Ng and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 4962

Ng and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4962 (1 December 2020)
Division:GENERAL DIVISION
File Number: 2020/5617
Re:Ka Wai Ng
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:1 December 2020
Place:Brisbane

The decision under review is affirmed.
................................[SGD]........................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class UF Subclass 309 Partner (provisional) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Lee and Minister for Home Affairs (Migration) [2019] AATA 871
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Contents
Introduction and background
Issues
Does the Applicant pass the character test?
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
Primary Consideration A – Protection of the Australian Community
The Nature and Seriousness of the Applicant’s Conduct to Date
Summary of the Applicant’s Criminal History
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Conclusion: Primary Consideration A
Primary Consideration B: The Best Interests of Minor Children in Australia
Primary Consideration C: The Expectations of the Australian Community
The relevant paragraphs in the Direction
Factual circumstances relevant to this Primary Consideration C
The Evolution of the Australian Community’s “Expectations”
Analysis – Allocation of Weight to this Primary Consideration C
Conclusion: Primary Consideration C
Other Considerations
(a) International non-refoulement obligations
(b) Strength, nature and duration of ties
(c) Impact on Australian business interests
(d) Impact on victims
(e) Extent of impediments if removed
Conclusion
Decision
REASONS FOR DECISION
Senior Member Theodore Tavoularis
1 December 2020
INTRODUCTION AND BACKGROUND

Mr Ka Wai Ng (“the Applicant”) is a 33 year old citizen of Hong Kong.[1] Movement records indicate that the Applicant initially arrived in Australia on 15 October 2006 and has thereafter moved in and out of Australia as follows:
[1] Exhibit R2, Respondent’s Statement of Facts, Issues and Contentions “SFIC”, page 2, paragraph [4].
·departs Australia 3 February 2007 – returns to Australia 25 February 2007;
·departs Australia 28 January 2008 – returns to Australia 23 February 2008;
·departs Australia 18 January 2009 – returns to Australia 22 February 2009;
·departs Australia 18 December 2009 – returns to Australia 29 January 2010;
·departs Australia 27 April 2010 – returns to Australia 12 August 2014;
·departs Australia 22 July 2015 – returns to Australia 28 July 2015;
·departs Australia 12 May 2016 – returns to Australia 19 May 2016;
·departs Australia 13 October 2016 – returns to Australia 27 October 2016;
·departs Australia 19 April 2017 – returns to Australia 27 April 2017; and
·departs Australia 6 October 2017 – returns to Australia 13 October 2017.[2]
[2] Exhibit G1, G30, pages 196-197.
As I recall the evidence, the non-contested date of the Applicant’s arrival in Australia – specifically, for settlement purposes – is 12 August 2014. On that date, he returned to Australia as the holder of a Class UF Subclass 309 Partner (provisional) visa (“the visa”).[3]
[3] Ibid, G3, page 14; see also Exhibit R2, page 2, paragraph [5].
The Applicant has a short but very serious criminal history in Australia. Uniquely in matters of this type, his offending history (for all intents and purposes) results from the singular offending transaction involving the commission of a fraud offence against the Treasury Brisbane Casino. Stated with particularity, two additional charges resulted from the principle fraud charge. Further, during the interim period between his detection and arrest (in 2017) until his conviction and sentencing (in July 2019), the Applicant also committed an offence (committed in 2018) involving the contravention of an order not to enter or remain in casino premises. His offending history may be listed thus:[4]
[4] Ibid, G4, pages 27-28.

Court

Date

Offence

Result

Brisbane District Court

5/7/2019

Fraud – dishonestly cause detriment by employee: value of at least $100,000 (BTN 1/1/17&25/11/17)[5]

Conviction recorded

Sentenced to imprisonment for eight years

Compensation: $42,300

Brisbane District Court

5/7/2019

Money laundering knowingly (BTN 1/1/17&25/11/17)[6]

Conviction recorded

Sentenced to imprisonment for five years

Brisbane District Court

5/7/2019

Receiving tainted property (BTN 1/1/17&25/11/17)[7]

Conviction recorded

Not further punished

Southport Magistrates Court

15/5/2018

Entering or remaining in casino contrary to order or direction (on 5/5/18)[8]

No conviction recorded

Fined $300

In default: imprisonment: three days

[5] Pursuant to s 408C(1)(E)&(2)(B)&2(A)(A) of the Criminal Code Act 1899 (Qld).
[6] Pursuant to s 250(1)(a) of the Criminal Proceeds Confiscation Act 2002 (Qld).
[7] Pursuant to s 433(1) of the Criminal Code Act 1899 (Qld).
[8] Pursuant to s 100 of the Casino Control Act 1982 (Qld).

The custodial term commenced on 5 July 2019, which was the date of the sentencing. A parole eligibility date was set for 4 July 2021. The operative period of parole will be from 4July 2021 to 4 July 2027. While the Applicant was serving his time in criminal custody, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 26 February 2020 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[9]
[9] Exhibit G1, G31, page 198.
On 12 March 2020, the Minister’s Department received correspondence from the Applicant requesting revocation of the decision to mandatorily cancel his visa.[10] The delegate of the Minister decided on 7 September 2020, pursuant to s 501CA(4) of the Act not to revoke the cancellation of the subject visa.[11]
[10] Ibid, G7, page 45.
[11] Ibid, G3, page 13.
The Applicant lodged an application with this Tribunal on 14 September 2020, seeking a review of the abovementioned decision dated 7 September 2020 not to revoke the cancellation of his visa.[12] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[13]
[12] Ibid, G1, page 1.
[13] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act.
The hearing of the instant application proceeded before me on 24 November 2020. The hearing received oral evidence from: (1) the Applicant; (2) the Applicant’s wife, Ms Christy Yip; (3) the Applicant’s personal friend, Mr Jeffrey Danting, and (4) the consultant forensic psychologist, Associate Professor James Freeman.
The Tribunal also received written evidence. This written evidence was particularised into an exhibit list, a true and correct copy of which is attached to these Reasons and marked “Annexure A”.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(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.
There is no question that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[14]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[15]
[14] [2018] FCAFC 151.
[15] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[16] I will address each of these grounds in turn.
[16] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
Having regard to the abovementioned summary of the Applicant’s offending, with particular reference to the custodial terms imposed on him on 5 July 2019 involving 13 years of custodial time,[17] it is beyond argument that the Applicant does not pass the character test by virtue of his “substantial criminal record” as that term is defined in s 501(7)(c) of the Act. He clearly does not pass the character test pursuant to s 501(6)(a) of the Act.
[17] The respective head custodial terms of eight years and five years imposed on 5 July 2019, of course, ordered to be served concurrently.
Prior to and at the hearing the Applicant’s representative did not cavil with the contention that the Applicant did not pass the character test due to the application of s 501(7)(c) of the Act and its definition of a “substantial criminal record”. In his SFIC, the Applicant makes the following concession:
“20. It is conceded that Mr Ng does not pass the character test because of s. 501(6)(a) of the Migration Act, read with s. 501(7)(c). That being so, the issue in this case is whether there is “another reason” why the cancellation should be revoked (s. 501CA(4)(b)(ii)).”[18]
[18] Exhibit A3, Applicant’s SFIC, page 4.
I am consequently satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[19] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[20]
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[19] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[20] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:
a)    International non-refoulement obligations;
b)    Strength, nature and duration of ties;
c)    Impact on Australian business interests;
d)    Impact on victims;
e)    Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[21]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
[21] [2018] FCA 594 at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
Summary of the Applicant’s Criminal History
The nature of the Applicant’s offending, albeit (for all intents and purposes) singular offending in this country, is such as to immediately attract the operation of the relevant Principles appearing at paragraph 6.3 of the Direction. Principle (1) refers to Australia’s sovereign right to determine whether non‑citizens who are of character concern are to be allowed to enter into and/or remain in Australia. Principle (2) refers to the Australian community’s expectation that the Australian Government should cancel the visas of non‑citizens if they commit serious crimes in Australia or elsewhere. Principle (4) mandates that in some circumstances the nature of a non-citizen’s criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable.

It is conceded in the Applicant’s SFIC that:
“6. Between January and November 2017, Mr Ng committed his index offences, being money laundering, fraud and receiving tainted property. The circumstances are described in the sentencing judge’s remarks and reflect that he was involved in a “cheating syndicate” at the Treasury Casino with multiple co-offenders. The scheme revolved around his position as a croupier. A total sum of over $1 million was taken, with around $245,000.00 paid to Mr Ng.
…
13. On 5 July 2019, Mr Ng was sentenced to his index offences. He entered an early plea of guilty and wrote a letter of apology to the sentencing judge (G 72). He received an eight-year sentence of imprisonment and will be eligible for parole on 4 July 2021. A total sum of $242,300.00 was recovered (with about $200,000 cash found under his bed and $42,300.00 paid in restitution to the court), reflective of the funds paid to him through the syndicate (G 77).
…
31. With respect to the level of seriousness that could be attributed to his index offences, we observe that fraud, receiving tainted property and money laundering offences are not singled out as being of particular seriousness in para 13.1.1(1). His offending is not in the category of most other serious crimes that come before the Tribunal, such as violent or sexual crimes. That said, the Direction makes plain that it does not seek to limit the range of offences that may be considered serious.
32. Having regard to the other factors prescribed under paragraph 13.1.1, we concede there are three factors that indicate it could be regarded serious, being his receipt of a term of imprisonment (para 13.1.1(1)(d)), that his offending was frequent and repeated over an 11-month period (para 13.1.1(1)(e) and (f)) and that considerable sums of money were involved (para 13.1.1(1)(f))…
…
34. On balance, we submit it is open to the Tribunal to categorise his offending as moderately serious.”[22]
The three offences relating to the fraud upon the casino
[22] Exhibit A3, pages 2, 3, 6 and 7.
As recorded in the above table, the Applicant was convicted and sentenced for three separate offences deriving from the fraud upon the casino. Stated briefly, they comprise (1) fraud – dishonestly cause detriment; (2) money laundering knowingly; and (3) receiving tainted property.
Prior to referring to the sentencing remarks of the learned sentencing Judge, it is pertinent to have regard to the factual circumstances of the fraudulent conduct spawning the three abovementioned offences. That conduct was amply summarised by the prosecutor at the sentencing hearing:
“MS CUPINA: Your Honour’s read that the defendant, Mr Ng, participated in a cheating syndicate, and this was to defraud the Brisbane Treasury Casino. And the defendant, he engaged in the scheme for approximately 11 months. So this is from January 2017 up until his arrest on the 25th of November 2017. He participated in a scheme with four others, the co-offender on the indictment, Mr Sang, two others, who’d been sentenced, Mr Lee and Mr Ho. And there was a fifth man, Mr Chen, and he has been deported. He was deported before his prosecution was finalised.
Your Honour, that scheme over the 11 months, the total amount dishonestly obtained from the casino was approximately 1.1 million and the defendant is criminally liable for that entire detriment. What he personally gained was approximately $200,000. And in relation to count 2, the money laundering, in addition to that $200,000, he laundered approximately $45,000. Your Honour, Mr Ng, he worked as a croupier at the casino. And the way the syndicate operated was he and the other men would cheat while he was working as a dealer on a card game called Fusion Baccarat.
The description of the game is described in the statement and is essentially a card game where there are three possible outcomes and a player wins by betting correctly on the outcome. The defendant, as the employee as the dealer at that table, he would handle the cards in a manner where he could see the first few cards on the deck and he would therefore know the outcome of the game and he would mark or indicate the hands to bet against in order to win, by positioning his hand next to the winning cards. The other members of that syndicate were then players and they would place bets in according with Mr – with the defendant’s hand signals and thus, gain winnings and cheat the game.
Your Honour, for the duration of the 11 months the defendant worked as a croupier
and that was how the syndicate – how the [indistinct] was perpetrated. Mr Lee, he
was a regular patron at the casino and the two met one another at the casino. The
idea of cheating was proposed by the defendant and they jointly came up with a
mechanism of how to cheat. Mr Lee and his flatmates, Mr Sang and Mr Chen, they
all then systematically over the 11 months, attended the casino and placed bets
according to the signals given to them by the defendant. Winnings were then kicked back to the defendant after the group would meet following the defendant’s shift and share the earnings.
And, your Honour, the fifth man, Mr Ho, he was recruited by the defendant and that was in June 2017. And then he, from June to November, participated in the cheating syndicate. Your Honour, the activities were revealed through internal investigations at the casino. There was an identifying marker through investigations that showed that winnings from the card game were significantly outside the normal range.
The internal investigation identified the defendant and that he was handling cards in a way which revealed the cheating syndicate. There was also footage obtained from Brisbane CitySafe, which caught the defendant and others meeting after the
defendant’s shifts and dividing up the winnings. Police were informed and launched an investigation, attended the casino late November, during one of the defendant’s shifts and one of the syndicate member’s shifts. Parties were arrested, a search was conducted of the defendant’s home and in his home, just in his bedroom, police found just under $200,000 cash. And that’s in part, count 4, but also part of the earnings that attached to count 1.
A financial investigation and analysis was conducted by a forensic accountant. It
[23] Exhibit G1, G5, pages 32-34.
demonstrated that over this 11 month period, the defendant’s wages were only about $21,000, but he had an unexplained income of around $200,000. And then there was the laundering of $45,000 and this was via his and his wife’s joint account, and that money was then moved or transferred or used for expenditures such as rent. Your Honour, the defendant was interviewed, he denied any involvement whatsoever.”[23]
The factual circumstances surrounding the Applicant’s commission of the subject offences are also particularised in the sentencing remarks of the learned sentencing Judge, Her Honour Judge Clare SC of the District Court of Queensland, referable to when Her Honour was sentencing the Applicant on 5 July 2019.[24]
[24] Exhibit A1, pages 1-3.
Suffice it to say that the Applicant’s role in the conspiracy was a prominent one. As noted by the learned sentencing Judge:
“…You were working as a croupier and were at the heart of a cheating scheme devised, it seems, between yourself and regular gamblers at the casino. You formed a syndicate. It involved a system of cheating when you were the dealer. It was you who introduced Mr Ho to the scheme. And that scheme was a blatant abuse of your high position of trust.
In that 11 month period before the scheme was discovered over $1 million was taken. That money was shared amongst the five of you. You were found with about $200,000 in cash and had laundered about $45,000. So the $200,000 has been recovered, and the remaining money is available now for compensation, to be repaid to the casino…
…
The level of offending here is comparable to that of Mr Li, your co-offender. He admitted to taking more money from the proceeds. He sent about $150,000 overseas and provided substantially greater cooperation. He also recruited two people. I accept that on balance, your position is comparable to his in terms of the level of offending. It was sustained and calculated dishonesty. The scheme was sophisticated and organised. And the crime represented a gross betrayal of the trust your employer had placed in you. As his Honour Judge Farr said to Mr Li, deterrence and denunciation must be importance aspects of the sentence.”[25]
The single offence not arising from the circumstances of the offending constituting the fraud on the casino
[25] Ibid, page 2.
During the period following his initial arrest (25 November 2017) up to the time of his abovementioned sentencing (5 July 2019), the Applicant was released upon his own bail undertaking that contained certain limited conditions. One of those conditions required him to refrain from going “…within 100 metres of any international airport and that I hand in my passport. I was not allowed to speak to my co-offenders. I was also ordered not to attend any casinos.”[26]
[26] Exhibit G1, G9, page 69.
The facts of the Applicant’s offending in relation to this particular breach of a bail condition was actually proffered via an alleged breach of the Casino Control Act 1982 (Qld). The relevant Queensland Police Service Court Brief summary contains the following factual summary of the offence:
“The defendant in this matter is Ka Wai NG (Steve) (30 years).
The Star Casino is situated at Broadbeach Island, Broadbeach. It is one of three Casinos operating in Queensland that is covered by the provisions of the Casino Control Act 1982.
Section 100 of the Casino Control Act provides for the offence of Excluded Patron Enter Casino. When an exclusion notice is issued by The Casino, recipients are not to re-enter the nominated casino premises until the exclusion notice is rescinded in writing.
The defendant is an excluded person under Section 92 of the Casino Control Act and is not allowed to enter The Treasury Casino Brisbane or The Star Casino, Gold Coast.
The defendant was excluded on the 30th November 2017 and issued notice. This exclusion was in relation to dishonest behaviour as a Casino Croupier, and this exclusion notice is still in force.
On the 5th May 2018 at 4:30pm, the defendant was observed by Surveillance staff on the gaming floor of the Star Casino Broadbeach playing card tables in breach of his exclusion order.
A Casino Crime Squad Detective have then approached the defendant in relation this breach. The defendant confirmed that he was the named person in an exclusion order, but stated that he thought this exclusion was for the Brisbane Treasury Casino only. Generic 'Notice of Exclusion' documents served on all excluded persons clearly indicate that named persons are excluded from both Brisbane and the Gold Coast Casino's-lt is highly unlikely that the defendant, being a former Casino Croupier was unaware that he was not allowed to enter the Gold Coast Casino.
The defendant appeared to show remorse for his actions and at some point indicated "I should not have come to the casino"
[27] Exhibit R1, TB1, page 2.
The defendant was then issued a Notice to Appear in relation to the matter to attend Southport Court on the 15th May 2018, a date requested by him.”[27]
To be fair to the Applicant, I do not recall him seeking to cavil with any of the above factual findings or positions adopted by the learned sentencing Judge when Her Honour dealt with him on 5 July 2019.
The following discussion about the nature and seriousness of the Applicant’s offending will be predicated on an application of the relevant factors contained in Paragraph 13.1.1(1) of the Direction. I will further particularise how the Applicant’s offending attracts operation of the relevant sub-paragraph(s) of the Direction in the assessment of the nature and seriousness of the Applicant’s conduct.
Application of Factors in Paragraph 13.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors is:
(a)…
(b)…
(c)…
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)…
(f)The cumulative effect of repeated offending;
(g)…
(h)…
(i)…
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a “violent and/or sexual” nature are viewed “very seriously”. The material does not disclose any instance of the Applicant committing violent or sexual crimes. The (for all intents and purposes) singular offence he committed was not committed in this realm of offending. This sub-paragraph (a) is not relevant to determination of this application.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction provides that “crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.” The Applicant’s history reveals no instances of violent conduct towards women or children. This sub-paragraph (b) is not relevant to determination of this application.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.” There is no evidence of such offending, and as a result, this sub-paragraph (c) is not relevant to determination of this application.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the “sentence(s) imposed by the Courts for a crime or crimes “of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of a given offence committed by an applicant.
As I have alluded to earlier, the specific nature of the Applicant’s criminal history is relatively unique for applications such as the one now before the Tribunal. The Applicant arrived in Australia on a final and “to settle” basis in 2014. In 2017, he committed his (for all intents and purposes) singular offence involving very serious offending relating to the fraudulent conduct perpetrated upon the Treasury Casino in Brisbane.
The nature of the offending, particularly with regard to its planning and apparent organisation, resulted in very significant financial loss being suffered by the owner/operator of the casino business. I have earlier recounted the sentencing remarks (and submissions made by the prosecutor) when the Applicant was sentenced in mid-2019 for this offending. It is safe and reasonable to find that the cumulative period of head custodial time of 13 years imposed for the three derivative convictions arising from the fraudulent conduct are surely indicative of the very serious nature of the offending that the sentencing Court sought to punish. The further significant aspect of the offending that motivated the extent of the custodial terms (and thus speaks to the level of seriousness of the offending) is inherent in the nature of the role played by the Applicant in the offending. He was not an incidental participant. He was approached with an unlawful proposition, he accepted involvement in that unlawful proposition, and he was instrumental in the implementation and execution of the methodology that directly caused the casino to be deprived of a very significant amount of money.
There can be no favourable or less severe application of this sub-paragraph (d) against the Applicant on the basis of the length of his offending history being a short one. I reject any such contention. The “single offence” committed by this Applicant involved very serious fraudulent behaviour directly intended to deprive the casino of a significant sum of money for the direct financial gain of the Applicant and his co-offenders. This Tribunal has previously considered single offence histories and has found that even a single offence can constitute a substantial criminal record:
“The applicant claims that his criminal history cannot be said to be extensive or otherwise substantial. However, the Tribunal does not agree with the applicant’s assessment, which appears to suggest that a determination of whether a criminal record is substantial is limited to the number of offences or their frequency. In the Tribunal’s view, a criminal record may be substantial by reference to the nature of the offences and even a single significant offence can constitute a substantial criminal record.”[28]
[My emphasis and underlining]
[28] Lee and Minister for Home Affairs (Migration) [2019] AATA 871 at para [27] (per SM Raif).
The only logical and safe course is that this sub-paragraph (d) must be applied stringently against the Applicant given the very serious conduct leading to the significant financial loss suffered by the casino and as reflected in the 13 years of head custodial time imposed on him. Her Honour Judge Clare was not inclined to offer the Applicant any discounted period in relation to the head sentence that Her Honour imposed. To the extent any accommodation was afforded to the Applicant in the sentence, it is to be found in the date for his release on parole at “quarter time” (i.e. two years) into the totality of the eight year head custodial term imposed for all three convictions.
Aside from that, Her Honour was in no doubt that the Applicant very seriously abused his “high position of trust” in his role as a croupier at the casino:
“HER HONOUR: Mr Ng you have pleaded guilty to fraud and money laundering in relation to money from the casino. You were working as a croupier and were at the heart of a cheating scheme devised, it seems, between yourself and regular gamblers at the casino. You formed a syndicate. It involved a system of cheating when you were the dealer. It was you who introduced Mr Ho to the scheme. And that scheme was a blatant abuse of your high position of trust.”[29]
[29] Exhibit A1, page 2.
While it is to be accepted that the Applicant received his sentence upon a plea of guilty to the three derivative offences, it is clear that Her Honour Judge Clare thought the level of seriousness of the offending and the resulting quantum of financial damage sustained by the casino operator nevertheless outweighed the mitigating factor of the plea of guilty which Her Honour accepted occurred “at an early stage”.[30]
[30] Ibid.
As noted, the head custodial term for the three derivative fraud offences comprised a period of eight years, with a non-parole period of two years. The length of the head custodial term is significant, particularly in the case of a first-time offender. By his third year in this country, the Applicant committed an offence of such seriousness that his head custodial term amounted to almost triple his time in this country up to the time of commission of the offence. Put another way, his offending was sentenced by the imposition of a head custodial term representing approximately 250% of his three-year period of time in this country up to commission of the offence. This ratio derives from the nature of the sentence imposed involving, as it does, the very significant sums that the Applicant and his co-offenders derived from the fraudulent activity perpetrated upon the casino.
Accordingly, for the purposes of this sub-paragraph (d), it cannot be denied that the sentencing regime imposed upon the Applicant by the Queensland District Court in July 2019 militates very strongly in favour of a finding that the subject sentences imposed for the Applicant’s fraudulent offending renders the totality of his offending as very serious.

Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of non-citizen’s offending and whether there is any trend of increasing seriousness. This Applicant has, for all intents and purposes, a singular, albeit very serious, offending episode. As such, no level of frequency or trend of increasing seriousness can reasonably be found.
To be clear, I am mindful of the Applicant’s subsequent offence involving a breach of s 100 of the Casino Control Act 1982 (Qld). For reasons I will mention later in this decision, I am not of the view that this subsequent conviction is in any way indicative of any pattern or predisposition within this Applicant towards offending. It would be both inappropriate and unsafe to suggest that this additional conviction in any way refers to “frequency” or any “trend of increasing seriousness” in the Applicant’s offending history. The position would, of course, be different if he, for example, committed further fraudulent-type offending if not on a casino, but, for example, as part of some kind of social security fraud. But that is not the case here. Accordingly, this sub-paragraph (e) is not relevant to determination of this application.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. As I have alluded to with reference to the immediately preceding sub-paragraph (e), the Applicant’s contravention-type offence committed in May 2018 does not speak to any cumulative effect to be taken from his offending. It cannot be said that the contravention offence somehow derives from his fraudulent conduct upon the casino throughout 2017.
The contravention offence is not suggestive of the Applicant’s conduct worsening to the point of being “out of control” or otherwise unrestrained. Nor does it speak to any “cumulative effect” involving a denial or repudiation of lawful authority. That said, one should note that there is a level of inconsistency in the Applicant’s explanation of this contravention-type offence, and such an inconsistency should not be ignored for the purposes of the instant analysis.
Earlier, I have referred to the recorded circumstances of the subject contravention offence. It is clear from that factual summary that “On the 5^th May 2018 at 4:30 pm the defendant was observed by surveillance staff on the gaming floor of the Star Casino Broadbeach playing card tables in breach of his exclusion order.”[31] I have a tentative level of acceptance for the Applicant’s purported explanation for the breach of the relevant order when he tries to explain the breach on the basis that he “thought this exclusion was for the Brisbane Treasury Casino only”.[32]
[31] Exhibit R1, TB1, page 2.
[32] Ibid.
That said, I have misgivings about what the Applicant said in his oral evidence when explaining what he was doing at the Broadbeach casino. In that oral evidence, he sought to say that he was there to either observe or just be with an acquaintance and that it was only the acquaintance who was doing the gambling:
“MS WHITE:[33] You did commit another offence during the period of your bail order, specifically you contravened a direction on 5 May 2018?
WITNESS: That’s correct.
MS WHITE: What did that - - ?
WITNESS: My friend drove me to another casino on the Gold Coast but I didn’t gamble. And I didn’t know that I wasn’t allowed to go to another casino, I thought I was banned from - you know, Treasury Casino instead of Jupiters. I stayed there for about ten minutes and then I got arrested again.
MS WHITE: Did you gamble when you were at the casino?
WITNESS: No, I did not, I did not.
MS WHITE: Did you breach your bail order or your bail conditions again?
WITNESS: No, I did not.”[34]
[My emphasis and underlining]
[33] Ms Caitlin White, Associate, Fisher Dore Lawyers, Representative of the Applicant.
[34] Transcript, page 14, lines 29-40.
The Applicant’s evidence about not gambling at the Broadbeach casino is, to my mind, seriously challenged by the reality appearing from the relevant Queensland Police Service Court Brief summary of the offending. The Court Brief records the Applicant “was observed by surveillance staff on the gaming floor of the Star Casino Broadbeach playing card tables in breach of his exclusion order.” [My emphasis and underlining]
While I accept that the Applicant’s offending cannot be reasonably found to be “repeated offending” for the purposes of this sub-paragraph (f), I nevertheless have a level of concern that “a cumulative effect” of the less than credible way he dealt with explaining the contravention-type conduct to be indicative of a propensity to perhaps be less than absolutely truthful in certain circumstances. This element is, to my mind, sufficient to attract a mild level of weight in favour of the application of this sub-paragraph (f) towards a finding that the totality of his offending has been very serious.
Sub-paragraph (g) of paragraph 13.1.1(1) of the Direction points to an inquiry as to “whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.” The material does not disclose any instance of the Applicant providing false information either to the Respondent or to any other derivate entity. This sub-paragraph (g) is not relevant to determination of this application.
Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. I am not able to glean any such letter or other communication containing any such formal warning from the Respondent or any other element of lawful authority. In any event, prior to commission of the fraudulent offences in 2017, there was no prospect of the Applicant failing the character test. Therefore, there were no prior circumstances militating in favour of the Applicant’s visa being imperilled. This sub-paragraph (h) is not relevant to determination of this application.
Sub-paragraph (i) of paragraph 13.1.1(1) of the Direction refers to a non-citizen who has committed a crime while in immigration detention in Australia. There is no evidence of this Applicant having committed a crime while in immigration detention in Australia. As has been noted earlier in these Reasons, the Applicant is still serving his term in actual criminal custody and has not yet reached the point of being available to be placed into immigration detention. That possibility can only arise after the Applicant’s release on parole, which has been fixed for July 2021. This sub-paragraph (i) is not relevant to determination of this application.
Having regard to the totality of the evidence to which the abovementioned relevant sub‑paragraphs (d) and (f) of the Direction are relevant, I am of the view that the Applicant’s offending conduct can be readily characterised as “very serious”.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
(i)paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non‑citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
There is basic unanimity between the parties regarding the nature of the harm to the Australian community should the Applicant again offend in the realm of the very serious type of offending for which he was sentenced in 2019. The Respondent’s approach is more prescriptive. In its SFIC, the Respondent says:
“33. The nature of the harm if the applicant were to reoffend is serious and could involve significant financial harm to Australian businesses and members of the Australian community. The nature of the harm should the applicant engage in further criminal or other serious conduct is so serious that any risk of similar conduct in the future is unacceptable.”[35]
[35] Exhibit R2, page 9.
In the Applicant’s SFIC, it is contended that:
“35. A measured view of Mr Ng’s offending has to acknowledge that his repayment of the sum fraudulently obtained by him to some extent ameliorates the harm occasioned by his crimes. That said, cannot (sic) be denied that financial harm would be caused should Mr Ng reoffend in a similar manner in future. This could have flow on effects to potential employers, companies, government agencies and the community as a whole. However, this harm is plainly at a level that is less serious than offences of violence, sexual crimes or those against women and children.”[36]
[36] Exhibit A3, page 7.
I have understood the respective positions of the parties with regard to the nature of harm that may arise from similar fraudulent-type conduct by the Applicant. I prefer the prescriptive approach of the Respondent. That preference is based upon the almost conditional nature of the more moderate approach contended on behalf of the Applicant. This more moderate approach is predicated on the basis that, were the Applicant again to derive a benefit from fraudulent conduct, the Tribunal is now to accept that the ultimate nature of harm arising from such future conduct will be ameliorated by the possibility of the Applicant refunding or repaying some or all of the proceeds of that offending.
To my mind, the element of repayment or refunding of unlawfully taken money is a consideration more apt to submissions to be made upon sentencing. It is an element akin to, for example, an early or timely plea of guilty. It is also similar to, by way of further example, cooperating with lawful authority by providing further information about the offending of others. The instant exercise involves the assessment of the nature of the harm to actually be suffered by a future victim of the Applicant’s offending. It should not be predicated on the contingency or possibility of this Applicant (or any other offender) being minded or inclined – at that future point – to ameliorate the offending by repaying any sum or sums.
Paragraph 6.3(4) of the Direction stipulates that decision-makers should be guided by the principle that criminal offending and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. There should be no expectation on the part of, for example, operators of casino (or similar) venues that they will reasonably tolerate a direct attack on their business operations such that yields a loss of excess of $1 million. On the basis of this paragraph 6.3(4), I think the Respondent’s abovementioned submission is correctly made.
I am of the view and I find that, were the Applicant to re-offend in a similar way, the inevitable likelihood is that his offending will result in very significant financial harm to a very substantial (and possibly catastrophic) level against any future victim. It is trite to suggest that a casino is a large and substantial enterprise that is either “big enough” to easily absorb such a loss or is otherwise insured against it. I am not persuaded that any such contention can be utilised to ameliorate any finding about the nature and seriousness of the Applicant’s conduct.
It is therefore reasonable and safe to find that the potential consequences flowing from further similar or identical offending by this Applicant would be very serious. Were he to re‑offend, I am of the view that its effect on a member or members of the Australian community would be very serious and with, quite conceivably, catastrophic financial consequences. The impact of such serious and organised fraudulent conduct cannot be construed in any other way.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s written submissions
In the Applicant’s SFIC, it is contended that upon an objective consideration of the Applicant’s rehabilitation and other salient factors, the Tribunal should form that view that he poses a low and not unacceptable risk of re-offending, whether for similar or other criminal conduct. There is a reference to “six bases on which this asserted (sic), namely”:
“37. An objective consideration of Mr Ng’s rehabilitation and other salient factors reveals he poses a low and not unacceptable risk of offending, whether for similar or other criminal conduct. There are six bases on which this asserted (sic), namely:
a) His remorse and acceptance of responsibility;
b) His offending behaviour was uncharacteristic and his lack of any disorders or psychopathic or other tendencies that are known to increase a tendency towards recidivism (particularly fraudulent offending);
c) His crimes occurred in a very specific context that is highly unlikely to occur again in future;
d) He has engaged in relevant rehabilitation and his risk has been tested in a community setting in very low-levels of supervision;
e) Risk assessments revealing a low risk of recidivism; and
f) The protective factors in place that mitigate his risk factors and more generally promote his return to a law-abiding lifestyle.”[37]
[37] Exhibit A3, page 8.
With specific reference to the Applicant’s remorse and acceptance of responsibility for the offending, it is contended that this is supported by independent expert opinion. Further, it is contended that while the Applicant may have been influenced by negative peers, there is no suggestion of him externalising or blaming others for his involvement in the syndicate that committed the fraud upon the casino. It is urged upon the Tribunal that regard should be had to both the content and circumstances of the Applicant’s provision of a written letter of apology to the sentencing Judge, his payment of restitution and his timely plea of guilty.[38]
[38] Ibid, see paragraphs [38]-[39] (inclusive).
It is further contended on behalf of the Applicant that his commission of the offence is uncharacteristic of his overall demeanour and behaviour. The Tribunal is urged to take into account the absence of any history of substance abuse, negative or pro-criminal peer associations, plus the fact that the Applicant does not seem to harbour any violent or anti-social tendencies. The observations of the clinical expert, Associate Professor Dr James Freeman that the Applicant’s behaviour was “primarily uncharacteristic in nature and there does not appear to be any underlying deviant ideation.”[39]
[39] Ibid, see paragraphs [41]-[44] (inclusive); and Exhibit G1, G84, [14.2].
A further contention militating in favour of a low risk of recidivism is, according to the Applicant’s SFIC, to be found in the context in which his offending was committed. It is contended that all of the Applicant’s past employment has been involved in the hospitality and hotel management paradigm and did not involve any type of employment in a casino as a croupier or controller of games of chance. The resulting contention is that “…there is no prospect of this context being replicated because his criminal history will present a barrier to any similar employment [with a casino].” It is said the Applicant’s prospects of again working as a croupier (or equivalent) are “extremely reduced” because he is required to hold a certain licence to work as such, and that his past criminal offending in 2017 will forever preclude him from again engaging in such employment.[40]
[40] Ibid, see paragraphs [45]-[48] (inclusive).
It is propounded on behalf of the Applicant that his grant of bail that ensued for approximately 20 months up to the time of his sentencing is suggestive of a reality that he did not present an unacceptable risk upon application of the relevant factors governing the grant of bail.[41] The Tribunal is asked to take into account the fact that while at large in the community, the Applicant engaged in rehabilitative counselling with the psychologist, Ms Trudy Sheffield, and that he did so over a 12 month period. I will later deal with the report and observations of Ms Sheffield, but for instant purposes, suffice it to say Ms Sheffield thought the Applicant made progress towards developing assertion skills and that he had found positivity in a new support network that had caused him to become involved in new and beneficial activities, such as joining a local gym and volunteering at a local church. It is contended that the Applicant now has a definite and definable orientation towards self-betterment, such that he does not present with any outstanding criminogenic treatment needs. It is further contended the Applicant’s rehabilitation is evident from his conduct as a model prisoner.[42]
[41] See s 16(1)(a) of the Bail Act 1980 (Qld).
[42] Exhibit 3, see paragraphs [49]-[53] (inclusive).
While I will deal with Dr Freeman’s findings later in these Reasons, the Applicant’s SFIC refers to Dr Freeman’s opinion that the Applicant “can be considered in the low-risk category for future offending.” Further indicators of a low risk of future offending, according to the Applicant’s SFIC, are to be found in (1) the circumstances of the grant of bail to the Applicant and the classification of him as a low-security prisoner by Queensland Corrective Services, and (2) the assessment of Queensland Corrective Services that the Applicant represents a “Risk of Reoffending” score of 4, which places him in the low-risk category for re-offending. Such an assessment is predicated upon a scale ranging from 1-22 that is reached from application of a range of static factors, including an offender’s age and criminal history.[43]
[43] Ibid, see paragraphs [54] and [55].
Finally, there are three contentions put on behalf of the Applicant regarding protective factors militating against a risk of future offending. First, we are told of certain “protective factors” against future offending. They comprise
“a) No prospect of similar employment as a games dealer in future;
b) Supportive accommodation with his wife;
c) Professional support – he intends to resume treatment with Ms Sheffield;
d) Employment – he intends to pursue employment as a personal trainer. He has augmented his skill set by completing further vocational courses in custody, including a Certificate II in Applied Fashion Design and Technology;
e) Financial stability – he states he and wife are financially secure, have good savings and have discussed seeking out a financial counsellor should their circumstances change.
f) Parole order – he has excellent prospects of obtaining parole release on 4 July 2021, given the factors stated above. His custodial end-date is 4 July 2027. Should he reoffend in any manner or engage in any risk behaviours, he will be returned to prison to serve the balance of his sentence.”[44]
[44] Ibid, see paragraph [56].
Second, the contention put on behalf of the Applicant is that any future offending of a like nature and extent will most probably result in the imposition of a head term of imprisonment such as to attract operation of the currently contemplated provisions that gave rise to the mandatory cancellation of the Applicant’s visa. It is contended that this factor will, in turn, cause both serious apprehension and grave concern in the mind of the Applicant, given the likely impact that his permanent removal from Australia will have on the life of his wife, bearing in mind her medical conditions.[45]
[45] See paragraphs [56] and [57].

On this basis, the principle contention put on behalf of the Applicant on the specific issue of risk of recidivism is that:
“…he poses a low and not unacceptable risk of reoffending. In balancing this against the contention that it is at the lower end of the spectrum of seriousness, we accept this weighs against revocation but only to a slight degree.”[46]
[46] Ibid, paragraph [58].
In his Personal Details Form, the Applicant answered questions about recidivism thus:
“10. CRIMINAL HISTORY AND RISK OF REOFFENDING
Outline any factors you believe help explain your offending, that you want the decision-maker to take into account.
The main reason that I committed the offence was because of my wife illness condition as I was worried that one day she might lose the ability to work and I was only employed on a casual basis that I found it difficult to provide financial support.
I am truly remorseful for the offence and I have learnt that there is no short cut to success. Instead success is achieved thru hardwork, patience, honesty and integrity.
I want to be able to rebuild my life with my wife and take care of her in a safer environment. However the biggest hardship I am facing is not knowing how to rebuild my life and watching my wife suffer for a long period of time.
If you have completed any courses or programs that will help you to avoid further offending, provide details of these and attach evidence.
I did psychological treatment with Trudy Sheffield in the community while on bail. I have attached a copy of her report.
…
Provide information on what you believe to be the risk of you offending in the future, and your supporting reasons
I strongly believe that the risk of me reoffending is low as I have been excluded from the star company in Queensland and I have no intentions of relocating to other states in Australia. In additions I have been getting a lot of flashbacks to the crime and the traumas that it brings has a huge impact on the way I see about money. I am disgusted by what I did and I’m remorseful for it. I want to give something back to the community thru volunteering and charity work and be able to tell the young generation to think twice before doing anything.” [47]
The Applicant’s evidence in chief
[47] Exhibit G1, G8, page 59.
Initially, the Applicant spoke of his engagement with the psychologist, Ms Trudy Sheffield. He spoke of having 10 sessions with her and spoke of her intervention as being “really helpful”. The Applicant said the following during evidence in chief:
“MS WHITE: Now, you also did some counselling sessions with a psychologist by the name of Trudy Sheffield?
WITNESS: Correct.
MS WHITE: Why did you attend the counselling with her, what brought that about?
WITNESS: Because I was really depressed during that period of time, I had no one to talk to. I (indistinct words) internet, I found her, I had ten sessions with Trudy. She was really helpful. Every time I saw her I broke out in tears because she - yeah, she played a big role in my mental health. She treated me like friends, she often send me videos - videos about how to cope with anxiety and stress. Yeah, she taught me how to be a better person, basically she boost my self-esteem and my confidence.
MS WHITE: Did you talk with Trudy - - ?
WITNESS: Which is what I needed during that period of time, yes.
MS WHITE: I’m sorry, yes?
WITNESS: Yeah.
MS WHITE: Did you talk with Trudy about your offending?
WITNESS: Yes, I did, I did tell her all the details of my offending.
MS WHITE: What did you learn about your involvement in this, perhaps as a result of your sessions with Trudy?
WITNESS: She - she taught me how to say no to people. Say no to temptations. To be assertive and decisive.
MS WHITE: Is that something that you think you have – I’m sorry, Mr Ng, please continue?
WITNESS: Yes, it’s something that I didn’t know how to do before because I – to be honest I had trouble saying no to people. I was always the one who loved to please people around me. I didn’t want to disappoint people. She taught me how to say no, to be assertive. Yes. To be decisive. Yes.
MS WHITE: What about how to manage problems? Did she talk to you about seeking help from others for example?
WITNESS: Yes, correct. She also taught me to seek help every time I think about something that I can’t control. So she said to me I – because I was always the one take matters in my own hands without seeking help. She said to me I need to seek help and don’t be ashamed of seeking help. Don’t feel embarrassed about it.”[48]
[48] Transcript, page 15, lines 9-44.
The Applicant alluded to certain cultural factors that had previously militated against him properly ventilating issues he was finding problematic and troubling. He spoke of not taking any steps to address those issues due to an intention to appear strong and stoic towards his wife and wanting to “…keep her stress as low as possible…”:
“MS WHITE: Why do you think you were reluctant to seek help from others? For example, why didn’t you talk to your wife about it or speak to her about any problems or stress you were experiencing?
WITNESS: Because I didn’t want to – because I didn’t want her to worry about me because as I said, I had to make sure he has nothing to worry about in her life. My job is to keep her stress as low as possible but I failed to do it as a husband. And there was one time I remember while I was on bail, her rashes on her skin flared up and she felt really unwell. She passed out in the street. It was in May 2019. She went to hospital and that made me realise how important it is for me to be with her because if it wasn’t me, she could have died and she literally passed out on the street. Lucky I was there with her.
MS WHITE: So can I ask the question, you say that your job is to keep her stress as low as possible, I mean the reality is you could face stress, worries, problems in the future - - - ?
WITNESS: Correct.”[49]
[49] Ibid, page 15, lines 46-47, and page 16, lines 1-13.
The Applicant sought to demonstrate some level of insight into the way he proposes to deal with cataclysmic and troubling thoughts in future. He spoke of having learnt a “big lesson” as a result of his incarceration. He now says that he understands that “I just can’t do everything” and that he has “…to seek help when necessary” from friends and/or clinical experts:
“MS WHITE: Would you act differently in managing those problems in the future?
WITNESS: Yes, I would. This is a big lesson for me to be in jail to be honest. I realise the importance of seeking help. I can’t just do everything – I can’t just take matters into my own hands. I have to seek help when necessary. My friend, Jeff, he plays a really important role in my life. He’s been always there for me and for my wife and yes, it’s really important to seek help I think. I will continue to seek if I need when I get out.
MS WHITE: Do you have any plans to continue doing therapy or treatment once you’re released if you’re allowed to - - - ?
WITNESS: Yes, I’m planning to see Trudy when I get out if I have a chance to stay here because as I said, she played a big role in my mental health.”[50]
The Applicant’s evidence in cross-examination
[50] Ibid, page 16, lines 15-26.
I have checked the Transcript and cannot locate any questions put to the Applicant in cross‑examination that relate to his risk of re-offending.
The written evidence of the Applicant’s wife
In her statutory declaration before the Tribunal, the Applicant’s wife spoke of the Applicant’s positive qualities as a husband and member of the community. She explained the nature of his life prior to commission of the offence and his eventual incarceration. She intends to assist him “back to the right track”. In terms of augmenting his rehabilitation, she says that she is in stable and established employment and that her income “can cover our combined living expenses.” There is also mention of the Applicant’s parents “willing to support us if we encounter any financial difficulties”. Given the evidence of the Applicant’s wife, it is difficult to reconcile it with the Applicant’s evidence about reasons for his commission of the offence in the first place:
“18. Ka Wai is a very good husband and a valuable member of the community, however he has made a wrong decision in his life. He now understands that there is no short cut on earning income and honesty is the most important virtue in our society. He has done all he can do to move on and make amends. Before he went into prison, he was working as a hotel receptionist at Next Hotel after he had been terminated by Treasury casino. He was one of the most dedicated and enthusiastic employees of our hotel when we worked together. He has a highly charismatic, pleasant and professional demeanour. We received a lot of good feedbacks and comments from both staff and guests to thank for his support and hospitality. He is planning to study while he is serving his sentence. I am confident that he will not reoffend and continue to be a valuable member of the society.
19. In term of helping Ka Wai back to the right track, his friends Joanne and Jeffrey will be counselling him regularly to reduce his stress as both of them have a background in psychology. For myself, I was promoted to the managerial position and my income is stable and can cover our combined living expenses. Although the hotel industry is suffering due to the COVlD-19 situation, l am confident that my stable income and good savings wiIl help us to reduce any financial stress that may arise. Beside that, Ka Wai‘s parents are willing to support us if we encounter any financial difficulties. l am aware that if my health condition ultimately prevents me from working, there is government support available to help me.”[51]
The evidence in chief of the Applicant’s wife
[51] Exhibit G1, G16, page 143. Note: the reference to “Ka Wai” is a reference to the Applicant.
In her oral evidence in chief, the Applicant’s wife spoke of his engagement with the rehabilitative process, particularly with Ms Trudy Sheffield. To an extent, her evidence complemented that of the Applicant, to the effect that, in cultural terms, the Applicant has, in the past, been prevented from properly ventilated issues confronting his mental health:
“MS WHITE: Okay. Well let’s pick up there, Ms Yip, can you just talk me through, briefly, exactly what the member just touched on, this aspect of him straightening his life out while he was in the community on bail, can you talk me through what he was doing with his time, your husband?
WITNESS: Yes. At that time he so depressed and stressed, he even go to see the psychologist and – but the psychologist really helped him out and like encouraged him to do more activities, like go to the gym and he eventually found a job working in a hotel as a receptionist, which is my hotel. And during that time, he’s doing well as well and the psychologist encouraged him to share his feeling to me so share his emotion to me as well. We talk a lot after – like after he got arrested, yes. I think before that, it just like kind of Asian culture (indistinct) man need to handle everything, man like – he solve all the problems, that’s why he keep everything away from me but after this, I can see the change and he more – like open up to me and we tried to solve the problem together, yes.
MS WHITE: Okay. So your evidence then is that the counselling with Ms Sheffield was, in fact, of assistance to him, it did help him, is that right?
WITNESS: Yes.
MS WHITE: Okay. Has he indicated to you any interest in continuing that counselling in the future?
WITNESS: Yes, I actually have appointment with her next – end of this month, yes.”[52]
The Applicant’s wife’s evidence in cross-examination
[52] Transcript, page 56, lines 37-47, and page 57, lines 1-10.
I have checked the Transcript and cannot locate any questions put to the Applicant’s wife in cross-examination that relate to the Applicant’s risk of re-offending.
The written evidence of Mr Danting
Jeffrey Danting is a personal friend of the Applicant. He too works as a full time croupier at the Treasury Casino in Brisbane. Mr Danting describes the Applicant as “very humble, friendly, easygoing and welcoming. And since we became friends we were literally inseparable. We often see each other, we work out and we jog and basically talk about basically everything. During his offence though, he didn’t mention anything about it.”[53]
[53] See Exhibit G1, G21, pages 150-151.
He purports to explain the Applicant’s offending on the basis that:
“Knowing Steve, I believe he did what he did in regards to the fraud and money laundering because he love his wife so much and only cared about her wellbeing and their future. I haven't met anyone who loved his wife as much Steve did for his sickly wife. And if Steve's going to get deported back to Hongkong this will place an enormous impact on his Christy's health for sure.”[54]
[54] Ibid, page 150.
Upon being made aware of the Applicant’s very serious offending at the Treasury Casino, Mr Danting was “literally shocked” and experienced difficulty in reconciling the conduct for which the Applicant was charged with his understanding of the kind of person he thought the Applicant to be:
“When l found out about the case against him I was literally shocked for dishonesty is the least word I can associate Steve with. l personally didn't know about the whole incident was happening until he finally officially got caught and charged. I'm saddened for the whole incident. With all my heart I can tell that Steve is a good person. He was loved by everyone at work, and everyone who found out about it were shocked because he was well liked. He would organize catch up for everyone at work, dinner and drinks, that's how friendly he is. He's always hospitable and always has a warm smile on his face. He never got into a fight or argument with anyone. He's so polite and even guests are quite fond of him.”[55]
[55] Ibid.
Mr Danting speaks of discussing the Applicant’s criminal offending with him and of the two of them discussing the Applicant’s conduct in an effort to help the Applicant come to terms with what he had done. Mr Danting says that he is aware of the Applicant’s engagement with a rehabilitative process. In particular, Mr Danting spoke of the Applicant’s nature and personality, which apparently predisposed him to committing the instant offence(s):
“Steve discussed his criminal history with me as soon as he got caught. He's in a great deal of pain, both emotionally and psychologically. He felt bad most especially by letting down all the people who loves him and look up to him. He was very apologetic and he has taken full responsibility by trying to give it back to the community by doing voluntary work with non-profit organisation feeding the homeless in Brisbane. I knew he was genuine because he invited me a
few times to the voluntary work with him, and l did. I've seen him work and l can assure that he's intention is real. There was a sense of joy and authenticity resonating from him while he talks and interacts with the less fortunate. He loved what he was doing and I'm pretty sure he’d be doing this again even after he serves his sentence. Moreover I knew he was visiting a counsellor to help him overcome the depression he's going through and help him change into a better person. He's changed his employment, he got closer to his parents more than ever. We got even closer when he's told me about his offence. We did a lot of therapeutic walk around Brisbane, basically just trying to be more positive and being able to forgive his self so he can finally move on and face the consequences of his action with more strength and hopefulness. I am 100 percent sure without any doubt in mind that he's a changed person and he has regretted everything he's done wrong to everyone. And knowing Steve, he's just a gentle soul who made a regretful mistake. He was just unlucky for being involved with wrong people at a wrong time and place. He‘s sometimes too kind and don't know how to say NO to people. He loves to appease everyone and sometimes to a fault.
This will just be just another lesson learnt for him and I'm sure he regrets and feel sorry for everything he's done, especially the pain it caused to every person who cares about him including myself, parents and his wife. I believed he's doing all his best to return to the community for what he believes he owes in whatever way he can.”[56]
[Errors in original]
The evidence in chief of Mr Danting
[56] Ibid, page 151.
In his oral evidence in chief, Mr Danting largely reiterated the level of personal connection between him and the Applicant, but also responded to a question about the extent to which the Applicant may have “learnt a lesson from his experiences” arising from commission of the instant offence(s):
“MS WHITE: One final question, you’ve remained in contact with Steve during his imprisonment, do you think he has - I’ll put it simply, learnt a lesson from his experiences?
WITNESS: Definitely, definitely. I can feel - I know Steve, I can feel that he’s changed his - he’s very (indistinct), every time he - it’s (indistinct words) it’s more like - it’s more worry about me than himself. And that alone, I know he’s a kind person but that alone, you know, that kind of talk I got - I get from him every time (indistinct words) changed person. I - he’s just worry about himself once, I think he - he realise that this love - there’s more to life than I guess money or whatever he thinks is (indistinct words) worried about me, just worry about his wife.”[57]
Mr Danting’s evidence in cross-examination
[57] Transcript, page 64, lines 31-40.
I have checked the Transcript and cannot locate any questions put to Mr Danting in cross‑examination.
The written evidence of Ms Sheffield
Ms Trudy Sheffield is a registered, private practicing psychologist with 22 years’ experience. Her report appears in the material now before the Tribunal.[58] The report is dated 1 July 2019 and was prepared for the purposes of the Applicant’s sentencing before Her Honour Judge Clare on 5 July 2019. Ms Sheffield says “I have experience in assessing risk level and treatment needs in relation to criminogenic issues. I also have experience in working with multiple mental health issues.”[59]
[58] See Exhibit G1, G14, pages 88-91.
[59] Ibid, page 88.
The Applicant’s initial session with Ms Sheffield was on 16 May 2018 and, as at the date of her report (1 July 2019), she said “he has attended 10 sessions in total and is in the intervention phase of treatment. He has presented as unfailingly polite and responsive to intervention.”[60]
[60] Ibid, page 89.
Ms Sheffield said that the Applicant had identified specific contributing factors to his offending. They comprised:
“-Concern for his wife’s health and wellbeing
-An overriding need to provide and care for his wife
-A perceived lack of stability and a drive to “secure their future”
-Concerned about his own worth as a man and husband
-Poor self-construct/self esteem
-Propensity to emotional collapse in response to high stress states
-Passivity to others and tendency to put own needs last
-Fear of asserting himself and saying no (fear of conflict)
-Subclinical anxiety
-Susceptibility to the perceptions of others
-A history of indecision and self-doubt in general (anxious decision making)”[61]
[61] Ibid.
Ms Sheffield thought the Applicant “justified his behaviour by perceiving it a s (sic) way to “provide well for his wife” and “future” storing all of the money in his home or bank account, not spending anything.”[62] Ms Sheffield opined that “It would seem a constellation of passivity, susceptibility to others, poor self-construct and desire for praise (to feel “enough”) and strong desire to gain stability collided with opportunity (external sources) and overrode his prosocial thinking and decision making.”[63]
[62] Ibid, page 90.
[63] Ibid.

In his Personal Details Form, the Applicant responded to relevant questions about his employment thus:
“Have you studied in Australia? If so, provide details including the highest level of education you reached
Bachelor of Hotel Management completed in 2009 at Griffith University
List your employment history in Australia (list current employment first).
“From Feb 2018 – June 2019 – Front Desk Assistant – Next Hotel;
From Sept 2015 - Nov 2017 – Croupier – The Star Casino Brisbane;
From Feb 2015 – Sep 2015 – steward – Treasury Casino Hotel Brisbane;
Sep 2014 – Feb 2015 – Food and beverage att. – Gambaro Hotel, Brisbane.”[104]
[104] Exhibit G1, G8, page 60.
The material contains respective notices of income tax assessment for specific years of income comprising the financial years ending 30 June 2019, 30 June 2018, 30 June 2017, 30 June 2016, 30 June 2015 and 30 June 2008.[105] I accept that these taxation documents corroborate the Applicant’s claimed employment history in this country. It cannot be said his has been an idle existence here.
[105] Exhibit G1, G15, pages 92-140.
In answering the question “List positive contributions you have made to Australia for example, volunteer activities, participation in community and cultural events, employment etc. Provide any references in support”, in his Personal Details Form, the Applicant said the following:
“I have worked at Next Hotel on Queen Street for over a year when I was on bail and I have achieved a satisfactory performance during my employment. I have also volunteered for Saint Stephen Uniting Church on Ann Street a number of times in the past 12 months. My role was a general helper, serving meals to homeless and cleaning up.” [The Applicant nominated a “contact person” as a reference point for this voluntary work].[106]
[106] Ibid, page 61.
The Applicant’s conduct involved assumption of a primary role in a fraudulent scheme that deprived an Australian business of over $1 million in revenue. His very serious offending has surely breached the expectations of the Australian community and is demonstrative of a significant failure to abide by the laws of Australia. In ascertaining the weight attributable to this Primary Consideration C, I take into account the following factors and/or findings:
(a)I have outlined how the Applicant has made (and has the potential to make) positive contributions to the Australian community through his employment and volunteering history. That history is palpable and cannot be denied;[107]
(b)save and except for the period starting from July 2019 to date, the Applicant lived in the mainstream Australian community from the time of his arrival (August 2014 for final settlement purposes) until July 2019;[108]
(c)the removal of the Applicant will have not have any negative impact on any minor child or children in Australia;[109]
(d)the very serious nature of the Applicant’s offending to date;
(e)while I do not cavil with the findings of Dr Freeman (and, to a more cautious extent, Ms Sheffield) about the Applicant’s risk of re-offending, I have found that the Applicant’s risk of recidivism upon any return to the Australian community remains unacceptable; and
(f)my assessment of the quite significant and broad-ranging risk of substantial and potentially catastrophic financial harm to the Australian community were he to re‑offend.
[107]    The Direction, paragraph 6.3(7).
[108]    The Direction, paragraph 6.3(5). Note: upon securing his release on parole, the Applicant was taken into immigration detention in April 2020.
[109]    The Direction, paragraph 6.3(7).
Conclusion: Primary Consideration C
I am of the view that the above factors, read as a whole in the context of this case, militate in favour of not revoking the cancellation of the Applicant’s visa. I accordingly find that this Primary Consideration C is of strong weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated Other Considerations (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
I could find no reference to any submission, written or oral, in the Applicant’s material referring to a stated fear of harm by the Applicant about a return to Hong Kong that would give rise to an application of this Other Consideration (a) to the instant facts. I did likewise with regard to the Respondent’s material and arrived at the same conclusion. I therefore find that this Other Consideration (a) is not relevant to the determination of this application.
(b) Strength, nature and duration of ties
There is the following limited concession made by the Respondent:
“47. The applicant is married to an Australian citizen who suffers from Systemus Lupus Erythematosus (G9/66). He has not declared any other family members living in Australia. Whilst the Tribunal may accept that this consideration weighs in the applicant’s favour, the Minister contends that does only slightly and does not outweigh the protection and expectations of the Australian community which weigh heavily against the applicant.”[110]
[110] Exhibit R2, page 12.
The Applicant came to Australia for final settlement purposes in August 2014 aged 27 years. He offended in Australia in 2017, just two years after his final arrival and was dealt with by lawful authority for his offending in July 2019. I have had regard to paragraph 14.2(1)(a)(i) of the Direction and find that the Applicant did begin offending “soon after arriving in Australia.” Therefore, less weight can be allocated to the Applicant on the basis of paragraph 14.2(1)(a)(i).
On the other hand, weight in favour of the Applicant can be found upon an application of paragraph 14.2(1)(a)(ii). I have earlier recounted the Applicant’s employment history in Australia, together with his non-remunerative volunteer contributions to the Australian community. I mentioned earlier, he has not been idle in this country. Accordingly, it is safe to conclude that the Applicant has spent an appreciable level of his albeit relatively brief time in this country making a positive contribution to the Australian community. I therefore allocate a moderate level of weight in the Applicant’s favour pursuant to an application of paragraph 14.2(1)(a)(ii).
I must also consider any weight attributable to the Applicant pursuant to paragraph 14.2(1)(b) of the Direction, which is concerned with the strength, duration and nature of any family or social links the Applicant has with Australian citizens and/or people who can otherwise remain here indefinitely. In his Personal Circumstances Form, the Applicant does not list any such person to whom he may be connected in Australia. He lists his father, mother and brother, all of whom are residents of Hong Kong.
This, of course, is not correct because the Applicant’s wife, Ms Yip, is in Australia and has always resided with the Applicant during his time in this country. It is propounded on behalf of the Applicant that:
“62. This is a case in which, given the highly unusual circumstances presented by Ms Yip’s illness, the consequences of non-revocation are even more severe for her than for Mr Ng…
63. The likely impact of her husband’s removal will be severe, immediate and life-long. The Hobson’s choice is for Ms Yip to remain in Australia but to be deprived of her husband, carer, and sole source of comfort, or to be deprived of her income and jeopardise her physical and mental health, to be with Mr Ng. As is set out below, either option will cause her considerable distress.
64. It is unequivocal that Hong Kong presents a number of fixed, environmental factors that exacerbate Ms Yip’s condition. These include the long work hours (recent estimates place this at 55 hours per week), pollution and overcrowding…
65. On the other hand, Ms Yip faces no better circumstances should she choose to remain in Australia without her husband. While she be not be exposed to the same environmental risk factors, she would lose her husband who performs critical, carer-type functions that enhance her quality of life and facilitate a stabilisation of her condition…
…
67. In consideration of these circumstances, we submit a heavy degree of weight ought to be allocated to this Other Consideration.”[111]
[111] Exhibit A3, pages 13-14.
There is medical opinion in the material describing Ms Yip’s condition. The evidence comprises a report from Ms Yip’s treating Rheumatologist, Dr Chin Ng. I note the opinion of Dr Ng was not the subject of any testing or vetting in cross-examination. Relevantly, Dr Ng opines thus:
“As she has active systemic lupus erythematosis (SLE) causing joint pain, lethargy and photosensitive rash it would be beneficial to be supported by her husband who is sharing the housework and minimised her sun exposure by performing the outdoor activities. It is also important for her to avoid significant stress which can potentially flare up her SLE. Relocating from Australia to Hong Kong where the lifestyle is stressful and working hours are long is likely to have a negative and detrimental impact on her SLE.”[112]
[112] Exhibit A3, paragraph [64], page 14.
To my mind, the critical issue with regard to the determination of weight allocable to this Other Consideration (b) involves the extent to which Ms Yip (an Australian citizen[113]) can be found to be likely to remain in Australia in the event of the Applicant’s removal. Put another way, the inquiry becomes one of ascertaining how firm she is about not returning with him to Hong Kong in the event of his removal.
[113] See Transcript, page 51, lines 24-25.
In her written evidence, Ms Yip says the following:
“20. If Ka Wai is deported, the relocation to Hong Kong is not possible for me due to my health condition. As mentioned before, my illness is caused by the stressful lifestyle in Hong Kong…
21. Also Hong Kong is in a very serious political crisis, the violence erupted and it is impacted the tourism industry, including hotels…
22. Since I cannot relocate to Hong Kong, if Ka Wai is deported, I strongly believe that I will have mental breakdown. He is not allow to enter Australia in the rest of his life, we can only remain our relationship via calls…”[114]
[114] Exhibit G1, G16, pages 143-144.
While Ms Yip propounded a position of adverse outcomes for her lupus condition upon any return to Hong Kong, it cannot be denied that, for the time she and the Applicant did reside there, her condition was the subject of both conventional western medical intervention together with traditional Chinese medicine. In her evidence in chief, she said the following:
“MS WHITE: Your husband said in evidence that you were taking Chinese medications or herbal remedies as well. Did they have any positive impact on your symptoms or on your condition? Did they help in any way?
WITNESS: At start it help a little bit. I can see a little bit of improvement but again because this disease is kind of like your immune system disease and it’s a lifespan, there’s no cure. So they did help a little bit relieve the symptoms, like relieve the pain but, yes, still not much can do with the immune system and the disease itself.
MS WHITE: How do you think your diagnosis impacted your husband? How did he manage that news?
WITNESS: Well he very supportive…He buy me food and also after I come out from the hospital he look for the Chinese medication and that Chinese doctor is very popular and he even go to the doctor very early to get me appointment. So they only take appointment by person so you can’t call and make – you need to go there, physically go there and he go there every – almost like every week. Yes.
MS WHITE: Was that – seeing this doctor that he was going to, was this for the sake the Chinese medicine we were talking about?
WITNESS: Chinese medicine, yes. Yes. I also go to the, like, my normal – my hospital appointment, yes.”[115]
[115] Transcript, page 50, lines 27-36 and 42-46, and page 51, lines 1-3.
In response to a question about whether she would accompany the Applicant back to Hong Kong upon his removal, Ms Yip said the following in her evidence in chief:
“MS WHITE: It's a very hard question but it needs to be asked, if Steve was deported or removed to Hong Kong, would you go with him? Do you have an answer to that question?
WITNESS: Yes, it is a very, very, hard decision. I really don’t know because I can’t really see like, how I can live in Hong Kong like with my situation, my health situation. And especially like now, if you’re aware what happened in Hong Kong like they have political crisis and not mention about the - like the economy recession because of the coronavirus and both of us working in a hotel. All I can think of is we may not be able to find a job and same thing, we don’t have a house, we don’t have an apartment, we don’t have a decent place to stay. What we need to do is go back to what we start – living with my parents, sharing a room with them and Steven going back to his parents. And now his brother is married, he used to share a room with his brothers and now his older brother has wife, has child, I don’t know how he can fit in an apartment with like five people.
MS WHITE: Let’s assume for the moment that you both find jobs, pushing aside the way that the economy has been affected by coronavirus, pushing aside the impact on the hotel industry as a result of the political situation, let’s just assume you get jobs, what then are the prospects of you two living together again on that income given the cost of living in Hong Kong?
WITNESS: Yes. Again, like it’s – even though we find a fulltime job, I don’t know the property market right now is – it’s really hard to give comment about it but what my concern is if I go back to Hong Kong, if I am working as a full time it is over again, it is long working hours, and no rest time, stressful life. That's all I think about, I'm worried about. Yes, I really can't go that far with accommodation or, you know, a house. Yes, I'm more, like, concerned about my health, yes.
MS WHITE: Well, let's assume that you make the decision to stay in Australia, how do you manage that situation without Steve?
WITNESS: I really don’t know. I don't know how to manage that without him...”[116]
[116] Ibid, page 57, lines 45-47 and page 58, lines 1-27.
In cross-examination, the Applicant’s wife was asked the same question – specifically – what her decision would be in terms of whether or not she would accompany the Applicant upon his removal to Hong Kong. As I understood her evidence, Ms Yip seemed equivocal about providing any definitive response about whether she would or would not return to Hong Kong with the Applicant. In support of this equivocal position, she cited factors such as (1) difficulty in obtaining airline tickets, (2) that she is happy with her work and life in Australia, (3) that she is concerned about her health and that sourcing appropriate and necessary medical treatment for her lupus condition in Hong Kong is difficult, and (4) that “it’s very complicated…so I don’t know…” The following transpired during cross‑examination:
“MR KYRANIS: Yes, I'll do that. As I understood your evidence it'd be a really tough decision for you to make if Steve were not allowed to stay in Australia and had to go back to Hong Kong?
WITNESS: That's right, yes.
MR KYRANIS: That's right. Realistically though, if Steve has to return to Hong Kong you've been married to him for 13 years, I believe, it'd be a tough decision for you, but you would go back with him, wouldn't you?
WITNESS; I can't really give you the answer right now, because, yes, I have to - yes, I have lots of worries. Yes, I really have lots of worries. And, like, for going back to Hong Kong it's just not get the flight tickets, it's not easy . I have everything here. I got my job here, and I am happy with my life here and I got an apartment. My apartment, the lease is here, like, the lease is not finished, and, yes, it's not easy as just buy a ticket and go back to Hong Kong. It's - I can't really - yes, (indistinct) right now. This is hard. I have a lot of concern and I need to consider about my health as well. Like, getting a doctor for lupus is not easy. It's not just going to see a GP. You need to find a specialist in Hong Kong, you know, and you need to wait for an appointment and I need to get all the information from my current doctor and transfer to the new doctor. It's very complicated, yes, so I don't know – yes.”[117]
[117] Ibid, page 59, lines 32-47, and page 60, lines 1-3.
In his written evidence, the Applicant says the following:
“Deportation to Hong Kong
89. But for Christy's health issues, I know l could return to Hong Kong without any substantial difficulties. While I enjoy our life in Australia, l have family in Hong Kong, this is where l was raised and I had secure and gainful employment in Hong Kong for nearly four years before l came to Australia.
90. If I am deported to Hong Kong, I am most concerned for how this will impact Christy. I know she would go with me but we are both terrified this will cause her health to deteriorate again. Knowing that l would be the cause of all this when she has done nothing is really hard to bear.”[118]
[My underlining]
[118] Exhibit G1, G9, page 71.
In his evidence in chief, the Applicant said the following in relation to the prospects of Ms Yip returning to Hong Kong with him:
“MS WHITE: Putting aside Christy’s illness for the moment, if she could go with you back to Hong Kong, is there any possibility of the two of you living together?
WTINESS: Well it would be really difficult. We will have to go through what we did in the past. She will have to live with her parents for a period of time before we find a job and before we have income – stable income to find accommodation. It’s going to be stressful considering the economy in Hong Kong and the – yes, at the moment.”[119]
[119] Transcript, page 17, lines 24-30.
In cross-examination, the Applicant said the following:
“MR KYRANIS: Mr Ng, if you and Christy did return to Hong Kong I presume there’d be no issue with Christy staying at her parents’ house?
WITNESS: Well, she would still be living with her parents, but the fact is as an adult sharing a bedroom with the parents is not something that you want to be - like, it’s not something you want to see because we - because I - as a husband I want to be with her to be honest and not - and I just want to look out for her. And - and it’s going to be really difficult for us to start a life. I just worry about her medical condition when she goes back - she’s going to go through all the anxiety, all the hardship - yeah. Look, that’s my answer, thank you.
MR KYRANIS: As I understood your evidence if you were to return to Hong Kong you would live with your parents, Christy would live with her parents?
WITNESS: Correct.
MR KYRANIS: At least in the short-term, say whilst you find a place together and set yourselves up there, is that right?
WITNESS: Correct.”[120]
[120] Ibid, page 24, lines 18-33.
Having regard to the evidence of both the Applicant and Ms Yip, I do, as an initial finding, find that Ms Yip is a person falling within the ambit of paragraph 14.2(1)(b). I accept she will experience a level of hardship in the event the Applicant’s visa remains cancelled, because she will be faced with a difficult decision. I found Ms Yip’s evidence about a return to Hong Kong to be equivocal and indicative of a reality that she was mostly undecided about what she would do in the event of an adverse outcome for the Applicant in the instant proceeding. Having regard to the Applicant’s evidence in conjunction with that of Ms Yip, I was left with the impression that, although it will be a difficult decision for her to make, were he to be removed and she had to manage without him, the best response she could provide was “I really don’t know. I don’t know how to manage that without him.” This is not an unequivocal refusal to return to Hong Kong with the Applicant.

The further reality is that while both the Applicant and his wife propound adverse health outcomes for her lupus condition if compelled to return to Hong Kong with him, her lupus condition was being managed in Hong Kong by a combination of western and traditional Chinese medicines and therapies. At the risk of sounding trite (which I certainly do not intend), there must surely be scores of other patients resident in Hong Kong with lupus conditions that are the subject of either successful or, at least, satisfactory treatment, management and control.
I am mindful of the evidence of Mr Danting, with whom the Applicant has developed a firm personal friendship over the course of years. I accept that, to an extent, the operative effect of paragraph 14.2(1)(b) does apply with respect to Mr Danting, such that a moderate level of weight can be allocated to it in the Applicant’s favour.
While she did not give oral evidence, I am additionally mindful of the statutory declaration of Shoan Shoan Chua, who has known both the Applicant and Ms Yip “since 2006/2007”.[121] He said:
“I’ve know Steve and his wife Christy since 2006/2007. We went to college (Queensland Institute of Business and Technology QIBT) together. Christy and I were housemates for two years, before each of us moving to different part of Australia? Steve and Christy and some other friends to Gold Coast campus of Griffith University, and me to Adelaide. We are close and Steve was always there to help me with various activities, include catching insects, sighted guiding me, reading to me, and helping me to reformat my assignment, as I’m someone with vision impaired.”[122]
[121] Exhibit G1, G22, pages 152-154.
[122] Ibid.
Similar to Mr Danting, with specific reference to Ms Chua I allocate, pursuant to paragraph 14.2(1)(b), a moderate level of weight in the Applicant’s favour.
I have taken into account the largely equivocal and otherwise inconclusive totality of the evidence around whether or not Ms Yip would relocate to Hong Kong with the Applicant in the event of his removal. In the circumstances of that equivocal evidence, and bearing in mind that her lupus condition has been previously treated adequately and satisfactorily in Hong Kong, I feel compelled to moderate any level of weight attributable to the Applicant pursuant to this paragraph 14.2(1)(b). Having regard to the evidence of Ms Yip, the Applicant, Ms Chua and Mr Danting, I find that the strength, nature and duration of the Applicant’s relationships with members of the Australian community, most particularly his wife, are strong and palpable. I find that this paragraph 14.2(1)(b) weighs moderately in favour of a finding to restore the Applicant’s visa status to remain in Australia.
Accordingly, having regard to the totality of evidence relevant to this Other Consideration (b), I am of the view that it weighs moderately in favour of revocation, but is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
There is no evidence before the Tribunal that cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application.
(d) Impact on victims
I find that there is no evidence before the Tribunal that the Applicant’s remaining in Australia would have on any victims. This consideration is not relevant to determination of this application.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
In his SFIC, the Applicant’s representative makes the following submission:
“72. Overall, we submit he will face considerable challenges in re-establishing himself in Hong Kong. Although he would not face any substantial language or cultural barriers and he has family connections residing there, the current economic crisis in Hong Kong (and the implications of this for the job market) and the impacts on his wife’s health and well-being are such that his own health may well be compromised by comparison with other residents. These concerns are of such magnitude as may undermine his reintegration to that country. This consideration weighs moderately in favour of revocation.”[123]
[123] Exhibit A4, page 16.
In its SFIC, the Respondent’s position is, predictably, more stringent:
“52. The applicant also has his father, mother and brother living in Hong Kong whom the applicant states is very supportive of him.
53. Accordingly, the Minister submits that there are minimal impediments to removal.”[124]
[124] Exhibit R2, page 13.
In his Personal Details Form, the Applicant speaks of adverse outcomes upon his return to Hong Kong as follows:
“The current political environment in Hong Kong will have a great impact on the hospitality industry, which I will make it difficult for me to find employment. If I were to return to Hong Kong my wife will have no choice but to sacrifice her life in Brisbane to go back with me and I fear that her illness condition would worsen.”[125]
[125] Exhibit G1, G8, page 62.
The Applicant is a man of 33 years of age. In terms of diagnosed medical or psychological conditions, the Applicant, in his Personal Details Form nominates: “Depression and anxiety. I have attended 10 counselling sessions in the past 12 months with a psychologist – Trudy Sheffield.”[126] He does not nominate being required to take any medication, nor does he say that he is currently being treated by any doctor/health professional/counsellor for any physical or mental health condition.
[126] Ibid, page 61.
It is necessary to return to the Applicant’s written evidence and repeating what the Applicant says about a possible removal to Hong Kong:
“89. But for Christy's health issues, I know l could return to Hong Kong without any substantial difficulties. While I enjoy our life in Australia, l have family in Hong Kong, this is where l was raised and I had secure and gainful employment in Hong Kong for nearly four years before l came to Australia.”
[My underlining]
To the extent any mental health condition may continue to adversely affect the Applicant, he will be able to access necessary medical care, treatment and governmental social support in Hong Kong[127] to the same (or very nearly the same) level as that available to him in Australia. The Applicant will have access to those services and supports in the context of what is generally available to other citizens of Hong Kong. Indeed, it is surely safe to conclude that, given he lived the first 27 years of his life in Hong Kong, he has significant experience and knowledge of how to source and access such care if required. Thus, the Applicant’s age and state of health are, on balance, factors that, at best, attract a slight measure of weight in his favour pursuant to this Other Consideration (e).
[127] Section 14.5(1)(c) of the Direction.
At the risk of repeating myself, has lived the first 27 years of his life Hong Kong. There are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in Hong Kong.[128] It cannot be said that the Applicant will face significant linguistic or cultural barriers were he compelled to return there. It can be accepted that he will suffer a level of emotional hardship having to leave behind his previously entertained ideas and prospects of a life and career in Australia. That said, he openly says that he has family in Hong Kong, that he was raised there and that he “…had secure and gainful employment in Hong Kong for nearly four years before I came to Australia.”
[128] Section 14.5(1)(b) of the Direction.
The contentions put on behalf of the Applicant about impediments he will face if removed can be dealt with in relatively short compass. First, it is suggested that a “significant obstacle” he will face involves “his separation from his wife should she elect to remain in Australia.” I have earlier given my reasons for my impression of Ms Yip’s evidence on this specific issue being equivocal and opaque. It is not at all clear that she will most definitely remain here upon his removal. The impression I took from her evidence was that it is more likely she will accompany him in the event of his removal to Hong Kong.
Second, it is contended that another “significant obstacle” arising from his removal would involve adverse consequences for Ms Yip’s mental health and wellbeing. As I have earlier found, her lupus condition was the subject of adequate and satisfactory treatment modalities in Hong Kong. It is difficult to accept that there are not scores of other sufferers from lupus in Hong Kong, whose condition is not the subject of satisfactory treatment. Third, it is contended that the Applicant will have “poor prospects of financially supporting himself, or for that matter his wife, in Hong Kong, given he has no job prospects…” Such a contention should be rejected because, while not ideal, both the Applicant and Ms Yip did have specific residential arrangements with their respective families while they resided in Hong Kong. Further, (1) the Applicant has told us that he “was gainfully employed in Hong Kong for nearly four years before [he] came to Australia” and (2) Ms Yip also has a history of gainful employment in Hong Kong.
Thus, upon any removal to Hong Kong, to the extent the Applicant may face some difficulty in re-establishing himself in that country, I consider those challenges would not be insurmountable and would only present as a short-term hardship, not precluding his successful re-settlement there.
Having regard to the totality of the evidence, I am of the view that this Other Consideration (e) is, at best, of moderate weight in favour of revocation.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which respectively weigh strongly in favour of non‑revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength nature and duration of ties: moderately weighs in favour of revocation;
·impact on Australian business interests: not relevant;
·impact on victims: not relevant; and
·extent of impediments if removed: moderately weighs in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs strongly in favour of non-revocation;
·Primary Consideration C weighs strongly in favour of non-revocation;
·Primary Consideration B is not relevant to determination of the instant application;
·I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of the moderate weight attributable to the relevant Other Considerations (b) and (e), even when combined, outweighs the very significant, combined and determinative strong weight I have respectively attributed to Primary Considerations A and C; and
·A holistic view of the considerations in the Direction therefore favours the non‑revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 197 (one hundred and ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

...............................[SGD].........................................
Associate
Dated: 1 December 2020

Date of hearing: 24 November 2020

Advocate for the Applicant:
Ms Caitlin White, Associate

Solicitors for the Applicant:

Advocate for the Respondent:

Fisher Dore Lawyers

Mr Jake Kyranis, Senior Associate

Solicitors for the Respondent: Sparke Helmore Lawyers
ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (pages 1 to 237)

Resp.

-

23 October 2020

R1

Respondent’s Tender Bundle (pages 1 to 28)

Resp.

-

9 November 2020

R2

Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 13)

Resp.

9 November 2020

9 November 2020

A1

Sentencing Remarks of Judge Clare SC (pages 1 to 3)

App.

5 July 2019

22 October 2020

A2

Queensland Corrective Services, Administration Form: Sentence Management – Decision Making Record (8 pages)

App.

16 September 2020

22 October 2020

A3

Applicant’s Statement of Facts, Issues and Contentions (pages 1 to 16)

App.

21 October 2020

22 October 2020

A4

Applicant’s Reply (pages 1 to 3)

App.

16 November 2020

17 November 2020

A5

Letter of Dr Ria Warfe (one page)

App.

17 November 2020

17 November 2020

A6

Mental Health Plan of Mr Pui Ching Yip (pages 1 to 5)

App.

17 November 2020

17 November 2020

A7

Psychologist appointment confirmation (two pages)

App.

17 November 2020

17 November 2020

Court	Date	Offence	Result
Brisbane District Court	5/7/2019	Fraud – dishonestly cause detriment by employee: value of at least $100,000 (BTN 1/1/17&25/11/17)[5]	Conviction recorded Sentenced to imprisonment for eight years Compensation: $42,300
Brisbane District Court	5/7/2019	Money laundering knowingly (BTN 1/1/17&25/11/17)[6]	Conviction recorded Sentenced to imprisonment for five years
Brisbane District Court	5/7/2019	Receiving tainted property (BTN 1/1/17&25/11/17)[7]	Conviction recorded Not further punished
Southport Magistrates Court	15/5/2018	Entering or remaining in casino contrary to order or direction (on 5/5/18)[8]	No conviction recorded Fined $300 In default: imprisonment: three days

Date of hearing:	24 November 2020
Advocate for the Applicant:	Ms Caitlin White, Associate
Solicitors for the Applicant: Advocate for the Respondent:	Fisher Dore Lawyers Mr Jake Kyranis, Senior Associate
Solicitors for the Respondent:	Sparke Helmore Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (pages 1 to 237)	Resp.	-	23 October 2020
R1	Respondent’s Tender Bundle (pages 1 to 28)	Resp.	-	9 November 2020
R2	Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 13)	Resp.	9 November 2020	9 November 2020
A1	Sentencing Remarks of Judge Clare SC (pages 1 to 3)	App.	5 July 2019	22 October 2020
A2	Queensland Corrective Services, Administration Form: Sentence Management – Decision Making Record (8 pages)	App.	16 September 2020	22 October 2020
A3	Applicant’s Statement of Facts, Issues and Contentions (pages 1 to 16)	App.	21 October 2020	22 October 2020
A4	Applicant’s Reply (pages 1 to 3)	App.	16 November 2020	17 November 2020
A5	Letter of Dr Ria Warfe (one page)	App.	17 November 2020	17 November 2020
A6	Mental Health Plan of Mr Pui Ching Yip (pages 1 to 5)	App.	17 November 2020	17 November 2020
A7	Psychologist appointment confirmation (two pages)	App.	17 November 2020	17 November 2020