Jiankai Wu and Minister for Immigration and Citizenship
[2012] AATA 834
•26 November 2012
[2012] AATA 834
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4070
Re
Jiankai Wu
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 26 November 2012 Place Sydney The Tribunal affirms the decision under review.
.........[sgd]...............................................................
Senior Member J F Toohey
CATCHWORDS
MIGRATION – visa cancellation – substantial criminal record – applicant convicted of intentionally importing child pornography offence material and knowingly possessing child exploitation material decision – application of Direction 55 – relevant considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 ss 499, 499(2A) and 501
CASES
R v Jones (1999) 108 A Crime R 50
SECONDARY MATERIALS
Minister for Immigration and Citizenship, Direction No. 55 - Visa refusal and cancellation under s 501, 2012
REASONS FOR DECISION
Senior Member J F Toohey
26 November 2012
Mr Jiankai Wu seeks review of a decision by the Minister for Immigration and Citizenship (the Minister) under s 501(2) of the Migration Act 1958 (the Act) to cancel his visa because of his substantial criminal record.
The Minister contends that Mr Wu’s continued stay in Australia presents an unacceptable risk of serious harm to the Australian community.
BACKGROUND
Mr Wu was born in China. He arrived in Australia on a Post Graduate Research Sector visa in 2003, when he was aged 22. Since February 2007, he has held a Skilled – Independent Overseas Student visa.
In March 2010, Mr Wu was arrested on charges of intentionally importing child pornography offence material and knowingly possessing child exploitation material. He pleaded guilty to both charges. In September 2011, he was sentenced to two years imprisonment, to be released after serving six months on a $1,000 recognisance and an 18 month good behaviour bond, on the charge of importing. He was sentenced to a concurrent term of one year imprisonment, converted to three months imprisonment, on the charge of possession.
Mr Wu was released from gaol on 5 March 2012. On the same day, a delegate of the Minister notified Mr Wu that he was considering cancelling his visa under s 501(2) of the Act because of his substantial criminal record. On 30 August 2012, after considering Mr Wu’s submissions in response, the delegate cancelled his visa.
Since 11 September 2012, Mr Wu has been held in Villawood Detention Centre.
THE ISSUE
I have to determine whether Mr Wu’s visa should be cancelled because of his substantial criminal record or whether the discretion in s 501(2) of the Act not to cancel his visa should be exercised in his favour.
LEGISLATION
By s 501(2) of the Act, the Minister may cancel a person’s visa if:
(a)the Minister reasonably suspects that the person does not pass the character test in s 501(6)(a) of the Act; and
(b)the person does not satisfy the Minister that she or he passes the character test.
A person is taken not to pass the character test if she or he has a substantial criminal record. A person has a substantial criminal record if she or he has been sentenced to a term of 12 months imprisonment or more, or has been sentenced to two or more terms of imprisonment totalling two years or more: subs 501(6)(a) and (7).
There is no dispute that, by reason of the prison sentences imposed on him, Mr Wu does not pass the character test. The discretion to cancel his visa is thereby enlivened.
Direction 55
The discretion in s 501(2) must be exercised in accordance with Direction No. 55 - Visa refusal and cancellation under s 501 (the Direction) made by the Minister pursuant to s 499 of the Act. The Direction, which came into effect on 1 September 2012, is binding on the Tribunal: s 499(2A).
The Direction includes principles which it describes as of critical importance in furthering the Government’s objective of protecting the Australia community from harm as a result of criminal activity or other serious conduct by non-citizens: cl 6.2.
The principles, in summary, are as follows:
(1)being allowed to enter or remain in Australia is a privilege conferred in the expectation that a person will be law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community;
(2)a person who commits a serious crime, particularly against vulnerable members of the community, should expect to forfeit the privilege of remaining in Australia;
(3)some conduct may be so serious that any risk of similar conduct in the future is unacceptable;
(4)the degree of tolerance of criminal or other serious conduct may be lower or higher depending on the length of time a person has lived in Australia;
(5)a person on a temporary visa should have no expectation of being allowed to remain in Australia permanently; and
(6)the length of time that a person has been making a positive contribution to the Australian community, and the consequences of cancellation for minor children and other immediate family members in Australia, are to be considered.
Guided by these principles, the decision-maker must determine whether the risk of harm by a non-citizen is unacceptable. That requires consideration of the likelihood of future harm, the extent of the harm should it occur, and the extent to which, if at all, that risk should be tolerated by the Australian community: cl 7.
Recognising that persons holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of their visa, separate considerations apply to visa holders and visa applicants. In the case of a visa holder, the following are primary considerations, which should generally be given greater weight than other considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the strength, duration and nature of the person’s ties to Australia;
(c)the best interests of minor children in Australia; and
(d)whether Australia has international non-refoulement obligations to the person.
Other considerations are set out in cl 10 of the Direction. They must be taken into account where relevant. They include, but are not limited to:
(a)effect of cancellation of the person’s visa on the person’s immediate family in Australia if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
(b)impact on Australian business interests;
(c)impact of a decision not to cancel a visa on members of the Australian community including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness; and
(d)the extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) taking into account:
(i)the person’s health and age;
(ii)whether there are substantial language or cultural barriers; and
(iii)any social, medical or economic support available to the person in that country.
These considerations may weigh in favour of, or against, cancellation, and one or more primary considerations may outweigh other primary considerations: subcll 8(3) and (4).
MR WU’S CONVICTIONS
The circumstances of Mr Wu’s arrest
Details of Mr Wu’s offences are found in the sentencing remarks of Judge Farr SC in the District Court of Queensland in September 2011 and in documents prepared for those proceedings by the Queensland Police Service. Mr Wu does not dispute the facts as described in those documents. In summary, they show the following.
At the time of his arrest in March 2010, Mr Wu had been employed as an information technology systems administrator by the Queensland Police Service for approximately 12 months. In November 2009, he had applied to the Queensland Prostitution Licensing Authority for an Approved Manager’s Certificate which authorises the holder to work in and, in certain cases, supervise, a licensed brothel. Giving evidence before the Tribunal, Mr Wu said he was looking for well-paid, part-time work and he had heard there was money to be made managing brothels.
Routine probity checks of Mr Wu’s application revealed he had gained unauthorised access to a range of confidential information on the Licensing Authority’s server. According to the police records, when questioned, he stated he was employed at a lower level of responsibility and access than he in fact was. He also claimed not to know whether he had gained access to confidential, personal information on the server, a claim the police considered misleading given information they had about when he sought access to the material.
The police records show they believed Mr Wu had downloaded information to storage devices, and they obtained a warrant to search his home. In the course of that search, they seized four hard drives and 20 DVDs containing child pornography.
Mr Wu was not charged over the unauthorised access but was given the choice of having his employment terminated or resigning. He chose to resign.
Material on hard drives
The sentencing remarks show that the material on the hard drives comprised 4,375 images of which 2,976 were unique, that is, not duplicated. Of those unique images, 1,811 were animated or virtual images not involving an actual person, leaving 1,165 unique images of actual people.
The material was categorised “according to the usual categories that apply to cases of this nature” as follows:
Category 1 25. CEM – No Sexual Activity
26.
27. Depictions of children with no sexual activity – nudity, surreptitious images showing underwear nakedness, sexually suggestive posing, explicit emphasis on genital areas, solo urination.
28.
1,600 images, 803 of which were unique; 8 videos
Category 2
CEM – Child – Non-Penetrate
Non-penetrative sexual activity between children or solo masturbation by a child.
219 images, 102 of which were unique; no videos
Category 3
CEM – Adult Non-Penetrate
Non-penetrative sexual activity between child(ren) and adult(s). Mutual masturbation and other non-penetrative sexual activity.
116 images, 64 of which were unique; no videos
Category 4
CEM – Child/Adult Penetrate
Penetrative sexual activity between child(ren) or between child(ren) and adult(s) – including but not limited to, intercourse, cunnilingus and fellatio.
200 images, 183 of which were unique; no videos
Category 5
CEM – Sadism/Bestiality/Child Abuse
Sadism, bestiality or humiliation (urination, defecation, vomit, bondage etc) or child abuse as per CCA 1995.
39 images, of which 13 were unique; no videos
Category 6
CEM – Animated or virtual
Anime, cartoons, comics or drawings depicting children engaged in sexual poses or activity.
2,111 images, 1,811 of which were unique; no videos
I note that, if the numbers cited in each category are correct, the total number of images would be 4,285, not 4,375, but nothing turns on this.
Material on DVDs
Each of the 20 DVDs contained three to four hours of movie files of adult and child pornography. All contained some child pornography. It ranged from Category 1 to Category 4 and generally depicted pubescent and pre-pubescent female children engaged in penetrative sexual acts with adult males and other female children.
As Judge Farr noted, the titles of the DVDs could leave little doubt about their contents. Translated, they included the following: Very young boys and girls sex; Old man raping young girls; Raping a 6 year old girl in a car; Three very young girls; 5 years old; Two very young lesbians; Young girl 5 young girl sexual affection; Old man strong inserts 4 year old young girl; and Teacher rapes the young female student.
Material on mobile phone
At the time of his arrest, Mr Wu also had in his possession a mobile phone which, according to the police brief, contained “images of child exploitation material”. According to the brief, Mr Wu told police he bought the phone on eBay and was aware it contained images, but he had not made any attempt to delete them.
Giving evidence before the Tribunal, Mr Wu said he bought the phone himself; he copied “a whole bundle” of images on to the phone to try it out, and he left them there.
Sentences imposed on Mr Wu
Sentencing Mr Wu, Judge Farr said he took into account his statement that he was not aware it was an offence to possess child pornography in Queensland or to import such material into Australia, and that possession of such material is not an offence in China. He noted that Mr Wu had the material for his own use only and not for commercial purposes.
Judge Farr gave Mr Wu credit for pleading guilty at the earliest possible stage and for cooperating with the police investigation. He gave less weight to Mr Wu’s previous good character, noting that it “is often the case for this type of offending”. He noted Mr Wu’s academic achievements and that he was clearly a hard worker, and he noted the opinion of Dr Sue McCulloch, a psychiatrist, that his risk of reoffending was low.
The sentencing remarks show the maximum penalty for the importing offence was 10 years imprisonment and/or a $250,000 fine, and the maximum penalty for the offence of possession was five years imprisonment.
PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
In addition to regard to the general principles summarised above, Direction 55 provides that decision-makers should give consideration to:
(a)the nature and seriousness of the person’s conduct to date; and
(b)the risk to the Australian community should the person commit further offences or engage in other serious conduct.
In considering the nature and seriousness of the person’s conduct, regard must be had to factors including: that sexual crimes are viewed very seriously; that crimes against vulnerable members of the community, including children, are serious; any conduct by reason of which a person does not pass the character test in s 501 is serious; the sentence imposed by the court; the frequencies of offending: cl 9.1.1.
In considering the risk to the community, regard must be had to the principle that, the more serious the offence, the lower the tolerance for risk; and the nature of harm should the person re-offend. In considering the likelihood of reoffending, information and evidence on the risk of the person reoffending, and evidence of rehabilitation, are relevant.
Seriousness of the conduct
Mr Wu gave evidence before the Tribunal that he bought the DVDs from street vendors and downloaded the material on the hard drives during his most recent trip to China in February 2010. He said he has a large collection of “hundreds” of pornographic DVDs built up over time and brought back on previous trips to China. He denies ever having child material before February 2010.
According to the sentencing remarks, Mr Wu told police he “quickly browsed” some of the DVDs when he bought them and was aware they contained videos of young girls; he could see the covers depicted people under the age of 18 and he acknowledged that a child depicted on the cover of one appeared to be about six years old. According to the sentencing remarks, the title of this DVD translated as “Ripe Young Girls” but it appears from the court brief, which shows ten discs were titled “Rape Young Girls”, that it was titled “Rape Young Girls”.
Mr Wu gave evidence that, despite their titles and covers, he did not know when he bought them that the DVDs contained child pornography. He said he asked street vendors for material concerning “young girls”, by which he meant 18 to 20 year olds. He claimed DVDs and other products in China are commonly put in the wrong packaging and one can never tell from the outside what any product contains.
According to the sentencing remarks, Mr Wu told police that the material on the hard drives contained child pornography movies depicting “fairly young girls” which he downloaded from the internet in China or copied from friends’ files.
In written submissions, and giving evidence before the Tribunal, Mr Wu sought to characterise his conduct as inadvertent, as naivety, and as a mistake. He claimed it is “the norm” for Chinese men to have pornography and he had no idea it is illegal to import or possess child pornography in Australia.
I do not accept any of those characterisations. I do not accept that Mr Wu came into the DVDs inadvertently. It is implausible that he had no idea of their contents. Even allowing that some might have been in the wrong covers, he could not have thought all 20 were. Moreover, he knew what he was doing when downloading or copying images onto his hard drive.
Evidence of witnesses
Letters from five of Mr Wu’s friends in Queensland were submitted in support of his application. Three gave oral evidence by telephone. All are Chinese by birth and have lived in Australia about the same time as Mr Wu.
Each of the witnesses said he was shocked to learn of Mr Wu’s arrest and believed his conduct was out of character. However, all were plainly surprised when the titles of some of the DVDs were read to them. Each said he was well aware that importing and possessing child pornography is illegal in Australia. None agreed with Mr Wu’s claim that possessing pornography is the norm for Chinese men. Each said he had never come across child pornography on the street and, just like copies of Windows software, it would be kept under the counter or in another room and a buyer would have to ask for it. Each agreed that covers of DVDs do not always depict their actual content.
Evidence of Mr Hudson
Evidence was also given by Mr Brian Hudson who employed Mr Wu as an information technology manager for about 12 months around 2009 and has been a close friend since. Mr Hudson said he was shocked to learn of Mr Wu’s offences but said he was confident they were out of character and he would not re-offend.
Mr Hudson did not know that Mr Wu had applied for a licence to manage a brothel and he did not know about the circumstances in which his employment with the Queensland police ended. He gave evidence that both would be out of character for the person he knew. He was plainly shocked to learn that one of the DVDs in Mr Wu’s possession was titled “Rape Young Girls”.
Consideration
The Minister contends that the amount of material found in Mr Wu’s possession suggests that he had actually been collecting it for some time and that, following his arrival in Australia in 2003, it is likely it was considerably less than seven years before he first offended. That may be so. It seems improbable, given Mr Wu’s interest in pornography over several years and his extensive collection, that the first time material involving children came into his possession was a month before his arrest. However, there is no evidence of an offence before February 2010 and I cannot find otherwise on the evidence before me.
There can be no question that possession of child exploitation material is among the most serious of offences and the sentences imposed on Mr Wu reflect the very serious nature of his conduct. Citing Kennedy J in R v Jones (1999) 108 A Crime R 50, Judge Farr said:
The production of child pornography for dissemination involves the exploitation and corruption of children who are incapable of protecting themselves. The collection of such material is likely to encourage those who are actively involved in corrupting the children involved in the sexual activities depicted and to recruit and use those children for the purpose of recording and distributing the results. The offence of possessing child pornography cannot be characterised as a victimless crime. The children, in the end, are the victims.
One might add that, without consumers like Mr Wu, who had a substantial amount of pornography involving children in his possession, there would be no market for such material.
Direction 55 makes clear that a person who commits a serious crime, particularly against vulnerable members of the community, should expect to forfeit the privilege of remaining in Australia. I find the seriousness of his conduct weighs heavily in favour of cancelling Mr Wu’s visa.
Risk to the community should the conduct be repeated
In written submissions and in oral evidence, Mr Wu claimed he now recognises the harm that child pornography causes to children and the violation of their human rights that it causes; he regrets his actions and says he did not intentionally break the law and has no “predilection for deviant sexual behaviour to children”.
Dr McCulloch’s report
In support of his application, Mr Wu has submitted reports from two psychiatrists. The first, from Dr Sue McCulloch, dated 6 May 2011, was prepared for the purposes of the criminal proceedings.
Dr McCulloch took a history for Mr Wu of growing up as a single child who studied hard and excelled academically. After leaving school, he attended university for four years and gained a degree in scientific mathematics after which he went on to postgraduate studies in Australia. She concluded he was raised “in simple circumstances” with “little exposure to the sophistication and diversity of the larger cities of China” and, as an average Chinese citizen, he was “isolated from world views and international activities”. She thought him somewhat naïve and lacking in maturity and life experience and that coming to Australia was a “radical change” for him from the shelter of his family.
Based on questionnaires designed to assess Mr Wu’s chance of re-offending, Dr McCulloch concluded the risk was low. Both tests apparently assessed the risk of “sexual recidivism” including violence. Unfortunately, Dr McCulloch was not available to give oral evidence, leaving unanswered the question of how relevant the results are to Mr Wu, who has no history of violence of any kind.
Despite thinking his risk of re-offending low, Dr McCulloch nevertheless reported that he would benefit from a “therapeutic regime that re-establishes, develops and shores up a lifestyle and perspective of life that satisfies both himself and the community”.
Dr Hamilton’s report
Dr Diana Hamilton saw Mr Wu on 18 April and 2 May 2012. In a report on 30 May 2012 addressed “To whom it may concern”, she wrote that Mr Wu has requested a psychiatric report which she understood he required “in response to a Notice of Intention to consider Cancellation of your visa under subsection 501(2) of the Migration Act 1958”.
Dr Hamilton took much the same history as Dr McCulloch. She thought that factors including his personal background, delayed maturation, different cultural standards concerning child pornography, lack of “age-appropriate intimacy skills” and relative lack of integration into the Australia community all played a substantial part in Mr Wu’s offending. She thought he was trying to rehabilitate, that he had insight into his offences and displayed remorse, and had a better understanding of child exploitation. She thought he would benefit from individual therapy with a clinical psychologist over an 18 month period to help with his rehabilitation.
Mr Wu’s evidence
Mr Wu claimed before the Tribunal that he wants to undergo treatment and has been trying to arrange to do so for some time. I do not accept that claim.
Reception documents completed on Mr Wu’s arrival in gaol in October 2011 show he was asked whether he wished to see a psychologist or counsellor and he said he did not. Mr Wu gave evidence this was a misunderstanding on his part because, while he thought needed therapy, he thought only people with depression saw a psychologist or counsellor. I accept his evidence about this. However, what becomes clear is that, despite recommendations from Dr McCulloch and Dr Hamilton that he undergo therapy, and despite Mr Wu’s claim that he recognised the need himself, he has taken no steps in that direction.
Under cross-examination, Mr Wu said he did not realise until he saw Dr McCulloch in May 2011 that he needed therapy but he had no money for treatment. He claimed she asked whether he required a written report, and provided one, but that was not the purpose of his visit. He also claimed Dr McCulloch told him he did not need therapy until he received her report, which was not until August 2011. (Her report is dated 6 May 2011 but I accept that, for some reason, Mr Wu did not receive it until August.)
Giving evidence, Mr Wu claimed he went to Dr Hamilton seeking treatment after Dr McCulloch said she could not see him for several months. He claims he asked Dr Hamilton about therapy but she gave him no information – despite the recommendation in her report that he undergo 18 months therapy.
Mr Wu submitted telephone records which showed he made calls to Dr McCulloch’s office on 28 March and 2 April 2012, and to Dr Hamilton’s office on 10, 18 and 24 April; 2, 10, 11 and 17 May; 7, 12, 13, 19 and 20 June; 3, 4, 13, 23 and 24 July; and 1, 7, 8, 10, 13 and 22 August. The longest was to Dr Hamilton on 10 April for 4 minutes, 25 seconds; most were for several seconds only and were to leave a message. Mr Wu gave evidence that, when he contacted Dr McCulloch in March 2012, she said she could not see him for several months and so he contacted Dr Hamilton.
Unfortunately, Dr Hamilton was not available to give oral evidence. However, it is plain from her report that Mr Wu saw her for the purposes of responding to the delegate’s letter of 5 March 2012. I do not accept his evidence that his calls to her and Dr McCulloch were repeated attempts to find a therapist. I do not accept that both doctors ignored his repeated requests for help and would not as much as give him the name of someone he could see. Mr Wu made all of the calls after receiving the notice of intention to cancel his visa. They ceased around the time he says he received Dr Hamilton’s report.
I am satisfied Mr Wu’s purpose in first contacting Dr McCulloch, then Dr Hamilton, was not to seek treatment but to obtain a report to support his submissions to the Minister.
I accept that, since being taken into immigration detention on 11 September, Mr Wu has not been able to see an outside therapist, but it is notable that there is no evidence that he has sought to avail himself of any help while in custody, whether in prison or in Villawood or even to ask whether help might be available.
It is clear from his written submissions and oral evidence that Mr Wu’s primary concerns are for himself, if he is returned to China, and for his elderly parents, who he was hoping would be allowed to migrate and join him in Australia where they would have access to better health system. Giving evidence before the Tribunal, he showed little, if any, understanding of the effect on children of child pornography or of insight into his conduct. His statements about the human rights of children were not persuasive and he quickly moved on to the effects on himself and his family of his removal from Australia.
Consideration
It was unfortunate that neither doctor was available to give evidence. It would have been helpful to understand more about the questionnaires administered by Dr McCulloch and to clarify each doctors understanding of Mr Wu’s background, upbringing where he lived in China. It would also have been helpful to clarify the source of their statements about Chinese culture and law because they appear to be based on information provided by Mr Wu, rather than on their independent knowledge.
For example, when Dr McCulloch commented that leaving his family and coming to Australia was a radical change for Mr Wu, she appeared not to realise that he had spent four years at university away from his family in another city in China. She did not appear to know that Mr Wu’s home city was, by Chinese standards, a medium sized city when he was a teenager and a large city today, and Mr Wu gave evidence that he did not tell her he had applied for a licence to manage a brothel, information that might have led her to revise her perception of a simple, isolated upbringing.
Given the evidence of the witnesses about the prevalence of pornography among Chinese men, it appears that Dr McCulloch and Dr Hamilton based their observations on this subject on information provided by Mr Wu alone, information not supported by his own witnesses.
For the Minister it is contended that offences of this nature, involving child pornography, are so serious that, applying the principle in cl 6.3(2) of the Direction, any risk of similar conduct in the future in unacceptable. Whether that is so in this case, I find that Mr Wu presents a serious risk of harm to the Australian community should he be allowed to remain. I am not satisfied that he has any genuine insight into his conduct or any genuine intention of taking steps to change his behaviour. His efforts to minimise the seriousness of his conduct, by attributing it to curiosity, naivety and ignorance, reinforce this view.
Considered as a whole, the protection of the Australian community from the risk of serious harm posed by Mr Wu’s continued stay in Australia weighs heavily in favour of cancelling his visa.
THE STRENGTH, DURATION AND NATURE OF MR WU’S TIES TO AUSTRALIA
Reflecting the general principles in Direction 55, decision-makers must have regard to how long the person has been in Australia, including whether he or she arrived as a child, and the strength, duration and nature of family and social and employment relationships with Australian citizens or those with an indefinite right to remain here: cl 9.2
Mr Wu was 22 years old when he arrived in Australia to further his education. He spent his formative years, and has spent most of his life, in China. His parents live in China. He has no relatives in Australia. He does not appear to have established an intimate relationship with anyone here. He has a network of friends, most of whom, it seems, are from the Chinese community. I accept they might be saddened by his departure but there is nothing to suggest his removal would cause any of them any hardship.
The Minister concedes that Mr Wu has made a positive contribution to the Australian community through his successful studies here and his evident hard work. However, the Minister submits, that contribution is tempered by Mr Wu’s conduct while employed by the Queensland Police Service and the circumstances of his departure from that employment. I agree.
I accept that Mr Wu very strongly wishes to remain in Australia, and sees his future here. However, in my view nothing about his ties to Australia weigh in favour of exercising the discretion not to cancel his visa.
THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Mr Wu has no children of his own, and there are no children in Australia whose best interests would be affected by his removal. Nothing about this consideration weighs in his favour.
WHETHER AUSTRALIA HAS INTERNATIONAL NON-REFOULEMENT OBLIGATIONS TO MR WU
Mr Wu gave evidence that he might face charges in China because of his imprisonment in Australia. According to information obtained from the Refugee Review Tribunal (Country Advice Hong Kong, 1 March 2010, HKG36187), the Criminal Law of the People’s Republic of China provides for re-prosecution of an offence committed outside the People’s Republic of China. However, according to the Refugee Review Tribunal, the relevant parts of the Law state:
Article 7
This law is applicable to the PRC citizens who commit the crimes specified in this law outside the territory of the PRC; but those who commit the crimes, provided that this law stipulates a minimum sentence of less than a three year fixed term imprisonment for such crimes, may not be dealt with.
….
Article 10
Any person who commits a crime outside PRC territory and according to this law be a criminal responsibility may still be felt with according to this law even if he has been tried in a foreign country; however, a person who has already received criminal punishment in a foreign country may be exempted from punishment or given a mitigated punishment.
In December 2008, the Department of Foreign Affairs and Trade (DFAT) advised the Department of Immigration and Citizenship that it had no first-hand information on examples, since 2005, of prosecutions by the Chinese authorities of returning national who had been sentenced and convicted overseas to serious crimes. DFAT advised it was aware of examples of nationals convicted and sentenced overseas being detained for questioning by appeal of PRC authorities. Advice from the UK Home Office in June 2009 was that a prosecution for crimes committed and punished overseas was “discretionary and extremely rare”.
The first thing to note is that there is no evidence that the offences for which Mr Wu was convicted in Australia constitute offences in China. Indeed, he relied heavily on the fact they are not offences in China as mitigating his conduct. Further, according to Article 7, the length of his sentences would mean they could not be dealt with.
I am not satisfied, on the evidence before me, that any of Australia’s non-refoulement obligations would be triggered by Mr Wu’s removal.
OTHER CONSIDERATIONS
As already noted, Mr Wu has no immediate family in Australia. There is no evidence to suggest that his removal would have any effect on Australia’s business interests. There is no identifiable person who would be affected by a decision not to cancel his visa.
Mr Wu’s parents gave evidence by telephone from China. His mother said they are deeply ashamed of his conduct and they apologise for it. She was plainly distressed at the prospect of his deportation and said he loves Australia and sees his future here. She said she did not think he could adapt to living in China again, and he would not be able to survive there.
Mr Wu would face no language barriers in China. He is highly qualified and speaks English. He might not earn the income he can earn in Australia but there is no reason to think he could not find employment. He has a home to go to and supportive parents.
CONCLUSION
The seriousness of Mr Wu’s conduct and the harm to the Australian community should he re-offend weigh heavily in favour of cancelling his visa. Against that, very little weighs in his favour. His lack of genuine remorse and insight into his conduct means he presents an unacceptable risk of harm if allowed to remain.
I affirm the decision under review.
I certify that the preceding 88 (eighty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. ............[sgd]............................................................
Associate
Dated 26 November 2012
Date(s) of hearing 14 and 15 November 2012 Applicant In person Solicitors for the Respondent Australian Government Solicitor
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