associated with a black child.  Given the Applicant’s past knee injury, he would not be able to afford such costs.  This may, in circumstances, endanger William’s life” (Exhibit A2).  The applicant also relies on the United States Department of State 2003 Country Report On Human Rights Practises for China (Exhibit A5), which describes the operation of the Population and Family Planning Law which came into force in 2002 and which is intended to standardise the implementation of the government’s one-child limitation policies.  It requires couples who have an unapproved child to pay a large “social compensation fee” which is assessed at rates equivalent to from one-half to eight times the average worker’s annual disposable income.  Other measures directed against the parents include the threat of job loss or demotion, the withholding of social services, higher tuition fees when the child attends school and other forms of discrimination (p12). 

43.     The State Department report does not mention the position of a child born outside China of Chinese parents, and the respondent argued at the hearing there was insufficient evidence to justify a conclusion that William would be treated as a “black child”.  The High Court has, however, considered the position of such a child in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293. In that case the appellant had been born of Chinese parents in Australia in 1996. The court proceeded on the basis that he would be treated as a “black child” if he were to return to China, and the respondent had put no argument to the contrary. The court accepted the Refugee Review Tribunal’s finding that as a “black child” in China, the appellant would be “denied access to food, education and to health care beyond a very basic level [and would] probably face social discrimination and some prejudice and ostracism” (at 297). The court held that the treatment that the appellant would be likely to receive in China qualified him for a protection visa as a person to whom Australia had protection obligations under the Refugees Convention as amended.

44.     The ministerial delegate who made the decision under review in this case accepted that both boys would suffer hardship if their father were to be removed from Australia and returned to China.  At the hearing the respondent conceded that the applicant had good relations with his children, but pointed out that there had been little direct interaction, especially in recent years.  While those relations might improve if he were to remain in Australia, that was purely hypothetical and their mother had been the main carer.  She has lived here for seven years and during that time raised her children in this country, where all three are entitled to remain. 

45.     But, as the Direction states, “the child’s best interests will be served if the child remains with its parents” (paragraph 2.15), and if William remains here after his father’s removal, he will in effect be raised without a father.  That would in all probability be harmful to his welfare and education, especially when his father is so dedicated to that role.  It was, after all, his concerns for his family’s welfare that motivated the applicant’s descent into gambling and crime.  That does not excuse his conduct, but it is evidence of his devotion to his family. 

46.     In my view the best interests of the child are a factor weighing in favour of not cancelling the applicant’s visa in this case. 

Other Considerations

47.     Among the other considerations to be taken into account is the applicant’s marriage to Ms Ni who, like her children, is an Australian citizen.  The respondent concedes that the marriage is a genuine one.  The spouses have known each other since high school and have been married for 20 years.  They were separated for eight years after the applicant was forced by the threat of political persecution for his involvement in the Democracy Movement to leave China.  They remained in frequent contact by letter and telephone and were able to keep the marriage alive and functioning until they could be reunited in Australia.  The marriage has remained viable during the six years of separation that the applicant brought on himself.  They have maintained family contact in the fullest measure that the circumstances permit, even to the extent that the applicant has helped his elder son with his mathematics homework, a factor that has apparently contributed to Jinhang’s particularly good results in that subject. 

48.     Ms Ni is a woman who would have had no difficulty in finding a replacement husband while the applicant was in jail if she had been so minded.  In the circumstances few would have criticised her if she had.  Yet she remains fully committed to the marriage.  When Centrelink suggested to her that she should apply for a Single Parent Allowance, she declined to do so, on the ground of her existing marriage. That meant she was eligible only for the Family Allowance, which gave her $60.00 less per fortnight.  

49.     Ms Ni has indicated that if her husband’s visa is cancelled, she will return to China with him, accompanied by her younger son.  As the mother of a “black child”, she would face severe discrimination in China, as would her husband, and as the High Court noted in Chen Shi Hai (supra), her son would be subjected to outright persecution.  In addition, as the department has noted, “Mr Huang may suffer some degree of discrimination, not amounting to persecution, due to his previous political actions if he returned to the PRC” (G p85).  The whole family would be likely to suffer serious deprivation.

50.     The respondent points out correctly that as Ms Ni and both of her children are Australian citizens, there is nothing to prevent them from remaining here.  That would, however, mean fracturing an apparently strong family.  Although such consequences are unfortunately a common result of serious law-breaking by a parent, they are nevertheless a factor to be considered in the exercise of the discretion.   

51.     This is a difficult case.  The applicant was convicted, after a plea of guilty, of a very serious premeditated crime which, although his only offence, would fully justify visa cancellation.  On the other hand, there are the mitigating circumstances relating to the offence, including the circumstances that motivated his actions, the fact that the applicant was a subordinate intermediary and was not in original possession of the heroin and that, thanks to the efficiency of the New South Wales police, the applicant’s wrongdoing caused no harm to any person.  There is evidence of real reform and rehabilitation from several different credible sources, and it is clear that the applicant’s reform began early in his sentence, well before he received notice of the intention to cancel his visa.  His activities in the Democracy Movement in China show him to be a man of courage who can stick to a chosen course of action when he has set his mind to it.  The fact that he earned an Outstanding Worker award every year that he worked as a teacher in China attests to his ability and dedication. 

52.     If William, the younger child, accompanies his mother when she returns to China, he will face deprivation and active persecution.  If he remains in Australia with his mother and elder brother, the family will be broken up, probably permanently, and he will be raised without his father.  The family would also be likely to remain dependent on Centrelink payments for years to come, whereas if the applicant remains in Australia he should be able to support them.  The welfare and development of both children should benefit from their being part of a strong and intact family. 

53.     The applicant knows what will happen if he reoffends and should be aware that the police are likely to be watching him.  That should act as a further incentive, if one is needed, to remaining on the right side of the law.  On balance I believe the discretion should be exercised in favour of not cancelling the applicant’s visa. 

54. The decision under review is therefore set aside and the matter remitted to the respondent with a direction that the discretion not to cancel Mr Huang’s protection visa under s 501(2) of the Migration Act 1958 should be exercised in his favour.

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:         .....................................................................................
  Associate

Date/s of Hearing  6 January 2005
Date of Decision  20 January 2005
Representative for the Applicant               Mr J Gormly, Counsel
Representative for the Respondent          Mr P Reynolds, Clayton Utz solicitors