Long and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 2313
•15 July 2020
Long and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2313 (15 July 2020)
Division:GENERAL DIVISION
File Number(s): 2019/1857
Re:Bo Long
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:15 July 2020
Place:Sydney
The decision under review is affirmed.
...........................[sgd]............................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – Migration Act 1958 – mandatory visa cancellation – section 501(3A) – subclass 856 visa – Applicant failed character test – sentenced to a term of imprisonment for 12 months or more – whether another reason why the cancellation should be revoked – application of Direction No. 79 – weighing of primary and other considerations – best interests of minor children in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 198, 499, 500, 501, 501G, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
YKZZ and Minister for Home Affairs (Migration) [2019] AATA 3248
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under Section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
15 July 2020
INTRODUCTION
In May 2016, the applicant came under suspicion as being a member of a criminal syndicate suspected of importing cigarettes and loose leaf tobacco via postal and air cargo streams.[1]
[1] TB2, p 5.
Investigations by the Australian Border Force (ABF) revealed that between 8 March 2016 and 9 September 2016, some 385 international mail articles containing loose tobacco or cigarettes were sent from China to certain post office boxes, opened in the name of the applicant.[2] The revenue owing on those items was estimated at $557,806 customs duty and GST. Search and seizure warrants executed on 8 and 9 September 2016 located a total of 98 mail articles containing tobacco products. The total amount of revenue evaded on these items was $123,519.
[2] Transcript, 5 March 2020, p 18.
The applicant picked up the parcels, which were addressed to an alias. He did not declare any duty owing.
On 18 May 2016, the applicant received a formal warning from officers of the ABF in relation to the importation of dutiable items.
On 25 August 2016 the ABF executed a search and seizure warrant and located further tobacco products. The total amount of revenue evaded on these items was $23,694.
It was estimated that the total amount of revenue defrauded was $705,019.
On 12 September 2017, the applicant was convicted by the Victorian Country Court of the following offences:
(a)Importing tobacco products with the intention of defrauding the revenue (first offence); and
(b)Possessing tobacco products knowing that the goods were imported with intent to defraud the revenue (second offence).[3]
[3] G6/27 - 28.
The sentence was structured as follows: two years’ imprisonment for the first offence, and six months imprisonment for the second offence. The second sentence was to commence 21 months after the commencement of the first offence, resulting in a total effective sentence of 27 months imprisonment. It was further directed that 12 months of the sentence was to be served immediately, following which the applicant was to be released on a 24 month good behaviour bond.[4]
[4] G7/29.
On 18 July 2018, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act).[5]
[5] G19/84.
The applicant was released from prison in September 2018, and transferred to immigration detention.
On 7 November 2018, he submitted a request, pursuant to s 198(1) of the Act, acknowledging that he was an unlawful non-citizen and requesting to be removed from Australia as soon as reasonably practicable, in accordance with s 198(1) of the Act.[6]
[6] G23/100-101.
On 16 November 2018, the applicant was returned to China.[7]
[7] G17/81; G22/97.
THE PRESENT PROCEEDINGS
On 7 August 2018, the applicant made representations to the Department seeking revocation of the mandatory cancellation of the visa pursuant to s 501CA(4)(a) of the Act.[8] He said:
I have addressed the causes of my offending and my mental health has greatly improved. I therefore believe the risk of offending again in non-existent.
I have three minor children in Australia that need my support and care.
I have contributed to the Australian community and wish to continue to do so.[9]
[8] G10/45-56; G9/43; G5/17.
[9] G9/43.
On 31 August 2018, the applicant’s lawyer provided a further submission and supporting documents to the Department.[10]
[10] G14/66-70; G15/71-77; G16/78-80.
On 28 February 2019, the Department sent a letter to the applicant’s Chinese address, enclosing the recently enacted Direction No. 79; and inviting him to comment on further information received by the Department. This information consisted of a summary of a telephone conversation between a departmental officer and the applicant’s former wife, Ms Zonghong Zhuang.[11]
[11] G21/92-94.
On 15 March 2019, a delegate of the respondent Minister decided not to revoke, pursuant to s 501CA(4) of the Act, the mandatory cancellation of the applicant’s visa.[12]
[12] G4/16.
By application dated 4 April 2019, the applicant sought review by the Administrative Appeals Tribunal (the Tribunal) of the delegate’s decision.
The Tribunal has jurisdiction to entertain such an application by reason of s 500(1)(ba) of the Act.
EVIDENCE
The evidence before the Tribunal consisted of:
Applicant’s materials
(a)Letter from the Applicant to the Tribunal, dated 23 October 2019.
Respondent’s materials
(a)Respondent’s Statement of Facts, Issues and Contentions, dated 19 February 2020.
(b)The Tribunal received documents relating to the matter tendered under s 501G of the Act (the G documents) as well as a Tender Bundle and Supplementary Tender Bundle:
(i)The Respondent’s Tender Bundle consisted of documents produced under summons dated 16 June 2019 by the Victoria Police Service and a press release dated 23 October 2018.
(ii)The Respondent’s Supplementary Tender Bundle consisted of documents produced under summons by the County Court of Victoria.
THE HEARING
The Application was heard on 5 March 2020.
The applicant gave evidence by telephone and was examined by the Respondent’s solicitor.
FACTUAL BACKGROUND
The applicant is a non-citizen, and was born in 1978. He first arrived in Melbourne, Australia on 28 June 2007. He was then 29 years old. Upon his arrival, he was granted a visa in the following class: Employer Nomination (Permanent) (Class BW) (subclass 856) (the visa).
Apart from two short absences, he lived in Australia until his departure for China in 2018.[13]
[13] G10/46; G17/81.
Present family circumstances
The applicant met his former wife, the mother of his three children, in Australia while they were both students. They are no longer married. Their divorce was finalised in August 2018. The mother has custody of the three children.
The applicant told the Tribunal that he and his wife were happy during the first phase of married life, but their marriage failed because of financial pressure and the attitude of her parents, who did not consider him worthy of their daughter because of his working class status.
There were also financial issues. He borrowed $100,000 from his mother in law for a house deposit ($80,000) and to purchase a takeaway business ($20,000). He says that a subsequent argument about the naming of their first child (whether it should bear his family name or theirs) led to a major rift and he agreed to repay the loan after his mother-in-law said she wanted to “withdraw her equity”.[14] This provided a spur for his future offending.
[14] Transcript, 5 March 2020, pp 13-14.
He accepts a large part of the blame for this family breakdown. He did illegal things and as a result, the house was forfeited and his family were reduced to living above the restaurant, which was substandard. He said that his former wife refused to facilitate any contact with the children. She did not return his calls in custody except for once when he was able to speak with one of the children.
The conflict with the family and his subsequent offending took a heavy toll on his mental health.
The Tribunal has before it a number of psychiatric and psychological reports relating to the applicant:
(a)A psychiatric report, dated 20 January 2017, prepared by Dr Lior Chait (Psychiatry Registrar) and Dr Akshay Ilango (Consultant Psychiatrist).[15] The diagnosis at the time of commencing treatment was Adjustment disorder with depressed mood and Nicotine dependence. The Report Summary provides:
[The applicant] has been diagnosed with an adjustment disorder with depressed mood in the context of psychosocial stressors. He has shown significant improvement in his mood since commencing treatment. He has learnt about his illness and developed strategies to maintain wellness and to seek help in times of need. [The applicant] has a good prognosis with continued medication and psychotherapy and is in the process of transitioning his care to his GP as he has maintained a level of stability while engaged in our service.
(b)Two psychological assessments were conducted by Dr Mathew Barth, Psychologist:
(i)Dr Barth’s first report, dated 3 May 2017,[16] was prepared after the applicant had been charged and was taken into account in sentencing. Dr Barth expressed the opinion that the applicant was suffering from an adjustment disorder with depressed mood.[17]
(ii)Dr Barth’s second report, dated 28 August 2018,[18] was prepared for the purposes of the AAT hearing in relation to the present visa cancellation matter. This report contains a risk assessment. Dr Barth noted that the applicant did not exhibit anti-social traits (or propensity for violent or impulsive behaviour) and did not endorse pro-criminal attitudes or associate with negative peer groups. He opined that the absence of any significant active criminogenic factors provides a solid basis for optimism with regards to the applicant’s prospects in the community and his risk of re-engaging in criminal behaviour. His risk of recidivism was likely to fall in the ‘Low’ category. He also indicated that the main outstanding factors of note for the applicant’s prospects were his conflicted relationship with his wife and the fact that he has been relatively socially isolated in Australia.
(c)On 16 March 2017 Elspeth Orchard, Clinical Psychologist, reported that when first seen the applicant was very depressed with suicidal thoughts. The applicant had been seen some eight times. At the time of writing his mood had improved and he was no longer suicidal. He was still feeling helpless and angry towards himself due to the ongoing conflict with his wife. He was still struggling with the shame and hardship he had brought on his family and felt periods of hopelessness and anger.[19]
[15] Supplementary Tender Bundle, at p 7.
[16] G15/71.
[17] G15/76.
[18] G16/78.
[19] Supplementary Tender Bundle, at p 12.
Circumstances of offending
The applicant was examined by the Respondent’s solicitor about the circumstances of his offending.
He was asked about the nature of his offending and why he did not desist after being warned by the ABF. I set out the relevant parts of the transcript in full:
Question: Did you tell them – did you tell your contacts in China to stop sending you tobacco? Did you tell them to stop?
Answer: I couldn’t remember….
SENIOR MEMBER: Sorry Mr Long, did you tell your contacts to stop selling you tobacco? What’s your answer to that?
Answer: I didn’t.
….
Question: You didn’t tell them to stop?
Answer: I did not. I didn’t tell them because (indistinct) I was weak.
Question: So when you told the ABF that you told the contacts in China to stop sending you tobacco, that was untrue wasn’t it?
Answer: That was untrue. I did say that, yes. I lied.
Question: So you lied to the ABF?
Answer: Yes, I lied to the ABF.
…
Question: Could you read that please?
Answer: The first one, after he was given a warning by the ABF in May 2016, he spoke to the sender and asked them not to send him more and they told him that if he didn’t continue the goods they would send him, you know, something special.
Question: What does that mean? Send him something special. What were you implying there?
Answer: Well…
Question: That they’d send you something, like an exploding package or something?
Answer: No, it’s not a – it’s a – like cannabis or something because, you know, I told them in the first place, you know, I just want to make some money, that’s all, and I don’t want to, you know, get into the drug trafficking stuff, you know. (Indistinct). I told them.
Question: I see. Okay. But now are you saying that that – the whole statement was untrue?
Answer: Just part of it.
Question: Which part is untrue?
Answer: They told him that if he didn’t continue to receive the goods, they would send him something special. That was true. Sorry, that – yes, that was true.
Question: Mr Long, you just gave evidence to say that you didn’t tell the Chinese contact to stop sending you products?
Answer: Yes, I didn’t tell them but they told me that, you know, if I didn’t continue to receive the goods they will send me something special.
Question: But Mr Long, why would they say that if you hadn’t asked them to stop?
Answer: Because they don’t want to lose the business.
Question: But you hadn’t asked them to stop. You hadn’t said anything about stopping?
Answer: I didn’t ask them to - - -
SENIOR MEMBER: Mr Long - - - ?‑‑‑Yes.
Question: If I understand what you’re saying now is that you were threatened that if you didn’t carry on they would frame you or set you up by sending you some illicit drugs. Are you saying that?
Answer: Yes.
Question: Are you saying that that threat was made at some point in your relationship with these people?
Answer: Yes, at that time. At some point – because it takes time to gain their trust. You know, once step (sic) receiving them they will lose a lot of money because as I said (indistinct) it took time for the parcels to arrive in Australia. You know, if I stopped collecting them that means these parcels would not be carried for – not be paid. That’s why, you know, they said you have to pick them up and I – at the same time on my part, I didn’t want to show my weakness so I didn’t say no. I say that’s all right, you know, we’ll continue the tobacco business but please do not send me – do not put any cannabis – any drugs and stuff in my parcels. I only agreed to do the tobacco, that’s it
Question: When do you say this threat was made, Mr Long?
Answer: ‑‑‑It was – I don’t know. It was just after they (indistinct) me.
Question: When?
Answer: After the Border Force visit me maybe. I can’t remember.
Question: You can’t remember when it was made? You can’t remember when you were threatened?
Answer: Not the exact date I could not remember.
Question: Could you remember the month?
Answer: Maybe in June?
Question: It doesn’t sound like you were very scared if you can’t remember when the threat was made? You weren’t scared by the threat were you?
Answer: Yes and I pretend to be strong, you know, because they (indistinct).
Question: Mr Long, you’ll remember before I asked you why you didn’t stop importing these tobacco products. You remember why I asked you that question earlier?
Answer: Yes.
Question: I asked you if you’d thought about stopping and you said yes and I asked, well, why didn’t you stop then and the only reason you gave us was - - - ?‑‑‑I - - -
Mr Long, hang on?‑‑‑I thought - - -
Mr Long, can I finish my question please. The only reason you gave us – you gave the tribunal as to why you didn’t stop importing the tobacco products is because of your family situation and you wanted to pay back your mother-in-law. You made no reference whatsoever to a threat by the Chinese contact. You accept that don’t you?
Answer: Yes because I forgot to bring it up.
Question: You forgot to bring it up. Wouldn’t you think that if it was – if the threat actually happened or if you thought the threat was serious you would have brought that up when I asked?
Answer: I thought – what I thought is – what happened is the (indistinct). It was on my part – it was my bad not to stop – not to ask them to stop the parcel, you know. That’s counted for 80 per cent of the reason (indistinct) wouldn’t happen. I plead guilty on that.
Question: Mr Long, it’s the case isn’t it that you kept importing the tobacco products because you were making money and you wanted to continue to make money?
Answer: Eight per-cent is on my part. Is on my part.
Question: Mr Long, you would have kept doing it if you had not been arrested by the ABF. You would have continued doing this wouldn’t you?
Answer: Once I paid off my mother-in-law’s investment I would stop probably. Because I’m not such a money hungry person.
Having reviewed the transcript, I am satisfied of the following facts:
(a)The applicant entered into an agreement with various associates, during the course of 2016, to receive packages containing tobacco products from China, with the intention of evading import duty;
(b)His associates were based in Australia and overseas;
(c)He opened a number of post office boxes in his own name around Melbourne for the purpose of receiving dutiable goods without paying duty;
(d)The parcels, addressed to an alias, and containing dutiable tobacco products, were posted from China to these post office boxes;[20]
[20] In evidence, Mr Long said that these were opened between March and May: Transcript, 5 March 2020, p 21.
(e)He received and stored the packages;
(f)He sold the goods thus received, to third parties at a pre-determined price;
(g)He knew that what he was doing was illegal;
(h)He carried out the scheme in a manner calculated to minimise the risk of imprisonment if he were caught, by splitting a larger delivery into a number of small packages sent by agreement to different post boxes;[21]
(i)In May 2016, he was warned by the ABF that what he was doing was illegal;[22]
(j)On 25 August 2016, he was formally charged and granted bail;
(k)He did not tell his overseas associates not to send any more parcels after receiving the first warning in May; or for that matter in August even after he was charged;
(l)At some point he was told by his criminal associates that if he withdrew from the enterprise, they might send him “something special”, which he understood to mean that he would be sent drugs rather than tobacco;[23] and
(m)The applicant acted primarily for financial gain, specifically, in order to repay the loan from his mother-in-law.
CONSIDERATION
[21] Transcript, 5 March 2020, at p 36/25.
[22] In evidence, Mr Long said that the boxes were opened between March and May: Transcript, 5 March 2020, p 21.
[23] Transcript, 5 March 2020, at p 28.
The Character Test
Pursuant to s 501(3A)(a)(i) of the Act, the Minister must cancel a visa that has been granted to a person if satisfied that the person does not pass the character test because they have a ‘substantial criminal record’ as defined under ss 501(6)(a) and 501(7)(c).
The character test is defined in s 501(6) of the Act. A person will not pass the character test if they have a ‘substantial criminal record’: s 501(6)(a). The phrase ‘substantial criminal record’ is defined in s 501(7); and includes circumstances where a person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
When a visa is mandatorily cancelled pursuant to s 501(3A), the Minister must give the person concerned written notice of the cancellation setting out the original decision and particulars of the relevant information, and inviting the person to make representations to the Minister about revocation of the original decision: s 501CA(3)(a) & (b).
The Minister may revoke the original decision if representations have been made in accordance with the invitation and the Minister is satisfied that the person passes the character test or there is ‘another reason’ why the original decision should be revoked: s 501CA(4).
If the conditions of s 501CA(4) are satisfied then the mandatory cancellation decision must be revoked: see YKZZ and Minister for Home Affairs (Migration) [2019] AATA 3248, per Deputy President Constance, at para [32], citing Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, where Collier J at [31] considered that in subsection (4) “may” is to be interpreted as “must”.
It is not in dispute that the applicant does not pass the character test, having been sentenced to a term of imprisonment of 12 months or more.
I am satisfied that the conditions for the exercise of the power under s 500 are satisfied.
The sole issue is therefore whether there is ‘another reason’ why the original decision should be revoked.
A determination under s 501CA(4) must be carried out in accordance with any written directions given under s 499(1) of the Act: s 499(2A).
The Minister has given such written directions. Direction No. 79 commenced on 28 February 2019. See:
Direction No. 79 – Migration Act 1958 – Direction under Section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction No. 79).
The Tribunal is bound to comply with the terms of Direction No. 79, by reason of subsection 499(2A) of the Act.
DIRECTION NO. 79
Under the heading General Guidance, paragraph 6.2(1) provides:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
Paragraph 6.2(3) provides:
The principles provide a framework within which decision-makers should approach their task in deciding whether to…revoke a mandatory cancellation under section 501CA…
Paragraph 6.3, under the heading Principles, sets out the seven basic principles forming part of that framework. The principles are:
(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 Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused (emphasis added).
Taking the relevant considerations into account: section 8
The principles in paragraph 6.3 inform the manner in which the decision-maker must assess the considerations which are required to be taken into account in exercising the relevant discretion: paragraph 7(1).
Part C of Direction No. 79 governs the considerations relevant to determining whether the mandatory cancellation of a non-citizen’s visa will be revoked: see paragraph 7(1)(b).
There are a number of important rules governing the way in which considerations must be taken into account. These may be summarised as follows:
(1) Considerations are divided into primary and other considerations: see paragraph 8(1);
(2) Information and evidence from independent and authoritative sources should be given appropriate weight: see paragraph 8(2);
(3) Decision-makers must take into account the primary and other considerations relevant to the specific category of decision in question: see paragraph 8(1);
(4) Both primary and other considerations may weigh in favour of, or against…: see paragraph 8(3);
(5) Primary considerations should generally be given greater weight than the other considerations: see paragraph 8(4); and
(6) One or more of the primary considerations may outweigh other primary considerations: see paragraph 8(5).
Paragraph 13(2) provides:
(1) In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
Paragraph 14 sets out the other considerations to be taken into account where relevant, and states:
(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
Primary Consideration 1 (PC1): Protection of the Australian community from criminal or other serious conduct
Paragraph 13.1(1) provides that when considering the protection of the Australian community, decision-makers must have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens:
Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community ...;
Under paragraph 13.1(2) I should also give consideration to:
(a) The nature and seriousness of the non-citizen’s conduct to date;
(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
Paragraph 13.1.1 outlines nine factors that must be considered in relation to the nature and seriousness of the applicant’s conduct. The factors fall into those defined in terms of the identity of the victim or the context of the offending, and other factors relevant to the offender. Thus, violent and/or sexual crimes are viewed very seriously; and crimes of a violent nature against women or children are also viewed very seriously, regardless of the sentence imposed. Crimes committed against vulnerable members of the community, or government representatives are serious. Crimes committed in immigration detention or while escaping from detention are serious.
The relevant offending was not of a violent or sexual nature. The offending was not directed against vulnerable members of the community. Nor is there any evidence of offending in immigration detention. These factors do not apply in this case.
The offending does not involve violence against women or children. There is some evidence of allegations made by the applicant’s wife alleging that on occasion he was overly firm or controlling in disciplining his children. These statements are referred to below.[24]
[24] See paras [99]-[101] below.
The remaining five stated factors are potentially relevant. They relate to the sentence imposed; the frequency of offending; the cumulative effect of the offending; whether false or misleading information has been provided; and whether there is offending after a warning has been given that further offending may have consequences for the non-citizen’s migration status.
The sentence imposed - Paragraph 13.1.1(1)(d)
As noted above, the applicant was sentenced to two years’ imprisonment for the first offence, and six months’ imprisonment for the second offence.
He was convicted by the Victorian Country Court for the following offences:
(a)Importing tobacco products with the intention of defrauding the revenue (first offence); and
(b)Possessing tobacco products knowing that the goods were imported with intent to defraud the revenue (second offence).
He was sentenced to be released on a good behaviour bond after 12 months.
The frequency of offending - Paragraph 13.1.1(1)(e)
Between 8 March 2016 and 9 September 2016, the applicant imported an amount of loose tobacco and cigarettes, evading revenue by failing to pay customs duty and GST. As stated above, investigations by the ABF revealed some 385 international mail articles containing loose tobacco or cigarettes were sent from China to post office boxes opened in the name of the applicant. The total amount of revenue the applicant evaded on these items was $557,806. On 8 and 9 September 2016, the ABF executed search and seizure warrants on each of the boxes, and seized a total of 98 mail articles containing tobacco products. Approximately 112,744 cigarettes were seized, along with tobacco weighing 94 kilograms, totalling $123,519 in lost revenue.
In August 2016 approximately 9,640 cigarettes and 2.8 kilograms of tobacco products were seized under a search warrant from the applicant’s home and work address and a storage facility. The total amount of revenue evaded on these items was $23,694.
It was estimated that the total amount of revenue defrauded was $705,019.
The applicant has been convicted of only two offences; albeit involving multiple instances of importing dutiable goods without declaring the duty owing. He engaged in this unlawful activity over a period of about six months. The frequency of the applicant’s offending was relatively short lived.
The applicant has no other previous criminal record.
I note that the sentences imposed were at the lower end of the range and the applicant was sentenced on the basis that his offending was not ‘industrial scale’ but much smaller scale.[25]
[25] G8/33, para [17].
I note, however, that in a press release tendered by the Respondent, the ABF refers to ‘the activities of a criminal syndicate suspected of importing cigarettes and loose leaf tobacco’. It was during the course of investigating this criminal syndicate that the applicant was detected, charged and convicted.[26]
[26] TB2, p 5.
I note that in sentencing the applicant, the sentencing judge was also unpersuaded that the applicant was entirely remorseful, given that he was less than forthcoming to the ABF about the involvement of other persons in his criminal offending.
The cumulative effect of repeated offending - Paragraph 13.1.1(1)(f)
There is no evidence of repeat offending, although I note that the applicant was removed from Australia directly from immigration detention.
False or misleading information - Paragraph 13.1.1(1)(g)
There is no evidence of false or misleading information being given, although it is fair to say that the applicant was less than forthcoming about certain aspects of the offending, such as the identity of his Chinese associates. Understandably perhaps, he did not wish to disclose any identities to the ABF.
Offending after a warning has been given - Paragraph 13.1.1(1)(h)
The sentencing judge referred to the fact that the applicant persisted with his offending behaviour after being officially warned in a formal letter. This is a matter of some concern, and was referred to in the course of sentencing. There is no evidence however before the Tribunal about the contents of this letter, and in particular whether it warned the applicant that further offending would have consequences for his migration status.
At the hearing before the Tribunal, the applicant was asked about this warning. He said that he did receive a letter of warning from the ABF in May 2016:[27]
Question: …so, as of May 2016, you knew that receiving tobacco products from China and not paying duty and tax on them was illegal?‑‑‑Yes, I was warned about that.
Question: Okay, but you knew by May 2016 that what you were doing was illegal; that’s correct, isn’t it?‑‑‑That’s correct, yes.
Question: All right. So, after the ABF came to visit you, did you think about stopping what you were doing?‑‑‑I thought about it.
Question: And why didn’t you stop?‑‑‑I thought about it. Because I was agitated - I was - as I - as I said what happened to me in - in the family situation and I was - to give back the money to my - to my ex-wife’s mum, my mother-in-law at that time. She was wanting, you know, pay it off so she can, you know, no longer say anything about my family.
SENIOR MEMBER: Mr Long, did you understand that if you were apprehended, or caught in this activity, that you could be deported?‑‑‑I didn’t realise that.
Question: You did not realise that?‑‑‑I thought it was just a payment.
Question: Sorry, you thought it was just like a civil debt, did you?‑‑‑Yes, like - yes, it was a tax or something, you know. At that time I didn’t - I didn’t think much. To be honest, I was foolish. I was - I was stupid at that time, you know. I was - my sound - my sound judgment was clouded by the - by fury of my (indistinct).
Question: Have you got a copy of the letter that was given to you by the Australian Border Force in May of 2016?‑‑‑Yes.
[27] Transcript, 5 March 2020, at p 21/25.
Unfortunately, the applicant was unable to find a copy of the ABF letter of warning. Nor was the Respondent.
During the hearing the applicant was asked about this warning letter. He agreed that he received the letter. He also conceded that he continued to operate the scheme for importation even after he was arrested and cautioned in August 2016, and while he was out on bail, and that he had lied to police investigators when he told them that he had asked his Chinese associates to stop sending him more parcels.[28]
The risk to the Australian community should the applicant commit further offences or engage in other serious conduct
[28] See above, [para 32].
I note the risks specifically identified at 13.1.2(1), namely:
(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 available information and evidence on the risk of reoffending.
As to the first element, the nature of the risk to the Australian community may be found not only in the loss of revenue central to such black market activities, but also in the undermining of the harm minimisation strategies involved in the heavy levy imposed on imported tobacco product.
Australian public policy is aimed at reducing the incidence of tobacco consumption, for example, through plain packaging laws. The duty payable on tobacco products is designed to reduce the consumption of tobacco. In offering cut-price cigarettes for sale, the applicant undermined this important policy of harm minimisation. The fact that the applicant was himself a tobacco addict and used some of the imported product detracts only slightly from this consideration. The tobacco was not imported only for personal use.
As to the second element, I note that the applicant was not a “lone ranger” in the activities in question, but acted with the connivance and cooperation of certain unidentified individuals in China. Therefore, the possibility of engaging in similar unlawful importations in the future, perhaps under duress from other parties, cannot be ruled out. When invited to do so, the applicant declined to identify other participants.
It is not possible to say that he was part of a larger criminal syndicate. He was sentenced on the basis that he was a sole actor. But he admitted that he relied on others to send the parcels. If his visa is restored, and he returns to Australia, and finds himself again in difficult financial circumstances, which is not unlikely, he may be tempted to re-engage with his former accomplices. Or he may be targeted to participate in such activity again, perhaps under duress. This is not a fanciful possibility. It is one that the applicant referred to in explaining his persistence after receiving a warning from the ABF.[29] Given his criminal conviction and track record, he would be highly vulnerable to exploitation. He may be tempted by such overtures, were they to occur. The risk of repeat offending is not trivial.
[29] See above, paragraph 32(i).
CONCLUSION WITH RESPECT TO PC1
The applicant’s offending in 2016 displayed a conspicuous lack of respect for Australian law and policy, perhaps caused by a lack of understanding of the importance of revenue collection in supporting areas of government expenditure. Not only did his unlawful activities cause significant revenue loss; they also undermined the Australian Government’s important health policy of reducing the amount of tobacco in the community.
He also showed a level of deviousness and deceit, both in planning and executing the criminal enterprise, and in answering questions once he had been caught. His actions cannot be explained in terms of the follies of youth. At the time of his offending he was in his late thirties. He was well educated, with a track record for hard work with some entrepreneurial flair, and yet he allowed himself to be seduced by an illegal import scheme with enormous risks for his family and himself.
The seriousness of his conduct is reflected in the imposition of a lengthy head sentence of 27 months, and the fact the applicant was directed to serve 12 months in prison, before release on a good behaviour bond.
My conclusion with regard to PC1 is that it weighs strongly in favour of non-revocation of the mandatory cancellation decision.
Primary Consideration 2 (PC2): The best interests of minor children in Australia affected by the decision
Paragraph 13.2(1) of Direction No. 79 compels a decision-maker to make a determination about whether revocation is in the best interests of minor children in Australia who may be affected by cancellation of the applicant’s visa.
The applicant contends that Primary Consideration 2 is of overriding importance in this case.
Paragraph 13.2(2) provides that this consideration applies only if the child is, or would be, under 18 years of age at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made. The applicant’s three children are aged nine, seven and five.
Paragraph 13.2(3) provides that if there are two or more relevant children, the best interests of each child should be given individual consideration, to the extent that their interests may differ. In this case there is no information before the Tribunal that would permit any differentiation between the interests of each of the three children concerned.
Paragraph 13.2(4) provides that in considering the best interests of the child, certain factors (eight in number) must be taken into account. They include: the nature and duration of the relationship between the child and the non-citizen; the extent to which the non-citizen is likely to play a positive parental role in the future; the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child; the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways; whether there are other persons who already fulfil a parental role in relation to the child; any known views of the child; evidence of abuse or neglect by the non-citizen; and evidence that the child has experienced any physical or emotional trauma arising from the non-citizen’s conduct.
(a) The nature and duration of the relationship between the child and the non-citizen
The applicant’s three children, all Australian citizens, are aged 9 years old, 7 years old and 5 years old.
During the period 6 September 2017 until 16 November 2018 (when he left Australia after completing his sentence and a period in the Villawood detention centre) he did not see the children and had limited telephone contact. He gave evidence that he spoke to one of his children on at least one occasion:
Question: And when was the last time that you spoke to your children, or one of your children?‑‑‑That’s after I get locked up in Loddon Prison, I talked to my wife and she – well, she put my little daughter on the phone, she could hardly express herself. At the time she was still five or four, I couldn’t remember, and after that, you know, that was the last time, you know, I spoke to them.[30]
[30] Transcript, 5 March 2019, at p 49.
At that time the children were six, four and three.
(b) The extent to which the non-citizen is likely to play a positive parental role in the future
The applicant has provided a statutory declaration from an employee, Xueqi Pan, furniture delivery man, dated 7 November 2018 stating that the applicant:
‘…is a good father to his children. From what I have observed while working at Bo’s restaurant, Bo loves his children and did everything for them… Without Bo [the applicant], his children will not have a normal childhood and will miss out on having their father in their lives’.
I accept that the children had a positive and endearing relationship with their father, the applicant. The applicant impressed me with the sincerity of his paternal love and the strength of his commitment to his children. If given the opportunity, I have little doubt that he would provide a positive parental role in the life of his children.
(c) The impact of prior conduct, and future conduct
There is no adverse evidence.
(d) The likely effect of separation
The Tribunal has not heard from the mother or the children and any inferences drawn would be speculative.
(e) Whether there are other persons who already fulfil a parental role in relation to the child
The children are looked after by their mother and she has the support of her mother and father.
(f) Any known views of the child
The Tribunal has not heard from the children and any inferences drawn would be speculative.
In any event, the children are still very young, although not too young to ‘express a view’ with regard to the separation from their father.
(g) Evidence of abuse or neglect by the non-citizen
I note that there is a Police Report of Family Violence dated 20 July 2016. The report states that the applicant’s former wife had attended the police station on an unrelated matter and while at the police station she said things about the applicant and his behaviour. She said that occasionally the applicant was overly harsh in his disciplining of the boys. She referred to his controlling behaviour, and an incident which would, if true, constitute an assault. She did not wish to make a complaint. The matter was reviewed by police and welfare authorities, but assessed as low risk. It was decided that in view of her wishes, and the lack of witnesses, not to proceed with a criminal investigation. It is not clear from the file whether any further action was taken. I notice that the file was marked for civil action only and listed for hearing in September 2016.[31]
[31] TB2/2-4.
Given that no action was taken by the police, and the history of enmity between the applicant and his former wife, I am not inclined to place much weight on this evidence. I note that the wife did not attend the police station in order to make a complaint, and when given the option of doing so, she declined.
I also note, in this context, the applicant’s response to a document prepared by his wife summarising a series of complaints to the Department. Unfortunately, the document was not provided to the Tribunal. Some indication of its contents is apparent from the applicant’s response, dated 3 March 2019, which was provided to the Tribunal. In his response, he intimates that his wife has been unreasonable, in not allowing contact, and that she has made false claims that he is not interested in maintaining contact with the children, or provided financially for the family’s welfare. He did not accept her claim that his whereabouts in China were not known to her.[32]
(h) Evidence that the child has experienced any physical or emotional trauma arising from the non-citizen’s conduct
[32] G22/95-99.
There is no direct evidence of any such trauma arising directly from the applicant’s offending.
ANALYSIS WITH REGARD TO PC2: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Under paragraph 13.2(1) the Tribunal is required to consider whether revocation is in the best interests of minor children in Australia who may be affected by cancellation of the applicant’s visa.
The best interests of the three minor children of the marriage must be considered in the particular circumstances of the case.
I have no doubt that the applicant has a strong sense of loss in relation to his children. There is no reason to doubt the authenticity of these feelings, or the potential impact on his mental state.
The applicant stated a strong desire to return to Australia so that he can have a relationship with his children. He understands the practical difficulties given the enmity of his former wife and her mother.
The Tribunal has not had the benefit of hearing from the applicant’s former wife, but the evidence provided by the applicant is that she is implacably opposed to him. He says that this is not because he is a bad father as such, but because he has brought financial loss and shame to her life. Her enmity is fanned by her parents. He says they have never accepted him because, he says, he is from a lower class, and he has caused them financial loss. Neither she, nor her parents, accepted his apology, or his attempts to reconcile.
On the basis of the evidence before the Tribunal, it might confidently be found that, in the short term, the applicant’s prospects of reconciliation with his wife are very poor, and the degree of access that he might have to his children, even were he to return, is likely to be minimal. Without cooperation from the mother, gaining access to the children will be difficult if not impossible.
If he came back to Australia, there is a strong possibility that the children may find themselves the subject of contested Family Court proceedings. It is by no means certain that the applicant has the emotional, physical or financial means to engage in such litigation; but if he were to follow this path, the children might find themselves in a tug of war between, on the one hand, the applicant, and on the other, their mother and her parents. Given the degree of animosity between the parents, to which he has deposed, re-establishing physical contact with the children is likely to involve a significant risk of pain for the children, at least in the short term. Whether such hardship would be worthwhile in the long run is beyond the power of the Tribunal to predict.
As against this, the consequences for the children of having no physical contact with their father for the foreseeable future will be profound; and there is a risk that both he and the children may engage in some emotional distancing in order to protect themselves from the pain of separation.
It is perhaps inevitable that as time passes without fresh contact, the memory of their father will fade, especially if their mother and grandmother wish to discourage contact, or speak unfavourably about him, as suggested by the evidence before the Tribunal.
There is simply no easy pathway through this thicket of uncertainty.
The natural state of a loving and committed paternal relationship (such as this is) weighs strongly in favour of the applicant; but in the particular circumstances of this case, the weight to be accorded this factor is diminished by the degree of enmity between the parents, inevitably falling upon the children. Nevertheless, overall, this remains a potent primary consideration in favour of the applicant.
I conclude that PC2 points in favour of revocation of the mandatory cancellation.
Primary Consideration 3 (PC3) – Expectations of the Australian Community
Paragraph 13.3(1) provides as follows:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision makers should have due regard to the Government’s views in this respect.
In FYBR v Minister for Home Affairs [2019] FCAFC 185, a case dealing with the equivalent clause applying to refusal of a visa application in Part B (clause 11.3), a majority held that identifying the expectations of the Australian community was not an empirical matter subject to proof. Charlesworth J stated, at [67]:
To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”... it is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”. .... For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.
Her Honour added, at [73]:
[I]t must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do. The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl 11.3 of the Direction. The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
Stewart J analysed the clause as follows, at [100] et seq. His Honour said:
[100] To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
·non-citizens will obey Australian laws when in Australia;
·it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;
·in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.
[101] Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.” This limited expression of “community expectations” by the Government is, one would expect, quite uncontroversial, which is an attractive feature given the heterogeneity of views in this area.
[102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances. Nevertheless, an adverse character assessment is necessarily against a visa applicant, to some degree or other; no one will be awarded a visa because they are of bad character.
[103] The community expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of “what would the community expect in this case?” It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in-between the community expectation will not express or require one or the other. That is a matter for the decision-maker.
[104] omitted
[105] The specific circumstances of the visa applicant are necessarily front and centre of every decision. That is made clear in cl 6.1(2) of Direction 65 which requires the decision-maker to consider whether to exercise the discretion to refuse or cancel the visa “given the specific circumstances of the case”.[50] That requires an evaluative assessment. Direction 65 also identifies “principles” that “reflect community values and standards” (cl 6.2(1)). Those principles include that in the case of the commission of a “serious crime” a non-citizen “should generally expect” to be denied a visa (cl 6.3(3)). That principle is not expressed in absolute terms, as conveyed by the word “generally”. It is a question of weight, not prescription as to outcome. Also, the consequence of criminal or other serious conduct by a non-citizen may be different depending on how long and from what age they have been in Australia (cl 6.3(5) to (7)). Further, the best interests of minor children in Australia who may be affected by the decision is also a primary consideration (cl 11.2, and referred to in cl 6.3(7)). In any particular case, that primary consideration may outweigh, or contribute with other considerations to outweigh, the consideration of the expectations of the Australian community (cl 8(3)).
The High Court declined to grant special leave to appeal from the majority decision.[33]
[33] FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56 (24 April 2020).
The majority decision in FYBR supports the proposition that it is for the Tribunal as decision-maker, to determine, in light of the particular circumstances of the case, how decisively PC3 operates in favour of revocation of the mandatory cancellation decision. In general, the more serious the breach, the more it weighs against revocation, and it may even be decisive. It is hard to imagine a case where PC3 would not weigh, at least to some degree, against revocation.
In assessing the weight to be assigned to PC3, I have due regard to the views of the executive government relating to the removal of non-citizen offenders from this country. The views of the government are encapsulated within Direction No. 79.
In assessing the weight to be assigned to this factor, the individual circumstances of the applicant are “necessarily front and centre” in this decision-making process. However, this process must be conducted within the context of the principles contained within paragraph 6.3 which are stated to be of ‘critical importance’ in furthering the government’s objective of protecting the Australian community from harm as a result of criminal activity: cl 6.2(1). These principles ‘reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable’: cl 6.2(1).
One of the principles is that a non-citizen who has committed a serious crime should ‘generally’ expect to be denied the privilege of staying in Australia: cl 6.3(3). Another principle is that in some circumstances the criminal offending and the harm that would be caused if it were repeated may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa: cl 6.3(4).
Given the extended nature of the offending in this case, and the size of the loss to the revenue, there is a real question as to whether the criminal offending is so serious that any risk of similar conduct in the future is unacceptable.
While it is not difficult to imagine far more serious examples of organised importation, and the importation of substances more illicit than tobacco, which for cultural and historic reasons has been accepted by society as a necessary evil, the importation of tobacco products and cigarettes exhibited in this case is nevertheless very serious.
The Respondent says that it is serious not only for the loss of revenue on the importation of the amounts in question, but for the loss of tax applicable to the lawful sale of an equivalent amount of the product, which the Respondent put at a substantial sum.
The loss of duty payable on the quantity of tobacco product sold is a somewhat unrealistic measure of the intrinsic harm associated with the offending. The applicant undertook this activity only for the purpose of importing tobacco product without paying duty. Had he been obliged to pay duty and GST on these items he would not have imported them. The scheme was designed to produce a profit by importing saleable goods without paying duty.
I am however cognisant of the health dimension of the present offending, referred to above. Tobacco is known to cause cancer and other health related conditions, thus causing widespread misery and a significant drain on the public health budget. This is a major public health issue.
My assessment is that this consideration is very weighty. It falls within the principle in cl 6.3(4). Any risk of similar conduct in the future is unacceptable and may be sufficient to exclude even strong countervailing considerations. The assessment of the risk of repetition is therefore of critical importance.
I conclude that, in this particular case, PC3 weighs against revoking the mandatory cancellation decision.
OTHER CONSIDERATIONS
a) International non-refoulement obligations
The applicant has not raised any non-refoulement issues and has voluntarily returned to China.
b) Strength, nature and duration of ties
As noted at the outset, the applicant resided in Australia from 28 June 2007, when he was 29 years old, until 16 November 2018, when he departed Australia, some 11 and a half years later. He spent 12 months in prison, and a few weeks in immigration detention, before requesting to return to China.[34]
[34] G23/100-101; G17/81; G22/97.
There is evidence that he was relatively socially isolated in the community (see Dr Barth’s report dated 28 August 2018). On the other hand, he has provided a statutory declaration from a fellow worker who has spoken highly of his commitment and dedication to his family and children.
Were he to return to Australia, his criminal conviction for a revenue offence may make it difficult for him to gain employment, and there is no evidence that he has sufficient funds to get back into business. In all probability he will struggle to find employment. The prospect of recidivism cannot be discounted.
Given that he has spent only a quarter of his life in Australia, and that he arrived here as a mature 29 year old, the weight to be accorded this factor is modest. Nevertheless, his time spent in Australia, together with his Australian-born children, does create a tie to the country that must be accorded appropriate weight in favour of revocation of the mandatory cancellation decision.
I find therefore that this factor weighs firmly in favour of revocation of the mandatory cancellation decision.
c) Impact on Australian business interests
During the roughly ten years that he lived freely in Australia the applicant worked as a cook and later ran his own takeaway restaurant.
The evidence is that he was hard working and diligent and ran a successful take away restaurant. He worked long hours to maintain his business and support his family. He undertook additional education to improve his business skills. He claims that this business is still operating and that his wife is currently operating the business.
However, paragraph 14.3 provides that an employment link will generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia. Therefore, I can attach little weight to his employment in the restaurant industry or his small business activities.
d) Impact on victims
There is no evidence before the Tribunal relating to the impact on any particular individual. This factor is neutral.
e) Extent of impediments if removed
The applicant left the country on 16 November 2018, and is presently living with his parents. He gave evidence to the Tribunal that he is employed as an English language teacher in Shanghai, although his income has been reduced due to the current Covid-19 epidemic. His father is in poor health. I attach particular significance to the fact that the applicant is living with, and able to support his parents in China, and work as an English language teacher.
The applicant has secure accommodation and employment in his home country. There is no evidence to suggest that his life in China is more challenging than would be his life were he to return to Australia to social isolation, probable unemployment and an estranged family. Indeed, remaining in China would seem to be a much easier and safer road than seeking to reintegrate into Australian life; especially, after the disintegration of his marriage and the degree of enmity between him and his wife and in-laws.
I also note the various psychological reports referred to in paragraph 29 above, from Dr Chait and Dr Barth, where the applicant was diagnosed with Adjustment disorder with depressed mood and Nicotine dependence. There is no evidence before the Tribunal to suggest that mental health services relevant to these conditions might not be available in China.
I agree with the Minister’s contention that this factor does not weigh in favour of revocation.
CONCLUSION ON OTHER CONSIDERATIONS
One of the considerations (the strength, nature and duration of ties) weighs in favour of revoking the mandatory cancellation; and I recognise that the weight to be accorded this consideration is significant.
Two of the factors are neutral (impact on victims; impact on Australian business interests); and the issue of non-refoulement is neither raised nor relevant.
The extent of impediments if removed does not favour revoking the mandatory cancellation decision.
My conclusion with respect to the ‘other considerations’ is that, taken together, they weigh slightly in the applicant’s favour.
WEIGHING THE FACTORS
The critical question to be finally decided is whether ‘there is another reason [i.e. other than the applicant passing the character test] why the original decision should be revoked’.
This case turns on the weight assigned to the primary considerations. I accept that one or more primary considerations may outweigh other primary considerations.
Is this a case where PC2 relating to the Best interests of the minor children, together with the weight I have assigned to the other considerations, outweighs PC1 relating to the Protection of the Australian Community and PC3 relating to the Expectations of the Australian community?
From a human perspective, this is not an easy decision. The children are critically important and they are Australian citizens. They should not lightly be denied access to their father in their own country.
But from a legal perspective, and applying the Direction with fairness and firmness, the correct and preferable decision is clear. The Tribunal cannot ignore the damage to the community arising from the criminal enterprise the applicant engaged in, or the risks associated with the possibility of reoffending. The community as a whole is impoverished by such conduct.
In the sad circumstances before the Tribunal, PC1 (the Protection of the Australian community from criminal conduct), and PC3 (the Expectations of the Australian community), outweigh PC2 (the Best interests of minor children in Australia). The other consideration pointing in favour of revocation (the strength, nature and duration of ties) is insufficient to materially change this overall assessment.
I find therefore that the applicant fails the character test and there is not ‘another reason’ why the mandatory cancellation decision should be revoked.
I therefore affirm the reviewable decision.
I certify that the preceding 156 (one hundred and fifty-six) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
............................[sgd]........................................
Associate
Dated: 15 July 2020
Date of hearing: 5 March 2020 Date final submissions received: 16 March 2020 Applicant: In person Solicitors for the Respondent: Ms M Donald, Sparke Helmore Lawyers
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