Li and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 3354

Li and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3354 (18 October 2023)
Division:GENERAL DIVISION
File Number(s): 2023/5667
Re:Yang Li
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Hon J Rau SC
Date:18 October 2023
Place:Adelaide

The decision under review is set aside.
…………………[Sgnd]……………….
Senior Member Hon J Rau SC
CATCHWORDS
MIGRATION – mandatory cancellation of Class SI Subclass 189 Skilled Independent visa, under section 501(3A)- where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancelation under section 501CA (4) should be exercised – consideration of Ministerial Direction No. 99 - decision under review is set aside.
LEGISLATION
MIGRATION ACT 1958 (CTH)
Migration Amendment (Aggregated Sentences) Act 2023 (Cth)
CASES
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
Pearson v Minister for Home Affairs (2022) FCAFC 203
SECONDARY MATERIAL
Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member Hon J Rau SC
18 October 2023
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA (4) of the Migration Act 1958 (Cth) (“the Act”) on 3 August 2023, not to revoke the mandatory cancellation of his Class SI Subclass 189 Skilled Independent visa (“the Visa”).
The visa was cancelled on 2 June 2022 under section 501 (3A) on the basis that he did not pass the character test.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of having been sentenced to an aggregate term of 12 months imprisonment, on 28 April 2022.
The Applicant concedes that he does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act
The hearing was held on 9 October 2023. The Applicant was represented by Dr Jason Donnelly of Latham Chambers instructed by Mr Jack Li of Floraison Legal and the Respondent was represented by Ms Donaghy of HWL Ebsworth.
The Applicant gave evidence by Microsoft Teams from Yongala Hill Immigration Detention Centre.
The Applicant indicated a wish at the outset, to be assisted by a Mandarin interpreter. He generally used the interpreter. It was, however, obvious that his command of English was reasonable, as one would expect of a man who has lived in English-speaking communities, for the past 23 years.…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: Li and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3354
Case: [2023] AATA 3354
Decision Date: 18 October 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Li and the Minister for Immigration, Citizenship and Multicultural Affairs concerning the mandatory cancellation of the Applicant's Class SI Subclass 189 Skilled Independent visa. The Applicant did not pass the character test due to having a substantial criminal record, which was not disputed. The central issue was whether the discretion to revoke the visa cancellation under section 501CA(4) of the Migration Act 1958 should be exercised.

The Tribunal was required to determine if there was "another reason" why the original decision to cancel the visa should be revoked. In making this determination, the Tribunal was bound to comply with Ministerial Direction No. 99, which outlines principles to be considered when assessing visa refusal, cancellation, and revocation of cancellation. These principles include Australia's sovereign right to determine who may enter or remain in the country, the expectation that non-citizens will be law-abiding, and that serious conduct will generally lead to forfeiture of the privilege of remaining in Australia. The Direction also specifies that Australia generally affords a higher level of tolerance for criminal conduct by non-citizens who have lived in the Australian community for most of their lives or from a very young age, with tolerance increasing with the length of time spent in Australia, particularly during formative years.

The Tribunal reasoned that while the Applicant possessed a substantial criminal record, the specific circumstances of his offending, which were directly linked to a marriage breakdown and his incapacity to manage his emotional reaction, warranted consideration. The offending was solely directed at his former wife, and there was no evidence suggesting a broader risk to the community. The Applicant had no prior criminal history before the incident, had expressed remorse, and had taken steps towards rehabilitation, including participating in an anger management program. Furthermore, the Applicant had spent significant time in Australia since 2007 and had established business and family connections. The Tribunal found that these factors, when weighed against the seriousness of the offending, provided a sufficient reason to revoke the mandatory cancellation of the visa.

The Tribunal ordered that the decision to refuse to revoke the mandatory cancellation of the Applicant's visa be set aside.

Orders

Orders of the court

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Background

Background to the litigation

This case is somewhat unusual. The Applicant was a law abiding, apparently hard-working family man, until his marriage broke down in 2020. He was 46 years old. Until that point, he had no criminal history. He had no history of gambling, or substance abuse. He had no history of anti-social behaviour. His offending is directly connected to his marriage breakdown, and his apparent incapacity to manage his emotional reaction to it. His former wife ( Ms Lui) has been the sole target of his offending. The Applicant’s failure to heed Court Orders made to protect her, has led to his present predicament. He has incidentally exposed his infant son to his misconduct. The future risk assessment in this case, is also focused on Ms Lui. There is no evidence to suggest that the community more broadly, is at any risk.Background Facts The Applicant was born in Beijing, China on May 1974. He is an only child. His father died in 2017 aged 89 years. His mother who is 83 years of age, lives in Beijing and has had some health problems. The Applicant completed a Diploma in Computer Science in Beijing. At the age of 24, he moved to New Zealand in 2000, to continue his studies in Computer Science at the University of Auckland. He is a New Zealand national, obtaining citizenship after moving there. He had to relinquish his Chinese citizenship at that time. Aside from his citizenship, the Applicant has very little connection with New Zealand. The Applicant established a branch of an American company in New Zealand which supplied printer accessories. In January 2007, he came to Australia and started another branch of the company called Partsmart Australia Pty Ltd. He told the Tribunal that he ran the business from his home garage. The Applicant has travelled overseas on many occasions to visit his parents in China, since coming to Australia.[2] [2] Exhibit 4, G-Documents, G19, Statement of Guanyu Kou, 111; G-Documents, G44, Movement History, 144-150. In February 2014, the Applicant married his now ex-wife, Ms Liu, in Sydney. They met on a dating App. At the time he was 39 years old, and she was 27.[3] She is a Chinese citizen.[4][3] Ibid, G20, Marriage Certificate, p 113.[4] Ibid, G15, Submission from Grace Guo (migration agent), 94. In November 2017, the Applicant’s son, Child A was born. He is a New Zealand citizen.[5][5] Ibid, G2, Statement of Reasons for Decision under s 501CA of the Migration ACT 1958, 27 [86]. In May 2019, the Applicant was granted the Visa.[6] [6] Ibid, G45, Notice of Visa Cancellation, 267. In February 2020, the Applicant was involved in an act of family violence against Ms. Liu. In 2020 the Applicant separated from Ms Liu.[7][7] Ibid, G22, Clinical Records, 152 In March 2020, the Applicant entered a plea of guilty in relation to the 18 February 2020 offending. He was sentenced to an 18-month Community Corrections Order. The decision of Acting Magistrate Connell states:“HIS HONOUR: Yang Li entered a plea of guilty to an offence against s 37(1A) of the Crimes Act 1900 on [date] February 2020 at Carlton. The offender did grab [Ms] Liu around the neck with both hands, squeezed her neck, causing swelling and red marks. The offence is described as intensely choking a person without consent. There is a maximum term of imprisonment of five years for the offence. The jurisdictional limit of this Court is two years’ imprisonment and the Court is required to consider alternatives to imprisonment, which is a sentence of last resort. The Court takes into account the early plea of guilty; it does entitle the offender to an element of leniency from the Court.The facts refer to the fact that the victim [Ms] Lu and the offender had been married for seven years and had a young child (Child A) together, aged 15 months at the time of the offence. They were living together at an address in Carlton and at about 10pm on [date] February 2020 they were in the front living room of the home, the child was also there at that time. There was a verbal argument, according to the facts, about the victim wanting a divorce and the victim was holding the child in her arms at the time.The Court has been told, in the submissions to the Court, about what led to the incident which concerns the charge before the Court in relation to the victim leaving the home and the offender being concerned about the victim and the child. There is no doubt, from the written material before the Court, that the offender was concerned about the victim and the child.Nevertheless, the argument that was occurring escalated whereby the offender grabbed the victim around her neck with both hands. The offender pushed the victim around her neck with both hands. The offender pushed the victim onto the lounge chair and squeezed the victim’s neck. That caused the victim pain and prevented her from breathing. The victim suffered bruising and swelling, still holding the child, and a neighbour heard the argument and saw the victim run from the residence. The neighbour called police. The facts then go on to record what happened afterwards and conversations between the police and the victim where the police did observed marks and swelling to the victim’s throat and neck.The offences I have indicated is against s 1A of s 27 of the Crimes Act 1900 which provides that a person is guilty of an offence if the person intentionally chokes, suffocates or strangles another person without the other person’s consent.The full set of facts is part if the Court’s file.The Court takes into account the written submissions, which were amplified orally today before the Court by Ms Mo appearing for the offender. A number of matters are referred to. One is the fact that the offender has no prior criminal history; the Court takes that into account. The offender has also apologised for his actions and promises not to reoffend. There are also persons who have written a reference for the offender; the Court takes that into account as well. Those references speaks of the offender’s good character and the fact that he is family orientated. Again, the Court would accept that that is so.The offender also apologises to the victim, his wife, and there is a letter from the victim, which I must say is a very measured letter, setting out the fact that the offender has apologised to her through his lawyers and acknowledging that by the letter and the plea of guilty that the offender is remorseful, and accepting his apology, and a believe that he has learnt or will learn a lesson from what has happened. It refers also to the fact that the offender is the father of their very young son and would like the son to have continued support of his father. There is a request to exercise leniency for the offender and give him, to use the victim’s words, an appropriate punishment that is not too harsh.In relation to sentencing there are a number of provisions of the Crimes (Sentencing Procedure) Act that are relevant. They include s 3A of the Act which provides for the purposes of sentencing and ss 4A and 4B as this is a domestic violence offence. I have indicated s 5 of the Act essentially 40 provides that imprisonment is a sentence of last resort. The submissions conclude that the Court could exercise its discretion and not record a conviction by either dismissing the charge under s 10(1)(a) of the Sentencing Act or by not recording a conviction, but imposing a conditional release order.The offence itself occurred in the family home where the victim was entitled to feel safe. There was a young child who was apparently present at the time.The written submissions on behalf of the offender are very thorough, as were the oral submissions to the Court today. Ms Mo has covered everything that needed to be covered. As I have said, I accept that this is out of character, but at the end of the day, the Court must impose a sentence which reflects the objective seriousness of the offence. In my view the Court should not deal with the matter pursuant to s 10, firstly, because the offence is too serious for that and would not reflect the objective seriousness of what is, on the facts before the Court, quite a serious example of this type of offence. General deterrence us also very important. As I have said, this is a domestic violence and, sadly, domestic violence is all too prevalent and must be met by appropriate sentences in appropriate cases. This is a serious example of domestic violence, the Court finds.The Court can deal with the matter by way of an alternative to imprisonment, but, as I have said, it is not appropriate to exercise the Court’s discretion to not record a conviction. FOR THOSE REASONS, YOU ARE CONVICTED OF THE OFFENCE. YOU ARE TO ENTER A COMMUNITY CORRECTION ORDER FOR A PERIOD OF 18 MONTHS. THAT ORDER IS TO BE SUPERVISED BY Community Corrections AT SUTHERLAND AND YOU ARE TO REPORT TO SUTHERLAND Community Corrections OFFICE WITHIN SEVEN DAYS, BY TELEPHONE INITIALLY.[8][8] Ibid, G5, Attachment 3, 47-49.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. This is not disputed by the Applicant. The Tribunal must consider whether “there is another reason why the original decision should be revoked”.Is there another reason why the original decision should be revoked under section 501CA(4) ? In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[24] [24] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90, this in turn was replaced by Direction 99 on 3 March 2023. For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision. The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:(1)Australia 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.(2)Non-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.(3)The 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.(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time.(5)With 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. (6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’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 measurable risk of causing physical harm to the Australian community.

Ratio Decidendi

Legal Principle Established

In August 2023, the Applicant prepared a statement regarding his circumstances and intentions if released into the community. This states:‘Immigration Detention3. I was placed in immigration detention for a total of about 5.5 months in 2022. I was subsequently released on [date] December 2022. On [date] March 2023, I was returned to the Villawood Immigration Detention Centre (VIDC). I was later transferred to the YHDC.4. When I was in the Australian community between December 2022 and March 2023, I had no adverse issues. This provides some evidence that I am not an unacceptable risk to the Australian community.5. Being in immigration detention has been a deeply distressing and isolating experience. I have found myself separated from my family and loved ones, with no knowledge of when or if I would ever be released. The uncertainty surrounding my future is a constant source of anxiety and despair.6. One of the most difficult aspects of detention is the feeling of being stripped of my dignity and humanity. The conditions in detention facilities are often overcrowded and unsanitary, making it incredibly challenging to maintain even a semblance of normalcy. The lack of privacy, limited access to basic amenities, and strict routines contribute to a sense of powerlessness and dehumanisation.7. Perhaps the most painful part of my journey through immigration detention is the separation from my family. Being unable to see my son for an extended period is heartbreaking. Every day apart from him is a reminder of the profound loss and longing that detention has brought into my life.8. Additionally, the legal processes and the wait for decisions on my immigration status has been agonisingly slow and convoluted. It has felt like my life is on hold, and the uncertainty has taken a toll on my mental health. I have witnessed the suffering of many detainees who, like me, are grappling with anxiety, depression, and hopelessness.9. My time in immigration detention in Australia has been a profoundly difficult journey filled with uncertainty, isolation, and emotional turmoil.10. During my time in immigration detention, no charges have been filed against me. I have kept my head down and avoided all forms of trouble.Prison11. I spent 2.5 months in prison with no reported issues. Being in prison was an incredibly trying and isolating ordeal. From the moment I entered the facility, I was confronted with a stark and harsh reality. The loss of freedom, the separation from my loved ones, and the confined living conditions were immediate and constant reminders of the gravity of my situation.12. One of the most difficult aspects of prison life was the profound sense of isolation. The separation from family and friends, the inability to freely interact with others, and the restrictive daily routines were all sources of loneliness and despair. It was agonising to know that life was continuing outside those prison walls while I remained confined.13. The physical conditions within the prison were far from ideal. Limited personal space and the constant presence of correctional officers were aspects of daily life that took a toll on my mental and emotional well-being. The lack of privacy and the feeling of constantly being watched were particularly challenging to endure.14. Moreover, the loss of autonomy over one's life is a profound hardship. Every decision, from daily routines to basic choices, was subject to the rules and regulations of the prison system. This loss of control over my own life was deeply disempowering and frustrating.15. The separation from my son was one of the most painful aspects of my time in prison. Not being able to see my son was heartbreaking. The guilt and sorrow I felt for the burden my incarceration placed on him was overwhelming.Risk of Reoffending16. I would like to share my personal journey of rehabilitation following my experience of spending 2.5 months in prison. I want to express my sincere commitment to positive change and my remorse for my prior criminal offending in Australia.17. Before this experience, I had never been to prison. The shock of incarceration was profound, and it made me reflect deeply on the choices I had made in my life. It was a wakeup call, and I realised the need to address the issues that had led me down the wrong path.18. During my time in immigration detention, I decided to take proactive steps towards my rehabilitation. One of the most important decisions I made was to participate in an anger management program offered within the facility. This program has provided me with valuable insights into managing my emotions and responding to stressors in healthier ways. It is a transformative experience, and I am learning valuable techniques for self-control and conflict resolution.19. I am committed to continuing my anger management program if released from immigration detention. It has been a pivotal part of my rehabilitation journey, and I believe it will help me build a more positive and peaceful future.20. Most importantly, I want to express my genuine remorse for my prior criminal offending in Australia. I deeply regret the actions that led to my incarceration and the harm they may have caused to others. I understand the consequences of my choices and the impact they have had on my own life and the lives of those around me.21. My time in prison has given me the opportunity to reflect on the importance of accountability and personal growth. I am determined to make amends for my past mistakes and to become a responsible and contributing member of society. I have set clear goals for myself, including finding employment and becoming a positive role model for my community.22. I want to emphasise my sincere commitment to rehabilitation and my eagerness to make positive changes in my life. My experience in prison has been a catalyst for self-improvement, and I am dedicated to a path of responsible and law-abiding living. I hope that my story can serve as an example of how individuals can transform their lives through rehabilitation and a genuine desire for change.Personal Circumstances23. Between December 2022 and continuing through March 2023, I resided in Carlton, Sydney. I lived alone in my 5-bedroom property, which I have owned since 2012. If I am returned to the Australian community, I will return to reside at my Carlton property.24. I am divorced from Ms. Liu, with the court issuing a divorce order in or about October 2022.25. My son, [Child A], was born on [date month] 2017, and he currently resides with Ms. Liu in Sydney.26. I maintain contact with [Child A] through video chats, approximately two times per week, using WeChat. We have a close relationship, and I inquire about his well-being and educational progress. [Child A] is currently enrolled in childcare, recently turning five years old, and experiencing some language development issues.27. My mother still resides in China, and I maintain contact with her.28. I originally came to Australia in 2007, holding a New Zealand Passport.29. I am a citizen of New Zealand. It is important to note that the Republic of China does not allow dual citizenship.30. I held a Special Category visa (subclass 444) and was required to work in Australia for four years, ultimately aiming to obtain a Subclass 189 Skilled-Independent visa for my wife and son.31. My property at [address], was entirely settled with my ex-wife. I continue to own this place of residence.32. I am currently single.33. An Apprehended Domestic Violence Order (ADVO) against me will expire in or about April 2024. This ADVO will also act as a deterrent against me committing further criminal offending in Australia.34. I have been the owner of my own company, Partsmart Australia Pty Ltd, for about 16 years. My business involves selling laser printers and spare parts, with numerous customers in Australia. I conducted my business from my residence, utilising my garage space.35. Partsmart Australia Pty Ltd is not currently operational and has been deregistered.36. I currently have pending proceedings before the Federal Circuit and Family Court of Australia (the Court). A final hearing will be held in September 2023, where I am seeking custody of [Child A] to be shared equally with his mother, despite her initial request for sole custody.37. I have been actively involved in my son's life through regular video chats during my time in immigration detention.38. I have seen a psychologist. I had a session with a psychologist in January of this year before being brought back to detention.39. I have no family in New Zealand. Since 2008, I have not lived in New Zealand.40. I have not returned to New Zealand since 2012 when I moved to Australia.41. I pursued a degree in computer science in New Zealand, subsequently transferring to Australia.42. If returned to the Australian community, I will continue with my rehabilitation, bring Partsmart Australia Pty Ltd back to life, return to my family home, spend quality time with [Child A] and comply with Australian laws.’[21][21] Exhibit 7, Statement of Yang Li, 1-7.