Lau and Minister for Immigration and Border Protection (Migration)
[2017] AATA 138
•10 February 2017
Lau and Minister for Immigration and Border Protection (Migration) [2017] AATA 138 (10 February 2017)
Division:GENERAL DIVISION
File Number: 2016/6569
Re:Yuk Sing Lau
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President Dr Christopher Kendall
Ms L Gallagher, MemberDate:10 February 2017
Place:Perth
The decision under review is affirmed.
............................[sgd].......................................
Deputy President Dr Christopher Kendall
CATCHWORDS
IMMIGRATION – request for Bridging E (Class WE) visa – exercise of discretion to refuse visa pursuant to s 501 (1) of the Migration Act 1958 – “character test” – “substantial criminal record” – Direction No 65 – primary and other relevant considerations – protection of the Australian community from criminal or other serious conduct – best interests of minor children in Australia (applicant’s daughter) – expectation of the Australian community – other relevant considerations – impact on wife – decision under review affirmed
LEGISLATION
Migration Act 1958 – sections 499(2A), 500, 501(1), 501(6)(a), 501(7)(c)
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – paragraphs 6.1, 6.2, 6.3, 7(1), 8(1), 11(1), 11.1, 11.1.1, 11.1.2, 11.2, 11.3, 12(1), 12.2
CASES
Lau -v- The State of Western Australia [2017] WASCA 16
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575
Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135
Mlinar and Minister for Immigration and Multicultural Affairs [1997] ALD 771
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
Passells and Minister for Immigration and Border Protection [2016] AATA 1033
Re Du Pont and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N143REASONS FOR DECISION
Deputy President Dr Christopher Kendall
Ms L Gallagher, Member10 February 2017
INTRODUCTION
On 10 December 2015, Mr Yuk Sing Lau was convicted and sentenced in the Perth District Court of Western Australia of the following offences:
· Possession of a Prohibited Drug With Intent to Sell or Supply (Methylamphetamine) – 16 months imprisonment from 12 February 2015 and destruction order of drugs and paraphernalia; and
· Possession of stolen or unlawfully obtained property – two months imprisonment (concurrent).
Mr Lau applied for a Bridging E (Class WE) (Subclass 050) Visa on 7 September 2016.
On 2 February 2016, a Delegate for the Minister for Immigration and Border Protection (the “Minister”) found that Mr Lau had a substantial criminal record because of the above convictions and, as such, did not pass the “character test” as that term is defined in section 501(6) of the Migration Act 1958 (the “Migration Act”). The Delegate then considered whether to exercise their discretion to refuse to grant Mr Lau his visa, turning their attention to the considerations outlined in Ministerial Direction No 65 – Visa Refusal and Cancellation under s 501 (Direction No. 65). The Delegate found that Mr Lau presented an “unacceptable risk” to the Australian community should a visa be granted. In the circumstances, the Delegate refused to grant Mr Lau his visa.
Mr Lau filed an Application for Review with this Tribunal on 3 December 2016. His application is made in accordance with s 500 of the Migration Act which allows applications to be made to the Administrative Appeals Tribunal for review of a decision of a delegate of the Minister under s 501(1) of the Act.
This matter is somewhat unusual. Most section 501 matters before this Tribunal relate to the denial or cancellation of what are best described as “long term” or “permanent” visas. Mr Lau does not seek a long term or permanent visa. Rather, he seeks a Bridging visa and has indicated that he wants a brief (two week) period in Australia before departing for Hong Kong (G5 at 19). He intends to apply for a spousal visa offshore (G5 at 18). As explained further below, this was confirmed before the Tribunal by Mr Lau’s wife who advised under cross examination that she and their daughter will return to Hong Kong with Mr Lau. It was suggested that she will require assistance in this regard and contended that Mr Lau will be best able to help her if he is allowed a few weeks in Australia to assist his family.
Mr Lau believes he is entitled to a Bridging visa. Despite the brief length of time Mr Lau intends to remain in Australia if the visa is granted, the Minister contends that the correct and preferable decision is to exercise the discretion in s 501(1) of the Migration Act to refuse Mr Lau’s visa. In particular, it is the Minister’s position that the principles and considerations in Direction No. 65 clearly weigh in favour of refusing Mr Lau the visa he requests.
In effect, the Tribunal must determine whether Mr Lau should be granted a visa or whether, like the Delegate before it, the Tribunal should exercise its discretion to deny him one.
ISSUES
The issues for consideration by the Tribunal are:
(a)whether Mr Lau passes the “character test” as outlined in section 501(6) of the Migration Act; and
(b)if not, whether Mr Lau’s visa should be refused, taking into account the relevant considerations in Direction No 65.
FACTUAL AND PROCEDURAL BACKGROUND
Mr Lau is 33 years of age. He is a Hong Kong citizen. He first arrived in Australia on 29 March 2008 as the holder of an Electronic Travel Authority (Class UD) visa. He subsequently held an Electronic Travel Authority visa and three Student (Class TU) visas. He has remained in Australia since arriving in 2008, apart from a brief departure in June/July 2008.
Mr Lau has been an unlawful non-citizen since his last substantive visa expired on 15 March 2013.
On 21 August 2014, Mr Lau was apprehended by police whilst in possession of a prohibited drug (methylamphetamine) (“Charge 1”) and unlawfully obtained property (“Charge 2”).
On 16 March 2015, Mr Lau was detained under s 189(1) of the Migration Act and held at Yongah Hill Immigration Detention Centre ("YHIDC").
On 10 December 2015, Mr Lau was convicted in the District Court of Western Australia for the offences outlined above. As noted, he was sentenced to 16 months imprisonment in relation to Charge 1 and two months imprisonment in relation to Charge 2 (to be served concurrently). Mr Lau would have been sentenced to 22 months imprisonment in relation to Charge 1 and eight months imprisonment in relation to Charge 2, but for the time he had spent in immigration detention.
Mr Lau served a prison custodial sentence from 18 November 2015 until 11 June 2016. On 11 June 2016 he was returned to YHIDC.
Mr Lau met his wife in 2013. They were married on 21 March 2015 while Mr Lau was in detention. On 8 April 2015 the couple had a baby girl.
On 7 September 2016, Mr Lau applied for a Bridging visa, stating that he wished to be granted the visa “on departure grounds”. In an interview with Department officials, Mr Lau explained that he intended to depart Australia but needed to two weeks to settle his affairs and assist his wife and daughter (G5 at 19).
On 25 October 2016, the Department of Immigration and Border Protection (the “Department”) sent Mr Lau a notice of intention to consider refusal of the visa application.
On 2 December 2016, a Delegate for the Minister refused to grant Mr Lau a Bridging visa. Relevantly, the Delegate found (G16 at 70):
DISCRETION
5.Having found that Mr LAU does not pass the character test and having assessed the information set out in the submission and attachments, I considered whether to exercise my discretion to refuse to grant Mr LAU a visa. In doing so, I was bound by Ministerial Direction No. 65 - Visa refusal and cancellation under s501 (“the Direction”).) I determined whether, considering all the circumstances of the case, Mr LAU presents an “unacceptable risk” to the Australian community. In deciding this, I bore in mind the government’s commitment to protect the Australian community from harm and the principles set out at section 6.3 of the Direction.
Primary Considerations
6.I gave primary consideration to the protection of the Australian community, taking into account of [sic] the nature and seriousness of Mr LAU’s conduct and the risk to the Australian community should Mr LAU commit further offences or engage in other serious conduct; the best interests of minor children in Australia, and the expectations of the Australian community.
Protection of the Australian Community
Nature and seriousness of the person’s conduct
7.On 10 December 2015, Mr LAU was convicted in the Perth District Court of Western Australia of the following offences:
•Possession of a Prohibited Drug With intent to Sell or Supply (Methylamphetamine) -
•Possession of stolen or unlawfully obtained property
8.Mr LAU’s criminal history also in Australia also includes one count of Possess drug paraphernalia in or on which there was a prohibited drug or plant and one count of Unlicensed Person Possess Firearm/Ammunition.
9.While Mr LAU’s offending has not been violent or sexual, the Direction notes that other types of offences can also be considered serious. I consider Mr LAU’s drug offences to be serious as he was found to be in possession of illegal substances which he intended to sell or supply in the Australian community.
10.According to the Direction, the sentence imposed for a crime further reflects the seriousness of the offender’s conduct against the community. Custodial sentences are the last resort in the sentencing hierarchy. Mr LAU received a sentence of 16 months imprisonment for Possession of a Prohibited Drug With intent to Self or Supply (Methylamphetamine) and two months concurrent imprisonment for Possession of stolen or unlawfully obtained property.
11.Having considered all available information, I am of the view that Mr LAU’s previous conduct is serious.
Risk to the Australian community
12.I am mindful of the principle expressed in the Direction that Australia has a low tolerance for any criminal conduct by visa applicants, particularly those who are not in Australia and have not made any significant contribution to the Australian community, and that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases.
13.In making my decision I considered that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to remain in Australia.
14.I have considered whether Mr LAU poses a risk to the Australian community through re-offending by having regard to any mitigating or causal factors in his offending, and giving consideration to the steps Mr LAU has undertaken to reform and address his behaviour. I have also taken into account Mr LAU’s overall conduct in the custodial and non-custodial environment, and his insight into the offending.
15.I have considered Mr LAU’s explanation of the circumstances for his offending.
16.I have considered Mr LAU’s submissions that his offending was a result of his mother threatening and forcing him to assist her with trafficking drugs, and that he anonymously notified police of his mother’s activities.
17.I have taken into account the sentencing remarks by Judge Levy who was satisfied of Mr LAU’s active and significant involvement in his mother’s drug dealing enterprise, and that he did so, not under duress, but under pressure from his mother.
18.I have taken into account the submissions by Mr LAU’s step-brother and step-father who attest to his good character, and reiterate that his offending was a result of wanting to assist his mother.
19.I have taken into account the character reference supplied in support of Mr LAU’s application, and the evidence of his ongoing employment and completion of studies in Hong Kong.
20.I note Mr LAU’s comments that he was well-behaved during his incarceration.
21.I note that Mr LAU showed disregard for immigration law by remaining in the community as an unlawful non-citizen for two years.
22.I note that Mr LAU has remained in immigration detention since his release from criminal detention, thus his rehabilitation in the community is yet to be tested.
23.I have taken into consideration that Mr LAU has applied for a Bridging E (Class WE) visa, for the purposes of spending time with his wife and child before he departs Australia. I have considered the risk of harm to the Australian community in the context of the limited stay period and specific purposes of the visa application.
24.Having considered all available information, I find there is a likelihood that Mr LAU will re-offend, albeit a low likelihood, if he is released from immigration detention. If Mr LAU did engage in further criminal conduct of a similar nature in the Australian community, his actions could contribute to the use and/or supply of illicit drugs in this country, with adverse consequences for public health, the justice system and the general incidences of drug-related crime.
Best interests of minor children in Australia
25.I note the submissions in relation to Mr LAU’s child, Miss ... Lau. While I accept that it is in the best interests of the child that Mr LAU’s visa is not refused, so that he can assist with providing care for her, I find that this consideration does not outweigh the risk and associated harm of Mr LAU reoffending if he is released into the community.
Expectations of the Australian community
26.I find that the character concerns or offences in this case are such that the Australian community would expect the visa application to be refused.
Other Considerations
Impact on Australian residents or citizens
27.I note that in the event of visa refusal, Mr LAU’s wife, …, and child, Miss ... Lau, will continue to experience some hardship as Mr LAU will be unable to provide support to the family whilst his wife undergoes her rehabilitation. Notwithstanding, I am of the view that this consideration does not outweigh the risk and associated harm of Mr LAU reoffending if he is released into the community.
Conclusion
30.I concluded that Mr LAU represents a risk of harm to the Australian community which is unacceptable. I could not be satisfied that the risk of Mr LAU re-offending was negligible. I found that there are no sufficient countervailing considerations in this case to warrant the Australian community accepting any level of risk.
31.Having given full consideration to all of these matters, I decided to exercise my discretion to refuse to grant Mr LAU’s application for a Bridging E (Class WE) visa, under subsection 501(1).
On 3 December 2016, Mr Lau made an application to the Tribunal for review of the Delegate’s decision to refuse his visa.
Mr LAU appealed his convictions to the Court of Appeal for Western Australia. His appeal was dismissed on 27 January 2017 (Lau v The State of Western Australia [2017] WASCA 16. He advised the Tribunal that he intends to appeal that decision to the High Court. Mr Lau currently holds a valid Criminal Justice Stay Certificate. The Office of the Director of Public Prosecutions has advised that the DPP will not cancel this Certificate whilst Mr LAU is appealing his convictions.
CONSIDERATION
Does Mr Lau Pass the “Character Test”?
The Tribunal must first consider whether Mr Lau has satisfied the Tribunal that he passes the “character test“, as that term is defined in section 501 of the Migration Act.
Pursuant to s 501(1) the Tribunal may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the “character test” (in s 501(6) of the Migration Act). This power is discretionary.
Section 501(6) provides that a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)).
Section 501(7) of the Migration Act relevantly provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more.
It is common ground that Mr Lau has a “substantial criminal record” as that term is defined in s 501(7)(c) of the Migration Act because he was convicted to 16 months imprisonment in 2015 for possession of methylamphetamine and possession of stolen or unlawfully obtained property.
In the circumstances, Mr Lau does not satisfy the “character test” as that term is defined in s 501(6) of the Migration Act.
Should the Tribunal Exercise its Discretion to Deny Mr Lau a Visa?
Having determined that Mr Lau does not pass the character test because of his drug offences, the Tribunal must now comply with Direction No 65 (s 499(2A) of the Migration Act) to determine whether Mr Lau should be denied a visa.
Direction No 65 was issued by the Minister on 22 December 2014 and is binding on all decision-makers from that date. Relevantly, the Preamble to Direction No 65 states:
6.1 Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2)Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
(4)The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501 CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 6.2 of Direction No 65 provides general guidance to the Tribunal in relation to the exercise of the discretion to revoke a decision to cancel a visa. It provides:
6.2 General Guidance
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501 CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No 65 sets out a number of principles, including the following:
6.3 Principles
…
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
…
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of Direction No 65 provides guidance as to how this discretion is to be exercised. Paragraph 7(1) of Direction No 65 states:
7. How to exercise the discretion
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa;…
Paragraph 8(1) of Direction No 65 states:
8. Taking the relevant considerations in account
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case…
In relation to Mr Lau’s visa application, Part B of Direction No 65 sets out the considerations that are relevant in exercising the discretion in s 501(1) of the Migration Act. These considerations are addressed below.
Primary Considerations
Paragraph 11(1) of Direction No 65 sets out the following three “primary considerations” that must be taken into account in deciding whether to refuse a person’s visa:
(i)Protection of the Australian community from criminal or other serious conduct;
(ii)The best interests of minor children in Australia; and
(iii)Expectations of the Australian community.
Each of the three “primary considerations” is addressed in relation to Mr Lau below.
(i)Protection of the Australian community from criminal or other serious conduct
In relation to paragraph 11(1)(a) of Direction No 65 (i.e. protection of the Australian community), paragraph 11.1 of Direction No 65 provides:
11.1 Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration 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.
[Emphasis added]
(a) The nature and seriousness of the non-citizen’s conduct to date
In relation to paragraph 11.1(1)(a) of Direction No 65 (i.e. the nature and seriousness of the non-citizen’s conduct to date), paragraph 11.1.1 of Direction No 65 provides:
11.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
(d)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
(e) The sentence imposed by the courts for a crime or crimes;
(f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(g) The cumulative effect of repeated offending;
(h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(i) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
In relation to this issue, Mr Lau contended as follows in written submissions to the Department in relation to his visa application (undated, G16 at 65-66):
Protection of the Australian Community
(i) Nature and seriousness of the conduct
12.Mr Lau indicates that his offending was a result of assisting his mother, who had serious gambling problems/debts and was involved in the drug trade. Mr LAU submits that he assisted police with catching his mother who is currently in jail and has provided a copy of the email he sent (anonymously) to WA Police on 18 August 2014.
13.In his [sic] relation to his convictions for Possession of a Prohibited Drug With Intent to Sell or Supply (Methylamphetamine) and Possession of stolen or unlawfully obtained property, Mr LAU states that on 21 August 2014, he was caught by police when he moved these items from a hotel room (that his mother had asked him to book) to his car, and states that he “did not know what was inside at the time.”
14.Mr LAU submits that he was convicted and sentenced for 16 months, and has been in immigration detention and criminal detention for “a very long period.”
...
Other Factors
Protection of the Australian Community
(i) Nature and seriousness of the conduct
29.In sentencing Mr LAU on 10 December 2015, Judge Levy stated that the maximum penalties for his offences – 25 years imprisonment (and/or a fine up to $100,000) and seven years imprisonment – reflects the seriousness of these offences.
30.In sentencing Mr LAU, Judge Levy stated that although Mr LAU may have been a reluctant participant, he was actively and significantly involved in his mother’s dealings. The judge took into account the sentence imposed on Mr LAU’s mother (and accepted that she was more culpable than him), the time Mr LAU had already spent in criminal and immigration detention, and the “loss of liberty” and hardships of being separated from his wife and daughter.
Counsel for the Minister in turn contended as follows in a Statement of Facts, Issues and Contentions dated 29 January 2017 (but received 1 February 2017):
23.The Principles envisage that where a visa applicant commits a serious offence, the normal corollary of that is that they would be refused a visa; this is the expectation of Australia and the Australian community. The Principles also make plain that simply because an applicant is at a low (or even no) risk of reoffending does not mean that their criminal conduct should be overlooked and considered insufficient to warrant a refusal or cancellation of their visa. Further, the Principles establish that the threshold for visa refusal on character grounds is lower than for cancellations (cf. Principle 6).
24.The Principles engender an expectation that the applicant’s visa application should be refused.
25. The considerations under the Direction are now addressed in turn.
The Protection of the Australian Community
26.This factor involves a consideration of (a) the nature and seriousness of the applicant’s conduct to date and (b) the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
27.In relation to the nature of the applicant’s offending, as noted in the District Court’s reasons for sentence, the Court:
a. noted that the Police found various items related to drug dealing in the applicant’s car and residential address;
b. had some doubt as to the reliability of the applicant’s evidence about his family history and his mother’s threats made against him;
c. considered that the applicant’s evidence in relation to the nature of his mother’s threats against him was “simply unconvincing”, and strongly suspected that the relationship between the applicant and his mother was “very different” to what the applicant claimed;
d. was not satisfied on the balance of probabilities that the applicant was acting under duress;
e. had “little difficulty” in rejecting the applicant’s evidence that he did not know what his text messages were in relation to drug dealing, and that he was nothing more than a messenger for his mother;
f. was not satisfied on the balance of probabilities that the dob-in email to the Police about drug dealing was sent about his mother, and that it was ultimately of no use to the Police and should not be considered a mitigating factor; and
g. found that the applicant was “actively and significantly involved” in his mother’s drug dealing.
In determining whether Mr Lau’s criminal conduct can be viewed as “serious”, the Tribunal notes Mr Lau’s explanation to the Department of what occurred in relation to his drug offences (G22 at 135):
My mother has a serious gambling problem. However, she was my only family. I used to follow my mother’s order and tolerate her and please her. After all, she is my mother. I realized that she had a difficult life when I grew-up. On top of that, she has been a serious gambler. In an ideal world, she should be in re-habs. With no money, I did not know how to turn her around.
I think my mother’s hardship has impacted on me and rest of us whoever once being in the family. Nevertheless, I tried to grow as normal as possible under such subtle family environment.
In 2005, she disappeared. Later Knew I, she was trying to hide from all debt collectors. And my step-father disappeared too. He was so upset that my mother gambled away savings (around one million Hong Kong dollars) from his labor work. Being two adults gone, I lived with my half-brother. I tried to manage my study and took care of my half-brother. Life was tough. I did everything I could.
In Feb. 2006, I got a formal job. I was employed by the Education Bureau, the government department of Hong Kong (from Feb. 2006 to Feb. 2008) (Annexure “A”) until I left Hong Kong. I had been a best employee. I left the job because my mother moved to Perth and she thought to have my half-brother to live with her so that he could go to high school in Australia. I was persuaded by my step-father to go with my half-brother and to put an eye on my mother’s arrangement. I could say my step-father had no confidence in my mother.
I did not know anything about what she was doing in Australia before I came to Australia. At the beginning, I was studying as well. So did my half- brother. Life was only good for a few months. Then, old patterns came back. My mother accumulated huge debts from her gambling again. All I can do at that stage was that I had to endure the hardship because I determined to support my half- brother to finish his high school and to bring him back to Hong Kong safely.
My mother wanted me to stay in Australia to keep her accompany and support her. She has nobody. She tried to stop me to going back to Hong Kong. She relied on me. She could not speak English and drive. It was hard for me to leave my mother alone in that situation in Australia. It seemed that she was on the edge of madness or death because of debt collectors followed her.
My mother is in jail. Sometimes, I thought it was good in a way she could do her rehab there. I had a broken family. Moreover, I came from parents who have bad habits. I understood that it was me or my half-brother who would suffer.
On 21/03/2015, I married ... We had a child, ... Lau. She was born on 8/4/2015. I did not have opportunity to hold her as normal Dad could due to the arrest and imprisonment.
I could not reconcile with all things happened in relation to the criminal matter against me because it involved my mother. On 21/08/2014,I was told by my mother to get things together from her residence and bring to certain address which I did. Early than that particular date, I did try to alert police because I suspected that she involved in drug trade. I did what I could do to help the police to catch my mother.
I tried to remain in Australia is for my own family, especially for my daughter. My daughter is very young. She should not suffer the life I had when I was young. After I went to the prison, my wife suffered anxiety and depression so that ..., our daughter was placed in the “Departmental carer” and only unified with my wife in January 2016.
My wife had a back problem. Even lift my daughter is hard on her. She then had a surgical procedure in July 2016.
But the reality is that it is waste of time in detention. I had to somehow to resume the responsibility for my family. If the Australian law does not allow me to stay with my family in this way, then I would obey Australian Law and leave. I only wished to stay with my family for a few days before I leave.
I understood that the department of Immigration is considering to refuse my application for a Bridging Visa E on departure ground.
But I just wanted to see my family before I leave, because I never have any day with my daughter since she born.
In relation to my s501, I understood that I fall into the section. However, I give the following reasons that the department should take into accounts in relation to granting me the bridging visa,
1.I am not a direct offender of any crime, I do not in myself to possess threat to Australian community.
2. I do not have any prior criminal history.
3.I am a person probably torn in between mother and myself. To anyone, it is a difficult situation to face.
4.I have come to my situation in a hard way (my wife the physiology, psychology and daughter growing etc.).
5. I do have a minor Child would be affected by the decision.
In determining whether Mr Lau’s criminal conduct can be viewed as serious, the Tribunal also notes the sentences imposed by the courts for his crimes. The Tribunal notes, in particular, the summary of Mr Lau’s offences and the sentences imposed for his conduct in the sentencing remarks of Levy DCJ (dated 10 December 2015) (G20 at 123). His Honour’s summary of Mr Lau’s conduct and explanation for that conduct says much about the seriousness of Mr Lau’s criminal conduct. Relevantly, His Honour found as follows:
... You stood trial in relation to count 1, being possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. This related to the 12.9 grams at 45 per cent purity which was found in the red box with Chinese writing in the boot of the car.
Count 2 was that you had in your possession $4,800, reasonably expected to have been stolen or unlawfully obtained. That money was found in a freezer bag in the boot of the car. …
Count 3 was possession of a prohibited drug, namely methylamphetamine with intent to sell or supply it to another. This related to the methylamphetamine found in two small boxes which were inside the zipper of a boxing bag, and located in the garage at 95A Kooyong Road. The methylamphetamine weighed 41.6 grams. Count 4 was that you had in your possession $8,250 ..., which was reasonably suspected to have been stolen or unlawfully obtained. In relation to counts 1 and 2 at trial, you denied that you had any knowledge of either the drugs or the money found in the boot of the car.
In relation to count 3, you said that you were acting under duress when you placed the drugs in the boxing bag.
…
In relation to count 4, your defence was that the money belonged to you and your girlfriend and that you had acquired it legitimately. The jury acquitted you in relation to counts 3 and 4 but convicted you on counts 1 and 2.
I note that some of the items found in your, car and also at the Kooyong Road address included clipseal bags, snap seal bags, MSM powder, digital scales, your bank records showing large quantities of money going in and out of the account, multiple mobile phones, text messages - sorry, did you get that - text messages found on your phones that the State alleged were about drug dealing.
Your explanation at trial for the possession of these various items was effectively that you did not know absolutely what each of these items were for but that you suspected your mother was dealing in drugs. I note that you had these suspicions from at least July of 2014.
…
Much of what you claim to your - to be your history comes from the evidence you gave at trial. I have some doubt about the reliability of your evidence about your family history including your evidence of the threats that you said your mother made to you.
…
According to you, your mother was a gambler and had a lot of debts. You said in evidence that from 2014, you believed that she was dealing in drugs in order to repay her debts. She, according to you, was also using methamphetamine. According to you, you became suspicious of your mother’s activities because of the large amounts of money going into your account. She … did not have a bank account and used yours. You say that you confronted your mother in June and again in mid-August 2014. Your evidence at trial was that she made threats towards you, your girlfriend and your unborn child. According to you, the threats were made in either June or July and again in mid-August 2014. The nature of the threats were:
If you don’t help me, you’re not my son, and I will go to the bedroom and grab a gun and kill you and your wife and then I suicide. [sic]
You said that you believed she would carry out the threats unless you assisted her, and you said that you believed that she or her friends had the means and ability to carry out the threats.
I note that your evidence about where the threats were made, whether your mother actually had a gun, or whether you understood that a friend of hers actually had the gun changed from time to time during your evidence, and was, to my mind, simply unconvincing.
In any event, not long after the threats you say that somebody broke into the place you were staying, bashed the owner and ransacked the house.
…
You said that you believed your mother had organized these events. In mid-August you say the same threats that had been made against you earlier were repeated by your mother.
You decided the only way to get out of your predicament was to dob your mother in. You say that you sent an email to police. According to you, an email was sent by you on 18 August 2014. It was submitted by you that it was sent because you hoped it would cause your mother to be arrested.
This was an anonymous email under a false name. You claimed that you couldn’t go directly to the police because your mother had friends who were police officers and you didn’t know who they were. I understood this to be a suggestion that your mother knew corrupt police officers who would assist her.
…
I understood this to be a suggestion that your mother knew corrupt police officers who would assist her. You also said that you were concerned about your mother’s drug dealer friends finding out.
…
I am satisfied that your mother did have a gambling problem. I am also satisfied that she was the instigator of your involvement in the drug dealing enterprise.
… In the end, I am not satisfied on the balance of probabilities that you were at any stage acting under duress. In considering whether your evidence as a whole is capable of satisfying me that you were acting under duress generally …
... Much of your evidence was less than convincing. As I’ve said, some of your evidence changed on key issues during the trial. I strongly suspect that the true nature of your relationship with your mother is very different to what you claim it was.
Furthermore, the text messages suggest that you were a willing participant albeit reluctant one, in the wider drug business carried out by you and your mother. I have little difficulty in rejecting your evidence that you did not really know what the text messages were about, and that you were simply nothing more than a messenger service for your mother.
In relation to the email which was exhibit 18 in the trial, I am satisfied on the balance of probabilities that you sent the email. I am not satisfied on the balance of probabilities that the email was about your mother
…
Critically, the email described the person in it as being a lady older than 45 years. That’s not to say that you were not dobbing in some person involved in drug dealing. But I reject your motive for sending it. In my view, your motive for sending the email is unclear.
However, even if I accepted your contention, then the motive would have been for your own personal gain. In other words, to remove yourself from the influence of your mother, rather than being sent for some altruistic purpose. No matter what, there is an indication - sorry, no matter what, there is no indication of remorse.
I’ve heard further submissions in relation to the effect of the email, and it seems clear that the information contained in it has ultimately been of no use to the police. There is no mitigation in the mere fact of sending the email.
…
I should make it clear that whilst I’m not satisfied that you were acting under duress, I am satisfied that your mother applied some pressure to you which caused you to assist her. Nonetheless, whilst you may have been a reluctant participant, you were actively and significantly involved in her dealings.
In sentencing you, I must impose a sentence that is appropriate to each one of these offences. I am required to take into account the maximum penalties for these offences, the circumstance of the commission of these offences, any aggravating factors and any mitigating factors.
The maximum penalty that applies for count 1 is 25 years’ imprisonment or a fine not exceeding $100,000 or both … as well as gaol. The maximum penalty on count 2 is seven years. These penalties reflect the seriousness of these offences. …
…
I also accept over and above the time you’ve spent in custody on remand that you have further suffered a loss of your liberty, having been detained in Immigration detention for 170 days. That loss of liberty combined with the hardships of having been separated from your daughter and your partner is a significant factor.
I have come to the conclusion, in all the circumstances, having considered all sentencing options, that the only sentencing option available to me in the circumstances is that of a term of imprisonment in relation to each one of these offences. Having considered all relevant factors, it is my view that only terms of imprisonment to be served immediately would be appropriate.
Having considered the question of backdating of a sentence of imprisonment and concluding that I cannot backdate the time that you have spent in Immigration detention, I will reduce the sentence I would otherwise have imposed to take account of your time in Immigration detention by six months.
Looking at all relevant factors, including the question of your mother’s involvement and sentence, but save for the question of your time in detention, I would have imposed a sentence of 22 months’ imprisonment on count 1, and eight months - - -
… But having taken into account your time in Immigration detention, those sentences will be reduced to 16 months and two months respectively.
There is also the question of whether they are to be served together or on top of one another. Since I am satisfied that the money was the proceeds of drug trafficking and is therefore connected to count 1, I am prepared to order that the sentences be served concurrently or together.
Mr Lau has consistently attempted to explain his behaviour by blaming his mother for his actions. This is evidenced in all of the written statements prepared by him and was again evident in oral submission before the Tribunal. Before this Tribunal Mr Lau seemed to suggest that Judge Levy misunderstood the circumstances surrounding his conduct and why he did what he did.
As explained most recently by Senior Member Walsh in Passells and Minister for Immigration and Border Protection [2016] AATA 1033, the Tribunal cannot contradict or go behind a conviction and examine the facts upon which it is based: Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575; Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135; 102 ALR 19 at 22; Mlinar and Minister for Immigration and Multicultural Affairs [1997] ALD 771; Ali and Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 62 ALD 673 at [41] to [45]. However, that is not to be taken as denying the right of an applicant to present to the Tribunal matters pertaining to a conviction provided that they do not contradict the facts upon which a court found in arriving at a conviction: Re Du Pont and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N143.
While Mr LAU’s offending has not been violent or sexual, as per Direction No 65 it cannot be disputed that the offences for which he was ultimately convicted are indeed serious.
As correctly contended by the Minister in written submissions to the Tribunal, sentences involving terms of imprisonment are the last resort in the sentencing hierarchy, especially where an offender (like Mr Lau) has no prior criminal history. Mr Lau was sentenced to a term of custodial imprisonment and that sentence was upheld by the Court of Appeal. Mr Lau received a custodial sentence of sixteen months for Count 1 and two months for Count 2. This term of imprisonment reflects the seriousness of the offence involved.
It was noted by Judge Levy in sentencing Mr Lau that his evidence about his relationship with his mother was not reliable and that he was, contrary to what he claims, a willing participant in his mother’s drug trafficking business. It is also noted that Mr Lau has never expressed any remorse whatsoever for his illegal conduct and the harm that inevitably arises from drug trafficking of the sort he engaged in. Mr Lau was found to be in possession of methylamphetamine. The trial evidence shows that he intended to sell or supply those drugs in the Australian community. Given the well documented devastation inflicted on the community as a result of the production, distribution and use of methylamphetamine, this is a most serious crime. Mr Lau’s failure to acknowledge the consequences of his actions is inexcusable in these circumstances.
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
In relation to paragraph 11.1(1)(b) of Direction No 65 (i.e. the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct), paragraph 11.1.2 of Direction No 65 provides:
11.1.2The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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 likelihood that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3)In considering the risk 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 from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
ii. evidence of any 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); and
iii. the duration of the intended stay in Australia.
(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
In relation to this issue, Mr Lau submitted as follows in written submissions to the Department (G16 at 66):
(ii) Rehabilitation and mitigation
15.Mr LAU submits that his mother forced him to hide drugs for her, that he did not like that she was involved in drug trafficking, but that she threatened him (and the safety of his family) using her gun.
16. Mr LAU makes the following submissions:
•He is not a “direct offender” of any crime and does not possess [sic] a threat to the Australian community.
•He does not have a prior criminal history.
•He was probably torn between his mother and himself, and it was a difficult situation to face.
17.Mr LAU submits that whilst in prison, he was well behaved and participated in learning English and work.
18.Mr LAU submits that he now understands the full consequences of breaching any Migration Law of Australia, and has learned that the only way for him to have a “good outcome in (his) immigration matter is to abide by Australian Migration Law.”
19.Mr LAU submits that in the event that his visa is not refused, his wife has agreed to provide him with “all the supports” that he needs, including accommodation. He also submits that he will comply with the conditions of his bridging visa and will not engage in work.
20.Mr LAU’s step-brother, Mr Tsz Chung, Tse, indicates that Mr LAU looked after him in their parents’ absence, including becoming his guardian whilst they were both studying in Australia. Mr Tsz Chung indicates that his brother suffered verbal and physical abuse by their mother, that he is a “victim” of their mother’s offending, and that his primary concern is his wife and child.
21.Mr LAU’s step-father, Mr Kwok Kau, Tse, [sic] indicates that Mr LAU is a good but “very stupid” person and always followed his mother’s instructions, either out of fear or wanting to pay her back for his upbringing.
22.Mr LAU has provided a character reference from his previous employer in Hong Kong evidence of his previous employment in Hong Kong, and evidence of courses completed in Hong Kong.
(iii) Duration of intended stay in Australia
23.Mr LAU has applied for a Bridging E visa on departure grounds. He wishes to be released from immigration detention in order to temporarily be with his wife and daughter until he departs Australia. He also states “If I could not live with my family now, please let me leave so that I find a normal [sic] work to support them even if that means I have to leave”
…
(ii)Rehabilitation and mitigation
31.In sentencing Mr LAU, Judge Levy stated he did not accept Mr LAU’s claim that he was acting under duress (based on alleged threats from his mother), however the judge was satisfied that Mr LAU’s mother was the instigator of his involvement in the drug dealing enterprise and had applied some pressure which caused him to assist her.
In a Statement of Facts, Issues and Contentions dated 20 January 2016, solicitors for Mr Lau contended as follows in relation to this issue:
19.It is arguable the fall of Mr. Lau to the Criminal Justice's system has nothing to do with his own childhood dilemma of parents. He managed to stay of trouble as much as he could until he re-united with his mother in Australia. He studied and he worked.
20.His mother is in jail, there are no other evidences that he could associate himself with crime groups, therefore, it is hard to adjust "reasonable suspicion". Although his email to police was not a direct cause of his mother's arrest, he had demonstrated that he has a degree of understanding on wrong and right.
[sic]
The Minister, in turn, contended as follows in a Statement of Facts, Issues and Contentions dated 29 January 2017:
29.Paragraph 11.1.2(1) of the Direction provides that in determining whether the non-citizen represents an unacceptable risk, decision makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, and that some conduct and the harm that would be caused if it were repeated may be so serious that any likelihood that it may be repeated may be unacceptable.
30.Further, paragraph 11.1.2(2) of the Direction makes plain that given Australia’s low tolerance of any criminal or other serious conduct by visa applicants, there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
31.In considering the risk to the Australian community, the Tribunal must have regard to (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 such conduct in the future.
32.Taking these in turn, firstly, the nature of the harm to victims if the applicant were to reoffend in the future is very serious. The Minister submits that the risk of the applicant reoffending is high, taking into account the fact that:
a)The applicant was released immediately into detention from criminal custody so he has not been tested in the community as to the results of his rehabilitation and risk of reoffending (see paragraph 11.1.2(3)(b)(ii) of Direction 65). In this regard, the Minister contends that it is significant that there is no evidence that the applicant has taken part in any rehabilitation programs in respect of his drug related offences.
b)The applicant was an unlawful non-citizen when he was caught by the Police. Australia has a low tolerance of any criminal conduct by visa applicants holding a limited stay visa (see paragraph 11.1.2(2)).
c)The applicant has not apologised to his victims.
d)The applicant did not plead guilty before the Courts, and has not demonstrated any remorse for his actions. Rather, the applicant blames his mother for his actions and that he felt that he had no choice but to assist her.
e)There is a real risk that if the applicant does re-offend there will be significant damage caused to members of the Australian public.
33.Even if the Tribunal were to determine that there was a low risk of the applicant reoffending (which is not conceded), applying the guidance in paragraphs 11.1.2(1) and (2) of the Direction, and given the nature of the offences, the Minister contends that the risk of the applicant reoffending, even if assessed as low, is unacceptable. In light of Principle 4, the Minister contends that any risk of the applicant reoffending is unacceptable given the seriousness of the applicant’s past conduct and the harm caused were such conduct to be repeated in the future.
34.Even having regard to the risk of harm in the context of the type of visa being applied for, having regard to paragraphs 11.1.2(4) the Direction, the Minister contends that there are not strong or compassionate reasons for granting a short-stay visa.
The Tribunal also notes a Transcript of Interview with Mr Lau dated 8 September 2016 (G5 at 18) conducted as part of the Department’s assessment of Mr Lau’s application for a Bridging visa. Relevantly, that Transcript provides as follows:
Q: Tell me, in your own words, your plans for the future (immigration)?
A:I cannot apply onshore with my criminal case not completed. I currently have an appeal with the Supreme Court.
I wish to apply for a spouse visa offshore once I return back to Hong Kong.
Q2: Did your lawyer advise when your court appeal will be finalised?
A2: Within 3mths time is all I heard
Q2:In your own words, what is your reasoning for applying for the Bridging E Visa to be released from Immigration Detention?
A2:I would like to spend time with my daughter before I leave Australia as I have not spent one day with her fully.
Q3:
Q.4:How long, in your opinion, would you like to stay in Australia, before you intend to fly back to HK?
A4: I would like two weeks.
Q: In your opinion, are you likely to re-offend if you were released from Immigration Detention?
A:
8101:
Q: How will you support yourself in A/a without work?
A:I have money in Australia and my wife and her family will support me whilst in Perth for two weeks
Q2: Will you engage in work whilst in Australia?
A2:No. Even previously I did not have a job in Australia. I wish to be released as I want to spend time with my daughter in Australia.
Q3:Will you continue to work as a ‘driver’, as previously mentioned to DIBP, if released from detention?
A3:It’s not possible to do this job as I do not have a drivers licence to do so. My licence has expired so l cannot drive.
Q4:Will you re-connect with your friends whom may still be selling and/or supplying illegal narcotics, if released from detention?
A4: It’s not possible at all as this is my mother’s issue, not mine.
Q: Are you currently a Director an [sic] Australian company?
A: No
Q2: If YES, what is the name and main business function of your company?
A2: N/A
Q: What assets do you own in A/a?
A: I don’t have a car. I think I sold that car to friends.
Q2: I need a definitive answer, have you sold the car or not?
A2: Yes, I have sold the car in Jan 2015.
8401:
Q:Why didn’t you attend an Immigration Office when your TU-580 visa expired?
A:When my younger brother left, my mother asked me to stay and assist her in Australia as she had a large gambling debt and requested I help her in Australia.
Q2: Is that your sole reason for overstaying in Australia
A2:Yes. What could I do but not help my mother in Australia? If she continued to borrow money to entertain her gambling debt, the people whom she borrowed money would do something to myself and my mother.
Q3:Did you knowingly overstay in Australia knowing the fact that you will be breaking Migration Law?
A3:Yes but I don’t need to stay anymore as I do not want to help my mother anymore. I wish to do the proper channels and come back to Australia legally instead of my past act.
Q2 [sic]: How long have you been residing in WA?
A2: For 3yrs.
Q:If you were not located by WA Police that day, would you have attempted to contact the Department to regularise your status?
A:I do not know, I know I was doing the wrong thing by staying in Australia but I had to assist my mother as she had a huge gambling debt.
Q:In your opinion, are you likely to re-offend if you were released from Immigration Detention?
A:No this is not possible. I wish to do the right thing now, for myself and my family.
Q: Where are your parents?
A: I don’t know my father since I was born. I have had no contact with him.
Q2: Uncles and aunties? Where are they?
A2: All in Hong Kong, no one living in Australia.
Q: Will you report as directed, if requested by an Immigration Officer?
A:Okay, I will. I can report every day, if requested, as I live in Perth city so will be quite easy to do so.
8505:
Q: If granted a Bridging Visa E, where will you stay in WA?
A: 33/101 Murray Street, Perth WA 6000
Q2: Who else is residing in this residence?
A2: Currently, my wife, child and my wife’s father (father-in-law)
Q: How soon will you purchase a ticket to depart Australia?
A:Yeah not a problem. Once released, I can purchase a ticket to leave Australia and provide to Immigration, no problem.
Q: Will you consider absconding if released from Immigration Detention?
A: Not possible. It would affect my wife and daughter. I already have made plans and I have already a job waiting for me in Hong Kong.
8511:
Q: In your opinion, when will you purchase a ticket to leave Australia?
A:I will purchase a ticket once I am released from here (YHIDC) and it will be for a maximum of two weeks, as we have discussed.
Q:Your appeal with the Supreme Court of WA, have you been advised by your lawyers (if any) or Legal Aid when an outcome is likely to be finalised?
A: In 3mths time.
Q2: Have you advised your lawyers of your intention to leave Australia?
A2: Yes, I have already done so.
8512:
Q: Can you depart in 2 weeks time?
A: Yes, I can
8564:
Q:Will you engage in further criminal conduct, if released from Immigration Detention?
A:No, I will not. I would like to do the right thing for myself and my family from now on.
Bond/Security:
Q:If a security is requested for you to abide by the conditions, who will provide the security bond?
A: I can provide the security bond.
Q:Your estimate, how much money do you personally have in Australia, both cash and in your bank accounts (if applicable)?
A:I have $7,000 in my bank account I can afford a security bond of $5,000 if that is okay.
Q2:Your estimate, how much money does your wife have in Australia, both cash and in her bank accounts (if applicable)?
A2:$2,000 cash and she is currently earning Centrelink a fortnight, approx: $900
Mr Lau also provided a number of statements from family, friends and colleagues.
In an undated Witness Statement (G30 at 158), Mr Lau’s step brother states:
In 1995-2005, I lived with my whole family (myself, father, mother, and my brother), but after 2005, one day my father and mother suddenly disappeared, only brother at home. Because I was just 9 years old, so I don’t know too much about my parent’s separation situation, but I understand now. My father told me that it was because my mother stole his money which more one million HK Dollar, and she has serious gambling problem. She owes a lot of money from different people (including some bad guys like Loan Shark), my father often went to Macao and paid a lot of money to some bad guys to help my mother out of the gambling debt. But I didn’t know everything in that time.
Between 2005-2007, I lived with my brother only, we take care of each other. My father visited me every month or when I need him. He was very busy at his work, so he choose lived outside and let my brother to take care me, but he also gave me the pocket money and pay the house rent every month. My mother never showed up in that time.
In 2007, they planned let me go study in an oversea country, my brother and father had a discussion about me to go Sydney Australia for my high school. One day, my brother told me that our mother contacted him, and told him that she lived in Perth Australia now, and she knew I would go to Sydney for studying, so she told my brother she had a business in Perth and Perth is very good for studying. Also if we go to Perth, she can take care me too. Finally, we choose Perth for my study place, but my father worried about that our mother was lying about everything as she often dose, so my father asked my brother to go with me and look after me. And my brother agreed. So in 2008, my brother and I went to Perth.
According to the original plan, I went to study in high school, and my brother went to study English too, everything was alright in the first five month, but after that, we both realized that the plan wasn’t goes right, because we found out my mother lied to us, she never had a real business. The business she mentioned to us is working girl, she needed some people work for her for free so that she can able to pay her debt from gambling, so she make use of my brother. At that time, my brother had to give up his study and became my guardian because he had to save his school fee to help her pay her debt. Since my brother knew his visa has no working permission, so he had to quit his job as a waiter in a Chinese restaurant. He knew that if immigration find out he has broken the rule, absolutely will affect my study or visa and I will not be able to graduate from high school, so he kept endure until my graduation. When he can not work, as my mother have many contact of working girls, so my brother tried to become a driver to get some pocket money because our living expenses are all from my father, my brother didn’t want give him too much pressure. So his schedule is very simple. In the morning he drove me from home (Rivervale, Perth) to school (Como, Perth) and return, sit front of computer, cook lunch, play computer again. After school finished in the evening, he came to school drove me back home, cook dinner, sit back with computer and sleep. Everyday like the same with nothing special happens. He had a boring life as my brother is a very decent and responsible man. He don’t have any bad habits like smoking cigarette, gambling, alcohol and drugs. I never seen him to used or touch that, but I know he loves to meet friends for dinner or movie. When he became my guardian and quit the job, he stop doing everything he was doing and just to keep us safe and so he could take care me. I knew he was helping mother as a driver and post the advertisement for newspaper. I am ensure that he never got paid because every single dollar he earned from driving job were took by our mother to pay her gambling debts.
When I was in Australia, my mother always curse him and hit my brother, but he never fight back. I knew he was trying to protect me. I remembered few times he was very angry, because my mother always took the money and go gamble, and lose more money and came back home with extra debt as she borrowed money from people. At that time, my brother told me he really want to give up and go back Hong Kong, but he didn’t. As I was still doing my study, he couldn’t just went off and quit. It was a hard time for both of us until my graduation. We had plan to go university, but during the selection of university. My mother have an other huge debt again. My brother don’t want me get in to any trouble because of those debt, so he decided to send me back to Hong Kong for further study and stay with my father. He didn’t come back to Hong Kong with me because as we knew, if he went back to Hong Kong and no one help her, mother will die because of the bad guys, then those debts will pass on to me and my brother.
After I left Australia, I always contact my brother, and ask him to come back Hong Kong, My father and I will support him for everything. But as my mother’s debt was very huge, so he still couldn’t run away from that. In 2014, my brother told me he got girlfriend and I was very happy to hear that until August, 2014. I heard my brother and my mother were both got arrested, and I talked to my brother’s girlfriend immediacy. I ensure that my brother is victim from it. I really want to go help my brother, but my brother stopped me, because if I come back to Australia those bad guys will find out that I come back to Australia and we don’t know what will they do to me. Also I was still young with no income, nothing I can’t help at the moment. But after I finished my higher diploma, I came back to Perth, Australia for one month at January 2016 to visit my brother and his family as we have a new life in our family – my brother’s daughter.
In fact, all I know my brother is a extremely good guy. He always put and think of others first. He never put himself as first place, he never hurt anyone, never smoke cigarette, never gambling, never have relationship with alcohols and drugs. No matter where he is, party or else, he never touch alcohols, because he know he have to drive us or friends back home, so he always just order the soft drink, he said “At least have someone must take care all safety, when all people high or drunk.” So if you want me to describe about my brother, i would say he is the perfect and best guy in a world. And when he became a father last year, every-time he calls me from jail, he never talk about himself, always mention about his wife and daughter or me. He always worries about them, he cried to me so many times about he can’t take care them, let them have a very hard and bad time, he feels sorry for his wife and daughter. I don’t know that is he a great father or husband because he already in jail and he have no chance to leave with his family. But if you ask me “Will he be a good father or husband?” I am absolutely or 100% sure he will going to provide everything he has to his family. [sic]
The Tribunal also notes an undated witness statement (G31 at 161) from Mr Lau’s step father that reads as follows:
About my Ex-wife (…) she was a beautiful woman, she have much boyfriends or lover, i was hope she is my last, but she let me disappointed. I don’t want talk too much about her, but for my know, her emotion changes all the time. For example, when her son fail his examination or don’t follow her order, she always curse or hit him, and even use the broom to hit them, I remembered one time she was push out her son out of the house (Yuk Sing, Lau) because he lied for his mark from examination. That was really crazy, I stopped her much about that, but this thing always happen again. I was live with her around 10 years, I always sleep in living room, because she have no mood and I am easy let her wake up. She always play Chinese gambling (Mahjong), she has a deep gambling problem.
Around 2005, this year is a hard year for me, because my business is weak because on the disease- SARS in Hong Kong. I had some debt from bank, and I knew I have some deposit from joint account around one million with my wife. I asked her to give me back some money so that i can pay my debt, she said no and she don’t believe me I have the debt outside. She thought I will use those money for the other women and i never did that. We was arguing lots about money, and finally I found out she steal those money for gambling. I was very angry. One day, i decided to separate with her, i leave home and move to my friends house. But I can’t believe she leave her home too, and let her two son live by themselves. I was helping them to pay rent, but I’m still reborn to my business, so other bills were all pay by my stepson. Then around 2006, i got the call from someone, they said your wife in my hand, if you want her to be safe, bring your money to save her. I know that was her creditors, she asked me to help her on phone, she said give her one more chance, please save her, if not, she will be died and our son will lost his mother. I was think she still is my son’s mother, so i borrowed money from my friends and paid debt to save her life. After that, we never have contact anymore.
For all my know, Yuk Sing, Lau is a good boy, let people trust, but he should be a very stupid person like the puppy. I don’t know why he always listen and follow to her mother’s instruction, maybe he want to pay her back for her upbringing or just only fear of her. [sic]
Finally, a former work colleague of Mr Lau in Hong Kong writes as follows (G32 at 163):
I worked with Jacky from Year 2004 to 2006, I was his superior and Yuk Sing, Lau direct reported to me. I found him hardworking and reliable. He is a trustworthy team member and he tries his greatest effort to accomplish whatever tasks assigned to him.
On a personal note, Yuk Sing, Lau has been a model husband; he loves his wife and child. He is loyalty [sic], honest, sincere and hardworking, he is very responsible and has always had high expectations and work ethics, and he has participated in voluntary work. He has always appeared to me to be a diligent and conscientious person.
I am available as a referee, if I can provide any further information, please do not hesitate to contact me.
Mr Lau claims that he will depart Australia within two weeks if he is granted his Bridging visa. The question before the Tribunal is whether, in these circumstances, there is a risk to the Australian community arising from further offending or other serious conduct on Mr Lau’s part.
In considering the risk to the Australian community, the Tribunal must have regard to the nature of the harm to individuals or the Australian community should Mr Lau engage in further criminal or other serious conduct, and the likelihood of him engaging in similar conduct in the future.
In assessing the risk to the community, the Tribunal is conscious of the fact that Mr Lau has ignored Australia’s visa requirements in the past and, indeed, lived illegally here after his last substantive visa expired on 15 March 2013. The Tribunal also notes that Mr Lau has consistently blamed others for his illegal conduct and does not seem to acknowledge any harms resulting from his actions. During cross examination, Mr Lau indicated that he did not plead guilty when charged with drug trafficking offences because his lawyer advised him not to. Nor did he admit that what he had done was wrong. He also admitted to receiving payments for driving prostituted women to and from various locations, without any sense that this amounted to the receipt of illegal payments. His explanation for this was that he did not view any money received as payment for work done. Rather, he viewed the money as having been received for “helping friends”. While Mr Lau now claims to better understand this country’s visa requirements and while he states that he will leave Australia within two weeks of being released from detention, Mr Lau has a track record of flouting this country’s visa requirements and basic legal requirements. In the circumstances, the Tribunal is not convinced that Mr Lau will indeed leave Australia if granted a visa. Should he not do so, there is simply too great a risk to the Australian community that he will commit further offences or engage in other serious conduct of the sort that will result in harm to the community. Nor does the Tribunal accept that harm will not flow even if Mr Lau remains in Australia for only two weeks.
It is clear on the evidence that Mr Lau’s wife, step father, brother and friends are loving, good people and that he has a support network. Unfortunately, their desire to do what is best for him means that they lack objectivity to a certain extent about what will happen if Mr Lau is returned to the Australian community, even if only for a short period of time. This support network did not stop Mr Lau from offending in the past and the Tribunal has concerns that their ongoing support will not stop him from engaging in illegal conduct again should the opportunity arise.
Mr Lau was actively engaged in drug trafficking and while his mother may now be in prison, the drug trafficking community that funded her remains and Mr Lau was actively engaged in that community. Mr Lau was released immediately into detention from criminal custody and has not been tested in the community after a period of detention and imprisonment. There is also no evidence that Mr Lau has undertaken any educational or rehabilitation program the sort that would encourage him to avoid the drug trafficking community in the future.
Based on the evidence before it, the Tribunal considers that there is a risk that Mr Lau will reoffend if returned to the community in Australia. Applying the guidance in paragraphs 11.1.2(1) and (2) of Direction No 65, and given the nature of Mr Lau’s offences, the Tribunal finds that the risk of Mr Lau reoffending (even if assessed as low given the possibility that Mr Lau may only stay for two weeks in Australia) is unacceptable. Any risk of Mr Lau reoffending is unacceptable given the seriousness of his criminal conduct and the harm that would result from any re-occurrence of such conduct. Overall, Mr Lau’s past behaviour raises serious issues about the extent to which he poses an unacceptable risk to the Australian community.
(ii) The best interests of minor children in Australia
In relation to paragraph 11(1)(b) of Direction No 65 (i.e. the best interests of minor children in Australia), paragraph 11.2 of Direction No 65 provides:
11.2 Best interests of minor children in Australia affected by the decision
(1)Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa 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 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 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 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.
Mr Lau has one daughter. She is aged one.
In relation to the impact that Mr Lau’s deportation will have on this child, Mr Lau contended as follows in submissions to the Department (undated at G16 at 63):
10.Mr LAU indicates that due to his arrest and imprisonment, he was unable to provide care for his daughter, and as his wife was suffering anxiety and depression, his daughter was temporarily placed with a carer from 18 June 2015 to 25 January 2016. Mr LAU has provided evidence that his daughter was returned to his wife’s care in January 2016, and on 15 February 2016 an order was made by the Children’s Court of Western Australia for the Department of Child Protection and Family Support to supervise the child for six months (whilst in her mother’s care)..
In a Statement of Facts, Issues and Contentions dated 20 January 2017, Mr Lau’s solicitors contended as follows:
18.The best outcomes for … Lau is to have both parents' supports in Hong Kong where the applicant could have free of immigration detention. So he could lend hands in assisting [Mrs Lau] in raising the Child.
21.For the best interest of … Lau, it is to allow Mr. Lau to spend a few days before he depart to Hong Kong; alternatively, to allow Mr. Lau to depart with his family to Hong Kong.
[sic]
These concerns were reiterated in opening and closing submission by Mr Lau’s solicitors. It was stressed that Mrs Lau cannot generally take care of the child by herself and requires Mr Lau’s assistance. The Tribunal has no reason to doubt this. Mrs Lau, in turn, informed the Tribunal that she will return with Mr Lau to Hong Kong. The Tribunal has no reason to doubt her in this regard.
The Minister, in turn, contended as follows in a Statement of Facts, Issues and Contentions dated 29 January 2017:
36.The Minister accepts that the applicant now has a daughter living in Australia whom he states will be adversely affected if he is not able to remain in Australia. However, the Minister contends that there is no evidence to suggest that the applicant has the care or guidance of his daughter. The applicant has been in criminal custody and immigration detention for the entirety of his daughter’s life.
37.Furthermore, the applicant has stated that his intention is to leave Australia with his wife and daughter and has in fact contended that he should be allowed to depart with his family to Hong Kong. Likewise the applicant’s wife has echoed this intention to depart with the applicant and the child if the visa is granted.
38.In light of this the Minister submits that this factor does not materially weigh in favour of the applicant, and that little weight should be attached to it.
The Tribunal notes that Mr Lau’s daughter was removed from her mother’s home and placed in foster care due to Mrs Lau’s ill health. She has now been returned to her mother. The Tribunal also notes a written psychological assessment of the child from Dr Phil Watts dated 9 September 2016 (G28 at 146). Relevantly, this report provides:
· There are concerns in relation to the child’s development has and she is a “fairly high need” child.
· Mrs Lau is struggling to cope (mentally and physically) with raising her daughter on her own.
· Without significant support, there is a very real prospect of the child Lau ending up full time in the foster care system.
· Should the child be removed from her mother’s care again, she would have an increased likelihood of psychological damage including personality disorders and mental health issues later in life.
· Having another adult present who can care for the child will significantly lower the risk of her experiencing these problems and help Mrs Lau to function better.
· There is no other family support available in Australia to the mother and child other than Mr LAU.
The Tribunal accepts that Mr Lau wishes to play an active role in his daughter’s life. The Tribunal also accepts that, given her past and current health issues, Mrs Lau needs her husband’s assistance in raising their daughter. Mr Lau claims that he requires two weeks in Australia to assist his wife and child. It is unclear to the Tribunal what, precisely, he hopes to achieve in this short period of time and how his daughter will benefit from this contact or suffer if he does not spend two weeks with her. To date, Mr Lau has had limited meaningful contact with his daughter and it is unclear how two weeks of limited contact will in any way assist the child now or in the future.
In evidence before the Tribunal, Mrs Lau indicated that she will return to Hong Kong with Mr Lau but, in effect, needs two weeks with him in Australia to get everything organised. If Mr Lau is not released into the community Mrs Lau will need to continue to raise her daughter by herself until such time as she can return to Hong Kong. It is clear from the evidence of both Mr Lau and his wife that they wish to reunite sooner rather than later. The Tribunal does not doubt that this will occur if Mr Lau returns to Hong Kong and that, as such, Mr Lau will soon have day to day contact with his daughter, albeit in Hong Kong.
While it is clear that Mrs Lau will struggle to some extent if Mr Lau cannot spend a short period of time with her in Australia and that her daughter may not receive the love of both parents until they are all reunited, it is evident that Mrs Lau will reunite with her husband in Hong Kong, with or without any brief period of assistance from him in Australia. In the circumstances, while Mr and Mrs Lau’s daughter may be denied the support of both parents in the short term, any harm that might arise to the child does not outweigh the risk and associated harm of Mr Lau reoffending if he is granted a visa and released into the Australian community.
(iii)Expectations of the Australian community
In relation to paragraph 11(1)(c) of Direction No 65 (the “expectations of the Australian community”), paragraph 11.3(1) of Direction No 65 provides:
11.3 Expectations of the Australian Community
(1)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 refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
In analysing this third primary consideration, the Tribunal again refers to the stated principles in paragraph 6.3 of Direction No 65 and, in particular, the principles that:
(i)the Australian community expects the Australian Government to cancel the visas of non-citizens who commit serious crimes; and
(ii)non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia.
For reasons that are not entirely clear, this issue was not addressed by Mr Lau in his written submissions to the Department. Nor was it addressed by Mr Lau’s solicitors in a Statement of Facts, Issues and Contentions dated 20 January 2017. Nor was it addressed by his solicitor in oral submissions before the Tribunal.
In relation to this issue, the Minister contended as follows:
39.This primary consideration heavily weighs in favour of refusal. The Direction indicates at paragraph 11.3(2) that visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. It further notes that decision makers should have due regard to the government’s views in this respect.
40.The Minister also notes Principle 6, confirming that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia. The applicant was an unlawful non-citizen at the time that he committed the offences and the Minister contends that the Australian Community would have an even lower tolerance of criminal conduct of a person residing illegally in Australia.
41.The Australian community would expect that the applicant, being a visa applicant who has committed a serious drug related offence with potentially very serious consequences, will be refused a visa.
On the basis of the evidence before it, the Tribunal considers that the Australian community would expect that a non-citizen like Mr Lau who:
·unlawfully remained in Australia after the expiration of his visa;
·was convicted of serious drug trafficking offences while here illegally and who has shown no remorse for his conduct; and
·has few ties in Australia other than a wife and daughter with whom he intends to reunite in Hong Kong
should expect to be denied the privilege of a visa that allows him to remain in Australia
Other considerations
Paragraph 12(1) of Direction No 65 states:
12 Other considerations – visa applicants
(1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a) International non-refoulement obligations;
(b) Impact on family members;
(c) Impact on victims; and
(d) Impact on Australian business interests.
The Minister’s Decision, although not a decision to “cancel” a visa but, rather, a decision to refuse to grant a visa is, in practical terms, akin to a decision to cancel a visa held by Mr Lau. Consequently, the Tribunal considers it appropriate in Mr Lau’s case to take into account other relevant considerations.
In relation to Mr Lau, the only “other consideration” which would appear to be relevant is the impact of the refusal of Mr Lau’s visa his wife and his daughter. This was not in dispute.
In relation to paragraph 12.1(b) of Direction No 65 (i.e. impact on family members), paragraph 12.2 of Direction No 65 provides:
(1)Impact of visa refusal on 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.
The Tribunal’s assessment of any likely impact on Mr Lau’s daughter should Mr Lau be denied a visa are addressed above. Those findings apply equally here.
In relation to any likely impact on Mrs Lau, Mr Lau contended as follows in a submission to the Department (G16 at 67):
25.As [Mrs Lau] underwent surgery in July 2016, she is required to undergo rehabilitation for a period of six months. It is submitted that during this time, it will be beneficial if Mr LAU is able to provide assistance with caring for their daughter.
The Minister contended as follows in a Statement of Facts, Issues and Contentions dated 29 January 2017:
44.Other than the applicant’s daughter ... the applicant’s only family in Australia are his mother and his wife. The applicant’s mother is serving a custodial sentence for drug offences and the applicant’s wife has indicated that it is her intention to relocated to Hong Kong if the applicant’s visa refusal was upheld. As such, the Minister contends that this factor is not sufficiently compelling so as to outweigh the considerations weighing against the granting of the visa.
In relation to this issue, the Tribunal notes the following statement from Mrs Lau dated 20 January 2017 (A2):
In the middle of June 2014, we started to live together. Two months after, I found out was pregnant and we are very excited for the new life. Miserably, on 21 August 2014, Yuk Sing get involved in the crime and arrested in the Hakea prison. Despite of this, it did not stop my love towards Yuk Sing and therefore I decided to marry him on 21 March 2015 while he was in the Young Hill Immigration Detention Centre. On 8 April 2015, our baby girl ... Lau was born. Hopeful to have a new life after he is released.
Devastating impact on our family
Due to the arrest and imprisonment of my husband, and I do not have family in Australia. I started to develop several anxiety and depression, I became tearfulness, irritability and isolate myself with others. Because of my mental health problem, our daughter ... had been temporarily placed with departmental carer from 18 June 2015 to 25 January 2016. ... was reunified with me on 25 January 2016, while the six months supervision order. I am currently as ...'s primary carer, but she still under the spotlight of Department for Child Protection. Any bad things happen to her can be a trigger to cause my daughter to be removed from me again. I will be in distress again.
Devastating of my back condition
My back condition and my husband’s continuing detention are the major problems to deteriorate my mental health. In September 2016, I had to attend a psychological consultation with Dr Phil Watts. The medical report indicated that I was diagnosed with depression, reactive circumstance and borderline personality disorder.
Care for daughter … Lau
Dr Watts also told me that I was physically challenged to solely take care of our daughter which I thought it was true.
The medication that I am currently taking includes heavy duty sleeping tablets I worried what if our baby daughter could not wake me up at night time. In the future if she remove again from me, there is a significantly increased likelihood of psychological damage to her later in life and without a significant support for me, there is a very high prospect that our daughter would be taken in the foster care permanently.
Based on the reasons stated above, I really need a person to provide substantive support and daily care to our daughter ..., and this person could not be anyone better than Yuk Sing as a father. I understood he was applying a bridging visa E in order to ask for a few days to stay with us as a whole family before leaving Australia. We thought it might be the best option. We could meet in Hong Kong for a certain period so that we could look after ... together. He could offer no help for me and ... where he continuously stays in detention. So if he goes to Hong Kong, I could join him and look after ... together.
[sic]
In evidence before the Tribunal, Mrs Lau presented as a good mother, wanting only the very best for her daughter and, indeed, her husband. Her testimony was entirely credible. Mrs Lau indicated that she will return to Hong Kong with her husband and will take her child with her. She explained that she is suffering from post natal depression, is medicated and has struggled a great deal emotionally since the birth of her daughter. She has also had surgery for a serious back issue and is medicated for her pain in that regard (G29 at 153). Despite this, she perseveres and dedicates herself to the wellbeing of her family. She has little community support in Australia as her husband has been either in detention or prison and his stepfather and half-brother live in Hong Kong.
As outlined in detail above in relation to the likely disadvantage to Mrs Lau’s daughter should Mr Lau not be permitted to spend a few weeks in Australia before returning to Hong Kong, Mrs Lau has indicated that she will move to Hong Kong with her husband regardless of whether he is entitled to spend a few weeks in Australia with her. As is the case with her daughter, while Mrs Lau may suffer some short-term disadvantage until she is able to reunite with her husband because she will continue to be without some support from him until they are reunited, it is clear that the family will ultimately reunite, and sooner rather than later. In the circumstances, although there may be short term disadvantage, this is not sufficiently compelling to outweigh those primary considerations that weigh against the granting of Mr Lau’s visa.
CONCLUSION
Mr Lau has a “substantial criminal record” as that term is defined in s 501(7)(c) of the Migration Act because he was convicted to 16 months imprisonment in 2015 for possession of methylamphetamine and possession of stolen or unlawfully obtained property.
In the circumstances, Mr Lau does not satisfy the “character test” as that term is defined in s 501(6) of the Migration Act.
In determining whether there is any reason why Mr Lau’s application for a Bridging E (Class WE) (Subclass 050) visa should not be granted, the Tribunal has attached significant weight to the fact that Mr Lau’s crimes were serious in nature. In so finding, the Tribunal has taken account the fact that despite being a first time offender, Mr Lau was given a custodial sentence of 16 months. This is significant.
There remains an unacceptable risk that Mr Lau may engage in further criminal conduct if he remains in Australia and that the Australian community will, as a consequence, be at risk of harm. In making this assessment the Tribunal has considered the nature of the harm to individuals or the Australian community should Mr Lau engage in further criminal or other serious conduct and the likelihood of further criminal or other serious conduct, taking into account information and evidence on the risk of Mr Lau re-offending. Importantly, the Tribunal notes that Mr Lau committed these crimes while a non-citizen, continues to blame others for his conduct and has expressed no remorse for drug trafficking behaviour that cannot be condoned. In the circumstances, there is an ongoing risk of reoffending and, as such, an unacceptable risk to the safety of the Australian community.
There are some considerations that weigh in favour of Mr Lau. These include the short term disadvantage that may result to his daughter and wife should his visa be denied. These considerations are, however, on balance, outweighed by the primary considerations considered above, which should generally be given more weight.
Overall, having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No 65, and the evidence before the Tribunal, the correct and preferable decision is to refuse Mr Lau’s visa.
DECISION
For the above reasons, the decision under review is affirmed.
I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.
......................[sgd]..................................................
Administrative Assistant
Dated: 10 February 2017
Date of hearing: 6 February 2017 Representative of the Applicant: Ying Zhang Solicitors for the Applicant: Ren Zhou Lawyers Representative of the Respondent: Mr A Burgess Solicitors for the Respondent: Sparke Helmore
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