Mao and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2023] AATA 3182

Mao and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 3182 (9 October 2023)
Division:GENERAL DIVISION
File Number: 2023/5503
Re:Shanshan Mao
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:9 October 2023
Place:Melbourne

The Tribunal affirms the reviewable decision.
.........................[sgd]...............................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION - Mandatory visa cancellation – Chinese-born citizen of New Zealand – Class TY
Subclass 444 Special Category (Temporary) visa – fraudulent offending against Australian banks
failure to pass good character test – substantial criminal record – whether there is another reason
to revoke the mandatory cancellation – Ministerial Direction no. 99 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1958 (Vic)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Sentencing Act 1991 (Vic)
CASES

AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022]
FCAFC 175
Australian Securities and Investments Commission(ASIC) v PTLZ [2008] FCAFC 164
Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130

Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (2015) 331 ALR 68

Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595

Beezley v Repatriation Commission (2015) 150 ALD 11

Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021)

287 FCR 294

BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]

FCAFC 199

BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA

Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649

CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]

FCAFC 69

CPJ16 v Minister for Home Affairs [2020] FCAFC 212 [68]

Dickason v Dickason (1913) 17 CLR 50

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

DPP v Dong [2023] VCC 1040

DPP v Mao & Niu [2022] VCC 526

Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]

FCAFC 78

Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250

FYBR v Minister for Home Affairs (2019) 272 FCR 454

FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56

Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628

Hunt v Minister for Home Affairs [2021] FCA 507

HZCP v Minister for Immigration and Border Protection [2018] FCA 1803

Jagroopv Minister for Immigration and Border Protection (2016) 241 FCR 461

John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465

Marazano v Minister for Immigration and Border Protection (2016) FCA 1180

Marazano v Minister for Immigration and Border Protection (2017) 250 FCR 548

Maxwell v R (1996) 184 CLR 501

Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180

Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021]

FCAFC 133

Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Viane (2021) 395

ALR 403

Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354

Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234

Murphy v Minister for Home Affairs [2018] FCA 1924

Nathanson v Minister for Home Affairs (2022) 96 ALJR 737

Nathanson v Minister for Home Affairs [2022] HCA 26

Negri v Secretary, Department of Social Services [2016] FCA 879

Niu and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 2478

Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym)

[2022] FCAFC 160

Paewai and Minister for Immigration, Citizenship, and Multicultural Affairs [2023] AATA 2978

Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497

Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219;

Polites v Commonwealth [1945] 70 CLR 60

Re Tennant and Secretary, Department of Social Services (2014) 140 ALD 677

Rewiri and Minister for Immigration, Citizenship, and Multicultural Affairs [2023] AATA 3001

RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295

FCR 365

Salah (formerly HGMZ) v Secretary, Department of Social Services [2022] FCAFC 186

Shanshan Mao v The King; Shaojing Niu v The King [2022] VSCA 211

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Sundrampillai v Minister for Immigration, Local Government and Ethnic Affairs (1992) 29 ALD 479

Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545

Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)

[2021] FCAFC 81

Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424

Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285

FCR 187

Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531

Secondary Materials
Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation
under s501 and revocation of a mandatory cancellation of a visa under s501CA
Sentencing Advisory Council (Vic), ‘Imprisonment’, (Web Page, 28 April 2022)
< on the Rights of the Child (opened for signature 20 November 1989, 1577 UNTS 3,
entered into force 2 September 1990)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
9 October 2023
INTRODUCTION

This application relates to the Respondent’s decision not to revoke the mandatory cancellation of Ms Mao’s Class TY Subclass 444 Special Category Visa (“the visa”).
The hearing was held at the Tribunal’s Melbourne Registry on 26 and 27 September 2023. The Applicant was legally represented until 21 August 2023 when her lawyers lodged a notice of ceasing to act. She was self-represented at the hearing. The Respondent was represented by Ms Shauna Roeger from the Australian Government Solicitor.
For the following reasons the Tribunal affirms the reviewable decision.

LEGISLATIVE FRAMEWORK

Section 500(1)(ba) of the Migration Act 1958 (Cth) (“the Act”), read in conjunction with s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), establishes the Tribunal’s jurisdiction.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a visa granted to a non-citizen if the Minister is satisfied the person does not pass the character test. The ‘character test’ is defined in s 501(6) of the Act:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); …
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record, including if the person has been sentenced to a term of imprisonment of 12 months or more.[1]
[1] The Act, s 501(7)(c).
Under s 501CA(3) of the Act the Minister must provide notice of the cancellation decision as soon as practicable, and invite the affected person to respond.
Section 501CA(4) of the Act confers a power on the Minister or their delegate to revoke the original decision if the non-citizen makes representations in accordance with the invitation extended to them. The Minister must either be satisfied the person passes the character test or there is another reason why the original decision should be revoked as follows:
(4) 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.
The Minister must revoke the cancellation if satisfied that one of the relevant requirements in paragraphs (4)(b) exists. [2]
[2] Marazano v Minister for Immigration and Border Protection (2016) FCA 1180, [48] (Moshinsky J), as affirmed in Marazano v Minister for Immigration and Border Protection (2017) 250 FCR 548.

BACKGROUND

The Applicant was born in China in 1980 and moved to New Zealand in 2001 to undertake tertiary study. Her partner, Mr Shaoijing Niu, commenced his own studies in New Zealand a year earlier. They each completed an undergraduate degree, were married in 2003, had four children, and became New Zealand citizens.[3] The Applicant’s parents and sister migrated to New Zealand in about 2010-2011 and continue to live there.[4] While living in New Zealand the Applicant worked as a banker for over eight years, while Mr Niu worked as a locksmith.[5]
[3] Exhibit R1, p. 84.
[4] Ibid 37, at [34]; 78; 153.
[5] Ibid 80; Exhibit A1 [3].
In January 2014, the Applicant and her family migrated to Australia for ‘improved career opportunities’.[6] She worked at Westpac Bank for about eight months and then as a loan manager with ANZ Bank between September 2014 and November 2018.[7] Mr Niu found work as a locksmith.[8]
[6] Ibid 55; 66.
[7] Exhibit R2, 140 [21].
[8] Exhibit A1, 1 [3].
In 2015, soon after arriving in Australia the Applicant and Mr Niu commenced a criminal enterprise. They lodged multiple bank loan applications to secure funding for property investment and development projects. False claims were made about Mr Niu’s employment, assets, and liabilities.[9] A corporate entity was established through which some property transactions passed.[10] The criminal enterprise was discovered by an ANZ Bank investigator, following which the Applicant’s employment with the Bank was terminated.[11]
[9] Exhibit R1, 32
[10] Exhibit R2,195.
[11] Exhibit R1, 31 [2].
On 19 February 2019, unexplained wealth restraining orders were made in the County Court over seven properties and three bank accounts held by the Applicant and Mr Niu.[12]
[12] Exhibit R2, 106.
On 19 July 2021, the Applicant and Mr Niu pleaded guilty at a committal mention and were later convicted on 4 March 2022 in the County Court of Victoria on eight counts of Obtain financial advantage by deception.[13] The Court found the total financial advantage obtained was $9,027,833.51, which was derived by ‘using outright lies, deliberate omissions and fraudulent documents’.[14] The Applicant received an aggregate sentence of three years’ imprisonment,[15] while Mr Niu was sentenced to two years and four months imprisonment.[16] A co-offender, who provided fraudulent employment documents for Mr Niu, was sentenced to eight months’ imprisonment.[17]
[13] DPP v Mao & Niu [2022] VCC 526.
[14] Exhibit R1, 38 [44].
[15] Ibid 29.
[16] Ibid 50 [99].
[17] Ibid 35 [24], [26]; DPP v Dong [2023] VCC 1040.
On 4 July 2022, a delegate of the Respondent cancelled Mr Niu’s visa. On 9 June 2023, another delegate decided not to revoke this decision.
On 18 July 2022, the Applicant’s visa was also mandatorily cancelled.[18] She made representations to have this revoked, but on 19 July 2023 the Respondent declined to do so (“non-revocation decision”).[19]
[18] Ibid 56.
[19] Ibid 9.
On 27 July 2023, the Applicant asked the Tribunal to review the non-revocation decision.[20]
[20] Ibid 1.
On 11 August 2023, the Tribunal, differently constituted, affirmed the non-revocation decision in Mr Niu’s matter.[21] He departed Australia on 13 September 2023 and is currently residing in New Zealand at the Applicant’s parent’s residence.
[21] Niu and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 2478.
On 11 September 2023, the Applicant was released on parole and immediately taken into immigration detention where she has since remained.
On 30 September 2023, an appeal lodged by the Applicant and Mr Niu against their sentences was refused by the Supreme Court of Victoria, Court of Appeal.[22]
[22] Shanshan Mao v The King; Shaojing Niu v The King [2022] VSCA 211 (Beach and T Forrest JJA); Exhibit R2, 135.
Under s 500(6L) of the Act, the Tribunal must decide this application within 84 days of the Applicant being properly notified of the reviewable decision. If this does not occur, the decision is affirmed by operation of law. The 84^th day in this matter falls on 11 October 2023, which is eight working days after the hearing ended.

CONFIDENTIALITY REQUEST ANONYMS

On 25 September 2023, the Applicant requested that her application be heard in private, and a confidentiality order imposed. Her concerns related primarily to the impact of further media coverage on her children. She made oral submissions regarding the necessity for a confidentiality order at the commencement of the hearing. Ms Roeger submitted that the Tribunal’s default position is to hold public hearings.
After hearing from both parties, the Tribunal declined the confidentiality request, gave ex tempore reasons, and undertook to provide written reasons. These now follow in accordance with the requirements of section 43(2B) of the AAT Act. In providing them the Tribunal has applied the reasoning of Justice Bromberg in Negri v Secretary, Department of Social Services [2016] FCA 879, which considered the extent to which the Tribunal could elaborate upon its oral reasons when producing written reasons. His Honour stated at [27]:
‘...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).’
With certain statutory exceptions such as s 501K of the Act, there is a presumption that Tribunal hearings are in public.[23] This is adopted in the interests of transparency and public awareness. Any departure from open hearings must be justified beyond ‘mere belief’’[24] or factors such as ‘embarrassment, inconvenience, annoyance or unreasonable or groundless fears’.[25] The Tribunal respectfully adopts the reasoning of Emerita Professor Robin Creyke AO who, as a Senior Member of this Tribunal, stated:[26]
‘…The Tribunal has discretion to decide that…the name of witnesses or parties should be suppressed, but only if satisfied that the circumstances fall within the terms of s 35(2), and that there are cogent reasons for doing so. That principle is based on the public interest in ensuring that proceedings before the Tribunal are conducted openly. That principle reflects the need for the Tribunal to establish that it is accountable to the public which funds its operations, and that the Tribunal is “providing a mechanism of review that is fair, just, economical, informal and quick”, the overarching objectives of its operations under the AAT Act’.
(Footnote removed.)
[23] Australian Securities and Investments Commission (ASIC) v PTLZ [2008] FCAFC 164, [39] (Black CJ, North and Downes JJ).
[24] John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 477 (McHugh JA).
[25] Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 81, 11; [14], [18] (McKerracher, White and Stewart JJ), citing Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) (2015) 331 ALR 68 [30] (Foster J); Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 [50] (Colvin J), citing Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649 [11]-[15].
[26] Re Tennant and Secretary, Department of Social Services (2014) 140 ALD 677 [18].
Professor Creyke drew upon the reasoning of the Full Court of the Federal Court of Australia in Australian Securities and Investments Commission v Administrative Appeals Tribunal, [27] where their Honours stated:
‘…Although s 35(1) is subject to the balance of the section, it establishes a norm…that the proceedings before the AAT shall be in public. This norm is reinforced by the requirements of s35(3)…It follows that when deciding whether it is satisfied that it is desirable to exercise its powers under s35(2), the AAT is required to form a state of satisfaction which recognises the existence of the norm and the values it is intended to protect. This, no doubt, is why Brennan J in Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 510 described the power in s35(2) to depart from this norm as one to be exercised “sparingly.” …
Suppression orders are rarely made in courts, even though publicity undoubtedly disadvantages the parties…In the AAT itself facts which parties would not wish to be published and which may disadvantage them are frequently published…The reason these matters are not kept secret is the overriding importance of justice being administered openly and in public…
When measured against the existence of the norm of a public hearing…it is apparent that the AAT would need some cogent reason by reference to the particular case to depart from the ordinary requirement of a public hearing. It is difficult to accept that harm (even serious harm) to the recipient’s reputation resulting from public awareness of the banning order will be a sufficiently cogent reason to justify the grant of a stay in most cases...
[27] Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130, [74]-[76] (Moore, Downes and Jagot JJ).
The Full Court’s reasoning in Salah is also apposite to confidentiality requests in judicial and Tribunal proceedings:[28]
‘A person who wishes to litigate a proceeding before a court of law does so in light of, and subject to, the principle of open justice. Suppression or non-publication orders, including the use of pseudonyms, must be applied only in circumstances where such an order is necessary in the interests of justice (Dickason v Dickason (1913) 17 CLR 50 at 51 per Barton ACJ, with whom Isaacs, Gavan Duffy, Powers and Rich JJ agreed) or the person’s circumstances otherwise satisfy one or more of the grounds in s 37AG(1) of the Federal Court Act or a pseudonym is required by statute, such as s 91X of the Migration Act 1958 (Cth).’
[28] Salah (formerly HGMZ) vSecretary, Department of Social Services [2022] FCAFC 186, [8] (Rares, Katzmann and Cheeseman JJ), citing with approval Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) [2022] FCAFC 160 (Rares, Perry and Hespe JJ).
The Tribunal noted that a confidentiality order was not applied for the Applicant’s and Mr Niu’s joint criminal proceeding. The Court’s reasons for decision were published without restriction. Mr Niu’s August 2023 application before the Tribunal was also decided without a confidentiality order and the presiding member has published written reasons.
After considering the parties’ submissions, the Tribunal concluded that the reasons advanced for a confidentiality order were insufficiently cogent to depart from the default position of a public hearing, public availability of evidence, and publication of the decision.

ISSUE TO BE DETERMINED

Because of the three-year sentence of imprisonment imposed on the Applicant on 4 March 2022, she has a substantial criminal record and fails the character test. She cannot therefore rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
The issue to be determined under s 501CA(4)(b)(ii) of the Act is whether the discretion to revoke the cancellation decision is enlivened by satisfaction that there is ‘another reason’ to do so.[29] The Full Court in Bettencourt[30] reflected with approval upon the approach in Viane,[31] about how this evaluative decision is made. Their Honours summarised the following principles at [27]:
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
[29] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[30] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294.
[31] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).

More recently, in Plaintiff M1/2021,[32] the plurality of the High Court stated how representations made under s 501CA(4) of the Act should be approached:
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations…the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
(Citations omitted).
[32] Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (‘Plaintiff M1/2021’), [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ).

DIRECTION 99

The Tribunal must address the question of whether there is another reason for revocation in compliance with a ministerial direction made under s 499(1) of the Act known as ‘Ministerial Direction 99’ (“the Direction”).[33] This commenced on 3 March 2023. The Tribunal ‘stands in the shoes of the original decision-maker’ and must make ‘the correct or preferable decision’[34] based on the material currently before it.[35] At the commencement of the hearing the Tribunal took the Applicant through key parts of the Direction and the procedure to be adopted for the hearing, which the Applicant said she understood.
[33] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 497, [4] (Rares, O’Callaghan and Jackson JJ); Nathanson v Minister for Home Affairs [2022] HCA 26 (‘Nathanson’), 2 [4].
[34] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]-[98] (Hayne and Heydon JJ) (“Shi”); Nathanson v Minister for Home Affairs (2022) 96 ALJR 737.
[35] AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175, [25] (Wigney, Abraham and Rofe JJ); Nathanson; Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Beezley v Repatriation Commission (2015) 150 ALD 11, [68]; Shi at 299 [40], 315 [100], 324-325 [134].
The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision. Clause 8 of the Direction identifies the following primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The strength, nature, and duration of ties to Australia;
(d)The best interests of minor children in Australia;
(e)Expectations of the Australian community.
Clause 9 of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations’. This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[36]
[36] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’. The weighing process, however, is left to individual decision-makers.[37]
[37] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57].

EVIDENCE
Documentary evidence

The following documents were taken into evidence at the hearing:
(a)G-Documents numbering 212 pages;[38]
[38] Exhibit R1.
(b)Tender Bundle numbering 195 pages;[39]
[39] Exhibit R2.
(c)Applicant’s six-page statement dated 1 September 2023, a further five-page statement dated 21 September 2023, six pages of reply submissions dated 21 September 2023, and a five-page Statement of Facts, Issues, and Contentions (“ASFIC”);[40]
[40] Exhibit A1.
(d)Applicant’s tax information for financial years between 2014 to 2019;[41]
[41] Exhibit A2.
(e)A letter and statement dated 1 September 2023 from Mr Ahmed Dirani and Mr Hassan Dirani, owners of a bakery and café business;[42]
[42] Exhibit A3.
(f)Statement from C1 dated 4 September 2023 and Notification of Approval of Australian Citizenship dated 2 September 2023;[43]
[43] Exhibit A4.
(g)Statement from C2 dated 3 September 2023;[44]
(h)Statement from C3 dated 3 September 2023;[45]
(i)Letter from Dr Marietta Martinovic of RMIT University dated 28 August 2023 and a further one-page letter from Dr Martinovic dated 21 September 2023;[46]
(j)Letter of support dated 19 July 2023 from Ms Rachel Tobias of Mortgage Stress Victoria;[47]
(k)Statement from Ms Tegan Cottell-Moore dated 29 August 2023, with an annexed summary of the Applicant’s work in the kitchen area at Dame Phyllis Frost Centre;[48]
(l)Letter of support dated 29 August 2023 from Ms Linda Moore, Department of Justice, and Community Safety;[49]
(m)Letter of support dated 29 August 2023 from Ms Chloe Stone, Department of Justice, and Community Safety;[50]
(n)Letter from the Kitchen Supervisor at Dame Phyllis Frost Centre (“DPFC”), Mr Shane Riordan, dated 1 September 2023, with accompanying extract about the Applicant’s kitchen performance;[51]
(o)Letter from clinical psychologist Ms Amanda Wallis dated 21 September 2023;[52] and
(p)Applicant’s Parole Order dated 8 September 2023.[53]
[44] Exhibit A5.
[45] Exhibit A6.
[46] Exhibit A7.
[47] Exhibit A8.
[48] Exhibit A9.
[49] Exhibit A10.
[50] Exhibit A11.
[51] Exhibit A12.
[52] Exhibit A13.
[53] Exhibit A14.

Witnesses

The Applicant’s children are referred to in these reasons as C1, C2, C3, and C4, in descending age order. The Applicant’s oral evidence was heard on the first hearing day and part of the second. She is fluent in Mandarin and English and did not require an interpreter. On the second hearing day, oral evidence was heard from C1, Associate Professor Martinovic, and Mr Ahmed Dirani.
The Applicant adopted her statements as true and correct. She stated that Mr Niu was deported to New Zealand on 13 September 2023 and currently resides with her parents. She referred to a ’standard [parole] condition’ imposed by New Zealand authorities that currently precludes contact between them as co-offenders. The Applicant lodged a document, at the Tribunal’s request, from the Chief Executive of New Zealand’s Department of Corrections, referring to conditions Mr Niu must abide by. He is unable to communicate with the Applicant without ’prior written approval of a probation officer’. This condition remains in force until at least 26 October 2023. There is no restriction on the children contacting Mr Niu and they are in daily contact with him.
The Applicant said Mr Niu assisted with her current application while in Australia, but not since being deported. She said any decisions about her family’s future await a decision on her current application.

Life in China and New Zealand

The Applicant recalled undertaking a year of undergraduate study in China towards a degree in economics before continuing her studies in New Zealand. Mr Niu had already arrived there in 2000 and the Applicant joined him in 2001. Both studied business and economics. The Applicant said her parents migrated to New Zealand in approximately 2010 and her sister a year later in 2011.
The Applicant applied for jobs in New Zealand after completing her degree in 2004 and initially did some vehicle testing work before being employed by New Zealand Post. She progressed from teller duties to a lending manager role in 2008. Mr Niu worked as a locksmith and started his own business. The couple purchased and renovated three homes in New Zealand to accommodate their growing family needs. The Applicant said her income was similar to Mr Niu’s until around 2013 when she started to earn more. She recalled that difficulties with Mr Niu’s business and cultural issues caused stress, arguments, and a significant deterioration in her mental health. The decision to migrate to Australia was intended to provide a fresh start with new opportunities.

Life in Australia

The Applicant said C1 settled into primary school and the younger children were ‘adaptable at that stage and easy to settle in’. The Applicant worked for Westpac Bank for about eight months as a Home Finance Manager before being ‘head-hunted’ by ANZ Bank in 2014 on a ‘considerably higher salary’. She recalled her base salary in 2015 was approximately $125,000 and additional remuneration was provided through bonuses. The Applicant estimated Mr Niu earned approximately $60,000 annually as a locksmith.
The Applicant said she and Mr Niu are the title holders of a home they purchased after arriving in Australia for $1.7 million or $1.8 million. She claimed, however, that her mother-in-law is the equitable owner after providing approximately $900,000 towards the purchase. When asked about evidence for this the Applicant said it is an informal arrangement.

Offending and its consequences

The Applicant agreed that the criminal enterprise commenced in 2015 while she was in a stable and high-paying job, in secure accommodation, and with four children relying on her for support. The Applicant recalled meeting the co-offender who provided fraudulent documents in late 2014, which was around the time Mr Niu started talking about property development. She and Mr Niu discussed his intention to purchase an initial property, but the Applicant denied he told her that a loan of more than $1 million was required for this transaction. When asked if she was a director of a company established for such property transactions, the Applicant agreed she was. She also agreed that her work as a banker gave her insight into the criteria applied in deciding loan applications. She claimed, however, that Mr Niu ‘never talked to [her] about how to finance’ the first property. The Applicant could not recall signing the first loan application in June 2015 but agreed she must have because her signature was on the form. When put to her that this lack of recall was unusual given her husband was embarking on a new career with a significant initial purchase, the Applicant said this was because some loan applications were physically signed, and others authorised by electronic signature.
When asked if it was a coincidence that Mr Niu lodged the first loan application with the ANZ Bank, who she worked for at the time, the Applicant responded: ‘ANZ is one of the major banks. It doesn’t surprise me he chose that bank’. She denied he did so because of her familiarity with its loan processing system, or that he sought her help with the loan. The Applicant stated Mr Niu ‘has a lot of knowledge in this area’ having completed a ‘bachelor’s degree in financial economics’ and previously bought and sold several properties in New Zealand. When referred to a list of exhibits from her criminal proceeding that included an email from her to Mr Niu attaching a blank home loan application form,[54] the Applicant agreed she sent him this to complete.
[54] Exhibit R2, 33.
The Applicant recalled a conversation with Mr Niu around the time he was contemplating the purchase of a second property in late 2015. She claimed to have resisted this because growing debt made her ‘stressful’ and she preferred more ‘liquid’ assets. She claimed Mr Niu told her to focus on her own job because the investment business was ‘his thing’. The Applicant agreed her confidence in Mr Niu’s property investment grew over time, including because he reassured her about the affordability of repayments and the growing capital value of investments: ‘He said there’s lots of money in the offset account. You don’t need to use your wages or my wages during the period of the development’.
The Applicant denied she and Mr Niu were under any financial stress during the criminal enterprise and said they ‘always had plenty of surplus’. When asked about references in loan documents to a car worth more than $60,000 and home contents worth more than $100,000, the Applicant claimed: ‘those things were pre-populated by the bank’, invented by the bank, and contained ‘numerous errors’. She stated: ‘We just signed the application forms’, which is the ‘biggest mistake [she] made’.
The Applicant claimed the other co-offender gave Mr Niu the idea for the criminal enterprise. When challenged by Ms Roeger that the Court did not accept this claim, she responded: ‘I didn’t read that part’. The Applicant also claimed she never asked Mr Niu what pay slips he provided with the loan applications because he told her this was ‘his business’. She conceded, however, she may have ‘turned a blind eye to help him advance his business’. At one point in her evidence, the Applicant referred to sensing ‘as a banker’ that their income meant they ‘couldn’t afford all these loans’ but claimed the ‘banks made it easy’. The Applicant also submitted she was ‘in denial and trapped in the situation…I thought I’d sign and let him do what he wants’. She said it was around the time of the second loan that she realised Mr Niu would not have gotten the loan approved unless he was doing something ‘dodgy’. She claimed that her lack of action was because of stress and being ‘stupid enough to ignore everything’. She stated: ‘At the time I signed these documents I was in denial and unconsciously made the wrong decision’. She referred to certain stressful events in her life in 2015 and cultural pressure to assist Mr Niu without question. She agreed, however, she could have refused to sign the loan applications if she genuinely wanted to stop participating. The Applicant did not provide a meaningful response to Ms Roeger’s question about how the stressful events in her life in 2014 and 2015 were contextually relevant to her offending continuing for more than two-and-a-half years into 2018.
The Applicant agreed she was represented by senior counsel at her criminal proceeding and by another barrister when appealing her sentence but claimed she did not raise cultural issues and pressures because she and Mr Niu were represented by the same barrister. The Applicant also claimed the consequences of pleading guilty were never explained to her, that senior counsel never sought a sentencing indication, that she was informed a Community Corrections Order was ‘within range’ instead of imprisonment, and that either she or Mr Niu would be released to care for their children. She claimed: ‘I didn’t meet [senior counsel] until a week before sentencing. He didn’t go through any of those things with me. I never met the appeal barrister. I spoke to him once or twice briefly’.

The Applicant said the narrative she presented to the Tribunal at this proceeding is ‘true and correct, even if it appears contradictory to [her] earlier claims’.
In terms of the tax information tendered, the Applicant said a component of her returns was work-related income, while the capital gains component (i.e. $131,970 in 2017) was derived from the criminal enterprise. The Applicant agreed that a large portion of her FY 2018/19 taxable income of $490,669 was from the fraudulent property development activities. In 2019 when the properties and bank accounts were restrained, the Applicant recalled she and Mr Niu still had four properties in various stages of development. She disagreed with Ms Roeger that the ANZ Bank’s discovery of the fraudulent loan applications in 2018 is what caused the criminal enterprise to cease. She claimed there would have been no further need for fraudulent loan applications because by that time they had sufficient capital. She also claimed the loans taken out were ‘well secured and would have been paid back’.
When referred to the sentencing remarks about her and Mr Niu being partners who benefitted jointly, the Applicant insisted ‘there was no actual benefit that came to me or my husband’ from the criminal enterprise. When asked if she was forthright with police when first interviewed the Applicant responded: ‘No’. She explained this was because of ‘family trauma, stress’, and a sense of shame. She recalls feeling scared, which caused her to deny knowledge of the payslips Mr Niu used to secure the loans, because her ‘instinct was to deny’. The Applicant was asked about her reference during oral evidence to her offending as an ‘unconscious act,’ which conflicted with the motivation she previously expressed about wanting to improve her ‘family’s financial position and future’.[55] She said this was a ‘language problem’ and her intention was to convey a desire to help Mr Niu establish a successful business. She equivocated on this point in her evidence, however, by concurrently claiming: ‘But the main drive was to keep him away, so he doesn’t give me any more pressure’. She again elaborated on cultural forces in play, including that in China the man is the predominant partner and women must keep their ‘voice low’. The Applicant was challenged that her current narrative conflicted with her previous documentary claim:
‘The relationship I have with my husband is one that is full of love, happiness, trust, integrity and so much more that words cannot possibly describe…
We strongly believe that the relationship my husband and I have and the appreciation we have for one another is what has projected our children towards such prosperous paths in life’.
[55] Ibid 88.
When asked which narrative is true, the Applicant responded: ‘what you’re hearing today is correct’. She denied telling her lawyer that her relationship ‘is full of love, happiness, trust, integrity’ and claimed: ‘I didn’t read everything’.
The Applicant was asked about a reference in her evidence that contextualised her offending as a victimless crime and ‘foolish errors of judgement in doing what 60% of other Australian mortgage applicants do, namely overstated my husband’s income in mortgage application documents’. She said the sentencing judge referred to ‘no human victim’ and she sourced the 60% statistic from a newspaper. When challenged that investment loans over $9 million were different to a residential loan application, the Applicant responded: ‘The article didn’t give a breakdown of how many were purchasing investment properties’. When asked what point she was trying to make with this comparison, the Applicant said it was made in the context of her hoping that ‘the Department will not cancel my visa [because such conduct] happens so commonly’.
On the second day of the hearing, when given an opportunity to make submissions in re-examination, the Applicant said she did not intend to downplay her crime by making the 60% reference but insisted there is ‘no victim right now’ of her offending.

Recidivism risk

The Applicant contends there is only a low and negligible risk of her reoffending, which is reflected in the Adult Parole Board’s decision to release her. She also referred to positive references tendered on her behalf.[56] The Applicant said the consequences of her crimes included the loss of all previous ‘advantages’ and the five years she spent on ‘legal battles’, imprisoned, and in detention are a ‘tremendous lesson’.
[56] Exhibits A7 – A12.

Rehabilitation

The Applicant referred to counselling from a social worker at Mortgage Stress Victoria on a monthly or bi-monthly basis because she was previously ‘behind’ in loan repayments.[57] This conflicted somewhat with C1’s later evidence who said she paid the mortgage in a NAB account each month by transferring money from a Westpac account in her parent’s names. She thought the Westpac account has a balance of ‘$100,000-ish’ but was uncertain. C1 initially agreed to provide screenshots of the online account at the Tribunal’s request to establish a more reliable balance, which is discussed later in C1’s evidence.
[57] See Exhibit A8.
The Applicant said she consults with a counsellor from the Western Centre Against Sexual Assault (“WestCASA”) who helped her adjust after imprisonment. They meet fortnightly or so for an hour and discuss issues like personal development, family contact, and techniques to address stress and anxiety. When asked by Ms Roeger about other therapeutic relationships, the Applicant recalled seeing a psychologist in 2016 or 2017 for three or four sessions because of work stress and also consulted with a sleep specialist for insomnia. She recalled being taught sleeping techniques and being prescribed ‘tablets to treat anxiety’ but only took them ‘a couple of times’ because they made her feel worse.
The Applicant said she is yet to meet psychologist Ms Amanda Wallis, who A/Professor Martinovic has arranged to provide offence-specific rehabilitation. She said the prospect of a therapeutic relationship with Ms Wallis demonstrates her ‘willingness to rehabilitate’.

Interests of children

Much of the Applicant’s evidence centred on her children. She said the care arrangements after she and Mr Niu were imprisoned were rushed because they were expecting at least one of them could stay in the community to look after them. Her parents flew over from New Zealand to assist. Her mother-in-law, who resides in China, is currently in Australia to also assist. The Applicant said there has always been at least one adult with the children. Neither the Applicant’s parents nor parents-in-law were called as witnesses.
The Applicant said C1 brings the younger children to visit her every two or three weeks depending on their study and other commitments. She also speaks with them daily on the telephone or via videocalls. When asked about documentary submissions from her previous lawyer relating to the Convention on the Rights of the Child,[58] the Applicant said she was unaware of this.
[58] Ibid 119.
The Applicant said C1 has shouldered a heavy burden in helping her grandparents care for the younger children and attended to myriad tasks normally done by parents. She said C2 and C3 variously underwent counselling sessions with Headspace and/or a psychologist.[59] The Applicant claimed C4 is exhibiting symptoms of ADHD but agreed this is still under investigation and there is no formal diagnosis. No expert evidence was provided to corroborate C4’s symptoms or continuing treatment needs for C2 and C3. The Applicant said all four children are ‘adamant’ they don’t want to leave their friends, school, and teachers in Australia. The Applicant does not think C1 is old enough to look after three younger siblings on her own and C4 is too young to remain here without adult supervision. The Applicant is inclined to force her to return to New Zealand, despite C4’s wishes, in the event of an adverse decision.
[59] Ibid 147.
When asked who has funded the children’s education since her imprisonment, the Applicant said the youngest ones are on means-tested scholarships at a private school where the additional annual costs are approximately $36,000. She paid the fees until recently but claimed her sister in New Zealand has paid the most recent fees. She said her sister is unable to continue this in the longer term because she is expecting her own child. There is no reference to the school fee arrangement in her sister’s statement and her sister was not called as a witness. The Applicant agreed that if she was repatriated to New Zealand there is no impediment to her children, who are New Zealand citizens, living in New Zealand with her and Mr Niu, or visiting whenever they wished.

Contribution to Australia

The Applicant said she made a positive contribution to the community through employment, paying taxes, and raising her children. She said her efforts assisted hundreds of people to settle into homes or re-finance mortgages to a better rate. She also distinguished between tax from her bank salary and income from the criminal enterprise.

Intentions if released in Australia

The Applicant said she would live with her children if allowed to remain in Australia. There is nothing stopping her from immediately returning to work, which she aspires to do. Mr Dirani has offered her employment as a baker after seeing photographs of baked goods she produced in the prison kitchen. The driving distance from her home to the café is approximately one hour and she expects to earn around $30 per hour. The Applicant said a fellow prison inmate, who knows Mr Dirani, put her in touch with him. She hopes to set up her own baking business in the future. When asked if she has any formal qualifications as a baker or chef the Applicant said she does not. Even though Mr Dirani’s offer is a three-month trial, she expects this will continue. The Applicant said that with her and C1’s income, coupled with support from her parents, and eligible Government payments, they can ‘survive’. When asked about her Australian superannuation account, the Applicant said she has approximately $80,000 but claimed to have no other savings.

Intentions if returned to New Zealand

The Applicant agreed New Zealand has a similar culture to Australia. She has returned several times and her parents and sister live there. She said repatriation would be a completely different context to past international moves because of her convictions.
When asked if she would stay with her parents in New Zealand, the Applicant said this was not possible because Mr Niu lives there, and his parole conditions preclude contact. She said this may be varied by Court order. The Applicant is unable to stay with her sister who lives with her husband at her mother-in-law’s home. The Applicant has not given much thought yet to where she will live and work if returned to New Zealand. She agreed that employment had not been difficult for her in the past but the circumstances after her convictions make this much harder.

Legal consequences if removed

The Applicant referred to three previous Tribunal cases,[60] claiming they were apposite to her circumstances and that ‘some weight’ should be given to revocation. The Tribunal noted that submissions under this consideration were not previously made, and it could not have regard to information presented orally in support of a non-citizen’s case unless the information is set out in a written statement and given to the Minister at least two business days before the hearing.[61] The Respondent made submissions regarding these three cases in closing, including about their lack of relevance to the Applicant.
[60] Rewiri and Minister for Immigration, Citizenship, and Multicultural Affairs [2023] AATA 3001 (“Rewiri”); Tuivaiti and Minister for Immigration, Citizenship, and Multicultural Affairs [2023] AATA 3001 (“Tuivaiti”); Paewai and Minister for Immigration, Citizenship, and Multicultural Affairs [2023] AATA 2978 (“Paewai”);
[61] The Act, s 500(6H).

Evidence of C1

C1 adopted her statement as true and correct.[62] She confirmed that she retains New Zealand citizenship and had recently been notified that her Australian citizenship application was approved. She is currently awaiting advice about a conferral ceremony.
[62] See Exhibit A4.
C1 said she returned to New Zealand ‘maybe once a year or every two years’ to visit relatives but would not return there permanently despite Mr Niu’s recent removal and irrespective of the decision in the current matter. She wants to finish the undergraduate degree she recently changed to, which is anticipated by the end of 2025. She then wants to pursue a life and career in Australia, including an aspiration for research and post-graduate study. C1 said her parents pay for her education, but through her own part-time work she has paid for some fees. C1 said she considered transferring her tertiary studies to New Zealand, but decided against it because there are better opportunities for research and employment in Australia.
C1 said the Applicant is remorseful for her crimes. When asked by Ms Roeger what the remorse is for, C1 responded: ‘signing the loan documents – she didn’t say anything specifically’. During her parent’s imprisonment, C1 said at least one of her grandparents lived with them in Australia, but the temporary nature of their three-month visitor’s visas required them to depart and return frequently. Her maternal grandparents from New Zealand spent most time in Australia but her paternal grandmother from China is currently living with them. C1 said the need for her elderly grandparents to assume these unexpected responsibilities was ‘not fair’, including because of their health issues. C1 said their presence in Australia is ‘not a long-term solution’.
C1 said she is in a ‘great’ relationship with a young man she has known ‘for years’. She is very close to his family and had recently been on a holiday with them. She said these relationships provide a ‘great break from [her] circumstances’.
C1 said her younger siblings express a desire to stay in Australia and become Australian citizens. She described C2 and C3 as ‘high achieving’ students who ‘both put a lot of effort into their studies’. She said C4 enjoys her studies and is ‘doing very well’. Both C1 and her maternal grandparents drive the children to their commitments, but her paternal grandparents are unable to because they drive on the opposite side of the road in China and don’t feel comfortable doing so.
When asked about the reference in her statement to C4 exhibiting symptoms of ADHD,[63] C1 said there is no formal diagnosis and the ‘symptoms weren’t severe enough’ for urgent assessment or treatment. She said they may see a paediatrician in six months or so if the symptoms persist. C1 claimed to have observed a ‘180-degree change’ in C4’s personality since their parent’s imprisonment because she is ‘very close to Mum and Dad’. Since her father’s removal to New Zealand, C1 said she and her siblings talk with him by telephone daily and have arranged to visit during the next school holidays. She believes C4 being reunited with her parents will help. When asked if her parents would decide where the minor children live, C1 responded: ‘They haven’t explicitly said, but we all agree if Mum and Dad said go back to New Zealand, they would go because they haven’t got a choice’. During re-examination, the Applicant again asked C1 about her younger sibling’s preferences. To which C1 responded: ‘Both express they want to stay, but if you and Dad decide they have to go back [to New Zealand] they would respect that’.
[63] Exhibit A4, [30].
C1 said she experienced mental health issues after her parent’s imprisonment but had since ‘learned to deal with it’. She was previously on antidepressants for two months but felt there was not ‘enough reward for the side effects’ so she stopped taking them. It was a relief when her parents were released from prison and placed in immigration detention because this made it easier to talk with and visit them. This did not alleviate the responsibilities she has in their absence, which includes paying the mortgage each month. She said her parents own the home they live in, but her paternal grandmother helped buy it. She stated: ‘If it’s part of the families, it’s everyone’s’. C1 said the property was developed into two separate residences. She and her siblings live in one and whichever grandparent is staying with them lives in the other. There is a tenant who rents a room in the house her grandparents stay in. He pays $200 a week in rent that goes into C1’s bank account. This account is also where Family Tax Benefit and other support payments are made.
C1 said she transfers money to a NAB mortgage account each month by ‘drawing money from an account with [her] parents’ savings’, which is a Westpac Bank account. C1 was unable to recall precisely what the balance of the Westpac account is, but thought it was ‘maybe $100,000…I just draw money out – I don’t really look at the account’. In re-examination the Applicant asked C1 in whose name the Westpac account is and she responded: ‘Either yours or dad’s’. C1 was also asked by the Applicant what the balance of the Westpac account is, but she could not precisely recall. At this point in the proceeding, the Tribunal asked if there was any objection to C1 providing the Tribunal with a screen shot of the Westpac account so the balance could be more reliably determined. There was no objection and C1 agreed to provide this by the next day. An email was subsequently received from C1 the next day, however, which stated:
‘Attached are the screenshots of my ANZ account where the FTB and rent comes into and NAB statement…In regards to the $100,000 savings I thought my parents had, that was money from the confiscation matter, which was all used to repay the…loan immediately. I just had the impression there was $100,000 at some point, but did not know what it is or where it is from.
In regards to the mention of Westpac, I had mistaken it for a Westpac account they had prior, which was forfeited as part of the confiscation matter and is now closed.

I apologise for so many inaccurate/misleading pieces of information, I did not expect to be asked questions on financial aspects I had almost no knowledge on, so I panicked and pulled memories together I thought were related but actually had nothing to do with each other.’

Evidence of Associate Professor Martinovic

Associate Professor (“A/Prof”) Martinovic adopted her two letters as true and correct. She stated that her correspondence with the Applicant is in an official capacity on behalf of RMIT[64] and relates to the ‘Think Tank Program’ she runs at DPFC. This consists of fortnightly sessions of two hours each, which is the predominant context for her engagement with the Applicant between February 2023 and when she left prison in September 2023. Recently the Applicant asked A/Prof Martinovic for a supportive statement and assistance to locate a psychologist for offence-specific rehabilitation. A/Prof Martinovic said she did both and psychologist Ms Wallis ’volunteered to take on Ms Mao’. She said the Applicant was unable to do offence-specific rehabilitation in custody because ‘there is no financial specific counselling - full stop – it just doesn’t exist’. A/Prof Martinovic said she works with organisations to provide this support for people ‘engaged in white collar crime’.
[64] See Exhibit A7.
A/Prof Martinovic said the Applicant provided her with a copy of the Minister’s submissions, so she is aware of the crimes committed. In response to questions from Ms Roeger, A/Prof Martinovic agreed she has no qualifications in psychology or psychiatry. She also confirmed that she has no experience on the Adult Parole Board and had not seen any of the documents relevant to the Board’s decision regarding the Applicant. A/Prof Martinovic stated the Adult Parole Board undertakes a ‘complex risk assessment process’ and while she was not ‘privy to the [Applicant’s] risk assessment’, she consulted the Parole Board website which ‘lays out the considerations’. A/Prof Martinovic opined: ‘If they are of the belief they’ll reoffend, there’s absolutely no way they would release a person like that’. When challenged by Ms Roeger that some risk can be managed with parole conditions, A/Prof Martinovic insisted ‘there’s a significantly low risk’ because the ‘Parole Board does not make risky decisions…they don’t just dish it out’.

It was put to A/Prof Martinovic by Ms Roeger that given her limited contact with the Applicant, she is not well placed to provide risk assessment. A/Prof Martinovic said she had ‘done a lot of work in this area’ and claimed that ‘the nature of [the Applicant’s] offending is not a high-risk category’. She has done some work in corrections and believes ‘you don’t need to be [a psychologist or psychiatrist] to predict reoffending’. In relation to the Applicant having offended despite being in a stable, high-paying job with other protective factors, A/Prof Martinovic opined: ‘That often happens – it’s not an anomaly to the norm from a criminological point of view’. When asked if she appeared in this proceeding as an expert or a lay witness advocating for the Applicant, A/Prof Martinovic said she did not know how to answer that question but relies on her expertise and referred to appearances in other proceedings as an expert.

Evidence of Mr Ahmed Dirani

Mr Dirani said he has had no direct contact with the Applicant but is willing to offer her a three-month trial as a baker to ‘see how it works’. He was alerted to her baking skills by his business partner, who had a relative imprisoned in DPFC at the same time as the Applicant. Mr Dirani said he is aware the Applicant was convicted of ‘bank fraud’. He is willing to offer 30 or 35 hours of work per week at approximately $30 an hour, which is the ‘minimum for a chef’. He estimated that he employs 50 people at two retail bakery / café outlets and at a ‘main bakery’, but struggles to find chefs despite ‘advertising on a few websites’, Mr Dirani said many applicants have formal TAFE qualifications but little practical kitchen experience.
When asked what knowledge he has of the Applicant’s qualifications and baking skills, Mr Dirani said only what he has been told by others. When asked what qualifications he wanted in a chef or baker, he said the person needed ‘studies at TAFE, then work experience, then a trial’ at this business before being offered a permanent position. Mr Dirani was unaware the Applicant has no formal qualifications as a chef or baker but is willing to give her a trial.

PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct

Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or 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.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The nature and seriousness of the conduct

Under cl 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)   crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)    causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)   crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The sentencing remarks of the County Court state that the Applicant’s dishonesty was planned, systematic, and struck at the integrity of Australia’s home loan system.[65] The Applicant was noted to be ‘well-versed in’ this system having worked for over a decade in bank financing in New Zealand and Australia.[66]
[65] Exhibit R1, 38 [43].
[66] Ibid, [49].
The Applicant submitted that her offending is at the ‘lower end’ of the ‘spectrum of seriousness’ and of a ‘qualitatively different character from those set out in Direction 99 8.1.1(1)(b) or 8.5(2)’.[67]
[67] Exhibit A1, 1 [1].
Ms Roeger submitted that the Applicant had ‘all the tools’ upon arrival in Australia to be a productive and law-abiding member of society, with stable accommodation, high paying employment, and impressive career path. But this did not prevent her from engaging in protracted dishonesty offending. Ms Roeger said the financial nature of the Applicant’s crimes and her reference to ‘non-human victims’ did not diminish its seriousness.
Imprisonment is a sentence of last resort and the most severe sanction available.[68] The seriousness of the Applicant’s offending is in part reflected by its categorization as a continuing criminal enterprise (“CCE”). This has the effect of doubling the maximum sentence available to 20 years imprisonment for each count.[69] The Applicant stated during oral testimony that her sentence represents only ‘15% of the maximum term available to the Court’. The Tribunal accepts that a three-year sentence of imprisonment is substantially below the maximum available, but that is nevertheless a considerable sentence for a first-time offender. It is noteworthy the Court of Appeal stated that the Applicant’s sentence ‘was, if anything, lenient having regard to the duration and extent of the offending’.[70]
[68] See e.g. Sentencing Advisory Council (Vic), ‘Imprisonment’, (Web Page, 28 April 2022) <
[69] Crimes Act 1958 (Vic),s 82, read in conjunction with Sentencing Act 1991 (Vic), s 6H(1)(c) and 6I(1), which applies when an offender is found guilty of three or more CCE offences.
[70] Exhibit R2, [51].
The Court held that the Applicant’s criminal and moral culpability was ‘significant’.[71] No meaningful distinction was made between her conduct and that of Mr Niu, given that both signed fraudulent applications and benefits flowed to them ‘as partners’.[72] Given that the conduct leading to her convictions continued for approximately two-and-a-half years and involved multiple fraudulent loan applications, the Tribunal rejects the contention that the offending was ‘an isolated incident’ or that the ‘totality of the Applicant’s criminal history…is limited to a single occurrence’ or was ‘not recurring or persistent’.[73] The cumulative effect of her repeated course of conduct is significant.
[71] Exhibit R1, 39 [47].
[72] Ibid 39 [50].
[73] Ibid 128.
In addition to the Applicant’s criminal history, the Tribunal can consider ‘other conduct to date’.[74] During sentencing, the Court stated the following about the Applicant’s claims to police upon being arrested and interviewed, which occurred approximately a year after the offending was first detected:[75]
‘Ms Mao, you were arrested and interviewed on 16 December 2019. You told police you were aware of the loan applications…but you did not know any of the details. You said that when the ANZ showed you the false pay slips you were in shock. You said you were so busy at work you just let Mr Niu take care of the loan applications. You said you signed most of the loan applications without reading the details. You said you trusted Mr Niu.’
[74] The Direction cl 8.1.1(1).
[75] Exhibit R1, 36 28].
The Court found she ‘did not provide the cooperation at the outset that Mr Niu did…’[76] At the present hearing the Applicant conceded she was not truthful to police when first interviewed but referred to her subsequent plea of guilty. The Tribunal notes her plea only followed a financial restraining order being served in late February 2019.
[76] Ibid, 44 [71].
The Applicant claimed in oral evidence she had not previously disclosed all the contextual circumstances relevant to her offending, despite being represented by senior counsel in her criminal proceeding, another barrister on appeal, and a solicitor in the present matter until late August 2023. The Tribunal places little weight on the new narrative advanced because a plea of guilty constitutes admission to and acceptance of all elements of the charges a person is convicted of.[77] This includes that she knew the representations made to obtain financial advantage were false or probably false, and she intended these to be acted upon.[78] Even if the Applicant chose to look away or ignore the fraudulent nature of the documents being presented because of cultural mores or stressors, this does not diminish her culpability. Nor do her purportedly repeated objections to Mr Niu. If this occurred, it evinces the Applicant’s understanding of the illegal nature of their activities, which was nevertheless followed by continuing participation.
[77] Maxwell v R (1996) 184 CLR 501, [19].
[78] Crimes Act 1958 (Vic), s 82.
The Applicant’s offending over a protracted period, which resulted in a financial advantage of more than $9 million obtained through deception, is objectively serious and weighs substantially against revocation.

Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

Clause 8.1.2(1) of the Direction provides:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Clause 8.1.2(2) of the Direction states that in assessing the risk non-citizens pose to the Australian community, decision-makers must consider, 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:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
This aspect of the Direction requires the Tribunal to assess the risk posed to the Australian community if the Applicant reoffends, taking into consideration the nature of any harm and its probability. The courts have held that past actions are legitimate predictors of future behaviour.[79] The notion of risk and its nexus to future possibility were explored by Justice Mortimer, as her Honour then was, in Murphy:[80]
‘That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’
[79] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 578-579; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133, [81].
[80] Murphy v Minister for Home Affairs [2018] FCA 1924, [37]. See also Tanielu vMinister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673.
The Applicant’s criminal history in Australia relates exclusively to dishonesty offences. Any repeat of her past conduct would expose the Australian community to a risk of financial harm and/or damage the integrity of Australia’s banking system.
The Applicant expresses remorse for her past conduct and a determination to ‘reset [her] life on a honourable, proper, principled and honest path’ if allowed to remain.[81] She said her remorse is reflected in her early guilty plea, cooperation with authorities in disposing of assets, and disclosure of co-offender involvement.[82] Reference is also made to her shame and contrition.[83] The Applicant contends that the adverse experiences following her convictions caused her to become ‘a completely new person’ who has developed a ‘deep understanding for the meaning of life’ and a more ‘considerate and empathetic’ approach towards others.[84]
[81] Exhibit A1, 3-4 [27].
[82] Exhibit R1, 36 [31]; 50 [97]; 88; 112; Exhibit R2, 110 [34].
[83] Ibid 87; 181.
[84] Exhibit A1, 5 [41].
Various contexts are raised in the evidence about the Applicant’s involvement in the criminal enterprise. She has expressed her motivation as a ‘desire to improve [her] family’s financial position’.[85] Her sibling in New Zealand contextualises the offending as due to the Applicant being ‘very stressed’ and under ‘constant pressure’ from the bank to meet ‘high targets and expectations’, causing ‘mental health issues and…severe insomnia’.[86] In her most recent statement, the Applicant raises pressure from Mr Niu and cultural factors:[87]
‘9. …I can’t easily explain how it happened, except to note my state of mind at the time, that I was in a bad place, was completely mixed up in my priorities….
10. …The only pressure points I have succumbed to have been psychological ones, in the form of the threat of my family’s disintegration, and cultural compulsion to support my husband and help him succeed. That is over now. The time and distance from those pressures in prison, as well as the courses I have undertaken, has given me a new level of independence and self-assertion’. I also have supportive friends who help me understand how strong I really am and encourage me to exercise that.
…
14. At paragraph 34, the SFIC refers to the commencement of my offending, 18 months after my arrival in Australia without acknowledging my earlier evidence of the triggering events leading to it. Particularly at paragraphs 7-15 of my earlier statement I refer to the family and cultural pressure I was under…The offending commenced in the maelstrom of that threat to my, and my children’s security.
…
17. We were not in need of money, but my husband was in need of face-saving
status in Chinese culture. I was trying to help him. That was my motive’.
[85] Exhibit R1, 88 (second paragraph).
[86] Ibid 141.
[87] Exhibit A1, 3 [26].
The Applicant claims in her statement dated 1 September 2023 that she followed her husband’s ‘lead’ and was ‘naïve in wanting to please [him] and not standing [her] ground’.[88] She said this was ‘never raised in court’ because she had not ‘given evidence before’.[89] In reply submissions dated 21 September 2023 the Applicant stated she is no longer required to do her husband’s bidding ‘to maintain family unity’.[90]
[88] Ibid 2-3 [13]-[17]; 5 [39].
[89] Ibid [17].
[90] Ibid, 4 [17].
The Applicant’s references to her conduct as a victimless crime cut across her contrition. In her most recent statement, she insists ‘there was not a direct human victim in my crime…’[91] In revocation submissions she stated: ‘The only members affected by my actions were my family.[92] In a letter to the Prime Minister and Respondent dated 23 February 2023, she stated: ‘there was no victim in our crime’.[93] In an earlier letter dated 30 June 2022 to the Prime Ministers of Australia and New Zealand, she claimed not to have been aware of the contents of the fraudulent loan application documents and to have engaged in very common loan application behaviour:[94]
‘We made foolish errors of judgement in doing what 60% of other Australian mortgage applicants do, namely overstated my husband's income in mortgage application documents. Although not actually aware of the content of the application documents, as these had been solely prepared by my husband, I accepted responsibility for my carelessness in co-signing them…’
[91] Ibid, 3 [26].
[92] Exhibit R1 88 [second paragraph].
[93] Ibid 159.
[94] Ibid 98 (second paragraph).
In terms of rehabilitation, the Court concluded that the Applicant has ’very good prospects of rehabilitation’.[95] Her previous lawyer referred to her ‘progress in self-rehabilitation’ and that any ‘future reoffending is highly unlikely’.[96] In response to the Respondent’s claim that she has not undertaken offence-specific rehabilitation, the Applicant agrees, claiming ‘there are none’.[97] She refers to recent assistance from A/Prof Martinovic by putting her in touch with clinical psychologist Ms Amanda Wallis, with whom she intends holding ‘regular sessions’ if released. On 21 September 2023, proximate to the commencement of the hearing, the Applicant lodged a letter from Ms Wallis, addressed ‘To Whom it May Concern’. Ms Wallis states she is ‘happy to work with this client in the future’. The letter does not disclose what this ‘work’ may entail or for what purpose.
[95] Ibid, 47 [86].
[96] Ibid 113.
[97] Exhibit A1, 11.
The Applicant refers to her good behaviour in custody, employment in the prison kitchen, and counselling from Mortgage Stress Victoria. She has completed several vocational and self-development courses while imprisoned[98] and also commenced counselling with trauma services provided by WestCASA. The Applicant did not meaningfully elaborate on her documentary claim that future counselling plans include a desire to address ‘traumas experienced throughout [her] life’.[99]
[98] Ibid 5-6 [42]; Exhibit R1, 68 137-139, 142, 150-151.
[99] Exhibit R1, 88.
In terms of recidivism risk, there is no expert evidence from a suitably qualified person such as a psychologist or psychiatrist. In her reply submissions dated 21 September 2023, the Applicant disputes the Respondent’s contention that she constitutes a ‘very real prospect’ of reoffending, claiming this ‘flies in the face of a mountain of evidence-based assessment by numerous professional witnesses’.[100] She claims her risk of reoffending is so low as to be negligible and can be safely disregarded. Support for this is drawn from counsellors at WestCASA and Mortgage Stress Victoria, A/Prof Martinovic, a kitchen supervisor at DPFC, and an employee from the Department of Justice who wrote a supportive reference. She submitted that the Respondent has overlooked ‘cultural, familial and gender contexts’ of her offending, past ‘psychological trigger points’, and incorrectly assumed that greed motivated her crimes. The Applicant contends she did not need the money.[101] Additionally:
(a)The Applicant stated in revocation submissions: ‘I have no intention…of ever participating in such deceptive conduct ever again’.[102]
(b)Written submissions by the Applicant’s former lawyer state: ‘Ms. Mao, has a very low or minimal tendency and likelihood to reoffend, given its impact on herself and her family as she has a greater desire to improve her family’s prospects for the future’.[103] It is further stated that because of the Applicant’s ‘deep remorse and regret, there is only a minimal or remote chance of any reoffending’.[104]
(c)In reply submissions dated 21 September 2023 the Applicant claims she ‘is of an age, educational and sobriety level’ that ‘strongly suggests risk of re-offending is low to negligible [and hers] is truly a case where the risk may be so low that it must properly be disregarded, as per CKL21, or alternatively, ought to be given little to no weight’.[105] She claims to have been ‘repeatedly assessed, by expert professionals and by the Parole Board, whose very reason for existence is the assessment and protection against risk, as having low or negligible risk of reoffence’.[106] The Tribunal notes, however, that the Parole Order provided details information such as date of release, reporting and compliance requirements, and terms and conditions. There is no reference to the Applicant’s recidivism risk.
[100] Applicant’s Reply Submissions dated 21 September 2023, 1-3 [2]-[3]
[101] Ibid 3 [4].
[102] Exhibit R1, 89.
[103] Ibid 127.
[104] Ibid 119.
[105] Applicant’s Reply Submissions dated 21 September 2023, 5.f., 11.b., quoting CKL21 v Minister for Home Affairs [2022] FCAFC 70.
[106] Ibid, 5.a.

There is no equivalent to judicial comity or stare decisis in the Tribunal. Each case is considered afresh and turns on its own facts. The three cases cited by the Applicant are distinguishable from the present matter. Paewai refers to fears about possible retribution for ‘unresolved gang issues’. Submissions in that matter were made and considered about the Applicant’s ability to re-enter Australia, which the Respondent conceded could not occur.
In Tuivaiti, the applicant similarly claimed people were after him in New Zealand because of an altercation with a gang member. In both Tuivaiti and Rewiri, which were considered by the same Tribunal member, consideration was given, and a finding made, that the applicants ‘will not be entitled to be granted another visa’ and will not be able to return to see their children or be with their family ‘for any other reason’. Again, no comparable claims were advanced in the current matter. The Applicant claimed late in the hearing that her husband received advice prior to deportation that he could not return to Australia, but no evidence from Mr Nui was provided in this proceeding and the advice he purportedly received was not tendered, despite the Tribunal’s request.
A prohibition on applying for other visas, periods of exclusion, or special return criteria can be considered under ‘Legal consequences’.[157] Evidence can be tendered as to why this is relevant in the current case. Neither the Applicant, nor her previous lawyer led evidence relevant to this consideration and the very general submission advanced by the Applicant late in this hearing was unpersuasive in its attempted comparison with the cases cited.
[157] Pursuant to the Act, ss 501E and 503, special return criteria 5001.
The Applicant’s crimes and convictions resulted in visa cancellation. This rendered her an unlawful non-citizen within the meaning of s 14 of the Act. In the event of non-revocation, she would continue to be detained under s 189 of the Act until removed or granted a visa.[158] Because of the operation of s 501E of the Act, she would be prevented from applying for another visa, other than a Protection Visa or a Bridging R (Class WR) Visa, pursuant to reg 2.12A of the Migration Regulations 1994 (Cth). There is no evidence that removal of the Applicant to New Zealand is not reasonably practicable, although how long this takes turns on choices she makes. This includes if she were to lodge a Protection Visa application, which she is entitled to do, or appeals a non-revocation decision to the Federal Court, or applies for the exercise of a non-compellable ministerial discretion.[159] The Applicant could also seek voluntary removal, although there is no evidence about what she might do.
[158] The Act, s 196.
[159] For example, under s 195A or s 197AB of the Act. Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, 191 [16].
If the Applicant did apply for a Protection Visa, which was rejected, she would be on a pathway to removal as soon as reasonably practicable.[160] If her non-refoulement claims were accepted, however, s 197C(3) of the Act provides that s 198 does not require or authorise removal of a person for whom a protection finding is made.
[160] The Act, s 198(2B).
The general claims advanced by the Applicant about the three previous Tribunal cases where the applicants held the same visa as her, are not apposite to her circumstances. Nothing she raised establishes a possibility that she is confronted by any real risk of harm relevant to Australia’s protection obligations.
The Tribunal finds this consideration carries neutral weight.
Extent of impediments if removed
Clause 9.2(1) of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;

(b)Whether there are substantial language or cultural barriers; and

(c)Any social, medical and/or economic support available to them in that country.
The Applicant is 42 years of age, tertiary-educated and has spent more than a decade studying and working in New Zealand. No language or cultural barriers were advanced and none are discernible. The Applicant wants to immediately return to work using baking skills acquired while imprisoned and sees herself ‘as a Baker for the rest of [her] life’.[161] There is no evidence these skills would not be equally well regarded in Australia or New Zealand.
[161] Exhibit A1, [31].
The Applicant refers in her documentary evidence to past ‘traumas’ and suffering depressive symptoms and ideation relating to self-harm while living in New Zealand. She expresses a determination to improve her mental health,[162] has made a ‘self-referral’, and intends to undertake counselling if released. There is no expert evidence of a past or current mental health diagnosis or the need for further counselling. There is also no evidence that if she required it, the Applicant could not access the same medical or social supports available to other New Zealand citizens who meet relevant prerequisites. The adaptation challenges she refers to are somewhat contradicted by her past ability to successfully commence a new life in New Zealand in 2001 and then in Australia from 2014. That said, her current circumstances after convictions, imprisonment, and detention are contextually different and would likely pose additional difficulties.
[162] Exhibit R1, 88.
The Applicant states Mr Niu is currently in New Zealand and ‘remains on parole…for 12 months’. She refers to him being ‘placed under a condition of non-contact’ with her given they were co-offenders, which expires later in October 2023 and requires a court order to be amended. The Applicant states she has ‘no idea if he has the means of applying for that, or whether it would be successful’ but this condition means ‘any role her might play in remotely co-parenting [their] children [is] even more difficult’.[163]
[163] Exhibit A1, Applicant’s Second Statement at [8].
The Applicant’s primary concern about returning to New Zealand centres on what decision is made about their children’s future.
The Applicant’s parents and sister live in New Zealand and there is no evidence she could not rely on them for a measure of emotional and practical support. Her sister has stated: ‘Our whole family loves Shanshan and we will continue to support her’.[164] The Applicant stated her sister has provided $36,000 to pay the most recent private school fees for her children in Australia. In terms of financial assets, the Applicant and Mr Niu own a residential property in Melbourne, which they have developed into two properties. Open-source information discloses the initial property was acquired in 2016 for $1.59 million and has approximately doubled in price after the single property was developed into two. This was not disputed by the Applicant during the hearing. There is no corroboration of the Applicant’s claim about an informal arrangement where she and Mr Niu are legal owners, but Mr Niu’s mother is the equitable owner and sole beneficiary of any capital gain in this this residential property. In terms of other sources of savings, the Applicant stated she has approximately $80,000 in an Australian superannuation account.
[164] Exhibit R1, 141.
Aspects of the evidence relating to the Applicant’s financial circumstances were somewhat opaque, including the balance of a Westpac account that C1 initially stated she drew funds from monthly to pay the mortgage. When asked to provide a screen shot of the balance of this account, which she agreed to do and the Applicant did not object to, C1’s email response the next day sought to withdraw this aspect of her evidence in claiming she was mistaken about a Westpac account and the estimated balance she referred to.
Notwithstanding a relatively lengthy period in custodial settings, the Applicant has been able to draw on financial resources to help maintain C1 at university, her three younger children in private schools, and for the family’s day-to-day living needs. She is clearly not impecunious and financial issues do not come across as a compelling impediment to re-establishing a life for herself in New Zealand.
On balance, this consideration weighs slightly in favour of revocation.

Impact on victims

Clause 9.3(1) of the Direction states:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence about the impact of a decision on victims of the Applicant’s offending. This consideration is therefore not enlivened and carries neutral weight.

Impact on Australian business interests

Clause 9.4 provides that a decision-maker must have regard to any impact on Australian business interests if the non-citizen is not allowed to remain in Australia. The Tribunal has considered the statement from Mr Dirani about the challenge he experiences in finding and retaining ‘reliable capable goal-oriented staff’ (sic) for his successful café business.[165] That said, he has never met the Applicant and states his business has been operating successfully at two retail and one commercial location for approximately seven years. There is no evidence any work expected to be performed by the Applicant in Mr Dirani’s business, or a decision in this matter ‘would significantly compromise the delivery of a major project, or delivery of an important service in Australia’. This consideration carries neutral weight.
[165] Exhibit A3.

Additional considerations

The Applicant has raised the prospect of permanent exclusion from Australia, based on advice purportedly given to Mr Niu when he was deported, which the Tribunal now considers under the non-exhaustive list at cl 9(1) of the Direction.
Justice Collier has stated that an applicant’s ties to Australia are:[166]
‘Clearly intertwined with the issue of permanency of exclusion from Australia. Indeed I consider it likely that the stronger a visa-holder’s ties to Australia, the greater the consequence of permanent exclusion of the visa-holder from Australia in the event that the visa is cancelled’.
[166] Hunt v Minister for Home Affairs [2021] FCA 507, [53] (Collier J).
Although cl 5.2(2) of the Direction refers to non-citizens expecting to forfeit the privilege of remaining in Australia if they engage in criminal or other serious conduct, there is no reference to this being a permanent legal consequence of removal.
In her statement dated 21 September 2023, the Applicant said Mr Niu was deported from Australia a week earlier and would be ‘prevented from returning to Australia’. During closing submissions, the Applicant claimed Mr Nui had ‘received documents before being deported and the ban is permanent’. There was no statement from Mr Niu in this proceeding and the deportation documents referred to were not provided despite the Tribunal requesting them. Nor did the Applicant refer to why she may not be able to satisfy visa entry conditions in the future or apply for some other return pathway such as the exercise of a non-compellable ministerial discretion. That said, the Tribunal accepts that in the event of a non-revocation decision, this would likely preclude the Applicant’s return to Australia for an indeterminate duration. If C1, or perhaps C2 and C3 were to remain in Australia, they would have to travel to New Zealand to visit her, although as previously noted, there is no impediment to any of the children doing so. The Applicant’s ties to Australia outside of her children are not particularly strong and in that respect the consequence of exclusion for a protracted period or even permanently is less compelling.
If the Applicant were to apply for a return visa to Australia in the future, her application would be considered by another decision-maker, likely a delegate of the Minister, under the statutory scheme then prevailing. As Justice Jagot J has pointed out: ‘…relevant circumstances may change, Ministers may change and Ministers may change their minds’.[167] The April 2023 announcement of a direct pathway to Australian citizenship for New Zealand citizens in Australia, is but one example of the changing statutory landscape in Australian citizenship and migration law.[168]
[167] BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878, [42].
[168] Department of Home Affairs, Direct pathway to Australian citizenship for New Zealand citizens from 1 July 2023 (Web Page, 22 April 2023)< E2%80%8 B%E2%80%8BOn%2022%20April,apply%20directly%20for%20Australian%20citizenship>.
Having identified some of the possibilities and uncertainties that might follow a non-revocation decision, the Tribunal is not required to engage in speculation or fact-finding about the unknown course of future events.[169] As held in Ali:[170]
‘The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing...’
[169] BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199.
[170] Ali v Minister for Immigration and Border Protection [2018] FCA 650.
In DOB18 at [35], Griffiths J reflected favourably on the reasoning in Ali and similarly cautioned against speculating about the course of future decision-making:[171]
‘… In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making...’
[171] [2018] FCA 1523.
The Tribunal accepts that after living in Australia for about a decade, a non-revocation decision would result in difficult decisions and adverse human consequences for the Applicant and her family.[172] This includes emotional and practical hardship. It is difficult to foresee on current facts the basis on which a future application to enter Australia might succeed, with concomitant adverse impacts if the family decides C1 and perhaps C2 and C3 remain in Australia. This would be a difficult, emotionally wrenching, but ultimately personal decision for the family to make.
[172] See, for example, Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628; [2018] FCAFC 225, [3] (Allsop CJ) (Markovic J and Steward J agreeing).
The duration of any future exclusion from Australia results from the Applicant’s crimes and is a consequence of principles like cl 5.2(2) of the Direction. It follows that the Tribunal declines to afford weight in favour of revocation on the prospect that the Applicant may (or perhaps will) be subjected to permanent exclusion if removed.

CONCLUSION

The Applicant does not pass the character test. In determining whether there is ‘another reason’ for revocation, the Tribunal has applied the Direction to the specific circumstances of her case. There is no reason, on these facts, to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations.
The Applicant’s offending is objectively serious. Her criminal conduct, which persisted for over two years, reflects a persistent disregard for Australia’s law enforcement framework and important institutions like our banking sector and financial services industry. The Applicant’s current efforts to attribute greater blame on her husband and reliance on new factors to explain her crimes were unpersuasive. These were not put before the Court despite the Applicant being legally represented.
The Applicant’s expressions of remorse were routinely conditioned by references to her crime being attributable to ‘carelessness’, or ‘foolish errors of judgement that 60% of other Australian mortgage applicants do’ or was victimless in its impact. She claims to have ‘excellent work ethics’ and sought to portray the property development projects as motivated in part by altruism, such as assisting ‘first home buyers’ or creating jobs. The Applicant is yet to fully come to terms with her offending and has unmet rehabilitation needs. The future counselling relationship she refers to with Ms Wallis is aspirational at best.
In terms of recidivism risk, there is no expert evidence from a psychiatrist or psychologist. The Tribunal does not accept the opinions about risk relied upon from counsellors, a social worker, Department of Justice employee, or criminologist. They are not ‘experienced professional witnesses’ qualified to assess recidivism risk. The Applicant is likely to be confronted by considerable pressures if released in Australia. Having engaged in protracted and serious dishonesty offending when in a highly paid job and in a sound financial position, the Tribunal remains concerned about her risk of reoffending given the likely circumstances confronting her on release. Her recidivism risk is real and more than remote or negligible.
The Australian community expects the Applicant should forfeit the privilege of staying in Australia. This includes because her involvement in a criminal enterprise commenced soon after arrival.[173] The community has a low tolerance of such crimes, including when they are perpetrated by non-citizens who have participated in, and contributed to, the Australian community for only a short period of time.[174] This is so despite the factors invoked by the Applicant weighing in favour of revocation.
[173] The Direction, 5.2(2).
[174] Ibid, 5.2(4).
The Applicant’s formative years, including an undergraduate degree and more than a decade of work, were undertaken in China and New Zealand. She did not relocate to Australia until her 30s. Her closest relationships are with her four children, who are bright, capable, and much loved. Their interests, however, were insufficient to stop the Applicant from engaging in protracted and serious offending. All four children continue to rely on their parents to varying extents for practical and financial support. A non-revocation decision and removal of the Applicant from Australia, so soon after their father was also deported, would have a negative emotional impact. The children’s interests clearly favour revocation.
For someone who has spent almost a decade in Australia, the Applicant’s ties beyond her immediate family are relatively weak. Much of the supportive documentary evidence she relies upon is from people encountered in the criminal justice system or in a counselling context. There is a dearth of evidence from a broader social group such as friends, former work colleagues, or others. The Applicant has made some positive contributions in Australia, although her formative years were elsewhere. Much of her decade in Australia has been spent either offending, under conditional liberty, imprisoned, or detained.
The impediments confronting the Applicant if returned to New Zealand are not insurmountable. She gained an undergraduate degree there, was employed for almost a decade, and became a citizen. She is also relatively young at 42 and there are no discernible language or cultural barriers. The Applicant aspires to an immediate return to work and has acquired new vocational skills while imprisoned. There is no evidence that if she needed it, the Applicant could not access the medical, social, and other supports available to other New Zealand citizens who satisfy relevant prerequisites. She has some financial resources to call upon, including her Australian superannuation if she meets a condition of release. Any adaptation challenges confronting her may also be alleviated with the support of her husband, parents, and sister in New Zealand.

Having weighed all the relevant considerations individually and cumulatively, the Tribunal is not satisfied there is another reason to revoke the cancellation decision. That is because the primary considerations Protection of the Australian community and Expectations of the Australian community, substantially outweigh the primary considerations Strength, nature and duration of ties, Best interests of minor children, and the other countervailing consideration.

DECISION

It follows the Tribunal affirms the reviewable decision.

I certify that the preceding 200 (two hundred) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

…………[sgd]……………………….
Associate
Dated: 9 October 2023

Date of hearing:

26 and 27 September 2023

Advocate for the Applicant:

Applicant, In person

Advocate for the Respondent:

Ms Shauna Roeger

Solicitors for the Respondent:

Australian Government Solicitor

Date of hearing:	26 and 27 September 2023
Advocate for the Applicant:	Applicant, In person
Advocate for the Respondent:	Ms Shauna Roeger
Solicitors for the Respondent:	Australian Government Solicitor