Jiang and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2022] AATA 3023

Jiang and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3023 (15 September 2022)
Division:GENERAL DIVISION
File Number(s): 2022/1940
Re:Kylie Jiang
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member Dr Linda Kirk
Date:15 September 2022
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the Reviewable Decision made by the delegate dated 17 February 2022, and remits the matter for further consideration with a direction not to exercise the discretion to refuse the Visa Applicant a Sponsored Parent (Temporary)(Class GH) visa under s 501(1) of the Migration Act 1958 (Cth).
.................................[SGD].......................................
Senior Member Dr Linda Kirk
Catchwords
MIGRATION – refusal to grant visa under s 501(1) of Migration Act 1958 (Cth) – Applicant doesn’t pass the character test – whether Tribunal should exercise discretion to refuse to grant the visa – Direction 90 – nature and serious of offending – risk of reoffending – best interests of minor children – expectations of Australian community – links to the Australian community – where visa applicant is off-shore – decision set aside and remitted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
EGH19 v Minister for Home Affairs (No 2) [2021] FCA 903
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR and Minister for Home Affairs [2019] FCAFC 185
Jagroop v Minister for Immigration and Border Protection and Another
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Darnia-Wilson [2022] FCAFC 28
Suleiman v Minister for Immigration and Border Protection (2018) [2018] FCA 594
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member Dr Linda Kirk
15 September 2022
INTRODUCTION

This is an application by Ms Kylie Jiang (‘the Review Applicant’) for review of a decision of a delegate of the Minister dated 17 February 2022 (‘the Reviewable Decision’)[1] refusing to grant Dr Qi Jiang (‘the Visa Applicant’) a Sponsored Parent (Temporary) (Class GH) visa (‘SP visa’) exercising the discretion under s 501(1) of the Migration Act 1958 (Cth) (‘the Act’).
[1] Exhibit R1, 14-27.
The Review Applicant is the Visa Applicant’s adult daughter, an Australian citizen who resides in Australia. The Review Applicant sponsored the Visa Applicant in his SP visa application and has standing to seek review: s 27(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’).
BACKGROUND
On 15 November 2011, the Visa Applicant applied for a Contributory Partner visa offshore (‘CP visa’). On 28 May 2012, he was granted a CP visa and travelled to Australia on 22 June 2012.[2]
[2] Exhibit R1, 44, 222.
On 28 November 2014, the Department sent the Visa Applicant a notice of intention to consider cancellation of the CP visa, as he was found to have provided a bogus Notarial Certificate which recorded him as having no criminal convictions, and he provided incorrect answers on his CP visa application in relation to the convictions.[3]
[3] Exhibit R1, 59.
On 19 April 2016, a delegate cancelled the CP visa under s 109 of the Act.[4]
[4] Exhibit R1, 59-83.
On 22 May 2016, the Visa Applicant departed Australia and has not returned.[5]
[5] Exhibit R1, 220
On 30 August 2019, the Visa Applicant applied for the SP visa.[6]
[6] Exhibit R1, 84.
On 10 January 2022, the Department sent the Visa Applicant a notice of intention to consider refusal (‘NOICR’) of the SP visa.[7]
[7] Exhibit R1, 175-183.
On 31 January 2022, the Visa Applicant provided a detailed response to the NOICR with supporting documents.[8]
[8] Exhibit R1, 184-186, 196-219.
On 17 February 2022, a delegate made the Reviewable Decision.
On 4 March 2022, the Review Applicant sought review of the Reviewable Decision in the Tribunal.[9]
[9] Exhibit R1, 1.
The matter was heard by the Tribunal on 26 and 27 May 2022. The Review Applicant and the Visa Applicant attended the hearing by video-conference. The following persons gave oral evidence and were cross-examined at the hearing:
- the Review Applicant
- the Visa Applicant
- Alfred Sinn
The material before the Tribunal consists of:
- Section 501G-Documents (G1-2AJ, pages 1-246) filed 23 March 2022 – Exhibit R1
- Notarial Certificate of No Criminal Record dated 17 January 2011 – Exhibit R2
- Statutory Declaration of Ms Jiang with attachment, dated 14 April 2022 – Exhibit A1
- Statutory Declaration of Dr Jiang with attachments, dated 14 April 2022 – Exhibit A2
- Statutory Declaration of Mr Alfred Chor Kei Sinn with attachments, dated 14 April 2022 – Exhibit A3
- Memorandum of Advice from barrister Samuel Pararajasingham dated 4 April 2019 – Exhibit A4
The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.
LEGISLATION
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 the person passes the character test.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7) of the Act relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution.
MINISTERIAL DIRECTION NO. 90
The Minister is empowered by subsection 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, except for the Minister acting personally, such as the Minister’s delegates and the Tribunal.[10]
[10] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
On 8 March 2021, the Minister signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[11]
[11] Direction [2-3].
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to refuse a visa on character grounds:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)Whether the conduct engaged in constituted family violence;
c)The best interests of minor children in Australia; and
d)Expectations of the Australian community.
Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:
a)International non-refoulement obligations;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘information and evidence from independent and authoritative sources should be given appropriate weight.’
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[12] Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as Kenny and Mortimer JJ stated in Jagroop v Minister for Immigration and Border Protection and Another: ‘the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501’.[13]
[12] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23]; [28] (Colvin J).
[13] [2016] FCAFC 48 at [57].
ISSUES FOR DETERMINATION
The two issues for determination by the Tribunal:
1)whether the Visa Applicant can satisfy the Tribunal that he passes the character test; and, if not,
2)whether the Tribunal should exercise its discretion conferred by s 501(1) of the Act to refuse to grant the visa to the Visa Applicant.
EVIDENCE BEFORE THE TRIBUNAL
The Visa Applicant was born in January 1955 in the People’s Republic of China (‘China’) and is aged 67 years.[14] He graduated from Zhejiang Medical University in 1982 and specialised in radiology.[15] From 1982 to 1998 he practised as a radiologist at the Red Cross Hospital in Hangzhou City.[16]
[14] Exhibit R1, 102, 105.
[15] Exhibit A2, at [5]
[16] Ibid at [6].
In 1998 and 2000 the Visa Applicant established two companies with a former classmate, Mr Kai Han: Hang Zhou Hua Kai Trading Company (‘Hua Kai’) and Hang Zhou Hua Guang Company (‘Hang Zhou Hua Guang’), a medical investment company.[17] The Visa Applicant was the General Manager of Hua Kai and Managing Director of Hang Zhou Hua Guang. The Visa Applicant’s wife, Ms Wu Zhongni, worked part-time as one of the accountants in Hua Kai, and she held no position in Hang Zhou Hua Guang.[18]
[17] Exhibit R1, 163-164 at [5]-[6].
[18] Ibid.
Criminal conviction
On 3 September 2004, the Visa Applicant was convicted by the Hangzhou Municipal Intermediate People’s Court of Zhejiang Province of one count of Embezzlement in the Post and sentenced to three years’ imprisonment at the Southern Suburb Prison, Xiaoshan District in China.[19] An appeal of the decision was dismissed. The Visa Applicant served his sentence from February 2004 to May 2006. He complied with an order made by the Court that the money be returned to the victim company.[20]
[19] Exhibit R1, 34; The China Criminal Record Notarial Certificate and its English translation dated 24 December 2021 states that on 3 September 2004 Dr JIANG was convicted in the Hangzhou Municipal Intermediate People’s Court of Zhejiang Province of duty encroachment, for which he was sentenced to three years imprisonment.
[20] Exhibit A4, at [6(i)].
The criminal charge was particularised as follows. From May 1999 to December 2001, when the Visa Applicant held the position of General Manager of Hua Kai, he assisted his wife, Ms Wu Zhongni, former Financial Director of Hua Kai, to embezzle CNY 269,300 (approximately $55,000 AUD) by means of providing false invoices to reimburse funds from the company and issue false invoices to embezzle the funds of Hua Kai in the name of offsetting the capital funds of Hua Kai. The Visa Applicant’s liability for the offence was on the basis of being an accessory to Ms Zhongni’s offences. The Visa Applicant was found to have played an ‘assisting and minor role’ and wrote a written statement of repentance after the trial. He was consequently afforded a ‘lenient and reduced punishment’.[21]
[21] Exhibit A4, at [6(v)].
Remorse and responsibility
In his Statutory Declaration dated 14 October 2014, the Visa Applicant expressed his remorse for his past criminal conduct. He stated:[22]
Whilst my wife and I express our remorse we do emphasize as regards the fraud in which we were involved, that was a one-off incident for which we have suffered a serious penalty. Those incidents have made us more mindful of personal responsibility and of the danger of misplaced trust in business arrangements.
[22] Exhibit R1, 165 at [10].
Police and notarial certificates
In around January 2011 the Applicant obtained a Notarial Certificate of ‘No Criminal Record’ (‘the Notarial Certificate’). The process of obtaining the Notarial Certificate involved two stages. First, the Visa Applicant went to his local police station in Hangzhou and was asked to provide his National Identification. After waiting for 15 minutes, he was issued with a document with a police stamp on it which stated he has no criminal convictions (the Police Certificate’). Secondly, the Visa Applicant took the Police Certificateto the Notarial office to apply for the Notarial Certificate which was provided to him.[23] The Visa Applicant provided the Notarial Certificate to the Department with his application for the CP visa.
[23] Statutory declaration 11 December 2014 [3]; Notarial certificate dated 17 January 2011, Zhijiang Notary Public Office Hangzhou City of (Seal) Zhejiang Province The People’s Republic of China.
In his Statutory Declaration dated 14 April 2022, the Visa Applicant stated:[24]
I did not in any way procure a fraudulent or bogus document. The Certificate which I obtained is a genuine document from the authority as it has been approved.
When I obtained the Certificate, I knew that the information in it was incorrect and it did not disclose my 2004 conviction. Even though I knew it contained incorrect information, I took no steps to bring the mistake to the attention of the authorities and I proceeded to rely on it in my application for my subclass 143 visa. I guess it based on two reasons, the conviction is not disclosed in the system, secondly, the Public security system is not comprehensive.
I thought perhaps financial crimes were deliberately not recorded.
[24] Exhibit A2, at [14]-[16].
In his Statutory Declaration, the Visa Applicant explained why he did not disclose his conviction on the visa application form:[25]
I also did not disclose the fact of my conviction on the application form which I completed. I thought I should be consistent with the certificate that I obtained. I was driven by my desire to move to Australia to be with [the Review Applicant] and to support her and my granddaughters …
[25] Exhibit A2, at [17]-[18].
In his Statutory Declaration, the Visa Applicant expressed his remorse for his actions:[26]
Looking back now, I regret relying on the police certificate which I knew made no mention of my conviction and I regret not taking any steps to disclose my conviction in the 143 application or taking steps to have the police certificate corrected.
[26] Ibid at [42].
Incoming passenger cards
Following the Visa Applicant’s arrival in Australia in June 2012 as the holder of the CP visa, he travelled back and forth between Australia and China multipletimes. Each time he entered Australia he completed an incoming passenger card on which he answered ‘no’ to the question about whether he had any criminal convictions. In his Statutory Declaration dated 14 April 2022 the Visa Applicant explained why he provided this answer:[27]
The incoming passenger card is in Chinese as well as English. I understood the question and I knew that I had incorrectly answered that question on several occasions. The reason I did this was because I did not want to create more trouble if I answered ‘yes’. As it turned out, there were problems eventually and I now wish that I had taken steps to correct them earlier.
[27] Ibid at [20]-[23].
Relationship with daughter and grand-daughters
The Review Applicant has three daughters: A1 born in 2007, aged 14 years, E born in 2011, aged 11 years, and A2 born in 2020 aged two years.[28] The Review Applicant is divorced from A1 and E’s biological father and there is a parenting order which gives them equal custody of the girls. The Review Applicant’s husband, Alfred Sinn, is A2’s father. During the weeks that A1 and E stay with the Review Applicant they reside at a house in West Ryde owned by the Visa Applicant which is located close to A1’s school.[29]
[28] Applicant’s Statement of Facts Issues and Contentions, 1.
[29] Transcript, 26 May 2022, 47-48.
In his Statutory Declaration, the Visa Applicant described his relationship with his granddaughters:[30]
[30] Exhibit A2, at [33]-[35]; [37]-[42].
I consider I have a very close relationship with my granddaughters although I have not met [A2] who was born in 2020.
The [older] two girls [A1 and E] stayed with me and my wife in China for 6 months in 2007.
We have also had family get together in Hong Kong in 2019, every Christmas time for 2016, 2017, 2018 [the Review Applicant] took her children to Hangzhou to unite with us.
…
We couldn't meet (or travel) at all once the Covid travel restrictions started in 2020.
Apart from our annual get together, I have online videocalls through Wechat/ Facetime every time [A1 and E] are with [the Review Applicant] due to the parenting order.
I make sure that I celebrate the kids’ birthdays as well as Christmas and Chinese New Year. I sometimes send them money.
I really love my grandchildren and I really want to stay with them in Australia. I no longer want to live in Australia, but I do want to visit and stay with my family and I want to watch my grandchildren grow up.
The separation has made us very depressed, we could not see my only child in Australia and our life has become tasteless. My wife and I could not express in any words to tell our feeling right now, we deeply sad what had happened to us especially to [the Review Applicant]. We always felt very hopeless to be able to see each other together in near future. It is very brutal to us.

In her Statutory Declaration, the Review Applicant described the relationship between her daughters and her parents:[31]
In the weeks that the girls are with me [A1 and E] have daily online Facetime video calls with their grandfather and grandmother, they also keep in touch on Wechat and send each other photos when they are at their father.
Since my parents have left Australia in May 2016, [A1 and E] have asked me many times when grandparents will come to Australia visit them. They told me that they are thrilled if their grandparents are coming to Sydney. [A1 and E] would be devastated and would be depressed for long time if they find out they would be unlikely to see their grandparents in person ever again. The girls have made many plans to bring their grandparents to their favourite place to eat and play when their grandparents are able to come visit them in Australia.
[31] Exhibit A1, at [18]-[19].
She explained the impact on her if the Visa Applicant is refused the SP visa:[32]
It will be the most unbearable thing I could imaging if my parents couldn’t come to Australia. No words could describe the devastation I have. I am their only daughter, I left China when I was 16 and came to Sydney to study. I never thought that we wouldn’t be able to see each other again.
I am 40 years old now, I really want to spend as much time with my parents to make up the missing years that we weren’t together. In addition, my parents are getting older and older, every time I went back to China visit them, I can see and feel that they are aging.
It will be soon in the future they need me to care for them. As their only child, it is my responsibility to look after my parents when they get older and/ or need help or care. I couldn’t imagine the consequences if they couldn’t come to Australia and I couldn’t go back to China. I feel extremely guilty and powerless if I couldn’t care for my parents that I will regret for the rest of my life.
In the Chinese Culture, children refuse or could not provide care to their parents are considered as criminals. Morally, sit’s extremely devastating if I can’t take care of my parents when they need me.
[32] Exhibit A1 at [32]-[35].
Current living and financial arrangements
In his Statutory Declaration dated 14 April 2022, the Visa Applicant detailed his current living and financial arrangements:[33]
I haven't practised medicine since I returned to China in May 2016. I am retired and I do not work.
I receive a pension and rental income from 2 commercial properties and one residential apartment that I own.
My wife and I also own a townhouse where we live in Westlake, Dongpou Road, Hangzhou City. The townhouse is very comfortable for the two of us. It has 3 bedrooms and 3 bathrooms over 3 levels.
[33] Exhibit A2 at [29]-[32].
The Visa Applicant told the Tribunal that he and his wife also have some investments in stocks and bonds, most of which are in China and some are in Singapore.[34] They derive about 10% of their income from these investments.[35] The only property he owns in Australia is the house in West Ryde.[36]
[34] Transcript, 26 May 2022, 43.
[35] Transcript, 26 May 2022, 44.
[36] Transcript, 26 May 2022, 46.
Overseas travel
The Visa Applicant confirmed that during the period 2011 to 2019 he travelled to 23 countries. He agreed that he travelled to Hong Kong on two occasions to meet with his daughter and granddaughters, and in 2016 he met them in Hawaii.[37]
CONSIDERATION AND REASONS
[37] Transcript, 26 May 2022, 45.
1) Does the Visa Applicant pass the character test?
The Visa Applicant concedes that he does not pass the character test, relevantly under ss 501(6) and 501(7)(c) of the Act. The Tribunal is satisfied that he fails the character test for reason that he has a “substantial criminal record” due to his three-year conviction, imposed and served in a foreign country.[38] It follows that as the Visa Applicant does not pass the character test, and the discretion to refuse to grant the Visa Applicant a visa in s 501(1) is enlivened.
2) Should the Tribunal exercise its discretion conferred by s 501(1) of the Act to refuse to grant the visa to the Visa Applicant?
[38] See Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Darnia-Wilson [2022] FCAFC 28.
In considering whether to exercise its discretion under s 501(1) of the Act to refuse the SP visa, the Tribunal has had regard to the following Considerations as required by the Direction.
Primary Consideration 1 – Protection of the Australian community
Reiterating the general guidance and principles in the Direction, paragraph 5.2 states that:
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
Paragraph 8.1(2) states that in considering the need for protection of the Australian community, decision-makers should also have regard to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) Nature and seriousness of the Visa Applicant’s conduct to date
Paragraph 8.1.1(1) sets out factors to be considered in determining the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Relevant to the Applicant’s conduct, the Tribunal must have regard to the following factors:
a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)   crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)    …
c)     with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)    the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)    the cumulative effect of repeated offending;
f)   whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
g)    ...
On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Visa Applicant’s criminal offending is serious in nature, and this weighs in favour of the exercise of the discretion to refuse the SP visa.
Having regard to paragraph 8.1.1(1)(a) and (c) of the Direction, the Tribunal finds that the Visa Applicant’s criminal offences and other conduct involved dishonesty and are serious. The financial crime for which he was sentenced to three years imprisonment involved embezzlement of a large sum of money in relation to a company of which he was the General Manager. The Review Applicant obtained legal advice,[39] which described the crime as ‘in the low to mid-range of seriousness’ and opined that ‘a Court would have concerns about the breach of a trust by a General Manager’ and that the ‘facts reveal the offending behaviour extended in excess of two years’.[40] Furthermore, ‘there appears to have been a significant degree of planning and sophistication to the operation’, which involved embezzlement of the equivalent of approximately AUD$55,000. The Tribunal further notes that whereas the Visa Applicant was convicted for only one offence, the offending involved a series of fraudulent incidents between 1999 and 2001.
[39] Exhibit A4.
[40] At [21(ii)].
Guided by paragraph 8.1.1(1)(c) of the Direction, the Tribunal notes that custodial sentences imposed by the courts are an objective indicator of the seriousness of a person’s criminal offending. The sentence of three years imposed on the Visa Applicant was significant. While the Review Applicant’s legal advice asserts that a similar crime committed in Australia would attract a lesser sentence ‘in the vicinity of two years’[41] the sentence is still well above the twelve-month threshold for failing the character test.
[41] At [21(vii)].
Paragraph 8.1.1(1)(f) of the Direction requires consideration of whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. It is not in dispute that the Police Certificate the Visa Applicant obtained in January 2011 did not record his criminal conviction in China. The Visa Applicant has consistently claimed that he had no part in the production of the Police Certificate which inaccurately recorded that he had no criminal convictions.[42] He claims that did not in any way “procure” the creation of the Police Certificate which was favourable to him.[43] The Tribunal accepts that the Police Certificate, although containing incorrect information, was genuinely produced by the relevant authorities. The Visa Applicant admits that despite being aware of the error in the Police Certificate, he took no steps to correct it, and he proceeded to obtain the Notarial Certificate on which he relied for his application for the CP visa. The Respondent’s position is that the Visa Applicant provided a ‘bogus document’[44] in support of his CP visa application, and it was on this basis that the CP visa was cancelled under s 109 of the Act.
[42] Exhibit R1, 163.
[43] Ibid.
[44] ‘Bogus document’ is defined in s 5 of the Act as follows:
‘bogus document’ in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)     was obtained because of a false or misleading statement, whether or not made knowingly.
On the basis of the evidence before it, the Tribunal finds that the Visa Applicant provided false or misleading information to the Department, by not disclosing his prior criminal offending, when he provided the Notarial Certificate in support of his CP visa application which recorded ‘No Criminal Record’. The Visa Applicant knew this to be false and did not take any steps to notify the Department of its inaccuracy until he conceded it to be so when notified by the Department that it intended to cancel his CP on this basis.
The Tribunal further finds, based on the evidence, that the Visa Applicant repeatedly provided false statements on multiple incoming passenger cards to the effect that he has no criminal convictions. It makes this finding based on the Visa Applicant’s admission that he incorrectly answered that question on several occasions. It does not accept his claim that he did not answer truthfully because he did not want to create further trouble by answering the question honestly.
The Tribunal finds that the Visa Applicant’s provision of a false document to the Department in support of his CP visa application, and his failure to answer questions honestly on multiple incoming passenger cards, demonstrates a high level of dishonesty and a willingness to deceive to obtain advantage.
On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Visa Applicant’s criminal offending and other conduct is serious in nature, and this weighs in favour of the exercise of the discretion to refuse to grant the SP visa.
(b) The risk to the Australian community should the Visa Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction states:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of the Direction provides that in assessing the risk that may be posed to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Having regard to the nature of the harm to individuals or the Australian community if the Visa Applicant were to reoffend in accordance with paragraph 8.1.2(2)(a) of the Direction, the Tribunal finds that the harm to individuals should the Visa Applicant engage in similar conduct could include financial loss or harm. The Visa Applicant is no longer engaged in commercial business activities, however the risk does not need to be associated with the same conduct. The Visa Applicant has a history of acting dishonestly to obtain advantage both in his dealings with the Department and in the context of his business activities. Therefore, the fact the Visa Applicant is no longer is a businessman does not mean that there is no risk to the Australian community from any future acts of deceit or deception he may engage in.
Having regard to the likelihood of the Visa Applicant engaging in further criminal or other serious conduct in accordance with paragraph 8.1.2(2)(b) of the Direction, the Visa Applicant’s evidence is that he is now retired, and he has not engaged in commercial business activities since his release from prison in May 2006. He claims that in these circumstances it is ‘highly unlikely’ that he will reoffend. Based on the evidence before it, the Tribunal finds that the Visa Applicant has been convicted of only one crime and he has otherwise been a law abiding and a respected member of society. It is ‘never possible to rule out the possibility of further offending’,[45] and accordingly it cannot be said there is no risk of the Visa Applicant re-offending. However, the Tribunal finds that the risk of him re-offending is very low. In making this finding, the Tribunal has had regard to the Visa Applicant’s evidence in relation to his regret and remorse for his criminal offending and his recognition of the consequences of such actions.
[45] EGH19 v Minister for Home Affairs (No 2) [2021] FCA 903 at [29]
The Tribunal has had regard to whether the risk of harm may be affected by the duration and purpose of the Visa Applicant’s intended stay, the type of visa for which he has applied, and whether there are strong or compassionate reasons for granting a short stay visa in accordance with paragraph 8.1.2(2)(c) of the Direction. The SP visa for which the Visa Applicant has applied is not a permanent visa, and he argues that the limited and temporary nature of the visa is a factor that contributes to the very low risk of him re-offending. The Respondent however points out that the SP visa allows a visa holder to stay in Australia for up to five years, and the length of that stay increases the opportunity for further deceptive conduct. Based on the evidence, the Tribunal finds that the primary if not sole purpose of the Visa Applicant’s stay in Australia is to spend quality time with his daughter and grand-daughters, and therefore the proposed duration of his visit will not increase the risk of him re-offending.
On the basis of the evidence before it and taking into account available information and evidence on the risk of the Visa Applicant re-offending, the Tribunal finds that the likelihood of the Visa Applicant engaging in further criminal or other serious conduct is very low. In the context of the harm to the Australian community should he engage in the same or similar criminal conduct in the future, and the purpose and limited duration of his stay in Australia, the Tribunal finds that this low risk is acceptable.
For the reasons above and applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, the Tribunal finds that Primary Consideration 1 weighs marginally against the exercising of the discretion to refuse to grant the Applicant the SP visa.
Primary Consideration 2 – Family violence committed by the non-citizen
This Primary Consideration is not relevant as there is no evidence of family violence.
Primary Consideration 3 – The best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction requires decision-makers to determine whether revocation is in the best interests of the child. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made: paragraph 8.3(2). If there is more than one child affected, the Tribunal must consider the interests of each child individually to the extent that their interests may differ: paragraph 8.3(3).
In considering the best interests of the child, paragraph 8.3(4) relevantly requires the following factors be considered:
a)    the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)    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;
c)     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;
d)    the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
e)    whether there are other persons who already fulfil a parental role in relation to the child;
f)   any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)    evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen in any way, whether physically, sexually or mentally;
h)    …
The relevant minor children are the Visa Applicant’s three grand-daughters, A1 born in 2007, aged 14 years, E born in 2011, aged 11 years, and A2 born in 2020 aged two years.
Having regard to the factors in paragraph 8.3(4)(a), the evidence before the Tribunal is that the Visa Applicant has remained in contact with A1 and E since he departed Australia in May 2016. This contact has included almost daily video calls and the girls have visited the Visa Applicant at his home in China during the Christmas period in 2016, 2017 and 2018. They also have met in overseas locations including in Hawaii in 2016 and in Hong Kong in 2019. Whereas the relationship between A1 and E and the Visa Applicant is non-parental, the evidence demonstrates that they have a very close and loving bond. The Visa Applicant resided in Australia for a four-year period from 2012 to 2016, during which time he was a significant figure in A1 and E’s young lives. The Visa Applicant has not met A2 who was born in 2020 although he regularly sees her during video calls, and she has come to recognise her grandfather.

Having regard to the factors in paragraph 8.3(4)(b), if the Visa Applicant is granted a SP visa he can play an active parental role in the lives of A1 and E through their teenage years and in the life of A2 from a relatively young age. It would be in the best interests of each child to have their grandfather present in their lives and playing a significant role in their formative years. Whereas the girls can remain in contact with their grandfather via electronic means, face-to-face contact with him would permit them to better develop their close and loving bond.
Having regard to the factors in paragraph 8.3(4)(d), 8.3(4)(e) and 8.3(4)(f), the evidence is that the Review Applicant, and the girls’ respective fathers have been their primary carers since the Visa Applicant departed Australia in May 2016. The Review Applicant’s evidence is that the girls are upset that they do not see their grandfather and often ask after him. They are very keen to be reunited with the Visa Applicant in Australia and they would be devastated if he were not permitted to visit them and remain in Australia for the duration of the SP visa. The Tribunal finds that it would be in the best interests of each child to have their grandfather physically present again in their lives.
On the basis of the evidence before it, the Tribunal finds that it is in the best interests of the Visa Applicant’s granddaughters for him to be granted the SP visa. Accordingly, Primary Consideration 3 weighs heavily against the exercise of the discretion to refuse the visa.
Primary Consideration 4 – The expectations of the Australian community
Paragraph 8.4 of the Direction states:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) …
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature …
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(e) …
(f) …
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 8.4 of the Direction, in FYBR and Minister for Home Affairs [2019] FCAFC 185. The majority (Charlesworth and Stewart JJ) concluded as follows:
·Paragraph 11.3 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[46]
·It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations.[47]
·However, the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[48]
·It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of ‘appropriateness’.[49]
[46] Charlesworth J at [66]; Stewart J at [91].
[47] Charlesworth J at [67]; Stewart J at [104].
[48] Charlesworth J at [76].
[49] Stewart J at [97].
The effect of paragraph 8.4 is that it imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. The question to be addressed does not involve an inquiry into what the Australian community does or does not expect, because that is normatively expressed in the terms of the consideration: paragraph 8.4(4). Rather, the relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed community expectation’ of refusal of a visa ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[50] As a normative expression, this consideration indicates the likelihood that community expectation will in most cases lead to refusal of a visa, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.
[50] Charlesworth J at [77].
Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account the nature, seriousness and impact of the Visa Applicant's criminal offending, and his provision of incorrect information to the Department the Tribunal finds that Primary Consideration 4 weighs in favour of exercising the discretion to refuse to grant the Applicant the SP visa.
Other considerations
While the primary considerations carry particular weight, the Direction acknowledges at paragraph 9 that ‘other considerations’ must be taken into account by the decision-maker where relevant. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection (‘Suleiman’):[51]
Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[51] [2018] FCA 594 [23].
In FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[52] Wigney J held that this analysis ‘tends to overcomplicate or over intellectualise the issue’. His Honour noted that the use of the word ‘generally’ in clause 8(4) of Direction 79 (the same wording is used in section 7(2) of Direction 90) ‘recognises that there may well be cases where the circumstances are such that one or more “other considerations” may be deserving of more weight than one or more primary considerations’.[53] His Honour also held that the formulation identified in Suleiman ‘is at least potentially problematic because it tends to suggest that a decision-maker cannot give greater weight to one or more of the “other considerations” in any given case unless they consider that the case is somewhat unusual or out of the ordinary’.[54]
[52] [2021] FCA 775 [22].
[53] at [23].
[54] Ibid.
The ‘other’ considerations relevant to the Visa Applicant’s circumstances are considered in the following paragraphs.
International non-refoulement obligations
There are no non-refoulement claims so this consideration cannot be given any weight.
Extent of impediments if removed from Australia
This consideration is not relevant as the Visa Applicant is offshore.
Impact on victims
The Direction states in paragraph 9.3:
(1) Decision-makers must consider the impact of the section 501 or 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence that the Visa Applicant’s criminal activity in China had any impact on members of the Australian community. This consideration therefore cannot be given any weight.
Links to the Australian community
Paragraph 9.4 of the Direction requires decision-makers to have regard to paragraphs 9.4.1 to 9.4.2 below.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1 requires consideration of the strength, nature and duration of the Visa Applicant’s family and social ties to Australia:
(1)   Decision-makers must consider any impact of the decision on the non-citizen’s 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.
(2)   Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Having regard to paragraph 9.4.1(1) of the Direction, the evidence before the Tribunal is that the Visa Applicant has immediate family members in Australia, including the Review Applicant and his three minor grandchildren. The Visa Applicant’s evidence is that he also has a couple of friends who reside in Australia. Other than these family members and friends there is no evidence that the Visa Applicant has any links to the Australian community.
Paragraph 9.4.1(2) is only relevant to cancellation or non-revocation decisions, so these factors cannot be given weight in the Visa Applicant’s circumstances.
Impact on Australian business interests
The Visa Applicant does not claim that any Australian business interests would be affected by refusal decision. Accordingly, the Tribunal has given the factors in paragraph 9.4.2(3) no weight.
On the basis of the evidence before it, and having regard to the factors in paragraph 9.4, particularly the strong familial links the Visa Applicant has in Australia, the Tribunal finds that this other consideration weighs heavily against the exercise of the discretion to refuse the SP visa.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration 1 weighs marginally against the exercise of the discretion to grant the SP visa. The Visa Applicant’s criminal offending is serious, however the very low risk of him committing future criminal offences or engaging in deceptive behaviour is such that the risk of harm to the Australian community is acceptable.
Primary Consideration 3 weighs strongly against the exercise of the discretion to refuse the SP visa as it is in the best interests of the Visa Applicant’s granddaughters for him to be permitted to visit them in Australia.
Primary Consideration 4 weighs in favour of exercising the discretion to refuse to grant the SP visa as the Visa Applicant’s criminal offending and his provision of incorrect information to the Department are such that the Australian community would expect that he not be permitted to visit Australia.
In regard to the relevant Other Considerations, the Visa Applicant’s links to the Australian community, particularly his daughter and granddaughters, weigh heavily against exercising the discretion to refuse the SP visa.
For the reasons stated above, the Tribunal is satisfied that it should not exercise the discretion to refuse the Visa Applicant the SP visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the Reviewable Decision made by the delegate dated 17 February 2022, and remits the matter for further consideration with a direction not to exercise the discretion to refuse the Visa Applicant a Sponsored Parent (Temporary)(Class GH) visa under s 501(1) of the Migration Act 1958 (Cth).

I certify that the preceding 94 (ninety -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk

.................................[SGD].......................................
Associate
Dated: 15 September 2022

Date(s) of hearing: 26 & 27 May 2022

Counsel for the Applicant: Mr P Cutler

Solicitors for the Applicant: Stanley Immigration & Law Pty Ltd

Solicitors for the Respondent: Ms H Dejean, Australian Government Solicitor

Date(s) of hearing:	26 & 27 May 2022
Counsel for the Applicant:	Mr P Cutler
Solicitors for the Applicant:	Stanley Immigration & Law Pty Ltd
Solicitors for the Respondent:	Ms H Dejean, Australian Government Solicitor