Lu and Minister for Home Affairs (Migration)

Lu and Minister for Home Affairs (Migration) [2019] AATA 4053 (2 October 2019)
Division:GENERAL DIVISION
File Number:2019/4322
Re:Weihua Lu
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth

Date:2 October 2019
Place:Melbourne

The decision under review is affirmed.
.........[Sgnd]..............................................
Senior Member B J Illingworth
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – decision under review affirmed
LEGISLATION
Crimes Act 1958 (Vic)
Migration Act 1958 (Cth)
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Senior Member B J Illingworth
2 October 2019
INTRODUCTION

This matter relates to an application for review filed by Mr Weihua Lu (“the Applicant”) on 19 July 2019. The decision the Applicant seeks to have reviewed is the decision of a delegate of the Minister for Home Affairs (“the Respondent”) dated 10 July 2019 not to revoke the mandatory cancellation of his Class WA Subclass 010 Bridging A visa.
At the hearing before the Tribunal, the Applicant appeared in person and was represented by Mr Guy Gilbert S.C on instructions from Chua Tan & Associates. The Respondent was represented by Ms Siran Nyabally, Australian Government Solicitor. The Tribunal was also assisted by a Mandarin interpreter.
BACKGROUND
The Applicant is a 59-year-old citizen of China, born in December 1959.
The Applicant described a difficult childhood, having grown up during the Cultural Revolution. He left school aged 16 years and “participated in the collective work of the people’s communes” until aged 19 years when he joined the Chinese People’s Liberation Army. He was trained as a plumber and electrician.
In 1985, the Applicant retired from the army and returned to his rural home. His parents assisted him to find employment. He worked in a factory using the electrical and plumbing skills he acquired in the army. He subsequently married in 1986. He and his wife, JF, have one child, namely a daughter LL, born in March 1987.
The Applicant and his family had limited finances. His wife’s parents were killed in a motor vehicle accident which caused additional financial burden to the family. The Applicant and his wife went into business, including opening a small restaurant, and subsequently they opened a small grain and oil shop.
In 2006, the Applicant’s daughter came to Australia to study. She returned home to visit her parents once every two years but otherwise resided permanently in Australia. After she graduated, she was granted a permanent visa and sponsored the Applicant and his wife to come to Australia. They sold their shop and arrived in Australia in September 2012. The Applicant was then aged approximately 52 years. He and his wife were granted Contributory Parent (Temporary)(Subclass 173) visas. That visa ceased on 18 June 2014 and the Applicant was granted a Class WA Subclass 010 Bridging A visa pending the processing of a Contributory Parent (Permanent)(Subclass 143) visa. It was his Bridging visa that was the subject of the mandatory cancellation.
The Applicant and his wife used the money from the sale of their shop to contribute to their visa costs and travel to Australia. They lived in rental accommodation, were unemployed, and did not speak English. It was a stressful period. The Applicant found employment in a massage shop operating in a shopping centre. His daughter had a colleague whose husband worked in that shop. That husband recommended the Applicant for a position. The Applicant did not have a job interview and had no experience massaging. He told his employer he had not done the work before but was told it was simple. He received no formal training. He watched others. He was shown head, neck, shoulder and leg massages. He was not shown, nor was he to perform, whole body massages.
The Applicant described competition in the business between the masseuses. A masseuse was paid per customer and because each masseuse was fighting to get customers they would not assist the Applicant by telling him how to massage. The arrangement for payment was made according to the preference of each customer and, if a customer came back to the Applicant as a repeat customer, other staff were not permitted to accept that person as their customer. He did sometimes ask questions of the person who got him the job, such as how much pressure to apply when massaging. The person who got him the job received commission for the work performed by the Applicant.
He described the massage shop as containing cubicles separated by curtains through which no one could see. There were about seven massage tables. There was no ceiling to the cubicles. The Applicant had almost no English, nor did the shop manager. There were some students who worked in the shop that spoke English. He communicated to customers predominantly by hand signals. He understood the word ‘no’.
The Applicant said he was not qualified to do massaging but the manager said “go do it” and so he did. The manager offered no training. The Applicant did not research how to massage and nor did he ask anyone how to go about doing it.
The Applicant’s offending occurred approximately five months after he arrived in Australia, when performing full body massages on two young ladies. In summary, during the course of massaging the first victim, the Applicant penetrated her vagina with his finger. In the case of the second victim, he placed his hand inside her underwear and rubbed her vagina up and down about three times. On 27 August 2014, the Applicant pleaded guilty to charges of rape and indecent assault respectively in relation to victims 1 and 2.
On 2 October 2014, the Applicant appeared before the County Court of Victoria for sentencing in relation to one count of rape and one count of indecent assault. The Sentencing Judge, His Honour Judge Ryan, imposed the following sentence:
·In relation to the charge of rape, the Applicant was sentenced to five years imprisonment;
·In relation to the charge of indecent assault, the Applicant was sentenced to two years imprisonment; and
·It was ordered that one year of the sentence imposed for the offence of indecent assault be served cumulatively upon the sentence imposed for the offence of rape.
·Hence, the total period of imprisonment was six years with a non-parole period of four years.
On 12 February 2018, the Applicant’s visa was mandatorily cancelled (“the Original Decision”) by a Ministerial delegate under s 501(3A) of the Migration Act 1958 (“the Act”) on the grounds that he did not pass the character test because he had a substantial criminal record, having been sentenced to a term of imprisonment of more than 12 months and was at that time serving a sentence of imprisonment on a full-time basis.
The Applicant made representations seeking revocation of the mandatory visa cancellation within the period and in the manner specified.
On 10 July 2019, a Ministerial delegate decided that the Minister was not satisfied that the Applicant passed the character test; nor was there another reason why the Original Decision should be revoked. Accordingly, the delegate decided not to revoke the mandatory visa cancellation.
On 19 July 2019, the Applicant lodged with this Tribunal an application for review of the delegate’s decision.
LEGISLATIVE FRAMEWORK
Relevantly, s 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Pursuant to 501(6)(a) of the Act, a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act. Section 501(7) of the Act relevantly provides that, for the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
Pursuant to s 501CA(4) of the Act, the Minister, or the Tribunal in place of the Minister, may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
ISSUES
The principal matter for determination is whether the discretion contained in s 501CA(4) of the Act should be exercised by the Tribunal such that the mandatory visa cancellation is revoked. Pursuant to s 501CA(4)(a) of the Act, the Applicant made representations in accordance with the Respondent’s invitation. Thus, the two issues to be considered by the Tribunal are:
(a)Pursuant to s 501CA(4)(b)(i) of the Act, whether the Applicant passes the ‘character test’; or
(b)Pursuant to s 501CA(4)(b)(ii) of the Act, whether there is ‘another reason’ why the Original Decision should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant concedes that he does not pass the character test. The Applicant has been sentenced to a term of imprisonment of at least 12 months. The concession was rightly made. The Tribunal is therefore satisfied that the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) of the Act for the cancellation of his visa to be revoked.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
In considering whether there is another reason why the Original Decision should be revoked, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act provides:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)The performance of those functions; or
(b)The exercise of those powers.
In this case, the relevant direction is Ministerial Direction No 79 (“the Direction”) which was issued on 20 December 2018 and applies on and from 28 February 2019. This Direction replaces what was previously Direction No 65.
Ministerial Direction No. 79
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. They are 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 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 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.
Paragraph 8 of the Direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One of more primary considerations may outweigh other primary considerations.
The Direction further provides guidance for decision-makers on how to exercise the discretion with respect to a mandatory visa cancellation. Relevantly, at paragraph 7(1)(b) of the Direction, it states that a decision-maker must take into account the considerations in Part C in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 13(2) in Part C of the Direction provides the three Primary Considerations that the Tribunal must take into account, namely:
(a)Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia; and
(c) Expectations of the Australian community.
The Other Considerations which must be taken into account where relevant are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are (but 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; and
(e)       Extent of impediments if removed.
The Tribunal will now address these considerations.
Primary Consideration A: Protection of the Australian community
Paragraph 13.1 of the Direction sets out the first of the Primary Considerations the Tribunal should have regard to, and relevantly provides:
(1)When considering protection of the Australian community, decision-makers should 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
(a)The nature and the 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 Tribunal will address each of the considerations in paragraphs 13.1(2)(a) and 13.1(2)(b) of the Direction.
(1) The nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that… violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that 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, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is a trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen is in immigration detention … is serious …
The Applicant committed the sexual offences on 15 and 18 February 2013. The complainants were aged approximately 20 and 21 years respectively at the time of the offending. In giving context to the learned sentencing judge’s sentencing remarks, it is helpful to here summarise part of the Summary of Prosecution Opening[1] which was tendered as an exhibit and read aloud on the occasion of the Applicant’s plea of guilty.
[1] Exhibit B, Supplementary G Documents, pages 452 – 455.

It can be summarised as follows:
Count 1
8. He then massaged her thighs and calves and then ran his hands up her legs. The accused’s fingers then touched her vagina over her underwear. Then the complainant says that the accused started to massage her buttocks with his hands.
9. Next the accused grabbed her thighs and then her buttocks and massaged them on top of her underpants. The accused then told her to turn over and he put his hands on her shoulder and rolled her over. The complainant at this stage was feeling scared. Her breasts were exposed. The accused then massaged to chest and began rubbing each breast. The accused then grabbed her breasts with an open hand and squeezed each breast quite hard. This hurt the complainant and she said “no”. He continued rubbing the sides of her breasts to which the complainant said “no thanks” but he then grabbed each nipple with his fingers and pinched each nipple.
10. The complainant then said “no” and pushed his hands away. She was too scared to leave. The accused then commenced massaging her stomach, he removed her underwear, and slid his finger on his left hand into her vagina. The complainant said this was done with a lot of pressure and that it hurt her. She immediately sat up and again said “no”. The accused then pushed her with his right hand on her left shoulder and she fell back onto the bed. This was done in a forceful manner; the complainant said she was scared and frozen. The accused then held her right thigh down and made an effort to hold her legs apart and reinserted his finger back into her vagina. (Charge 1 – Rape). The accused’s finger moved in and out of her vagina in a quick and rough motion. The complainant continued to say “no”. The accused also pinched her clitoris.
Count 2
18. The accused then covered the top of the complainant’s body and commenced massaging her legs. He used his thumbs and put them under her undies around her legs and touched the very edge of her vagina. The accused then attempted to remove her underwear and the complainant said “no”. The accused then massaged her stomach and he placed his hand underneath her underwear and rubbing his hand up and down about three times on her vagina (Charge 2 – Indecent Assault).
19. The complainant stated she was not comfortable with that and so the accused stopped. However, next he started rubbing her on the outside of her underwear in the same manner approximately three times. The accused then proceeded to massage her shoulders.

The learned sentencing judge, in his sentencing remarks,[2] described the offending as follows:
2. … In summary, whilst working as a masseur and during the course of a full body massage on the complainant, the subject of Count 1, you penetrated her vagina with your finger, you also pinched her clitoris. This conduct occurred after a series of inappropriate touchings of the complainant’s breasts to which the complainant reacted by telling you, “No” and at one stage pushing your hand away.
3. Some three days later, during the course of another massage, you indecently assaulted the complainant, the subject of a Charge 2, by placing your hands underneath her underwear rubbing your hand up and down on her vagina about three times. As with the first complainant, the act that founds the charge occurred after inappropriate touching of the complainant’s breasts purportedly as part of a massage.[3]
[2] Exhibit A, G Documents, pages 22 – 29.
[3] Ibid, at page 23.
The learned sentencing judge found that each complainant was immediately adversely affected by the Applicant’s conduct and, having noted they were both aged 20 and 21 years respectively, he said as follows:
In my view, their youth combined with their surroundings operated to make them vulnerable and less likely to stop you during the course of your initial inappropriate touchings despite the reservations they felt at the time and this gave you confidence to escalate your misconduct.[4]
[4] Ibid.
Thereafter, the learned sentencing judge referred to the victim impact statements of each complainant. In summary he said:
(a)The complainant, the subject of Count 1, worked at the same shopping complex where the offence occurred. She could not cope with returning to that centre and resigned from her full-time position. She then struggled to find work and was in debt. Her ability to sleep was also affected and she experiences nightmares. Her positive outlook on life has been destroyed. She now struggles to leave her home. She no longer trusts men and her relationship with her boyfriend has deteriorated.
(b)The complainant, the subject of Count 2, found it difficult to return to work. She lied to her employer about the reason for staying away from work. Her attitude to Asian people is now one of antipathy despite in past having been one of acceptance, having had many work colleagues of Asian ethnicity. The relationship with her partner has deteriorated. She experiences flashbacks and is depressed and anxious.
The learned sentencing judge then said:
7. By your conduct, you have destroyed the happiness of two women who are in the full bloom of youth, a time when happiness should be, as it had been for them, an important and normal aspect of their lives.[5]
[5] Ibid, at page 24.
Further, the learned sentencing judge observed that, when first interviewed under caution, the Applicant maintained the first complainant expressly consented to his conduct. In respect of the second complainant, the Applicant denied touching her vagina but admitted rubbing her vagina on top of her underwear because she “said it was okay.” There was a contested committal hearing. The depositions revealed that “the issue of consent in respect of the first complainant and accident in respect of the second complainant were actively pursued.”
Provided to the County Court was a report from psychologist Jeffrey Cummins dated 14 July 2014.[6] This report was also before the Tribunal. The learned sentencing judge quoted paragraphs 34 and 35 of that report which state:
34. At interview Mr Lu was emphatic he was not sexually attracted to either of these victims. Simultaneously, though he enthusiastically acknowledged he engaged in these activities in an attempt to please these women hoping this would motivate them not only to return to [the massage shop], but to seek him out as a massage therapist.
35. In my opinion Mr Lu now understands his behaviour towards these two women was unacceptable and amounts to criminal offending.
[6] Exhibit H.
In relation to the Applicant’s plea of guilty and the report of Mr Cummins, the learned sentencing judge went on to say:
25… The question of remorse is somewhat more problematic. You do not speak English. Your interview with the police and your consultation with Mr Cummins were conducted through an interpreter. This fact admits of some uncertainty as to your true attitude to your offending. I am prepared to act on the basis that your plea is evidence of your remorse and that you have some insight into the effect that your acts have had upon the complainants.[7]
[7] Exhibit A, G Documents, at page 28.
The learned sentencing judge then described the offending at paragraph 27 as follows:
27. Your offending was grave. Young, unsuspecting women came into your care expecting no more than the simple pleasure of a massage and they were violated by you. They did not consent to your conduct and your answers in the record of interview were simply untrue. You are an appropriate vehicle for the application of general deterrence. You must be punished and your conduct must be publicly denounced.[8]
The Evidence
[8] Ibid.
The Applicant
The Tribunal received a statutory declaration signed by the Applicant and dated

29 August 2019 and a personal statement dated 29 March 2018[9] together with his oral evidence.
[9] Exhibit C.
The Applicant detailed his personal circumstances, limited education, and work history in China preparatory to both he in his wife travelling to Australia, to which the Tribunal will refer later. It appears they came to Australia on a Contributing Parent Visa which cost in excess of $30,000 per person. In Australia, the Applicant, his wife, and daughter pooled their monies but together they had limited funds and the Applicant needed to find work. The Applicant managed to find work as a masseuse, as described in paragraphs 8 to 11 above.
The Applicant’s daughter had a colleague whose husband worked in the massage shop. That husband recommended the Applicant to work in the shop.
The Applicant did not have an interview. He told his employer that he had no experience as a masseuse. He was told it was simple. The Applicant received no training. He observed others performing head, neck, shoulder and leg massages. He was not allowed to do a whole body massage. The Applicant suffered from arthritis but this was not so severe as to impede him from performing the duties of a masseuse.
He described the premises as being approximately 80 square metres in size. There were about seven massage tables each in cubicles separated by curtains which could not be seen through. The cubicles did not have a ceiling. Each masseuse was competing for business within the massage shop as their salary was determined by the number of massages performed. If a customer returned to the shop and asked for a particular masseuse, other staff were prohibited from accepting that person as their own customer.
The Applicant did not undertake any research about performing the role of a masseuse. He did ask the husband who recommended him for the role for some assistance, such as how much pressure to place on a person, but he did not ask others for help or guidance because of the competitive nature of the business and because he did not believe others would assist him. The husband also received a commission for work performed by the Applicant. Therefore, the concern was to get clients and to get money.
In his statement dated 29 March 2018, the Applicant said he gradually acquired more customers, especially repeat customers, and he often received a tip. His managers started to value him more and he was allowed to practice full-body oil massages, albeit without any training or guidance. He said “my manager asked me to do it” and so he did it. The business was busy.
In respect of the charge of rape, he said in evidence that a young woman came to the shop for a whole body massage and, because he had limited English, he mainly used hand gestures to communicate with her. It was from his perspective all good and very polite. However, the Applicant said he misunderstood her and thought that she wanted him to touch her breasts and her private parts and place his finger inside her vagina.
The Applicant was then referred to the Summary of Prosecution Opening, to which the Tribunal referred in paragraph 34 above, as it related to the charge of rape. When asked what made him think the complainant wanted him to touch her breasts and private parts, his response was that she did not object; she might have been scared, but she did not fight back and he thought she was willing. He said he wanted to please the customer and wanted her to come back. That is why he performed the act which he now accepts was wrong and was a crime.
The Applicant said that if she did object he would know, and that he did not know the act was against the law.
The Applicant was again referred to the Summary of Prosecution Opening at paragraph 9 and the allegation that he “grabbed her breasts with an open hand and squeezed each breast quite hard” and that the complainant said “no”. The Applicant initially responded that he then stopped. However, he was then referred to the further allegations of touching and that the complainant said “no” three times. The Applicant then explained that he did not hear her say no and did not remember the complainant pushing his hand away when he was touching her breasts and nipples. The Applicant here appeared confused in his evidence.
He removed the complainant’s underwear and believed she wanted him to touch her everywhere. He said he wanted to please the customer and touch her everywhere. In response to a question from the Tribunal, the Applicant said he wanted to sexually please the customer.
The Applicant was again referred to the Summary of Prosecution Opening, and in particular that, after digitally penetrating her, the complainant sat up and said “no” and that he then pushed her with his right hand and she fell back onto the bed. He said he could not remember the complainant saying no, but she did sit up and he just touched her shoulder; he did not push her, and she laid back on the bed. He said he did not hear the complainant say no when he again inserted his finger into her vagina.
When asked what made him stop, the Applicant said they reached their 60 minutes of allocated time. He said that he was hoping the complainant liked him and would come back. The Applicant said he was “stupid.”
As to the offence of indecent assault, the Applicant said the person came in for a whole body massage. He helped her undress. The Applicant admitted that he massaged her breasts and squeezed her nipples, but that when he got closer to her vagina the complainant said no and he stopped. He was asked why he stopped at the request of this complainant but not the other. The Applicant suggested that maybe the other complainant was scared of him and her voice was very low.
He said that insofar as the second complainant asked for a female masseuse, he couldn’t understand her because he had little English. He said that when she was on the bed with her clothes on, he put his hand underneath her top to remove her bra having first asked if it was okay to do so. They communicated by hand gestures.
The Applicant expanded on his evidence and said that he massaged the top of her body, including the breasts and nipples, and that he put his hand under her underwear and rubbed her vagina approximately three times but did not insert his finger.
In cross-examination, counsel for the Respondent put to the Applicant the contents of paragraphs 18 and 19 of the Summary of Prosecution Opening. The Applicant acknowledged that, having removed his hands from inside of her underwear, he then proceeded to massage her vagina from the outside of her underwear. When asked why he kept going, he said it was because it was towards the end of the massage, she was getting dressed, and he thought that he wanted to please her. He repeated that he was stupid, that he did not know he was committing a crime, and that it was all because he wanted money.
The Applicant kept repeating throughout his evidence that, at the time he performed the sexual acts, he did not know that it was against the law. He did agree that he sexually abused those women because his concept of the law and regulations was wrong. He now thinks that the conduct was “completely against the law.”
The Applicant has not reoffended whilst in custody and has been a model prisoner such that he now lives in cottage accommodation at the prison.
(2) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction provides factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)In considering the risk 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; 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 the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Applicant
The Applicant worked when living in China and he and his wife overcame some financial and personal difficulties, including the death of his wife’s parents and, shortly thereafter, her grandmother. They worked hard to send their daughter to Australia to study, which she did successfully. The Applicant was proud of his daughter’s achievement and he and his wife sold their business in China and travelled to Australia to be with their daughter.
Upon arrival in Australia, the Applicant and his wife continued to have financial difficulties. The Applicant was unemployed, they had a substantial debt to the Australian government in respect of their visa application, they rented a room, and had no English language skills.
It is against that background that the Applicant took up employment in the massage shop with no qualifications and expertise, little or no English language, and with no training or skills in massaging.
Throughout the proceedings before the Tribunal, the Applicant maintained that his motivation in committing the offences was primarily to please the complainants in hope that they would return business to him and therefore provide him with additional money in the future.
Following the commission of the criminal offences, the Applicant and his wife separated but resided under the same roof. The Applicant continues to serve his sentence of imprisonment as ordered by the learned sentencing judge on 2 October 2014. Whilst in custody, the Applicant and his wife reconciled, and the Applicant’s daughter married and has given birth to two children, namely P, born in 2015, and J, born in 2017. They are aged four and two years respectively. His mother, who resided in China, passed away.
In 2018, the Applicant’s daughter, husband and wife set up a company and bought a wood fire pizza café restaurant business located in country Victoria. The Applicant’s daughter and wife both work in that restaurant and his wife has purchased a home which is a five minute walk from that restaurant.
If permitted to return to the Australian community, the Applicant intends to reside with his wife in her home, and has employment in the family restaurant business. He will not return to, or seek, employment as a masseuse.
The Applicant has been a model prisoner with no recorded incidents, and is noted as being respectful and compliant towards staff and other prisoners. He resides in a cottage at the prison which is reserved for model prisoners. He suffers from arthritis but he has acknowledged in evidence that it is not debilitating. He has had two incidents in custody involving chest pains which he said corresponded with occasions of stress. The last occasion was when he was advised of his visa cancellation.
The Corrections Victoria records indicate that the Applicant has been assessed by the Specialised Offender Assessment and Treatment Service as a low risk of reoffending. Nonetheless, due to his limited English, he is not eligible for group-based treatment and was recommended for case management intervention. The Applicant is reported to have previously worked as a volunteer in his temple for two hours per week since August 2013 until his imprisonment.
In reports dated 21 February 2018 and 3 April 2019,[10] the Applicant has participated in the Grow Program at Hopkins Correctional Centre and has done so since 7 March 2017. He is reported to be a consistent attendee, actively involved in the program, and friendly and cooperative with an appreciative attitude. He assisted in the practical running of the group, setting up meeting rooms, welcoming participants, and packing up afterwards. It is noted he struggles with the English language, but he is described as being courageous in trying to learn the language. Grow is a mental wellness program operating on peer support, mutual support, and a self-activation model.
[10] Exhibit A, G Documents, pages 118 – 119.
In letters dated 16 March 2018 and 27 March 2019 from Prison Fellowship Australia and the Hope Program,[11] the Applicant is described as a person who stands out and leaves a positive effect on those within the group. The author refers to his excellent participation, efforts to improve and understand the English language, and contribution to discussion times, and speaks glowingly of him as a person and his character generally.
[11] Ibid, pages 120 – 121.
The Applicant has produced to the Tribunal a number of certificates of achievement and participation in various disciplines including education, religious, music and work-related training.[12]
[12] Exhibit B, Supplementary G Documents, pages 155 -170.
Whilst in custody, the Applicant has converted to Catholicism. When he first commenced Bible studies it was because of his motivation to learn English, however a year later he was baptised. He attends weekly Bible studies. The Applicant says that his faith has guided him. He likes God and the studies teach him how to behave, forgive sins, and be a proper person. He will continue those studies following his release from custody whether he resides in Australia or China. He is aware of issues in China for those practising Christianity to which the Tribunal will refer later. Nonetheless, he will maintain his faith.
The Adult Parole Board of Victoria determined the Applicant as suitable for release on parole on receipt of a Parole Suitability Assessment from Community Correctional Services. His release on parole has arguably been interrupted due to his visa cancellation whilst serving his prison sentence. He may be required to serve his entire sentence in custody rather than on parole.
Mr Jeffrey Cummins
The Tribunal received two reports from psychologist, Mr Jeffrey Cummins dated

14 July 2014 and 29 August 2019[13] who also gave oral evidence at the hearing.
[13] Exhibit H.
Mr Cummins first saw the Applicant in July 2014 preparatory to his appearance before the County Court of Victoria. He also saw the Applicant on 20 August 2019 for the purpose of providing a report to the Tribunal. Mr Cummins has extensive experience in the Victorian criminal justice system.
In his report dated 14 July 2014, he assessed the Applicant’s risk of reoffending as low to moderate but expected it would reduce to low as a result of him participating in sex offender treatment. Mr Cummins noted the Applicant was anxious about succeeding at the massage shop, and that he and his wife were in urgent need of earning an income. In that context, he opined the Applicant developed symptoms of Adjustment Disorder with Anxiety which he said was of mild/moderate severity. He said the condition impacted adversely on his perception, judgement and problem solving, and his culpability was therefore reduced to some degree. He noted the Applicant was still struggling with the seriousness of his offending.

At paragraph 29 of his latter report, he referred to the Applicant being accommodated in a cottage which he described as being significant because it reflects the fact he is regarded as a model prisoner. The Tribunal accepts that opinion.
At paragraph 32 of the latter report, Mr Cummins explained the Applicant’s initial difficulty understanding why he was charged with criminal offending and his struggle to acknowledge the wrongfulness of his conduct. However, as he has appreciated what the complainants said, he has shifted his thinking. The Applicant has had a number of discussions with his daughter in relation to the wrongfulness of his conduct and now speaks more strongly and positively about that wrongfulness and his remorse.

Mr Cummins also referred to the Applicant’s religious studies and conversations that he has had with several priests which have assisted the Applicant in coming to that understanding.
At paragraph 33 of the latter report, Mr Cummins opined that cultural factors, communication difficulties, and financial pressures on the Applicant could genuinely have been relevant in terms of what motivated his offending. He opined that the offending was situationally motivated. He expanded on that opinion in oral evidence and stated that indicators of that situational motivation included:
·feeling anxious and pressured to be employed;
·need to earn an income;
·his debt to the government;
·difficulty with the English language; and
·difficulty understanding Australian culture.
Mr Cummins said that the Applicant did indicate that, within Chinese culture, he believed there were no similar rules associated with the conduct in relation to which he was before the County Court. He understood rape to be defined as penile forced intercourse.

Mr Cummins acknowledged that the Applicant did not tell him about the victims saying no during the course of the various activities complained of.
In reference to paragraph 36 of this latter report, Mr Cummins noted that, in some cases, offenders tried to back away from their offending. However, the Applicant was accepting of his plea and what he had done wrong. This is to be contrasted with his first report where, albeit the Applicant was accepting of his plea and what he had done, there was still some distance to travel in terms of his understanding of the wrongfulness of his acts. He said the Applicant has travelled that distance.
Mr Cummins described the Applicant as relatively simple and poorly educated. He does not have a sophisticated understanding of human behaviour.
Mr Cummins acknowledged that the Applicant had not participated in the sexual awareness programs. He said such programs are not available to those in a custodial setting with limited English. The prison system requires that a person have a greater command of the English language than that of the Applicant. However, the Applicant has undergone group programs focused on verbal confrontation with prisoners, supervised and directed by therapist. Accordingly, having now reassessed the Applicant,

Mr Cummins is not so firmly of the view that he needs offender treatment. He has moved on. He is able to talk in terms of the wrongfulness of his offending.
Mr Cummins referred to the various tools used in assessing the Applicant and the situational nature of his offending. Included within that assessment was the Static 99 R tool to assess the risk of an adult male of 45 to 50 years as being of a lesser likelihood to reoffend. The fact that the Applicant did not commit the offences until aged 53 to 54 years militated against the likelihood of further offending.
Mr Cummins assessed the Applicant as meeting the category of low risk of reoffending. In cross-examination, he acknowledged that, within the category of low risk, there are three sub-categories, being a potential range between -3 and 1. Category 1 is the higher risk within that low risk category. The Applicant was assessed as 1 within that low risk category.
In cross-examination, Mr Cummins referred to the markers of situational offending as opposed to predatory offending. The Applicant had markers of situational offending to which the Tribunal has referred. However, those situational factors, he opined, have been overcome by being present at the contested committal, receiving feedback from his daughter and legal team, being present at court when the plea was given and when the sentencing remarks were delivered, being incarcerated, and completing various courses. These, he opined, have helped the Applicant to assess factors motivating his offending.
Applicant’s evidence and submissions regarding risk of reoffending
The Applicant’s daughter, LL, and wife, JF, gave evidence. They confirmed the Applicant’s evidence in terms of the family relationship, the intention that he live with his wife, work in the restaurant business, and that the family will provide support for him in the future.
The Tribunal has received into evidence a number of statutory declarations including from the Applicant’s sister[14] and two nieces,[15] in addition to the evidence of his wife and daughter which all suggest the Applicant’s offending was out of character. His wife said in her declaration[16] “When the incident happened, I was so disappointed with Weihua and we separated.” His daughter said in her statement[17] “My mother, [JF] heart was heart-broken after this incident, she couldn’t believe what he had done, she felt disappointed and betrayal, meanwhile, she was so angry with him. At that time, she found it was very difficult to forgive him for what he did, so she decided to separate with him.”
[14] Exhibit A, G Documents, pages 76 – 78; Exhibit D.
[15] Ibid, pages 79 – 80; Exhibit F; Exhibit G.
[16] Exhibit E.
[17] Exhibit A, G Documents, at page 72.
In submissions, counsel for the Applicant said that the Applicant demonstrated sensitivity, that he was remorseful for his offending, and he remained consistent in his evidence, albeit he was cross-examined extensively. The Applicant did not seek to exaggerate his health, and in particular his arthritis, nor his Catholic faith, and further that he did not assert that the non-refoulement obligations were enlivened. The Applicant positively submitted that non-refoulement obligations did not arise on the evidence.
It was submitted that the Applicant genuinely believed that the complainants were consenting and that he thought he was pleasing them. Nonetheless, the end result was his plea of guilty and the acceptance of what he did as wrong.
The Applicant’s counsel referred to the small shop of seven tables, no ceiling, and each cubicle being separated by a curtain. To conduct himself in that manner in such a public place, it was submitted, was bizarre and could be explained by his limited education, inexperience as a masseuse, financial difficulties, and concern to please his clients without having received any formal training. It was further noted that he did not receive help from others and he was a man of limited English from which the Tribunal should accept that his explanation for the offending is not fanciful.
Counsel for the Applicant referred the Tribunal to s 38 and s 40 of the Crimes Act 1958, and in particular that a person commits an offence if that person intentionally sexually penetrates another and does not reasonably believe that the other consents to penetration. The Applicant accepts that the reasonable belief was not held and that the complainant was not consenting. His view was misguided and unreasonable in the circumstances.
It was submitted that it is not uncommon for persons before the Tribunal to back away from the conduct. That was not the case with the Applicant.
Counsel for the Applicant addressed the Tribunal on the issue of risk to the Australian community. In terms of risk, it is accepted that the offending was serious and grave. The Applicant referred to the learned sentencing judge’s remarks at paragraph 23 in which he expressed the view that the Applicant was unlikely to reoffend. It was submitted that the Tribunal should take into account the authoritative sources, including the learned sentencing judge’s remarks and the opinion of Mr Cummins, which state that the likelihood of reoffending is low. There is no assessment of reoffending lower than low, which was submitted to be significant.
Counsel for the Applicant referred the Tribunal to the Applicant’s evidence, and in particular information in respect to where he will live and what he will do should he be released into the community. Counsel also referred to the Applicant’s age which is a factor militating against the likelihood of reoffending. The Tribunal was invited to accept the opinion of Mr Cummins that the offending was situational, that those situations will not happen again, and accordingly the Applicant is a low risk of reoffending.
Counsel reminded the Tribunal that the Applicant did not undertake the sex offender program because it was not available due to his language difficulty. That was out of his control and should not be a factor giving rise to an adverse finding against the Applicant. Of further importance, it was submitted, was that the Applicant was not on the sex offender register.
It was submitted that a strong factor for the Tribunal was the term of imprisonment, being a head sentence of six years and a non-parole period of four years. This, it was submitted, was a heavy sentence which took into account the gravity of the matter. However, the Applicant’s counsel submitted that learned sentencing judge expected the Applicant to be eligible for parole in approximately four years. On 12 February 2018, the Applicant’s visa was cancelled. He was due for parole on 26 August 2018 and the opportunity for release on parole was lost to him. He has now served over five years of his sentence. It was submitted that if the Tribunal sets aside the visa cancellation, there is no impediment to him being placed on parole. The Applicant may otherwise have to serve the entire term of his sentence of imprisonment. Counsel drew the Tribunal’s attention to the legislative scheme relating to the grant of parole to prisoners.
In addition to the term of imprisonment, the Tribunal was invited to have regard to a number of factors impacting upon the Applicant including:
·that he served his sentence in circumstances more onerous than Australian citizens;
·his lack of English;
·that the learned sentencing judge recognised the threat of cancellation to which he referred in paragraph 24 of his sentencing remarks and the fact that, albeit he could not speculate as to the decision that may be made by immigration authorities, the Applicant’s ability to remain in Australia was at risk and that this uncertainty will weigh on the Applicant, which it plainly has; and
·that the sentence was onerous but that the Applicant had demonstrated an exemplary prison record, that he has been positive and done as much he can to improve.
Counsel urged upon the Tribunal to recognise the courses that the Applicant had undertaken and the positive records in respect of those courses. It was submitted there was ample evidence that he has been a model prisoner. Further, counsel submitted that the Tribunal had the opportunity to see the Applicant, his family, and assess those critical issues relating to the Applicant’s future. He soon turns 60 years of age. His future in China is uncertain. He has family in China but they are not able to support him.
Counsel also referred to the Tribunal to the Applicant’s Catholicism and that, prior to the offending, he had not previously been in any trouble. It was submitted that his personal circumstances are compelling and that Tribunal could find the Applicant is a low risk of reoffending.
Respondent submissions regarding risk of reoffending
The Respondent submitted that the issues in dispute were limited. The relevant offending was serious and was committed five months after the Applicant arrived in Australia. The Respondent referred to paragraph 19 of their Statement of Facts, Issues and Contentions and the principles set out in the Preamble to Direction 79 that:
being able to remain in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law-abiding and will not threaten or cause harm to members of the Australian community;
Australia has a low tolerance for criminal and other serious conduct by non-citizens, especially serious crimes, including claims of a sexual nature and particularly against women; and
Australia has a low tolerance of criminal conduct by people who have been participating in, and contributing to, the Australian community for only a short time.
In considering the protection of the Australian community, the Respondent referred to Direction 79 at paragraph 13.1 and submitted that the nature and seriousness of the Applicant’s offending cannot be understated. He sexually abused two young women under a mistaken belief that they wanted him to touch them in the manner described above. The Applicant inferred there were non-verbal cues, however victim one said “no” repeatedly and the Applicant continued.
The Respondent referred to paragraph 4 of the sentencing remarks and that the complainants’ youth and surroundings operated to make them vulnerable and less likely to stop the Applicant during the course of the inappropriate touchings; and that despite the reservations they felt at the time, this gave the Applicant confidence to escalate his misconduct (referred to in paragraph 36 above). The Tribunal was also reminded of the summary of the victim impact statements referred to at paragraphs 5 and 6 of the sentencing remarks and that, at paragraph 7, the learned sentencing judge said the Applicant destroyed both women’s happiness. These factors, it was submitted, need to be considered with respect to the objective seriousness of the offending.
The Respondent referred the Tribunal to the explanation given by the Applicant for his offending, namely that he was driven by money. He was motivated by the potential to earn more money and “lost his head.” It was submitted that he did not approach co-workers, his employer, the person who got him the job, or his daughter about how to conduct a full body massage. He alone decided the appropriate behaviour.
The Respondent submitted that, in cross-examination, the Applicant said that if a complainant objected he would stop. That is to be contrasted with the prosecution opening that the complainant repeatedly said no. Further, in relation to the second complainant, after the Applicant heard her say no, he still continued with his inappropriate touching.
The Respondent reminded the Tribunal of paragraph 13.1.1(1)(a) and (b) of the Direction and considering the nature and seriousness of the conduct. Sexual crimes are to be viewed very seriously, crimes of a violent nature against women are viewed very seriously regardless of the sentence imposed, and crimes committed against vulnerable members of the community are serious, and that regard should be had to the substantial custodial sentence imposed by the learned sentencing judge.
In terms of risk of reoffending, the Respondent submits that any risk is unacceptable. The Respondent referred the Tribunal to paragraph 13.1.2 of the Direction. It was submitted that anything but negligible risk is unacceptable and, albeit that the Applicant was assessed as a low risk of reoffending, he was at the highest end of risk within that criteria as confirmed by Mr Cummins. Hence, it was submitted that the risk was not negligible and a low risk still represents a reasonable possibility of reoffending.
The Respondent referred to the submission that the situational events leading up to the Applicant’s offending have been removed. Further, he will not work in a massage shop again. Irrespective of where employed, the Respondent reminded the Tribunal that pressing financial circumstances, the need to earn an income, debt to the government, and difficulty with the Australian language and culture, all arguably remain to some extent now and into the future.
In cross-examination, when asked why his conduct was wrong and why his conduct amounted to sexual abuse, the Applicant was unable to articulate why the conduct was wrong except for it being against the law. However, the Respondent submitted that sexual abuse is not confined to whether or not that conduct is against the law. The Applicant, it was submitted, was still unaware to a satisfactory degree of the gravemente of his conduct and lacked insight with respect to what is wrong as opposed to what is against the law.
The Respondent submitted that the Tribunal cannot be confident there is a negligible risk of reoffending and in all the circumstances this Primary Consideration should weigh heavily in favour of the Respondent.
Conclusion: Primary Consideration A
The Tribunal accepts that the Applicant comes from a difficult background in China, however he is not without a reasonable level of education and life experience, having remained at school until aged 16 years and subsequently spending some time in the Chinese army until aged approximately 26 years. He has also worked hard and had been gainfully employed in his own business.
Mr Cummins opined that there were situational factors which gave rise to the Applicant’s offending, which the Tribunal accepts. However, those factors do not excuse or mitigate the Applicant’s violation of two young women who placed their trust in him.
It is plain that the Applicant’s wife and daughter were shocked when they found out what he had done. There is no evidence of a psychological illness which might give adequate explanation for the Applicant’s offending.
In respect of the first complainant, the Tribunal finds the Applicant’s explanation that he did not hear her repeatedly say “no” unconvincing. In the Summary of Prosecution Opening, the prosecutor referred to the Applicant removing the complainant’s underwear, placing his finger into her vagina with a lot of pressure which hurt the complainant, and that she immediately sat up and said “no”. That reaction did not deter the Applicant. He said, in evidence, that she sat up and he placed his hand on her shoulder, and that he did not push her. He did not dispute that the complainant laid back down on the bed and he again inserted his finger in her vagina. Given the first complainant’s initial reaction to digital penetration by immediately sitting up on the bed, and even if he did not hear the word no, the subsequent digital penetration was reprehensible.
In respect of the second complainant, after the Applicant attempted to remove her underwear and she said “no”, the Applicant subsequently placed his hand underneath her underwear and rubbed her vagina three times.
The conduct of the Applicant in violating both women was very serious. They placed their trust in the Applicant to perform what should have been a pleasurable massage. Should the Applicant reoffend in a similar manner the nature of the harm caused to individuals or the Australian community would be very serious, including but not limited to psychological harm.
The Tribunal accepts that the Applicant is a person who is a low risk or reoffending, albeit that does not mean he is without risk. Further, the Tribunal accepts that if returned to the community, he will live with his wife, be employed in his daughter’s restaurant, and be surrounded by the support of his family.
The Tribunal has taken into account the Applicant’s exemplary behaviour in custody, that he has undertaken various courses, has embraced Catholicism and, for the reasons expressed, is now a low risk of reoffending. Nonetheless, it remains that the Applicant violated two young women when he was in a position of trust and, as the learned sentencing judge said, had destroyed the complainants’ happiness. The Tribunal finds that his offending was so serious that Primary Consideration A weighs heavily in favour of non-revocation.
Primary Consideration B: The best interests of minor children in Australia

Paragraph 13.2 of the Direction sets out the next Primary Consideration the Tribunal should have regard to and relevantly provides:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)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.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)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;
(d)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;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the con-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has two minor grandchildren born in Australia and aged four and two years old. Both grandchildren were born whilst the Applicant was in custody. The Applicant said in evidence that, should he be released into the community, he would help with the day-to-day care of his grandchildren. He has seen his grandchildren infrequently whilst in custody, sometimes every two to three months and sometimes every five months. However, he said that he speaks to them a lot by telephone.
The Applicant explained that the reason that his grandchildren do not visit more regularly is because his daughter has to travel a long distance by car to bring them to the prison. They are still very young and are noisy and unsettled when driving long distances in the car. He told his daughter that they did not have to come and see him. Nonetheless, he telephones his wife sometimes once a week, and sometimes five to six times per day, and will usually speak to his grandchildren on those occasions.
The Applicant’s daughter said that when she was pregnant with each of her sons, the Applicant would telephone and ask how she was going. She and the grandchildren speak with the Applicant all the time. When he sees his grandchildren, they enjoy each other’s company and they play well together. When they leave the prison, the eldest grandson always asks why his grandfather cannot come home with them.
The Applicant’s daughter explained that it was a five hour drive to take the grandchildren to see the Applicant. It is hard travelling with young children and, over the last 12 months, the Applicant has seen his grandchildren less than 10 times but he speaks to them regularly by telephone.
The Applicant’s daughter confirmed the proposed arrangements for the Applicant should he be returned to the community both in terms of working in her restaurant but also in caring for the grandchildren and spending more time with them. The Applicant’s wife gave similar evidence and that the Applicant is hoping to reunite with his family soon and make up for the loss of duties as a grandfather, father and husband.
The Applicant has not given evidence in relation to the best interest of other minor children born to members of his extended family. The evidence merely identifies their existence to which the delegate of the Minister at paragraphs 72 to 75 of the decision dated 10 July 2019 referred.
Conclusion: Primary Consideration B
The Applicant has two grandchildren who reside with their parents, namely the Applicant’s daughter and son-in-law. The children’s parents and the Applicant’s wife have the day-to-day care of both children.
The Tribunal has considered the best interests of each child separate from the other and finds that their respective interests are the same.
The Applicant has had little opportunity to engage and bond with his grandchildren. They were born when he was in custody. The Applicant is serving his sentence of imprisonment some distance from his family and his grandchildren and this has impeded his opportunity to interact with both grandchildren on a regular basis. He has had very little involvement in their upbringing.
Despite that limited interaction, the Tribunal accepts that the Applicant has a strong bond with both grandchildren. The Tribunal also accepts that there is a strong bond between the Applicant and his family members and it is their hope that he will return to the family, provide support in the restaurant business run by his daughter and wife, but also provide regular and ongoing care for the grandchildren during their minority.
The Respondent does not dispute that this Primary Consideration weighs in favour of the Applicant. However, the relationship is non-parental with periods of absence and limited opportunity for meaningful contact between the Applicant and his grandchildren. That, the Tribunal accepts, will change substantially should the Applicant be returned to the community.
The Tribunal accepts that the Applicant is likely to play a positive role in the upbringing of both grandchildren for a number of years until each child turns 18 years. Should the Applicant not be returned to the community, the impact upon both grandchildren will be initially distressing but there will be the opportunity to communicate by telephone and electronic media on a regular basis.
Accordingly, the Tribunal finds that in respect of the two minor grandchildren, Primary Consideration B ways moderately in favour of revocation.
As to the other minor children born to members of the Applicants extended family, there is no evidence that he plays a parenting role, or that there is an existing relationship or any meaningful contact with any one or more child. Nor is there evidence about the likelihood he will play any role in one or more of their lives in the future. The Tribunal notes the delegate of the Minister refers to the fact of those minor children, and that it is in their best interests to revoke the cancellation of the Applicant’s visa to enable them to have the opportunity to develop their relationship with the Applicant. The delegate noted that there was no indication that the Applicant plays any role in their lives and did not refer to them in his Personal Circumstances Form.
In the absence of evidence upon which the Tribunal can consider the best interest of each child as referred to in paragraph 13.2(4)(a) – (h), the Tribunal infers that there is the potential for benefit but cannot put it any higher. Accordingly, the Tribunal gives neutral weight to those additional minor children.
Primary Consideration C: Expectations of the Australian Community
Paragraph 13.3 of the Direction sets out the third of the Primary Considerations the Tribunal should have regard to and relevantly provides:
(1)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.
Further, paragraph 6.3(5) of the Direction provides:
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 for only 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.
The evidence in relation to this Primary Consideration is referred to above and need not be repeated at length. The expectation of the Australian community that the Applicant obey Australian laws has not been met. The offences for which the Applicant has been convicted are offences against two young women, in breach of trust, and are to be viewed very seriously.
Conclusion: Primary Consideration C
The Preamble in the Direction at paragraph 6.3 informs the Tribunal of the principles to be considered and involve character concerns with respect to the Applicant. The ability to come to, and remain in, Australia is a privilege and there is an expectation that a person will be law-abiding and not cause harm or threaten harm to members of the Australian community.
Paragraphs 6.3(2) and (3) make it clear that the Australian community expects the cancellation of a visa when a serious crime is committed in Australia, and a serious crime of a violent or sexual nature, particularly against women or vulnerable members of the community, should generally enliven an expectation that the privilege of staying in Australia will be forfeited.
Paragraph 6.3(5) is relevant in that Australia has low tolerance of any criminal conduct, particularly in circumstances where a person who has been participating in, or contributing to, the Australian community for a short period of time.
The Applicant faced personal and financial hardship in China and Australia. However, the Applicant’s serious offending against two young women occurred approximately five months after his arrival in Australia. He had only recently been employed. Whilst on remand, he had employment but he has now spent approximately five years in custody. The Applicant has participated in, and contributed to, the Australian community for a very short period of time.
Having regard to the whole of the evidence, the Tribunal accepts that the Australian community would have a low tolerance of the Applicant’s conduct and would expect the Applicant’s visa to be cancelled. Accordingly, this Primary Consideration weighs heavily in favour of non-revocation.
The Other Considerations
In deciding whether to revoke the mandatory cancellation of a visa, Other Considerations must be taken into account where relevant. These considerations, as set out in paragraph 14(1) of the Direction, 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; and
(e)Extent of impediments if removed.
The Tribunal will address these elements, where relevant, in turn.
Other Consideration 1: International non-refoulement obligations
The Applicant’s counsel submitted that although the Applicant had genuine concern about his ability to practice his Catholic faith should he return to China that concern is not such as to enliven Australia’s international non-refoulement obligations. The Tribunal has considered this concern in Other Consideration 5: Extent of Impediments if removed.
Hence, no evidence or argument was advanced in relation to non-refoulement obligations such that it is of relevance in determining the application.
Other Consideration 2: Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction provides that decision-makers must have regard to the following:
(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; and
(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, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australian indefinitely).
Factors relevant to this Other Consideration are detailed above and the Tribunal will not repeat those matters at length. As referred to above, the Applicant came to Australia with his wife in 2012 and began offending soon after his arrival. He was then aged approximately 52 years. Of the seven years that the Applicant has resided in Australia, he has spent five years incarcerated. He has not made any meaningful contribution to the Australian community.
The Applicant’s immediate family, namely his wife, daughter, son-in-law and two grandchildren, all reside in Australia. His daughter is now an Australian citizen, as are the Applicant’s grandchildren. The other immediate family members are permanent residents.
The Applicant’s explained his extended family as follows:
·two older sisters living in the outskirts of Beijing, each of whom have a daughter living in China;
·an older brother living in both China and Australia who has one daughter living in Australia and one daughter living in China;
·a brother living in Jiangsu, China who has a daughter who is an Australian citizen, and is the Applicant’s niece and author of statutory declaration Exhibit F;
·a brother living in Jiangsu, China who has a daughter living in Australia; and
·a sister who is married living in Australia with her husband and two children all of whom are Australian citizens and is the author of Exhibit D.
The Applicant explained that those family members who still live in, or have accommodation in China, do not have suitable accommodation within which he may reside. He cannot rely on them for support upon his return. In the case of one family member living in China, he has no ongoing communication.
The Applicant’s sister, the author of statutory declaration Exhibit D, described their family as follows:
I have four brothers, two sister, and seven nieces. Five of my siblings have their own family in Australia. They are either Australian citizens or permanent residents. Since the death of my parents, most of my brothers and sisters-in-law have been living in Australia. Currently, my nieces are all ready to apply for immigration or five-year residence for their parents in order to take care of them. My oldest niece is now living in China and she is going to send her child to Australia to study in the very near future, and she will accompany them here. So now all our family members, only the eldest sister’s child is in Beijing China, which is too far away from our hometown and my eldest sister and eldest brother-in-law has also lived in Beijing for a long time. Beijing is thousands of kilometres away from my hometown.
The Tribunal accepts that the Applicant has a continued relationship with the majority of his extended family, including those family members who either travel regularly to Australia, and with those nieces to whom the Tribunal has referred and who have provided statutory declarations to the Tribunal. The Tribunal accepts that his family ties now predominantly lie in Australia.
The Tribunal also accepts that his main ties are with his immediate family, namely his wife, daughter, son-in-law, and two grandchildren, all of whom are either Australian citizens or permanent residents which is confirmed by the intention upon release and his return to the community, the Applicant will reside with his wife, work in his daughter’s restaurant, and provide help and support for his two grandchildren.
The Applicant’s counsel submitted that he has no immediate prospects of employment in China and his future is very uncertain should he return.
The Tribunal accepts the Applicant’s wife’s evidence that she is a permanent resident and that should the Applicant return to China she will remain married to him but stay in Australia to be with her only daughter and two grandchildren.
Conclusion: Other Consideration 2
The Applicant’s familial ties lie predominantly in Australia. The Tribunal accepts that non-revocation will have an impact on the Applicant’s immediate family in particular. It will be very distressing for them and they will also lose the support he would otherwise provide to the operation of the daughter’s restaurant business and the care of his two grandchildren.
As for his extended family who are residents in Australia, the Tribunal has little evidence about the impact non-revocation will have upon them. Given their expression of support of the Applicant, the Tribunal infers they will be upset and disappointed by the non-revocation of the cancellation of his visa.
However, for the majority of the time that the Applicant has been in Australia, he has not lived with his immediate family and has been in custody. Hence, the weight that might be given to Other Consideration 2 is less than what otherwise might be given if he had been residing with his family and contributing to the family unit for the majority of the time he has been in Australia. Further, shortly after his offending, the Applicant and his wife separated, albeit under the same roof, and remained separated until they reconciled whilst the Applicant has been imprisoned.
Accordingly, having regard to the whole of the evidence, the Tribunal places medium weight to this Other Consideration in favour of revocation.
Other Consideration 3: Impact on Australian business interests
No evidence or argument was advanced in relation to Australian business interests such that it is of relevance in determining the application.
Other Consideration 4: Impact on victims
No evidence or argument was advanced in relation to the impact on victims such that it is of relevance in determining the application. The Tribunal has not had regard to the victim impact statements referred to by the learned sentencing judge in respect of this Other Consideration. Its relevance was only in respect to Primary Consideration A as discussed above.
Other Consideration 5: Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that decision-makers must have regard to the following where relevant:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The Applicant is soon to turn 60 years of age. He has suffered from health issues whilst in custody, including chest pains caused by stress. Mr Cummins, in his report dated 14 July 2014, said he developed symptoms of Adjustment Disorder with Anxiety. In his report dated 29 August 2019, he opined that the Applicants mental health will inevitably deteriorate if deported.

The Applicant says that, as a former Communist Party member who is nearly 60 years old and now a Christian, he will not be accepted by Chinese society and will not be guaranteed a decent standard of living. He will not have opportunity to gain employment. He would experience difficulty practicing his religion if returned to China.
The Applicant referred to an article headed “Jiangsu police detain entire Christian family”[18] which refers to uniformed police arriving at the home of a church member and taking his entire family. They were threatened and mocked. The article refers to similar detentions occurring in China. The Applicant’s counsel submitted that this issue does not enliven Australia’s international non-refoulement obligations, but was a matter of concern to be taken into consideration by the Tribunal in assessing this Other Consideration which the Tribunal has done.
[18] Exhibit A, G Documents, pages 181 – 183.
The Respondent referred to DFAT Country Information Report: People’s Republic of China[19] which says that Christian faith can be practised if not done so in a way to challenge the authority of the Chinese government. The Respondent submitted that practising Catholicism will be more challenging but not so significantly that it will be insurmountable. The practice of Catholicism is more readily acceptable the major cities, including Beijing.
[19] Exhibit B, Supplementary G Documents, pages 611 – 652.
The Applicant submits that to the extent that he has some family in China, they are unable to provide support and assistance upon his return. They have their own family to look after. The Applicant is going to have difficulty finding employment given he is nearly 60 years of age. He also has a heart condition which requires some monitoring.
The Respondent submits there is no language or cultural barrier to the Applicant returning to China; he has spent most of his life there. The Respondent submitted he will have some familial support, having at least two family members in Beijing and two currently in Jiangsu province. As for employment, he has experience as an electrician, plumber and a business owner. The Applicant has met the challenge of being in business before because he had to make a living. He was described by the Respondent as an enterprising man who will take steps to find employment and maintain a living standard. Nonetheless, the Respondent accepted that this Other Consideration weighs slightly in favour of revocation.
Conclusion: Other Consideration 5
The Applicant is currently 60 years of age and, if he remains in prison for his entire sentence, he will be approximately 61 years of age upon release. There are no substantial language or cultural barriers that would impact the Applicant upon returning to China as he has lived majority of his life there.
The Tribunal accepts that the Applicant has legitimate concerns about his ability to practice Catholicism in China. The Applicant said he will continue to practice his religion whether he remains in Australia or is returned to China. Should he return, it will be important for him to ensure he practices his faith in a way which does not offend the Chinese authorities and complies with their lawful expectations and requirements in religious practice.
The Applicant has a heart condition requiring monitoring but the Tribunal accepts that his chest pains are under control. He also suffers mental health issues which will be impacted upon by the continued revocation of his visa and his return to China. However the Tribunal infers that any health complaint will be adequately addressed within the health system in China.
The Applicant will have access to equivalent social security and other supports as other Chinese citizens. The Applicant’s daughter said that she would, if able, help her father financially, but that will be very dependent upon her own financial obligations, including caring for whom immediate family and providing support to her mother. Nonetheless, she will do what she can.
The Tribunal accepts that return to China will be difficult for the Applicant. It is likely that he will immediately feel isolated and economically challenged and that reintegration and economic stability will, upon his initial return, be difficult for a person of his age without support of family. However, he is not a stranger to China.
In regard to the whole of the evidence, the Tribunal finds this Other Consideration weighs slightly in favour of revocation.
There are no more Other Considerations that arise on the available evidence.
CONCLUSION
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Based upon the Applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction. Accordingly, the Tribunal finds:
(a)Primary Consideration A weighs heavily in favour of non-revocation;
(b)Primary Consideration B weighs moderately in favour of revocation;
(c)Primary Consideration C weighs heavily in favour of non-revocation; and
(d)The combined weight of Primary Consideration B and the Other Considerations is such that none of them, alone or combined, outweigh the significant weight that the Tribunal has attributed to Primary Considerations A and C.
The Tribunal therefore finds that, taking into account all of the considerations in the Direction, they do not weigh in favour of the non-revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal does not exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding 185 (one hundred and eighty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. J. Illingworth

............[Sgnd]..........................
Associate
Dated: 2 October 2019

Dates of hearing: 23 - 24 September 2019

Counsel for the Applicant: Mr Guy Gilbert

Advocate for the Applicant: Ms Huihan Lin

Solicitors for the Applicant: Chua Tan & Associates

Advocate for the Respondent: Ms Siran Nyabally

Solicitors for the Respondent: Australian Government Solicitor

[2019] AATA 4053

2 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Dates of hearing:	23 - 24 September 2019
Counsel for the Applicant:	Mr Guy Gilbert
Advocate for the Applicant:	Ms Huihan Lin
Solicitors for the Applicant:	Chua Tan & Associates
Advocate for the Respondent:	Ms Siran Nyabally
Solicitors for the Respondent:	Australian Government Solicitor