Niu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 2478

Niu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2478 (11 August 2023)

Division:GENERAL DIVISION

File Number:          2023/4186

Re:Shaojing Niu

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Britten-Jones

Date:11 August 2023

Place:Melbourne

The decision under review is affirmed.

.......................[sgd].................................................

Deputy President Britten-Jones

CATCHWORDS

MIGRATION – mandatory cancellation of applicant’s visa – applicant committed serious offences involving fraud against banks – whether there is ‘another reason’ to revoke the mandatory cancellation decision – the primary considerations of the expectations and protection of the Australian community outweigh the countervailing considerations of the best interests of minor children, ties to Australia and extent of impediments if removed – decision affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124

Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395; [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673

WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463; [2021] FCAFC 55

SECONDARY MATERIALS

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)

REASONS FOR DECISION

Deputy President Britten-Jones

11 August 2023

INTRODUCTION

1. This is an application for review of a decision to not revoke the mandatory cancellation of the applicant’s Special Category (Class TY) (Subclass 444) visa (the applicant’s visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]

   [1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.

   THE DECISION TO CANCEL THE APPLICANT’S VISA AND SUBSEQUENT PROCEDURAL HISTORY

2. On 4 July 2022 the applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months.

3. On 5 July 2022 the applicant sought revocation of the cancellation decision and made representations in support of revocation.

4. On 9 June 2023 a delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision). On 15 June 2023, the applicant applied to the Tribunal for review of the non-revocation decision. 

   LEGISLATIVE FRAMEWORK

5. Under s 501(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 paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); 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.

6. The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by sub-s (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[2]

   [2] Section 501(7)(c).

7. Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:

   501CA  Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

   (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.

8. Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.

   Issues before the Tribunal

9. The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a “substantial criminal record” as defined under s 501(7). Therefore, the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.

10. Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is “another reason” why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which I am required to read, identify, understand and evaluate.[3] Deciding whether or not to be satisfied that “another reason” exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.[4]

    [3] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].

    [4] Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [14].

11. The applicant concedes that he does not pass the character test and that the only issue for the Tribunal is whether there is “another reason” to revoke the cancellation decision having regard to the principles and considerations in Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023) (Direction 99).

    Direction 99

12. The purpose of Direction 99 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.

13. The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 99 as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non­ citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    (6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non­ citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

14. In making a decision under s 501CA(4), the following are primary considerations:

    (a)protection of the Australian community from criminal or other serious conduct;

    (b)whether the conduct engaged in constituted family violence;

    (c)the strength, nature and duration of ties to Australia;

    (d)the best interests of minor children in Australia; and

    (e)expectations of the Australian community.

15. In making a decision under s 501CA(4), other considerations must also be taken into account, including (but not limited to):

    (a)legal consequences of the decision;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)impact on Australian business interests.

16. In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[5]

    [5] Direction 99 [7].

    BACKGROUND

17. The applicant was born in China but became a New Zealand citizen in 2006 after migrating from China with his wife in 2001. The applicant was educated at a tertiary level, both in China and New Zealand. The applicant obtained a bachelor of business economics in New Zealand, yet despite numerous efforts, he found it difficult to obtain employment in the area of his chosen profession in New Zealand. After many failed attempts, the applicant secured a job in the construction industry and was trained as a locksmith.

18. The applicant decided to come to Australia in October 2013 with his wife due to his difficulty in finding employment and for the benefit of their four children to receive quality education in Australia. He worked as a locksmith and then a property developer. His wife worked as a home finance manager at Westpac, a home loan manager at ANZ, organising the sale of properties and assisting other mortgage brokers casually.

19. On 6 December 2019 the applicant was arrested and charged with offences relating to fraudulent loan applications. He and his wife pleaded guilty to eight counts of obtaining financial advantage by deception. On 4 March 2022 they were sentenced in the County Court of Victoria. His wife’s visa has been cancelled and she has also applied in separate proceedings to the Tribunal to revoke the cancellation of her visa. I will not speculate as to the result of her application which will be heard before another member of the Tribunal.

    CONSIDERATION

    Protection of the Australian community – 8.1 of Direction 99

20. When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. As required by paragraph 8.1(2) of Direction 99, I give consideration below to:

    (a)the nature and seriousness of the non-citizen’s conduct to date; and

    (b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

    The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 99

21. The applicant and his wife pleaded guilty to eight counts of obtaining financial advantage by deception. Their criminal enterprise began in June 2015 when a series of loan applications were made. These applications were supported by false representations about the applicant’s employment and his liabilities. The funds obtained from these loans totalled $9,027,833.51 and were used to purchase properties, refinance existing loans and to construct units in Melbourne suburbs.

22. The seriousness of the offending was described by the sentencing Judge as follows:

    [43] I turn to the seriousness of this offending. The offending in this case was protracted, occurring from 7 August 2015 up until the early part of 2018. You used essentially the same successful system on eight occasions, with some variations, including the bank to which you applied for the various loans. This was planned and systematic conduct, involving repeated acts of dishonesty.

    [44] At $9,027,833.51, the quantum of the total financial advantage you obtained was very large indeed. Your motive was the accumulation of substantial wealth through property development. The capital you acquired was obtained using outright lies, deliberate permissions and fraudulent documents.

    [45] Presumably you knew that without inflating your financial situation and hiding your liabilities the loan would not have been approved. The benefit obtained was substantial and went directly to the two of you. These multiple acts of dishonesty with building blocks of your attempts to create a very high-value property portfolio for yourselves.

    [46] You have four children to look after, but both of you were working and no evidence of financial need at that time. Instead, it was emphasised on the plea by both of your counsel that you had substantial financial resources and the banks were never at risk.

    [47] In the circumstances, I regard your criminality and moral culpability as significant.

    …

    [57] I accept the loans were serviced and I accept the financial institutions have suffered no loss, but considerations of general deterrence and denunciation remain sentencing principles of substantial importance in the case. It must be that those who participate in offending such as this usually expect the venture to succeed and that their dishonesty will remain undetected. Success of the enterprise and the absence of loss cannot be elevated to become the primary sentencing consideration or be allowed to unduly erode the importance of general deterrence.

    [58] For the integrity of the system, it is obvious that those who might be tempted to obtain substantial financial advantages from banks through fraudulent misrepresentations be deterred from doing so. A belief in the ability to service the loan, even if such a belief is proven to be accurate, is somewhat beside the point. The assessment of the borrower’s capacity to repay the loan is a matter for the lender, based on honest information.

    [59] That said, I accept the absence of loss and the low risk of default is a matter of significance which reduces the objective gravity of the offending.

23. The offending was frequent over a period of about two and a half years. The cumulative effect of this repeated offending is significant. The seriousness of the offending is reflected in the custodial sentence imposed of two years and four months. This conduct is viewed very seriously by the Australian government and is a significant factor in terms of whether I am satisfied that there is ‘another reason’ to set aside the non-revocation decision.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 99

24. In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.[6] As required by paragraph 8.1.2(2) of Direction 99, I also 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:

    (i)information and evidence on the risk of the non-­ citizen re-offending; and

    (ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

    [6] Direction 99 at 8.1.2(1).

25. In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[7] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.

    Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 99

    [7] (2014) 225 FCR 424; [2014] FCA 673.

26. If the applicant were to engage in further similar criminal offending, then the nature of the harm would be very serious because of the large amount of money borrowed and because home loans are a fundamental feature of the economy and offending like this strikes at the integrity of the system of loan applications.

    Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 99

27. The applicant contends that there is little risk of re-offending. 

28. The sentencing Judge noted that the applicant pleaded guilty ‘at the earliest opportunity’ which ‘indicates remorse and a willingness to facilitate the course of justice’. The sentencing Judge also referred to ‘the need for you to be rehabilitated’ but considered that the applicant had ‘very good prospects of rehabilitation’. The applicant says that whilst serving his sentence, he demonstrated his determination to improve and expand his skills to increase his employment opportunities by completing several courses and certificates. He did so voluntarily in order to benefit his own rehabilitation. His successful completion of these courses further emphasises his desire to be reintegrated into the Australian community as a productive member of Australian society. His good behaviour whilst on bail in the community for about two years after his arrest and whilst in prison are positive factors in terms of his risk of re-offending. The applicant also had positive dealings with his parole officer who I infer took the view that he was not a significant risk to the community if released.

1. The applicant has expressed remorse about his offending. During his oral evidence he said that he was naïve and stupid and that he did not realise at first that asking for and providing false payslips was a criminal activity because it was linked to a true investment. He attempted to downplay his culpability by saying that after receiving the false payslips he thought he would get money from his friend in China. He said that he became ‘nervous and thought it wasn’t right’ after the first time he obtained false payslips in 2015 but by that stage he said he was committed to the projects and felt that he ‘couldn’t stop’. The truth is that he could have stopped because the records show that, not only did he not stop, but he in fact commenced new development projects using false documents as late as October 2017. It is concerning that despite this nervousness and early realisation that ‘it wasn’t right’, he continued to look for new development opportunities and to pursue them using fraudulent documents for years to come.

2. When asked about the consequences of this offending, the applicant focussed on the impact on him and his family. He accepted responsibility for his offending but deflected some of the blame by saying that he got the idea from his co-offender, Mr Dong. He also said he understood the impact on society, but he did not express genuine insight or understanding as to the wrongfulness of his conduct or the impact it had on the banks and the banking system more generally. It is commendable that he completed so many courses whilst in prison, but those courses were mostly directed towards obtaining further qualifications to assist him to obtain work rather than being directed at giving him insight into the wrongfulness of his actions.  Indeed, in examination in chief, the applicant accepted that there were no such courses available. I accept that his construction course has provided connections with John Holland that may lead to job opportunities if he were released. Another course that he did expand upon in his oral evidence was the Inside Out course followed by Think Tank which gave him an understanding of the criminal justice system and resulted in certain improvements for prisoners related to their phone use and strip searches of visitors. Again, it is commendable that he was involved in this way, but I am not convinced that the applicant has gone through an adequate process of rehabilitation focussing on giving him a genuine insight into why fraudulent activity against the banking system is a serious crime with real consequences on the wider community. The answers that he gave during his evidence reflected this lack of rehabilitation. This lack of insight is of concern in terms of risk of re-offending.

3. I am willing to accept that the applicant understands the negative impact and immeasurable distress that his offending has had on his four children which weighs heavily on his conscience. Further, there is cultural shame associated with this conduct.  The applicant submits that his strong family values are a powerful deterrent from recidivism, but I note that his children were alive at the time of his offending therefore I place less weight on this submission. He has engaged in numerous courses whilst in prison and upon release he would likely obtain employment and be in a stable environment, but it was in these conditions that he committed his earlier offending. The applicant was very well educated and in a stable environment trying to provide for his children when he offended. It is likely that, if released, he will find himself in a similar situation trying to cope with high costs of living especially with four children. In that circumstance there will be a very real temptation to try to increase his wealth by fraudulent activity. That temptation will exist even if he is an employee in another industry and is not carrying out property development.

4. In conclusion, the extent of the offending and how it was planned and executed over a number of years together with his lack of adequate rehabilitation and insight and that he will face similar temptations if released all support my finding that there remains a material risk of further reoffending of a similar nature.

   Conclusion as to protection of the Australian community – 8.1 of Direction 99

5. The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[8] The applicant has committed serious crimes. There remains a real, albeit low, risk of re-offending and therefore, the protection of the Australian community is a factor that weighs significantly against the applicant.

   [8] Direction 99 at 8.1(1).

   Family Violence – 8.2 of Direction 99

6. The applicant has not engaged in family violence so this factor is neutral in my determination as to whether there is another reason to set aside the non-revocation decision.

   Strength, Nature and Duration of Ties to Australia – 8.3 of Direction 99

7. This primary consideration provides at paragraph 8.3 of Direction 99:

   (1)  Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

   (2)  In considering a non-citizen's ties to Australia, decision-makers should give more weight to a non-citizen's ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

   (3)  The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

   (4)  Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

   (a)the length of time the non-citizen has resided in the Australian community, noting that:

   i.considerable weight should be given to the fact that a non­ citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and

   ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

   iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non­ citizen began offending soon after arriving in Australia.

8. The applicant has no other immediate family members (besides his wife and children) in Australia. His parents live in China. The applicant’s parents in law live in New Zealand, although his mother in law and father in law have been in Australia sharing the care of the children since his and his wife’s incarceration.

9. I take into account the impact on the applicant’s eldest daughter who is 19 years old. She gave both written and oral evidence which I accept. She has ‘called Australia home for the last 9 years’. If the applicant is removed to New Zealand then it would have a devastating impact on her because she would have to continue looking after her three younger sisters whilst juggling university studies and part time work to help support the family. She has a close relationship with her father and does not want to be separated from him. She is very concerned for her younger siblings who are missing out on having a father in their lives. While completing her VCE studies she presented to her school’s psychologist with symptoms of depression, including some occasions of self-harm. Those mental health issues would only deteriorate if her father is not returned to her. Since arriving in Australia as a 9 year old, she has built up personal relationships (including a boyfriend) and other connections and commenced her university studies. She would prefer to be with her father, but she has, understandably, decided to stay in Australia even if he is deported. At this stage at least two of the three younger siblings have also indicated they will stay in Australia and hence the eldest sister will have to look after them.

10. I have not placed any weight on any negative impact on the applicant’s wife because she remains in prison and has had her visa cancelled and is not an Australian citizen. However, the applicant and his wife have been together for over 25 years and together they brought up four children whilst in New Zealand and Australia which represents a joint contribution to the Australian community. I take into account that they have formed strong friendships in Australia including through their work and the schools attended by their children. Two of these friends provided very positive written character references and oral evidence in favour of the applicant.

11. I take into account and give significant weight to the applicant’s relationship with his four children who he loves unconditionally. He and his wife have provided their children with a loving and supportive environment. The applicant genuinely regrets not being there for his children since he was incarcerated but he should be commended for bringing up his children until he was removed from them. He has maintained contact with his children since then, has continued to provide financial support and has made arrangements for them to be looked after by their grandparents.

12. The applicant came to Australia almost 10 years ago in January 2014, but I give less weight to the time he has spent in Australia because he commenced offending in 2015 which is relatively soon after arriving in Australia. The applicant has not spent his formative years in Australia nor has he made any significant positive contribution to the Australian community since being here except by raising his children and by completing his further education and some employment. Most of his work in Australia was in property development which involved criminal activity and cannot be seen as a positive contribution to the Australian community. It has been submitted by the applicant that his property development provided employment and housing which I accept but any positive benefits have been offset by the negative impact of the criminal activity associated with his activities.

13. When considering the strength, nature and duration of ties to the Australian community, I give most weight to the applicant’s ties to his children and the very negative impact of removal on the applicant’s oldest daughter (noting that I consider the other three children separately). I conclude that this is a factor that weighs in favour of revoking the cancellation decision and should be given moderate weight.

    Best interests of minor children – 8.4 of Direction 99

14. I must determine whether non-revocation of the cancellation of the applicant’s visa is, or is not, in the best interests of a child affected by the decision. The following factors that I must consider where relevant to this application include:[9]

    (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 child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

    (h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

    [9] Direction 99 at 8.4(4).

15. The applicant has three minor children. The youngest one is almost eleven years old. He has twin daughters who are 15 years old. He said that the negative impacts of deportation would be catastrophic for them. Further separation would be awful for the children. If he were released, then there is no doubt that the applicant would play a positive parental role in the future. Two of his children have been experiencing mental health issues. The children need their father to be at home with them. The grandparents have come from New Zealand to help with the children but this is not sustainable. The oldest sister has looked after the children.

16. The twins attend different private schools, having been awarded scholarships. Their parents have provided a loving and supportive environment in which they have grown up. Their lives have been hugely impacted by the imprisonment of their parents and they have mental health issues. They are worried about how they would cope if forced to return to New Zealand and start a new school in an unfamiliar environment away from the friends they have made. They have very little memory of, or connection to, New Zealand, having left when about 5 years old. The applicant said that the twins have decided to stay in Australia even if he is deported. In their written statements, they seemed open to the idea of returning to New Zealand but their clear preference is to stay in Australia with their parents. Whether they decide to stay or go, there will be a very significant and negative impact on them if the applicant is removed to New Zealand. If they go, they face a massive upheaval in their lives. If they stay, they will be separated from their father and most likely their younger sister. They are a very close family and they would all suffer if the family is forced to split up. Non-revocation of the cancellation decision is clearly not in the best interests of the twins.

17. The youngest daughter is likely to go with her father to New Zealand if he is deported but a final decision has not yet been made. Either way, the consequences are dreadful and will have a very significant negative impact on her. If she goes with her father, then she will be separated from her sisters. If she stays then she will be separated from her father. She was less than two years old when she left New Zealand so has spent the majority of her life in Australia. Non-revocation of the cancellation decision is clearly not in her best interests.

18. This is a factor that weighs significantly in favour of revoking the cancellation decision but I note that all members of the family are New Zealand citizens (the children were all born in New Zealand) and, although not their preference, there remains the possibility of them all moving back to New Zealand so as to keep the family together if the father is deported.

    Expectations of the Australian community – 8.5 of Direction 99

19. The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[10] The applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. His criminal conduct was very serious and involved repeated acts of deception which raises serious character concerns about the applicant. The Australian community would expect that the Australian government should cancel the applicant’s visa. Australia has a low tolerance of criminal activity by non-citizens who have been participating in and contributing to the Australian community for a short period of time, which applies to the applicant. I conclude that the expectations of the Australian community is a factor that weighs against the applicant and I give it significant weight in all the circumstances.

    [10] Direction 99 at 8.5(1).

    Other Considerations

20. In deciding whether there is ‘another reason’ to revoke the cancellation of the applicant’s visa, I must also take into account the ‘other considerations’ listed in Direction 99, but these are not exhaustive.[11]

    [11] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.

    Legal Consequences of Decision – 9.1 of Direction 99

21. This other consideration is neutral in my determination.

    Extent of impediments if removed – 9.2 of Direction 99

22. Direction 99 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (1)the applicant’s age and health;

    (2)whether there are substantial language or cultural barriers; and

    (3)any social, medical and/or economic support available to him in that country.

23. The applicant is a 43-year-old man who has no significant mental or physical health issues, noting that he does suffer from high blood pressure. He lived in New Zealand for about 14 years so there would not be any substantial language or cultural barriers if he were returned to New Zealand. Upon arriving in New Zealand from China in 2001, the applicant studied English and is now fluent, having lived in an English-speaking country for 22 years. He did not require an interpreter at this hearing. He would be able to access the social, medical and/or economic supports available in New Zealand which are not dissimilar to Australia.

24. If the applicant were returned to New Zealand, there would be a period of readjustment for him and he would be greatly upset because his three older children have said they will stay in Australia. However, there would be no material impediments faced by the applicant in terms of him establishing himself and maintaining basic living standards. I give this consideration minimal weight in favour of revoking the cancellation decision.

    Impact on victims – 9.3 of Direction 99

25. There was no evidence of impact on victims within the meaning of the Direction. This factor is neutral.

    Impact on Australian business interests – 9.4 of Direction 99

26. The prospect of work in the construction industry with John Holland is not sufficiently certain and there was no probative evidence of any impact on Australian business interests within the meaning of the Direction. This factor is neutral.

    CONCLUSION AS TO WHETHER TO REVOKE THE CANCELLATION OF THE VISA

27. I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is ‘another reason’ to revoke the cancellation decision.

28. The primary considerations of the protection and expectations of the Australian community weigh in favour of not revoking the cancellation decision. The applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community.  His criminal conduct was very serious and there remains a real, albeit low, risk of further offending particularly because of his lack of targeted rehabilitation and lack genuine insight into the wrongfulness of his fraudulent behaviour. 

1. The primary considerations of the strength, nature and duration of ties to Australia and the best interests of minor children weigh in favour of revoking the cancellation decision but these countervailing considerations are not determinative. The most significant countervailing factor is the impact of non-revocation on the applicant’s four children who will suffer terribly if they continue to be separated from their father. The children were born in New Zealand but have established significant ties to Australia where they wish to remain even if their father is deported. The impact on the children is a factor that on its own weighs in favour of revocation of the cancellation decision but I do not consider it to be determinative noting that, whilst not their preference, the children could follow their father to New Zealand and start a new life there. This would be very disruptive for them, but it has come about because of the father’s conduct. The father has lived more of his life in New Zealand compared to Australia and the extent of impediments if he were returned there are not significant. He would miss his children but they could visit and maintain contact in other ways. They may decide to one day join him in New Zealand permanently.

2. I also consider it significant that the applicant commenced committing crime soon after his arrival and he has made very little positive contribution to the Australian community since arriving in 2014. The strength, nature and duration of ties to Australia are not significant and derive mainly from his children who, as I have said, could go with him to New Zealand and recommence their lives there.

3. In conclusion, I am not satisfied that there is another reason to revoke the cancellation decision.

4. The decision under review is affirmed.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

.........................[sgd]...............................................

Associate

Dated: 11 August 2023

Dates of hearing:	7 and 8 August 2023
Date final submissions received:	2 August 2023
Counsel for the Applicant:	Willem Drent
Solicitors for the Applicant:	Madison Marcus
Advocate for the Respondent:	Shauna Roeger
Solicitors for the Respondent:	Australian Government Solicitor