Li and Minister for Immigration and Border Protection (Migration)

Li and Minister for Immigration and Border Protection (Migration) [2018] AATA 1831 (15 June 2018)
Division:GENERAL DIVISION
File Number: 2017/5464
Re:Jin Li
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Member L M Gallagher
Date:15 June 2018
Place:Perth

The decision under review is affirmed.
.....[sgd]...................................................................
Member L M Gallagher
CATCHWORDS
IMMIGRATION – Visitor (Class FA) visa – whether discretion to refuse visa should be exercised pursuant to s 501(1) of the Migration Act 1958 (Cth) – character test – offence involving misappropriation of public funds – crime of embezzlement – Direction No. 65 – primary and other relevant considerations – protection of the Australian community from criminal or other serious conduct – nature and seriousness of the conduct – risk to the Australian community should further offences be committed - best interests of minor children – expectations of the Australian community – other relevant considerations – impact on family members – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 499(1), ss 499(2A), ss 500(1)(b), ss 501(1), ss 501(6), ss 501(6)(a), ss 501(7), ss 501(7)(c)
SECONDARY MATERIALS
Minister for Immigration and Border Protection, Direction No. 65 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA (22 December 2014) – paragraphs 6.1, 6.2, 6.3, 7(1), 8(1), 8(4), 8(5), 11(1), 11(1)(a), 11(1)(b), 11(1)(c), 11.1, 11.1(1)(b), 11.1.1, 11.1.1(d), 11.1.1(e), 11.1.1(i), 11.1.1(h), 11.1.2, 11.1.2(3)(a), 11.1.2(3)(b), 11.2(4), 11.3(1), 12(1), 12.2, 12.2(1)
REASONS FOR DECISION
Member L M Gallagher
15 June 2018
INTRODUCTION

This is an application lodged under s 500(1)(b) of the Migration Act 1958 (Cth) (the “Migration Act”) seeking review of a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) dated 14 August 2017 to refuse Mrs Huiyuan Liu’s application for a Visitor (Class FA) visa (“the visa”). Relevantly, the delegate found that Mrs Liu had been sentenced to a term of imprisonment of 12 months or more and hence had a substantial criminal record as per s 501(7)(c) of the Migration Act. Therefore, Mrs Liu had not satisfied the delegate that she had passed the “character test” by virtue of s 501(6)(a) of the Migration Act.
Having found that Mrs Liu had not satisfied the character test, the delegate considered whether to exercise their discretion to refuse Mrs Liu the visa as per the requirements of Ministerial Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA (“Direction No. 65”). The delegate refused to grant Mrs Liu the visa. Mrs Jin Li (Mrs Liu’s daughter) now seeks a review of that decision.
BACKGROUND FACTS AND PROCEDURAL HISTORY
Mrs Liu is a citizen of China (T3, page 127).
On 16 October 2003, Mrs Liu was convicted of embezzlement in the Liaoning Province Liaoyang City Intermediate People’s Court (“the Court”), relating to offending conduct that took place in 1997 and 1998 (T2, pages 49, 50 and 53). Mrs Liu was sentenced to 15 years imprisonment (T2, page 53). Mrs Liu served her prison sentence and was released on 3 March 2012 (T3, page 135).
On 20 June 2016, Mrs Liu applied for the visa (T2, pages 22 to 38 and T5, pages 230 to 246), stating that she wanted to visit Australia “to visit my daughter and her family, especially [my grandchild]” (T2, page 27 and T5, page 235). In the “Character details” section of her visa application, Mrs Liu answered “No” to the question “Have you ever been convicted of an offence in any country (including any conviction which is now removed from official records?” (T2, page 29 and T5, page 237). In the “Employment status” section of her visa application, she stated that she was unemployed and had “no employment history” (T2, page 30 and T5, page 238).
By application dated 11 September 2017, Mrs Li applied to the General Division of the Administrative Appeals Tribunal (this “Tribunal”) for review of the delegate’s visa refusal decision dated 14 August 2017.
ISSUES
The issues for determination by the Tribunal are:
(a)whether Mrs Liu passes the “character test” as that term is used in s 501(6) of the Migration Act; and if not
(b)whether Mrs Liu’s visa should be refused, taking into account the relevant considerations in Part B of Direction No. 65.
EVIDENCE
This matter was heard in Perth on 17 April 2018. Mrs Li appeared in person and was represented by her husband, Mr Michael Stone. The Minister was represented by Mr Arran Gerrard of the Australian Government Solicitor.
The evidence before the Tribunal consisted of:
·the Applicant’s submissions with attachments filed on 18 September 2017 (“A1”);
·a 303 page set of T-documents (T1 to T11) (“R1”); and
·the Respondent’s Statement of Facts and Contentions dated 19 February 2018 (“R2”).
The Tribunal also heard oral evidence from Mrs Li and Mr Stone (both in person) and from Mrs Liu (by telephone) with the assistance of a Mandarin interpreter.
Although Mrs Liu did not provide the Tribunal with a written witness statement in support of Mrs Li’s application, the Tribunal has noted and treated as Mrs Liu’s written evidence the following documents that appear in the T documents:
·the undated personal statement of Mrs Liu (translated) (T2, page 64 and T5, page 268); and
·Mrs Liu’s personal circumstances form dated 23 April 2017 (T2, pages 65 to 75 and T7, pages 273 to 283).
The Tribunal has reviewed all of the evidence before it and refers to all relevant materials below.
CONSIDERATION
Whether Mrs Liu passes the character test
The Tribunal must first consider whether Mrs Liu passes the “character test” as that term is defined in s 501(6) of the Migration Act.
Pursuant to s 501(1) of the Migration Act, the Minister (and the Tribunal standing in the Minister’s shoes) may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
The Minister’s power in s 501(1) of the Migration Act is discretionary. The “character test” is defined in s 501(6) of the Migration Act.
Subsection 501(6)(a) of the Migration Act provides that a person does not pass the “character test” if the person has a substantial criminal record (as defined by subsection 501(7)).
Subsection 501(7)(c) of the Migration Act relevantly provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
As noted at paragraph 4 above, on 16 October 2003, Mrs Liu was convicted of embezzlement and sentenced to 15 years imprisonment.
As a consequence of receiving a sentence in excess of 12 months, Mrs Liu is deemed to have a substantial criminal record and does not pass the “character test” set out in s 501(6)(a) of the Migration Act. Mr Stone did not assert otherwise before this Tribunal.
Accordingly, and on the evidence before it, the Tribunal finds that Mrs Liu does not pass the “character test” as that term is defined in the Migration Act.
Whether the Tribunal should exercise its discretion and refuse Mrs Liu a Visitor (Class FA) visa
Having determined that Mrs Liu does not pass the “character test” because she has a substantial criminal record as defined by s 501(7) of the Migration Act, the Tribunal must now determine whether to exercise the discretion granted to it to refuse Mrs Liu’s visa. In doing so, the Tribunal must direct its attention to the guidance provided in Direction No. 65.
On 22 December 2014, the Minister, in accordance with its powers under s 499(1) of the Migration Act, issued Direction No. 65. Direction No. 65 commenced on 22 December 2014 and is binding on all decision-makers from that date (s 499(2A) of the Migration Act). It provides guidance to the Tribunal on the application of the “character test” and the exercise of its discretion. Relevantly, the Preamble to Direction No. 65 (at paragraph 6) 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.
(3)…
(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 refuse 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.
(2)…
(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
(1)…
(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 a 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.
(6)…
(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.
[Emphasis added]
Subparagraph 7(1) of Direction No. 65 provides guidance as to how this discretion is to be exercised. It provides:
7. How to exercise the discretion
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account considerations in Part A and 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; …
Subparagraphs 8(1), 8(4) and 8(5) of Direction No. 65 respectively state:
8. Taking the relevant considerations into account
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case…
…
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
In relation to Mrs Liu’s visa application, Part B of Direction No. 65 sets out the considerations that are relevant in deciding whether to refuse a non-citizen’s visa. These considerations are addressed below.
Primary considerations
Subparagraph 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 Mrs Liu below.
(i) Protection of the Australian community from criminal or other serious conduct
In relation to subparagraph 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 principles 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 the nature and seriousness of the non-citizen’s conduct to date, paragraph 11.1.1 of Direction No. 65 relevantly provides:
11.1.1The 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:
…
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;
…
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 the nature and seriousness of Mrs Liu’s criminal conduct, the Tribunal notes Mrs Li’s written submissions as follows (A1, page 2):
7.The Review Applicant submits that the Minister did not adequately consider the harshness of the sentence that the Liaoning Province Liaoyang City Intermediate People’s Court handed down to Mrs Liu for her crime, nor did the Minister consider the differences in sentencing between Australian and Chinese Courts. The Minster [sic] focused exclusively on the sentence of 15 years imprisonment from the Liaoning Province Liaoyang City Intermediate People’s Court as an indication of the seriousness of the offence.
In relation to the nature and seriousness of Mrs Liu’s criminal conduct, the Tribunal also notes submissions made on behalf of the Minister in its Statement of Facts and Contentions (R2):
19.The judgment of the Liaoning Court reveals that Mrs Liu was formerly the Vice President of the Laioyang sub-branch of the China Construction Bank and the Director of International Business Department of that branch. The applicant’s[1] conviction relates to 2 occasions where Mrs Liu used her position to assist her co-offender to borrow significant sums of money. Her co-offender had previously assisted Mrs Liu’s daughter by providing affidavits of financial support. The 2 occasions are:
·In 1997 Mrs Liu misappropriated 2 million yuan from the Fourth Northeast Electric Power Engineering Co. Ltd and gave the money to her co-offender;
·In 1998 Mrs Liu misappropriated 5 million yuan from the Fourth Northeast Electric Power Engineering Co. Ltd and gave the money to her co-offender
20.The respondent contends that the misappropriation of public funds is clearly a serious offence of the type identified in Direction No. 65… Furthermore, this was not an isolated incident but rather the conviction is the result of two separate incidents, committed a year apart.
21.The Tribunal is also required to take into account the sentence imposed for a crime or crimes. The sentence of 15 years is self-evidently a very lengthy sentence and the respondent contends that this factor weighs heavily in favour of visa refusal.
…
23.Taking into account the nature of the offence, the significant length of the sentence, together with the general Guidance and Principles set out in Direction No. 65, it is the respondent’s contention that the offence committed by the visa applicant weighs in favour of a refusal and does so to a significant degree.
[1] The Tribunal understands this to be referring to Mrs Liu, the visa applicant, rather than Mrs Li, the applicant in the present Tribunal application.
In determining whether Mrs Liu’s conduct should be viewed as “serious,” the Tribunal places considerable weight on the criminal judgment of the Court dated 16 October 2003 (T2, pages 47 to 53).
In this regard, the Tribunal notes (in relation to Mrs Liu’s commission of embezzlement stemming from her offending conduct in 1997 and 1998) the following comments of the Court in that judgment, as translated (T2, pages 52 and 53):
…the testimony of the witness…can testify that it is [Mrs Liu’s co-offender] who let [a witness] handle the procedures of making [sic] affidavit of financial support for the going abroad of the daughter of the defendant, [Mrs Liu] by Liaoning Taixin Group Co., Ltd., that is to say that the testimony testifies the fact that the embezzlement of the public fund [sic] by the defendant [Mrs Liu], was made for making personal benefits for the defendant [Mrs Liu], and the conducts [sic] of [Mrs Liu] are in accordance with the essential conditions of constituting the crime of embezzlement; the confession of [Mrs Liu’s co-offender], the testimonies of the witnesses…and the documentary evidence…can all testify that [Mrs Liu] transferred the public fund [sic] of Fourth Northeast Electric Company into the account of Taixin Group under the request of [Mrs Liu’s co-offender], and after the money was transferred…the accountant…under the instigation of [Mrs Liu’s co-offender] withdrew the money more than once within a short period of time and gave the withdrawn money to [Mrs Liu’s co-offender] instead of crediting the money into the financial account…and [Mrs Liu’s co-offender] used most of the money for personal use or for repaying the former debts…

At the hearing, Mrs Liu gave the following oral evidence regarding her conduct, including during cross-examination by Mr Gerrard:
(a)In 1997 and 1998, she was the Vice President of a branch of the China Construction Bank, a position she had held for more than ten years and had also held the position of Director of International Business Development for about one year. At that time (in 1997/1998), she had worked at the bank for more than 20 years;
(b)As to the matters that occurred in 1997 and 1998 (leading to her conviction), as she said in her statement (referring to T2, page 64 and T5, page 268) she accepted responsibility for what she did;
(c)When she was initially before the Courts, she “didn’t plead guilty” and appealed. As to whether she accepts her guilt now, Mrs Liu said she “now knows she needs to take responsibility”;
(d)Mrs Liu said that she “stayed in prison” for four years before she was sentenced (in 2003) and developed psychological issues in that time. Mrs Liu said that she “was told to take responsibility” (for her actions and plead guilty) and did not know at the time that she was going to be given a life sentence (in prison);
(e)Having read the judgment of the Court (T2, pages 47 to 53), she accepts the judgment;
(f)As to whether she had asked her co-offender, who was the Chairman of the Liaoning Taixin Group, to provide an affidavit of financial support for her daughter, Mrs Li, Mrs Liu answered “no” and added that her co-offender was just a client of her bank;
(g)As to it having been one of the Court’s findings that she had asked her co-offender for an affidavit of financial support for her daughter (refer to paragraph 35 above and to T2, page 50), Mrs Liu said that it wasn’t written like that in the judgment, and “she didn’t ask for this,” rather she had asked her co-offender to “sponsor her (daughter’s) character” as her daughter was going overseas;
(h)As to whether her co-offender had asked to borrow the two million yuan, Mrs Liu said “yes”; and
(i)Mrs Liu was then taken to the following extract from the Court’s judgment, as translated (T2, pages 50):
3. The testimony of the witness…testifies that the defendant, [Mrs Liu] lied that she wanted to expand the amounts of funds deposited for the International Business Department of China Construction Bank Liaoning Branch and asked Fourth Northeast Electric Company to deposit money twice with the deposit amounts of 2 million yuan and 5 million yuan respectively, and afterwards [the witness] knew the fact that the deposit of 5 million yuan was used for other purposes.
As to whether Mrs Liu accepts that the matters referred to in the extract above reflect what occurred, Mrs Liu said that she didn’t lie, that she had borrowed the money because she had good credibility (and hence was able to do so), the director of that company had moved to South China and she needed to ensure his promotion could go smoothly and not be affected.
When Mr Gerrard put it to Mrs Liu that she had said earlier that she accepted the Court’s findings (refer to subparagraph 36(e) above), but now it appeared that she disagreed with two of the Court’s findings (referring to subparagraphs 36(g) and 36(i) above), Mrs Liu said that she “has to accept the case”, that she “understands” the judgment, “does not need to” read it anymore and “has to take responsibilities [sic]”.
Mr Gerrard directed Mrs Liu to her undated personal statement, the translation of which states (T2, page 64):
My crime was due to acting as guarantor on a comercial [sic] loan to one of the company (my client) who defaulted on the loan and i [sic] was held responsible as such an act is illegal. Since my release in 2012 I have been a housewife and have not been employed since.
Yours truly,
Liu, Huiyan
When asked if the content of her statement above reflected the extent of her wrongdoing, Mrs Liu answered “yes.”
As to her personal circumstances form dated 23 April 2017 (T2, pages 65 to 75 and T7, pages 273 to 283), Mrs Liu said that her daughter had written some of that statement.
Mr Gerrard referred Mrs Liu to the following extract from her personal circumstances form dated 23 April 2017 (T2, page 72):
I have accepted responsibility for what I did when I was working a local vice president of the China Construction Bank. The sentence of 15 years I received for my offence was severe and I served the entire sentence handed down by the court. I have had many years to think about what happened.
At the time, I was trying to help someone who I thought I could trust and who [sic] I considered a friend; however, I should not have use [sic] my position and power to help him. The business culture in China is very different to that in Australia and my personal friendship clouded my judgement [sic].
When asked whether she agreed with the content of this extract Mrs Liu answered “yes” and said that she was just trying to help someone. When asked what she meant by the business culture in China being very different, Mrs Liu said that in her opinion, especially now, Australians are very honest and Chinese are not very honest. Mrs Liu said that she had been a good friend to her co-offender and she was tricked by him.
When asked by Mrs Li, Mrs Liu said that the 5 million yuan that she misappropriated had been repaid, however the 2 million yuan that she misappropriated had not been repaid.
Mr Gerrard submitted further at hearing that whether the Tribunal considers the 15 year sentence that applied to Mrs Liu, or, generally speaking and approximately, the seven to ten year sentence that Mrs Liu’s offending conduct may have attracted in Australia, the Tribunal ought to be more concerned with the serious nature of the offending conduct and Mrs Liu’s non-acceptance of her role in her offence.
At hearing, Mrs Li submitted that:
(a)while the offending conduct took place on two occasions (in 1997 and 1998), there was “only one offence”;
(b)the Respondent’s submissions (referring to the two bullet points in paragraph 19 as extracted at paragraph 33 above) “make it look like two” (offences);
(c)“lots of harsh words were being used” about Mrs Liu “misappropriating public funds”;
(d)it was common for someone in Mrs Liu’s position to commit such a crime;
(e)while Mrs Liu “does not fully agree with the Court’s findings,” especially the nature of the offence, Mrs Liu does accept that “it went wrong”;
(f)while there were instances of “bad judgment” on Mrs Liu’s part, Mrs Li does not believe her mother committed fraud; and
(g)Mrs Liu “took full responsibility to protect some people” and is remorseful “as the trust relationship [between herself and her co-offender] broke down”. Mrs Liu “probably wouldn’t do it again” as she “had been deceived.”
In considering the nature and seriousness of Mrs Liu’s offence, which carried a 15 year sentence in China and which the Tribunal accepts would be classified as an offence in Australia, it is an offence which is viewed seriously, which is reflected in subparagraphs 11.1.1(d), 11.1.1(e) and 11.1.1(i) of Direction No. 65. The Tribunal has also had regard to the facts that Mrs Liu has no other record of offending and that she did not disclose her offence on her visa application form (refer to subparagraph 11.1.1(h) of Direction No. 65 and paragraph 5 above) or the details of the employment to which the offending was related (refer to paragraph 5 above).
The Tribunal notes Mrs Liu’s oral evidence regarding her conduct that:
(a)while she takes full responsibility for her actions, her remorse surrounds the breakdown of her relationship with her co-offender, whose reputation she was trying to protect, rather than showing remorse over her offending conduct and its related consequences;
(b)Mrs Liu’s belief, which she still holds after serving 15 years in prison and after having had the Court’s findings brought to her attention in this Tribunal, is that she was deceived by her co-offender, she didn’t lie and that she had never asked him for an affidavit of financial support for her daughter;
(c)her personal statement (T2, page 64) regarding her having acted as guarantor on a commercial loan, captures the extent of her wrongdoing; and
(d)after four years in prison, she changed her plea from “not guilty” to “guilty” because someone else had told her to take responsibility.
With respect, Mrs Liu’s evidence summarised at paragraph 45 above does little to lessen the seriousness of her offence. Mrs Liu’s evidence does, however, in the Tribunal’s view, raise significant concerns about:
(a)whether Mrs Liu is indeed remorseful for what happened (in the sense of the Court’s findings as to what happened, as opposed to her perception of her conduct) or whether she continues to blame others for her conduct and for “deceiving” her;
(b)Mrs Liu’s acknowledgement of her error in judgment, which from her evidence appears to relate to her error in placing her trust in her co-offender, rather than her error in committing the offence;
(c)Mrs Liu’s failure, even now, to accept critical findings of the Court’s judgment regarding her conduct; and
(d)Mrs Liu’s willingness to misuse her position of trust and authority to deceive in order to gain a personal benefit (being the affidavit of financial support for her daughter).
Applying the principles of subparagraphs 11.1.1, 6.3(2) and 6.3(3) of Direction No. 65, the Tribunal finds that, viewed objectively, Mrs Liu’s offence is indeed serious and of considerable concern. Mrs Liu’s sentence, as noted by the Court, reflects the need to protect against the violation of public and private property (T2, page 53) and in the Tribunal’s view, the protection of the wider community. Mrs Liu’s offending conduct and her evidence regarding her conduct before this Tribunal reflects a disregard for the law and a lack of culpability that cannot be excused. In the circumstances of the matter, Mrs Liu’s offence weighs heavily in favour of refusing the visa.
(b) The risk to the Australian community should further offences be committed
Paragraph 11.1.2 of Direction No. 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether Mrs Liu represents an unacceptable risk of harm to the Australian community (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:
11.1.2 The 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.
[Emphasis added]
Mrs Li made the following written submissions regarding the risk of Mrs Liu re-offending (A1, pages 1 and 2):
5.The Minister decided that there was an ongoing risk, albeit a low risk, of Mrs Liu reoffending, and that members of the Australian community could be placed at risk and suffer financial loss.
6.The Review Applicant submits that the Minister has incorrectly assessed the risk to the Australia [sic] community. The Review Applicant submits that any risk should be considered negligible for [sic] following reasons:
a)Mrs Liu applied for a visitor visa, and as such will only be in Australia for a limited period of time.
b)Mrs Liu will be visiting Australia to spend time with her [grandchild]. However, she will primarily be providing care to her daughter and will have limited interaction with the Australian community during her stay;
c)Mrs Liu does not speak English and relies exclusively on her daughter for all communications;
d)Mrs Liu has no friends or relatives residing in Australia, except her daughter, son-in-law and [grandchild];
e)Mrs Liu is retired and has no business dealings in China or Australia;
f)A significant amount of time has passed since Mrs Lui’s offence; and
g)Mrs Lui has not reoffended since her release.
In relation to the risk of Mrs Liu re-offending, the Minister contended as follows in its Statement of Facts and Contentions (R2):
(a) Nature of the harm if further criminal conduct
25.The nature of the harm to the community should the applicant again commit fraudulent and deceitful offences means that the community should not be expected to tolerate a risk of such offences being repeated.
(b) Likelihood of further criminal conduct
26.The respondent concedes that the visa applicant’s offences were committed some time ago. Nevertheless, the visa applicant has spent the majority of that time incarcerated. The respondent contends that in the context of a 15 year prison sentence which only expired in 2012, and in the absence of any objective evidence of rehabilitation, there is no objective reassurance that similar offences of a fraudulent or deceptive nature will not be committed.
27.Significantly, there is no objective evidence of rehabilitation of the kind referred to in paragraph 11.1.2(3) of the Direction. Given the applicant’s offending involved a significant act of a fraudulent and deceptive nature, the absence of any objective reassurance that the community is not still at risk is, in the respondent’s contention, a matter which should be given considerable weight.
28.Given the nature of the applicant’s principal offending, the respondent is also concerned that the failure [sic] disclose her convictions is demonstrative of a continuing proclivity to mislead authorities.
29.Given the nature of the offending and the absence of any objective assessment of rehabilitation, the respondent contends that the Australian community should not be expected to tolerate a risk of recidivism: see paragraph 6.3(3) and 11.1.1(1)(a) and (b) of Direction No. 65.
30.The respondent contends that this primary consideration should weigh in favour of refusal.
The Tribunal notes that in her personal circumstances form, Mrs Liu states (T2, pages 72 and 75):
Since my release from prison I have been living a quiet life. I have been trying to readjust after being away for so long. I am retired and at my age with a criminal record their [sic] are no work opportunities for me.
I do not consider [sic] to be a risk to the Australian community and will not re-offend…
…During my time in Prison [sic] I undertook rehabilitation and reform programs. The prison system does not provide any course certificates…
…I served my sentence and I have been rehabilitated…
At the hearing, Mrs Liu gave evidence that since her release from prison she does house chores, exercises and goes to church, the church being the extent of her involvement with the community. Mrs Liu said that she is no longer able to be employed in a “state position.”
Mr Gerrard submitted at hearing that while Mrs Liu’s offence took place many years ago, she has spent a significant amount of that time in jail and hence an insufficient period of time has passed during which to assess Mrs Liu’s rehabilitation in the open community. Mr Gerrard submitted that while Mrs Liu is no longer in a position to commit the same crime, it does not mean she would not commit a further offence or engage in other serious conduct.
At the hearing, Mrs Li did not make any further submissions regarding the risk to the Australian community should further offences be committed. Mr Stone submitted on behalf of Mrs Li that the offence happened 15 years ago, it had been five to six years since Mrs Liu had been released from jail and that Mrs Liu had been trying to integrate back into society and rebuild her relationships. Mr Stone then asked the Tribunal to take into account Mrs Liu’s age in that she may not have another 15 years (of her life left) if she needs to have been in the open community for a period of time comparable to her prison sentence before an assessment can be made regarding her risk of reoffending.
In considering the risk of harm to the Australian community, the Tribunal must have regard to the nature of the harm to individuals or the community should Mrs Liu engage in further criminal or other serious conduct and the likelihood of Mrs Liu engaging in further criminal or other serious conduct. In doing so, the Tribunal also has regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants.
Mrs Liu states that her crime was due to acting as a guarantor on a commercial loan to her co-offender who defaulted on the loan and she was held responsible (T2, page 64). Mrs Liu gave oral evidence to this Tribunal that this was the extent of her wrongdoing (refer to paragraph 38 above). The details of Mrs Liu’s offending in the positions of trust and authority she held at the relevant times provided in the Court’s judgment (T2, pages 47 to 53) are summarised at paragraph 33 above (in paragraph 19 of the Respondent’s Statement of Facts and Contentions (R2)) and are of a markedly different nature. The Tribunal considers that should Mrs Liu engage in further conduct of this nature, the harm to individuals or the Australian community would be significant and the Australian community at large should not be expected to tolerate such a risk of this occurring.
The Tribunal reiterates its concerns regarding the genuineness of Mrs Lui’s remorse (set out at subparagraphs 46(a) to 46(d) (inclusive)) and is unconvinced that Mrs Liu fully appreciates her active role in the commission of her offence, the misuse of her position of trust and authority in committing it, the seriousness of the conduct itself, the impact of her conduct on individuals and the wider community and that no other person was to blame. In the Tribunal’s view, this lack of appreciation and lack of understanding on Mrs Liu’s part raises further concerns about the chances of her reoffending in the future, notwithstanding Mrs Li’s written submissions in subparagraphs 6(a), 6(b) and 6(c) of A1 (extracted at paragraph 50 above).

In relation to rehabilitation, there is no objective evidence before the Tribunal that Mrs Liu has undertaken any rehabilitation programs in prison or since her release, or of Mrs Liu’s participation in and completion of them (whether that evidence is in the form of certification or other evidence of the nature of those programs). There is also no information or evidence from any independent or authoritative sources on the likelihood of Mrs Liu reoffending. The only submission made on this point on behalf of Mrs Liu is Mrs Li’s submission to this Tribunal that Mrs Liu “probably wouldn’t do it again” (refer to subparagraph 43(g) above)[2].
[2] The Tribunal emphasizes that this is Mrs Li’s submission on the matter rather than Mrs Liu’s written or oral evidence on this point, which of itself would have been subjective evidence in any event had it been provided.
The Tribunal has also taken into account the relatively short duration of Mrs Liu’s intended stay in Australia and while the Tribunal acknowledges Mrs Liu’s age, nothing turns on this in terms of the Tribunal’s assessment of Mrs Liu’s risk of re-offending.
In considering the risk of Mrs Liu re-offending, the Tribunal has considered the matters raised in paragraphs 50 to 60 (inclusive) in the context of Mrs Liu’s stated purpose that her intended stay is to spend time with her grandchild, to provide care to Mrs Li (who suffers from a serious medical condition) and visit her son-in-law. The Tribunal notes that the visa is a visitor visa. While the Tribunal acknowledges Mrs Li’s medical condition (of which the attachments to A1 provide the necessary supporting medical evidence) and the genuineness of her desire to have her mother provide care to her during this time, the Tribunal considers it has not been presented with any evidence of the kind that there are also strong or compassionate reasons for setting aside the decision to refuse to grant the visa (for example, that another family member is not in a position to provide that care).
Having considered the evidence before it against the relevant principles, the Tribunal considers there is nothing to objectively demonstrate that Mrs Liu would not engage in serious criminal conduct if she was placed in a similar situation again. The Tribunal does acknowledge the limited likelihood of Mrs Liu finding herself in a similar situation in Australia, however the principle at paragraph 11.1(1)(b) of Direction No. 65 does not require that the risk be in relation to the non-citizen committing the same criminal conduct, only that it be in relation to further offences or other serious conduct (refer also to subparagraphs 11.1.2(3)(a) and 11.1.2(3)(b) of Direction No. 65 in this regard).
Overall, the Tribunal finds that there is a low risk that Mrs Liu will re-offend if the decision to refuse to grant her the visa was set aside. Given the serious nature of Mrs Liu’s offence and, in the Tribunal’s view, her failure to appreciate this, the Tribunal finds that any risk of Mrs Liu re-offending is unacceptable in all of the circumstances of the case. This weighs in favour of refusing Mrs Liu the visa.
(ii) The best interests of minor children
Mrs Liu has a minor grandchild living in Australia (“the minor child”), being the child of Mr Stone and Mrs Li.
The second primary consideration listed in subparagraph 11(1)(b) of Direction No. 65 asks the Tribunal to examine the best interests of any minor children in Australia affected by the decision to refuse a visa.
Paragraph 11.2(4) of Direction No. 65 sets out the factors the Tribunal must consider in considering the best interests of the child. They are (relevantly and for present purposes):
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)…
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;
[Emphasis added]
In relation to the best interests of the minor child, Mrs Li’s written submissions are (A1, page 2):
9.The Applicant submits that the Minister has not adequately considered the best interests of the minor child in Australia. The Applicant submits that there is [sic] significant amount of research which has shown that contact with grandparents is essential and influences the long-term emotional well-being and development of grandchildren. Consequently, the refusal to grant a visa to Mrs Liu would have a greater impact on the child than the Minister realises.
The Tribunal also notes the following from the Respondent’s Statement of Facts and Contentions regarding the best interests of the minor child (R2):
32.The visa applicant raises the interests of her grandchild as a matter which the Tribunal ought to take into consideration. In general terms, the respondent concedes that the best interests of the grandchild would lay [sic] in a visa not being refused to the visa applicant. Nevertheless, having regard to the factors identified in paragraph 11.2(4) and the short nature of the intended visit, the respondent contends that this factor should not be afforded significant weight.
In her personal circumstances form, Mrs Liu made the following comments regarding her relationship with the minor child and the impact the refusal of her visa had had on that child (T2, page 70):
When my [grandchild] was 3 months old [my grandchild] and my daughter visited me in China while she was on maternity leave. the [sic] few months that [my grandchild] stayed with us were the happiest days I have had in a very long time. [My grandchild] is the little sunshine in my life. I video call my daughter’s family every night before [my grandchild] goes to bed and my daughter sends me pictures and updates almost every day. It’s been over a year since I last saw my [grandchild] and [my grandchild] has changed so much in that time. Even though I call [my grandchild] every day, I feel [my grandchild] doesn’t recognise me. I don’t want to be left out of [my grandchild’s] life while [my grandchild] is growing up in Australia…
If my visa is refused I won’t be able to visit and be a part of my [grandchild’s] daily life. I want to play with my [grandchild] in the park, see [my grandchild] go to school and be there for the important times in [my grandchild’s] life (if I can live that long).
[My grandchild] is in day care for most of the week and I would like to spend some time taking care of [my grandchild] during my visit to Australia.
My daughter and her husband both have very busy jobs and they can’t fly to China every year. If I can’t get a visa I will have to wait until they have the time and money to visit me in China.
At hearing, Mrs Liu gave the following evidence regarding her minor grandchild:
(a)Mrs Li, Mr Stone and their minor child (her grandchild) had visited her in China on two occasions, for “a little bit more than two months” on the first occasion and for “about twenty days” on the second occasion;
(b)she has a “video call” with her grandchild every night before her grandchild goes to bed;
(c)whenever her grandchild is mentioned she wants to cry; and
(d)she would really love to come to Australia to spend time with her grandchild, she really misses her grandchild and really wants to see her grandchild.
Mrs Li gave oral evidence that she makes video calls to her mother every night, so that her mother can see her grandchild, however given the minor child’s young age, the minor child doesn’t really talk to her. Mrs Li said that her minor child would be starting school in a couple of years, therefore it would not be feasible for the minor child to spend more time in China as the minor child gets older. Mrs Li said that if the visa were granted (i.e. if the decision to refuse to grant Mrs Liu the visa was set aside), they would plan for her mother to visit more regularly, however there was no plan for Mrs Liu to become a permanent Australian resident.
Mrs Li also said that she would like for her minor child to have a cultural bond with the minor child’s grandparents (in Australia) and to experience their Chinese influence and for her minor child to pick up the Chinese language from conversations with her mother.
At the hearing, Mr Stone said that the best interests of his minor child lay with the child having a relationship with Mrs Liu, not just receiving brief assistance from her (Mrs Liu).
At hearing, Mr Gerrard submitted that while the best interests of the minor child lay in the visa not being refused, Mr Gerrard noted that the minor child has significant parental support, and that any assistance provided by Mrs Liu during a brief period would not be considerable. Mr Gerrard also submitted that Mrs Li’s plans for more regular visits from her mother were speculative and insignificant in the context of a single “three month visa” as each visa application would need to be determined in its own right.
The Tribunal accepts that Mrs Liu, Mrs Li and Mr Stone all genuinely intend for Mrs Liu to be a positive role model for the minor child and that the minor child, as with any grandchild interacting with their grandparent, would benefit from personal interaction with Mrs Liu. In considering the best interests of the minor child, however, the Tribunal must have regard to the factors identified in paragraph 11.2(4) of Direction No. 65. In doing so, the Tribunal has taken into account that Mrs Li and Mr Stone already fulfil a parental role in relation to the child, that the minor child has met Mrs Liu on two occasions, with extended periods of absence in between and that Mrs Liu and the minor child do communicate daily via video calls (although the Tribunal queries the meaningfulness of these communications given the child’s young age).
In considering this factor, the Tribunal also notes that it has not been presented with any evidence nor has it heard any submissions regarding the minor child suffering to any extent if Mrs Liu is unable to visit Australia and there is no evidence that the minor child will be unable to maintain contact with Mrs Liu in other ways, including the daily video calls that the Tribunal understands are already in place. The Tribunal has not been presented with any evidence that Mr Stone and Mrs Li are unable to fulfil their necessary parenting duties.
Overall, considering the evidence and submissions at paragraphs 67 to 75 above, the Tribunal finds that the factor of the best interests of the minor child weighs in favour of setting aside the decision to refuse Mrs Liu the visa. It is noted however, that pursuant to subparagraph 8(5) of Direction No. 65 (extracted at paragraph 26 above), one or more of the primary considerations may outweigh other primary considerations. Here, the Tribunal finds that although the best interests of Mrs Liu’s minor grandchild is indeed a consideration that weighs in favour of setting aside the decision, this consideration is outweighed by the other primary considerations.
(iii) Expectations of the Australian Community
In relation to subparagraph 11(1)(c) of Direction No. 65 (the expectations of the Australian community), the Tribunal refers to subparagraph 11.3(1) of Direction No. 65 for guidance:
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 considering this third primary consideration, the Tribunal refers to the stated principles in subparagraph 6.3 of Direction No. 65, in particular the principles that:
(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 a 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.
[Emphasis added]
In relation to the issue of the Australian community’s expectations, Mrs Li contended as follows (A1, page 2):
8.Notwithstanding the nature of Mrs Lui’s crime, the Australian community would expect the Minister to show compassion to Mrs Liu, particularly given the severity of her sentence and the remorse she has shown.
At the hearing, Mrs Li did not make any further submissions regarding the expectations of the Australian community.
The Respondent in its Statement of Facts and Contentions, stated the following regarding the issue of the Australian community’s expectations (R2, page 7):
35.Having regard to those principles [in subparagraphs 11.3(1) and 6.3 of Direction No. 65] the respondent submits that the Australian community would expect that a visa would not be granted to a person who had been convicted of a significant offence involving fraudulent and deceptive conduct and had been dishonest in their dealings with the government. In circumstances such as these, the Australian community would expect that the applicant’s application for a visa be refused.
At the hearing, in relation to the Australian community’s expectations Mr Gerrard reiterated to the Tribunal that this consideration should be viewed through the prism of the principles in subparagraph 6.3 of Direction No. 65.
In the circumstances of the case, the Tribunal finds that the expectations of the Australian community are that a non-citizen who has engaged in a serious crime involving the misappropriation of public funds, who has shown, in the Tribunal’s view no true appreciation of the serious nature of the offence, or her role in committing it, and has failed to convince the Tribunal of her remorse in doing so (refer to paragraph 46 above) should expect their visa application to be refused.
Other considerations
Subparagraph 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;
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 Mrs Liu. Consequently, the Tribunal considers it appropriate in Mrs Liu’s case to take into account any other relevant considerations.
With regard to the “other considerations” in subparagraph 12(1)(a), 12(1)(c) and 12(1)(d) in Direction No. 65 (set out at paragraph 85 above), namely:
·International non-refoulement obligations;
·Impact on victims; and
·Impact on Australian business interests,
no claims have been made by Mrs Li in respect of these considerations and none appear
to arise on the evidence before the Tribunal.
Therefore, the “other consideration” that may be relevant in the present case and should be assessed by the Tribunal is the impact on Mrs Liu’s family members as a result of a refusal to grant her the visa.
Impact on family members
Direction No. 65 provides as follows in relation to the impact of visa refusal on family members:
12.2 Impact on family members
(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;
In relation to the impact of Mrs Liu’s visa refusal on family members, Mrs Li’s written submissions are (A1, page 1):
1.    Prior to receiving the notice of refusal from the Minister, the Applicant was diagnosed with [the medical condition] (see Annexure “A”). The Applicant notified the Delegate of the Minister of the change in circumstances; however the Delegate was unable to consider the new information in its decision. [3] The Applicant [immediately took steps to treat her medical condition] and started [treatment]… The Applicant’s [treatment] will last for approximately [period], and due to [the medical condition], the treatment is likely to impact the Applicant’s health significantly.
2.    The Applicant wishes to have her mother stay in Australia and provide her during her [treatments]. The Applicant’s husband works full time and is unable to provide full time care for the Applicant. If Mrs Liu’s visitor visa is refused the Applicant will suffer actual hardship. Being diagnosed with [the medical condition] and treated for [the medical condition] is highly stressful and potentially traumatic.
3.    The Minister did not consider the psychological and emotional trauma that the Applicant suffered as a result of her mother being incarcerated for 15 years, particularly as the Applicant was residing in Australia during her mother’s Court case and incarceration. The Applicant has had limited contact with her mother for 15 years, and the Minister has not adequately considered [sic] further impact on the Applicant as a result of the Minister’s decision, particularly given the Applicant’s current health.
4.    The Minister did not give adequate consideration to the fact that the Applicant has no immediate family or relatives residing in Australia to provide support to the Applicant, nor did the minister consider any cultural factors in its decision, particularly the strong emphasis which the Chinese community places on family bonds and support. Studies have shown that social support can act as a buffer to the psychological impact of stressful life events in [persons who suffer from the Applicant’s medical condition].
[3] The Tribunal notes that Mrs Li’s submission regarding the diagnosis of her medical condition and the delegate’s inability to consider it previously is corroborated by evidence contained in R1 at T10, some of which is duplicated in the attachments to A1.
The Minister, in its Statement of Facts and Contentions, submitted the following regarding the consideration of the impact of the visa refusal on family members (R2, page 8):
38.The respondent concedes that the decision to refuse a visa to the visa applicant will be upsetting to the applicant and her family members. Nevertheless, given the intended visit was only for a short duration, the respondent contends that this should not be a determinative factor.
The Tribunal notes that in relation to impact on family members, Mrs Liu states in her personal circumstances form (T2, pages 68, 71 and 75):
My husband and I met when we were in high school. He would later visit me while we were working on separate labor [sic] farm communes during the Cultural Revolution. Life was very difficult during those days. My husband and I were married when I was 27, after returning to the city. We have never been apart, except for the duration of my sentence. The time I spent in prison was very difficult for him; he spent most of the time alone because my daughter was living in Australia. Since my release we have been living together and working to rebuild our relationship.
I have never been on a holiday overseas, and I would like to travel with my husband to Australia to visit my daughter’s family. when [sic] my husband is visiting Australia we spend several months apart and it is lonely for both of us. It’s especially hard for my husband because he does not speak English and is alone for most of the day while my daughter and her husband are at work.
…
I would like to be able to visit my family in Australia. If my visa is refused I won’t be able to spend decent times [sic] with my daughter and getting to know my [grandchild], since their visits to China are usually [sic] couple of weeks at a time. My husband has visited my daughter’s family in Australia before. I was very sad that I could not be with them to share those memories together.
…
…I ask that the Minister consider the circumstances surrounding my crime, including the cultural factor in China and also the legal system.
This decision will not only affect me but also my whole family.

At hearing, Mrs Liu gave the following evidence regarding the impact of visa refusal on her family members:
(a)she lives in China with her husband;
(b)her husband has visited Australia three times, for three months on each occasion, the visits coinciding with their daughter (Mrs Li’s) wedding in November 2014, the birth of their grandchild in 2015 and his most recent visit in November 2017;
(c)if her application to this Tribunal was successful, her aim was to come to visit Australia regularly and not just to visit Australia once; and
(d)Mrs Li is her only daughter, who was born in China and who came to Australia in 1998.
When asked a series of questions by Mr Gerrard, Mrs Li gave the following oral evidence at hearing:
(a)she is currently 39 years old, having come to Australia as an 18 year old;
(b)she has been in Australia ever since and is now an Australian citizen;
(c)she is no longer a Chinese citizen;
(d)her parents live in China and she is an only child;
(e)her husband, their minor child and her husband’s family live in Australia;
(f)she has returned to China from time to time, roughly every one and a half years or so, and for about one and a half weeks’ duration out of a four week overseas trip;
(g)when she was on maternity leave with her minor child she spent about two and a half months in China;
(h)going forward, she would have four weeks’ annual leave available every one and a half years, during which she could go to China for one to two weeks. Mrs Li asked the Tribunal whether “you would visit your mum in China every 18 months for one week?”;
(i)if her mother could come to Australia, her mother would be able to spend more time with her [grandchild], which take the pressure off Mrs Li having to visit China and Mrs Li and her family could go on a proper holiday somewhere else;
(j)if her mother could come to Australia, she would still go to China on occasion, say every two to three years;
(k)her last trip to China was going to be of two and a half weeks’ duration, however it was a one and a half week trip due to her medical treatment;
(l)her father visits her in Australia for three months every one to two years, the most recent visit being as she had her medical condition;
(m)her grandfather (her father’s father) is also unwell. This means that her mother would mainly be coming out (to Australia) alone as her father will be looking after her grandfather. Her father does not like to visit often, as he does not speak English and he has his own father to look after;
(n)her plan is to have her mother come on a series of visitor visas. She understands that her mother may have available to her a five year visa where she can stay in Australia for up to six months, hopefully on an annual basis;
(o)the idea is to have Mrs Liu as a part of their lives, but there is no plan for Mrs Liu to become a permanent resident in Australia;
(p)she has a close relationship with her mother and communicates with her mother via video calls every day;
(q)the treatment for her medical condition is ongoing and she has recently returned to work;
(r)she requires help with the care of her minor child and her mother would be the best person to provide this care. Previously, her minor child was in day care for three days each week and her mother in law would look after her minor child for one day each week. Now, her minor child is in day care for four days per week;
(s)if she returns to work full time, she requires help at home and with her minor child. As she is an only child, it is her responsibility to look after her parents;
(t)the time during which her mother’s court case was on was very stressful for her. She had limited contact with her mother while her mother was in jail (being one to two visits during each trip to China) and “no phone calls or anything in between” and this application for a visa it is about “the future” and “what time they have left”;
(u)with her medical condition, there is always the possibility of it coming back, which makes her more desperate to spend time with her mother; and
(v)this visa application is more than a three month visa for them. If her mother is refused entry, it puts in doubt whether she could come to Australia at all, which would be “a death sentence for them.”
Mr Stone’s oral evidence regarding the impact on family members was:
(a)he and Mrs Li were looking at purchasing a larger house, so that they can have a granny flat to enable Mrs Liu to stay with them for longer periods when she is older;
(b)for his wife to have her mother’s social support as she is going through her medical treatment would be a good buffer for his wife and would help her with her ongoing treatment; and
(c)he doesn’t see his own family too often, so Mrs Li is really by herself here in Australia.
The Tribunal has already assessed the impact that the decision to refuse Mrs Liu the visa will have on her minor grandchild (refer to paragraphs 67 to 77 above). What remains is the Tribunal’s consideration of the impact of the visa refusal on Mrs Li and Mr Stone. The Tribunal notes that the impact on Mrs Liu’s husband, if any, does not fall for consideration given that he is not in Australia nor is he an Australian citizen (refer to principle 12.2(1) of Direction No. 65 set out at paragraph 89 above).
The Tribunal acknowledges that if Mrs Liu’s application for the visa is refused, the impact on Mr Stone will be that he will be in a more difficult position regarding child care arrangements and regarding management of Mrs Li’s care during the various stages of treatment for her medical condition, but only to the extent that Mrs Liu would have been in the position to assist with these matters during a single visit to Australia of a few months’ duration. While the Tribunal understands Mr Stone’s and Mrs Li’s plan to have Mrs Liu visit more regularly (and in turn provide more assistance with the family’s care needs), the Tribunal can review only the particular reviewable decision regarding the single visa application before it.
As to the impact on Mrs Li, the Tribunal accepts that, despite their limited contact during the period Mrs Liu served her prison sentence, Mrs Li has a close relationship with Mrs Liu and that she wishes to spend more time with her mother. The Tribunal also accepts that if Mrs Liu is refused the visa, this will cause a considerable degree of upset to Mrs Li, particularly in the context of being without her mother’s social support while she is receiving treatment for her medical condition and her mother being unable to assist her with the care of her child. Again the Tribunal’s acceptance of these matters are only to the extent that Mrs Liu would have been in the position to provide such social support to Mrs Li and assist Mrs Li with caring for her child during a single visit to Australia of a few months’ duration. The Tribunal also notes that while Mrs Li’s evidence is that her family cannot visit Mrs Liu regularly due to work commitments and her wish to travel to destinations other than China, Mrs Li still intends to visit Mrs Liu periodically.
Mrs Li submitted to the Tribunal (refer to paragraph 90 above) that in refusing the visa to Mrs Liu, the Minister did not consider the psychological and emotional trauma she endured while her mother was in prison and also since her mother’s release, nor did the Minister adequately consider Chinese cultural factors and the lack of other family members who can provide support to Mrs Li. While the evidence before the Tribunal on these matters is largely limited to Mrs Li’s oral evidence, the Tribunal accepts that, generally speaking, a person whose mother spends 15 years in prison in another country where contact is limited is likely to experience a degree of personal suffering and distress.
On the evidence before it, the Tribunal finds that this factor weighs in favour of setting aside the decision to refuse Mrs Liu the visa. It does not however, outweigh the two primary considerations detailed above in relation to the protection of the Australian community from criminal or other serious conduct and the expectations of the Australian community. In this regard, the Tribunal notes that Mrs Li’s family does have the option (which on her evidence she would exercise if required) of visiting Mrs Liu periodically. Mrs Li also has the support of her husband, Mr Stone. While Mrs Li, Mr Stone and their child would have benefited from Mrs Liu’s assistance should she spend time with them in Australia, any hardship they will experience by this not taking place cannot outweigh the concerns for the safety of the Australian community arising from Mrs Liu’s offending conduct and the risk of future offending.
CONCLUSION
Having been convicted of an offence carrying with it a sentence of a term of imprisonment of 12 months or more, Mrs Liu has a substantial criminal record and does not pass the character test in s 501(6) of the Migration Act. This is not in dispute.
In determining whether to exercise the discretion to refuse Mrs Liu’s visa, the Tribunal has attached significant weight to the fact that Mrs Liu committed an offence which is regarded as objectively very serious and carried with it a term of imprisonment of 15 years.
On the evidence before it, the Tribunal finds that Mrs Liu, as per subparagraph 6.3(3) of Direction No. 65, should expect to be denied the privilege of staying in Australia.
The Tribunal also finds that there remains an unacceptable risk that Mrs Liu may engage in further criminal conduct if she were granted entry to Australia and that the Australian community will, as a consequence, be at risk. In making this assessment, the Tribunal has considered the nature of the harm to individuals and the community at large should Mrs Liu engage in further criminal or other serious conduct. On the evidence, the Tribunal is of the view that Mrs Liu shows little appreciation of the seriousness of her offence and of her role in committing it and there is no objective evidence before it that Mrs Liu has taken any positive steps regarding rehabilitation. In the circumstances, although the Tribunal believes that there is a low risk of reoffending, any risk of reoffending is unacceptable to the safety of the Australian community.
Given the nature of the crime committed, the Tribunal is also of the view that the Australian community would expect that Mrs Liu’s visa be denied. In the circumstances of this case, the Tribunal finds that the expectations of the Australian community are that a non-citizen who has engaged in a serious crime, who, after 15 years in prison and several years in the open community, has shown no true appreciation of the wrong committed, and has provided no objective evidence to demonstrate that it will not happen again (rather, Mrs Li submitted orally that that Mrs Liu “probably wouldn’t do it again”), should expect to be denied the right to stay in Australia.
There are considerations that weigh in Mrs Li’s favour. These include the negative consequences of the visa refusal on Mrs Liu’s minor grandchild, on Mrs Li and on Mr Stone. These considerations however, are viewed in the context of the short stay visa and do not, in the Tribunal’s view outweigh the two primary considerations above in relation to the protection of the Australian community from criminal or other serious conduct and the expectations of the Australian community. On balance, these two primary considerations outweigh the favourable “other consideration” of the impact on family members and the “primary consideration” of the impact on minor children. In this regard, the Tribunal notes subparagraphs 8(4) and 8(5) of Direction No. 65 (extracted in paragraph 26 above).
Overall, the Tribunal finds that having regard to all of the primary considerations and other considerations required to be taken into account under Direction No. 65, and on the evidence before the Tribunal, the correct and preferable decision is to refuse to grant Mrs Liu the visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher

....[sgd]....................................................................
Associate
Dated: 15 June 2018

Date of hearing: 17 April 2018

Applicant: In person

Representative for the Applicant: Mr Michael Stone

Representative for the Respondent: Mr Arran Gerrard

Solicitors for the Respondent: Australian Government Solicitors

[2018] AATA 1831

15 June 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies

Date of hearing:	17 April 2018
Applicant:	In person
Representative for the Applicant:	Mr Michael Stone
Representative for the Respondent:	Mr Arran Gerrard
Solicitors for the Respondent:	Australian Government Solicitors