Li and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 4585

Li and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4585 (6 December 2023)
Division:GENERAL DIVISION
File Number: 2023/6924
Re:Tong Li
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member D. Cosgrave
Date of decision: 6 December 2023
Date of written reasons: 21 February 2024
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 12 September 2023 to not revoke the cancellation of Mr Li’s visa.
..............[SGD].............
Member D. Cosgrave
Catchwords
MIGRATION – mandatory visa cancellation – failure to pass good character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 99 applied – where criminal offending leading to failure of character test involved a minor- Tribunal finding risk of reoffending of unacceptable – where Applicant has limited ties in Australia – Tribunal finding factors in favour of revocation outweighed by those against revocation – Tribunal finding there is no another reason to revoke the mandatory cancellation decision - decision under review affirmed.
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Demir V Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
GJJF and Minister for Home Affairs (Migration) [2019] AATA 930
Holloway V Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Member D. Cosgrave
21 February 2024
INTRODUCTION

Mr Li seeks review of the Respondent’s delegate’s 12 September 2023 decision not to revoke the mandatory cancellation of his Class SI Subclass 189 Skilled-Independent (Permanent) visa (the Visa).[1]
[1] G documents, G2, page 7. G documents are so named because they are provided under s 501G of the Migration Act 1958 (Cth). They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision. They usually accompany the Minister’s written notice regarding a visa cancellation, refusal, or non-revocation.
The hearing was held by audio visual link in Brisbane on 20 and 21 November 2023. Mr Li represented himself. Mr Brown of the Australian Government Solicitor represented the Respondent. The hearing was assisted by a Mandarin interpreter.
On 6 December 2023, the Tribunal met its 84-day statutory obligation[2] by providing a short form decision in which it affirmed the decision under review.[3] The Tribunal now gives its reasons for its decision.
[2] Pursuant to s 500(6L) of the Migration Act 1958 (Cth).
[3] Khalil v Minister for Home Affairs (2019) 271 FCR 326 [41]–⁠[48].
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
Mr Li is a 33-year-old[4] citizen of the People’s Republic of China (PRC) who first arrived in Australia on 18 July 2013.[5]
[4] G1, page 2.
[5] Exhibit 1: G3, pages 69 – 68.
On 14 September 2021, Mr Li's Visa was cancelled under s501(3A) of the Migration Act 1958 (Cth) (the Act) [6] because he did not pass the character test given his ‘substantial criminal record’.[7]
[6] Exhibit 1: G1, page 18.
[7] As defined in ss 501(6)(a) and 501(7)(c) of the Act.
Section 501(7)(c) of the Act provides that for the purposes of the character test a person has a 'substantial criminal record' if the person has been sentenced to a term of imprisonment of 12 months or more.
Mr Li was convicted on 7 September 2021 of one count of Procure child for sexual activity (basic offence) ('index sexual offence’) and sentenced to a period of imprisonment of one year, eight months and 28 days.
OFFENDING HISTORY
Mr Li has been convicted of 7 offences.[8]
[8] Exhibit 1: G3, pages 27 - 28.
His offending can be categorised as follows:
(a)The index sexual offence described above.
(b)Breaching casino banning orders or bail conditions.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and Section 500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read with section 501(6), oblige the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test because they are serving a full-time sentence of imprisonment.
The character test is defined in s 501(6) of the Act. Relevant for this matter, a person does not pass the character test if:
‘S501(6)(d)
In the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
…
(ii) harass, molest, intimidate or stalk another person in Australia;…’
Under s 501CA(4), the Respondent may revoke the original decision if:
(a)representations have been made by the person in accordance with the invitation;[9] and
(b)the Minister is satisfied that:
(i)the person passes the character test;[10] or
(ii)there is another reason why the original decision should be revoked.[11]
[9] Pursuant to s 501CA(4)(a) of the Act.
[10] Pursuant to s 501CA(4)(b)(i) of the Act.
[11] Pursuant to s 501CA(4)(b)(ii) of the Act.
MATTERS FOR CONSIDERATION
Mr Li’s Visa was cancelled on the basis that he had failed the character test once the delegate considered and then applied section 501(6)(a).
The first issue for the Tribunal to consider is whether Mr Li fails to pass the character test.
If Mr Li fails the character test, then the second issue for the Tribunal to consider under section 501CA(4)(b)(ii) of the Act is whether the Tribunal is satisfied of there being another reason to revoke the cancellation decision.[12] The Tribunal “stands in the shoes of the original decision-maker” but with regard for the situation as at the time of its consideration.[13]
[12] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[13] Nathanson v Minister for Home Affairs [2022] HCA 26 (“Nathanson”); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
To assist its assessment, the Tribunal has created the following chronology of events, including Mr Li’s convictions, visa cancellations and rehabilitation efforts:

Date

Event

7 September 2021

Convicted of Procure child for sexual activity (basic offence) and sentenced (the Index Offending).

22 September 2020

Five charges of Entering or remaining in casino contrary to order or direction and one charge of Breach of bail condition. Mr Li failed to appear.

27 August 2020

One charge of Entering or remaining in casino contrary to order or direction. No conviction recorded and Mr Li was fined $500.

6 May 2020

One charge of Enter or remain in a gaming area. No conviction recorded and Mr Li was fined $60.

24 March 2020

One charge of Entering or remaining in casino contrary to order or direction and one charge of Cheating by fraudulent trick, device, sleight of hand or representation. No conviction recorded and Mr Li was fined $250 for each charge.

17 August 2018

One charge of Barred person – contravene barring order. No conviction recorded and Mr Li was fined $300.

On 25 February 2022 at the Adelaide Magistrates’ Court a charge of ‘Dishonestly take property without consent’ was adjourned for a fresh summons to be issued. As noted above, Mr Li was sentenced on 7 September 2021 for the Index Offending to a term of one year, eight months and 28 days’ imprisonment. Consequently, Mr Li has a ‘substantial criminal record’ as defined under s 501 (7)(c) of the Act, having been sentenced to a term of imprisonment of 12 months or more for a criminal offence, and pursuant to s 501 (6)(a), does not pass the character test.
IS THERE ANOTHER REASON WHY MR LI’S VISA CANCELLATION SHOULD BE REVOKED?
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 at [27], approving the reasoning in Viane,[14] identified the following principles as being relevant to the statutory task conferred by Section 501CA(4):
‘If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation….’
[14] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
When the Tribunal assesses and considers the factors weighing for and against setting aside a visa cancellation, section 499(2A) of the Act requires it to comply with Direction 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[15]
[15] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at para [38].
The Direction
The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[16]
[16] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, at [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, at [45].
The following principles in paragraph 5.2 of the Direction inform the decision-making process:[17]
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.
2Non-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.
3The 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 measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-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. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
[17] Paragraph 5.2 of the Direction.
Paragraph 6 of the Direction provides that, informed by the above principles, a

decision-maker must consider the Primary and Other considerations described in Paragraphs 8 and 9 of the Direction where relevant to their decision making.
Paragraph 7(1) of the Direction provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources.’
Paragraphs 7(2)-(3) of the Direction state that ‘Primary considerations should generally be given greater weight than the other considerations,’ and ‘One or more primary considerations may outweigh other primary considerations.’
Paragraph 8 of the Direction provides the following primary considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the strength, nature and duration of ties to Australia;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
Paragraph 9 of the Direction identifies the following non-exhaustive list of other considerations to be considered where relevant:
·legal consequences of the decision;
·extent of impediments if removed;
·impact on victims; and
·impact on Australian business interests.
The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on each matter’s specific circumstances.[18] The weighing process is substantively left to the individual decision maker exercising the relevant power under section 501 of the Act.[19]
[18] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[19] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
EVIDENCE
The following is an overview of the evidence tendered or adduced before the Tribunal. The evidence referred to below includes documentary evidence collated for the purposes of section 501G of the Act, documents tendered by the Respondent and Mr Li and testimony given by Mr Li, his former de facto partner Mr Bo Zhao and his friend Mr Matthew Parenzan.
Documentary evidence
The Tribunal received written evidence during the hearing, which is attached to this Decision and marked ‘Annexure A’. The following documents were tendered into evidence and considered by the Tribunal:
(a)G Documents.[20]
(b)Mr Li’s statement of facts, issues and contentions (SFIC).[21]
(c)The Respondent’s SFIC.[22]
(d)Mr Li’s reply submissions.[23]
(e)Mr Li’s bundle of evidence.[24]
(f)Supplementary T documents.[25]
[20] Exhibit 1: G-Documents G1 to G3.
[21] Exhibit 2: Applicant’s Statement of Facts, Issues and Contentions.
[22] Exhibit 3: Respondent’s SFIC.
[23] Exhibit 4: Applicant’s Reply Submissions.
[24] Exhibit 5: Applicant’s Bundle of Evidence.
[25] Exhibit 6: Supplementary T Documents.
Oral Testimony
The witnesses who gave evidence during the hearing were:
(a)Mr Li.
(b)Mr Bo Zhao.
(c)Mr Matthew Parenzan.
Mr Li’s oral testimony

Relevant aspects of Mr Li’s oral testimony are excerpted below.
Examination-in-chief
Mr Li affirmed the statements he made in his Personal Circumstances Form[26] and his 12 August 2023 email.[27]
[26] Exhibit 1: G3, pages 49 – 64.
[27] Exhibit 1: G3, pages 65 – 66.
Cross-Examination
Mr Brown cross-examined Mr Li:
Reasons for coming to Australia
‘Mr Brown: And why did you make that decision then?
Mr Li: So there are a few reasons. Firstly because at that time I was very young and I wanted to go outside and see the world. It’s – life is not settled back then when I was young, and the second reason is because I am gay, I had a boyfriend at that time. I think that in Australia or in western countries the protection for lesbians are relatively more comprehensive and I had the discussion with my boyfriend about which country to go, and we – our discussion we discussed that Australia – we agree that like Australia to go after graduation.
Mr Brown: Okay. So you started university when you were about 17 and a-half, and you said earlier on that you left home in the third year of university. Is that right?
Mr Li: So it was in the third year of university I started thinking about to go and come to Australia, or go overseas, but the third year in university I think I was about 20 years' old. But when I left the home, and then come to uni at around of 17 and a-half.
Mr Brown: All right. So you're now saying that you left home when you started university around-about 17 and a-half. Is that right?
Mr Li: Yes. That's correct.
Mr Brown: All right. And when did you form your relationship with your boyfriend then?
Mr Li: So I think it is about in the second semester of third year in university, or maybe the beginning of the fourth year in uni. I can't remember very clearly, but probably it will be in the second half semester, second semester in third year in university.
Mr Brown: So you were about 20 years of age then. Is that right?
Mr Li: Let me check the year when I go to – when I went to university. The year I was in the (Language other than English spoken).
Mr Li: So just correct the years. The third year in university, that year is in 2012. So I was born in 1990, so when the third year in uni I was 22 years' old, and when I started in university that will be 2009, and then 2009 I was - the first year uni I was 19 years' old. So just to correct these years.
Mr Brown: Okay. Thank you. So, in terms of the question I asked you, how old were you when you started your relationship with your boyfriend?
Mr Li: Twenty-two.’[28]
[28] Transcript, page 9, line 7 – page 10, line 25.
and
‘Mr Brown: Okay. Now how soon after becoming involved with your boyfriend did you begin to discuss this plan for you to go across and then him to follow?
Mr Li: So actually before I met him I had this plan, had this idea, but after I met him we have been discussing the details of this plan.
Mr Brown: I'm not sure I understand that. Before you met him you had a plan to take him with you. I don't really understand that.
Mr Li: So what I mean is before I came to Australia, and then before I met him, I did some research by myself. I check the regulations, or laws, in Australia about gay or lesbian or marriage regulation. I've done this research by myself and then I had this idea, or like inclined – I tend to choose Australia. Then later after I met him we did more comparison between with other countries, like New Zealand, like Canada or some European countries, but after our discussion we – for him, he love – like Australia as well before he learned the tourism, and then he personally prefer Australia as well. That’s why we choose Australia. We both agreed to choose Australia.’[29]
[29] Transcript, page 17, lines 16 – 34.
Sexual Experience
‘Mr Brown: Okay. So you arrived in Australia in about July 2013. So approximately your first sexual relationship with your boyfriend was around about February 2013, something like that. Is that right?
Mr Li: Pretty much.
Mr Brown: All right. That's fine. And was this the first gay sex relationship you’ve been in?
Mr Li: So it is my first gay relationship, but not the first sex.
Mr Brown: Okay. So can you tell the tribunal about when you first were involved in a sexual relationship with a man or - - -
Mr Li: The first sexual relationship I think when I was very very young, like around 13 or 14 years' old.
Mr Brown: So that was with school friends, was it?
Mr Li: Yes.’[30]
[30] Transcript, page 12, lines 7 – 27.
Parental awareness of Mr Li’s sexual orientation
‘Mr Brown: Okay. What was it about the Adelaide degree that you did not enjoy that caused you to cease after one semester?
Mr Li: So there are two reasons. The first reason is because I thought many of the things at Adelaide I have already learned in China, and it’s not necessary to learn them again and pay the tuition, and also because the tuition is very high. At Adelaide University I think it’s about 40,000 a year. And the second reason is because my mum got to know about my relationship with my boyfriend. So my relationship with the mum got tense, because mum knows that, and then when asking money for my mum – from my mum, got some difficulty because mum is not happy about this, and then mum also want him to go back, and then argues with him about – about that as well.
Mr Brown: Okay. So mum found out about you and your boyfriend when you were about 22. Is that right?
Mr Li: So mum found it out after I came to Australia. I think that’s in 2013.
Mr Brown: Yes. Yes. You came to Australia in July 2013 when you were 22. Is that right?’[31]
[31] Transcript, page 18, lines 9 – 30.
Immigration Studies
‘Mr Brown: Right. So what did you do?'
Mr Li: So I will – I think I will start from how I got to know 476 visa. At that time there is one person in Adelaide who helped me with this visa, and I got to know of visa 476, and I also got to know other visas. I found that – quite interested in the visa systems and I wanted to learn about – to learn more about that but before learning the visa system I think I will – it will be better for me to get permanent residency in Australia first, then that’s how – so I learn – before I learned immigration law at Griffith, so I think I – I – I think I’ll be – it would good if I could get the PR(?) first.
Mr Brown: So what is it that you did? You didn’t do an engineering job. What did you?
Mr Li: I did internship in the office in Adelaide Immigration Office called the Immigration – Adelaide – the English name is called Adelaide Immigration and Education Centre because it’s Chinese company focused on Chinese students, and I did some clerk work there, like basic paperwork – sorry, sorry, I should speak Chinese. I did some paperwork – let me finish this first. I did some paperwork there in the Adelaide Immigration and Education Centre, and after that I got professional year, if you know about professional year, Navitas in Adelaide. So after I finish professional year, this degree which gives me extra five points to the immigration point, make my total point of 60. So I get my 60 point for the immigration purpose during that year, and after that I went to Griffith University to study the immigration law and practice.’[32]
[32] Transcript, page 21, lines 9 – 42.
and
‘Mr Brown: Thank you. Thank you. I know it’s difficult. All right. So you were provided with some advice by somebody who had immigration expertise, taking leave with a view to obtaining permanent residency, and you worked for a year or so in an internship role before then going off to do the graduate diploma at Griffith university in migration law; is that right?
Mr Li: Yes.
Mr Brown: Okay, and you finished that graduate diploma in 2016?
Mr Li: 2017.
Mr Brown: 2017, right. And after that you set yourself up in your own business; is that right?’[33]
[33] Transcript, page 22, lines 6 – 20.
Relationship with Mr Zhao
‘Mr Brown: Now, in 2016 you were able to assist your boyfriend to obtain a visa to come to Australia; is that right?
Mr Li: Yes, he came in 2016.
Mr Brown: Did he come to study or to work? What did he come to do?
Mr Li: Okay. So he was very lucky. That is the first year when Australia started to grant working holiday visa to mainland China, and also there is a limit – I mean, a number of limit – number limits, I think it’s a 5000 visas, and he is very lucky and he got this – he got this – he got this successfully in the first successful applicants.
Mr Brown: So he’d got the lucky draw?
Mr Li: Yes.
Mr Brown: So he arrived on his working holiday visa and was it then that you started to live together?
Mr Li: Yes.
Mr Brown: Okay. And that was in Adelaide was it?
Mr Li: Yes.
Mr Brown: And was your boyfriend then able to find work? And if so, what was it?
Mr Li: Okay. So he firstly do some casual job at restaurants, and then a few months later he found the job as a salesman at a wine company.
Mr Brown: So I think you said earlier on that he was studying tourism in China; is that right?
Mr Li: Yes.
Mr Brown: Okay. And your boyfriend stayed in Australia until he returned to China. When did that happen?
Mr Li: I don’t know which period you talk about.
Mr Brown: So arrived in 2016 on the working holiday visa, got himself a job as a salesman working for a wine company, you moved in together, and that relationship lasted until April of 2020; is that right?
Mr Li: Sorry, did you say April 2020?
Mr Brown: I did.
Mr Li: Okay. Which as to – which month, I couldn’t remember very clear but it was in the beginning of 2020.
Mr Brown: And after that he returned to China; is that right?
Mr Li: Okay. So because of the – because of the trade relationship between China and Australia got worse, so the business – wine business is not going well in Australia, then a lot of the wine salesmen they were – they went back to China, they work in China in the – in the wine business, and then later I think he came back last year because the prime minister, Australian prime minister after his visit to China, the relationship got better and they expect the wine business will grow. So he called me and told me that he will continue to work in the wine business with our previous – with our boss.
Mr Brown: Okay. So assuming that it was April 2022 that your relationship broke up, do you know when after that he returned to China?
Mr Li: Let me think. Okay. So lets assume that our relationship ends in April 2020 and I got this criminal charge in December 2020. Then later I stayed in prison – I’m in imprisonment for a few months, then I was released on bail. When I came out I think he is still in Australia. So I think between the beginning of 2021 to June 2021 he is still in Australia. If going back – it’s probably in June 2021. So in my memory, it should – it’s not in 2020 if he went back to China. It’s probably 2021.
Mr Brown: Fair enough. Thank you. Now, the improvement in the Australian-Chinese wine relationship occurred beginning of this year. So is that when he returned to Australia? Beginning of this year?
Mr Li: So he didn’t come back the beginning of this year. He came back last year. So he called me in the beginning of this year because he said he wanted to go back to work in the wine industry.
Mr Brown: Okay. And is that what he’s done?
Mr Li: So right now, they are still planning and waiting for the opportunities. Right now, the relationship in trade between China and Australia is getting better, but they are still waiting for their official policy for the tariff. It is – might be China, might be re-cancelled. I mean, the policy hasn’t come out yet, so they are still waiting and – waiting for their opportunities.
Mr Brown: So If I’m understanding correctly, your former boyfriend is back in Australia now. Is that right?
Mr Li: So he called me two days ago, telling me that he will go back to China to attend a friend’s wedding and will come back on 2 December.
Mr Brown: Okay. So he’s speaking to the tribunal tomorrow. Is that right?
Mr Li: Yes. I have already told him and yes, we can reach him by phone.
Mr Brown: And he’s speaking to the tribunal from Australia or from China?
Mr Li: He’ll be in China.
Mr Brown: He’ll be in China. Okay. So has he been in Australia in the course of 2023?
Mr Li: So he will stay – he stayed in Australia for the whole year in 2023. He just went back to China in November of 2016. Or 2018. And a couple – a few days ago. November, yes.
Mr Brown: Now, following his return to Australia, which ran for the whole of 2023 until a few days ago when he returned to China, how often have you been in touch with him? How much communication have you had?
Mr Li: So we got in touch with each other sometimes every day, sometimes every one to two, or two to three days. We have calls or we do chat. Every time it’s about one hour.
Mr Brown: All right. But you are no longer in a relationship. Is that correct?
Mr Li: Yes, that’s right.’[34]
[34] Transcript, page 23, line 44 – page 26 line 34.
Introduction to and attendance at casinos
‘Mr Brown: Now, how were you introduced to the casinos in Australia? How did that happen?
Mr Li: Okay. Okay. Sorry, I just need to confirm that internship is a male or female. Just one second. Okay, thank you. So this is a sad story. When I mention talking about, it’s making me feel very sad. I think it happened when I was doing an internship in Adelaide. I was at it in 2015 or 2016, I couldn’t remember very clearly. It might be the end of 2015 or the beginning of 2016. We also got another intern from Sydney. He is of a similar age with me. And after work, I just take him out and show him around in Adelaide. And then, when we come to casino, I introduced him. This is the casino, this is the casino, and he has never walked into the casino before because he doesn’t want to do gambling. It’s difficult. It’s not easy to make the money, but that intern insisted on going into the casino and have a look.
Mr Brown: Yes. So you both went inside to have a look. Was this the first time you’ve been in the casino?
Mr Li: Yes, first time to casino.
Mr Brown: What did you both do?
Mr Li: So when we walked into the casino, we – in the beginning, we were just looking. Because in China, we don’t have the casino and we found it quite interesting, and we tried to understand the rules in the casino. Because we don’t have similar – we’ve never been there before. After we got to know all of these rules in casino, I exchanged $100 and I remember very clearly, I bought – I think it was $10 each. So in total it’s ten trips. I played two or three rounds. Then I got – I win $30. We are very happy with that, and we also have coffee after the play. And it’s a very pleasant experience for the first time. And, I think, I will – late to, like, my late experience when losing more money.
Mr Brown: Okay. So what game were you playing?
Mr Li: Sorry, can you say that question again?
Mr Brown: What game? Which aspect of the casino – which were you actually putting money on?
Tribunal: Which form of gambling. Yes?
Mr Li: Blackjack. Blackjack.
Mr Li: So that time, the game I played is blackjack. But that game – later, I played, it’s different. When I lose more money at a later time, the game I played is baccarat.
Mr Brown: All right. So you were – you were introduced and your fellow intern was introduced to the casino for the first time, and you made a little bit of money. What happened after that? When did you next go back to the casino?
Mr Li: Okay. So then I think I just forgot about the disdain and I think a few days later after I walked past the casino, I just had this idea, thinking about this first time I win a bit of money. And if I gamble more, probably I will win more money. So I went into the casino that week. I think for that week I win about $7,000.
Mr Brown: Okay. So you’re winning $7,000 on blackjack?
Mr Li: Okay. So it was, like, every day, about. I win, like, several hundred to $1,000 and then during that period, I think there’s one to two weeks’ time altogether, adding up, I win about $7,000.
Mr Brown: All right. And after that experience, how often did you find yourself going to the casino?
Mr Li: Okay. So at that time, I think I’m very ignorant. I thought that it was so easy to make money in casino, then why do we go to work? Why do I go to work?
Mr Brown: So how frequently did you find yourself going to the casino?
Mr Li: Physically? Every day after work, I went to casino.
Mr Brown: So this was within – what? A month, two months of first going in there, you found yourself going there every day? Is that right?
Mr Li: Sorry, can I confirm from what – what month?
Mr Brown: Sorry, my fault. Mr Li has said that he was going to this casino every day. My question is how quickly, how soon after the first time he went to the casino, did he then find himself going every day?
Mr Li: Thank you. It is pretty much like what you said. It’s about two months.
Mr Brown: Okay. And when did you begin to realise that perhaps this was a problem behaviour?
Mr Li: Okay. So I think it is very hard to say, but I did realise that, I think, before my break-up with my ex-boyfriend, I found myself have this addiction to gambling. But in the very beginning I think I was very ignorant. I didn’t think this is a problem behaviour at all. I just think that this is to make money, to make life better. But I didn’t consider it an addiction.
Mr Brown: So you made – sorry, go ahead.
Mr Li: So he mentioned he just wanted to add something. Because he mentioned he’s wanting to make money from the gambling and then, I think two months later in his bank account, together with some earnings and his money, he mentioned $30,000 and he lose that in one day. Lose all of them.
Mr Brown: When was that? How soon after the first time at the casino did you lose $30,000 in one day?
Mr Li: So I think it will be two month – just one week. Because it is – I often, as I mentioned, I often went to the casino about two months after my first visit to casino. Then – but after that, very frequent visits to casino. One week. So it will be two months plus one week from the time of my first visit to casino.
Mr Brown: Did that experience frighten you?
Mr Li: Yes. Frightened me.
Mr Brown: Did you stop for a while?
Mr Li: So yes, I did stop for a while after that. I think it was about $30,000, but I couldn’t remember the exact number. It might be more than that. Like, around $50,000. But I – then I was frightened and then I called my family. I called my cousin. I called my boyfriend. At that time, like, my boyfriend hadn’t come to Australia yet, but I hoped that he could come soon because I worried that I may not control myself well. I mean, I lose control.
Mr Brown: All right. What advice did you get when you spoke with your family, and you spoke with your boyfriend? What did they say to you?
Mr Li: So they advised me not to gamble, saying that it’s not good behaviour and also for people who run the casino, they usually will have customers win a little bit and then lose a lot. So that’s their advice.
Mr Brown: And did you take notice of that advice?
Mr Li: Yes, I did listen to their advice. So I stopped the gambling for a while, but later I started again. And I did no cancelling at that time and also do not understand the psychology of addiction. And also, when I later started, I didn’t tell – talk about it with my parents.
Mr Brown: So do you remember when that was that you restarted? How long after you had ceased?---I think probably two month. Two month.
Mr Li: It should be two months.
Mr Brown: Okay, so you were able to stop for two months. You didn’t do any counselling, and then you started again. Is that what happened?
Mr Li: Yes.
Mr Brown: And in this second phase, if we can call it that, how much money were you spending at the casino?
Mr Li: Okay. So for the second stage, I think my boyfriend also came. We have a joint account. He worked and made money. In total, for the second phase, I think it will be around – around $10,000, or maybe – sorry, $100,000.
Mr Brown: So you were spending $100,000 over what period?
Mr Li: About over a year after was.
Mr Brown: So you spent about $100,000 in the course of a year during the second phase?
Mr Li: Yes.
Mr Brown: What did your boyfriend say about that, given that you had a joint account?
Mr Li: Okay. So we not only have a joint account, we also have a joint credit card account. For each credit account, we can withdraw $30,000. So in total, we would be able to withdraw $60,000. So I think after I lose about $100,000, my boyfriend said that if I continue to gamble, he will break up with me.
Mr Brown: So that was in 2017, was it? By then?
Mr Li: It should be by the end of 2017, when my boyfriend told me if I continue to gamble, he will break up with me.
Mr Brown: Right. And what impact did that have on you, when you were told that by your boyfriend that if you carry on, you’ll have to break up?
Mr Li: So I think after that I made up my mind to quit gambling. Also did some counselling. I think that was – I quit – I ceased for about seven or eight months. Probably it’s – I can’t say. It’s less than 10 months’ time, which is the longest period I ceased the gambling. That is from the end of 2017 to 2018. Probably the middle of 2018.’[35]
[35] Transcript, page 26, line 36 – page 30, line 39.
Being barred from casino
‘Mr Brown: Thank you very much, Madam Associate. So this is – this is a report from the South Australian police in relation to events of 11 July 2018. And if you look about two thirds of the way down the page, you’ll see a paragraph. On 22 May at the Adelaide casino – 22 May 2018. ‘Blank served a three-month welfare barring order personally on the accused.’ And you’ve told us that that was your boyfriend, but – had that order issued. And then at about 7.40 on 11 July, casino staff said that the accused – yourself – had been located on a baccarat table in the gaming area. Police were called and you were escorted off the premises. Do you remember that happening?
Mr Li: Yes, I remember this incident.
Mr Brown: When the police took you away from the casino, what did they say to you then?
Mr Li: I can’t remember.
Mr Brown: So, if we go to page 119, the next page please. Thank you. You see at the top of the next page, the first complete paragraph. ‘At 7.40pm on Wednesday 11 July 2018 the accused’, you, ‘was given a direction by police not to attend the casino for the next 24 hours’. You see that?
Mr Li: I couldn’t remember it very clearly. And I didn’t notice it.
Mr Brown: You didn’t notice the police giving you a direction not to attend the casino, do you mean?
Mr Li: So, I think after they took me off the premises they did talk with me, say something. But because I was in a very bad mood and wasn’t focusing – didn’t focus on what they said – so I didn’t really listen to them very carefully.
Mr Brown: Now, if we go back to page 118. Thank you. Then, the middle paragraph at about seven – sorry, the next paragraph, at about 9.10 – 10 past nine on 11 July, once again you were located in a gaming area in the casino and police were called and you were arrested.
Mr Li: Yes. I do have this impression that it would have been on the same day the police came twice.
Mr Brown: All right. And in between, a direction was given not to attend, which you then breached.
Mr Li: Yes. So, I think I have nothing to say about it. And then as to this 24 hour direction I may know of at that time but at this moment I couldn’t remember very clearly.’[36]
[36] Transcript, page 34, line 40 – page 36, line 19.
2020 Mental health episode
‘Mr Li: Okay. Then while in Sydney one of my friends pick me up and then lived at his place for some time, and then because I was also receiving Centrelink period during COVID period I think I got about $1,000 per week but I lose them – sorry – so every fortnight I got $1,000 from the Centrelink payment but I lose them as well. In total I think I lose Centrelink payment about 10,000, and I was so upset and just don’t know how my life – how I got such a life like this – how I live my life like this, and I have this idea of committing suicide, and then was – later was sent to a hospital and then was forced to stay in the mental department for my mental problem for two weeks’ time in hospital.
Mr Brown: And when you were released from hospital how were you feeling then?
Mr Li: Okay. So I wanted to add more information about – before admitted to hospital I actually contact an organisation. It’s a non-profit one called dying with dignity in Sydney. They help people to have euthanasia – I mean help people die without pain, and when I contact that organisation that person who – the staff there was very nice to me and persuaded me not to die, saying that life is too beautiful and so they helped me to book a flight back to Adelaide.
Mr Brown: Okay. So you spent two weeks in a mental hospital, but you were released from that mental hospital. My question was when you were released from the mental hospital what state were you in then? How much in control of your emotions and in your reason were you when you were released in hospital?
Mr Li: Okay. So I think after I come back to Adelaide I really wanted to find a job and because when I come back I’ve already broked up with my boyfriend, and he was really angry with me at that time, and didn’t talk to me much. So at that time I do hope that I can find someone who can get along with me and we could talk more. Then I think after – because of all – later after my more – I experienced the more things, my boyfriend now started – he was very angry back then and not talk to me, and now after all of this experience he is – she’s – he can talk to me now. And then I would – just back then I want to try to walk out of this situation where relationship ends and also terrible casino experience, I think it lasted for a couple of weeks, then I also have to (indistinct) some jobs such as work for farms. I do find a few jobs including, like, on the farm.’[37]
[37] Transcript, page 41, line 9 – page 42, line 2.
Index offending
‘Mr Brown: Yes (indistinct). So we’ll move now to the principle offence that has led to your imprisonment and your visa being cancelled, Mr Li, all right?
Mr Li: Okay.
Mr Brown: Now, you were in Adelaide in the city on the evening of 14 December 2020. What were you doing there?
Mr Li: I think I was waiting (language other than English).
Mr Li: I think I was waiting for a bus at a bus station.
Mr Brown: Yes. Well, what had you been doing in the city?
Mr Li: Do some shopping – grocery shopping for, like, vegetables.
Mr Brown: Okay. And you saw a young boy passing by. Is that what happened?
Interpreter: Yes.
Mr Li: So when I see that young boy I have two feelings. First is I think I wanted to know more people. Second is I thought he was attractive to me so I wanted to approach him and ask for his contact details, but I hesitated a bit because I feel – but later I think that that is okay. After this experience we just – I guess, I had the guts – because I feel embarrassed to ask for his contact details in the beginning, but later I think I just got this guts to ask for the contact information because – I think he mentioned there is a lift and then he followed the young boy the lift. After they come out of the lift, when the young boy is about to leave he asked for his contact details.
Mr Brown: Yes. So it was a young boy. The young boy was going into an apartment building and you followed him. Is that what happened?
Mr Li: Yes.
Mr Brown: So you’d never seen this young boy before?
Mr Li: Okay. So it is that the bus stop is just downstairs of that apartment building. I didn’t follow him from somewhere else, but it is just, like – because the bus stop is just right there in front of the apartment building.
Mr Brown: But you followed him into the apartment building with no permission to do so; is that right?
Mr Li: Permission from whom?
Mr Brown: From him.
Mr Li: Okay. So I – no, I didn’t get the permission from him because we haven’t’ started talking yet, but it’s just myself I have this idea to ask for his contact details. Thinking back now I understand that it is not right thing to do because there is also an age problem that I didn’t consider back then, and I also didn’t think that it may involve some legal issue. I think I have this idea that it might be just the same with asking for someone else’s contact details in a bar. So didn’t think much and then I just pluck up my courage and then ask for his detail – contact detail.
Mr Brown: But you saw he was a child, didn’t you?
Mr Li: So I didn’t think that he was a child, because when you look at our chat log at the first few sentences are – we talk about is – I ask him whether he is a university student.
Mr Brown: No. You followed this child into an apartment building with no invitation to do so. Why did you do that?
Mr Li: Okay. So I think that at the time I just wanted to make friends with him. It might be a sexual relationship – yes, on a sexual relationship level, but what I wanted to emphasise is that I was – did not consider him in the scope of child, and if I do know that I would surely not – or try – I would surely to avoid the trouble of that.
Mr Brown: So you followed him into the building, and then you followed him into an elevator?
Mr Li: Okay. So, yes, because I wanted to ask for his contact details. When I walked into the building I do hesitated a bit, and then because I feel embarrassed of asking so – but later I think I just pluck up my courage and say to myself that I’ve already walked into the building, then why not just ask for that – for the – for his contact details. That’s how – but in the elevator I still did not have that courage to ask, but when walking out of the lift I think I just got this courage and then talk to him, ask for the detail – contact details.
Mr Brown: So you followed him into the building, you followed him into the elevator, and when the elevator got to his floor and he got out you followed him then as well?
Mr Li: So it is after the elevator door open when we are standing outside of the elevator. I said hi to him and tell him that I wanted to know him. And I think that he’s handsome and ask him whether it’s okay to make some – make friends with him, to be friends, to be his friend. And then ask him for his contact details. After that he walked into the elevator and then left.
Mr Brown: And did you not consider that this young boy was less than half your age?
Mr Li: So, I don’t know how old he is and when I say I mentioned when we were I firstly asked him whether he’s a uni student because I thought he was like 18 or 19 years old. But during our chatting, after later, sometime when we chat she mentioned that he’s young. And then I said that if young it could not be – you could not be younger than 16 years old. Then he said, yes he’s 16 years old.
Mr Brown: But none of that was said in the building coming out of the elevator was it?
Mr Li: So, because from his appearance I thought he’s uni student, then later I got to know he’s 16 years old from his Instagram account after I had his Instagram account.
Mr Brown: Well, her Honour, the judge who sentenced you following your guilty plea, her Honour, Judge Thomas, says in her sentencing remarks – these are at the bottom of page 32 and the top of page 33 of the G documents – her Honour says that she accepted that on originally sighting this young boy you thought him to be attractive.
Mr Li: Sorry.
Mr Brown: Sorry. Carry on. Your conduct was predatory in all the circumstances.
Mr Li: Sorry. The conduct is predatory?
Mr Brown: Predatory – p‑r‑e‑d‑a‑t‑o‑r‑y – predatory. You were a mature man and he was an adolescent boy, half your age, less than half your age. Now, her Honour says that the boy’s youth and immaturity was obvious. And that you were seeking to exploit the relationship of power and vulnerability by reason of your age difference for your own sexual gratification. So, Mr Li, her Honour was of the view that the boy’s youth and immaturity was obvious whereas you’re saying you thought he was a uni student. Do you understand why this behaviour was seen as predatory?
Mr Li: Okay, understand.
Mr Brown: So, why were you indulging in that behaviour?
Mr Li: So, right now when thinking back I can understand now. But back then I just considered him a uni student because I think for Asian people the way to tell the age is a bit different. Usually the Asian look younger and so for me to judge the age from their appearance, because I think in uni in China they look like that. So, I just think that I considered him at that time as a uni student.
Mr Brown: So, you subsequently obtained his Instagram handle from him. Is that right?
Mr Li: Yes. So, I originally wanted to ask him for – I forgot his phone number or Facebook account. He said he doesn’t have it. So, I was just about to leave – walk away – I turned around and walk away near to the elevator already then he said he has Instagram account. So, then he asked me whether I have Instagram account. I said yes. That’s how we exchanged and got the Instagram account. Then I don’t understand, I just don’t understand why the police say that I forced him to give the Instagram account otherwise I will not leave. I just also don’t know why police say that. And I feel strange about it.
Mr Brown: I’m not sure the police do say that. But anyhow. So, you left with the Instagram handle of this young boy. And then that evening you began sending him various materials and various messages. Why did you do that?
Mr Li: To become more acquainted with him.
Mr Brown: So, your idea of becoming acquainted is to send him explicit sexual messages?
Mr Li: So, before I sent those messages I just wanted to get acquainted with him. But after I sent those messages I think it is for sex purpose. But when I realised that he’s only 16 years old I think it is not possible to have this relationship for life purpose, maybe just for like a short term sexual purpose. And I did not know that in South Australia they have this legal – they have this law. And then I understand that mentality of a 16 year old and me are quite different. I was already 30 years old at that time and he’s only 16. I think for a long time it may not be possible. Maybe it will be just like a hit-up because I also have this – after all these happenings, all these experiences, I think all sexual relaxation – just for sexual relaxation purpose.
Mr Brown: And you see nothing wrong with a 30 year old man arranging to have sex with a 16 year old?
Mr Li: So, at that time I didn’t think that it is a problem. Because we found, I think it’s common from news, people have big age difference. And then I think I didn’t think about it’s a problem. But then I didn’t realise that 16 years old is under the legal age of (indistinct) in South Australia. And after I was charged, I had this charge, I did some search online and then got to know more about this legal limit. Like in China it’s 14 years old. And I’ve also done some more research and got to know that it is not right.
Mr Brown: So, regardless of the age of consent, do you not see there is a problem with somebody twice the boy’s age attempting to groom him for sex?
Mr Li: So, I think if it is for long term, for like – I think it’s not suitable to have – to live together with someone who is much younger than me because the mentality is very different between us. But for the – and also at that time I don’t want to have the long term relationship. Probably it’s just like when I got to know he’s only 16 years old I think it’s for sex purpose, is okay. It could relieve my stress from the casino experience. And from my current – currently in my – as I think of now, I think it’s not suitable for like a young man, 30 years old and then someone is like a very young age like that. But at that time I think I also wanted to – just wanted to find someone who could listen to me and have some pillow talk and relax together. Because my parents, my friends, relatives, they were all angry with me. They don’t want to listen to me. But I went to find a stranger who is happy to have this talk with me and listen to me.
Mr Brown: What sort of damage do you think you’ve done to this boy?
Mr Li (in English): Very importantly, I think it’s a lot of - - -
Tribunal: Excuse me, Mr Li, in Mandarin.
Mr Li: So, I think the – I will impact his psychology – it will impact him psychologically. For example, he may not trust strangers again. He may not – he may dislike strangers or be unfriendly to the world and the society after this experience.
Mr Brown: So, you were subsequently arrested by the police in the course of visiting Adelaide in order to, as you thought, meet the boy? That’s what happened is it?
Mr Li: Yes.
Mr Brown: And in your first interview with the police you pretended that the material that had been sent to the boy had been using – somebody else using your handle. Is that right?
Mr Li: Sorry, someone using his handle?
Mr Brown: Somebody else using his Instagram handle, yes.
Mr Li: So, yes, in the beginning I did deny it because the police arrested me and took me to a watchhouse. I was very afraid. I don’t know what happened. They mentioned about the charge of communication to a minor because I don’t know – I denied it in the beginning because I don’t know what will happen to me. And then later after some time I think it may not necessary to lie. And then I just find a lawyer and then accept it, acknowledged it.
Mr Brown: So, you told them lies because you were frightened. Is that the case?
Mr Li: So, I was not only afraid at that time. I think I was petrified. And I really don’t know at all what has happened, it is like an offence. And then I don’t know the existence of that law, regulation. So later I contact the lawyer and told lawyer about what happened and then just I think I will take this as a lesson I learned. And then just tell the truth to lawyer and then admit it later.
Mr Brown: And you certainly did seek to plead guilty at the earliest opportunity. I accept that.’[38]
[38] Transcript, page 42, line 15 – page 47, line 34.
Rehabilitation
‘Mr Brown: Now, if I can move on and talk to you, Mr Li, a bit about the attendance that you had at the sexual behaviour clinic when you were in prison. Okay?
Mr Li: Yes. Okay.
Mr Brown: Now, this was a program run from 27 June 2022 until 16 November 2022 by the corrections organisation in South Australia, and was directed at treating sex offenders to try and encourage and assist their rehabilitation. Remember that program?
Mr Li: Yes. I remember.
Mr Brown: : Now, it was an intensive program over an extended period. Can you tell the tribunal please, what you gained from the program in terms of assisting your rehabilitation?
Mr Li: So, I think I learned a lot from this program. I would like to talk about in a few points. And I think it will not only be helpful for my sexual behaviour, but also it will be helpful for in my life when I deal with some other problems like my – like life directions. They were all very helpful. I will ask the interpreter to translate this first and then I will list these points for you.
Mr Brown:   Sure?‑‑‑I think the first and foremost point is insight of law.
Mr Li: So, the first one – firstly is about the insight of law. Because in different countries laws are different. To be a better citizen we need to have a better insight of law. So secondly, I think it’s about morals that I learned from it. To – it’s about the unhealthy thoughts, morals. It can be summarised as CCC, which stands for check, challenge and change. It is not – it is not only useful in the sexual aspect, but also in some other things. It can be applied, for example, for the unhealthy thoughts such as gambling, unhealthy sex relationship, alcohol addiction, drug addiction. We can all use these, like, to – for us to, in time, check our thoughts, challenge the thoughts and change the thought. Because I really – we have a lot of thought, and then we need to do this to – to do this health check.
Tribunal: Mandarin, please, Mr Li.
Mr Li: And also, I learned some other strategies such as being mindful. Mindfulness. No matter what happened, I need to calm down, breathe in and stop fantasising about, for example, sex or gambling, but to focus on the reality – just to focus on the moment, on this moment. For example, focused on the fine things I can see to sounds I can hear – through sounds I can hear or through smells that I can smell. It’s – I will not list all of them, but what I mean is just to focus on the moment. On this moment, rather than fantasising some other things. So and another point I wanted to talk about is about urge (indistinct). Because every day we may have many – many people may have many different urges. Some are, like, about alcohol, some are about drugs, but I think what we need to do is to – we need to be there to control the urge rather than let the urge control us. We need to let the urges settle down rather than act on them. And, for example, urges like some people only wanted to be a millionaire, they wanted to rob banks. They are surely not right things to do. But we need to – or we should rather than acting on them, we need to settle down. And for me, I think I am a provocative person. Especially in prison, I think I do find it hard to control my emotions. And also, I think in prison, including myself, everyone might be picked on sometimes. Before, I will confront with them, or it may lead to a fight. I understand that I may not win in that fight. But I think I still want to say what I must say. I must say what I wanted to say, but after marrying a cause, I realised that it may not be necessary to say what my thoughts – out. It’s okay just for me to know that, rather than saying out may further cause more misunderstanding or more arguments. It may not be necessary just to want to say those things – to say my thoughts out may not be necessary.
Mr Brown: Okay. Thank you. Just to bring to the tribunal’s attention the 10-page report on the applicant’s performance in the post – in the treatment that he received at the sexual behaviour clinic is one of the documents provided in the applicant’s evidence. And it’s been prepared by two psychologists who are senior clinicians in the rehabilitation program. In Corrections SA, I just want to pick up two or three things, Mr Li, that they say in their report which are specific to you. So the first thing that I’d like to pick up, and this is at page 5 of our report, is that throughout the treatment program, the five or so months of treatment that you had on the program during the second half of 2022 – one of the things that the people who were providing the tuition were exploring was impulsivity.
Tribunal: Mr Brown, do you want the document put up on screen to assist Madam Interpreter?
Mr Brown: That would be great. Page 5, if you could, please.
Tribunal: That’s in the supplementary…
Mr Brown: It’s in the applicant’s documents.
Associate: Mr Brown, was this the document?
Mr Brown: No, no, it’s one of the applicant’s documents. It’s a document with a cover note, ‘Rehabilitation programs branch (indistinct) moderate, post-treatment report.’
Tribunal: Page 30 of the applicant’s combined evidence, Associate.
Mr Brown: That’s it. So go to page 5 of that document, please. That’s it, got it. Well done. There you go. So under the subheading Criminality and Self-Regulation, and we’re about half-way down the first paragraph, the report says, ‘regarding his impulsivity and gambling, Mr Li said it would a long-term struggle to manage gambling as he previously fell into cognitive distortions and gave himself permission to gamble.’ I’ll pause there, Ms Interpreter.
Mr Li: Sorry, is it the second half of the first paragraph?
Mr Brown: So the first paragraph, half-way down, thank you very much.
Mr Li: Okay, sure. Thank you.
Mr Brown: It then goes on to say, ‘Throughout treatment, Mr Li demonstrated impulsive behaviour in his daily life outside the group program’ – outside the treatment program.
He received several warnings for poor behaviour and not following instructions and reportedly was involved in an altercation with an officer and another prisoner. Mr Li’s impulsivity was considered an ongoing treatment target following the program.
So Mr Li, the final report of the program says that your impulsivity shown outside the program continues to be a challenge for you. What have you got to say about that?
Mr Li:   Okay. So I think because the summons are – I don’t think there is some altercation with the officer. And I did receive a few warnings, but I think they are not relevant to my impassive timidity. I think this report from the psychologist is probably based on my description, because I did have some unpleasant experience in the prison. So because my grandpa passed away when I was in prison, I think I was not in a very good mood in July and August last year. So – but I think generally speaking, I can control my emotions well and also because what I have learned from the course. I’ve learned a lot from the course. And basically, I do not have any physical altercations with other people.
Mr Brown: All right, let’s move on to page 7 of that document if we could, please.   That’s it. Thank you very much, well done. Now, this is a separate point. If we look at the bottom paragraph – just move it up a bit if possible? There we are. Very good. Thank you very much. So the final complete paragraph on that page, about seven lines down, it talks about there being distorted thought processes which included justification and disregard for Australian laws. These were also considered as strategies adopted by Mr Li to reduce empathy towards the victim and enable the offending to occur.’[39]
[39] Transcript, page 47, line 38 – page 50, line 40.
and
‘Mr Brown: So this appears, Mr Li, to be saying that your point about there being different ages of consent in different states in Australia was an excuse for not being sympathetic towards the young applicant and giving yourself permission to conduct yourself in a way that was unlawful.
Mr Li: So I think before it happened, I do not know about that it is – I do not know about this law, but after it happened, after I got to know about the law, for a period of time I don’t think that it is a very serious crime. But later after I learned the cause. Also, the psychology. Then I become aware of that and I’m ashamed of what I have done, and I would like to take the responsibility for what I have done.’[40]
[40] Transcript, page 51, line 6 -16.
and
‘Mr Brown: All right. So could you move down towards the bottom of that page, please? Thank you. That’s fine. Thank you very much. Now, Mr Li, I want to take you to the final sentence in the final complete paragraph on that page. So as we’re looking at the screen it’s about three fifths of the way down, and it starts, ‘It was further considered’ - this is by the two psychologists producing the report. ‘It was further considered that Mr Li developed a deviant attraction to the victim’ – this is the young boy that we talked about yesterday – ‘through distorting and idealising his previous sexual interactions with children of a similar age, albeit legally in China, and continuing to grieve the loss of his previous adult partner’. Now my question is what do you have to say about that view formed by the psychologists about your having developed a deviant attraction to the young boy, who was the victim of your crime?
Mr Li: So I think what I wanted to point it out is previously when I was in China, and also after when I come to Australia, I – when I was in Australia I was in a relationship with my boyfriend, and previously in China, as I mentioned yesterday, through the sexual relationship is one – one 13 or 14 years’ old, when I’m a minor, and after I become turn into adult I think my sex partners are usually – the person who I have sex – some are older, some are younger. I – occasionally I did had the male prostitute, and then some they are younger, some are older as well, so for this I think I did not consider myself to be idolising the – I didn’t think about I have the tendency of idolising the sexual relationship with a – with that young – that young – with that minor because we – I didn’t really – I really didn’t consider him as a child. I – in the beginning I thought he’s a uni student, so I wanted to emphasise that I really didn’t consider him a child in the beginning.
Mr Brown: All right.
Mr Li: So he just pointed out that when the interpreter say idolising the child, he pointed out as idolising children as the concept of children rather than that particular one – that particular victim, we talk about, and then because he mentioned when he turn into adult he never had sex with like minors, with the children. So he pointed out that is a plural form, which refers to the general concept of children rather than only one particular one.
Mr Brown: Which you said that, when you were in China some of you – you left China when you were 17. You said when you were in China you did have some partner who were younger than you. How much younger?
Mr Li: So can I confirm you were talking about (indistinct) 17 or?
Mr Brown: You said you had a number of sexual partners when you were in China prior to coming to Australia, and you said some of them were younger, some of them were older. My question is how much younger were the ones that were younger?
Mr Li: So I think my ex-boyfriend is the youngest – I mean age apart, is the biggest age apart. He is three and a-half years younger than me.
Mr Brown: All right. Thank you. Now if we – Madam Associate, if we can move to page 4 of the same document, page 4. Thank you. Just move up a little bit, please. Keep going. That’s it. That’s fine. Thank you. Now, Mr Li, if you look at the final complete paragraph on that page that starts, ‘Mr Li’. Apologise. The first complete paragraph which starts, ‘Mr Li developed insight into’. Can you see that? Okay. So about a third of the way down. ‘Mr Li developed insight into’. Now halfway through that paragraph the following is said. ‘Mr Li stated that sexual arousal and sexual urges were feelings that he felt intensively in the lead up to the offending’, that is the offending against the young boy we spoke about yesterday. Do you recall that?
Mr Li: Sorry. Which paragraph?
Mr Brown: So the – right up in the middle of the page that’s on the screen.
Tribunal: Do you want to give a line reference, Mr Brown?
Mr Brown: Yes. Line – it begins at line 19. The sentence that I’m referring to begins at line 22. So line 22, halfway along, ‘Mr Li stated that sexual arousal and sexual urges were feelings that he felt intensively in the lead up to the offending’. Do you recall saying that?
Mr Li: Yes. I see it.
Mr Brown: Yes. Do you recall saying that?
Mr Li: Yes. I remember.
Mr Brown: All right. Then it goes on – the paragraph goes on after that to say that there were various strategies for trying to control various feelings, including emotion surfing, which you mentioned yesterday, in particular when experiencing sexual urges that that was a strategy that could be used. Can you try and explain for the tribunal, please, what emotion surfing means? What’s it about?
Mr Li: So I think it means that for each person we are all – we all have different temperaments. Some more easily got upset, some may not, some may have a strong sexual urge, some may like have the urge for gambling or alcohol. We – each person are – like we are all different. We are born with them. But for this emotion surfing it is not to completely change them, but we understand when that emotion exist, when we have those emotions, we should not let them overrunning, they control us. I means like we should not act on them - but we should not act on them or we should think about the reasons and the consequences for that. Then – then we will settle up – settle down, rather than act on them, and they’d also emphasise mindfulness that has focus on the moment, focus on this moment. And also emotion surfing I’d suggest is to find a replacement for the urges at that time. For example, we may have these impulsive sexual urge after some argument, but instead of – and also another example is for gambling. For example, if we wanted to help this urge to gamble, if we watch people gamble, it may increase the urge for us – for me to gamble, or if we wanted to have these sexual urge if I watch a porno it will also increase the urge, but if we find some other replacement – I mean, other healthy activities to replace them, it will be better. For example, if I wanted to have sex, have the sexual urge, then for example listening to some music, take a shower or have a coffee with friends, and have some chat – chat about job or career or a call to a close friend and – et cetera. So these are all the healthy activities which could replace that urge in our mind.
Mr Brown: Okay. Now, Mr Li, just – if you look at line 21, which is just above the extract that we’ve just spoken about, line 21 describes you as having being considered – I’m sorry. It says that you considered that your own tendency to push boundaries was present in, was part of, the sexual offending. In what sense was your own tendency to push boundaries present in the offending?
Mr Li: So I think I – I don’t remember that I’ve talked to the psychologist about the – my – I have the tendency to push boundaries and that was present in the sexual boundary. It might be the psychologist - based on my description it might be the psychologist just understanding, but I think it is a misunderstanding. So I may have this – I may have the tendency to push boundaries. For example, in Australia I – when I do my job, or when I was at uni, I may wanted to push myself to do the best, but I think this has nothing to do with this offending.
MR BROWN: All right. Okay. So let’s got to page 8 if we could, please, Madam Associate – and just a bit further down. Thank you. Thank you very much. Excellent. Now, Mr Li, this is an assessment of where you’d got to after participating in the six month program, and the little paragraph there, starting at line 16 – line 15, talks about your risk of reoffending being assessed using the – an actuarial tool that is used by the Department of Correctional Services – and after the program you’re being assessed as – I think your risk of sexual reoffending falling within an average range for persons who are involved in undertaking the sex offender program, with a predicted rate of recidivism of about 8.3 per cent over a five year period relative to other people in the same sample. Now, if we then look at the paragraph that’s in bold letters at the bottom of the page the psychologists say that should you experience difficulties in your relationships, or re-engage in gambling behaviours, or struggle to manage sexual urges or unpleasant emotions appropriately and engaged in impulsive tendencies without thinking about the consequences then your risk of being involved with problematical behaviours may increase. What do you say to that assessment?
Mr Li: So I think first of all life is full of uncertainties. A lot of things are hard to predict and I think it is unavoidable that people will have different problems in life, and I think for me it is important to consider whether I made any change. In my past I had the gambling behaviour. I had this offending. I think we look at whether I have made any change. For me I have done the changes – the changes I have made include I participated in the sex clinic program, also have the counselling, including at a immigration detention centre. I did two program first days there, addiction – addictive counselling – or addiction counselling, and then other is the SMART Recovery, I think, program. Just some English word I’m not sure, and I confirm with him. He said he couldn’t remember. But I’ll try to translate what he said. He’s saying that in the document it mention about without considering the consequences I think – because I think my life is, like, is a learning process and then I have been keep learning. Previously when I gamble I think I was young, and then I may not considered about the consequences of gambling. It may later to the breakdown of our family. It may lose a lot of money, and then it may relate to maybe families gone away. So I think as a mature person now I do – I think I do have – I will consider the consequences of gamble if I have the opportunity I do have – will consider the consequence. As to the sexual offending, I think previously I do not know about the seriousness, and then – but right now I think I have already got to understand the – this is the red line – I mean the red line of – which is like the bottom – the bottom moral bottom line in Australia, and then I will surely consider about these, and if – surely consider about the consequences in the future when I do things.
MR BROWN: Okay. So what do you mean by the moral bottom line?
Mr Li: So I think the moral bottom line is a line that we cannot cross, and it regulates people how to do things and how to live in life.
MR BROWN: Yes. And what are you saying that moral bottom line is in relation to your sexual requirements?
Mr Li: So the bottom line is not to have sex with minor or chat with minors about – about sex.’[41]
[41] Transcript, page 57, line 3 – page 60, line 43.
Mr Zhao’s evidence

Relevant aspects of Mr Zhao’s oral testimony are excerpted below.
Examination in Chief
‘Mr Zhao: We broke up three years ago because of Li Tong’s gambling problem, and after we broke up we still kept in touch with each other because we do care and – we do care for each other.
Mr Li: And the next question is why do you think Li Tong made such a mistake and ended up in prison? And what do you think – what is – what do you think of the reasons behind it.
Mr Zhao: Okay, so I think Li Tong made two mistakes. The first is our break-up, it is because of his gambling problem, but I think the reason for his gambling is because of a lot of stress at this work, and second reason for the sending text messages about sex to a minor, I think this is done under the circumstances that Li Tong doesn’t know that he’s a minor, and also it is against the law of Australia. If Li Tong knows that I’m sure that Li Tong will not do it.
Mr Li: Next question is about the legality of same-sex marriage, for example, whether it is legal in China, and also how is the situation like in China.
Mr Zhao: Well, same sex marriage is not illegal in China, and for me and Li Tong we are from the same – we have the same home town which is not a very well developed place. People there their minds are very traditional and very conservative. For our family members it will be not easy for them to accept this same-sex marriage.
Mr Li: And next question, I think will be the last one. Well, if Li Tong was released from detention to community in Australia, do you think we will support each other in the community.
Mr Zhao: Okay. So I think we will do – we will surely support each other if Li Tong is released to the community. I think Li Tong – from my heart I think Li Tong is a kind person, and the mistakes he’s made is because he does not know that. And we have known each other for seven years, and we know – we know each other very well. We have this deep bonding with each other, and if Australian Government could give Li Tong this opportunity to reinstate the visa to stay in Australia permanent – have the permanent residency, but again I think if any time Li Tong need any help, I will surely do all my best to help him.’[42]
[42] Transcript, page 75, line 13 – page 76, line 2.
Cross Examination
‘Mr Brown: Thank you. So my first question is about your relationship with Mr Tong Li when you came to Australia in 2016. Is it the case that for the period that you were in a relationship with Mr Tong Li from 2016 until early 2020, you had a joint bank account together?
Mr Zhao: Yes.
Mr Brown: And when was it that you realised that Mr Tong Li was using the money from that joint account to fund his gambling addiction?
Mr Zhao: Let me have a think. So I think I’m not very sure about what time. It might be, like, in 2017 or 2018. So the reason why I’m not sure of that because I think Li Tong developed this habit of gambling not long after he arrived in Australia, and at that time we didn’t, like, have a very clear boundary about our money. When we have the joint account we just put the money into this joint account, and I didn’t check this joint account regularly so I’m, like, didn’t – I’m not sure when did I realise that he used the money from joint account for gambling.’[43]
[43] Transcript, page 77, lines 11 – 28.
and
‘Mr Brown: I see. Now, you say in your statement, Mr Zhao, that if Li Tong was allowed back into the Australian community then you would provide him with your support not to resume gambling. So why would this time be different?
Mr Zhao: So I think that there are quite a number of reasons. Firstly I think because of in the past years Li Tong didn’t do any gambling at all, and I think this will help him to reduce the addiction to gambling, and secondly I think the gambling experience in the past Li Tong has already realised the impact or the influence of gambling are his own whole life, and thirdly previously I think I just verbally threat for the break up but I still choose to persuade him rather than leave him at that time, but I think if when – when he comes back to Australian community we will I think – sorry. I (indistinct) a point. When come back to Australia – sorry. The third point, and then if – or if Li Tong come back to Australia we’ll have my support, I think. And the fourth point there will be a summary – summarise all these point, in end, and the fourthly is because I think if – just in case if Li Tong start gambling again I think I will help him to find some professional support from the community, like counsellors, and we will have the professional – professional’s support in order to help him to quit gambling. And fifthly – and the fifth point is that if Li Tong gamble again I will – I think we will have the parents come to Australia, I think with we could be able to altogether support Li Tong, including me and also his parents. So in summary, I think, we are considering all these factors, like we could seek for the professional support for like counselling, and also got his parents come to Australia, and me and my support, and also he is - also the lesson he has learned from this gambling experience in the past. I think all of this will provide – I think will be a good support to him when he come back to community.’[44]
[44] Transcript, page 78, line 23 – page 79, line 3.
and
‘Mr Brown: Okay. Thank you. Now you say in your statement, Mr Zhao, that - - -?
Mr Zhao: Yes.
Mr Brown: If Li Tong was to go back to China to live then he would face pressures and discrimination of the homosexual community. What do you mean by that, pressures and discrimination of the homosexual community in China?
Mr Zhao: So I think – I think because same sex marriage is not legal in China, and the Chinese government does not support it, and for same sex relationship it’s not legal in China I think if he go back to China, and after all these years in Australia, he has his own circle of friends and they all know that his sex tendency, so under the (indistinct) says that they know him already, they still choose to be his friends. If in China if we – if he like – people others know he’s sex tendency, if they know he’s gay, then probably he will suffer discrimination, and even in life and job he may not even get a very good job because of that, and people may make jokes about it, may treat him differently. This will also cause a lot of stress for his family as well.’[45]
and
‘Mr Brown: All right. Finally, you say in your statement that you also hoped to see him remain in Australia because you need his support. What do you mean by that?
Interpreter: Do you want me to translate first? I think he – I think I will translate first.
Mr Zhao: He’s thinking maybe – so what he said firstly because my – I think what he mean is his permanent residence is sponsored by Li Tong. This is the support that Li Tong give him. And secondly I will need someone who is like a family member is in Australia, like Li Tong, when I have met any difficulties I could seek help from, and also I can share with him a lot of things. And then I think just we stop there.’[46]
THE TRIBUNAL’S ASSESSMENT OF THE WITNESSES
[45] Transcript, page 79, lines 26 – 42.
[46] Transcript, page 81, lines 9 – 19.
The Tribunal observed Mr Li as he gave evidence and considers that while he was honest and forthright in relation to some of his testimony, he was not credible in terms of discussing the motivations surrounding his sexual offending. His testimony regarding his gambling was at times very self-interested and self-serving.
Mr Zhao was forthright and credible.
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
When considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Australian Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens.
Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens with the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Tribunal’s consideration: The nature and seriousness of Mr Li’s conduct
Paragraph 8.1.1(1)
This paragraph states that, in 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 197 A 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 reoffended 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 conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Tribunal has considered both parties’ respective submissions on Paragraph 8.1.1 of the Direction.
In essence the Respondent contends that:
(a)Mr Li’s offence of procuring a child under 17 to engage in sexual activity should be regarded very seriously by the Tribunal, as it constitutes both a sexual crime and one perpetrated against a 14 year-old child.
(b)Her Honour Judge Thomas found the offending conduct to be “very serious”, predatory, and persistent. Despite being rebuffed by his victim twice Mr Li had persisted and taken advantage of the boy’s vulnerability to obtain his Instagram details, and that night had attempted to video call the boy. When he did not receive an answer, Mr Li sent the boy numerous sexually explicit messages over the course of three days despite being told by the boy that he was straight and had a girlfriend.
(c)Mr Li’s conduct had caused harm to an adolescent boy. The sexualisation of children was a serious social mischief and commonly lead to sexual assaults on children. The preparations made by Mr Li - arranging to meet the person he believed to be the boy and booking a room at a youth hostel where he had installed supplies of lubricant, condoms and massage oil - made it plain that he was intent on having a sexual encounter with the boy.
(d)The harm to the Australian community should Mr Li re-offend would clearly be very serious. Mr Li’s conduct in attempting to procure a 14 year-old child for sex, if repeated, is so serious that any risk that it may be repeated is unacceptable. Further offending of a similar nature may not be frustrated by the intervention of the police, and the harm that would be caused to a child victim can hardly be overstated.
(e)The risk of Mr Li re-offending was considering by two psychologists employed by the South Australian Department of Correctional Services in January 2023 who considered that Mr Li had developed a deviant attraction to the victim through distorting and idealising his previous sexual interactions with children of a similar age, albeit legally in the PRC. Mr Li was observed to be a person who pushed boundaries, and this behaviour was found to be related to his sexual offending; he also engaged in this offence paralleling behaviour through pushing boundaries in the custodial setting.
(f)The VRS-SO actuarial risk assessment tool used by the two psychologists indicated a risk of re-offending within an average range in comparison to the normative sample for this offence-type - a predicted sexual recidivism of 8.3% over 5 years, a ‘low-medium’ risk, using the Department of Correctional Service’s terminology.
(g)However, the two psychologists noted that, if Mr Li experiences difficulties in his relationships, re-engages in gambling behaviours, struggles to manage his sexual urges or unpleasant emotions appropriately, and engages in impulsive tendencies without thought of consequences, then his risk of engaging in problematic behaviours may increase.
(h)The Tribunal should find that a low-medium risk of re-offending, with a potential higher risk should Mr Li experience difficulties in his relationships, re-engage in gambling behaviours, struggle to manage his sexual urges or unpleasant emotions appropriately and engage in impulsive tendencies without thought of consequences, is simply unacceptable given the harm that would be caused to a victim should Mr Li re-offend.
(i)This assessment is reinforced by the Department of Correctional Services’ psychologists’ view that Mr Li had developed a deviant attraction to the victim through distorting and idealising his previous sexual interactions with children of a similar age, albeit legally in the PRC, and Mr Li being observed to be a person who pushed boundaries, behaviour that was found to be related to his sexual offending and had been repeated while in custody.
(j)The Tribunal should assign heavy weight to the primary consideration of the protection of the Australian community, against a finding that there is another reason why the mandatory visa cancellation decision should be revoked.
Mr Li contends:
(a)Mr Balfour’s 5 August 2021 forensic psychological assessment concludes that with the assistance of a supervised, structured rehabilitation program, Mr Li’s prognosis in terms of ceasing to offend is good on a rating scale of poor, fair and good.
(b)The Sexual Behaviour Clinic ranks Mr Li as having a moderate to low risk of reoffending. In this program he developed insight into his impulsivity in terms of sexual offending and gambling as well as mechanisms to control his urges with respect to both gambling and sex as well as dealing with depression and anger.
(c)He is on the right path of getting his issues under control through active treatment.
(d)He is immensely sorry and ashamed for what he has done. As a result of the rehabilitation programs and counselling, he considers that he is an honest person.
(e)In relation to his gambling, he showed discipline in an effort to control his urges by arranging self – exclusion orders in most of the casinos in Australia.
(f)The delegate was incorrect in not accepting that Mr Li’s offending is the result of undiagnosed mental health issues or the stress of his gambling addiction, noting that these issues had been identified some 12 to 24 months prior to committing the sexual sense. Mr Li asserts that his gambling problems, addictions and other issues were present immediately before his offending. He was hospitalised in Sydney for psychiatric assessment in September 2020 while the sexual offending occurred between 14 and 16 December 2020.
Paragraphs 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii)
These paragraphs require the Tribunal, when considering this matter, to have regard to, and acknowledge that, violent and/or sexual crimes, crimes of a violent nature against women or children and acts of family violence are viewed very seriously.
The Tribunal concludes, having considered the evidence, that part of Mr Li’s criminal and other conduct, namely the offences occurring between 14 and 16 December 2020, constitute sexual crimes against a child.
The Tribunal concludes, having considered the evidence of Mr Li’s offending, that his criminal and other conduct do not constitute acts of family violence or crimes of a violent nature against a child.
Paragraph 8.1.1(1)(b)(i)
This paragraph is not relevant. The Tribunal did not see any evidence that Mr Li has committed any offences involving causing a person to enter into or to otherwise become a party to a forced marriage. There is no reference in the material to any formal conviction to such offending nor is there any reference to such conduct in an independent and/or authoritative police narrative or similar document.
Paragraph 8.1.1(1)(b)(ii)
This paragraph is enlivened and relevant. Having considered the evidence of Mr Li’s offending, the Tribunal considers that Mr Li has committed crimes against vulnerable members of the community. The vulnerable member of the community in this matter is the then 14 year old boy against whom Mr Li offended in December 2020, as stated in paragraph 8.5(2)(c) of the Direction and delineated in Garland v Minister for Immigration, Citizenship and Multicultural Affairs.[47]
[47] Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144.
Paragraph 8.1.1(1)(b)(iii)
This paragraph refers to conduct forming “...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”. The Tribunal finds that this paragraph is not relevant to its assessment of the nature and seriousness of Mr Li’s conduct.
Paragraph 8.1.1(1)(b)(iv)
This paragraph is not relevant as the evidence does not disclose any criminal conduct by Mr Li while in immigration detention.
Paragraph 8.1.1(1)(c)
In applying this paragraph, the Tribunal is precluded from considering sentences imposed on Mr Li for:
(a)any violent offending that he may have committed against women or children;
(b)acts of family violence; and
(c)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.

Her Honour Judge Thomas sentenced[48] Mr Li to a head sentence of one year, eight months and 28 days noting that his offending constituted a serious sexual offence. Judge Thomas observed in her sentencing remarks that the maximum penalty for the offence is 10 years imprisonment.
[48] Exhibit 1: G3, pp 29-35.
Mr Li’s other offending only resulted in fines.
The Tribunal considers that this paragraph carries a degree weight in favour of affirming the delegate’s decision to not to revoke the cancellation of Mr Li’s Visa.
Paragraph 8.1.1(1)(d)
This paragraph raises two specific aspects of a non-citizen's offending for consideration: the offending’s frequency and/or whether there is any trend of increasing seriousness.
Frequency
Mr Li’s criminal history[49] bifurcates between his non-sexual offending and his sexual offending.
[49] Exhibit 1: G1, pages 27-28.
His non-sexual offending comprises 9 breaches of orders barring him from entering casinos, one of these in 2018 and the balance in 2020, one breach of bail conditions and one charge of cheating. While acknowledging Mr Li’s testimony that he was unable to attend Brisbane Magistrates Court to answer the September 2020 charges (breaches of order and bail conditions), the Tribunal considers that the evidence shows a high frequency of offending in 2020 commensurate with the intensity of Mr Li’s gambling addiction.
His sexual offending comprises a series of individual offences occurring between 14 and 16 December 2020.[50] The Tribunal considers that the evidence supports a finding of a short-lived but intense level of frequency in terms of his sexual offending.
[50] Exhibit 1: G3, page 42.
Trend of increasing seriousness
The Tribunal considers that Mr Li’s non-sexual offending can be viewed with equal seriousness throughout the period in question. His short-lived sexual offending demonstrates a trend of increasing seriousness over the period in question.
Paragraph 8.1.1(1)(e)
This paragraph addresses the cumulative effect(s) of Mr Li’s repeated offending.
The effects of Mr Li’s non-sexual offending go to the Australian community at large, imposing a financial and material costs on the policing, judicial and jail systems while also engaging the private surveillance resources of the casinos he frequented.
The effects of Mr Li’s sexual offending, as acknowledged by Mr Li in his testimony, are likely to have imposed significant costs – emotional, psychological and social - on his victim, although there is no direct evidence before the Tribunal about this. However the Tribunal notes Judge Thomas’ observation on this point:
‘Your offending has harmed an adolescent boy. First, he suffered your predatory conduct by your watching him, then your following him into a secure building without permission and your pressuring him for his contact details when he was clearly reluctant to give them to you. Having got his contact details, you then used social media to further exploit the complainant's vulnerability and groom him in a sustained effort to get him to meet you to gratify your sexual desires.’[51]
[51] Exhibit 1: G3, page 33.
It is clear from aggregating these perspectives that the cumulative effect of Mr Li’s offending is substantial in terms of the Australian community. It is likely to be extremely significant for the victim of his sexual offending but the Tribunal is constrained by the absence of evidence on this point.
Paragraphs 8.1.1(1)(f), (g) and (h)
There is no evidence before the Tribunal that enlivens these paragraphs.
Consequently, these paragraphs are not relevant to any assessment of the nature and seriousness of Mr Li’s conduct.
Tribunal’s finding: The nature and seriousness of Mr Li’s conduct.
The Tribunal has sought above to apply and consider each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction.
With reference to the relevant and applicable paragraphs referred above, the Tribunal finds after a holistic consideration of Mr Li’s offending that it should be characterised as especially serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
This aspect of the Direction requires the Tribunal to assess the risk Mr Li poses to the Australian community if he reoffends or engages in other serious conduct, taking into consideration the nature of any consequential harm and its probability.
Paragraph 8.1.2(1)
This paragraph states:
‘In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.’
Paragraph 8.1.2(2)
This paragraph provides that, in considering the risk to the Australian community, a decision-maker must have regard to the following factors on a cumulative basis:
(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 the most recent offence; and
(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.
In assessing the risk to the Australian community, the Tribunal has considered the evidence and the parties’ submissions in relation to paragraph 8.1.2.
Summarising the Respondent’s arguments:[52]
(a)The harm to the Australian community should Mr Li re-offend would be very serious. His conduct in attempting to procure a 14 year-old child for sex, if repeated in future, is so serious that any risk that it may be repeated is unacceptable. The harm that would be caused to a child victim can hardly be overstated.
(b)Further offending of a similar nature may not be frustrated by the intervention of the police.
(c)Mr Li’s risk of re-offending was considered by two psychologists employed by the Department of Correctional Services in January 2023. They considered and concluded that Mr Li had developed a deviant attraction to the victim through distorting and idealising his previous sexual interactions with children of a similar age, albeit legally in China. Mr Li was observed to be a person who pushed boundaries, and this behaviour was found to be related to his sexual offending; he also engaged in this offence paralleling behaviour through pushing boundaries in the custodial setting.
(d)The VRS-SO actuarial risk assessment tool indicated a risk of re-offending within an average range in comparison to the normative sample for this offence-type - a predicted sexual recidivism of 8.3% over 5 years, a ‘low-medium’ risk, using the Department of Correctional Service’s terminology.
(e)The two psychologists qualified this risk assessment by acknowledging that if Mr Li experiences difficulties in his relationships, re-engages in gambling behaviours, struggles to manage his sexual urges or unpleasant emotions appropriately, and subsequently engages in impulsive tendencies without thought of consequences, then his risk of engaging in problematic behaviours may increase.
(f)The Tribunal should find that a low-medium risk of re-offending, with a potential higher risk should Mr Li behave as outlined in this qualification, is unacceptable given the harm that would be caused to a victim should he re-offend.
(g)This assessment is reinforced by the Department of Correctional Services’ psychologists’ view that Mr Li had developed a deviant attraction to the victim through distorting and idealising his previous sexual interactions with children of a similar age that were legal in the PRC.
(h)The Department of Correctional Services’ psychologists also noted that Mr Li was observed to be a person who pushed boundaries, behaviour that was found to be related to his sexual offending, and which had been repeated while in custody.
[52] Exhibit 3: Respondent’s Statement of Facts, Issues and Contentions, [44]-[60].
Drawing Mr Li’s arguments from his closing submission[53], his SFIC[54] and his Personal Circumstances Form:[55]
(a)Mr Li acknowledges that his gambling addiction and mental health issues have been significant contributing factors in his offending.
(b)Mr Li has undertaken rehabilitation courses and counselling to gain insights into his gambling behaviour, his impulsivity and his sexual behaviour.
(c)He considers that the effect of these programs will reduce the risk of his reoffending in terms of sexual conduct and his gambling addiction.
(d)In relation to his gambling, he was taught techniques and strategies to attempt to control and channel his gambling and thereby relieve his urge to gamble.
(e)He claims that he has sought and obtained self-exclusion in most of the casinos in Australia (including Sydney, Melbourne, Adelaide, Perth).
(f)He does not consider it possible to say that he can quit gambling, but he considers that he is 100% ready to cope with and to deal with any problems related to his gambling behaviour.
Tribunal’s Consideration: The nature of the harm to individuals or the Australian community were Mr Li to engage in further criminal or other serious conduct.
[53] Transcript, page 100, line 31 – page 108, line 3.
[54] Exhibit 2.
[55] Exhibit 1: G3, pages 49-64.
The Tribunal considers that the evidence before it demonstrates that the nature of the harm to both the victims and the Australian community arising from Mr Li’s past offending is both significant and substantial.
In particular, if Mr Li was to reoffend in the same manner as his past sexual offending, the nature of the resulting harm and the consequences for affected individuals, especially a child victim, would be extremely serious.
Tribunal’s Finding: The nature of the harm to individuals or the Australian community were Mr Li to engage in further criminal or other serious conduct.
The Tribunal finds that further future criminal conduct of the categories Mr Li has previously engaged in could result in extremely serious and material physical, psychological and financial harm to the likely victims and the Australian community.
Tribunal’s Consideration: the likelihood of the non-citizen engaging in further criminal or other serious conduct.
The Tribunal has holistically considered the totality of the oral testimony and documentary evidence addressing the likelihood of Mr Li engaging in further criminal or serious conduct.
The issues surrounding the consideration of risk under s.501(6)(d) of the Act, from which paragraphs 8.1.2(1) and (2) are drawn, have been extensively considered by the Tribunal and superior courts.[56]
[56] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
The Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, 194 stated that the reference to ‘criminal conduct’ is:
‘…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.’
[58] See the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
The clear legislative intention is that the threshold is whether there is ‘a’ risk.[57]

The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from s 501(6)(d) leaving it as ‘a’ risk.[58]
On this occasion the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 stated (at [46]):
‘The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.’
[57] See the discussion in GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48]–[52].
In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal (FC)), the Full Court of the Federal Court (Perram, Murphy and Lee JJ) stated at [2]:
‘… Section 501(6)(d)(i) provides that a person does not pass the character test if
“in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would ... engage in criminal conduct in Australia”. The section requires an evaluative judgment by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk.” Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.’
In Sabharwal (FC) the Full Court noted that the Minister said he ‘could not rule out the possibility of further offending by Mr Sabharwal.’[59] The Full Court, citing Justice Moshinsky’s decision in Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588, 608 [62], found that the Minister’s statement was, in substance, a finding that there was a risk of Mr Sabharwal re-offending.
[59] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [58] (“Sabharwal (FC)”).
In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court observed as follows (at 574-575):[60]
‘The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’
(Added emphasis.)
[60] QKVH and the Minister for Home Affairs (“QKVH 2020”) [2020] AATA 4431 (2 November 2020) at [5].
Justice Mortimer explored the notion of risk and its nexus to future possibilities in Murphy v Minister for Home Affairs [2018] FCA 1924, [37], where Her Honour noted:[61]
‘That is, part of the Tribunal’s task was to decide not only whether the Applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’
[61] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
Consequently, by applying the reasoning in Sabharwal FC and Guo to this matter, the Tribunal’s task is to assess whether there is “a risk” or a likelihood of Mr Li engaging in further future criminal or serious conduct.
In making this assessment, the Tribunal has the benefit of the 18 January 2023 South Australian Department for Correctional Services’ Rehabilitation Programs Branch assessment that Mr Li poses a moderate risk of further general offending.[62] The assessment includes the forecast of a predicted sexual recidivism probability of 8.3% over five years, equating to a moderate-low risk of sexual reoffending.[63]
[62] Exhibit 5: Applicant’s Bundle of Evidence, pages 30 – 39.
[63] Op. cit., page 37.
A consideration of the risk or likelihood of Mr Li engaging in further criminal or serious conduct should encompass the factors that:
(a)facilitate the risk; or,
(b)conversely, hinder or retard the risk.
Doing this enables the Tribunal, in making its assessment, to consider Justice Mortimer’s question as to “whether the risk should be “tolerated”.
Factors that facilitate the risk
Mr Li has articulated and described his gambling addiction. Since first entering a casino in Australia, he has sought counselling assistance and other help, has avoided gambling and then suffered relapses.
His gambling led to significant financial losses and debts, conflicts in his personal relationships and, in 2020, a marked decline in his mental health leading to suicidal ideation, an admission to hospital for psychiatric treatment and, plausibly, his December 2020 sexual offending.
It is relevant at this point to quote from the 18 January 2023 South Australian Department for Correctional Services’ Rehabilitation Programs Branch assessment:
‘Mr. Li identified a high-risk situation for re-offending was bottling up his unpleasant emotions. He stated that to manage this risk in the community he could seek support from professionals. Furthermore, Mr. Li stated that emotion surfing was a strategy he utilised to manage unpleasant emotions. He acknowledged this his impulsivity and acting on sexual urges were high risk for him re-engaging in sexual offending. He also stated that “urge surfing” could be used to manage sexual urges. Checking whether his urge is healthy or not is a strategy he would use to choose whether to act on it or not. Mr. Li also acknowledged that lack of awareness into the age of consent was a high-risk factor for re-offending; he stated he could seek knowledge of this information prior to any future sexual encounter.’[64]
and
‘Following treatment, Mr. Li appeared to have moved on the majority of his dynamic risk factors to behaviours were problematic, and he made some behavioural changes; however, some changes the contemplation or preparation stage. In other words, he demonstrated some awareness that his behaviours were problematic, and he made some behavioural changes; however some changes were relatively recent and not yet consistent over time or demonstrated across relevant high-risk situations.
It was noted however, that should Mr. Li experience difficulties in his relationships, re-engage in gambling behaviours, struggle to manage his sexual urges or unpleasant emotions appropriately and engage in impulsive tendencies without thought of consequences, then his risk of engaging in problematic behaviours may increase.’[65]
[64] Ibid., page 35.
[65] Ibid., page 37.

The Tribunal considers that gambling is a threshold risk for Mr Li. In the past, when his gambling has had adverse results, his behaviour has grown erratic and he has not only offended but also jeopardised his mental health, his financial position and his personal relationships. The stress of his gambling addiction appears to amplify his impulsivity. His gambling addiction contributed significantly to his sexual offending.
The High Court’s reasoning in Guo that ‘the extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity’ can be applied here.
Mr Li’s past gambling can be characterised as frequent and regular His addiction to gambling represents a significant risk factor and a guide to the future in terms of contributing to any future reoffending.
Factors that hinder or retard the risk – Rehabilitation and Remorse
Mr Li provided oral testimony and presented documentary evidence asserting the extent and nature of his rehabilitation and his expressions of remorse about his offending.
Mr Li’s rehabilitation focused on the two major themes of his offending: gambling and his sexual offence. Exhibit 5 includes documentary evidence of the rehabilitation he has undertaken with respect to both themes.
Mr Li has undertaken gambling counselling with several providers since 2016, the latest involving counselling in the immigration detention centre. There are brief reports in the evidence before the Tribunal giving narrative descriptions of this counselling which suggest that Mr Li has been taught cognitive exercises to curb his gambling, such as conducting a cost/benefit exercise, drawn insights into his gambling, and has drawn support from a friend.[66] Given Mr Li’s historical record of gambling until his imprisonment and subsequent detention, the Tribunal questions the efficacy of this counselling with respect to Mr Li.
[66] Exhibit 5, pages 43 – 44 and 47-51.
Evidence of rehabilitation in terms of his sexual offending is addressed in Mr Balfour’s 5 August 2021 report and the South Australian Department for Correctional Services Rehabilitation Programs Branch Sexual Behaviour Clinic’s 18 January 2023 report (the SBC Report).
Having reviewed these reports, the Tribunal notes the following extracts from each report.
Mr Balfour’s report records Mr Li as saying:[67]
‘Mr Li said that he does not currently want a stable defacto partner. He said “I just want to have sex. For me sex is relaxing. I don’t mean to break the law. I wanna have a sexual relationship instead of a defacto relationship. I only know the consent age when I released on bail. I Google the consent age here in South Australia is 17 years old. When we in Sydney and we have a party, people popped up the question that western countries are more open than cities in China. But what is interesting is the legal age for sex here is much older than legal age in China. It’s 16 years old, so they Googled it and showed me when I was back in Sydney. In China the age is 14. In Japan it is about 12. When I commit this offence in Australia, I didn’t think too much about whether I break the law or not. I just think this is a good-looking guy, and I just approach him and get his number.’
[Emphasis added]
[67] Exhibit 5: Combined Evidence of the Applicant, A5, page 15.
The SBC Report states:
‘At the commencement of treatment, Mr. Li stated the main contributing factor of his sexual offending was lack of insight into Australian laws of consent. He alleged that consent laws did not exist in China and a sexual relationship would be considered appropriate with a 13- or 14-year-old. He understood that he had the responsibility to learn and abide by Australian laws whilst living in Australia however tended to minimise the role he played in his sexual offending. During treatment Mr. Li was challenged on his cognitive distortions and was able to consider alternative points of view. Mr. Li stated that he thought during the sexual offending, “he [the victim] didn’t say no”; he acknowledged this was a cognitive distortion that allowed the sexual offending to occur and that did not mean that the victim gave consent. He acknowledged that an entitled way of thinking such as “I need sex” or “I need relaxation” contributed to his sexual offence. He stated that prior to his sexual offending, he considered sex as a “quick way out of [his] problems” and a “shortcut to solve my problem”. He engaged in cognitive distortions such as minimisation in the lead up to the offending such as thinking what he was doing was right. He stated, “I said to myself that it is ok to approach everyone nicely if I want to”. Mr. Li also stated that he minimised the consequences of his actions in the sexual offending and minimised the harm to the victim by thinking, “this isn’t going to harm anyone” and “this isn’t going to get me in trouble”. The self-talk he engaged in to overcome internal barriers to sexual offending was, “that’s legal in China, should be fine here”, “he said yes” and “it is not harmful”. Mr. Li reported that he could use the Catch it, Check it, Change it (CCC) model in the future to challenge his cognitive distortions and unhelpful thinking patterns.
Throughout treatment Mr. Li continued to deny that his sexual offending was planned and referred to it as being opportunistic. He did however consider how he can prevent himself from engaging in victim grooming behaviours by developing healthy strategies to manage unpleasant emotions, understanding cognitive distortions, and considering victim empathy. Mr. Li identified that he committed the sexual offending to gain sexual arousal, relaxation and to seek relief from depression and stress.
Mr. Li developed insight into the precipitants of his sexual offending throughout the program. He stated that low self-worth, feeling lonely, lack of emotional connection and lack of intimacy contributed to his sexual offending. He also considered that his tendency to push boundaries was present in the sexual offending. Mr. Li stated that sexual arousal and sexual urges were feelings that were feelings that he felt intensively in the lead up to the offending. As a strategy to manage unpleasant feeling such as loneliness, he stated that learning "emotion surfing" was of particular importance for him throughout the program. Mr Li also acknowledged that urge surfing when experiencing sexual urges could be a strategy that he used in the future to manage urges and arousal.’[68]
and
‘While Mr. Li complied with all program requirements and expectations, there was evidence that Mr. Li’s behaviour was non-compliant outside of the group in the prison environment. If Mr. Li was released on to community supervision, he would be required to abide by instructions and boundaries and follow the conditions assigned to him, including ANCOR conditions. It was noted that pushing boundaries was related to his sexual offending and he engaged in this offence paralleling behaviour through his pushing boundaries in the custodial setting.
Mr. Li identified a high-risk situation for re-offending was bottling up his unpleasant emotions. He stated that to manage this risk in the community he could seek support from professionals. Furthermore, Mr. Li stated that emotion surfing was a strategy he utilised to manage unpleasant emotions. He acknowledged this his impulsivity and acting on sexual urges were high risk for him re-engaging in sexual offending. He also stated that “urge surfing” could be used to manage sexual urges. Checking whether his urge is healthy or not is a strategy he would use to choose whether to act on it or not. Mr. Li also acknowledged that lack of awareness into the age of consent was a high- risk factor for re-offending; he stated he could seek knowledge of this information prior to any future sexual encounter.’[69]
[Emphasis added]
[68] Exhibit 5: Combined Evidence of the Applicant, A6, pages 32-33.
[69] Ibid.; page 35.
In terms of demonstrating remorse, the Tribunal notes the following:
(a)Mr Li’s SFIC states that: “My contention is I had been very ashamed and remorseful for what I have done.”[70]
(b)Mr Li’s SFIC further states: “Though I felt immensely sorry and ashamed for what I have done, I was a law-abiding citizen in the past. By the lessons of prison and the new concepts I have learnt from my programmes and my counselling, I believe I can be an honest and integral person. Therefore, I believe these are points AAT court could consider to revoke the previous decision from immigration department.” [71]
(c)In sentencing Mr Li, Judge Thomas observed:
‘I accept that you acknowledge the wrongfulness of your offending and are deeply ashamed, humiliated and remorseful. I accept that you have taken some positive steps towards your rehabilitation and are not in denial about your pathological gambling disorder.’[72]
and
‘I accept that your insight into your offending, your remorse and your expressed desire to respect the law, now you know the legal age of consent, are also favourable factors. However, whilst you have taken some positive steps towards rehabilitation, I am cautious about your overcoming the real obstacle to your rehabilitation, your pathological gambling addiction and its destabilising consequences. I am particularly concerned that you do not have the protective factor of the love and support of your family and friends, having not told your parents, family or friends other than your former partner of your offending. Whilst your former partner is supportive, he is in China and, as you told Mr Balfour, communicates with you rarely. You are also unemployed.’[73]
(d)There is no evidence before the Tribunal of any attempt to communicate an apology to the victim of his sexual offending, demonstrate contrition or attempt to contribute back to the community.
[70] Exhibit 2: Applicant’s SFIC, page 4.
[71] Exhibit 2: Applicant’s SFIC, page 4.
[72] Exhibit 1: G3, page 32.
[73] Ibid.; page 34.
There are several factors balanced against the evidence of Mr Li’s rehabilitation and remorse.
The first is Mr Li’s gambling addiction. [74] Two recent records are the file notes of the counselling he has received whilst in immigration detention:
[74] Op.cit.: page 34.
4 Oct 2023: “Client reported that he has been able to manage his mental health better in regards to not thinking about engaging in gambling use due to distance created from triggers whilst in detention. The client reported that he had made a friend from prison and that this friend has helped him to control his gambling by holding on to his money for him and only giving his money when he needs it. The client reported that he feels this is a useful strategy that he will use to control his gambling when outside of detention. The client reported that his friend and himself sometimes have arguments in relation to a business that they eventually want to start. The Client reported moving to Australia increased his gambling use due to casinos being more accessible and reported his gambling was not a problem in China due to stricter laws and penalties surrounding gambling. The Client also reported apprehension over his current Visa status and wanting to stay in Australia.” [75] [Emphasis added]
and
(e)13 September 2023 ‘Client discussed whilst able to better manage gambling addiction in detention, he reported anxiety over being able to resist gambling once outside of detention due to triggers such as passing casinos and having free time which he reported has encouraged gambling in the past.’ [76]
[75] Exhibit 5: A7, page 43.
[76] Exhibit 6: A8, page 44.
[Emphasis added]
The Balfour and SCB reports, along with Mr Li’s testimony in cross-examination,[77] suggest a degree of dissonance in Mr Li’s thinking around the age of his sexual partners, prospective or actual, and his statements regarding the age of consent.
[77] Transcript, page 57, line 17 – page 58, line 29.
The Balfour and SCB reports also acknowledge Mr Li’s issues with impulsivity. Other evidence for this tendency and an associated tendency to “push” barriers can be found in his breaches of home detention[78] and breaches of casino banning orders and bail conditions[79]. Mr Li was candid about this issue under cross-examination. [80]
[78] Exhibit 6: Supplementary G Documents, SG2, page 212.
[79] Exhibit 1: G3, pages 27-28.
[80] Transcript, page 59, lines 28-35.
The Tribunal notes that Mr Li’s rehabilitation in terms of gambling and sexual offending have not been tested in the general community. Mr Li himself raises concerns about this in his recent counselling at the detention center.
Risk Management Factors
The evidence identifies several static and dynamic risk management factors for Mr Li. These include a network of family and friends and the coping strategies he has learnt to deal with his gambling and sexual urges.
Again, it should be noted that these have not been tested in the general community. If Mr Li is released from detention into the Australian community he will not have employment or be in a relationship. These factors will likely place him under stress which, as Judge Thomas observed (see above), put him at risk of gambling or impulsive behaviour. This is echoed in the SBC Report’s conclusion, noted above.
There is no certainty as to whether Mr Li would continue with his rehabilitation efforts if allowed to stay in the country.
Risk Analysis and Consideration
The Tribunal has considered the evidence above, applying the dictum in Guo that the extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.
Mr Li is addicted to gambling. For him, gambling generates stress and pressure which historically has led to his offending. The evidence regarding his capacity to resist gambling if returned to the community is qualified, weak and untested. Stress and pressure increase his risk of engaging in problematic behaviour which manifests as a risk of reoffending.
Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal finds that the risk to the Australian community should Mr Li commit further offences or engage in other serious conduct both exists and is significant.
Conclusion: Primary consideration 1: Protection of the Australian community
This consideration weighs very heavily in favour of affirming the delegate’s decision to not revoke the mandatory cancellation of Mr Li’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN.
The Tribunal has no evidence before it of Mr Li having committed family violence.
Conclusion: Primary consideration 2: Family Violence committed by the non-citizen
This consideration carries a neutral weight.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA.
Paragraph 8.3 of the Direction provides:
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.
2In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
3The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
4Decision-makers 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)the length of time the non-citizen has resided in the Australian community, noting that:
(i)     considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii)    more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii)   less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
The Respondent contends that:
(a)In considering this factor, the Tribunal is required to consider any impact of the decision on the Applicant’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. In doing so, it should give more weight to a non-citizen’s ties to his or her child/children.
(b)Mr Li has no children and no immediate family members in Australia.
(c)Mr Li has made friends during the 10 year period he has lived in Australia, including his former de facto partner Mr Zhao. These people are likely to be sad and disappointed should Mr Li be removed to China.
(d)Mr Li was not ordinarily resident in Australia during his formative years. However, he made a positive contribution to Australia in his role as a migration agent, after completing his qualification at Griffith University in late 2016, and for a period of about 2 years running his own business.
(e)Taking these factors into account, some weight should be assigned to this primary consideration in favour of revocation.
Summarising his evidence and contentions, Mr Li contends that:
(a)The decision maker stated ‘I have also found that Mr Li’s ties to Australia, as a primary consideration, weigh some degree in favour of revocation, noting in particular that he has worked and owned a business for a period of time and it is assumed he has friends. I agreed with the decision maker's statement. I still kept in touch with my ex-partner Daniel (Bo Zhao). Our hope is after those hard times, we could take a time out and reconsider our relationship and potential to live together in the future. Also, I do have many friends in Australia, Both me and my friends will be saddened if I can not [sic] stay in Australia.’[81]
[81] Exhibit 2: Applicant’s SFIC, page 5.
(b)Mr Li stated in his oral testimony that his former de facto partner, Mr Zhao, was residing in Australia again (albeit that he had returned to the PRC to attend a wedding and gave evidence by telephone from the PRC).[82]
[82] Transcript, page 25, line 44.
(c)Mr Zhao corroborated this in his oral testimony.[83]
[83] Transcript, page 79, lines 10 – 24.
(d)Mr Li gave oral testimony that he gambled with ‘friends’ at times in Australia.[84]
[84] Transcript, page 39, lines 38 – 47.
(e)Mr Li gave oral testimony that, if permitted to remain in Australia, a friend had offered him accommodation:
‘Mr Brown: All right. Do you have any idea about where you might live or what arrangements you can make for living?
Mr Li: So, I think, I have recently already got in touch with a friend, and if I was lucky enough and got released from the detention to community, the friend has agreed to let me stay there for some – a bit of time before I can get my first job or I receive (indistinct) pay, I’ll be able to find a place closer to my job. And also my ex-boyfriend, he’s in Melbourne. He got a part-time job, but he will – but he kept a house in Adelaide and he will come back to Adelaide as well, and my ex-boyfriend mentioned that if – when the tenant – the last tenant finish the tenancy there – when they finish the (indistinct) or when the tenant leaves that house – leaves his house he may also stay there.’[85]
(f)In relation to ongoing friendships in Australia, Mr Li gave the following testimony:
‘Tribunal: You may conclude, yes. How many other friends do you consider you have in Australia? People you have a close relationship with, are in contact with, and form part of their, you know, regular daily lives?
Mr Li: So when talking about going to prison, I think I have many – I have many friends. I think I will be about dozens of them. We climb, do a lot of activities together like drinking, having dinner, climbing – or hiking, sorry, hiking. So maybe dozens of them. Several dozens before prison.
Mr Li: Before going to prison.
Tribunal: How many now after prison, or whilst – yes, after?
Mr Li: So now they are still my friends, but I think some of them I do not have a very close contact with. For example, my boss right now is in China – my previous boss is in China, but the boss has several properties in Adelaide and we do still keep in touch, we contact.’[86]
(g)Mr Parenzan gave oral testimony that he considered Mr Li to be a good friend.[87]
[85] Transcript, page 66, lines 14 – 26.
[86] Transcript, page 69, line 42 – page 70, line 11.
[87] Transcript, page 86, line 18.

The Tribunal now considers these contentions and evidence through the lens of each sub-paragraph in paragraph 8.3:
Paragraph 8.3 (1)
Mr Li has no immediate family in Australia apart from his former de facto partner, Mr Zhao.[88] Mr Li has stated that he has two distant cousins living in Melbourne but provided no more detailed evidence about them or his relationship with them.
[88] Exhibit 1: G3, page 59.
Paragraph 8.3 (2)
Mr Li has no children in Australia.
Paragraph 8.3 (3)
Mr Li appears to have strong and enduring friendships with Mr Parenzan and with his former de facto partner, Mr Zhao.
Paragraph 8.3 (4)
Mr Li was not in Australia during his formative years. He has made positive contributions to the Australian community through his migration work and his friendships. His first offending on record occurred five years after his arrival in Australia.
Tribunal’s Consideration
The Tribunal considers that Mr Li's removal will have an adverse impact on his friends such as Mr Zhao and Mr Parenzan. Mr Li has made tangible, if qualified, positive contributions to the Australian community in the period between arriving in 2013 and his subsequent imprisonment and detention.
Conclusion: Primary consideration 3: The Strength, Nature and Duration of Ties to Australia.
The Tribunal gives this consideration some weight towards setting aside the delegate’s decision to not revoke the mandatory cancellation of Mr Li’s visa on the basis that both of his evidenced ties to Australia (Mr Zhao and Mr Parenzan) are people who are either Australian citizens, Australian permanent residents or have a right to remain in Australia indefinitely.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION.
The Tribunal has no evidence before it in this matter of any relevant minor children in Australia.
Conclusion: Primary consideration 4: Best interests of minor children in Australia affected by the decision.
This consideration carries a neutral weight.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5(1) of the Direction provides:
‘The 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.’
In addition to the guidance provided by paragraph 8.5(1) of the Direction, paragraph 8.5(2) of the Direction directs that a 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 in question are 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 because of conduct in Australia or elsewhere, of the following kinds:
(a)acts of family violence;
(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;
(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;
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations apply, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
As with Paragraph 8.5(4) of the Direction, this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations.
Clause 8.5(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court (FCAFC) in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (“FYBR”).
Notwithstanding the different pathways in judicial reasoning, the plurality of the Court in FYBR held that “Expectations of the Australian community” is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[89]
[89] FYBR (2019) 272 FCR 454 (“FYBR”), at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[90]
[90] Ibid at 473 [75]– [76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[91]
[91]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
Observing the norm stipulated in paragraph 8.5(1), the Tribunal now considers the guidance provided by paragraphs 5.2(2) to (6) of the Direction:
2Non-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.
3The 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.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellations of a visa, However, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-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. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
The Respondent contends:
(a)Justice Mortimer has held that this consideration is ‘inextricably linked’ to the protection of the Australian community and that the applicable Direction makes it clear that persons convicted of serious crimes should not be granted or continue to hold a visa. Ultimately, where the expectations of the Australian community fall in favour of non-revocation, the task of the Tribunal is to decide how much weight it should give to those expectations.
(b)The applicant has committed a serious crime, and in doing so has caused harm to a 14 year-old boy. The applicant’s sexual offending against a child gives rise to serious character concerns as contemplated under sub-section 8.5(2) of Direction 99.
(c)The Tribunal should assign very significant weight to the primary consideration of the expectations of the Australian community against finding that there is another reason why the mandatory visa cancellation decision should be revoked.
Mr Li did not make any contentions directly on this consideration. He gave evidence that gave context to his serious offending of a sexual nature against a child.
The Tribunal has found that Mr Li has committed crimes against a child and that the crime was of a sexual nature. Paragraph 8.5(2) of the Direction is enlivened.
The next question is whether there are any factors which modify the Australian community’s expectations.
This question is informed by the principles in paragraphs 5.2(4) to (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa.
(b)The Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time.
(c)In relation to decisions to refuse, cancel and revoke cancellations of visas, Australia will generally 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.
(d)The level of this tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(e)the nature of a 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 a visa outcome that is not adverse to the non-citizen.
(f)In particular, the inherent nature of certain types of conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 8.5(3) provides that the Australian community's expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Direction further explains at Paragraph 8.5(4):
‘This 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.’
Sub-paragraph 5.2(4) uses the term ‘limited stay visa’ which is not defined in the Act. The Act does however create a taxonomy of visas. Relevantly for present purposes,
Section 30 of the Act contemplates both (1) ‘permanent’ visas, which permit a right to remain, ‘indefinitely’; and (2) ‘temporary visas’, which provide a conditional right to remain. ‘Limited stay’, as used in the Direction, seems to be a reference to non-permanent or ‘temporary’ visas.
Tribunal’s Consideration
Mr Li held a Class SI Subclass 189 Skilled – Independent (Permanent) visa. This is a permanent visa permitting the holder to travel to and enter Australia for 5 years from the date the visa was granted.[92]
[92] Migration Regulations 1994 (Cth), reg 189.511.
This implies that sub-paragraph 5.2(4)’s low tolerance does not apply.
Mr Li has lived in Australia since he was 23 and began offending five years later. Mr Li has made some contributions to the Australian community as a worker and as a friend.
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. This is not the case with Mr Li.
The Tribunal has also found Mr Li’s offending conduct to be especially serious.
The Tribunal also observes the requirements of paragraph 8.4(3) of the Direction which dictate that the expectations of the Australian community apply regardless of whether a
non-citizen poses a measurable risk of causing physical harm to the Australian community. The Tribunal has found above that Mr Li poses a significant risk of re-offending.
The Tribunal is satisfied that Mr Li has breached the Australian community’s expectations by his criminal offending which involved serious breaches of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
Conclusion: Primary consideration 5: Expectations of the Australian community
This consideration carries significant weight in favour of affirming the delegate’s decision to not revoke the mandatory cancellation of Mr Li’s visa.
OTHER CONSIDERATIONS
The Tribunal now considers each of the four sub-paragraphs (a), (b), (c) and (d) set out in Other Considerations listed in paragraph 9 of the Direction.
Other Consideration (a): Legal consequences of the decision
Paragraph 9.1 of the Direction directs a decision-maker to consider the following:
1Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
2A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
3International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
9.1.1 Non-citizens covered by a protection finding
1Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
2Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
3Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will Page 12 of 24 Direction No. 99 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
9.1.2 Non-citizens not covered by a protection finding
1Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
2However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
3Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
Tribunal’s Consideration

In addressing Paragraph 9.1 (relevantly, Sub-Paragraphs 9.1(1), 9.1.2(1) and 9.1.2(3)), the following points are relevant to the Tribunal’s consideration on this element of the Direction:
(a)While Mr Li may face a risk that loan sharks may take action against him if he is returned to the PRC, he has previously and frequently returned to the PRC without adverse incidents happening.
(b)It remains open to Mr Li to apply for a protection visa.
Tribunal Finding: Other Consideration (a): Legal consequences of the decision.
The Tribunal considers that this Other Consideration (a) carries a neutral weight.
Other Consideration (b): Extent of impediments if removed.
Clause 9.2(1) of the Direction provides:
1Decision-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.
The Applicant’s contentions
Mr Li’s SFIC contends that he has more friends and connections in Australia than the PRC.[93]
[93] Exhibit 2: Applicant’s SFIC, page 5.
Mr Li’s Reply submission contends that while there are no casinos in the PRC[94], there is gambling-related activity but no gambling counselling service.[95]
[94] The Tribunal takes notice that there are casinos in the PRC’s Macau SAR.
[95] Exhibit 4: Applicant’s Reply, page 3, point 8.
The Respondent’s contentions
The Respondent contends:[96]
(a)Mr Li has lived in Australia for 10 years and will inevitably face challenges in adjusting to life on return to the PRC. However, he remains a young man who should not encounter substantial cultural or language barriers on return; as a graduate with well-developed English language skills, he should not experience particular difficulty in securing employment, so that he is able to support himself and begin to repay his debts.
(b)Mr Li told the South Australian Department of Correctional Services psychologists of the numerous male sexual partners he had had while living in the PRC, and it would appear that he could resume such a lifestyle fairly readily on return.
(c)Mr Li’s mental health issues in September 2020 had been occasioned by his gambling addiction and despair at having lost a large sum of money; there are no casinos in the PRC, and his focus should be on earning enough money to pay off his debts.
(d)If returned to the PRC, Mr Li should enjoy the same access to health services, including counselling services if required, as is available to all Chinese nationals.
(e)This other consideration should be assigned some weight in favour of revocation.
[96] Exhibit 3: Respondent’s SFIC, [74] – [78].
Tribunal’s Consideration
This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that Mr Li, if removed from Australia to the PRC, will face in establishing himself and maintaining basic living standards taking the specific factors below into account.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
Mr Li is 33 years old.
Mr Li stated in oral testimony that he is generally in good health physically and this is corroborated by the South Australian Prison Health Service’s records.[97]
[97] Exhibit 6: Supplementary G Documents, SG3, Pages 266 – 392.
The Tribunal concludes, after looking holistically at the available evidence of Mr Li’s general state of health in the past and currently, that he is healthy and does not appear to suffer from any chronic physical health issue that would currently impede his ability to re-settle and maintain basic living standards in the PRC.
Given his mental health history, involving involuntary admission to psychiatric care, suicidal ideation and depression, and acknowledging the Federal Court’s decision in Holloway v Minister for Immigration, Citizenship and Multicultural Affairs[98], the Tribunal considers that Mr Li faces a risk that the stresses and emotional hardships he will likely face if removed to the PRC could cause mental health issues. Balanced against this risk is that Mr Li, as a Chinese citizen, can avail himself of the same level of mental health care as other PRC citizens.
[98] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126.
Sub-paragraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers that Mr Li, based on his oral testimony and the fact that he lived in the PRC until he was 23 and has subsequently travelled back there, would face few, if any linguistic difficulties if he returned to the PRC.
The Tribunal also considers that Mr Li is unlikely to face significant cultural issues for the same reason. The Tribunal acknowledges the Applicant’s SFIC’s contentions of emotional distress but observes that these are more personal than cultural.
Given the evidence of Mr Li’s work history in Australia, his knowledge of Mandarin, his family network and his relative youth, the Tribunal considers that he would be able to overcome any cultural barriers that arise.
Sub-paragraph 9.2(1)(c) - any social, medical and/or economic support available to them in that country
The Tribunal considers that, based on the evidence, Mr Li would have medical, social and economic support available to him, with his parents addressing the latter two support factors.
Addressing the potential for Mr Li’s mental health to become an impediment, the Tribunal again acknowledges the Federal Court’s decision in Holloway v Minister for Immigration, Citizenship and Multicultural Affairs.[99]
[99] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126.
The Tribunal must consider both Mr Li’s health as broadly construed, and any social, medical and/or economic support available to him in the PRC if he is returned there. To quote from Justice Colvin’s decision in Holloway:[100]
‘Used in the phrase 'age and health', the word health would ordinarily be understood to mean any aspect of a person's physical wellbeing and would include the overall state of a person's fitness and condition, including underlying health issues and ongoing effects of any past injury. Within ordinary parlance, a person's status as having a history of substance abuse, especially where there was evidence from which it may be concluded that there was a real risk of relapse into misuse of substances to such an extent that it would be an impediment to a person being able to establish and maintain basic living standards, is aspect of that person's overall health.’
and
‘The error by the Tribunal was to confine the term 'health' to only include currently manifested health issues and difficulties.’[101]
and
‘Of course, there may be reasons why an underlying condition which is being managed or which is in remission or for which there is effective treatment may not be likely to manifest as an impediment.’[102]
[100] Op.cit. [12].
[101] Ibid, [13].
[102] Ibid, [15].
Mr Li’s mental health appears to be reasonable relative to his present circumstances thanks to the treatment and care he has and is receiving. He does not appear to have a substance use disorder.
Tribunal’s analysis and consideration
The Tribunal has considered above the extent of any impediments that Mr Li, if removed from Australia to the PRC, will face in establishing himself and maintaining basic living standards, considering the specific factors set out in paragraph 9.2(1).
Tribunal finding: Other Consideration (b) Extent of impediments if removed.
Having regard to the analysis referrable to each of the three sub-paragraph components of this other consideration (b), the Tribunal finds that Mr Li would face a level of emotional, practical, financial and medical hardship if he was returned to the PRC.
This hardship would be aggravated by the likely short-term difficulties he would face in re-establishing himself in the PRC, ameliorated by his family network there.
While there are risks that these difficulties and hardship may affect Mr Li’s mental health or result in him abusing substances, the Tribunal considers that his relative youth, cultural propinquity to the PRC and support from his family in the PRC are other dynamic protective risk management factors that mitigate and manage these risks.
This consideration carries some weight in favour of setting aside the delegate’s decision under review.
Other Consideration (c): Impact on victims
Clause 9.3(1) of the Direction states:
‘Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.’
Tribunal finding: Other Consideration (c): Impact on victims.
There is no evidence before the Tribunal as to the impact that a decision to set aside the delegate’s decision might have upon any of the victims of the Applicant's offending.
Based on the abovementioned statements, the Tribunal finds that this Other Consideration (c) carries neutral weight.
Other consideration (d) Impact on Australian business interests if Mr Li cannot remain here.
Paragraph 9.4 (1) compels an assessment of Mr Li’s employment links to Australia with reference to any impact his removal may have on, “Australian business interests”, qualified by the words 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 has not made any direct contentions on this consideration.
The Respondent contends:
(a)The making of a decision preventing Mr Li from returning to the Australian labour market would not significantly compromise the delivery of a major project or an important service in Australia.
(b)While Mr Li has worked in several different jobs in Australia, his skills and experience are not such that his unavailability as a potential employee would have an adverse impact on Australian business interests more broadly.
(c)This ‘other consideration’ should be assigned neutral weight.
Tribunal finding: Other Consideration (d): the impact on Australian business interests if Mr Li cannot remain here.
The Tribunal finds that Other Consideration (d) carries neutral weight.
FINDINGS: OTHER CONSIDERATIONS
The Tribunal now summarises the respective weights it has allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
Other Consideration (a) – legal consequences of the decision:
·This consideration has neutral weight.
Other Consideration (b) - extent of impediments if removed:
·This consideration carries some weight in favour of setting aside the delegate’s decision under review.
Other Consideration (c) - impact on victims:
·This consideration has neutral weight.
Other Consideration (d) – Impacts on Australian business interests:
·This consideration has neutral weight.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).[103]
[103] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
There are no additional considerations before the Tribunal in this matter.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, Mr Li does not pass the character test.
In determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
The Tribunal find as follows:
Primary Consideration 1 - protection of the Australian community from criminal or other serious conduct:
·This consideration weighs very heavily in favour of affirming the delegate’s decision to not revoke the mandatory cancellation of Mr Li’s visa.
Primary Consideration 2 - whether the conduct engaged in constituted family violence:
·This consideration is neutral.
Primary Consideration 3 - the strength, nature and duration of ties to Australia:
·This consideration carries some weight towards setting aside the delegate’s decision to not revoke the mandatory cancellation of Mr Li’s visa.
Primary Consideration 4 - best interests of minor children in Australia affected by the decision:
·This consideration is neutral.
Primary Consideration 5 – expectations of the Australian Community:
·This consideration carries significant weight in favour of affirming the delegate’s decision to not revoke the mandatory cancellation of Mr Li’s visa.
The Tribunal has also set out above the weight attributable to the other considerations and the additional consideration.
A comprehensive, holistic and integrated view of the Primary Considerations and the Other Considerations leads this Tribunal to a finding that it is not satisfied of there being another reason to revoke the mandatory cancellation of the Applicant’s visa. Accordingly, the Tribunal makes a finding of affirming the delegate’s decision to not revoke the cancellation of Mr Li’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 12 September 2023 to not revoke the cancellation of Mr Li’s visa.

I certify that the preceding one hundred and ninety-six paragraphs (196) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave

...............[SGD].................
Associate
Dated: 21 February 2024

Dates of hearing: 20 & 21 November 2023

Representation for the Applicant: Self-represented litigant

Solicitor for the Respondent:
Mr David Brown (Senior Executive Lawyer)

Australian Government Solicitor

ANNEXURE A

Exhibit Number

Description of Exhibit

Party

Date of Document

Filing Date

1

S37 T Documents

R

-

6 October 2023

2

Applicant’s Statement of Facts, Issues and Contentions

A

-

13 October 2023

3

Respondent’s Statement of Facts, Issues and Contentions

R

27 October 2023

27 October 2023

4

Applicant’s Reply Submissions

A

12 November 2023

12 November 2023

5

Applicant’s Bundle of Evidence

A

-

-

6

Supplementary T-documents

R

-

16 November 2023

Date	Event
7 September 2021	Convicted of Procure child for sexual activity (basic offence) and sentenced (the Index Offending).
22 September 2020	Five charges of Entering or remaining in casino contrary to order or direction and one charge of Breach of bail condition. Mr Li failed to appear.
27 August 2020	One charge of Entering or remaining in casino contrary to order or direction. No conviction recorded and Mr Li was fined $500.
6 May 2020	One charge of Enter or remain in a gaming area. No conviction recorded and Mr Li was fined $60.
24 March 2020	One charge of Entering or remaining in casino contrary to order or direction and one charge of Cheating by fraudulent trick, device, sleight of hand or representation. No conviction recorded and Mr Li was fined $250 for each charge.
17 August 2018	One charge of Barred person – contravene barring order. No conviction recorded and Mr Li was fined $300.

Exhibit Number	Description of Exhibit	Party	Date of Document	Filing Date
1	S37 T Documents	R	-	6 October 2023
2	Applicant’s Statement of Facts, Issues and Contentions	A	-	13 October 2023
3	Respondent’s Statement of Facts, Issues and Contentions	R	27 October 2023	27 October 2023
4	Applicant’s Reply Submissions	A	12 November 2023	12 November 2023
5	Applicant’s Bundle of Evidence	A	-	-
6	Supplementary T-documents	R	-	16 November 2023