Li and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 3551

Li and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3551 (9 October 2024)
Division:GENERAL DIVISION
File Number(s): 2024/5691
Re:Gen Li
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:9 October 2024
Place:Sydney

The 30 July 2024 decision not to revoke the cancellation of Mr Li’s visa under s 501CA(4) of the Migration Act 1958 (Cth) is set aside.
…………[sgd]…………………….
Mr S. Webb, Member
Catchwords
MIGRATION – mandatory visa cancellation – fraud – failure to pass character test – substantial criminal record – review of decision not to revoke visa cancellation – Ministerial Direction No. 110 – primary and other relevant considerations – protection of Australian community – breach of professional trust – seriousness of criminal conduct – custodial sentence – financial impact on victims – serial offences – frank admission – cooperation in facilitating justice – remorse – loss of profession – low risk of reoffending – potential financial harm – strength, nature and duration of ties to Australia – expectations of the Australian community – extent of impediments if removed from Australia – balance of considerations – decision set aside
Legislation
Migration Act 1958 (Cth), ss 499, 500, 501, 501CA
Cases
Ali v Minister for Home Affairs [2020] FCAFC 109
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125
Barwick v Council of the Law Society of NSW [2024] NSWCA 32
Bettencourt v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 172
Council of the Law Society of NSW v Li [2024] NSWCA 218
EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No. 2) [2021] FCA 1536
FYBR v Minister for Home Affairs [2019] FCAFC 185
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2018] FCAFC 116
Secondary Materials
Direction no. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)
REASONS FOR DECISION
Mr S. Webb, Member
9 October 2024

Gen Li is a citizen of the People’s Republic of China. Initially, he travelled to Australia as a child on a student visa. He went on to study law and commerce at university. On completion of his studies, Mr Li was admitted to practice in the Supreme Court of New South Wales. He was granted a Skilled Independent (Subclass 198) visa (Visa). Mr Li engaged in deceptive and fraudulent criminal conduct to obtain financial advantage, diverting more than $400,000 from client funds. He was charged, convicted, and sentenced to an aggregate term of imprisonment of 2 years and 8 months.
Mr Li’s Visa was cancelled under s 501(3A) of the Migration Act 1958 (the Act).
He sought revocation of this decision and made representations to the Minister. A delegate of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Li and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3551
Case: [2024] AATA 3551
Decision Date: 9 October 2024

CaseChat Overview and Summary

This matter concerned an application by Mr. Li for review of the Minister for Immigration, Citizenship and Multicultural Affairs' decision not to revoke the mandatory cancellation of his visa. The dispute arose from Mr. Li's failure to pass the character test due to having a substantial criminal record. The review was conducted by Mr. S. Webb, a Member of the Tribunal.

The Tribunal was required to determine whether to revoke the mandatory cancellation of Mr. Li's visa, considering various factors outlined in Ministerial Direction No. 110. These considerations included the protection of the Australian community, the seriousness of Mr. Li's criminal conduct, the financial impact on victims, whether the offences were serial, Mr. Li's admission of guilt and cooperation, his remorse, the loss of his profession, his risk of reoffending, potential financial harm, the strength, nature, and duration of his ties to Australia, the expectations of the Australian community, and the extent of impediments he might face if removed from Australia.

In reaching its decision, the Tribunal applied the principles set out in Ministerial Direction No. 110. It weighed the character concerns arising from Mr. Li's conduct against the factors favouring revocation. The Tribunal noted Mr. Li had resided in Australia since he was 16 years old and had contributed positively to the community as a solicitor. However, it also considered the seriousness of his criminal conduct and the expectations of the Australian community. The Tribunal found that while Mr. Li's ties to Australia were significant, the character concerns weighed against revoking the cancellation, though not heavily. Regarding impediments to return to China, the Tribunal noted Mr. Li had family there and was familiar with Chinese society and culture, suggesting these impediments were not substantial.

Ultimately, the Tribunal set aside the decision not to revoke the cancellation of Mr. Li's visa. This outcome meant that the mandatory cancellation of his visa was revoked, allowing him to remain in Australia.

Orders

Orders of the court

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Background

Background to the litigation

The review is regulated by legislative procedures set out in s 500(6) to (6L) of the Act.Facts The following uncontroversial facts are established by the documentary and oral evidence before the Tribunal. Mr Li was born in 1989 in China.[1] He is the only child of his parents, each of whom provided a letter of support to the Tribunal in these proceedings.[2] His father is a retired judge,[3] and his mother is a retired law professor.[4][1] Exhibit 1, G73.[2] Exhibits 4 and 5.[3] Exhibit 3.[4] Exhibit 4. On 11 March 2006, Mr Li first entered Australia on a student visa.[5] At this time, he was 16 years old.[5] Exhibit 1, G75. Mr Li boarded with a family in Sydney who was not previously known to him. He learned English and he attended high school at Taylor College. In 2008, Mr Li completed high school and obtained a Higher School Certificate. In 2009, he enrolled in a law and commerce degree course at the University of Sydney, which he completed in 2014. In or about March 2014, he was granted a graduate visa. In 2014, Mr Li commenced a personal relationship with a person I will refer to as ‘XB’. Mr Li explained XB declined to give a statement and was not called to give evidence in these proceedings. By his account, XB is a lawyer who does not want to be recorded in these proceedings as Mr Li’s partner. On 23 February 2015, having complete a College of Laws Graduate Diploma of Legal Practice course, Mr Li obtained a legal practicing certificate. He was admitted as a solicitor of the Supreme Court of NSW. Mr Li obtained employment as a solicitor. He was subsequently employed by Sun Lawyers. On 6 July 2015, Mr Li was granted a permanent skills visa.[6][6] Exhibit 1, G66. In 2015, Mr Li and XB committed to purchase an apartment in Arncliffe “off the plans”.[7] [7] Exhibit 2, page 24. Mr Li informed police, in 2017, his Sun Lawyers employment salary was based on a commission of approximately 50 percent of revenue he brought into the business from individual clients.[8] [8] Exhibit 5, page 14. In 2018, Mr Li met Mr Ka Mak, owner and operator of a car mechanic business ‘Max Euro Automotive’. Mr Mak stated Mr Li was “one of my first customer”.[9] Mr Li and Mr Mak shared “a keen interest” in cars, especially BMW motor vehicles.[10][9] Ibid, page 54.[10] Exhibit 2, page 34. In 2019, Mr Li and XB settled their joint purchase of the apartment in Arncliffe, each paying $80,000 and jointly borrowing $640,000. In December 2019, Mr Li purchased a $100,000 BMW M2 motor vehicle. The entire purchase cost was financed through BMW Finance.[11] On Mr Mak’s evidence, Mr Li spent increasing time attending “track days”, racing his BMW motor vehicle.[12][11] Exhibit 5, page 38.[12] Ibid, page 54; Exhibit 2, page 34. In or about April 2020, Mr Li and XB separated for a period. They reconciled several weeks later in May 2020. Their relationship continued for another 8 months, but the relationship broke down again in or about February 2021. This notwithstanding, during the period of Mr Li’s incarceration he and XB have maintained contact. As will appear, in or about September 2023, while Mr Li was incarcerated, he asked XB to resume the relation and his evidence is XB agreed.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Taking these matters into account, in consideration of Australian community expectations, the character concerns arising from Mr Li’s conduct weigh against revoking the cancellation of his Visa, although I am satisfied it is appropriate to conclude this consideration does not weigh heavily in the balance.Legal consequences of the decision Mr Li did not make submissions of any substance in respect of this consideration. I note the immediate legal consequence of the decision not to revoke the cancellation of Mr Li’s Visa is that he will be held in immigration detention, pending removal from Australia under s 198 of the Act, once he is released from jail. Once removed from Australia, it is very unlikely he will be permitted to return. These are the legal consequences of the policy underlying the character provisions of the Act. They apply in all cases of this kind where the decision-maker is not satisfied of the matters set out in s 501CA(4)(b) of the Act.Extend of impediments if removed This consideration is directed to the impediments a non-citizen would face should they be removed from Australia to their home country:(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: a) the non-citizen's age and health; b) whether there are substantial language or cultural barriers; and c) any social, medical and/or economic support available to them in that country. Mr Li made no substantial submissions in respect of this consideration, other than to assert Mr Li will experience some impediments if he is forcibly returned to China. As I comprehend this submission, it is that Mr Li may experience some difficulties readjusting to life in China in circumstances where he will not be able to resume his life in Australia, where he has built a life for himself over the last 18 years. The Minister contends the consideration should be given little weight in favour of revocation. Mr Li has immediate and extended family members in China, including his parents and a number of uncles and aunts.[78] He grew up in China until the age of 16 and he has returned to China number of occasions. He is familiar with Chinese society and culture. I note Dr Nielssen reported:Mr Li said he grew up with the usual stress of high expectations from his parents.[79]He had the usual stress of the very high expectations of an only child of successful Chinese parents, and the guilt that followed his disappointing performance in his junior high school barrier exams and being sent to complete his studies in Australia.[80][78] Exhibit 2, page 10.[79] Exhibit 5, page 26.[80] Ibid, page 28. Mr van Meurs reported:In his teenage years, Mr Li had two periods of distinct psychological difficulty, both relating to his own perception of his own abilities academically. The first related was where he experienced compulsion to seek medical assessment in response to intrusive thoughts that he was cognitively impaired due to an injury. While these health anxiety symptoms reportedly resolved without therapeutic intervention, Mr Li experienced reactive depression and anxiety at 15… Mr Li experienced shame, embarrassment and low mood, in addition to anxiety about his social network’s perception of his subjectively felt failure… He became socially and emotionally withdrawn for 12 months and in an attempt to resolve the scenario, Mr Li’s parents suggested he study alone in Australia, at the age of 16.[81][81] Exhibit 2, page 17.

Ratio Decidendi

Legal Principle Established

I am satisfied this consideration is not presently relevant.Strength, nature and duration of ties to Australia This consideration is explained in s 8.3 of the Direction:1Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. 2Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to: (a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and (ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community (b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia. Mr Li has no immediate family members in Australia. The person who is closest to being a member of Mr Li’s family in Australia is XB. Mr Li described XB as his defacto partner.[71] In his oral evidence, Mr Li accepted this was a rather hopeful description, as he had asked XB to consider rekindling their relationship in or about September 2023 and XB agreed, but this was uncertain. I note XB has maintained contact with Mr Li during the period of his imprisonment and XB confirmed Mr Li would return to reside at the apartment they purchased if he is released.[72][71] Exhibit 2, page 5.[72] Exhibit 5, page 81. There is no evidence from XB. Mr Li explained the reasons for this, and I draw no adverse inferences from it. Nonetheless, the absence of evidence reinforces the uncertainty of any future relationship between Mr Li and XB. Mr Li has been in Australia since 2006, having arrived as a child when he was 16 years old. On his evidence, he began offending in April 2019, some 15 years after he first arrived in Australia. I accept that, during the 15-year period, Mr Li contributed positively to the Australian community. He worked at McDonalds and Dominoes Pizza while he was studying, paying taxes. He contributed to the Australian community as an enrolled solicitor after graduating in 2014 and being admitted to practice in February 2015. He and XB purchased an apartment in 2015 which settled in 2019, although Mr Li sold his share to XB after their separation. Mr Li has social links with a small group of friends who support him in Australia: Mr Mak, Mr Lui, Mr J. Li and XB in particular. I note Mr Li was visited in jail by other friends who have not given evidence.[73] There is no evidence Mr Mak, Mr Lui, Mr J. Li and XB are Australian citizens, permanent residents or people who have a right to remain in Australia indefinitely, although that might be inferred. The strength and enduring nature of these links are reinforced by the letters of support Mr Mak, Mr Lui and Mr J. Li provided and their ongoing support of and contact with Mr Li during the period of his incarceration. While XB has not given any evidence, it is Mr Li’s evidence XB maintains contact with him and continues to support him, and he hopes to reside with XB should his Visa be reinstated. So much is confirmed by the relevant materials.[74][73] Ibid, pages 87 and 89.[74] Ibid, page 81.