Ng and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Ng and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3005 (18 August 2020)
Division:GENERAL DIVISION
File Number:2020/3208
Re:Hooi Hee Ng
APPLICANT

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

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:18 August 2020
Place:Perth

The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant’s Visa, pursuant to s 501(3A) of the Migration Act 1958 (Cth), be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
..........................[Sgd].............................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – whether Applicant properly served in accordance with s 501G of the Migration Act 1958 (Cth) – character test – substantial criminal record – border control drug convictions – Direction No 79 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor nephews – expectations of the Australian community – strength, nature and duration of ties to Australia – Applicant is a 44-year-old man who arrived in Australia as an 11-year-old child – extent of impediments if returned to Malaysia – impact of COVID-19 pandemic – Tribunal finds that there is another reason why the decision to cancel the Applicant’s Visa should be revoked – reviewable decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) – ss 198, 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(ii), 501G(1)
CASES
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
DKXY v Minister for Home Affairs [2019] FCA 495
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294
FYBR v Minister for Home Affairs (2019) 374 ALR 601
FYBR v Minister for Home Affairs [2019] FCA 500
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
JFSQ and Minister for Home Affairs [2019] AATA 616
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
SCJD and Minister for Home Affairs [2018] AATA 4020
Subasinghe and Minister for Home Affairs [2019] AATA 751
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 And Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018) – paras 6.1, 6.1(3), 6.2, 6.3, 6.3(2), 6.3(3), 6.3(4), 6.3(5), 6.3(7), 7(1)(b), 8, 13(1), 11.3, 13(1), 13(2), 13.1(1), 13.1(2), 13.1.1, 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(c), 13.1.1(1)(d), 13.1.1(1)(e), 13.1.1(1)(f), 13.1.1(1)(g), 13.1.1(1)(h), 13.1.1(1)(i), 13.1.2, 13.1.2(1), 13.2, 13.2(4), 13.2(4)(a), 13.2(4)(b), 13.2(4)(c), 13.2(4)(d), 13.2(4)(e), 13.2(4)(f), 13.2(4)(g), 13.2(4)(h),13.3, 13.3(1), 14(1), 14.1, 14.2(1), 14.3(1), 14.4(1), 14.5(1), Part C
Professor Dan Howard SC, Special Commission of Inquiry into crystal methamphetamine and other amphetamine-type stimulants: Report – Volume 1 (January 2020)
Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia (13 December 2019)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
18 August 2020
BACKGROUND

The Applicant is a 44-year-old man who is a citizen of Malaysia.
He first arrived in Australia on 30 July 1986 when he was 10 years old (G15/184) with his mother and three brothers. The Applicant’s father was already in Australia, having arrived in 1976 to work (G7/63-64).
The Applicant committed his first offence of dangerous driving on 26 May 2001 (Exhibit R5). He was convicted in the Fremantle Court of Petty Sessions on 12 July 2001 and received a $400 fine.
The Applicant’s first criminal offence of stealing was committed on 23 January 2008. On

1 December 2008 the Fremantle Magistrates Court sentenced the Applicant to a suspended sentence of imprisonment of nine months, suspended for 18 months (Exhibit R5).
On 23 June 2011, the Applicant was sentenced in the Perth District Court of Western Australia to a total term of seven years and six months’ imprisonment for two counts of

“[a]ttempt to possess an unlawfully imported border - controlled drug, namely methylamphetamine” to commence on 1 June 2011. The offence date for both offences was 25 February 2010 (first border control offences) (Exhibit R5).
On 19 December 2011, the Applicant was sentenced in the Perth District Court of Western Australia to a total term of three years, one month and 14 days’ imprisonment for two counts of “did possess an unlawfully imported border controlled drug or plant in a marketable quantity”, with offence dates of 4 January 2011 and 14 January 2011 respectively (second border control offences) (Exhibit R5).
The Crown successfully appealed this sentence, and on 17 September 2012 the appeal was allowed and a total effective sentence for both the first border control offences and the second border control offences of 13 years, seven months and two weeks, to commence from 1 June 2011, was imposed (Exhibit R5; G4/32-47).
In a letter from the Department of Home Affairs (Department) dated 2 October 2018,

the Applicant was advised that his Class BF transitional (permanent) visa (Visa) was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (G17/188-192) (Cancellation Decision). The basis of the cancellation was that the Applicant did not pass the character test due to having a substantial criminal record as he had been sentenced to a term of imprisonment of 12 months or more and was currently serving a full-time sentence of imprisonment in a custodial institution.
The Applicant was advised that he could make representations to seek revocation of the Cancellation Decision, which he did (G6-G13). Following a request from the Department to provide further information dated 24 January 2020, the Applicant made additional submissions (G14).
However, on 21 May 2020 a delegate of the Minister decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (G2/8-23). This is the Reviewable Decision currently before the Administrative Appeals Tribunal (the Tribunal).
The Applicant was notified of the Reviewable Decision in a hand delivered letter dated

26 May 2020 (G2/8-9). The Applicant signed to acknowledge receipt of the Reviewable Decision on 26 May 2020 (G2/10).
On 27 May 2020, the Applicant lodged an application in the General Division of the Tribunal seeking a review of the Reviewable Decision (G1/1-7). Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which the Applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the

84-day period started running on 26 May 2020, meaning that the Tribunal must hand down a decision with respect to this application on or before 18 August 2020.
ISSUES
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Direction No. 79 - Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No 79).
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on 30 July 2020.
Following a Practice Direction from the President of the Tribunal, His Honour Justice Thomas, the Tribunal ceased conducting in person hearings from Monday 23 March 2020 due to the risks associated with the COVID-19 pandemic. Consequently, the Applicant appeared by video conference from Yongah Hill Immigration Detention Centre. His legal representative, Ms Valenti and the legal representative for the Respondent, Mr McLaurin, also appeared by video conference. The Tribunal thanks the parties for their cooperation in doing so.
The Applicant gave oral evidence at the hearing and was cross-examined. He called his brother as a witness, who gave evidence by telephone, and was also cross-examined.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s Statement of Facts, Issues and Contentions dated 22 July 2020 (Exhibit A1);
(b)Bundle of documents labelled, “Section 501 – Applicant’s documents” submitted by the Applicant numbered A1 to A16 comprising 92 pages (Exhibit A2);
(c)Briefing email to Dr Phil Watts from the Applicant’s legal representative dated 3 July 2020 (Exhibit A3);
(d)Respondent’s Statement of Facts Issues and Contentions dated 1 July 2020 (Exhibit R1);
(e)
Section 501G documents (G-documents) numbered G1 to G18, comprising

225 pages (Exhibit R2);
(f)Respondent’s supplementary documents numbered S1 to S17, comprising 130 pages (Exhibit R3);
(g)Department of Foreign Affairs and Trade Country Information Report for Malaysia (DFAT Report) dated 13 December 2019 (Exhibit R4); and
(h)Western Australia Police Force History for Court – Criminal and Traffic (Exhibit R5).
JURISDICTION
Section 501G(1) provides that:
(1)If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B, 501BA, 501CA or 501F to:
…
(ba) not revoke a decision to cancel a visa that has been granted to a person;
the Minister must give the person a written notice that:
(c) sets out the decision; and
(d) specifies the provision under which the decision was made and sets out the effect of that provision; and
(e) sets out the reasons (other than non‑disclosable information) for the decision; and
(f) if the decision was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal:
(i)     states that the decision can be reviewed by the Tribunal; and
(ii)    states the time in which the application for review may be made; and
(iii)   states who can apply to have the decision reviewed; and
(iv)   states where the application for review can be made; and
(v)    in a case where the decision relates to a person in the migration zone—sets out the effect of subsections 500(6A) to (6L) (inclusive); and
(vi)   sets out such additional information (if any) as is prescribed.
The decision record of the Reviewable Decision was not included in the G-documents before the Tribunal, despite the letter of 26 May 2020 listing it as an enclosure. Instead, an earlier recommendation dated 29 April 2020 (G2/24) requesting a “full submission for…further consideration” was included instead of the decision record. Therefore, at the commencement of the hearing the Tribunal heard submissions from the parties as to whether the Applicant was properly notified of the Cancellation Decision in accordance with s 501G(1) of the Migration Act.
Both parties submitted that the Tribunal did have jurisdiction because the statement of reasons (at G2/11-23), which was also dated 21 May 2020, satisfied the requirements of

s 501G(1) of the Migration Act. Specifically, the statement of reasons set out the statutory provision under which the decision was made, the reasons for the decision and the decision itself in the final paragraph of the statement of reasons (paragraph [97]). Additionally, it was noted by the Respondent that the letter of 26 May 2020 referred to the decision record as being the statement of reasons on the second page of the letter notwithstanding that the decision record was listed at the end of the letter as a separate enclosure. Given that the statement of reasons complies with the requirements of s 501G(1), the Tribunal finds that the Applicant was properly notified of the decision, notwithstanding that a separate decision record dated 21 May 2020 was omitted.
LEGISLATIVE FRAMEWORK
Migration Act
Section 501(3A) of the Migration Act provides that:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(vii) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(viii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)
the person has a substantial criminal record (as defined by

subsection (7)); or
…
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)
the person has been sentenced to a term of imprisonment of

12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or…
(Original emphasis.)
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
(Original emphasis.)
Direction No 79
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 79 under s 499 of the Migration Act, which commenced operation on

28 February 2019. This Direction replaced the previous Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under
s 501CA (22 December 2014) (Direction No 65).
Paragraph 6.1 of Direction No 79 sets out the “Objectives” of the Migration Act, with

paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction No 79 provides “General Guidance” as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No 79 sets out “Principles” which must be taken into account by persons making decisions under s 501CA(4) of the Migration Act, including the Tribunal:
(1)
Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on

non-citizens in the expectation that they are, and have been, law-abiding,

will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

Informed by the principles set out in paragraph 6.3 of Direction No 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction No 79, with regard to the specific circumstances of the case (paragraph 13(1) of Direction No 79). Specifically, paragraph 13(2) of Direction No 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian community.
Paragraph 14(1) of Part C of Direction No 79 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)    International non-refoulement obligations;
b)    Strength, nature and duration of ties;
c)    Impact on Australian business interests;
d)    Impact on victims;
e)    Extent of impediments if removed.
Paragraph 7(1)(b) of Direction No 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
a) …
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.
Further guidance as to how a decision-maker is to apply the considerations in

Direction No 79 can be found in paragraph 8, “Taking the relevant considerations into account”, which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant agrees that he does not pass the character test (Exhibit A1/paragraph [3]).
As noted above at paragraphs [23] and [24], section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act. A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
As noted above at paragraph [5], on 23 June 2011, the Applicant was sentenced in the Perth District Court of Western Australia to a total term of seven years, six months’ imprisonment for the first border control offences. He was subsequently sentenced in the Perth District Court of Western Australia on 19 December 2011 to a total term of three years, one month and 14 days’ imprisonment for the second border control offences. Following a successful appeal by the Crown, on 17 September 2012 a total effective sentence for both the first border control offences and the second border control offences, of 13 years, seven months and two weeks was imposed.
Consequently, the Applicant does not pass the character test under s 501(6)(a) and

s 501(7)(c) of the Migration Act. He also conceded that he does not pass the character test (Exhibit A1, paragraph [3]).
The Tribunal must now consider whether there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community
Paragraph 13.1(1) of Direction No 79 provides that:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community…
Paragraph 13.1(2) of Direction No 79 then provides:
(2)Decision-makers should also give consideration to:
a)
The nature and seriousness of the non-citizen’s conduct to date;

and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paragraph 13.1(2)(a) of Direction No 79)
Paragraph 13.1.1(1) of Direction No 79 further provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)    The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)     The cumulative effect of repeated offending;
g)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)
Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the

non-citizen’s favour);
i)   Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
The Applicant’s criminal history consists of the following offences (Exhibit R5):
(i)“dangerous driving” (on 26 May 2001) for which he received a $400 fine in the Fremantle Court of Petty Sessions on 12 July 2001;
(j)15 counts of “stealing” for which the Applicant received a suspended imprisonment order of nine months’ imprisonment, suspended for 18 months, in the Fremantle Magistrates Court on 1 December 2008;
(k)“possess a prohibited drug (MDMA)”, “possess a smoking utensil used for smoking prohibited drug” and “possessing stolen or unlawfully obtained property” committed on 23 February 2009 for which the Applicant received fines of $250, $200 and $500 respectively. These offences were a breach of the Applicant’s suspended sentence for the 15 counts of “stealing”, with the Perth Magistrate’s Court fining him $500 on 21 June 2010, and ordering that his suspended imprisonment order was to continue;
(l)the first border control offences with an offence date of 25 February 2010; and
(m)the second border control offences with offence dates of 4 January 2011 and
4 January 2011 respectively.
The circumstances of the 15 counts of stealing were that between 23 January 2008 and
22 February 2008, the Applicant accessed the bank account of his cousin via the internet and transferred a total amount of $22,490 to himself over 15 transactions (S1/6).
The facts of the first border control offences were described by the sentencing judge, Wager DCJ, as follows (G5/49-50):
you [the Applicant] were convicted by unanimous jury verdict on 1 June 2011 of two offences of attempting to possess methamphetamine that had been unlawfully imported, being a border-controlled drug and being a marketable quality.
The facts accepted by the jury were that you had rented Unit 8… from Mr L [full name omitted]. You’d rented properties from him on a number of occasions, and Mr L also owned and managed a property diagonally opposite…
Two parcels entered Australia from Hong Kong on 22 February 2010. One of the parcels was addressed to [the Applicant] and the other was addressed to Mr H [full name omitted]. The details for delivery were Unit 4 [in the same unit complex as unit 8] and [the property diagonally opposite owned and managed by Mr L]. Mobile numbers on the consignment notes were registered to people other than yourself or Mr H.
Customs intercepted the parcels when they arrived in Australia. The parcels contained a T-shirt each and five dried food items each. Police found methamphetamine in the silica sachets that had been placed in each of the five packets of dried food. The packages were deconstructed and a substituted substance was placed in the silica packs. The packages were then resealed. On analysis, 119 grams of pure methamphetamine had been located in the silica sachets from the two boxes.
Police then carried out an operation whereby an officer masqueraded as an Australia Post delivery officer. He attempted to deliver the parcels to the listed addresses and then, when that was unsuccessful, left Australia Post calling notes and telephoned the mobile number attached to the parcel addressed to you. It appears that although you weren’t registered to the number, you spoke to him and arranged for delivery of the parcels in 20 minutes’ time.
You took delivery of the parcels and placed them in the unit you had rented…
Two other boxes that had consignment notes identical to the ones on the boxes from 22 February 2010 had been sent from Hong Kong on 23 February 2010. These came to the attention of the police on 25 February 2010, which was the day when the first two boxes were delivered to you. The undercover officer, still masquerading as an Australia Post officer, made arrangements for you to come and collect the boxes. You were then arrested when you attempted to obtain the boxes from him. Each of those boxes also contained a T-shirt and five dried food items. The silica sachets in the dried food items contained methamphetamine. A total of 114 grams of pure methamphetamine was located. You did not make any admissions in relation to your conduct.
The Sentencing Judge continued (G5/50):
At 14 per cent street purity, the methamphetamine that you attempted to possess had a value of $416,071 at $250 per gram, and $998,571 at $600 per gram. If the drug was sold in one ounce lots, then the value was $356,400, or $653,400 if sold at the higher end of the scale.
I accept Mr Watters’ submission that there’s no evidence indicating that the higher sum would have been received in this case. Accordingly, for the purposes of sentencing I accept that the value of the drugs that you attempted to possess was in the region of $356,400 to $416,071. Importantly, the quantity of street grams when cut was potentially 1.664.28 grams at 14 per cent purity.
Her Honour stated that “… I cannot be satisfied that you were aware of the precise quantity of the drugs that were imported, but from your previous involvement with methamphetamine I accept that you are aware that a significant sum was likely to be contained in the packages” (G5/53). Her Honour further stated that “… although the set up wasn’t the most sophisticated set up that a trained officer had seen, it was, in my view, sophisticated enough for you to avoid detection unless you were under professional scrutiny, and in that sense I find that the set up was quite sophisticated” (G5/53).
The facts of the second border control offences were described by Buss JA in the Court of Appeal decision of 17 September 2012. The excerpt below is from the Crown’s Appeal against the Applicant’s sentence, and so the “respondent” in the excerpt below is a reference to the Applicant, Mr Ng. His Honour stated (G4/35-36):
On 2 December 2011, the respondent was convicted, after a trial in the District Court before Curthoys DCJ (the primary judge) and a jury, on two counts in an indictment. The alleged offences were identical.
The counts alleged that on or about 4 January 2011 (in the case of count 1), and on or about 14 January 2011 (in the case of count 2), at Perth, the respondent attempted to commit an offence against s 307.6(1) of the Criminal Code (Cth) (the Code) in that he attempted to possess a marketable quantity of a border controlled drug, namely methylamphetamine, which had been unlawfully imported, contrary to s 11.1(1) of the Code.
The total quantity of methylamphetamine the subject of count 1 was 307.8 g with a purity of 73.8%. The total weight of pure methylamphetamine was 227.1 g.
The total quantity of methylamphetamine the subject of count 2 was 495.9 g with a purity of 77.4%. The total weight of pure methylamphetamine was 383.8 g.
Each count related to a separate parcel containing the methylamphetamine which had been imported into Australia through the EMS postal system.
The parcels had been sent from Hong Kong to Australia and could be tracked on the internet using the unique barcode references affixed to the parcels.
The drug the subject of count 1 was concealed within types of hand cream. It was intercepted by law enforcement authorities, and the parcel was not delivered. The drug subject of count 2 was concealed within a golden apple figurine. It was also intercepted by law enforcement authorities, but the authorities replaced the drug with an inert substance, and the parcel was delivered as part of a controlled operation.
The Crown produced evidence that the respondent had used the internet to track the progress of each parcel. When the respondent ascertained that the parcel the subject of count 2 was ready for delivery, he made contact with the delivery driver and arranged to collect the parcel at a location different from that stated on the parcel. After obtaining possession of this parcel, the respondent returned to his home. Later, police searched his home and vehicle and located the golden apple figurine (now empty) together with wrappings used to cover it. The police also located the respondent’s laptop computer which revealed the tracking enquiries he had made about both parcels.
The Court of Appeal noted the findings of fact made by the primary Sentencing Judge, Curthoys DCJ (as he then was) which were not contested (G4/38-39). These included the following findings:
(a)The respondent was selling methylamphetamine in one-ounce units towards the mid-range of the price scale.
(b)The respondent would have known or reasonably guessed that he was attempting to possess methylamphetamine which had a high degree of purity.
(c)The respondent was aware that he was attempting to possess a ‘fairly substantial’ amount of pure methylamphetamine with a ‘fairly substantial’ street value.
(d)These convictions were more serious than the respondent’s previous two convictions for the same offence.
(e)The respondent ‘carefully and regularly’ monitored on the internet the progress of both parcels and made inquiries to determine where they would be delivered.
(f)The respondent’s conduct formed part of a very significant drug enterprise and his role was important.
(g)The respondent engaged in the offending for monetary reward.
(h)The respondent’s involvement in drug dealing was ‘far more significant’ than was apparent when he was sentenced by Wager DCJ for the previous offences.
(i)The respondent was engaged in a systematic course of taking possession of imported methylamphetamine.
(j)The respondent was a well-organised low to mid level dealer.
(k)The offences were committed while he was on bail in relation to the offences for which he was convicted on 1 June 2011 after the trial before Wager DCJ and a jury.
(l)The value of the methylamphetamine the subject of count 1, if sold at a street level purity of 14%, was between $348,000 and $973,000. The value of the methylamphetamine the subject of count 2, if sold at a street level purity of 14%, was between $587,000 and $1,645,000.
(m)The respondent was trusted with illicit drugs by people at a high level in the chain of distribution. There was nothing to suggest that the respondent was under pressure to participate in drug importation and dealing. The respondent was ‘not a mere foot soldier akin to a courier near the foot of the hierarchy’.
(n)The respondent became addicted to gambling from about 1995. Initially, he attended the casino socially with friends, but gradually he became addicted.
(Transcript references omitted.)
Paragraph 13.1.1(1)(a) of Direction No 79 provides that “without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously”. As is evident from this wording, paragraph 13.1.1(1)(a) of Direction No 79 does not limit the range of offences that may be considered serious. When sentencing the Applicant for the first border control offences, Wager DCJ referred to the serious harms to members of the community that could result from methylamphetamine and referred to “the serious nature of the offences” (G5/50-51). In sentencing the Applicant for the second border control offences, Curthoys DCJ stated that he regarded the convictions as “more serious than the previous two convictions” (S5/23). The Tribunal also notes the large quantity of drugs involved in both the first border control offences and the second border control offences, as well as the substantial street value of the drugs, which also tends to suggest the seriousness of the offending.
Paragraph 13.1.1(1)(b) of Direction No 79 is not applicable because the Applicant has not committed violent crimes against women or children, nor is paragraph 13.1.1(1)(c) of Direction No 79, because the Applicant has not committed any crimes against vulnerable members of the community or government representatives or officials.
Paragraph 13.1.1(1)(d) of Direction No 79 also requires the Tribunal to have regard to the sentences imposed by the Courts for a crime or crimes. The Applicant received lengthy sentences of imprisonment for the first border control offences and the second border control offences. In sentencing the Applicant for the first border control offences, Wager DCJ stated: “[t]he serious nature of the offences that you’ve committed is recognised by a maximum penalty of 25 years’ imprisonment or 5,000 penalty units or both…” (G5/51). Her Honour continued to state that “the offences are very serious indeed and that a significant term of imprisonment is the only appropriate option” (G5/55). When increasing the Applicant’s sentence, Buss JA, with whom the other Court of Appeal Justices agreed, referred to the seriousness of the Applicant’s first and second border control offences, stating that (G4/45-46):
There is no doubt that each of the four offences committed by the respondent was very serious. The weight, purity and value of the methylamphetamine, and issues of personal and general deterrence and appropriate punishment, were of particular importance in determining the overall total effective sentence. The respondent’s offending was not ameliorated by any mitigatory factors of significance. His personal circumstances did not justify any leniency. The respondent was part of a very significant drug enterprise, his role in the enterprise was important, his offending was driven by his desire for monetary reward and not by any addiction to illicit drugs, he did not act impulsively, the period of his offending was not transient and the modus operandi demonstrated planning and preparation. Also, the respondent did not evince any remorse and had no insight into his criminal behaviour. Further, the respondent’s decision to reoffend while on bail showed a cavalier disregard of (if not contempt for) the law.

The Tribunal finds that the total sentence imposed (being 13 years, seven months and two weeks) is indicative of the fact that the Applicant’s first border control offences and second border control offences were very serious.
The Tribunal is also required to consider the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness (paragraph 13.1.1(1)(e) of Direction No 79). The Applicant’s criminal history is approximately two pages in length and is not lengthy when compared to many seen by the Tribunal. His criminal offending occurred over a period of approximately three years between 23 January 2008 and 14 January 2011, and during this time he was convicted of 22 offences, in addition to the breaches of his suspended imprisonment order due to his 15 stealing offences. Thus, his offending was over a short period of time, but can be regarded as frequently occurring within that time. The Applicant’s offending can also be regarded as increasing in seriousness. It commenced with dangerous driving on 26 May 2001, escalating to stealing, drug possession and possessing stolen property. The Applicant then committed the first border control offences, with the second border control offences being more serious than the first (as was noted by the Sentencing Judge, Curthoys DCJ at S5/23), and being committed whilst the Applicant was on bail for the first border control offences.
With respect to the cumulative effect of repeated offending (paragraph 13.1.1(1)(f) of Direction No 79), the Applicant’s court history, breach of his suspended sentence of imprisonment and his lengthy custodial sentences of imprisonment would likely have had a cumulative effect of placing a burden on the resources of police, corrective services, and the court system.
The Applicant has not provided false or misleading information to the Department by not disclosing prior criminal offending on any incoming passenger cards and so paragraph 13.1.1(1)(g) of Direction No 79 is not applicable.
The Applicant has not previously received any formal written warning that further offending may affect his migration status, and so paragraph 13.1.1(1)(h) of Direction No 79 is not applicable.
Paragraph 13.1.1(1)(i) of Direction No 79 requires the Tribunal to consider whether the Applicant has committed any crime while in prison or immigration detention, for example during an escape from immigration detention. This is not applicable to the Applicant.
Based on the analysis of each of the sub-paragraphs of paragraph 13.1.1(1) of Direction No 79 above, the Tribunal finds that the nature and seriousness of the Applicant’s offending, particularly his first border control offences and second border control offences, can be categorised as very serious. Consequently, the Tribunal finds that paragraph 13.1.1 of Direction No 79 weighs strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1(2)(b) of Direction No 79)
A decision-maker must also have regard to the following principle, described in paragraph 13.1.2(1) of Direction No 79 as follows:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm
Broadly speaking, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. This firstly requires a consideration of the nature of the harm should the Applicant engage in further criminal or serious conduct (paragraph 13.1.2(1)(a) of Direction No 79). The Tribunal has previously recognised the harmful effects of drugs on the community. The Respondent referred to the following passage from the decision of Senior Member Cameron in SCJD and Minister for Home Affairs [2018] AATA 4020 (SCJD) at [81]-[83]:
81.The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person’s drug dependency. There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
82.In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.
83.There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.
Additionally, the Respondent referred to Professor Dan Howard SC, Special Commission of Inquiry into crystal methamphetamine and other amphetamine-type stimulants: Report – Volume 1 (January 2020) (Special Commission Report) (S17/118-130) which detailed the harms of methylamphetamine use to users (including psychological and physical health impacts, death, harms to relationships, loss of jobs, housing and educational opportunities and involvement in criminal activity to support drug use), as well as harms to others in society (including road accidents, crimes and violence, economic costs to business and government services, as well as the impacts on the family and friends of drug users).
The harms that can result from the importation of drugs were also articulated in detail by both sentencing judges. When sentencing the Applicant for the first border control offences, Her Honour Wager DCJ stated (G5/50-51):
The potential damage to people living in Australia as a result of an importation of this size, being the potential supply of 1.664 kilo of methamphetamine on the street, is significant. It’s recognised that methamphetamine has a link to other kinds of violence, including armed robberies and burglaries, and the damage that is caused by it is not only felt by potential users of the drug, but also by the community as a whole because of the way in which that drug can induce other types of offending.
The effects of methamphetamine on an individual are well documented, and our Court of Appeal has received expert evidence in relation to the effects and has commented on it in the past. Methamphetamine can cause physical and psychiatric illness and it can lead to violence towards individuals and within families.
His Honour Judge Curthoys DCJ, when sentencing the Applicant for the second border control offences, also discussed the harm that can result from the type of offences committed by the Applicant (S5/27):
The social and personal consequences of illicit drug use within the community continues to be a heavy burden. Courts must impose sentences which will operate as a real deterrent to those who may be minded to bring harmful drugs into Australia.
There’s clear recognition of the damage this type of drug does in the community. And the use of drugs is often associated with crimes of violence; armed robberies, burglaries. So it’s not only those to whom you distribute the drugs, but those who – where those drugs ultimately end up…And drug offences such as these involve the callous exploitation of the weakness of others for profit.
Curthoys DCJ later stated that (S5/28-29):
[T]he fact is that the use of illicit drugs is of itself – and their use in the community is a very significant fact in isolating users and addicts from their families and from their place in the community at large.
The Tribunal agrees with the harms articulated by Senior Member Cameron in SCJD, the Special Commission Report and by both sentencing judges. The Tribunal observes that the nature of harm if the Applicant were to commit further drug offences is varied. Receiving and possessing imported drugs supports the illicit drug trade in the Australian community. The prevalence of drugs in the community causes harm to the community on many levels, including drug related crimes such as violence and theft, increases in property and health insurance premiums, as well as mental and other health issues for drug users, and the negative impact that this can have on their families.
Likelihood of engaging in further criminal or other conduct
Next, the Tribunal is required to consider the likelihood of the Applicant re-offending if he were permitted to remain in the Australian community (paragraph 13.1.2(1)(b) of Direction

No 79).
In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359, 389 [111] (which was quoted with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424, 444-445 [95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117, 124–5 [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be.
Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality, but also on the seriousness of the consequences if it does.
(Footnotes omitted.)
In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] Moshinsky J stated that: “…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] Kenny J also referred to the basis for the assessment of the likelihood of re-offending as requiring a “rational and probative basis”.
As noted above at [44], the Applicant does not have a lengthy criminal history and his offending occurred over an approximate three-year period between 2008 and 2011, with one additional driving offence in 2001. Of concern is that the Applicant committed the second border control offences whilst he was on bail for the first border control offences. Previously, in 2010, the Applicant breached the suspended imprisonment order he received for the 2008 stealing offence when he was convicted of possessing MDMA and a smoking utensil. These facts do tend to suggest a disregard for Australian laws and lawful authority, and a likelihood of future reoffending.
The Court of Appeal noted that, for both border control offences, the Applicant “did not evince any remorse and had no insight into his criminal behaviour” (G4/46). This is of concern because expressing remorse can be indicative that an applicant accepts responsibility for his or her offending (JFSQ and Minister for Home Affairs [2019] AATA 616, [65] cited in Subasinghe and Minister for Home Affairs [2019] AATA 751, [52]), which may in turn reduce the likelihood of reoffending. However, in the Applicant’s sworn statutory declaration he stated that although it “[took him] some time to adjust and accept my reality” upon entering prison, he was able to “[reflect] on my life and my behaviours” and “participated in rehabilitation programs to get me over my addictions”. The Applicant stated his remorse and shame for his offending, and accepted responsibility for his own poor choices (Exhibit A2/A1, paras [28]-[33]). He further stated that:
My prison sentence was a long one and I have had the past 9 years to carefully think things through. As a result, I am not the same person that I was at the start of my incarceration; I have progressed with my personal growth and development.
The Tribunal found the Applicant’s remorse at the time of the hearing to be genuine, and contrary to the submission of the Respondent, the Tribunal’s impression was that the Applicant attempted to answer questions at the hearing truthfully, and did not attempt to minimise his offending.
When discussing his completion of the voluntary Sycamore Tree Program in 2017, the Applicant also displayed insight into the impact and consequences of his offending on his family, and particularly the pain that he had put his mother through (Exhibit A2/A1, paras [40]-[45]). The Applicant also demonstrated an understanding of the triggers for his offending, namely his gambling and drug addiction (Exhibit A2/A1, paragraph [39]).
The Applicant’s evidence was that he felt under significant stress after he accumulated his gambling debt, and that, “[i]n 2008 I became so stressed that I turned to drugs as a coping mechanism”. He stated that he commenced using the drug ecstasy, and then shortly progressing to methylamphetamine, becoming addicted (A2/A1, paragraphs [13]-[15]). He further stated that he started dealing drugs “to earn some money and to reduce the cost of my personal drug habit” (A2/A1, paragraph [20c]). Nevertheless, the Applicant’s evidence was that he also accumulated a substantial drug debt of $30,000 as a result of dealing drugs, but not getting the money on delivery. He was given the opportunity by one of his drug dealers to clear the debt by collecting parcels and renting property for the parcels to be delivered to. His evidence was that he acted out of desperation (Exhibit A2/A1, paragraph [20d]) and that he felt that he did not have any options but to commit the offences in order to clear his debts. He also stated that “I was fearful that I would be harmed if I did not do what I was told”. The Applicant was not, however, under duress at the time of the offending. Indeed, in sentencing, Curthoys DCJ stated that “there is nothing to suggest that you were under pressure…or under any duress…” (S5/30). Rather, it appears to the Tribunal that a lack of consequential thinking skills contributed to the Applicant thinking that he had no other option available to him and that he may be harmed. However, at the hearing, the Applicant was able to articulate how he would do things differently if he was approached to possess drugs again, for example by seeking help from family and from the police (transcript/55-56).
The Applicant has been in prison since 1 June 2011, and it was also evident to the Tribunal that although the Applicant did not show insight or remorse at the time of sentencing and at the start of his sentence, his maturity and insight developed as his sentence progressed. The Tribunal notes the Applicant’s evidence that (Exhibit A2/A1, paras [35]-[39]):
35.At first I found some of the programs difficult. I am a quiet and private person. I found it challenging opening up in group environments. Initially I found it very confronting and I was not particularly comfortable sharing in a group environment, so it may have appeared that my participation was somewhat lacking or that I did not want to be there.
…
37.In my first 3 years in prison I was still not completely in the right head space and was still struggling trying to process everything emotionally. With that said, upon reflection, from the rehabilitation programs I participated in at that stage of my sentence, I did start to gain new perspectives and my way of thinking gradually started to change.
38.The more time went on, and the more rehabilitation I undertook, the more I had a chance to reflect and look deeper within myself and question my behaviour and way of thinking. I became more and more aware of my negative thinking and how this translated to negative and non-serving behavioural patterns.
39.I now clearly see the link between my gambling and drug addictions and my offending, which was something I initially struggled with.
This evidence from the Applicant, that he initially found programs difficult and struggled to process the content, but gradually made progress with his rehabilitation as his sentence progressed can be seen in the program completion reports for the compulsory programs that the Applicant completed in prison.
Early in his sentence, the Applicant completed the Think First program, which focussed on cognitive skills, between 26 November 2012 to 21 January 2013. The modules in this program included problem solving, emotional management and offence awareness (G8/88). The completion report noted that the Applicant’s:
efforts and willingness to apply himself to the Think First program were noted as positive and fairly consistent. While he appeared to experience language and comprehension issues at times, in general facilitators observed a reasonable understanding of program content.
Overall, Mr Ng presented as marginally motivated to engage in the program. While he evidenced the ability to identify problems related to past offending, he also appeared resistant when challenged to consider and reflect on identified

pro-offending statements and beliefs. While Mr Ng eventually appeared to capitulate on some of these beliefs, it usually entailed significant group discussion to do so.
The completion report stated that the Applicant “was believed to make a small number of gains… as a result of his participation in the program” (G8/90) but stated that there “remain areas of concern” that the Applicant needed to address. The completion report further noted that the Applicant was at an early stage of his sentence which may have impacted upon his performance in the program (G8/90-1):
His overall attitude toward problem solving in general appeared to be quite vague or lacking in motivation to grasp the full importance of problem-solving skills. This may have been related to the fact that he still has a long sentence to serve and therefore may not be in the right frame of mind at this point in time to fully consider and reflect on possible solutions to past problem areas.
The next compulsory program completed by the Applicant between 22 November 2016 and 23 February 2017 was the Pathways Program which focuses on substance abuse and offending (S6/39). The summary and recommendations section of the completion report summarised the Applicant’s gains and outstanding treatment needs following completion of the program (S6/44-45), and in the Tribunal’s opinion showed a slight improvement in terms of the Applicant’s self-reflection and treatment gains:
Mr Ng was assessed as having treatment needs associated with antisocial peer association, poor consequential thinking, limited coping, substance misuse and emotional management and poor problem-solving. As a consequence of attending the program Mr Ng was able to acknowledge the link between his drug use, addictive behaviours (gambling) and his resulting offending. He was able to explore and gain more awareness of the financial and interpersonal costs of his offending and appeared to develop more varied coping strategies such as deep breathing and

self-talk. He developed a partial management plan which he agreed was as incomplete, however indicated an intention to continue working on this due to his long prison sentence and the uncertainty of his future in Western Australia due to potential deportation to Malaysia.
In the event that Mr Ng is released to Parole, his subsequent supervision by a Community Corrections Officer could be supportive of his efforts at implementing and maintaining a pro-social lifestyle. As Mr Ng had previously identified financial and life stressors as having precipitated his illicit substance use, he is likely to benefit from a referral to an external Drug and Alcohol counselling service as well as financial counselling immediately following his release with the view of assisting him to manage his debts and further develop, implement and consolidate his management and relapse prevention plan.

The Applicant completed the voluntary restorative justice Sycamore Tree Program (G8/78-80) in October 2017, following his completion of the Think First and Pathways Programs. In his evidence the Applicant stated that the program had a profound effect on him: “I was directly confronted by all the issues I had previously avoided” (Exhibit A2/A1, paragraph [41]). He articulated some of the insights he gained as a result of participating in this program, which involved victims of crime speaking about how crimes had affected them. As noted above, these included insights about the impact and consequences of his offending and imprisonment on his mother. For example, the Applicant stated that he realised after one session that: “it was my stupid choices in life that caused me to be in jail and I thought about all the pain I have put my mother through” (Exhibit A2/A1, paragraph [44]). Further, the Applicant commented that (Exhibit A2/A1, paragraph [46]):
After every session, I had more and more soul-searching to do. I had many mixed feelings. I questioned myself a lot and realised how lucky I was to have a loving and supportive family and live in a country that has so many opportunities. I realise the pain and suffering I’ve caused to my family and the impact on others who are not even directly involved or linked to me. My past behaviour was just not acceptable. The program really had a profound impact on me and consolidated all the rehabilitation I had undertaken.
An individual management plan for the Applicant with an approved date of

21 February 2018 stated that the Applicant “is a long term and valuable member of the Gamblers Anonymous focus group, with 30 attendances noted in August of 2017” (G10/152). The Applicant also completed the 12-step program, and a letter from Wooroloo Prison Farm stated that he was “always willing to share at meetings and promote the benefits of attending sessions” (G8/81). The Applicant’s parole report dated 7 May 2019 (S7/48) also stated that the Applicant “is an active member of the Gamblers Anonymous and Narcotics Anonymous focus groups”.
The Applicant has also engaged in the Men’s Group and Life Skills program while in immigration detention (Exhibit A2/A1, paragraph [53]).
The Applicant was granted release on parole on 30 November 2019 in a parole order dated 20 November 2019 (Exhibit A2/A14). However, upon parole the Applicant was taken into immigration detention before he could benefit from a period of supervision in the community. The Applicant’s parole order does not expire until 14 January 2025. This means that if he is released into the Australian community, he will have a substantial period of parole supervision. Additionally, numerous parole conditions were imposed under the parole order which will assist the Applicant to abstain from drug use and gambling. These conditions include submitting to urinalysis if directed by his parole officer, attending drug, gambling and financial counselling at the direction of his parole officer, disclosing details of his finances to his parole officer, not to enter any premises where gambling is conducted and not to access online gambling forums. This substantial period of parole supervision and monitoring with the imposition of these and other parole conditions, will assist the Applicant to abstain from drug use and gambling. They are likely to further assist his rehabilitation and reintegration into the community and reduce the likelihood of future reoffending.
The Applicant has been in prison since 1 June 2011. As noted in the preceding paragraph, when he was released to parole on 30 November 2019, he was taken straight into immigration detention. Thus, on the one hand, he has not had the opportunity to test any gains he has made in his treatment programs in the community. On the other hand, being in prison and immigration detention for approximately nine years has had a salient effect on the Applicant. In his written statement the Applicant stated (Exhibit A2/A1, paras [71]-[72]):
71. I have been focused on my rehabilitation for the past 9 years including both planned and voluntary programs. It was my first time in prison and as much as prison provided me with the opportunity to rehabilitate myself, I do not wish to return there.
72. The 9 years I spent in both prison and immigration detention, away from my family, serves as a significant reminder as to why I will not repeat my past mistakes.
73. I have addressed the underlying causes of my offensive behaviour and addressed my addictions and there is no way I would throw all that hard work away. Mentally and physically I am strong and focused. I have learnt how to handle my emotions and identify my triggers to avoid any relapse.
Except for excess food items being found in his prison cell on multiple occasions (S7/48), prison records show that the Applicant has been well behaved in prison. His Parole Report recorded that unit staff described him as “a quiet prisoner who rarely comes to their attention”, and that he is “well manner[ed] in his interactions with staff” (S7/48). The Applicant was employed in the bakery, and the Parole Report records that his work was of “a good standard” and that:
He has trained new people who have come into the bakery and is willing to do other jobs outside of his role. [H]e is further described as an excellent, hard-working and very reliable worker. He gets on well with others and … there have been no discipline problems with this prisoner in the kitchen.
The Applicant’s good prison behaviour and work ethic is to his credit, and the skills that he gained in the bakery may also assist him to find employment in the community. In this regard, the Tribunal notes that prior to his imprisonment, the Applicant finished high school and obtained a Bachelor of Science university degree in mathematics (G9/130-145). He also completed numerous vocational courses in prison including courses relating to construction, health and safety, and food (G11/165). The Applicant’s education, vocational courses and work in the prison bakery may assist him to find employment if he is released into the Australian community, which would assist in his rehabilitation and reintegration into the community.
The Applicant has also been able to stay drug-free for the last nine years and has not engaged in any gambling. He was frequently tested for alcohol and drugs between 2011 until 2019, with all tests being negative (G9/109-110; S7/47-48). This period of abstinence will also assist him to reintegrate into the community and not to re-offend.
The Applicant has the support of his family, and particularly his mother and brother who have offered him accommodation with them if he is released into the Australian community. His mother is elderly and suffering from health issues, and the Applicant will be her carer if he is released into the Australian community. Although the Applicant previously had family support and nevertheless committed serious offences, the Tribunal is of the opinion that he has been able to demonstrate insight into the effect of his offending on his family, including bringing shame to his family. For example, in his statement the Applicant said (Exhibit A2/A1, paras [75]-[77]):
75. I have brought much shame and heartache to my family, especially my mum. I have missed out on so much precious time with them. My mum is elderly and not being able to support her and help my brothers with her care has had a major impact on me.
76. My family mean everything to me, and I don’t want to do anything to disappoint them or let them down. I just want to make them proud.
77. As difficult as everything has been for them, I still have my mother and brothers’ wholehearted support. I have a home and loving family to return to. They will be able to support me financially and emotionally.
The Tribunal is of the opinion that the Applicant’s desire to help his family, to care for his mother, and not to let them down will assist in motivating him not to reoffend.
The Tribunal also had before it an independent psychological assessment of the Applicant undertaken by Dr Watts, adjunct associate professor in clinical psychology (Exhibit A2/A9/33-37). Dr Watts has substantial experience conducting psychological assessments of offenders (Exhibit A2/33). Dr Watts completed his assessment following a teleconference with the Applicant on 14 July 2020 for approximately one hour. He also based his opinion on the Personality Assessment Inventory (PAI) which was completed online by the Applicant. Dr Watts stated the findings of his psychological assessment of the Applicant in a report dated 15 July 2020 (Exhibit A2/A9/33-37).
Dr Watts provided the following qualified opinion (Exhibit A2/A9/36):
He [the Applicant] has also had nearly 10 years in prison to mature and reflect upon his behaviour. If he is able to maintain his commitment to not gamble nor use drugs, I would be of the opinion there is a low likelihood of reoffending. While his language skills are low, his intelligence and capability is such that he should be able to find employment and make meaningful contributions to Australian society. I further note that he will be on parole for about four years, which will mean both drugs and gambling will be monitored.
The opinion of Dr Watts is useful to the Tribunal because the Think First and Pathways Completion Reports were completed some time ago and did not state any assessment of the Applicant’s likelihood of reoffending before and after completion. On the other hand, Dr Watts’ assessment was made in the month prior to the Tribunal hearing and is based on up to date information. It is therefore of assistance to the Tribunal in reaching an informed opinion regarding the likelihood of the Applicant reoffending. The Tribunal accepts the opinion of Dr Watts that the Applicant’s likelihood of re-offending is low if he can refrain from gambling and drug use.
The Applicant’s evidence was that he initially accrued a debt of $100,000 primarily as a result of his gambling addiction, but that his brother and mother helped him to repay half of the debt, being $50,000 (transcript/27). However, the Pre-sentence Report dated
20 June 2011 stated that the outstanding $50,000 debt was from a car loan and credit card debts, and that he had to “provide the vehicle to an associate in lieu of financial debts” (G9/148). At the hearing the Applicant conceded that he had not repaid the $50,000, but that since he had been in prison no one had approached him regarding repayment of the debt, and so he thought the debt had gone away (transcript/57). Although the Applicant submitted copies of credit checks showing that he has no outstanding debts (Exhibit A2/A10 and A11), the Respondent submitted that some of the debt may consist of personal debts to individuals which would not be reported to formal credit reporting bodies (transcript/69). The Respondent noted that the Pathways completion report stated that the Applicant had identified financial insecurity associated with his unpaid debts as a possible risk factor for him which could be detrimental to his abstaining from substance use (Exhibit R1, paragraph [39e]; S6/43). There is, however, no evidence to suggest that the Applicant owes debts to private individuals who may pursue him for the return of the monies. Assuming there was, the Applicant has stable accommodation with his brother, and his parole conditions include attending financial counselling, disclosing details of his financial affairs to his parole officer if asked to do so, attending drug counselling and submitting to urinalysis (Exhibit A2/A14/76). These are protective factors which, together with the improvements the Applicant has made in his rehabilitation and consequential thinking, would support the Applicant to resolve any such issues in a lawful manner if they were to arise.
Having considered the evidence outlined above, the Tribunal finds that, on the balance of probabilities, there is a low likelihood of the Applicant reoffending. The Tribunal has considered various protective factors which will assist the Applicant not to reoffend. In summary, these included:
·the deterrent effect of spending the last nine years in prison and immigration detention;
·the shame of disappointing his family;
·the Applicant’s insight and maturity into his offending and the triggers for his offending which developed as his prison term and rehabilitation progressed;
·the voluntary and intensive rehabilitation programs he has undertaken in prison and immigration detention;
·his good prison behaviour including his work ethic in the prison bakery;
·the vocational courses he completed in prison;
·the monitoring and supervision he will receive over the next four years on parole, which is a lengthy period of parole;
·the support from his pro-social family, including them providing him with accommodation; and
·the Applicant undertaking the role of carer for his elderly mother.
The Tribunal has also considered the factors that may be suggestive of a risk of re-offending. In summary, these included:
·his breaches of his suspended imprisonment order and committing the second border control offences whilst on bail;
·the fact that the Applicant still had some outstanding treatment gains after completion of the Think First and Pathways programs;
·that any gains made by the Applicant in his compulsory and voluntary treatment programs have been untested in the community; and
·the fact that he has had family support in the past, yet continued to offend.
Given the nature of the harm that drug related offending can cause, the harms that could potentially arise from similar offending may be so serious that any risk of this type of offending being repeated is unacceptable. Accordingly, the Tribunal finds that the principle set out in paragraph 6.3(4) of Direction No 79 is relevant. This paragraph provides:
In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
For the reasons outlined above, the Tribunal finds that there is a low likelihood that the Applicant may reoffend, should he be given a further chance to be released back into the Australian community. By itself, this would support the Tribunal concluding that this consideration only weighs slightly against the revocation of the Cancellation Decision.
However, the Tribunal has also considered the principle in paragraph 6.3(4) that any risk of this type of reoffending in the future is unacceptable, given the range of harms that can result from methylamphetamine in the community. An application of this principle suggests that this primary consideration should weigh strongly against the revocation of the Cancellation Decision.
On balance, when the low risk of the Applicant’s offending is considered with the principle in paragraph 6.3(4), the Tribunal finds that the “risk to the Australian community” part of this primary consideration (that is, paragraph 13.1.2 of Direction No 79) most appropriately weighs moderately against the revocation of the Cancellation Decision.
Summary on paragraph 13.1 of Direction No 79
In summary, the Tribunal has found that the “nature and seriousness of the conduct” part of this primary consideration (that is, paragraph 13.1.1 of Direction No 79) weighs strongly against the revocation of the Cancellation Decision, and the “risk to the Australian community” (that is, paragraph 13.1.2 of Direction No 79) weighs moderately against the revocation of the Cancellation Decision.
Second primary consideration: The best interests of minor children in Australia (paragraph 13.2 of Direction No 79)
Paragraph 13.2 of Direction No 79 provides, in part:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 13.2(4) of Direction No 79 continues to outline the factors that a

decision-maker must consider when determining the best interests of a child.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has three minor nephews. The Applicant’s older brother (who lives with and currently cares for the Applicant’s mother in Perth), has an 11-year-old son, JH (Exhibit A2 paragraph [6]/A6, paragraph [2]). The Applicant’s other older brother, who lives on Christmas Island, has two sons, XY and XC, aged nine years and 11 years respectively.
JH
Paragraph 13.2(4)(a) of Direction No 79 requires the Tribunal to consider the nature and duration of the relationship between the child and the Applicant. The Applicant is the biological uncle of JH. The Applicant stated in his evidence at the hearing that he was involved with JH for the first two years of his life before he went to prison, and that he spent “a fair bit of time with” JH during that time (transcript/20). The Applicant’s evidence was that he has not had contact with JH since being in prison and immigration detention because the family did not want the child to know his uncle was in prison (transcript/20-21).
If the Applicant can lead a pro-social lifestyle and does not re-offend, he is likely to play a positive role in the child’s life until he turns 18 (Direction No 79, paragraph 13.2(4)(b)). The Applicant will be living with his nephew, brother and mother, and will assist in caring for his elderly mother (the child’s grandmother). JH has special needs including autism and another genetic disorder, requiring a high level of care and weekly medical appointments. In his witness statement, the Applicant’s brother stated:
My son J is autistic and also has a condition called Neurofibromatosis Type I. Due to his conditions, J requires a high level of care and attends weekly appointments for physiotherapy, speech and occupational therapy. He also has many extracurricular classes... J also needs to attend appointments at PCH [Perth Children’s Hospital] with his Neurologist, Paediatrician, Dermatologist, Optometrist, Audiologist and Oncologists from time to time.

The child is likely to benefit from having an additional family member in the home to help care for him. If the Applicant can assist with the care of his mother, it will also free up the Applicant’s brother (who as well as caring for his mother and son is “juggling” his work as a freelance technician) to focus on JH’s needs and his numerous weekly medical appointments (Exhibit A2/A6, paragraph [32]-[33]).
There is no evidence that any prior conduct of the Applicant has had a negative impact on this child. Although, should the Applicant reconnect with this child and commit any future offences, it may have a negative impact on him if the Applicant is incarcerated or deported after the child has been able to form an in-person bond with his uncle (Direction No 79, paragraph 13.2(4)(c)).
The Applicant will live in the same household as his nephew and will assist in his care by relieving his brother from being his mother’s primary carer, thus allowing his brother to focus more attention on JH and his special needs. Thus although it may be possible for the Applicant to maintain contact with the child in other ways, for example, through telephone or the internet, if the Applicant were to be returned to Malaysia, it would likely have a negative effect on the child because the Applicant would not be able to provide in person daily assistance (Direction No 79, paragraph 13.2(4)(d)).
The child’s father (the Applicant’s brother) currently fulfils the parental role in relation to this child (Direction No 79, paragraph 13.2(4)(e)). However, the child’s mother is currently living in Malaysia for work and so she is not able to assist with his daily care.
There are no known views of the child before the Tribunal (Direction No 79, paragraph 13.2(4)(f)).
There is no evidence that the Applicant abused or neglected his nephew in any way in the past (Direction No 79, paragraph 13.2(4)(g)), nor is there any evidence that he has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct (Direction No 79, paragraph 13.2(4)(h)).
In summary, if the Applicant is released into the community he will be living in the same household as his nephew and will be able to assist both directly and indirectly in his care. Consequently, the Tribunal concludes that the best interests of the Applicant’s nephew with autism and other serious health issues weigh strongly in favour of revocation of the Cancellation Decision.
XC and XY
XC and XY have been considered together because, on the evidence before the Tribunal, their interests do not appear to differ (Direction No 79, paragraph 13.2(3)).
There is minimal information before the Tribunal about the Applicant’s other nine-year-old and 11-year-old nephews, XC and XY. They live on Christmas Island with their parents (the Applicant’s older brother and his wife) (Exhibit A2/A5, paragraph [2]). The Applicant met the older child when he was a baby but has not met the younger child (transcript/21). He has not had any ongoing involvement with them due to his imprisonment and time in immigration detention (transcript/21) (Direction No 79, paragraph 13.2(4)(a)).
The children’s father described the Applicant as a “fundamental part of our family” (Exhibit A2/A5, paragraph [21]). If the Applicant can abstain from drug use and does not reoffend, he may be able to play a positive role in the children’s life as their uncle until they turn 18 (Direction No 79, paragraph 13.2(4)(b)).
There is no evidence that any prior conduct of the Applicant has had a negative impact on his two nephews (Direction No 79, paragraph 13.2(4)(c)).
The Applicant’s evidence was that it would be difficult for his brother to bring the children to Malaysia if he were returned there (transcript/21). If the Applicant is returned to Malaysia, the children would not have an in-person relationship with their uncle, however they could maintain contact in other ways, such as through the telephone, FaceTime or the internet (Direction No 79, paragraph 13.2(4)(d)).
The children’s father (the Applicant’s older brother) and his wife currently fulfil parenting roles (Direction No 79, paragraph 13.2(4)(e)).
There are no known views of the children before the Tribunal (Direction No 79, paragraph 13.2(4)(f)).
There is no evidence that the Applicant abused or neglected his nephews in any way in the past (Direction No 79, paragraph 13.2(4)(g)), nor is there any evidence that the children have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct (Direction No 79, paragraph 13.2(4)(h)).
The Tribunal concludes that the best interests of the Applicant’s two nephews, XY and XC weigh slightly in favour of revocation of the Cancellation Decision.
Third primary consideration: Expectations of the Australian community (paragraph 13.3 of Direction No 79)
Paragraph 13.3(1) of Direction No 79 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Until recently there was a lack of clarity concerning the interpretation of this primary consideration. For a time, the accepted position was that of Mortimer J in YNQY vMinister for Immigration and Border Protection [2017] FCA 1466 (YNQY), [76]-[77]. However, two subsequent decisions of the Federal Court adopted slightly different approaches to that of YNQY (DKXY v Minister for Home Affairs [2019] FCA 495 and FYBR v Minister for Home Affairs [2019] FCA 500).
This ambiguity was clarified by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 374 ALR 601 (FYBR (FC)). The plurality generally agreed with the approach adopted by Mortimer J in YNQY where her Honour stated:
[76]In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77]I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]–[66]).
(Emphasis added.)
The plurality of the Full Court in FYBR (FC) followed Mortimer J’s characterisation of the community expectations primary consideration. Although FYBR (FC) concerned a refusal to grant a visa under the previous Direction No 65, it is equally applicable to the current Direction No 79 as there were no changes to the wording of paragraph 11.3 (which concerns visa refusal), when the Direction was updated. Additionally, paragraph 13.3 (which concerns whether it is appropriate not to revoke a mandatory visa cancellation) is substantially similar in its expression of community expectations.
FYBR (FC) confirmed that the community expectations primary consideration operates as a kind of deeming provision (see Charlesworth J at 617 [61] and Stewart J at 622 [89]). That is, paragraphs 11.3 and 13.3 contain a statement of the government’s views as to the expectations of the community. The decision-maker (in this case the Tribunal) must have due regard to those views. As noted by Charlesworth J at 618 [67], “[i]t is not for the decision-maker to make his or her own assessment of the community expectations…”
and further, as noted by Stewart J at 622 [91], “‘community expectations’ as expressed normatively are what the Government says they are, even though in actual fact if they were ascertainable community expectations might be quite different”.
Even though the community expectations primary consideration operates as a kind of deeming provision, it does not determine the outcome of the overall decision. As stated by Stewart J, at 622 [91] “‘community expectations’ as expressed by the Government do not speak to the outcome in any particular case”. This is because community expectations comprise one primary consideration which must be weighed against the remaining primary and other considerations in the exercise of discretion under the Direction. Thus, as Charlesworth J stated at 620 [79], “[i]n an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be”. Although in most cases community expectations will favour
non-revocation of a cancellation decision, the provision does not dictate an inflexible conclusion (Charlesworth J at 620 [75] and Stewart J at 623 [97]) and it is up to the
decision-maker to determine the weight to be applied to this consideration (Charlesworth J at 620 [76]-[77] and Stewart J at 624 [102]).
The community expectations primary consideration was summarised in straight forward terms by Stewart J as follows (at 624 [101]):
community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”
For a comprehensive summary of the Full Court’s decision in FYBR (FC), see Member Burford in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424, [162]-[170].
Having regard to the judgments of Stewart and Charlesworth JJ in FYBR (FC),
the Tribunal must give effect to the norm stipulated in paragraph 13.3 of Direction No 79 (that the Australian community expects non-citizens to obey Australian laws whilst in Australia), which will, in most cases, weigh in favour of refusing to revoke a cancellation decision.
The Tribunal is guided by the principle in paragraph 6.3(2) of Direction No 79 which states that “[t]he 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”. Paragraph 6.3(3) of Direction No 79, in summary, provides that non-citizens who have committed serious crimes, including crimes of a violent or sexual nature, should generally expect to be denied the privilege of staying in Australia. The Tribunal found above that the Applicant’s first border control offences and second border control offences were very serious. The construction of paragraph 13.3 of Direction No 79 confirmed in FYBR (FC), together with these principles, supports the conclusion that the Australian community would expect the Applicant’s Visa to remain cancelled, and consequently, that the Cancellation Decision should not be revoked.
The Tribunal will discuss the weight to be given to this consideration at the conclusion of these reasons for decision as part of the overall weighing exercise.
OTHER CONSIDERATIONS
Paragraph 14 of Direction No 79 provides:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
International non-refoulement obligations
The Tribunal is required to consider whether Australia’s international non-refoulement obligations (paragraph 14.1 of Direction No 79) arise in any of the submissions, materials or evidence before the Tribunal.
Although no non-refoulement claims were raised in the Applicant’s SFIC, in a previous submission in support of his request that the Cancellation Decision be revoked, the Applicant raised concerns about returning to Malaysia, stating that, “Malaysia is a country which does not take kindly to convicted drug traffickers” (G9/96).
There is, however, no objective or corroborative evidence which supports this assertion from the Applicant. The Tribunal notes the section of the DFAT Report headed, “Conditions for Returnees”, and particularly paragraph 5.37 (Exhibit R4, page 60) which states:
If an individual has committed an offence in Malaysia prior to departure, they could face trial for the offence upon return to Malaysia. The Constitution states that an individual cannot be tried more than once for the same offence, unless there is a substantial change in evidence…
This paragraph indicates that the Applicant would not be subject to double jeopardy if he was returned to Malaysia due to his Australian drug convictions because he has served his sentence in Australia and there is no Malaysian connection.
Accordingly, the Tribunal cannot conclude that Australia’s non-refoulement obligations are engaged, and regards this consideration as being neutral. The Applicant has also raised concerns that he will suffer discrimination if he is returned to Malaysia because he is a Chinese Malaysian. This is discussed below under the other consideration of “extent of impediments if removed”.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No 79 provides:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of
non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Relevantly, paragraph 6.3(5) of the principles section of Direction No 79 states:
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
Further, paragraph 6.3(7) of the principles section of Direction No 79 states:
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
The Applicant has strong ties to the Australian community, having resided in Australia for 33 years. He moved to Christmas Island in Australia, from Malaysia, as a 10-year-old child with his mother and three brothers, in order to join his father (now deceased) in Australia who had relocated for work. He attended school in Christmas Island until year 10 before relocating to Perth, Western Australia, where he completed his year 12 studies, followed by his university studies, where he obtained a Bachelor of Science degree. His elderly mother who has health issues and requires “a high intensity of family care and multiple attendances at medical practitioners” (Exhibit A2/A3), two brothers and nephew with autism reside in Perth. The Applicant’s other brother and his wife and two children (the Applicant’s nephews) reside on Christmas Island. The Applicant has no close family ties in Malaysia (A2/16-17, para [27]). His sister in law works in Malaysia, but he has not met her (transcript/46).
The Applicant committed his first traffic offence of dangerous driving in May 2001 when he was approximately 25 years of age and his first criminal offence of stealing in January 2008, when he was approximately 31 years of age. Thus, it cannot be concluded that he commenced offending shortly after arriving in Australia.
The Applicant has been in prison and immigration detention for approximately the last nine years and has therefore made minimal contributions to the community in that time. The Applicant previously worked as a part- time tutor whilst at university (transcript/24), labourer, a cook, a part-time croupier, a part-time delivery person, a post office worker, and as a picker and packer at a warehouse (transcript/25-26; 27-28).
A letter from the Shire President of Christmas Island dated 26 March 2019 written in support of the Applicant being permitted to stay in Australia described him as “an unselfish contributor to our community when he lived among us on Christmas Island” (G12/170). The letter outlined that the Applicant “served in a voluntary capacity on a number of community organisations including the Executive Committee of the Union of Christmas Island Workers and the committees of the Poon Saan Club and Chinese Literary Association, which are the two significant cultural representative organisations of the majority Chinese population of Christmas Island”. The letter further stated that the Applicant “represented the Chinese Literary Association on the Community Consultative Committee (CCC) which is a committee of the Shire [of] Christmas Island” (G12/171). As such, the Tribunal finds that the Applicant has made some, albeit minimal, positive contributions to the Australian community through employment and his volunteer work on Christmas Island.
The Applicant’s mother and three brothers provided statutory declarations to the Tribunal (Exhibit A2/A5; A6; A7) detailing their very strong support for the Applicant and their desire for him to stay in Australia, as did a friend of the Applicant (Exhibit A2/A8). This strong support is also indicative of his strong ties to the community.
In her statutory declaration (Exhibit A2/A2, paras [24]-[26]), the Applicant’s mother described the impact that her son’s removal to Malaysia would have on her:
24.I am now 80 years old and for this late stage in my life, all I want is to see my family together, supporting each other and emotionally happy.
25.If Hee is under my roof living with us this will bring me great comfort. Hee will be able to help out with my care and we will be able to help him as he reintegrates back to society.
26.If Hee is deported to Malaysia, not only will I be absolutely devastated, but I will be under an immense amount of stress worrying about my son.

In the statutory declaration of the Applicant’s brother (who is the father of the Applicant’s nephew with autism), he described how the family would be impacted by the Applicant’s removal to Malaysia (Exhibit A2/A6, paras [33]-[37]):
33.Hee’s help in a household will take a lot of pressure off me, especially since [their youngest brother] moved out. We are all worrying about our mother now that she is getting older. Having another family member in the house on a full-time basis brings us all a level of comfort that our mother won’t be left alone when I need to take [his son with autism] to his appointments. It will also give me an opportunity to take more work on within my business.
34.Our mother is also looking forward to spending quality time with Hee and having him around again. The whole ordeal has been really hard on her and she just wants her family together.
35.Our family is deeply saddened by the thought of Hee being permanently separated from us. This thought is too much for my mum to bear. I fear what would happen to her emotional and physical health if Hee is deported.
36.Our mother is elderly and due to her health, she is not in a position to fly internationally.
37.The news of Hee’s revocation request refusal crushed us all. We understand that Hee has done the wrong thing, but 10 years is a long time and he has genuinely learnt from his past mistakes.
38.We are all supportive of Hee, we are proud of his transformation and we are all looking forward to him living up to his potential; being the son, brother and uncle we all miss and love.
The Applicant’s younger brother stated in his statutory declaration (Exhibit A2/A7, para [15-18]):
15. I no longer live in our family home and live with my partner in [suburb name omitted], WA. This has left our oldest brother [name omitted] with the sole responsibility of having our mother in his full-time care, as our [other] brother [name omitted] currently lives on Christmas Island.
16. Hee’s support around the house will immensely assist [the Applicant’s older brother] who also has his own son to look after and his work to manage.
17. I have spoken to Hee and he is more than willing to step up and assist [the Applicant’s older brother] with our mother’s care and of course my mother is happy with this arrangement. It also gives me peace of mind that someone will always be around and that she will have extra support in the house.
18. Hee’s deportation will be just as devastating to us all is the loss of our father whom we sadly loss [sic] in 2000. Our father’s passing hurt our family so much and I don’t think our mother really ever got over it. I am not sure if our mother can take any more loss. Hee’s deportation would be much harsher on her as she knows she will never see Hee again. Traveling [sic] to Malaysia to see him is not an option due to her health.
The Tribunal accepts the evidence of the Applicant’s mother and brothers. The Tribunal finds that if the Applicant were removed to Malaysia, it would have a detrimental emotional impact on his mother (and may possibly cause detriment to her health). His removal is also likely to cause emotional (and possibly financial detriment) to his brother (who is caring for a child with autism and other health issues as a sole parent, as well as caring for his elderly mother and trying to run a business) and on the Applicant’s other two brothers. As detailed above in the section on the best interests of minor children, the Applicant’s nephew with autism is also likely to be detrimentally affected if the Applicant is removed from Australia because the Applicant will not be able to relieve the pressure on his brother (the child’s father and sole carer) if the Applicant is unable to assist with the care of their elderly mother.
The Tribunal finds that the Applicant has close ties to Australia, particularly with respect to his having resided in Australia since he was a child, and his immediate family (his mother, brothers and nephews) residing in Australia, who are willing to offer him support and who would suffer detriment if he were removed. The Australian community would likely have a higher level of tolerance for the Applicant, given that he has resided in Australia since he was a young child (paragraph 6.3(5) of Direction No 79). The Tribunal finds that this consideration weighs strongly in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 14.3(1) of Direction No 79 provides that the Tribunal is to consider the:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before the Tribunal.
Impact on victims
Paragraph 14.4(1) of Direction No 79 provides that the Tribunal is to consider the:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
This consideration also does not arise on the material before the Tribunal.
Extent of impediments if removed
Paragraph 14.5(1) of Direction No 79 provides:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
The Applicant is 44 years of age and his evidence was that he is in good health (transcript/22). In his written statement the Applicant stated (Exhibit A2/A1, para [104]):
I fear my emotional, mental and physical wellbeing would suffer dramatically if I am deported to Malaysia. I have no support network there, no close friends, no job opportunities, no home and no structure.
Having lived in Australia since he was 10 years of age, the Applicant is likely to have trouble in adapting to an unfamiliar cultural climate if he is returned to Malaysia. Additionally, the Applicant speaks Mandarin as well as several Chinese dialects, but does not speak Malay (Exhibit A2/A1, para [106]). This may cause him difficulties in resettling there and finding employment. However, the Tribunal notes that the DFAT Report (Exhibit R4, page 9) states that although the official language is Bahasa Malaysia (Malay), “English is widely used” in Malaysia. The Applicant’s ability to speak English, together with his university degree and vocational training may assist him to find employment.
Although the Applicant as some family in Malaysia (transcript/49), his evidence was that “I am not close with any family I may have in Malaysia and I have not maintained close ties with them” (Exhibit A2/A1, para [103]). He further stated that “[a]ny distant family I have in Malaysia has disowned me as I have brought much shame to the family” (Exhibit A2/A1, para [107]). The Applicant’s brother gave evidence that he did not think his family members in Malaysia would accept the Applicant or offer him any support (transcript/52). The Tribunal accepts that they Applicant is unlikely to be able to rely on any family members in Malaysia for support if he is returned there.
In his evidence at the hearing, the Applicant stated that he had a friend in Malaysia who had returned there after living in Perth who he last spoke to approximately eight months ago, but whom he had not been in regular contact with prior (transcript/59). Given this minimal contact, the Tribunal accepts that this friend is unlikely to be able to provide any support to the Applicant if he is returned to Malaysia.
Although the Applicant’s sister in law is living in Malaysia (and has family members living there), his brother’s evidence was that she had not met the Applicant and he was not confident that she could offer the Applicant support. The Applicant’s brother stated that his wife had an eye condition and “might have to quit her job soon” (transcript/46). In the Tribunal’s opinion, it seems unlikely that the Applicant’s sister in law would not be able to provide him with some support, even if it was only at an emotional or social level, given the evidence before the Tribunal that the Applicant and his brother are very close. The Applicant’s brother gave evidence that he travels to Malaysia to visit his wife “a lot” (transcript/48) and so this may provide the Applicant with some level of support if he were returned there.
The Applicant further stated that (Exhibit A2/A1, para [105] – [106]):
105.I have no idea how I would survive there. I am scared I will be left homeless with no support network.
106.As I am Chinese Malaysian, coupled with my criminal history, it will be difficult for me to find employment. It is widely known that preferential treatment is given to native Malaysians and that the Chinese Malaysians suffer prejudice in Malaysian society. Additionally, I do not speak Malay and instead speak Mandarin as well as several Chinese dialects (including Cantonese, Teochew and Hokkien).
The Applicant’s brother stated that he can only provide very limited financial assistance to assist the Applicant to settle if he were returned to Malaysia (transcript/50 and 52). The DFAT Report (page 12) states that Malaysia has a universal healthcare system and so the Applicant would have access to medical care if needed.
The Applicant has raised concerns about discrimination based on being a Chinese Malaysian. The DFAT Report (page 22) summarised the types of discrimination experienced by Chinese Malaysians as:
DFAT assesses that Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system, or the civil service, including when seeking promotion opportunities, or when opening or operating a Chinese Malaysian and owned business in the private sector.
Thus, there is no evidence that he would be denied access to social, medical and economic supports offered in Malaysia on account of his Chinese descent.
After living in Australia for nearly his entire life, the Applicant would undoubtedly face difficulty in re-establishing himself in Malaysia. There are some language and cultural barriers, and he may face low levels of discrimination. The Tribunal accepts that he will have little or no family support, nor other existing social networks if he were returned there. Although the Applicant may be able to maintain contact with his family members in Australia by telephone, the internet or other electronic means, he is likely to experience emotional hardship if he is separated from his immediate family. He is also likely to experience emotional hardship because it is unlikely that he will see his elderly mother again due to her health issues preventing her from travelling.
Overall, the Tribunal finds that the Applicant may encounter some difficulties and hardship establishing himself and maintaining a basic standard of living if he were to return to Malaysia. Consequently, the Tribunal finds that this consideration weighs moderately in favour of the revocation of the Cancellation Decision.
Impact of COVID-19 pandemic
If the Tribunal affirms the Reviewable Decision, the Applicant must be removed to Malaysia as soon as is reasonably practicable (under s 198 of the Migration Act). Given current restrictions on international travel due to the COVID-19 pandemic, it may not be possible for the Applicant to be removed in the immediately foreseeable future. Thus, if the Tribunal affirms the Reviewable Decision, the Applicant may face an additional period of detention before it will be reasonably practicable to remove him to Malaysia. However, as noted by Member Eteuati in FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294, [299] “[t]his may result in prolonged but not indefinite detention for the Applicant until the risk presented by the virus … subsides”.
The Tribunal finds that this factor weighs slightly in favour of the revocation of the Cancellation Decision.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 79.
In relation to the first primary consideration, the Tribunal found that:
(a)the nature and seriousness of the Applicant’s conduct weighs strongly against the revocation of the Cancellation Decision (paragraphs 13.1 and 13.1.1 of Direction No 79); and
(b)the risk to the Australian community should the Applicant commit further offences weighs moderately in favour of the Tribunal refusing to revoke the Cancellation Decision (paragraph 13.1.2 of Direction No 79).
Overall, with respect to the first primary consideration, the Tribunal concluded that the protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of

Direction No 79), weighs moderately to strongly in favour of the Tribunal refusing to revoke the Cancellation Decision.
With respect to the second primary consideration, being the best interests of minor children (paragraph 13.2 of Direction No 79), the Tribunal found that the best interests of the Applicant’s:
(a)11-year-old nephew with autism and other health issues weigh strongly in favour of the revocation of the Cancellation Decision; and
(b)11-year-old and nine-year-old nephews, XY and XC weigh slightly in favour of the revocation of the Cancellation Decision.
The Tribunal has found that the third primary consideration, being the expectations of the Australian community (paragraph 13.3 of Direction No 79) would be that the Cancellation Decision should not be revoked. The Tribunal must now determine the weight to be applied to this consideration.
In determining the weight to be afforded to the third primary consideration, the Tribunal notes that the first primary consideration regarding the protection of the Australian community weighed against the Applicant. This consideration was comprised of the nature and seriousness of the Applicant’s first border control offences and second border control offences, which weighed strongly against the revocation of the Cancellation Decision. It was also comprised of the likelihood of the Applicant re-offending, with the Tribunal finding that the Applicant had a low risk of reoffending. However, this was weighed with the principle that any risk of similar offending in the future is unacceptable, given the nature of harms caused to individuals and the community from methylamphetamine, which weighed moderately against the revocation of the Cancellation Decision.
Further, in determining the weight to be applied to the expectations of the Australian community primary consideration, the Tribunal must also balance the first primary consideration of the protection of the Australian community with the considerations that weigh in the Applicant’s favour. These considerations include: the primary consideration of the best interests of minor children, particularly the interests of the Applicant’s 11-year-old nephew with autism and other health issues, which weigh strongly, as well as those of the Applicant’s other 11-year-old and nine-year-old nephews which weigh slightly in favour of revocation of the Cancellation Decision. Additionally, the Tribunal found that the impediments the Applicant would face if returned to Malaysia weigh moderately in favour of the revocation of the Cancellation Decision (paragraph 14.5(1) of Direction No 79). Further, the strength, nature and duration of the Applicant’s ties to Australia (paragraph 14.2(1) of Direction No 79) weigh strongly in favour of the revocation of the Cancellation Decision. The Tribunal has also considered the uncertainty of the impact of the COVID-19 pandemic, including the amount of time the Applicant may potentially be detained for until he can be returned to Malaysia, which weighs slightly in his favour.
The Tribunal could not conclude that Australia’s non-refoulement obligations are engaged by any claims raised by the Applicant or on the materials before it and found this consideration to be neutral.
Thus, after balancing the relevant primary and other considerations, the Tribunal concludes that the expectations of the Australian community would weigh moderately against the revocation of the Cancellation Decision (paragraph 13.3 of Direction No 79).
In relation to the issue of whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked, the Tribunal finds that the primary and other considerations that weigh in the Applicant’s favour outweigh the primary considerations of the protection of the Australian community and the expectations of the Australian community, which favour non-revocation of the Cancellation Decision.
Specifically, the Tribunal gives greater weight to the primary consideration of the best interests of the Applicant’s 11-year-old nephew with autism, which weighs strongly in favour, and the best interests of his other nephews, which weigh slightly in favour of the revocation of the Cancellation Decision. The other considerations, including the strength, nature and duration of the Applicant’s ties to Australia (including the Applicant residing in Australia since he was a 10-year-old-child and the impact of his removal on his mother, older brother and nephew with autism in particular), the extent of impediments if he is removed, and his detention for an uncertain period until he can be removed, collectively add to this weight and to the Tribunal being satisfied that there is another reason to revoke the Cancellation Decision.
Having had regard to all of the relevant primary considerations and relevant other considerations in accordance with Direction No 79, the Tribunal is of the view that the correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant’s Visa, pursuant to s 501(3A) of the Migration Act 1958 (Cth), be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 183 (one hundred and eighty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

......[Sgd]...............................................................
Associate
Dated: 18 August 2020

Date of hearing:

30 July 2020

Representative for the Applicant:

Representative for the Respondent:

Ms A Valenti, Putt Legal

Mr H McLaurin, Minter Ellison

[2020] AATA 3005

18 August 2020

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Immigration

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