Li and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 3551
•9 October 2024
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, 501CACases
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 116Secondary 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 the Minister decided not to revoke the cancellation decision. Mr Li lodged an application for review of this decision by the Tribunal.
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.
Mr Li asserts he experienced psychological symptoms following his separation from XB in April 2020. So much is supported by the reports of Dr Olav Nielssen, a psychiatrist,[13] and Mr Sam van Meurs, a clinical psychologist,[14] although no psychiatric illness was diagnosed.
[13] Exhibit 5, pages 27-8.
[14] Exhibit 2, pages 13 and 17-8.
Mr Li gave evidence, in or about mid-2020, his Sun Lawyers salary was changed to a base of $100,000 per annum plus 30 percent of tax invoices rendered, which was to be shared with a junior solicitor.[15]
[15] Exhibit 5, page 33.
Mr Li gave oral evidence, shortly after he separated from XB in April 2020, he purchased BMW motor vehicle on Gumtree for $5,000 and, several days later, he purchased another BMW vehicle in Melbourne for $12,000. On his evidence, these vehicles were purchased with loans, and each was damaged.
Mr Li asserts at or about this time, he realised he was over-committed, and he was unable to cover his outgoings. By his account, it was at this time he began to fraudulently obtain money by substituting details of his personal bank accounts on invoices and payment documents relating to clients of Sun Lawyers. He explained that he thought if he repaid the initial amount he fraudulently obtained, he could recover and not be reprimanded. Mr Li admitted, instead of this, he became trapped in serial defalcations and realised he would inevitably be caught, whereupon he became reckless and became more obsessed with motor racing, using the funds he fraudulently obtained to fund his motor racing hobby.
An account of Mr Li’s expenses in the period from 2019 to 2022 is set out in written sentencing submissions prepared by his previous legal representative, Greg Walsh & Co. On this account, Mr Li spent approximately $150,000 on motor vehicle modifications and tyres in 2020 to 2021.
In March 2021, Mr Li transferred to work in the then new Hobart office of Sun Lawyers. He purchased a further vehicle, a Mercedes ML in April 2021 for $45,000 under Toyota Finance.[16]
[16] Ibid, page 38.
In or about August 2022, Mr Li crashed his BMW M2 vehicle, causing major damage.[17]
[17] Ibid, page 54.
On 6 September 2022, following a complaint by a client, Mr Li’s employer confronted him. Mr Li initially denied any wrong-doing, but shortly thereafter he made a full admission.[18] On 7 September 2022, Mr Li’s employment with Sun Lawyers was terminated.[19] I understand Sun Lawyers conducted a forensic investigation to determine the details and the extend of Mr Li’s defalcations.
[18] Ibid, page 15.
[19] Ibid.
On 9 September 2022, Mr Li disclosed his fraudulent activities to police.[20] He was charged with offences of dishonestly obtain financial advantage by deception, namely:
Seq 1 – between 01/03/2020 and 07/09/2022 by fraudulently altering bank account details, obtain financial advantage to wit $67,437…
Seq 2 – Between 01/07/2020 and 01/09/2022 at Sydney by deception on 144 occasions caused funds to the value of $198,319 to be transferred from clients of Sun Lawyers to bank accounts held in the defendant’s name which ought to have been transferred to Sun Lawyers office account;
Seq 3 – between 18/04/2019 and 01/09/2022 at Sydney, did by deception on 5 occasions cause funds to the value of $213,708 to be transferred from clients of Sun Lawyers to bank accounts held in his own name which ought to have been transferred to Sun Lawyers office account.[21]
[20] Ibid, pages 128-9.
[21] Ibid, page 29.
Mr Li was taken into custody and subsequently released on bail.
Mr Li obtained employment with Mr Mak and he worked as an Uber driver.
Mr Li provided assistance to his employer and police investigating the nature, details and extent of his fraud. He gave evidence of producing two spreadsheets: one setting out details of all the fraudulent transactions he conducted, and the other setting out details of fraudulent transactions where monies were outstanding. Only the second spreadsheet is in evidence.[22] It is this document that was relied upon when calculating the extent and amount of Mr Li’s fraudulent conduct, and the impact on victims, at sentencing. In order to assess the full extent of Mr Li’s fraudulent conduct, one would need to consider all transactions in which Mr Li fraudulently directed money from Sun Lawyers clients into his own bank accounts. Mr Li conceded the total amount of such transactions was greater than the transactions set out in the second spreadsheet he produced. There is no evidence before the Tribunal of the forensic investigation Sun Lawyers conducted into Mr Li’s defalcations. It is unclear how Mr Li’s serial defalcations went undetected for almost 3 years. There is no evidence from Sun Lawyers before the Tribunal.
[22] Ibid, pages 45-51.
It is not possible to determine the full extent of Mr Li’s defalcations on the available materials. On Mr Li’s evidence, in April 2019 he was acting for Chinese clients of Sun Lawyers in proceedings in the Supreme Court of NSW. He explained a deposit of $250,000 was required to be lodged with the Court, but Chinese law prohibited transfers in excess of $50,000. Mr Li asserts it was for this reason the Chinese clients asked him to facilitate payment of the Court deposit using his personal bank account. As I understand his evidence, the Chinese clients proposed to deposit funds into Mr Li’s bank account for him to use to pay the deposit. Mr Li gave evidence he was on holiday in Japan at the time and he did not want to trouble his employer with the problem, so he acceded to the clients’ request. By his account, the Chinese clients transferred 6 payments of $50,000 into his personal bank account and instructed that $250,000 was to be used to pay the Court deposit and the remaining $50,000 was to be used for future costs of the proceedings. Mr Li’s evidence is that he could not explain how the $50,000 came into his bank account to his employer without revealing the whole arrangement, which he did not want to disclose, so he refrained from doing so. He asserts the amount “got forgotten” and he retained the $50,000 for his own use. He asserts this was the first time he had engaged in such conduct and asserted he did not defraud the clients, as they knew about the transaction.
On Mr Li’s evidence, the $50,000 amount he retained is included in the first item in the second spreadsheet he produced for his employer. This entry is in respect of a single client and an amount of $79,960. Mr Li explained this amount represents two transactions, one on 26 April 2019 and another on 29 June 2020, from which he paid $13,000 in counsel fees and retained the balance (recorded in the ‘Usage’ column of the spreadsheet).[23] On his evidence, this exemplifies the contents of his second spreadsheet, where amounts Mr Li asserts he paid from the funds he retained are set out (including in the ‘Note’ column of the spreadsheet).
[23] Ibid.
Mr Li has provided a number of explanations of what occurred.
The evidence of Mr Li’s recorded interview by police on 9 September 2022 includes:
About 2.38pm the accused participated in electronically recorded interview…. The accused disclosed he started fraudulently obtaining money from the Sun Lawyers Trust account in 2017 and started fraudulently obtaining money from numerous clients of the company in 2020 during the Covid pandemic. The accused stated to get money from the trust account he would use the client’s details and change their bank account details with is his own bank account details…. The accused further stated from 2020 he would send clients who he acted on behalf on Sun Lawyers invoices for services replacing the company bank account details with his own… During 2022 the accused who was representing victim …. In a family law matter applied to the law firm … for the settlement amount of $67,000 on behalf of the victim … The accused replaced Sun Lawyers trust account details with that of his own… The accused used some of the money to repay other amounts fraudulently obtained and kept a portion of the sum for his personal spending…[24]
[24] Ibid, page 129.
On 24 March 2023, a Community Corrections officer reported:
- Mr Li reported that he was motivated to engage in his offending behaviour to finance his lifestyle…
- Mr Li stated at the time of his offending, he justified his actions under the belief that if he returned funds to the victims he would not be reprimanded…[25]
[25] Exhibit 5, page 19.
On 10 May 2023, Mr Li gave sworn evidence to the Local Court, including:
Q. Did you commence to initiate a scheme, if I could use that term, whereby you would alter tax invoices to put your bank account details on the tax invoices?
A. Yes.
Q. You mislead your employer on each occasion –
A. Correct.
Q. – by doing that, and the money went into your account; is that correct?
A. That’s correct, yes.
Q. Did you apply the monies, or is it correct that you applied the monies principally, not only to living expenses but also to your interest in racing motor vehicles?
A. Yes, I applied almost all the money in my hobby of racing motor vehicles.[26]
[26] Exhibit 1, G4, pages 32-3.
On 17 September 2024 he made a statutory declaration in which he stated:
8. … My role as a solicitor required that we direct and hold large sums of money on behalf of clients… Initially, I thought that as a one-off measure I could direct some of those funds for personal use and then repay the money back to the client.
9. After a couple of months, I realised I could not repay the money I took. I resorted to taking further funds from the firms trust account to repay the money I had taken earlier. As a result, the amount I took started to snowball quickly and I knew that I was at a point of no return…
…
11. … I know that I was deliberately deceiving and misleading clients and my employer however this was not a formal scheme or credit card fraud whereby I was trying to pretend to be someone else and obtain financial advantage that way. This was simply a crime of opportunity and convenience for me.[27]
[27] Exhibit 2, page 24.
This largely aligns with Mr Li’s oral evidence.
The second spreadsheet records transactions which Mr Li asserts were outstanding at the time his fraudulent activities were discovered, but not previous fraudulent transactions which Mr Li covered in the manner he described.
On 31 October 2022, Mr Li was found to have breached his bail conditions and was issued a warning:
… [Mr Li] stated he was working as an Uber driver and forgot what time he had to report. [He] was remorseful. Pol told [Mr Li] he has 12hrs…[28]
[28] Exhibit 5, page 126.
On 17 November 2022, Dr Nielssen produced a report for Mr Li’s legal representatives. The doctor stated:
The only unusual feature of [Mr Li’s] behaviour was thought to be his apparently unrealistic approach to budgeting his income and expenses, including on a relatively expensive hobby, and his reckless attitude to a career he had worked hard to establish, especially given the emphasis on personal integrity and training.
Mr Li faces an uncertain future, given the barriers to returning to his profession, and his limited career prospects. In other respects his prospects for rehabilitation were reasonably good, as he did not report any kind of addiction that might predict further dishonesty offences, he has a strong work ethic and he has been in stable long term relationships. He was not found to have a major psychiatric disorder for which he requires any special treatment, but specialist counselling, including from a financial planner, may help him to better manage his affairs and devise a plan for repaying the money.[29]
[29] Ibid, page 28.
On 12 April 2023, a Community Corrections Officer produced a Sentencing Assessment Report which included a risk assessment, namely:
Mr Li has been assessed at a T1/Low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R).[30]
[30] Ibid, page 19.
On 23 May 2023, in the Downing Centre Local Court, Mr Li entered guilty pleas and was convicted on 3 counts of dishonestly obtain financial advantage by deception.[31] Magistrate Farnan accepted that the amount in the sequence 1 offence ($67,437) was included in the sequence 3 amount ($213,708), and concluded the total amount Mr Li fraudulently obtained was $412,027.[32] Her Honour sentenced Mr Li to an aggregate term of 2 years 8 months imprisonment, fixing indicative terms of imprisonment of 9 months for the sequence 1 offence and of 18 months for each of the sequence 2 and 3 offences, and a non-parole period of 14 months. Her Honour ordered Mr Li to pay compensation to Sun Lawyers in the sum of $67,000 in respect of the sequence 1 offence and, noting the jurisdictional limit in the Local Court, $100,000 in respect of each of the sequence 2 and 3 offences.[33] It is not disputed, as of 1 December 2022, Mr Li had repaid $93,000 to Sun Lawyers.[34]
[31] Ibid, page 29.
[32] Exhibit 1, G4, page 44.
[33] Ibid, G4, page 48; Exhibit 5, page 6.
[34] Exhibit 1, G4, pages 32, 40, 42 and 46.
Following sentencing, Mr Li was taken into custody. On 28 June 2023, he was transferred to the St Heliers Correctional Centre.[35] Mr Li worked in the vegetable preparation area.
[35] Exhibit 5, page 89.
On 8 June 2023, Mr Li’s Visa was cancelled under s 501(3A) of the Act.[36] Mr Li was invited to make representations within 28 days.
[36] Exhibit 1, G11.
On 5 July 2023, Mr Li made representations, requesting revocation of the mandatory cancellation of his Visa.[37] He asked for “a second chance to remain in Australia”.[38]
[37] Ibid, G8.
[38] Ibid, page 59.
On 28 November 2023, Mr Li was found to be in possession of a mobile telephone, a charger, a sim card, and a quantity of tobacco.[39] On 30 November 2023, Mr Li entered a guilty plea to the mobile phone, charger and sim card offence and made no submissions in respect of mitigating circumstances.[40] The tobacco charge was dismissed.
[39] Exhibit 5, page 121.
[40] Ibid, page 118.
On 14 December 2023, Mr Li was transferred to the Bathurst Correctional Centre, where he worked as a library and reception sweeper.
On 15 January 2024, Mr Li wrote a letter to the Presiding Magistrate of the Muswellbrook Local Court, expressing remorse and stating:
Almost every inmate I heard from thought they deserved better. I dare say that I was not one of them initially but overtime, I started to share the same mentality. That sort of mentality contributed to my wrongdoing because why could I not have a phone, if I just used it to call my families and friends, browse social network and were not doing anything illegal or harmful to the society? But what I and other inmates … forgot or did not realize was, whilst the minimum security can be designed to provide a better environment, there is an element of punishment in the sets of rules that it designed and a rationale behind every rule.[41]
[41] Exhibit 2, page 15.
In his oral evidence, Mr Li gave three reasons for committing this offence: using the telephone in the jail was inconvenient and costly; he found the experience of imprisonment very isolating and lonely; and he was exposed to bad influences – he observed inmates possessing and using telephones with impunity. Mr Li denied knowing that using and possessing a mobile telephone in the correctional centre was an offence. This is implausible. Even if Mr Li was not given, or he did not read, the Male Inmate Handbook,[42] as he asserts (contrary to the answer he gave correction officers on 11 May 2023[43]), his “just silly” comment when entering a guilty plea on 30 November 2023 suggests a level of knowledge which aligns with the comments he made about wrongdoing and risk in the letter he sent to the Presiding Magistrate of the Muswellbrook Local Court on 15 January 2024.
[42] Exhibit 5, pages 131-206.
[43] Ibid, page 107.
On 31 January 2024, Mr Li was convicted of possession of a mobile telephone in a place of detention and sentenced to 3 months imprisonment commencing on 10 July 2024.[44]
[44] Exhibit 5, page 125.
On 30 July 2024, a delegate of the Minister issued a decision not to revoke the mandatory cancellation of Mr Li’s Visa.[45]
[45] Exhibit 1, G2.
On 8 August 2024, Mr Li lodged an application for review of the delegate’s decision by the Tribunal.[46]
[46] Ibid, G1.
Issues
The matter is to be determined under s 501CA(4) of the Act which provides:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
It is important to observe the ‘original decision’ in this case is a mandatory visa cancellation decision made under s 501(3A) of the Act. Once the threshold in this subsection is surpassed, mandatory cancellation of the non-citizen’s visa is the rule, which is only susceptible to exception under s 501CA(4) where the person satisfies the decision-maker they pass the character test, or the decision-maker is satisfied there is another reason to revoke the visa cancellation. It is within this context the Minister’s Direction 110 under s 499 of the Act must be applied. Importantly, the Direction does not direct the result in the circumstances of any case, and it does not limit the matters of relevance a decision-maker is able to consider. Rather, the Direction sets out objectives, principles and considerations which must be taken into account where they are relevant.
There has been some controversy about the word ‘may’ in s 510CA(4) and whether this confers a residual discretion on a decision-maker if satisfied of the matters set out in either s 510CA(4)(b)(i) or (ii). This was not squarely raised or addressed by the parties and it is not necessary to consider it further than to note the divergent authorities.[47] The power to revoke a mandatory visa cancellation decision under s 501(3A) is conditioned by a state of satisfaction in respect of either of the elements in s 510CA(4)(b) and where that state is achieved, weighing up relevant materials and considerations, exercise of the power is mandated. I will proceed accordingly.
[47] See for example; Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2018] FCAFC 116; Ali v Minister for Home Affairs [2020] FCAFC 109; Bettencourt v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 172; Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125.
As Mr Li made representations in accordance with the invitation to do so, the issues to be decided in this review are:
(a)whether Mr Li satisfies the Tribunal he passes the character test set out in s 501 of the Act; and, if not
(b)whether there is another reason to revoke the decision to cancel his Visa.
When deciding these matters, the Tribunal must comply with directions issued by the Minister under s 499(1) of the Act, presently Direction no. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).
The Direction sets out Objectives in paragraph 5.1. Applicable principles are set out in paragraph 5.2:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2The safety of the Australian Community is the highest priority of the Australian Government.
3Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
4The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
5Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
6With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
7Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
8The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
The Direction sets out the following instructions and guidance:
6Making a decision
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
7Taking the relevant considerations into account
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
8Primary considerations In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
…
9Other considerations
(1) In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on Australian business interest
Character test
With regard to the character test set out in s 501 of the Act and the relevantly applicable threshold is set out in s 501(6):
6 For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
7For the purposes of the character test, a person has a substantial criminal record if:
(a) …
…; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more.
There is no dispute, and I am satisfied, Mr Li does not pass the character test on this ground.
Another reason
Mr Li contends there is another reason to revoke the visa cancellation decision. He asserts his criminal offending was a lapse of judgement for which he has been “severely punished”.[48] He asserts the only person who suffered disadvantage as a result of his offences is his former employer, as all the clients would have been repaid by the employer or through the NSW Law Society’s Legal Practitioners Fidelity Fund (Fidelity Fund). Mr Li notes he has been ordered by Magistrate Farnon to pay compensation to his former employer, amounting to $267,000, and he has previously repaid $93,000.
[48] Applicant’s Statement of Facts, Issues and Contentions, 30 September 2024 at [27].
In his submission, the risk he would engage in further criminal or serious conduct is very low or negligible and he has gained significant insight into his previous offending conduct, for which he is extremely remorseful and ashamed. He relies on the report of Mr van Meurs and argues his crimes were offences of opportunity which cannot be repeated as he has lost his ability to practice law as a solicitor. Mr Li asserts the seriousness of his previous conduct should be considered in the context of his previous record, free from criminal conduct prior to 2019, and his prior positive contributions to the Australian community as a student and in his professional work as an enrolled solicitor. He argues he has been severely punished and there is very little likelihood he will ever re-offend.
In Mr Li’s submission, the very low risk of him re-offending ameliorates the seriousness of his offences and this reduces the weigh which should be given to consideration of protecting the Australian community from harm.
Mr Li accepts the Australian community expects a non-citizen such as him to comply with Australian laws and to adhere to Australian values, accepting that his presence in Australia is a privilege conferred on him in the expectation he would be law-abiding and he would not cause harm to individuals or the Australian community. He argues the Australian community would expect him to repay the money he took, noting the orders for compensation he is liable to pay, and his capacity to do so will be reduced should he be returned to China. This, he asserts, should reduce the weight given to this consideration.
Mr Li asserts Australia is a tolerant society, and he should be given a second chance. He relies on his youth when he first travelled to Australia in 2006, alone and without any family, and the positive contribution he has subsequently made to the Australian community, working to support himself as a student, paying taxes, engaging in community life through his interest in motor sports and assisting clients as a solicitor. During this time, he contends he has developed strong ties to Australia, including in his 10-year relationship with XB, in his group of friends and associates over the course of his high school and university studies, and in his professional work as a solicitor.
In Mr Li’s submission, he does not have a criminal character and the offences he committed are out of character. These arose, he alleges, from his response to stressful circumstances including the breakdown of his long-term relationship with XB over over-indebtedness which he could not manage. He relies on the character references provided by his parents in China and some of his friends and acquaintances in Australia, namely Jiahui Li[49] (a registered chartered engineer in Australia),[50] Jiageng Liu (a chartered accountant and company director in Australia)[51] and Ka Mak (owner of Max Euro Automotive in Sydney)[52]. Mr Mak and Mr Lui stated they are each willing to employ Mr Li should his Visa be reinstated, and he is released into the Australian community.
[49] For ease of reference, Jiahui Li will be referred to as Mr J Li.
[50] Exhibit 2, pages 30-1.
[51] Ibid, pages 32-3; exhibit 5, pages 55-6.
[52] Ibid, pages 34-6; Exhibit 5, pages 54-5.
Mr Li asserts he has gained insight into his offending conduct, particularly after the mobile telephone offence which resulted in his transfer from a low security detention environment to the harsher environment in Bathurst Correctional Centre where he was better able to reflect on what he had done. He explained he intends to embark upon a new career in the construction industry, perhaps as a carpenter, should his Visa be reinstated, with offers of employment with Mr Mak or Mr Lui, and high hopes of rekindling his relationship with XB.
In Mr Li’s submission, when the relevant considerations are weighed, those weighing for revocation of the visa cancellation decision outweigh those against.
Mr Li contends considerations relation to family violence and the best interests of minor children are not relevant to his case. The Minister broadly agrees these considerations are not relevant.
The Minister asserts Mr Li’s criminal conduct involves very serious dishonesty offences, involving large amounts of money, a large number of clients, a substantial breach of trust and repeated fraudulent acts for personal benefit over a prolonged period. The Minister relies on Magistrate Farnan’s sentencing remarks that the offences were “extremely serious”.[53] The Minister argues the relative seriousness of Mr Li’s conduct is reflected in the lengthy term of imprisonment to which he was sentenced which took into account his early guilty plea and his previously clear record.
[53] Exhibit 1, G4, page 47.
In the Minister’s submission, there is a real risk Mr Li might cause harm to the Australian community should his Visa be reinstated, and he engage in further serious deceptive conduct. The Minister argues the seriousness of Mr Li’s offending conduct reduces tolerance to the degree that any risk of him engaging in further similar conduct is unacceptable. Such an eventuality, the Minister contends, could result in financial and psychological harm to members of the Australian community.
When assessing the risk of future harm Mr Li poses, the Minister asserts the deceptive nature of Mr Li’s conduct, engaging in fraudulent acts on more than 100 occasions, should not be considered solely in the context of his previous employment as a solicitor, where he was in a position of trust which is unlikely to be repeated. Rather, the Minister argues deceptive conduct of this kind could occur in a wide variety of circumstances which might arise. This, the Minister argues, is consistent with Mr Li’s explanation of his offences as crimes of opportunity, noting Magistrate Farnon’s observation “opportunities for fraud arise in all sorts of circumstances”.[54]
[54] Ibid.
Furthermore, the Minister submits Mr Li’s offence involving possession of a mobile telephone in a detention facility is a further demonstration of opportunistic offending for personal benefit. In this argument, the Minister draws support from Magistrate Farnon’s observation the assessment Mr Li has a low risk of re-offending “has to be accepted with some reservation”.[55] The Minister‘s argument is reinforced by Mr van Meurs’ recommendation Mr Li should undertake counselling, which Mr Li has not yet commenced.
[55] Ibid.
The Minister submits the considerations relating to protection of the Australian community and the expectations of the Australian community outweigh considerations relating to Mr Li ties to Australia, the legal consequences of the decision and the extent of impediments should Mr Li be removed from Australia.
Protection of the Australian community
Under the Direction, the safety of the Australian community is the highest priority of the Australian Government. To that end the Government is committed to protect the community from harm resulting from criminal conduct or other serious conduct by non-citizens. These matters should be kept squarely in mind as should the principle that entering or remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law abiding do not cause or threaten harm to individuals or the Australian community.
It is also necessary to consider the
nature and seriousness of the Visa Applicant’s conduct to date under s 8.1.1 of the Direction and the risk to the Australian community under
s 8.1.2 should he commit further offences or engage in other serious conduct.
Nature and seriousness of conduct
The following matters are set out in s 8.1.1:
1In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again,, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Mr Li’s criminal conduct is not expressly within the types of conduct the Australian government considers to be very serious or serious in s 8.1.1(a) and (b). His conduct does not involve violence or coercion, and it was not directed against vulnerable members of the community. Nevertheless, the types of conduct expressly identified in these provisions are not exclusive.
Mr Li engaged in repetitive fraudulent conduct which involved a very serious breach of trust placed in him as a solicitor. More than 50 clients were affected by Mr Li’s defalcations on more than 100 occasions. The true extent of this conduct cannot be determined with any certainty on the present materials. The second spreadsheet and the matters before the Local Court at sentencing suggest Mr Li engaged in 149 fraudulent acts. By his own admission, the number may be much greater if one includes fraudulent transactions which were subsequently repaid.
I do not accept Mr Li’s assertion his conduct does not amount to a sophisticated scheme. The proposition that what Mr Li did was simple, easily detected, destined to be discovered and stupid or reckless is no answer. By Mr Li’s own account, managing the volume of fraudulent transactions was difficult. In all likelihood, this involved planning, monitoring, making decisions about which transactions or which clients to target, and which then to repay later. Magistrate Farnon’s remarks are apposite:
It is conceded that all of this offending was a breach of the trust which is inherent in the nature of the employment of a person as a solicitor, that there was an element of planning involved in the activity. There were a number of different accounts used. There was clearly deception involved. Deception of course, is an element of the offence and can’t be taken into account twice. But this was an extensively planned activity which involved multiple acts of fraud. The amount of money involved was significant, and in my view, all of those matters make this a very serious example of this type of offending.[56]
[56] Exhibit 1, G4, page 45.
I agree. Even if one takes a step back and considers the seriousness of Mr Li’s conduct in relative terms for the purposes of s 8.1.1(a) and (b), there are five elements which are determinative. Firstly, Mr Li’s abuse of the position of trust he held as a solicitor over a prolonged period is extremely serious. The trust placed in him was elemental to his offending conduct in the particular circumstances, and his breach of that trust “has brought great discredit on the legal profession”[57]. On this point, the explanation given in Barwick v Council of the Law Society of NSW[58] at [118] is apposite:
[T]he trust and confidence which clients place in their solicitors are a basic element of the administration of justice in this country. Violations by legal practitioners of trust accounts betray that trust and harm public confidence in the legal system. This explains the sacrosanct nature of trust accounts and the cute concern that courts have when practitioners, in breach of their fiduciary obligations, misuse trust monies for their own benefit.
[57] Exhibit 2, page 19; Council of the Law Society of NSW v Li [2024] NSWCA 218 at [8].
[58] [2024] NSWCA 32.
Secondly, the duration and the frequent, repetitive nature of Mr Li’s offending conduct, spanning three years and at least 100 (and probably more than 150) separate instances, adds to the seriousness of his conduct. Thirdly, the extent of Mr Li’s deception, targeting at least 50 clients of Sun Lawyers and defrauding them of more than $412,027 adds to the seriousness. Fourthly, Mr Li’s disregard for any impact of his offending on those clients and his employer, albeit perhaps proceeding on the assumption they would be repaid, also adds to the seriousness of his conduct. Fifthly, Mr Li’s conduct did not involve violence or coercion of any kind. There is no evidence it caused physical or psychological harm to any person. The harm caused was financial, consistent with the character of his criminal offending. For the purposes of s 8.1.1(a) and (b), noting different considerations arise in the context of reviewing the cancellation of Mr Li’s Visa than arose in determining the appropriate sentence from his criminal offences, Mr Li’s conduct is ‘serious’ but not ‘very serious’.
The sentence imposed upon Mr Li is also instructive. Magistrate Farnon rejected the application for sentence in the form of an intensive corrections order to be served in the community. Her Honour sentenced Mr Li to a term of imprisonment of 2 years and eight months, this was an aggregate sentence formulated taking into account aggravating and mitigating circumstances. The indicative sentences for each count were terms of imprisonments of 9 months on count 1, 18 months on count 2 and 18 months on count 3.[59] Magistrate Farnon observed that the maximum sentence for each count is 10 years.[60] Thus, it can be seen the sentence reflects the serious nature of Mr Li’s offending conduct.
[59] Exhibit 5, page 6.
[60] Exhibit 1, G4, page 45.
The impact on victims is difficult to assess without direct evidence from those affected by Mr Li’s offending conduct: Sun Lawyers and clients of the firm. While it can be accepted that clients who suffered loss would likely have been repaid by Sun Lawyers or the Fidelity Fund, in all likelihood they would have been out of pocket for a time, and Mr Li’s previous employer, Sun Lawyers, bears the cost and is owed compensation which Mr Li has not yet paid. While the number of defalcations is large, the majority of Mr Li’s fraudulent transactions involved relatively small amounts, with few involving substantially larger amounts. In all likelihood, the impact on clients of Sun Lawyers was not great and it appears Mr Li’s defalcations went unnoticed for a lengthy period, until a client who was directly impacted complained and his offending was revealed.
The cumulative effect of Mr Li’s offending conduct weighs on his former employer, Sun Lawyers. It was for this reason Mr Li repaid $93,000 to his former employer and he was ordered to pay $267,000 compensation to Sun Lawyers.
Mr Li has no prior criminal record, but he committed a further minor offence while incarcerated.
Considering these matters, I am satisfied the seriousness of Mr Li’s conduct is serious for the purposes of s 8.1.1.
Risk to the Australian community
When considering the need to protect the Australian community from harm, the Government’s view is that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Nevertheless, some conduct and the potential harm repetition would cause is so serious that any risk it may be repeated may be unacceptable.
Regard is also to be had, cumulatively, to the matters set out in 8.1.2:
(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 on the risk of the non-citizen re-offending; and
(ii) evidence of 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).
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The clear focus of the inquiry is the risk of harm Mr Li might cause to individuals or the Australian community should he engage in further criminal or other serious conduct if his Visa is reinstated.
I do not accept Mr Li’s assertion the unique nature of his offending contributes to the low risk of him re-offending.
The nature of Mr Li’s offending is not solely characterised by the circumstances in which it occurred. The nature of his offending, by his own description, involved opportunistic deception for his own benefit. The circumstances in which his offending occurred include the legal position he held as an enrolled solicitor and the trust placed upon him when dealing with clients and related financial transactions. Mr Li has been struck off, and it is unlikely he will be in a position to practise law in Australia in the future. Nevertheless, many are the circumstances which could arise where Mr Li might obtain employment in which he is trusted with financial transactions at some level. While it is not helpful to speculate about such matters, the real point is that Mr Li may well encounter circumstances in which opportunities might arise where, by deceptive conduct, he could obtain a benefit. For this reason, the risk assessment is not confined to the particular circumstances of Mr Li’s past offences, and it must take the opportunistic nature of his offending into account.
With regard to s 8.1.2(2)(a) of the Direction, should Mr Li engage in further opportunistic deceptive conduct for personal financial benefit, it is likely businesses in Australia or individuals in the Australian community would experience financial harm. The proposition such conduct might result in psychological harm is speculative. It can be accepted that a victim of financial fraud might experience stress or upset, but, without more, for present purposes, I am not persuaded this amounts to psychological harm. I note Magistrate Farnon’s observation that “Community safety, in the context of fraud offences by a solicitor is a somewhat amorphous concept”[61] was made in the context of sentencing Mr Li. While, generally, the impact of fraud offences on community safety might lack definition or form, and the impact will depend upon the particular circumstances in any case, the seriousness of the potential harm caused is the focus of the present enquiry. The harm for individuals and businesses who fall victim to such offending, as in this case, is not amorphous. It involves financial loss, at the very least, which may be characterised as financial harm. While financial harm is serious, there is a spectrum of potential harm depending on the scale of the fraudulent conduct in any case. The substantial majority of Mr Li’s defalcations involved relatively small amounts, with few transactions involving larger amounts. The potential harm should Mr Li engage in further similar conduct would be serious, but not very serious.
[61] Exhibit 1, G4, page 47.
In the context of s 8.1.2(2)(b)(i), risk is a chameleon-like concept which exists in a spectrum spanning faintest possibility and absolute certainty, where the nature and extent of any risk is coloured by circumstance. In the present legislative context, the threshold of tolerable risk is related to the seriousness of potential harm. Mortimer J (as her Honour then was) discussed the assessment of risk in Assistant Minister for Immigration and Border Protection v Splendido[62] at [78]:
The nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for assessment about the nature and extent of any risk of further offending.
[62] [2019] FCAFC 132.
Her Honour discussed the assessment of risk and the legal conception of ‘unacceptable risk’ in Tanielu v Minister for Immigration and Border Protection[63]at [102]:
102. It is well established that, where the harm which might be caused by future conduct is particularly serious, a lesser likelihood of the conduct occurring may be required for the risk to be identified at a level requiring a particular decision to be made. It is also well established that the likelihood of a person engaging in conduct in the future is affected by both static and dynamic factors: that is, factors which can be assessed objectively against statistical models to predict the risk category a person falls into, and dynamic factors personal to an individual which may moderate or exacerbate the risk the person otherwise could be said to pose. Those factors might include family support, alcohol and drug abuse patterns, employment and the like.
[63] [2014] FCA 673.
While past offending by a person is integral to assessment of any risk of future offending, the evaluative assessment of such a risk requires more than inferential tendency reasoning alone based on the person’s criminal record: he did it before and he has a propensity to do this kind of thing, so he is likely to do it again. The evaluation of risk in this context requires close consideration of the nature and circumstances of the person’s past conduct as well as evidence of circumstances which may bear upon any risk their past offending conduct might or might not be repeated. This involves consideration of a range of inputs which ‘fall short of criminality but may still rationally bear upon the assessment of whether a person “might” engage in criminal conduct in the future’.[64]
[64] EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No. 2) [2021] FCA 1536 at [182].
In this case, the Tribunal has the benefit of reports by Mr van Meurs and Dr Neilsson. Mr van Meurs assessed Mr Li has a low risk of re-offending and recommended a minimum of 12 sessions of schema therapy with a clinical psychologist.[65] Dr Nielssen reported Mr Li had reasonable prospects of rehabilitation and recommended that specialist counselling, including from a financial planner, may help Mr Li better manage his affairs and devise a plan for repaying the money he owes.[66] Presently, Mr Li has not yet commenced or made arrangements to commence counselling of these kinds.
[65] Exhibit 2, page 23.
[66] Exhibit 5, page 28.
Mr van Meurs applied the Level of Service/Case Management Inventory (LS/CMI) risk assessment tool and stated:
Although useful in guiding decisions about risk and the management thereof, the practice of risk assessment is subject to several important limitations. Specifically, given the base rate of financial crime offender recidivism is low, the prediction of such behaviour is difficult… With regard to financial crime, there is no specific instrument for use with this client group, and as such I have selected a measure of general recidivism, the LSI/CM.[67]
[67] Exhibit 2, page 20.
Applying this instrument, Mr van Meurs reported Mr Li’s “overall score on the LS/CMI is ‘low’” and the “cumulative frequency for Mr Li’s score on the LS/CMI places his risk of reoffence while incarcerated at 1.5% and 14.6% while in the community”.[68] Mr van Meurs observed Mr Li’s overall score would have been in the ‘very low’ category but for his mobile phone offence while incarcerated. With respect to Mr van Meurs, it is not to the point to speculate about what Mr Li’s overall score might have been if he had not committed the offence while incarcerated. The commission of the further offence is a relevant matter in the risk assessment which cannot be stepped over. I do not accept the mobile phone offence adds nothing to Mr Li’s risk profile. It clearly does. It is an example of Mr Li being confronted with and seizing an opportunity to engage in conduct to benefit himself, contrary to rules by which he was bound. As I have said, Mr Li’s assertion he did not know he should not have a mobile telephone in the detention centre is, at best, implausible. While one can understand the three reasons, he gave for engaging in this conduct, it does not alter the fact that he did so. This offence is properly to be weighed in the assessment of risk Mr Li might engage in further criminal or serious conduct.
[68] Ibid, page 22.
Apart from anything else in Mr van Meurs report, the quantification of Mr Li’s risk of re-offending in the community is illuminating. Mr van Meurs reports this in percentage terms: 14.6 percent. This suggests the low-risk Mr van Meurs assessed equates to a 1 in 7 chance of re-offending.
The key point is the relevant materials, including Mr van Meurs’ report, suggest there is a low risk of Mr Li re-offending. So much is reinforced by the Sentencing Assessment Report.
Magistrate Farnon accepted this assessment with some reservation, noting the lack of a clear explanation for Mr Li’s conduct, when he had so much to lose and no obvious reason for committing the offences. In these proceedings, Mr Li has given a number of explanations for his conduct, which I have already referred to. Viewed objectively, there are two threads running through Mr Li’s explanations. The first is that once he crossed the line in April 2019 and received client monies into his personal bank account, he could not find a way back which preserved his position in employment and in his relationship with XB, and the further he went, the harder this became. The second thread is that he got into financial difficulties he could not manage, purchasing motor vehicles and related items in December 2019 and May 2020 which he could not afford. He stated “I was addicted to and became obsessed with car racing”. It is clear enough this drove Mr Li on in his fraudulent conduct. He admitted he spent most of the monies he fraudulently obtained on his car racing hobby.
I accept that Mr Li experienced emotional stress and disappointment when his relationship with XB failed in April 2020, and this might well have played a role in what he then did. The risk of Mr Li engaging in a similar response to such in the future is likely to be reduced if he engages in the counselling recommended by Mr van Meurs and Dr Nielssen.
Presently, the risk assessment is at a low but not a very low level.
With regard to s 8.1.2(2)(b)(ii), after being charged, Mr Li was released on bail. He spent several months in the community, working for Mr Mak and as an Uber driver. He breached bail on one occasion, but otherwise committed no offences in the community at that time. However, Mr Li committed a further offence while serving his prison sentence. He has not engaged in any formal rehabilitation. He asserts he has engaged in self-reflection during the period of his incarceration, particularly since being transferred to the Bathurst Correctional Centre. Mr Li gave evidence he is not eligible for any therapeutic programs[69] while held in custody and he intends to engage in the counselling recommended by Mr van Meurs on his release, but he has not yet made any arrangement to do so. Mr Li was assessed by Dr Nielssen on 17 November 2022. The doctor recommended Mr Li would benefit from “specialist counselling”[70]. There is no evidence Mr Li engaged in such counselling when he had the opportunity to do so during the period he was released into the community on bail.
[69] Exhibit 5, page 74.
[70] Ibid, page 28.
I note, should the mandatory visa cancellation decision be revoked, on 9 October 2024, Mr Li is eligible to be released on parole into the community, whereupon he would be subject to the conditions of his parole until 9 January 2026. During this period, by Mr Li’s account, he expects to undergo the psychological counselling Mr van Meurs recommended. On Mr van Meurs evidence and the evidence of Dr Nielssen, this would likely improve Mr Li’s rehabilitation and the risk he might re-offend.
The serious conduct Mr Li engaged in, and the seriousness of the potential harm to Australians and the Australian community should he engage in further criminal or serious conduct, is ameliorated somewhat by the low level of risk. Nevertheless, Mr Li has not yet engaged in rehabilitative activities, including counselling recommended by Mr van Meurs and Dr Nielssen, and the risk of harm remains. This weighs on the tolerance of the Australian community. Should Mr Li’s Visa be reinstated, the Australian community would have some protection during the period of Mr Li’s parole during which he expects to undergo counselling he has not been able to obtain while incarcerated. Presently, Mr Li’s criminal conduct does not align with the privilege conferred upon him to remain in Australia as a non-citizen and the expectations on which conferral of the privilege is based.
While the consideration of protection of the Australian community weighs against revocation of the mandatory visa cancellation decision, the low risk of Mr Li re-offending reduces the weight that should be given.
Family Violence
There is no evidence Mr Li engaged in family violence.
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.
These considerations weigh in favour of revoking the mandatory cancellation of Mr Li’s Visa. The weight that should be given is increased as Mr Li has spent more time residing in Australia than in China, having arrived as a child at the age of 16.
Best interests of minor children
There are no minor children whose interests should be taken into account.
I am satisfied this consideration is not presently relevant.
Expectations of the Australian community
Matters to be considered in respect of the expectations of the Australian community are set out in s 8.5 of the Direction:
1The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
2In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
3The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
4This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The Government’s statement of Australian community expectations ‘as a norm’ is generally adverse to any visa applicant who has engaged in serious conduct giving rise to character concerns in breach of those expectations.[75] Nevertheless, the expectations expressed should be considered on the facts of each case and weighed with other relevant considerations. This section of the Direction should not be construed as directing the decision of the decision maker in any case or as inimical to the consideration of relevant facts and circumstances.
[75] FYBR v Minister for Home Affairs [2019] FCAFC 185, per Charlesworth J at [75] and Stewart at [89].
In FYBR v Minister for Home Affairs[76], Stewart J explained the consideration involves evaluation of what is appropriate in the particular circumstances of the non-citizen and attribution of weight to an adverse character assessment:
It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances. Nevertheless, an adverse character assessment is necessarily against a visa applicant, to some degree or other; no one will be awarded a visa because they are of bad character.[77]
[76] [2019] FCAFC 185.
[77] Ibid, per Stewart J at [102].
Consequently, there are two main limbs to the consideration of community expectations. The first is the serious conduct Mr Li has engaged in and the nature of the resulting character concern. The second is an evaluation of the appropriate weight it should be given in the circumstances.
There is no doubt Mr Li’s offending conduct breaches the expectation he will obey Australian laws while in Australia. The resulting expectation is the Government will not allow him to remain in Australia.
The nature of the character concern Mr Li’s serious conduct raises relates to the opportunistic and deceptive nature of the conduct and the risk Mr Li might engage again in such opportunistic or deceptive conduct for his own benefit.
The concern is mitigated to some degree by Mr Li’s previously unblemished record and his contributions to the Australian community. To this his expressions of remorse and shame can be added, albeit tempered somewhat by open questions about the true extent of Mr Li’s insight into his serious conduct and the lack of persuasive evidence of his rehabilitation, noting Mr Li has not undertaken the counselling Mr van Meurs recommended, and he did not engage in the counselling Dr Nielssen recommended. I note and accept, Mr Li has experienced difficulties obtaining access to counselling during the period of his incarceration as he was deemed ineligible.
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.
Considering this history, it is possible Mr Li might experience some difficulty re-integrating into life in China. While there is evidence his parents experienced stress and shame on learning of Mr Li’s offending conduct, there is no evidence he will face any adverse familial, cultural or social impediments should he return to China.
There is no probative evidence of Mr Li’s employment prospects should he return to China. I note he has given conflicting accounts of his ability to work in the law in China. On 1 August 2023, Mr Li was interviewed and the relevant Case Note Report includes:
[H]e stated that he will be able to return to practicing law [in China] quite easily and will have support from family with accommodation etc.[82]
[82] Exhibit 5, page 74.
In his oral evidence, Mr Li explained he would not be able to practice law in China as he holds an Australian law degree and he knows nothing about Chinese law.
It is conceivable if Mr Li returns to China, at least for an initial period, he might struggle to find employment and his capacity to earn money to pay the compensation he has been ordered to pay to his former employer might be reduced. I note his parents are supportive of him and, in the Minister’s submission, even though they are both retired, they may have connections which may assist Mr Li to find employment.
Considering these matters and the paucity of relevant evidence and submissions, I accept Mr Li is likely to encounter some difficulties reintegrating into life in China having spent all his life as an adult in Australia. This consideration does not weigh heavily in the balance. It weighs in favour of revoking the cancellation of Mr Li’s Visa, but only slightly.
Impact on Australian business interests
This consideration is directed to Australian business interests:
(1) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Mr Li did not make any substantial submissions in respect of this consideration when invited to do so. He submitted the consideration is not relevant.
The Minister agrees.
The only businesses in Australia which might be impacted are Mr Li’s former employer and Mr Mak’s business, both of which are at a remove from the matters to which this consideration is directed.
In his evidence, Mr Li stated:
[I]t is my plan to work and continue paying back the money I stole. I fear that if I returned to China, I will not be able to make good on this and compensate the victims of my offending.[83]
[83] Exhibit 2, page 25.
Mr Li’s legal obligation to pay the compensation ordered on sentencing will not end if he is not allowed to remain in Australia.
There is no probative material addressing Mr Li’s employment and income prospects should he not be allowed to remain in Australia and he returns to China. There is also no reliable material on which to determine the likelihood Mr Li might fail to meet his legal obligation to pay compensation in such circumstances.
By his own account, Mr Li has not paid compensation to Sun Lawyers during the period of his imprisonment. There is no evidence of the impact on the Sun Lawyers business should Mr Li fail to comply with the order to pay compensation if he is not allowed to remain in Australia.
Nevertheless, it can be accepted that Sun Lawyers’ business interests would be impacted by such an eventuality, at least to the extent of the compensation Mr Li owes: $267,000. This is not an insignificant sum.
The likelihood Mr Li might not meet his compensation obligations if he returns to China is a difficult matter to determine. On the one hand, Mr Li has asserted he may not be able to repay his victims if he is unable to remain in Australia. As I have said, his employment prospects and his earning potential in China cannot presently be assessed. I note he has committed opportunistic crimes of deception for personal financial benefit and, even though there is a low risk of him re-offending, this raises the possibility he might fail to meet his legal obligations if he departs from Australian jurisdiction. On the other hand, Mr Li has given evidence about his contrition and his plans to repay the victims of his criminal offences. He stated:
The indebtedness I feel to my parents to make up for my offending and work hard to make sure that I never go down that path again is one of the greatest insulators for me.[84]
[84] Ibid, page 26.
If this is correct, closer proximity to his parents might stiffen Mr Li’s avowed resolve to meet his legal obligations to compensate Sun Lawyers should he return to China.
Regarding Mr Mak’s business and Mr Mak’s offer to employ Mr Li should he be released into the community; it is conceivable the business would lose a valued employee if Mr Li is not allowed to remain in Australia. The difficulty with this is Mr Li is not presently employed by Mr Mak’s business and, by his own account, he intends to develop a career in the construction industry. Even if I was to accept any of this, there is simply no evidence of the impact of this on Mr Mak’s business. At the highest, all that can be said is Mr Mak’s business might be deprived the benefit of re-employing a previously good employee.
Considering these matters, noting there is very little to go on, I am satisfied this consideration weighs marginally in favour of revoking the cancellation of Mr Li’s Visa, but only to a very slight degree.
Conclusion
Mr Li engaged in serious conduct, repeatedly committing opportunistic defalcations over an extended period and betraying the trust placed in him as an enrolled solicitor of the Supreme Court of NSW. There is a low risk of him engaging in further such conduct. This lightens the weight of concern about his serious conduct and the potential harm to the Australian community. Nevertheless, should he engage in further criminal or serious conduct involving opportunistic deception for personal financial benefit, he would cause financial harm to individuals or businesses and the Australian community. The safety of the Australian community is the Government’s highest priority. The consideration relating to protection of the Australian community from criminal or other serious conduct is generally to be given more weight than other considerations. Noting these matters, I am satisfied this consideration weighs against revoking the mandatory cancellation decision but the weight is lessened by the low risk Mr Li might engage in further criminal or serious conduct.
Consideration of Australian community expectations adds weight against revoking the mandatory visa cancellation decision. The character concern is in respect of Mr Li’s opportunistic and deceptive conduct to obtain a personal financial benefit, albeit the weight given to the concern is lightened somewhat by the low risk of him re-offending.
The strength, nature and duration of Mr Li’s ties to Australia weigh in favour of revoking the mandatory cancellation of his Visa. The greater part of Mr Li’s life has been spent in Australia: Mr Li has spent 18 years in Australia, having arrived in 2006 at the age of 16. This adds substantial weigh. While Mr Li does not have immediate family members in Australia, he contributed positively to the Australian community for 14 years before he commenced offending, and he has a small but strong social network of friends in Australia. I note Mr Li’s relationship with XB is uncertain and, in the past, this had the character of a defacto relationship. There is no evidence from XB. Nevertheless, on Mr Li’s evidence the relationship with XB may well rekindle and he is expecting to reside with XB should he be released into the community. This, too, adds weight to this consideration, which weighs solidly in favour of revoking the mandatory cancellation of Mr Li’s Visa.
Other considerations, the extent of impediments if Mr Li is removed from Australia and the impact of this on Australian business interests, add weight in favour of revoking the mandatory visa cancellation decision, but the additional weight is not great.
On balance, weighing all the relevant considerations, I am satisfied the balance tips in favour of revoking the mandatory visa cancellation decision. Considerations relating to protection of the Australian community from harm and Australian community expectations are outweighed by considerations relating to the strength, nature and duration of Mr Li’s ties to Australia and other considerations to which I have referred. While the considerations are finely balanced, the scale is tipped by Mr Li having spent the majority of his life in Australia from the age of 16 and the low risk of him re-offending.
I am satisfied there is another reason to revoke the Visa cancellation decision for the purposes of s 501CA(4)(b)(ii).
From this it follows, the decision of the Minister’s delegate on 30 July 2024 must be set aside.
Decision
The 30 July 2024 decision not to revoke the cancellation of Mr Li’s visa under s 501CA(4) of the Act is set aside.
I certify that the preceding 167 (one hundred and sixty -seven) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
........................[sgd]................................................
Associate
Dated: 9 October 2024
Date of hearing: 3 October 2024 Counsel for the Applicant: Mr Nicholas Poynder Solicitors for the Applicant: Ms Angela De Silva, AGAPE HENRY CRUX Solicitors for the Respondent: Mr Max Gao, HWL Ebsworth Lawyers
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