Pang and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 796
•19 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 796
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/756
GENERAL ADMINISTRATIVE DIVISION ) Re Bin Pang Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date19 August 2005
PlaceSydney
Decision The decision under review is affirmed.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – visaex – on-shore visa cancellation – cancellation of transitional (permanent) visa on the grounds of a substantial criminal record – examination of the applicant’s criminal record includes charges for possession of prohibited imported narcotic – held that the applicant does have a substantial criminal record and accordingly fails the character test – discretion that the tribunal may exercise where the applicant fails the character test – evidence of the applicant found to be not entirely credible – the tribunal considers it highly improbable that the child whose interests were considered was fathered by the applicant whilst he was imprisoned at Silverwater Correction Centre - held decision of the respondent affirmed.
Migration Act 1958 ss 499, 500, 501(2), 501(6)(c)(i), 501(7)
Re Ali and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 10
Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
REASONS FOR DECISION
19 August 2005 Professor GD Walker, Deputy President Summary
1. The applicant, Bin Pang who is 35 and was born in China, first came to Australia on 16 November 1989 holding a student visa. On 27 January 1993, Mr Pang lodged an application for a refugee visa, which was subsequently refused. On 20 March 1995, he was granted a resident return visa (G pp1-2). On 16 November 1998, he was charged with attempting to obtain possession of a commercial quantity of narcotics and subsequently sentenced to 12 years and 6 months imprisonment.
2. The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, cancelled Mr Pang’s resident return visa on the ground that he failed the character test because of his substantial criminal record in Australia and past and present general conduct. This is the decision to be reviewed by the tribunal.
Background
3. Mr Pang was born in the People’s Republic of China on 14 June 1969 and is aged 35. He first came to Australia on 16 November 1989 as the holder of a student visa. On 27 January 1993, he lodged an application for a refugee visa, which was subsequently refused on 21 May 1993. On 21 June 1993, he lodged an appeal against this decision with the Refugee Review Tribunal (“RRT”), but withdrew his appeal on 27 February 1995. On 6 July 1994, he applied for a subclass 816 (special (permanent)) entry permit and visa to remain in Australia, and on 20 March 1995 was granted a subclass 154 resident return visa.
4. On 31 October 1997, Mr Pang was committed for trial on a charge of possessing a prohibited imported narcotic (heroin) and committed for trial. He has also been convicted of a number of driving-related offences between 1992 and 1997 for which he received fines and the cancellation of his drivers licence:
Court date
Offence
Sentence
23/4/1999
Central Local Court, Surry Hills
1. Attempt to possess commercial quantity of prohibited drug
1. Indicted. Imprisonment 12 years 6 months commence 25/7/1997 conclude 24/1/2010 with non-parole period of 7 years 6 months to commence 25/7/1997.
5. On 18 May 1999, an officer of the then Department of Immigration and Multicultural Affairs (“DIMA”) informed Mr Pang that he may be liable for deportation from Australia pursuant to s 200 of the Migration Act 1958 (“the Act”) as a result of his conviction for attempting to obtain prohibited imports (G p22). On 30 December 2004, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) advised Mr Pang of the department’s intention to cancel his visa as a result of his substantial criminal record and giving him the opportunity to comment. He was advised that in making the decision, the Minister or his delegate would be considering his criminal history, sentence administration report and probation and parole report (G p26). Mr Pang acknowledged receipt of this notice on 7 January 2005 (G p28).
6. On 8 February 2005, Mr Pang’s then solicitor, Vuong Nguyen of Nguyen Tran & Sons Lawyers replied to the department on his behalf (G9 p29). Mr Nguyen submitted there were mitigating circumstances for Mr Pang’s involvement in the supply of illicit drugs. Mr Pang had become addicted to gambling and had lost $10,000 from a “sharp loan” and was desperate to repay the loan as he was fearful for his life. He freely admitted he had a major gambling problem. Mr Nguyen submitted that there was no evidence to suggest that Mr Pang used any illicit drugs. The applicant was remorseful for what he had done and had a strong desire to complete his rehabilitation from gambling and start a new life with Jianyun Pan (G pp29-31). Mr Nguyen also said that it was Mr Pang’s first warning in relation to the cancellation of his visa; he had received a positive probation and parole service pre-release report and completed 15 educational courses which would assist him look for work; and that as Mr Pang has been an Australian resident for 17 years and spent most of his adult life in Australia, he would suffer great hardship if he were deported (G p32).
7. On 12 April 2005, Mr Pang married Jian Yun Pan in a civil ceremony at Hurstville, New South Wales. Ms Pan is a citizen of China who is currently in Australia on a bridging visa pending the outcome of a spouse visa application lodged with the department on 20 April 2005. She has one child, Jessica Si Pang, born on 30 May 2005, at the Canterbury Hospital, Campsie, New South Wales, who is now three months old. Mr Pang is registered as the child’s father, and Jessica has obtained Australian citizenship on that basis.
8. On 2 June 2005, a delegate of the respondent decided to cancel Mr Pang’s resident return visa because of his substantial criminal record and past and present criminal conduct and the continuing risk that he would re-offend and having exercised her discretion under s 501(2) of the Act to cancel his visa (G1). On 15 June 2005, Mr Pang lodged an application for a review of that decision by the tribunal. He has been in detention at the Villawood Immigration Detention Centre, New South Wales, since 14 June 2005.
9. At the hearing, the applicant appeared in person and the respondent was represented by Avenish Chand, solicitor, of Clayton Utz Lawyers. The evidence before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”), taken into evidence as Exhibit A1, together with evidence submitted by the parties. Mr Pang and Ms Pan both gave oral evidence in person.
Relevant Law and Policy
10. Under s 501(2) of the Act, the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he does in fact pass the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are s 501(6)(a) and s 501(6)(c)(i). Section 501(6)(a) provides:
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));
…
”Substantial criminal record” is defined in s 501(7) to include a person who “has been sentenced to a term of imprisonment of 12 months or more” (c) or “the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more” (d).
11. Section 501(6)(c)(i) states:
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct
…
the person is not of good character; …
12. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
13. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Issue
14. In the present case, Mr Pang does not dispute that he fails the character test because of his “substantial criminal record”, having received on 23 April 1999 a term of imprisonment of 12 years and six months with a minimum term of seven years six months. The issue remaining, therefore, is whether the tribunal should exercise the discretion under s 501(2) not to cancel Mr Pang’s resident return visa.
Evidence
15. Mr Pang and Ms Pan gave oral evidence with the assistance of a Cantonese interpreter. Most of the evidence at the hearing related to the applicant’s main conviction and to the child. The applicant maintained that he had led a blameless life until his 1997 drug dealing offence, and that since his release on parole in January 2005 he had not reoffended and complied with all his parole conditions.
16. That is not quite correct. In August 1982 the applicant was issued with an unrestricted driver’s licence. From then on he was convicted of multiple driving offences, culminating in the cancellation of his licence in October 1997. Traffic violations on such a scale and of such seriousness as to result in licence cancellation are an indication of a person from whom the public needs to be protected. While it is true that he has no convictions since his release in January 2005, that is not the end of the story, as will be shown below.
17. The applicant maintained, and has consistently maintained, that his major offence was entirely the result of an addiction to gambling which caused him to incur debts that he was unable to repay. He then borrowed $10,000 from a “loan shark”. When he also lost that sum, the lenders threatened him with death, but said he could eliminate his indebtedness by collecting a package for them. He explained his failure to contact the police over the death threats by saying they were dangerous people and that he had no choice but to comply with their wishes because of his gambling problem.
18. He pleaded guilty at the earliest opportunity, that is on first arraignment, but as Patten J noted in his sentencing remarks, “the plea was not otherwise valuable as he was caught red handed” (Exhibit R1). He gave no assistance to the police concerning the identities of his criminal confederates, saying at the hearing that he did not know who they were, not even the lenders. The proposition that he did not know the identities of the persons who had lent him $10,000 and threatened him with death is not credible and also casts some doubt on the story of the $10,000 in itself.
19. He also stated that he was unaware that he was being asked to transport drugs and did not ask what was in the bags he was being sent to collect. When questioned about whether he had been suspicious about the legality of the transaction, he was at first belligerent, saying “Show me where I said that”. Later, however, he conceded that he had been somewhat suspicious. There had been “something strange” about the transaction, “I don’t know what to say”. He thought he had no choice but to comply with the request, that he had been frightened, lost control and had wanted his debts forgiven.
20. Judge Patten in his sentencing remarks pointed out that the drugs the applicant had been sent to collect amounted to 17.38 kilograms of pure heroin with an estimated wholesale price of about $4,000,000. If cut and sold by the gram with an average purity of 15 per cent, it would have been worth in the order of $34,000,000. His Honour, noting that the applicant chose not to give evidence, concluded that he was more than a simple courier. He had gone to the premises where the drugs had been on three separate occasions, and other men and another vehicle were involved. The applicant had in his possession the keys of one of the vehicles used. His Honour accepted that the applicant had a gambling problem of some magnitude and that the offence was in some way related to it, but he rejected the assessment by a clinical forensic psychologist that the applicant’s involvement stemmed from his desire to eliminate his $10,000 gambling debt (Exhibit R1).
21. The applicant’s claim to favourable consideration on the ground that he is the father of an Australian-born child, who obtained Australian citizenship as a result of his permanent residence status, was raised only recently. As late as 8 February 2005, Mr Pang’s lawyers made a submission to the department in response to the Notice of Intention to Cancel the Visa (G pp29-33). The submission is quite detailed, but under the heading “Children”, states only “There is no consideration to children” [sic]. Ms Pan’s statutory declaration in support dated 8 February 2005, does not mention a child.
22. Jessica Si Pang was born on 30 May 2005 at Canterbury hospital. The birth certificate registers Mr Pang as the child’s father. In his evidence he said that the child weighed 2.72 kilograms at birth.
23. A normal pregnancy lasts 280 days or 40 weeks. An infant born at any time before the completion of the 37th week of gestation is considered premature. A birth weight of 2500 grams or less has been accepted internationally as a clinical criterion of prematurity (Taber’s Cyclopaedic Medical Dictionary, 17th Edition 1993, 1580, 1585; A. J Buzzard et al, Medicine and Surgery for Lawyers, 1996, 325).
24. A child born on 30 May 2005 would in the normal course of events have been conceived on or about 23 August 2004. At that time Mr Pang was incarcerated at Muswellbrook Correctional Centre. On his own evidence he met Ms Pan for the first time about a week after he had been transferred to Silverwater, on Saturday 2 October 2004, almost six weeks later. A child born on 30 May who had been conceived on or after 2 October would have been premature. Both Ms Pan and Mr Pang aver that the doctors did not say that the child was premature. The fact that Ms Pan was allowed to take the baby home after four days, as both witnesses said she had been, suggests a birth without significant complicating factors. The child’s birth weight is also inconsistent with prematurity.
25. Next there is the problem of how a child, premature or not, could have been conceived while the alleged father was an inmate of Silverwater Correctional Centre.
26. Mr Pang testified that Ms Pan’s family had been neighbours of his parents in China and that after she came to Australia on a student visa in 2002 she located him in prison and they began to establish contact by telephone. She first came to see him on Saturday 2 October 2004, just as a friend. His prison visit log (Exhibit R3) confirms that visit, and also records on the same date a visit by another person, Yeni Xu. It is possible that this person accompanied Ms Pan, but the evidence did not disclose whether or not she came alone on that day. She then came to see him again on the following day, a Sunday, and after that, he said, visited him regularly at weekends. Mr Pang said that Ms Pan used to arrive on visiting days at about 12.30 and leave sometime before visiting hours at 3.00pm.
27. He described the visiting area at Silverwater as being partly indoors and partly a concreted outdoor area. There were tables and chairs, a barbecue area and playground equipment for children. There was a CCTV camera on the wall, but as it was a minimum security facility the area was not supervised all the time. They could sit on the ground together, and no one was looking. “We are human, so we have a good time in the circumstances”, he said.
28. Ms Pan’s evidence was significantly different. She said there was a guard stationed at all times on a platform next to the wall, in a position she likened to that of the bench in the courtroom where the hearing was taking place. This warder called people into, and out of, the visiting area. She denied that the baby could have been conceived on 2 October, saying that the first visit “was very strict”, and said that conception would have occurred in mid or late October. That contradicts Mr Pang’s claim that conception occurred on 2 October. Further, the visit log shows that following her visit on Sunday 3 October, Ms Pan did not return to see the applicant until Sunday 7 November, over a month later.
29. The respondent relied on an affidavit, Exhibit R2, relating a telephone conversation with Mr Kenneth Jones, deputy governor of Silverwater Correctional Centre. Mr Jones said that visitors to the correctional centre are permitted to meet with inmates in a public area where they are supervised by correctional centre staff. The centre does not permit unsupervised private visits. Mr Dudley Jennings, acting senior policy and project officer of the New South Wales Department of Corrective Services, stated that there is no provision for any private unsupervised visits in any New South Wales correctional centre. He provided the respondent’s representatives with extracts from the department’s procedures manual relating to contact visits (Exhibit R2, Annexure A). The guidelines state that the department will remove, or impose sanctions upon, any visitor who behaves in “an offensive, indecent or improper” manner. Presumably that expression is broad enough to include a visitor who has sexual relations in broad daylight with an inmate in a public visiting area, not least at weekends, when there are likely to be children present.
30. While one cannot completely exclude the possibility that the child was conceived while the applicant was an inmate at Silverwater, it seems highly improbable, especially as the applicant knew that he was coming up for parole within a matter of weeks. Further, Ms Pan contradicts the applicant’s evidence that conception occurred on 2 October and places it in mid to late October, when she was not inside the correctional centre at all.
31. There were other material inconsistencies in the evidence of the two witnesses. Mr Pang said that the May birth did not come as a surprise to him, because he did not know the expected date for delivery. Ms Pan was not entitled to a Medicare card and he could not take her to see a doctor because he could not afford to. He did not make any inquiries for medical assistance at a public hospital because he was seeking work. Consequently, Ms Pan received no medical checks at any time during the pregnancy. He thought the baby might be due about June, but that was just a guess, because there had been no information from a doctor.
32. Ms Pan, on the other hand, said in cross-examination that she did see a doctor for medical checks while pregnant and been told that the baby was due in June or July. She had undergone periodic checks, not regularly, but whenever she felt unwell. On one occasion the applicant had accompanied her when she went to see a family doctor in Burwood. She spent about a half an hour there, while Mr Pang waited and then paid for the consultation. She said she had told him that the doctor had said the baby was due in June or July.
33. Mr Pang explained the lack of any reference to the child in the submission of 8 February 2005 by saying that he did not learn of the pregnancy until two or three weeks after that date, when she had told him. He had not previously guessed that she was expecting because she is “skinny” and the signs were not obvious. Ms Pan said at one point that she did not know whether Mr Pang had guessed she was pregnant or not, also claiming that her slim build masked any visible signs. Ms Pan also said she had not told the applicant she was pregnant previously, because she did not want to depress him or place him under pressure when he was released on parole. Although he had moved in with her immediately on his release, he had not, she said, guessed that she was pregnant.
34. Both witnesses were emphatic that if they were to return to China they could not take the child with them because she is an Australian citizen and China does not recognise dual nationality, nor could the child obtain Chinese citizenship. They admitted, however, that they had not made any inquiries at the Chinese Embassy to ascertain the legal position.
35. The respondent tendered a report on Australian-Chinese nationality prepared by the Country Information Service of the Department of Foreign Affairs and Trade (Exhibit R4). The report confirms that the child of Chinese parents who has acquired foreign nationality abroad at birth would not be a Chinese citizen and that a person entering China on an Australian passport will be regarded by the PRC as an Australian. China does not recognise dual nationality for any Chinese national, but a child of a Chinese national is eligible for naturalisation.
Application of the Law and Findings of Fact
36. As was stated above, there is no dispute, and I find accordingly, that Mr Pang does not pass the character test by reason of s 501(6)(a) of the Act because he has a “substantial criminal record”, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more or has been sentenced to two or more terms of imprisonment where the total of these terms is two years or more. As stated above, he has been convicted of one offence and sentenced to imprisonment where the total term is two years or more.
37. The issue for the tribunal therefore is whether to exercise its discretion under s 501(2) to decide, nevertheless, not to cancel Mr Pang’s visa. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.
38. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community
39. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraphs (a) the selling of illicit drugs and (n) any other crimes involving violence or the threat of violence. Paragraph 2.7(a) also states that the decision-maker should have regard to “the extent of the person’s criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence”.
Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
40. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
Protection of the Australian Community
41. The first factor to be considered under this heading is the seriousness and nature of the conduct involved. In this case, Mr Pang committed a serious crime within a short time after receiving permanent residence status in Australia. His record includes a term of imprisonment of 12 years and six months for attempted possession of a prohibited imported drug. Paragraph 2.6 of Direction No 21 states:
2.6 It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
(a)the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:
·persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people;
·the Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and
·offences involving illicit drugs of dependency or addition, such as heroin, are also of particular concern to the Government and the community; …
42. The conviction against the applicant related to the importation of 15 crates of marble furniture from Malaysia which had 17.38 kilograms of pure heroin secreted in it, the wholesale value of the heroin being about $4,000,000. In sentencing the applicant on 23 April 1999, Patten J of the District Court, noting that the applicant had pleaded guilty, remarked that the offence carried a maximum penalty of life imprisonment by virtue of s 245 of the Customs Act.
43. The Direction specifically highlights the serious view taken of non-citizens who engage in drug related crime for financial gain, thereby putting the lives of young Australians at risk. The massive quantity of heroin involved in the applicant’s crime means that the most serious view must be taken of the offence. As Patten J noted, the applicant was not a mere courier and his crime was only partly influenced by his desire to have his gambling debts expunged. Indeed, for the reasons mentioned above, there must be some doubt as to whether that was a real factor at all. As Mr Pang was aged 29 at the time of the offence, youth cannot be regarded as a mitigating factor.
44. Next, the tribunal is to consider the risk of recidivism. The conviction for which he was imprisoned was the applicant’s first non-traffic offence. In his submissions to the department of 8 February 2005, Mr Vuong Nguyen, the applicant’s then solicitor, wrote:
We have discussed with the Visa Holder the seriousness of his criminal activity and he has expressed his regret for his criminal activities. The crux for the Visa Holder’s criminality is his addiction to gambling. The Visa Holder has a very strong desire to complete his rehabilitation from gambling. Being in detention, he has realised what he has done and knows the possible effects of his actions. He knows now that if he gets involved in gambling and drugs he could be deported. In detention, the Visa Holder attended and completed all the required sessions for the psychological counselling for his gambling addiction. Since released on parole, he is seeing a counsellor for his gambling in the name of Herb Canon [sic] at the Probation and Parole Service.
We have spoken to the Visa Holder about his involvement in drugs and he has expressed his remorse for what he has done. He admits what he did was wrong. He said “I feel sorry for what I did and plea guilty. I’m very remorse [sic]. 7 ½ years in jail, I study lots of courses [sic] and do [sic] the gambling course. Please give me a chance. I will work hard and continue to see consultant [sic] for the gambling problem when I get out”. (G9 p31)
45. In September 2004, Ms Mandy Thomas, district manager of Muswellbrook Correctional Centre in her pre-release report (G11 p41) wrote:
The inmate has positive work and correctional centre reports and has only been the subject of two minor infractions during a significant period of incarceration. Inmate Pang has also completed many education courses and programs, which will assist him in the community upon his release.
46. The applicant’s parole officer, Ms Erica Mulvany, in a telephone conversation with an officer of the department, stated that Mr Pang had been abiding by the conditions of his parole and that he had been seeing a counsellor every three to four weeks and “has been doing all the right things since his release from gaol” (G10 p37).
47. Mr Herb Cannon, clinical counsellor/psychotherapist, provided a report dated 15 July 2005 (Exhibit A2). After assessing the applicant on 21 February 2005, he believes Mr Pang is in a healthy and stable state of recovery and at a low risk if any, of re-offending. Similarly, a statement from Mr Henry Ho, a volunteer with the Prison Fellowship of Australia, tendered on behalf of the applicant to the department, stated: “Bin Pang told me what he did was wrong and that he did not want to be involved in any further criminal activity” (G9 p36).
48. The applicant’s expressions of remorse are not easily reconciled with his continuing claims to have been little more than an innocent victim who had no choice but to obey the dictates of those higher up in the narcotic hierarchy, or with his absurd claim that he did not know who any of the other parties were.
49. While this was the applicant’s first major criminal offence, his prior record of driving offences of such severity and frequency as to result in licence cancellation may indicate a more general tendency towards unlawful behaviour that points to a significant risk of recidivism. The fact that the applicant has completed a number of courses and useful training programs while in jail is some evidence of rehabilitation. On the other hand, there is prima facie evidence of multiple breaches of the law in connection with the current proceedings, which are outlined below.
50. The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences. “Whilst not a conclusive factor in itself, general deterrence in an important factor in determining whether to refuse or cancel a visa“ (Direction No 21 paragraph 2.11). Deterrence is a factor shown by contemporary research to play a more important role in crime causation than had previously been thought (see Re Ali and Minister forImmigration and Multicultural and Indigenous Affairs [2005] AATA 10 paragraphs 60-63; Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 paragraph 31). Published works attacking deterrence as a relevant factor tend to rely on theoretical arguments or assertions and do not mention any empirical evidence (e.g. J McGuire, Deterrence in Sentencing: Handle with Care (2005) 79 ALJ 448).
51. The deterrent effect of a particular decision is impossible to measure in advance, but it is safe to say that exercising the discretion in favour of not cancelling the visa in a case involving such a serious offence would send an entirely undesirable message to non-citizens contemplating, or currently engaging in, criminal activity.
Expectations of the Australian Community
52. The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia. Failure to do so may make it appropriate to cancel such a person’s visa. “Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concern or offences are such that the Australian community would expect that the person … should be removed from Australia”.
53. The applicant has one very serious conviction recorded against him, attempting to obtain possession of an importation of prohibited drugs, being approximately $4,000,000 in heroin. Such an offence is regarded as very serious by the Commonwealth Government.
54. In my view the community has a right to expect that persons allowed to settle in Australia will not make themselves a burden on the criminal justice system and public purse, particularly so soon after settling in Australia. For several decades after World War II, studies consistently showed that immigration did not aggravate Australia’s crime problems. The migrant population overall had a lower crime rate than the Australian-born and recognition of that fact helped to maintain support for the immigration program. In recent times, however, the position has changed. It is now the case that the percentage of the population who were born abroad exerts a significant positive impact on crime rates, and that there is in fact “an important link between immigration, demography and crime” (it may be noted that Aboriginal origin, on the other hand, is not significantly correlated with criminal activity): PM Bodman, “Crime, Punishment and Deterrence in Australia: A Further Empirical Investigation” (1997) 24 International Journal of Social Economics pp 884, 895, 897. Failure to give adequate weight to community expectations in cases such as this one could tend to undermine public support for the immigration program.
The Best Interests of the Child
55. The third primary consideration is the best interests of the child. The tribunal notes the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations which the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
56. Mr Pang was released from prison on 24 January 2005. On 30 May 2005, Jessica Si Pang was born at the Canterbury Hospital, Campsie. Her parents are recorded in the New South Wales Registry of Births, Deaths and Marriages as Jianyun Pan, mother, and Bin Pang, father. In his statement of facts and contentions (Exhibit R1), the respondent states:
25. We note that the applicant did not raise the fact that he had an Australian born daughter, or that Ms Pan was pregnant with his child, prior to the cancellation of the visa or in the submissions put by his solicitors on 8 February 2005 in response to the notice of intention to cancel.
57. For the reasons given above, I find on the preponderance of probabilities that in all likelihood the applicant is not Jessica’s father and that both the applicant and Ms Pan are well aware of that fact. Nevertheless, although the guideline proceeds on the basis that a child’s best interest will generally be served if the child remains with its parents, I do not think the Direction means that the child’s interests cease to be a primary consideration because Mr Pang is not her father. The fact that the applicant had himself registered as the child’s father and apparently intends to fulfil that role does make Jessica’s best interests relevant to the exercise of the discretion in this case. As the Minister points out, however, Ms Pan is not a permanent resident. She currently holds a bridging visa and is awaiting the outcome of a spouse visa application that relies on Mr Pang. If the tribunal were to affirm the delegate’s decision to cancel Mr Pang’s visa, Ms Pan’s spouse visa application would be refused by the Minister. Both parents are therefore likely to return to China with their child.
58. On that basis the Minister contends that the best interests of the child, to remain with both parents, would not be affected by the tribunal’s affirming the delegate’s decision. The applicant and Ms Pan have stated repeatedly and emphatically that Jessica cannot return to China with them because she is an Australian citizen and China does not recognise dual nationality for its citizens. Despite their apparent certainty, they admitted that they had not made inquiries at the Chinese embassy on the subject. It is true that Chinese law does not recognise dual nationality for Chinese citizens, but as the evidence shows, there is no obstacle to the child’s return to China with her mother and Mr Pang and possibly in due course applying for PRC citizenship.
59. In any event, the evidence in this case casts serious doubt on the child’s national status. As the applicant is probably not the child’s father, she may not be entitled to an Australian citizenship or an Australian passport. Prima facie it would appear that Mr Pang or Ms Pan, or both, may have made false or misleading statements in connection with the application for Australian citizenship for Jessica, in the passport application and in connection with the registration of the birth. If she is not entitled to Australian citizenship the question of dual nationality does not arise.
60. Jessica is too young to have formed any attachments in Australia. Cancelling the applicant’s visa would mean that she would be returning to China where she would be under the care of her mother and Mr Pang. This factor therefore does not weigh significantly against affirming the delegate’s decision.
Other Considerations
61. Having applied the three primary considerations, the tribunal is then required to take into account a number of other secondary matters which, though generally given less individual weight than the primary considerations, may have a bearing on the appropriate decision. The relevant ones in this case are those in paragraph 2.17 (a), (c), (d), (h) and (k). The first three relate to the disruption of the non-citizen’s family and the degree of hardship they would suffer, including whether immediate family members are able to travel overseas to visit the non-citizen and the fourth relates to any evidence or rehabilitation and any recent good conduct. Paragraph 2.17(k) states the decision-maker must consider “the fact that a non-citizen has been formally advised in the past by an officer of the Department … about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501”.
62. Mr Pang has no relatives living in Australia apart from his wife, Jian Yun Pan and her daughter, Jessica. He has no business ties here. Ms Pan holds a bridging visa E with no permission to work while awaiting the outcome of her spouse visa application. Dr Katy Huang, general practitioner, provided a letter stating that Jian Yun Pan has been suffering from anxiety and stress as a result of her husband’s detention and has been undergoing counselling by a psychologist (Exhibit A2). Cancellation of Mr Pang’s visa, however, would not result in Ms Pan’s being further isolated but rather in her being united with her husband, in the likely event that her spouse visa application is unsuccessful. Although the applicant’s marriage to Ms Pan appears to be genuine, Ms Pan is not an Australian citizen, permanent resident or eligible New Zealand citizen, and therefore that factor does not qualify for serious weight. Ms Pan has no family in Australia other than the applicant and her daughter. There is no evidence as to where the rest of her family is located, except for her parents, who are neighbours of the applicant’s parents in China. If Jessica is an Australian citizen she has the right to remain in Australia, but cancellation of the applicant’s visa would probably result in Ms Pan, Mr Pang and Jessica returning to the PRC. Given Jessica’s age, it is unlikely that she would suffer any hardship.
63. There is evidence that Mr Pang has forsworn gambling and that he has completed a number of useful courses while serving his sentence. Those skills, together with his reasonable proficiency in English, are likely to improve his prospects of employment whether he remains in Australia or returns to China. But for the reasons given above, notably his conduct in relation to the current review proceedings, I cannot regard his rehabilitation as substantial.
64. I find that the primary consideration of community protection and community expectations strongly favour visa cancellation in this case. The other considerations do not significantly weigh in favour of non-cancellation.
65. In my view the community discretion should be exercised in favour of affirming the delegate’s decision to cancel Mr Pang’s transitional (permanent) visa.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate of Hearing 4 August 2005
Date of Decision 19 August 2005
Solicitor for the Applicant Self represented
Solicitor for the Respondent Mr A Chand, solicitor, Clayton Utz.
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