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

Jiang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5941 (17 December 2020)
Division:GENERAL DIVISION
File Number(s): 2020/6537
Re:JIANG, Xu
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs And
RESPONDENT

DECISION
Tribunal:Member M Kennedy
Date:17 December 2020
Place:Adelaide

The decision under review is affirmed
Member M Kennedy
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Misuse of Drugs Act (WA) 1981.
Secondary Materials
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018.
REASONS FOR DECISION
Member M Kennedy

The applicant seeks review of a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of her visa.
LEGISLATIVE FRAMEWORK
Section 501 of the Migration Act 1958 (Cth) (the Act) provides for the cancellation of a visa on character grounds.
Relevantly, where the Minister is satisfied that a person does not pass the “character test” because a person has a “substantial criminal record” and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of a State, the Minister must cancel the visa: section 501(3A) of the Act. At the time of the mandatory cancellation of the applicant’s visa (11 June 2019), she was serving a sentence of imprisonment on a full-time custodial basis for an offence against a law of Western Australia.
Where a visa has been cancelled under section 501(3A), the Minister has power, under section 501CA(4), to revoke the cancellation decision. That section permits revocation if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
Pursuant to s 501(6)(a) of the Act, a person does not pass the character test if he or she has a substantial criminal record. Pursuant to s 501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The applicant accepts that she fails the character test through this mechanism. I find that the applicant has been convicted of 1 count of possession of Prohibited Drugs with Intent to Sell or Supply (cocaine) contrary to paragraph 6(1)(a) of the Misuse of Drugs Act (WA) 1981. She was sentenced to 6 years imprisonment, eligible for parole after 4 years. The applicant therefore has a substantial criminal record and fails to pass the character test accordingly.
The criterion at subparagraph 501(3A)(b)(ii), upon which the mandatory visa cancellation may be revoked is therefore the sole issue in this review: that is, whether I am satisfied that there is another reason why the original decision should be revoked. My approach to the consideration of that issue is the subject of a Ministerial Direction.
DIRECTION NO. 79
Section 499 of the Act authorises the Minister to give written direction to a body, such as the Tribunal, having functions or powers under the Act, about the performance of its functions and the exercise of powers. I must comply with directions issued under this provision.
Ministerial Direction 79, at Part C, engages directly with the performance of my functions and exercise of my powers in reviewing Ms Jiang’s revocation request. I am to treat the following as primary considerations:
(a)the protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)the expectations of the Australian community.
Other considerations must also be taken into account. They are:
(a)international non-refoulement obligations;
(b)the strength, nature and duration of ties;
(c)the impact on Australia’s business interests; and
(d)the impact on victims and the extent of impediments.
Primary considerations are generally to be given greater weight than the other considerations.
The Direction provides further guidance to me in terms of the objectives of the Act and the character provisions, the objective of the Government in protecting the community from harm as a result of criminal activity, including maintaining public confidence in the character assessment process.
The Direction sets out principles asserting Australia’s sovereign right to determine whether non-citizens of character concern are allowed to remain in Australia, and that permission for non-citizens to remain in Australia is a privilege conferred in the expectation that non-citizens are, and have been, law-abiding and respectful of Australia’s institutions, and will not cause or threaten harm to individuals or the community.
The relevant principles against which I am to approach the exercise of my powers in this matter are that:
·the community expects that the Government can and should cancel visas of non-citizens if they commit serious crimes in Australia;
·a non-citizen who has committed a serious crime should generally expect to forfeit the privilege of staying in Australia;
·sometimes criminal offending or other conduct, and the harm that would be caused if it were to be repeated, is so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances even strong countervailing considerations may be insufficient to justify not cancelling the visa;
·Australia has a low tolerance of any criminal or other serious conduct by people who have been participating or contributing to the Australian community only for a short period of time; however, the community may afford a higher level of tolerance in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age; and
·the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether the visa should be cancelled.
Background
The applicant is a citizen of New Zealand. At the time of the mandatory cancellation of her visa, she held a Special Category (Class TY) subclass 444 visa.
The applicant was born in Harbin, People’s Republic of China. She has one younger sibling. Her family lives in China. The applicant moved to New Zealand without her family as a teenager. She completed secondary schooling and attained a degree in applied science at the Auckland University of Technology.
The applicant returned to China for a year or so in 2007, before returning to New Zealand to settle in Christchurch. In Christchurch she opened her own a pool hall business using a substantial amount of money sent to her by her mother. The applicant’s mother in China is a public servant but also operates a business securing government contracts. Ms Jiang’s mother is sufficiently wealthy to have given or lent her daughter approximately $1 million to establish the business.
The applicant has two minor traffic-related convictions in New Zealand, but otherwise has no significant criminal history prior to the events that took place in Australia.
The applicant travelled to Melbourne in 2016 briefly to visit a friend. This movement is not recorded on the movement records available to the Tribunal possibly because the applicant travelled on her Chinese passport. Ms Jiang received a grant of New Zealand citizenship that same year.
The applicant returned to Australia, this time Perth, on 8 November 2016 as the holder of a New Zealand passport and was granted the Special Category (Class TY) subclass 444 visa on arrival. She had intended this to be another brief visit to see an old friend who she had met in New Zealand as a teenager, but who had since moved to Australia. However, within a month of Ms Jiang’s arrival, the circumstances giving rise to the visa cancellation played out and changed the course of the applicant’s life.
I now turn to the considerations under Direction 79.
Primary consideration: The protection of the Australian community
When considering the protection of the Australian community, decision-makers must have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Furthermore, remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding and will not cause or threaten harm to individuals or the Australian community.
I am to also give consideration to:
(e)the nature and seriousness of the non-citizen’s conduct to date; and
(f)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of Ms Jiang’s conduct
The offence
Ms Jiang has been convicted of 1 count of possession of Prohibited Drugs with Intent to Sell or Supply (cocaine) contrary to paragraph 6(1)(a) of the Misuse of Drugs Act (WA) 1981. She was sentenced to 6 years imprisonment, eligible for parole after 4 years. Ms Jiang’s appeal against sentence was rejected by the Court of Appeal (WA).
I narrate and extract from the detailed sentencing remarks of the District Court of Western Australia:
The facts relating, generally, to the offence of your specific role in the offence are the following. On 7 December 2016 at about 8.55 pm, police executed a search warrant at 17 Broun… Avenue in Bedford.
When police entered the house you were in the kitchen, living room area, sitting at a table. Police observed Mr Xu using an angle grinder to cut into a metal cylinder, while Mr To and Ms Wang were watching him.
Police then placed you and your three co-offenders under arrest on suspicion of possessing a prohibited drug with intent to sell or supply it to another.
Police then arranged for the fire brigade to attend the address in order to cut open the metal cylinder. Inside the cylinder was a green package that contained 11 packets of varying size, wrapped in aluminium foil. Each package contained a quantity of cocaine.
The total amount of cocaine was 1.97 kilograms, which ranged in purity from 79 to 89 per cent. During the search of the house, police also seized a total of 253.8 grams of cutting agent and digital scales.
The court described the investigation and monitoring of the impending offence through the use of listening devices, telephone and police surveillance. The initial target of the operation was a Mr Zheng, who had collected a Mr To from Perth airport on 8 November 2016. Police monitoring had established that Mr To was involved in distributing significant quantities of prohibited drugs. Police established at that time Mr To was awaiting a delivery of drugs he would provide to Mr Zheng, and also to Ms Wang. Ms Wang is the friend the applicant had travelled to Perth to visit.
Police intercepted a postal package marked as a “soy milk machine” that was to be delivered to the address where the applicant was staying with Ms Wang.
On 6 December 2016, Police intercepted a communication between Ms Wang and the applicant where Ms Wang had told the applicant that drugs had arrived, although the applicant was sentenced on the basis that the state had accepted that the applicant was not then aware that her friend was talking to her about drugs or illegal activity.
Police intercepted communication that afternoon where Ms Wang had advised the applicant to travel to a different address as they needed to work. Police observed Ms Wang and Mr To enter the address, and observed the applicant to wait outside in the street. Upstairs, Ms Wang and Mr To were attempting to cut open the metal cylinder that had been delivered.
Police then observed the applicant to be travelling in a vehicle to Bunnings with a person named Wei Sui. Mr Sui was observed purchasing grinding discs and a dust mask. The applicant waited in the vehicle. The Court of Appeal accepted that the sentencing judge was in error, albeit immaterially, when his Honour mentioned that the applicant had been driving.
The applicant was observed carrying the purchased items into the premises where the metal cylinder was located.
The group had difficulty cutting open the cylinder. The applicant drove a vehicle containing the cylinder to a different address. It was at that address that Police executed the search warrant and discovered the large quantity of very pure cocaine in the cylinder:
The State generally described your role and the role of your three co-offenders as follows. Firstly, Mr To was the representative of the drug syndicate that sent drugs to Perth. Mr To’s role was to facilitate the delivery of drugs to Ms Wang and to represent the syndicate’s interests.
Secondly, Ms Wang purchased the drugs and had direct contact with Mr To and the drug syndicate.
Due to her role, Ms Wang had control over the involvement of Mr Xu and you. This was Ms Wang’s first involvement with the drug syndicate and she became involved due to her relationship with Mr Xu.
Thirdly, Mr Xu was a drug dealer who was associated with the drug syndicate. Mr Xu assisted Ms Wang in distributing the drugs.
Fourthly, and finally, you were friends with Ms Wang. You aided in the offending by performing minor tasks at Ms Wang’s direction. This included hiring cars, driving the co-offenders around, purchasing items and transporting the drugs.
The State accepts that of the four offenders, you were the least culpable of the offenders. Your involvement in the offence did not start until the evening of 7 December 2016, some hours before the police executed the search warrant at 17 Broun Avenue, Bedford.
You aided the co-offenders on the day to come into possession of the drugs, by attending on two trips to separate Bunnings stores where tools were purchased to open the metal cylinder containing the drugs. On the first occasion, you did not enter the Bunnings store in Inglewood, but carried the tools purchased up to the apartment in Hay Street when you returned.
On the second trip to the Bunnings store in Morley, after you’d driven to 17 Broun Avenue, Bedford you paid for the tools selected by Mr Xu with a credit card. Mr Xu did not speak English. You had driven him to the Bunnings store.
You drove the vehicle with Mr To in it containing the drug package, the cylinder from the apartment in Hay Street, Perth to Ms Wang’s house at 17 Broun Avenue, Bedford after your co-offenders were unable to open the metal cylinder at the apartment in Hay Street. Mr Xu then collected the metal cylinder from the vehicle and took it into 17 Broun Avenue.
The State accepts you would receive no financial benefit for your role in the offence. Your motive was to assist your friend, Ms Wang, a co-offender who you’ve been friends with since you met her in New Zealand when you were about 15 years old. You believed Ms Wang’s involvement was to recover a $500,000 debt relating to a failed business venture involving Mr Xu. Mr Xu was in a relationship with Ms Wang.
You had no involvement in the planning or organisation to get the drug package to the apartment in Hay Street or into Australia. The cylinder containing the drugs was sent in the post from Hong Kong. There is no suggestion you would be involved in the distribution of the drugs or had any direct knowledge of how the drugs would be distributed. Your role was confined to your aiding activities which you carried out on the night of 7 December 2016.
Your co-offender, Ms Wang, was the person giving you directions. I accept to some extent she manipulated you. She did not give you any indication of your involvement in this criminal dealing activity between when you arrived in Perth on 8 November 2016 to visit her and up to 7 December 2016. You became suspicious of what was going on at the Hay Street apartment on the evening of 7 December 2016, after Ms Wang had asked you to attend there, by the behaviour of the co-offenders between 5.00 pm and 6.30 pm.
By the time you went to your first trip to Bunnings in Inglewood on the evening of 7 December 2016, you were aware you were assisting the other co-offenders in a criminal activity. By the time Mr To put the metal cylinder in the vehicle you were driving, you were aware it contained a considerable amount of drugs. You did not have direct knowledge of the exact amount of the drugs or the type of drugs contained in the cylinder.
You were not forced to participate on the evening of 7 December 2016 or continue your involvement over the next few hours. Some of the intercepted phone calls that you had with Ms Wang on the evening of 7 December 2016, suggest to me you were not overborne by her or scared in relation to your involvement.
Ultimately, you played a role on the night of 7 December 2016, in aiding the co-offenders to obtain nearly 2 kilograms of high purity cocaine. You have no previous record. You’ve never dealt or used prohibited drugs previously. By the time you came to Perth in November 2016 to visit Ms Wang, she was a regular user of methylamphetamine. She was not the same person you knew when you were living – when she was living in New Zealand – sorry, when you were living in New Zealand.
I have also noted that on appeal, Mazza JA accepted that the sentence was manifestly excessive having regard to factors of the case considered to be exceptional. His Honour would have imposed a sentence of 4 years and six months with immediate eligibility for parole as at the date of the appeal decision (15 January 2020). His Honour was, however, in dissent with the majority observing, among other matters, that the applicant was generally aware of the scale of offending in which she knowingly participated. The majority observed that, given the nature and short duration of the applicant’s involvement, the sentence may be regarded as high, but very much lower than the range found in many cases concerning possession with intent to sell or supply large quantities of prohibited drugs.
In assessing the nature and seriousness of the conduct, I am to have regard to factors including those set out in paragraph 13.1.1 of the Direction. Subparagraph 13.1.1(a), however, makes it clear that the particular characteristics of offences to be viewed seriously do not limit the range of offences that may be considered serious.
Other than my obligation to have regard to the sentence imposed by the court for the crime, none of the express characteristics identified in paragraph 13.1.1 describe Ms Jiang’s offending. Her offending was neither violent, nor sexual, nor perpetrated against the vulnerable, and neither frequent nor repeated.
The respondent contends that I should nonetheless view the offending as serious because it was noted to be a serious drug offence given the quantity and purity of the cocaine the applicant was found to be in possession of. The respondent further contends that the sentence of imprisonment imposed and upheld by the courts must be viewed as a reflection of the objective seriousness of the offences, particularly where the applicant otherwise had a largely unblemished record.
The applicant is aggrieved that, in her perception, the delegate failed to give proper consideration to the mitigating factors identified by the sentencing judge. In this regard, the applicant emphasised that she was found to be the least culpable of the offenders, and had a minimal role in the offence. The applicant also contends that she otherwise has a background of good character.

In her written statements and also in her oral evidence and argument to the Tribunal, the applicant persuasively straddled acknowledging the seriousness of her offending while also emphasising the mitigating factors. Appropriately, the respondent does not seek to persuade me that the mitigating factors are not present or should be disregarded. It is indeed the case that the sentencing judge recognised that the applicant would receive no financial benefit for her role in the offence, had no involvement in the planning or organisation of the delivery of the package, and there was no suggestion that she would be subsequently involved in the distribution of the drugs. The judge accepted that the applicant’s role was confined to aiding the activities carried out on 7 December 2016. The judge also recognised the applicant was genuinely and demonstrably remorseful, and accepted she had been manipulated by her friend.
The sentencing judge, however, also observed that, although the applicant did not know exactly what was in the cylinder, she knew it contained a substantial amount of prohibited drugs, and nonetheless committed a number of acts of her own free will to assist her co-offenders involved in the criminal activity. The sentencing judge also observed that the offending involved a substantial amount of cocaine at a high level of purity.
Having regard to the penalty imposed by the sentencing judge, which was upheld on appeal by the majority, I am of the view that the offending was serious. It was objectively serious, having regard to the penalty imposed by the court and the reasons for that penalty. Even reflecting on the matters identified by the dissenting judge on the appeal against sentence does not serve to re-characterise the offending as anything other than serious in my view, given his Honour indicated he would, in any event, have imposed a custodial sentence of four years and six months notwithstanding the characteristics his Honour identified as exceptional.
In this regard, I do not disregard the applicant’s contentions pointing to the aspects of the offending that tend to reduce her criminal culpability compared to that of her co-offenders; I observe they were taken into account and a penalty imposed that nonetheless establishes that her conduct was viewed very seriously by the courts.
I recognise, however, that the applicant has no substantial previous offending. While I see that the respondent draws attention to the fact that the applicant failed to disclose the traffic-related convictions she had received eight years previously on her incoming passenger card, I do not think that issue materially influences that gravity with which I view the seriousness of the applicant’s conduct. It is no mere trifling matter to fail to disclose convictions on an incoming passenger card but, viewed alongside the applicant’s substantive conviction for possession with intent to supply, it is of no particular significance.
I view the nature of the applicant’s conduct as serious.
The risk to the Australian community should Ms Jiang commit further offences
Paragraph 13.1.2(1) of the Direction provides that in considering the risk to the Australian community, I must have regard to, cumulatively:
(g)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(h)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The respondent refers to the well-documented devastation inflicted on the community as a result of the production, distribution and use of illicit drugs. I proceed on the basis that should the applicant be knowingly concerned in the possession of illicit drugs with intent to supply, the nature of the harm to individuals or the Australian community as a whole would be grave.
However, the reality in my view is that there is no real prospect that the applicant would engage in similar conduct again based on the highly unusual aspects of the circumstances of the offence with which she has been convicted. At the hearing, themes were explored regarding the applicant’s personality traits that might have led her to be manipulated by her friend, or continue on with the series of acts that the court found to be culpable even after she was aware that a serious crime was in the course of being committed. The applicant conceded she had not explored counselling about these matters and indicated she may do so in the future. I do not speculate about such matters and saw nothing in the applicant’s presentation before the Tribunal to indicate that she was a particularly vulnerable, suggestible or naïve person to the point that such a personality trait will be a continuing risk for her.
As I see it, based on the facts upon which the applicant was sentenced, the applicant made a series of appallingly bad and culpable choices in a rapidly evolving situation that she was not fully aware of. The applicant told me that she has severed any contact with her friend who was her co-accused, which is entirely plausible in all the circumstances. Given the highly unusual circumstances of the applicant’s offending, that appears to me to be the most direct step the applicant can take to reduce the risk of reoffending, and I accept she has taken it.
The applicant is not, and has never been, a drug user. There is no basis upon which any pre-existing association with the drug syndicate can be suspected. I can identify nothing about the applicant’s circumstances that would tend to predispose her to committing crimes of this nature, or indeed any crimes, in the future. Indeed, and to the contrary, the devastating consequences for the applicant of the events of 7 December 2016 are likely to serve to ensure she exits rapidly in the unlikely event that she finds herself in such a predicament again, as she should have on 7 December 2016.
The respondent appropriately explored the issue of rehabilitation with the applicant. While the applicant has busied herself while in prison, accumulating a number of vocational qualifications (and I have had regard to the evidence confirming these matters) none are really addressing the circumstances of her offending. In circumstances where the applicant is not and had never been a drug user or violent offender, it is difficult to imagine what sort of programme or course would materially reduce the risks of her reoffending.
I am of the view that, on the evidence, before me the prospects of the applicant reoffending are quite remote. I form that view based on the exceptional circumstances of the offending (to use the descriptor of the dissenting appeal judge), the applicant’s previous good character, and upon accepting the applicant’s evidence that she has severed any contact with her friend and co-accused. Contrary to the respondent’s initial submissions, I do not view the applicant’s reference to mitigating factors identified by the sentencing judge as a demonstration that she failed to grasp the gravity of her offence. To the contrary, I accept that the applicant’s representations recognising the seriousness of her offence and appropriateness of her punishment were genuinely given.
I am reinforced by the approach of the parole board in granting parole at the earliest opportunity based, in part, on the applicant’s low risk of reoffending.
As I have formed the view that the applicant poses no real risk of reoffending, I do not consider she represents a risk to the Australian community.
As to this first primary consideration, my conclusion is that the applicant’s offending was very serious, but there is no material risk of the conduct being repeated given the unusual circumstances and characteristics of the offence. The applicant does not pose a risk to the Australian community. This consideration attracts significant weight, albeit in a mixed way. I consider again the seriousness of the offence against the expectations of the community but treat my conclusions regarding the absence of risk to the community as a significant matter in the applicant’s favour.
The best interests of minor children in Australia
The second primary consideration which I need to turn my mind to is the best interests of minor children in Australia. In the applicant’s case, there is only one such child identified, “T”. “T” is the nine-year-old daughter of a close friend of the applicant. The applicant’s friendship with “T”’s mother was formed in prison.
The applicant told me that prior to the circumstances of the COVID-19 pandemic, she would regularly see “T” when “T” visited with her grandmother. Apparently, visitors including minors were free to mix with other prisoners during visitation. As I understand it, the applicant and “T”’s mother both worked at a café at the visiting facility.
The applicant told me that “T” would be very upset if the applicant were to leave Australia without being able to return.
The Tribunal received evidence by telephone from Ms “D”. Ms “D” is “T”’s grandmother and the mother of the applicant’s friend who remains in prison. Ms “D” confirmed that the applicant and her daughter formed a close relationship in prison about two years ago. Prior to the circumstances of the COVID-19 pandemic, she would visit her daughter with “T” about four times per week. Ms “D” said that during the visits “T would move around quite liberally and make friends with other inmates too.
Under cross-examination, I learned that Ms “D” performs the parental role for “T” and attends to all her needs. Ms “D” impressed me as a devoted grandmother who had been forced into a parental role for “T” in very difficult circumstances. “T”’s father is not now present in “T”’s life, and was a harmful presence when he was.
Ms “D” described in very general terms the circumstances in which her own daughter came to be in prison. I gathered that drug abuse was a factor. Ms “D” did not know why the applicant was in prison, but when I informed her the applicant had a conviction for possession of illicit drugs with intent to supply, and asked if this changed her assessment of whether the applicant was a positive influence on “T”, Ms “D” told me that she still considered the applicant to be a good influence.
Ms “D” explained that the applicant, “T”’s mother , “T” and herself were particularly close because none had extensive support networks in the community. She said that “T” is progressing well in school but has had a difficult life.
I note that in her written statement, Ms “D” offered the applicant support to stay in Australia. She says she would provide her with accommodation as she and “T” lived alone. Ms “D” mentioned she was grateful to the applicant for the support she had given to “T”, “T”’s mother and herself.
I confirmed with the applicant that “T” was the only child in Australia with whom she had any form of relationship.
Paragraph 13.2 of the Direction provides the following guidance:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration only applies if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
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 period 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 non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil the 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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
I find that the applicant and “T” have a relationship of approximately 2 years’ duration. I accept that there was occasional in person contact until the circumstances of the COVID-19 pandemic prevented it. Since then, I accept that the applicant has participated in electronic contact arranged between “T” and her mother. I accept the respondent’s contention that the relationship may be best described as a relationship between a child and a close family friend. The relationship is not parental in nature. Ms “D” performs the primary parental role in “T”’s life.
If the applicant were permitted to stay in Australia, I agree she would have a positive role in “T”’s life in the way that close family friends generally do, but it would not be parental. In that sense therefore, I consider it unlikely that the applicant will perform a positive parental role for “T” in the future.
As to the likely effect that any separation would have on “T”, I accept based on the nature of the relationship that “T” will be saddened by a separation, but the effects of that will be materially ameliorated by the applicant being able to maintain contact with “T” from New Zealand by electronic means. I have no evidence as to “T”’s own views, but am confident to proceed on the basis that, had she been asked, she would be seeking an outcome that would allow the applicant to remain in Australia in order to continue direct personal contact.
The considerations concerning negative impacts on children through the conduct of the non-citizen are not applicable to the circumstances of the applicant and “T”.
As to whether revocation of the visa cancellation would be in the best interests of T, I am satisfied to find that it is in T’s best interests to have a close family friend such as the applicant available to her during her formative years, particularly as it appears that her mother will remain incarcerated for some time.
While this is a primary consideration, I do not think it carries substantial weight in all the circumstances, because the applicant does not play a parental role, “T” has a strong parental figure in her life in her grandmother, and the relationship between the applicant and “T” is relatively new, formed only through occasional contact. Relationships between children and strong family friends are important, particularly where, as in this case, the child “T”’s relationship with her own mother is affected by the circumstances of imprisonment. Such relationships are to be valued, but they are not parental in nature and do not carry determinative or significant weight as a primary consideration in my view.
Expectations of the Australian community
Paragraph 13.3 of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach, this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person.
The respondent emphasises that part of the direction indicates that non-revocation may be appropriate simply because the nature of the character concern or offence is such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
I note, as explained in Afu and Minister for Home Affairs [2018] FCA 1311, and now FYBR v Minister for Home Affairs [2019] FCAFC 185 the concept of community expectations is not a matter to be measured as though it is a provable fact, but rather an assessment of community values made on behalf of the community by the executive government. I am obliged to consider this factor in line with the norms expressed in the Direction.
Attention was drawn by the respondent to the remarks of Stewart J in describing the content of the direction in relation to the expectations of the community. His Honour observed that “if you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”: FYBR at [101].
In this regard, the Principles espoused at item 6 of the Direction specify that the Australian community expects the Australian government to cancel visas if a person commits a serious crime in Australia. The Principles further provide that Australia has a low tolerance of any criminal conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. It is also observed that Australia has a low tolerance of any criminal conduct of those holding a ‘limited stay’ visa, reflecting that there should be no expectation that such people should be allowed to come to, and remain permanently in, Australia. Putting to one side whether a subclass 444 visa is properly understood to be a ‘limited stay visa’ (it provides for an indefinite stay, but as in the applicant’s case is also used by New Zealand citizens for short stays), I give weight to the point made in the Principles that there should be no expectation that ‘such people’ (who engage in serious criminal conduct) should be allowed to remain permanently in Australia. Similarly, the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of cancellation for family members in Australia, are to be taken into account.
Other than the short visit in 2016 that has not been connected to the applicant on Departmental systems, the applicant has been present in Australia for four years and one month, but in criminal custody for almost all of that time. It cannot be said that the applicant has demonstrated any particular contribution to the Australian community in these circumstances, and certainly not a positive one. I make that observation even though I accept the applicant appears to have used her time well while in prison.
The applicant has no family members in Australia, and so in the community’s expectation there is nothing in favour of the applicant remaining in Australia to be taken into account in that regard.
I accept that the community would expect the visa to be cancelled having regard to the principles espoused in item 6.3 of the Direction. The applicant has not met the expectations of the community by committing her serious offence shortly after arrival, and the offending is of a nature that it may well be said that the applicant should expect that she will be denied the privilege of staying here, even though the risks of the conduct being repeated are very low. I accept the tolerance of the community for the applicant’s conduct would be at the extreme end of low given the absence of the applicant’s prior positive contribution to the Australian community. In this regard, the applicant had only been to Australia once before, and committed her serious offence during what was intended to be a short stay.

The applicant told me about her personal characteristics that she thought would place her in good stead to contribute positively in the future. The applicant also told me about charity work she had undertaken while in prison. I consider that the potential for the applicant to contribute positively in the future based on her personal characteristics is not a matter identified by the Direction to be taken into account, and remain of the view that good conduct while in prison does little to ameliorate against the fact of imprisonment for a serious crime.
In my view, the Direction establishes that the Australian community would expect the applicant’s visa to remain cancelled. That expectation, in my view, is sustained even though the risk of reoffending is very low.
I place significant weight on this consideration.
Other considerations: strength, nature and duration of ties
When considering the strength, nature and duration of ties to Australia, I must have regard to:
(i)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(iii)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(iv)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(j)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, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The applicant has no family in Australia. She has formed friendships in Australia while she has been in prison, and mentioned that she has other friends in Australia who live in states other than Western Australia.
I have had regard to statements of support provided by the applicant. Ms Lee writes that she has known the applicant for years. Ms Lee mentions that she has recently relocated to Perth and offers accommodation. I have already mentioned the evidence of Ms “D” and taken into account the best interests of “T”.
The applicant also described her aspirations in relation to Australia. As I understand her position in this regard, she hopes to make a new start in Australia and undertake further tertiary study. She considers that Australian universities are superior to those in New Zealand. The applicant also mentioned, however, that she is eager to return to New Zealand, and also visit her family in China.
I consider the applicant’s ties with Australia are primarily limited to her time spent here in prison, some friends, and a general aspiration that she may wish to study in Australia in the future. These ties in my view are weak, insignificant and short-lived. They carry very little weight.
Other considerations: impact on victims
There has been no evidence provided to the Tribunal addressing the impact of a decision not to revoke the visa cancellation on any victims of the applicant’s offending. There are no identifiable individuals who would relevantly fall within the class of victims of the applicant’s offence. I do not suggest that possession of illicit drugs with intent to supply is a victimless crime, but the impact on victims is more abstract and taken into account in my consideration of the seriousness of the offence.
I place no further adverse weight on this consideration.
Other considerations: extent of impediments if removed
The applicant would be removed from Australia to New Zealand. The cultural, linguistic and political circumstances pertaining to New Zealand are common knowledge. The applicant demonstrated a strong command of English, and accepts that society and culture in Australia and New Zealand are very similar. I accept that the applicant will have access to the full range of medical and social support available to other New Zealand citizens in New Zealand.
As to the applicant’s individual circumstances, when she left New Zealand, she had established an apparently very successful business in Christchurch. The applicant told me that the business collapsed shortly after her arrest. The precise reasons and mode of the collapse of the business was not clear. The applicant does not know, for example, if she has been declared bankrupt in New Zealand, or whether the business was liquidated. The applicant explained that she was unable to manage the business after her arrest, and bills and debts were not paid. It was not entirely clear what happened to the management of the business put in place during her visit to Australia, or why other investors such as her family didn’t step in. I accept that it would have been very difficult for the applicant’s family to manage the business on her behalf given they were overseas and do not speak English.
I accept the applicant’s business has ceased to exist. Upon return to New Zealand she will have to start again. I accept as genuine the applicant’s concern that her business reputation and access to finance or credit has been ruined, and accept this is almost certainly accurate. I accept that picking up the pieces in this regard will be very difficult and painful for the applicant.
In my view however, these impediments do not fall away if the applicant is not removed. In other words, I view these difficulties as genuine difficulties that are present for the applicant regardless of whether she is in Australia or New Zealand. They exist at large and are not squarely impediments if removed.
The applicant explained that after an initial estrangement with her family in China as a result of her arrest, the relationship has been restored and she has been promised assistance by her mother, and I understood the applicant to say that this assistance would extend to providing funds to re-establish a business. If this support is offered as the applicant expects, then perhaps the impediments she has predicted she will face in re-establishing herself may not be so great after all.
I do not view the hardships feared by the applicant regarding the consequences of the collapse of her business as a relevant impediment if removed. The Direction primarily points to impediments to establishing one’s self and maintaining basic living standards. Such impediments are to be considered in the context of what is generally available to other citizens of the country to which the person will be removed.
This factor weighs against revoking the visa cancellation.
Other considerations: International non-refoulement obligations and Impact on Australian businesses
The applicant has not specifically raised any matters regarding these considerations, but did raise some other matters that I have taken into account.
Other matters
I mention two other matters raised by the applicant in the course of her evidence that are difficult to place in the framework of the Directions.
First, the applicant raised the Christchurch earthquake (February 2011) and the Christchurch mosque shootings (March 2019). Upon further questioning and explanation about the relevance of these events, I understood the applicant raised these matters to suggest that business confidence in Christchurch had been impacted, and this may make re-establishing her business more difficult than it would otherwise be.
The respondent correctly points out that, on the applicant’s evidence, she had established her business in Christchurch after the earthquake. To the extent that the events of the Christchurch mosque massacre have shocked the city and New Zealand society to its core, I do not see how this constitutes a relevant impediment for the applicant personally.
Secondly, the applicant gave some very vague evidence concerning a rumour she had once heard that her co-accused had lied to her husband about the applicant’s involvement in the offending. What the applicant thought this meant for her in either Australia or New Zealand was not made clear.
In addressing this evidence, I note that the sentencing remarks of the courts in relation to the offending makes it very clear as to the respective roles of the co-accused. It is not plausible that the applicant’s co-accused’s husband would hold the view that the applicant was primarily responsible for the offending. It follows in my view that the applicant would not face any harm arising from the vague rumour she described in her evidence, and no question arises as to the invocation of Australia’s international non-refoulement obligations from this matter.
ASSESSMENT
The respondent contends that the visa should remain cancelled.
The respondent points to the objective seriousness of the offence, and the expectations of the community that the visa should remain cancelled, arising out of the very limited nature of the applicant’s ties to Australia.
The respondent accepts that the applicant has developed a nice friendship with “T”, but the relationship is that of a friendship between a child and an adult who is not a member of the family. The respondent contends that no real hardship arises from the applicant being unable to maintain an in-person relationship with “T”.
The respondent contends that the applicant would not face any substantial impediments should she be removed to New Zealand.
The applicant emphasised that she was aware of the seriousness of her offence, and emphasised her grievance with the conclusion of the delegate that she presented some risk of reoffending. The applicant emphasised she was not a drug user, and even the judge had recognised her offending was out of character. The applicant told me that she was the least culpable of all concerned in the offence, but she had lost the most.
The applicant emphasised the special nature of her friendship with “T”, Ms “D”, and “T”’s mother.
The applicant recognised her time in Australia had been very short but indicated that if she were able to live in Australia, she would have access to support from her mother and not draw on public resources. The applicant confirmed that the part of the delegate’s reasoning that most offended her was the conclusion regarding the risk of reoffending.
In my view, the combined weight of the seriousness of the offence and my assessment of the expectations of the community (drawn from the principles in the Direction) combine to establish that there is not another reason to revoke the visa cancellation. I have considered very carefully, and accepted, that the applicant does not pose a risk to the community and that the best interests of “T” would allow the applicant to remain in Australia. These matters, however, do not outweigh the conclusions I have drawn from the objective seriousness of the offence and the guidance given as to what the community would expect.
The lack of any real ties to the community, other than her friendship with “T” and her family, and the lack of any positive contribution to the community also lead me to conclude that the visa should remain cancelled. I have no substantial or relevant concerns arising from the applicant’s account of the difficulties she will face if removed to New Zealand.
For the reasons expressed, I find that there is not another reason to revoke the visa cancellation. I affirm the decision under review.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for the decision herein of Member M Kennedy.

………………[SGND]…………………….

Administrative Assistant Legal

Dated: 17 December 2020

Date of hearing: 10 December 2020

Applicant: Self-represented

Representative for the Respondent: Mr Sam Cummings, Sparke Helmore Lawyers

[2020] AATA 5941

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date of hearing:	10 December 2020
Applicant:	Self-represented
Representative for the Respondent:	Mr Sam Cummings, Sparke Helmore Lawyers