Liu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2025] ARTA 324
•4 April 2025
Liu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2025] ARTA 324 (4 April 2025)
Applicant:Ailin LIU
Respondent: Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number: 2024/10536
Tribunal:Senior Member Hon J Rau SC
Place:Adelaide
Date:04/04/2025
Decision:The Tribunal affirms the decision under review.
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Senior Member Hon J Rau SC
CATCHWORDS
MIGRATION – refusal of Sponsored Parent (Temporary) (subclass 870) visa under section 501(1) where the visa Applicant does not pass the character test – the visa Applicant has substantial criminal record in China – the Visa Applicant claims that he is innocent of the crimes – consideration of these claims in the context of his criminal record – whether the discretion to refuse to grant the visa under section 501 (1) should be exercised – consideration of Ministerial Direction No. 110 – decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
Criminal Code Act 1995 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 50
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Darnia-Wilson [2022] FCAFC 28
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Minister for Immigration, Citizenship, and Multicultural Affairs (Cth), Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024).
REASONS FOR DECISION
Senior Member Hon J Rau SC
04 April 2025
INTRODUCTION
The Review Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (‘the Respondent’) made under section 501(1) of the Migration Act 1958 (Cth) (‘the Act’) on 11 December 2024 [1] to refuse to grant her father, Mr Bo Liu (‘the Applicant’) a Sponsored Parent (Temporary) (subclass 870) visa (‘the Visa’). The Visa application was refused on the basis that the Applicant did not pass the character test.
[1] Exhibit 3: G-Documents (G2), 209-235.
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 first issue before the Tribunal is whether the Applicant passes the character test.
The Applicant was convicted of very serious criminal offences in China and sentenced to 17 years imprisonment on 6 April 2010.
The Applicant’s SOFIC, dated 13 February 2025, says:
“3. Criminal Record and Unjust Judicial Proceedings:
o In 2009, my father was wrongfully convicted and sentenced to 13 years’ imprisonment following fabricated charges and perjury. This was the result of a conspiracy by disgruntled employees who sought to take control of his company by petitioning the government to imprison him.
o My father was subjected to torture and harassment by public security officers, who forced him to sign and fingerprint fabricated confession transcripts. These confessions were used as evidence to convict him.
o Despite submitting a criminal appeal in 2010, the court upheld the original judgment. Subsequent appeals by my father and my mother, Meng Zhang, were ignored by the courts and procuratorate due to concerns about holding public officials accountable and maintaining public trust in the judicial system.”[2]
I am satisfied the documents produced to the Tribunal are official Chinese Court records, with English translations.[3] No issue was raised about the accuracy of the English translations.
In relation to these Court records, the Respondent contends that “it is settled law that the Tribunal may not question the correctness of any conviction or the appropriateness of a sentence or the essential facts on which they are based.”[4]
8.I agree with the Respondent’s summary of the law.
9.I note the Full Federal Court’s decision in Minister for Immigration and Multicultural Affairs v SRT:
“ ………it is not open to the Tribunal to engage in any inquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. The starting point for consideration by the Tribunal in relation to sentence, when concerned with the question of an order under s 200 of the Act, must be the findings made by the judge in imposing the sentence that satisfies the statutory description of a sentence of imprisonment for a period of not less than one year.
There are good policy reasons why such a principle should prevail. It could only undermine the criminal process for an administrative decision to be based on considerations inconsistent with the conviction or sentence imposed.”[5]
[2] Exhibit 1: Applicant’s Statement of Facts, Issues and Contentions at [3].
[3] Exhibit 3: G-Documents (G2), 21-80.
[4] Exhibit 2: Respondent’s Statement of Facts, Issues and Contentions at [15]-[17].
[5] [1999] FCA 1197.
Whatever view the Applicant may have as to the legitimacy or otherwise of the judicial processes in China, the Tribunal cannot look behind the Chinese Court’s findings of material facts and the application of the law to those facts. These findings are set out in some detail in the received materials. The convictions were recorded for very serious offences of fraud and dishonesty.[6]
[6] Exhibit 2: Respondent’s Statement of Facts, Issues and Contentions (Attachment A and B).
It was not disputed by the Applicant’s representative that the same conduct, if committed in Australia, would also constitute serious criminal offending.
Based on the materials before the Tribunal, I have no alternative other than to find that the Applicant does not pass the character test.
The remaining issue before the Tribunal is therefore, whether the discretion to refuse to grant the Visa pursuant to s 501(1) of the Act, should be exercised. In doing so, the Tribunal must have regard to Direction 110.
The hearing was held on 24 March 2025. The Applicant was represented by his Migration Agent, Mr Jingbo Li and the Respondent was represented by Mr Matt Gauci of Hunt & Hunt Lawyers.
The Applicant gave evidence by MS Teams video from China. He was assisted by a Mandarin interpreter. He has provided statements.[7] He was at pains to emphasise that he is innocent of the crimes of which he was convicted. He said that he was the victim of lies and that he was subjected to torture. He said that he now had evidence to establish that at least some of the accusations made against him were false, which he has taken to police. If they act on this information, he may have an opportunity to seek a further review of his case. The police investigations may, however, take years to complete.
[7] E.g., see Exhibit 3: G-Documents, 340-350, 357,358,360-1; Exhibit 4.2; Exhibit 5.6.
The Applicant also sought to rely on documentation that he says proves that he has not committed a fraud.[8] This material has not yet been put to a Chinese Court. There is no current application to seek a quashing of his convictions. There are no outstanding appeals or other Court processes in China, regarding his convictions.
[8] See Exhibit 5.
This is the central issue in this case.
The Applicant has expressed no remorse for his offending. He has not undertaken any rehabilitation courses.
His behaviour is entirely consistent with him being an innocent man.
It is also however, consistent with him being in denial, or even deliberately seeking to mislead the Tribunal, to obtain a favourable decision. He certainly has powerful motivations to obtain the visa, as all his immediate family are now in Australia.
As previously observed, the Tribunal is unable to proceed on any basis, other than that the records of the Chinese Courts accurately reflect the relevant factual findings and convictions. This means that the Tribunal cannot accept the accuracy of much of what the Applicant has had to say.
The Applicant called his former wife, MZ. She gave evidence in person with the assistance of a Mandarin interpreter. She divorced the Applicant in 2017 due to social pressures. Since the Applicant’s release from prison in February 2022, she has lived with him. She has recently obtained a permanent resident’s visa. She came to Australia about a month ago. She wants her husband to join her and their 2 daughters here and to reunite their family here. She wants the Applicant to remain here indefinitely. They are planning to remarry.[9]
[9] See Exhibit 4.3.
The Review Applicant gave evidence in person. She has been in Australia since about 2015. She is an Australian citizen. She is very close to her father. She wants him to join her, her sister, and her mother here and would like him to stay for as long as possible. She has kept in regular contact with him by letters, and electronic means. She has also visited him in China, most recently in February 2025.[10]
[10] See Exhibit 4.1.
The Applicant’s daughter HL gave evidence in person. She has been in Australia since about 2015. She is also an Australian citizen. She is very close to her father. She wants him to join her here and would like him to stay for as long as possible. She has kept in regular contact with him by letters, and electronic means. She has also visited him in China, most recently in February 2025.[11]
[11] Exhibit 3: G-Documents (G13), 383.
Background Facts
The Applicant was born in the Peoples Republic of China on 26 October 1965. He is 59 Years old.[12]
[12] Ibid (G15), 389-390.
On 22 April 2010, the Applicant was arrested and taken into custody.[13]
[13] Ibid (G5), 291.
On 6 April 2010, the Applicant was convicted of various offences in the People’s Court of Kuiwen District, Weifang City, Shandong Province.[14] These offences included falsely issuing Value Added Tax (VAT) invoices, misappropriation of funds. He was sentenced to 17 years imprisonment and fined 50,000 yuan. In summing up, the Court said;
“To sum up, the public prosecution agency accused the defendant Bo Liu of committing the crime of falsely issuing special VAT invoices and evading capital contributions. The facts of the defendants Shilei Liu, Mengmeng Wu, and Gao Van's crime of falsely issuing special value-added tax invoices are clear, the evidence is solid and sufficient, and the charges are established, which has been confirmed by this court; The facts accusing defendant Bo Liu of committing the crime of embezzlement of funds is clear, and the evidence is indeed sufficient, which has also been confirmed by this court. However, part of the facts accusing defendant Bo Liu of committing the crime of misappropriation of funds and the accusation of defendant Mengmeng Wu's crime of misappropriation of funds are unclear facts and are of insufficient evidence, so this court will not confirm it. Based on the criminal facts, circumstances, and extent of social harm by each defendant, this court, in accordance with Article 205, Paragraphs I, 3, and 4, Article 272, Paragraph I, and Article 272 of the Criminal Law of the People's Republic of China, Paragraph 1 of Article 159, Paragraph 1 of Article 64, Paragraph 1 of Article 25, Paragraph 1 of Article 26, Paragraph 1 and Paragraph 2 of Article 27, Paragraph 1 of Article 69, Article 1 and 2, Article 52, and Article 53, has made a judgment as follows:
I. The defendant Bo Liu was guilty of falsely issuing special VAT invoices and is sentenced to ten years and six months in prison; he is sentenced to six years in prison for misappropriating funds; he is sentenced to one year in prison with a fine of50,000 yuan for evading capital contributions. It has been decided a fixed-term imprisonment of seventeen years and a fine of 50,000 yuan will be imposed (the sentence shall be calculated from the date of execution of the judgment. If there is any detention before judgement, the imprisonment term will be offset for each day of detention already imposed, that is, starting from 22 April 2009 from 21 April 2026; the fine shall be paid within one month after the judgment takes effect).”[15]
[14] Ibid (G5), 272-292.
[15] Ibid 291.
The Applicant appealed, but the Appeal was dismissed on 21 July 2010.[16]
[16] Ibid (G7), 312-319.
The Applicant’s representative accepted that these were extremely serious criminal offences. He volunteered that if the Applicant was truly guilty, it would be appropriate to refuse to grant him the visa. His submissions on behalf of the Applicant were directed primarily to an assertion that the convictions were based on lies and/or confessions extracted under torture and that his client was not guilty of any wrongdoing.
On 21 February 2022, the Applicant received sentence reductions totalling 4 years and 2 months. He was released after serving 12 years and 10 months.[17]
[17] Ibid (G14), 338.
On 24 September 2023, the Applicant applied for the Visa.[18]
[18] Ibid (G15), 389-403.
The Visa, if granted would permit the Applicant to come to Australia for 3-5 years. The Applicant, his former wife and daughters were forthright in saying that they wanted him to come to Australia for the longest time possible, ideally becoming a permanent resident. The Applicant and his former wife seem to be committed to remarrying. His daughters are each expecting to marry soon and to start a family.
On 26 June 2024, the Applicant provided a statement in which he said:
“Dear Australian Visa Officer,
I am the visa applicant, Bo LIU. Thank you for your careful review of my visa application during this time. I have received and understood your request for additional documents dated 25 June 2024, and I am currently in the process of gathering the required information and documents as per your request.
Since my release from prison in 2022, I have not engaged in any rehabilitation activities, nor has the government mandated any such requirements for me to complete. The court did not make any remarks or impose any additional terms on my original sentencing either.
Currently, I am obtaining character reference letters from close friends, colleagues, and family members as per your request.
Throughout my life, I have raised two outstanding daughters with my ex-wife, both of whom are registered nurses in Australia. They have been diligently serving the local community for many years. Like me, my daughters are compassionate, law-abiding, and love life.
The above is a true account of myself. I kindly ask the Australian visa officer to consider my circumstances with compassion and humanity, allowing me the opportunity to reunite with my daughters in Australia in the near future.
Thank you very much.
Bo LIU
26 June 2024.”[19]
[19] Ibid (G10), 358.
On 24 July 2024, the Respondent issued a notice of intention to consider refusal of the Visa to the Applicant.[20]
[20] Ibid (G16), 452-456.
On 14 September 2024, the Applicant provided a statement in which he said:
“Dear Visa Officer,
I received your correspondence dated 10 September. Thank you very much for your time and effort of assessing my visa application. I fully understand that the safety of the Australian community is the highest priority for the Australian government, and I respect your careful scrutiny of my visa application documents. As I have explained in my previous statement, more than a decade ago, I was subjected to torture to extract a confession and an unjust court judgment in China. Unfortunately, I am unable to provide objective evidence proving that I was tortured (Note: Chinese law enforcement agencies would never issue proof of such torture). To assist you in accurately and objectively evaluating my character, I offer the following honest statement.
The judgment against me was for the crimes of issuing fraudulent VAT invoices, embezzling capital, and misappropriating funds. Setting aside my claims of torture and unjust court rulings, even if these crimes were established, they involve only economic offenses and do not involve any violent, sexual, or exploitative behavior. I have never harmed or threatened the elderly, children, women, the disabled, or public officials. I have never been involved in gambling, drugs, or other harmful habits. I strongly condemn domestic violence, drug abuse, gambling, sexual violence, harming others, and discrimination. My persistent appeal is because I have indeed been falsely accused and tortured, and I must seek justice to prove that I am a law-abiding person.
This conviction is the only one I have ever received in my life, and I had never received any form of warning from the court or police before this. I place great importance on abiding by the law and have never had any criminal intentions, nor will I engage in any criminal behavior in the future. My family and friends also believe in my adherence to the law and have provided character reference letters on my behalf. It is because I value honesty and understand the importance of following rules that I have truthfully disclosed my criminal record in my visa application.
In 2010, I was sentenced to 17 years in prison. During my incarceration, my sentence was reduced by 4 years and 2 months (attached: release certificate). This reduction was due to some police officers privately acknowledging that there was indeed injustice in my case, but the court could not overturn the verdict as it would affect the credibility of the Public Security Bureau, the Procuratorate, and the court, and involve state compensation. Therefore, they provided some compensation through a reduction in my sentence. While in prison, I served as a teacher, providing technical training to other inmates to help them acquire skills. Even in prison, I continued to help others with enthusiasm.
My two daughters obtained Australian citizenship in 2019 and no longer hold Chinese citizenship. Australia is now their only home. They have been studying, working, and living in Australia for 11 years, settling and purchasing property in Adelaide. They love Australia, where human rights are respected and protected, and where colleagues are tolerant and friendly. Currently, both of my daughters are working while studying medical sciences at Flinders University, hoping to make a greater contribution to society in the future and to repay this country for welcoming them and providing them with a place to live and thrive.
Over these years in Australia, my daughters have continuously improved their knowledge in various fields. This will enable me to better understand and comply with Australian laws, regulations, and rules during my visit. Additionally, I hope to participate in some volunteer activities in Australia, just like my daughters.
My two daughters are my only family members. Although we have been apart for 15 years, we have maintained close contact throughout this time. They miss me dearly and long for my company. I look forward to the opportunity from the Australian government to visit them, see their home, the university where they study, the hospitals where they work, and the places where they live. I want to personally experience their happy life there and spend some time with them, making up for the fatherly love they have missed over these 15 years.
I sincerely hope that this day will come! May the light of God shine upon our family, bringing us warmth and hope!
With heartfelt blessings,
Bo LIU
14 September 2024.”[21]
[21] Ibid (G10), 360-361.
On 11 December 2024, the Respondent refused to grant the Visa under s501(1) of the Act on the basis that the Applicant did not pass the character test, having been sentenced to a term of imprisonment in excess of 12 months.[22]
[22] Ibid (G2), 209-232.
On 16 December 2024, the Applicant applied to this Tribunal for a review of the Respondent’s decision.
On 8 March 2025, the Applicant produced another “Statement of Facts”, again arguing that he was innocent of charges brought against him.[23]
[23] Exhibit 5.6: Statement of Facts.
At the conclusion of the hearing, I invited the parties to file such further submissions as they thought appropriate regarding what options, if any, the Applicant might have if successful in these proceedings, to make an onshore application to change his visa status.
The Applicant’s representative, AL and the Respondent all filed short documents. I have taken them into consideration.
In summary, the submissions of the Respondent, which were the only ones on point, were that there would be no restriction on the Applicant seeking to make an onshore application for a more permanent visa, if he were to be successful in these proceedings.
LEGISLATIVE FRAMEWORK
Does the Applicant Pass the Character Test?
For the reasons set out above, the Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, that he does not pass the character test.
The Tribunal must therefore consider whether “there is another reason why the original decision should be revoked”.[24]
[24] The Act, s501CA(4)(b)(ii).
Is there another reason why the original decision should be revoked under section 501CA(4)?
In considering whether to the original decision should be revoked, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[25]
[25] On 21 June 2024, the former applicable direction, Direction No. 99 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 110.
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)The safety of the Australian Community is the highest priority of the Australian Government.
(3)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.
(4)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.
(5)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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)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.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7(2) of the Direction requires that protection of the Australian community (Primary Consideration 8.1), is generally to be given greater weight than other primary considerations.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia:
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out three Other Considerations which must be taken into account. These considerations are:
a)Legal consequence of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[26]
“…Direction 65 [now Direction 110] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[27]
[26] [2018] FCA 594.
[27] Ibid [23].
OFFENDING HISTORY
The Applicant’s criminal record is discussed above.
Primary Consideration 1 – Protection of The Australian Community
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result 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 in 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 give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent and/or sexual nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The Applicant has been convicted of very serious crimes of fraud and dishonesty.[28]
[28] The particulars of the Applicant’s offending are set out in: Exhibit 2: Respondent’s Statement of Facts, Issues and Contentions at [38]-[63].
The Respondent has provided articles to the Tribunal which provide some background to the Applicant’s offending and its gravity.[29]
[29] Exhibit 2: Respondent’s Statement of Facts, Issues and Contentions (Attachments A and B).
The Applicant maintains his innocence.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.
The Applicant does not pass the character test as discussed above.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
The Applicant has been sentenced to a very lengthy term of imprisonment. This is indicative of the very serious nature of his crimes.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the impact of the offending on any victims offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
There is no evidence on this topic.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Applicant’s offending occurred over many years. His conduct was calculated and repeated.[30]
[30] Exhibit 3: G-Documents (G5), 272-292.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the cumulative effect of an Applicant’s repeated offending.
The cumulative impact of the Applicant’s conduct constituted a serious fraud on businesses and the public revenue in China.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
The Applicant maintains his innocence.
The Chinese Court’s findings of relevant facts and his convictions must be accepted by the Tribunal as discussed above.
Accordingly, he has, by necessary implication, continued to provide false information to the Department and to the Tribunal.
Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether the non-citizen has re-offended since being formally warned 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).
There is no evidence of this.
Sub-paragraph (i) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
The Applicant’s offending, if committed in Australia would be classified as serious offences. This was accepted by the Applicant’s representative.[31]
[31] E.g., Criminal Code Act 1995 (Cth) s134.1(1), 134.2(1) and 135.4(3).
I do not consider factors (d) and (h) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh very heavily in favour of refusing to grant the Visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect 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) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; andc)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.
Nature of harm should the Applicant engage in further criminal or other serious conduct
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in his offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable (Paragraph 8.1.2(1)).
The Applicant is unemployed.
The Applicant has no apparent command of English.
The Applicant maintains that he is an innocent man. He has not demonstrated any remorse.
The Applicant has not undertaken any rehabilitation.
The Applicant would be unlikely to be in a position to be able to repeat the same corporate crimes as he committed in China, at least in the immediate future, if he came to Australia. He may, however, have an opportunity to engage in some other fraudulent or deceptive conduct, should the opportunity present itself.
If the Applicant were to engage in such conduct, the consequences for the Australian community may be very serious.
Any risk of such conduct being repeated would be unacceptable.
Likelihood of engaging in further criminal or other serious conduct
The Applicant has maintained his innocence.
This does not assist him in the context of this application, as is discussed above.
He has expressed no remorse.
He has provided no expert evidence regarding a risk assessment.
Accepting, as the Tribunal must, the findings of the Chinese Courts, he is at least in denial, or worse, deliberately attempting to mislead the Tribunal. This is a poor predictor of future good conduct.
The Applicant’s family have all vouched for his good character, but they have limited knowledge of the details of his offending. They have powerful motivations to accept his assurances that he is innocent. Other character witnesses also carry little weight in the face of his convictions.[32]
[32] E.g., Exhibit 3: G-Documents (G13), 375.
Based on the evidence before the Tribunal, the Applicant presents at least a moderate risk of reoffending.
Conclusion: Primary Consideration 1
Primary consideration number one weighs very heavily in favour of exercising the discretion to refuse to grant the visa under section 501 (1)
Primary Consideration 2: Family Violence
There is no evidence of this.
Conclusion: Primary Consideration 2
This consideration is neutral
Primary Consideration 3: Ties to Australia
Paragraph 8.3 of the Direction provides:
(1) Decision-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.
(2) Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
102.a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community
103.b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has never been to Australia.
The Applicant’s daughters have been living in Australia for many years now. They are now Australian citizens. They both plan to marry soon. I accept that they have a close relationship with their father. I accept that it would be in their interests for their father to be able to travel to Australia and to remain here for an extended period.
Since 2022 when the Applicant was released from prison, they have maintained regular electronic communication with their father. COVID restrictions temporarily limited their capacity to visit him in China for some time, but those restrictions are now removed. They have visited him since then. They can continue to do so. They can meet him in a 3rd country. They can continue to communicate with him electronically, wherever he is.
The Applicant’s former wife very recently arrived in Australia. She has a permanent resident’s visa. She retains her Chinese citizenship. She would like to remarry the Applicant and for them both to remain together in Australia, with their daughters. I accept that it would be in her interests, should she choose to remain here, that the Applicant should have the visa.
Until about a month ago, she lived with the Applicant in China. She can return there at any time and as a citizen, remain there as long as she wants. She can communicate with the Applicant electronically from anywhere. She can meet him in a third country. If she returned to China, she could communicate electronically with her daughters.
Conclusion: Primary Consideration 3
This consideration weighs in favour of granting the Visa.
Primary Consideration 4: The best interests of minor children in Australia
There is no evidence regarding this Primary Consideration.
Conclusion: Primary Consideration 4
This Primary Consideration is neutral.
Primary Consideration 5 – The Expectations of The Australian Community
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
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 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 through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
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.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[33]
[33] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to Primary Consideration 5
Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:
a.the Applicant’s criminal record.
b.the other matters set out above.
Conclusion: Primary Consideration 5
Primary Consideration 5 weighs heavily in favour of exercising the discretion to refuse to grant the visa under section 501 (1)
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
(a) legal consequence of the decision:
There is no evidence on this topic.
This Other Consideration (a) is neutral.
(b) Extent of Impediments if Removed
This is not relevant in this case, as the Applicant is not in Australia.
This Other Consideration (b) is neutral.
(c) Impact on Australian business interests
There is no evidence on this topic.
This Other Consideration (d) is neutral.
CONCLUSION
It is necessary to weigh up all the Primary and Other Considerations.
Primary Consideration 1 weighs heavily in favour of refusing to exercise the discretion to grant the Visa.
Primary Consideration 2 is neutral.
Primary Consideration 3 weighs in favour of exercising the discretion to grant the Visa.
Primary Consideration 4 is neutral.
Primary Consideration 5 weighs heavily in favour of refusing to exercise the discretion to grant the Visa.
Other Consideration (a) is neutral.
Other Consideration (b) is neutral.
Other Consideration (c) is neutral.[34]
[34] Find in the above paragraphs.
I note that paragraph 7(2) of the Direction requires that protection of the Australian community is generally to be given greater weight than other Primary Considerations, and that Primary Considerations should generally be given greater weight than the Other Considerations.
As has already been discussed at length above, the main issue in this case is the Applicant’s claim that he is an innocent man. If indeed that were to be the case, there is no other obvious reason why he should not be granted the Visa.
The Tribunal is not, however, able to rehear the Applicant’s criminal trial. The Tribunal is obliged to except the material facts as found by the Chinese Courts and to accept the recorded convictions at face value.
If the Applicant were to have his existing convictions quashed or set aside in the future, a future decision maker’s weighing exercise may be quite different, but that is not what is presently before the Tribunal.
Having regard to the Chinese Court’s findings of fact and the Applicant’s consequent convictions for very serious dishonesty offences, Primary Considerations 1 and 5 are heavily engaged.
The Applicant’s ties to Australia weigh in his favour, but they do not outweigh Primary Considerations 1 and 5.
No other Primary or Other Considerations are engaged.
In my view therefore, there is not “another reason” pursuant to s501CA(4)(b)(ii) to revoke the original decision.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for the decision herein of Senior Member Hon J Rau SC.
......…...........…...[SGND]...................................
Associate
Dated: 04 April 2025
Date of hearing: 24 March 2025 Advocate for the Applicant:
Mr Jingbo Li (Migration Agent)
Advocate for the Respondent: Mr Matt Gauci (Hunt & Hunt Lawyers)
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