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

[2022] AATA 2279

Peng and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2279 (24 June 2022)

Division:GENERAL DIVISION

File Number:         2022/2946

Re:Sining Peng  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member George

Date of Decision:     24 June 2022

Date of Reasons:     15 July 2022

Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 1 April 2022 that the mandatory cancellation of the Applicant’s Five Year Resident Return (Class BB) (Subclass 155) visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) is affirmed.

………………….[SGD]..................................

Senior Member George 

CATCHWORDS

MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – consideration of Ministerial Direction No. 90 – domestic violence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

BJT21 v Minister for Home Affairs (No 2) [2022] FCA 24.

FYBR v Minister for Home Affairs [2019] FCAFC 185

HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202

Minister for Home Affairs v Buadromo [2018] FCAFC 15

QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIAL

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member George

15 July 2022

INTRODUCTION AND BACKGROUND

1. Mr Peng (“the Applicant”) is a Chinese citizen who was born in China and, as at the date of decision, is aged 44 years.[1] The Applicant first arrived in Australian on 1 December 1998, aged 21 years, and he has substantially resided in Australia since despite extensively traveling to and from China.[2] The Applicant was a holder of a Class BB Subclass 155 Five Year Resident Return visa until 17 January 2020.[3]

   [1] Exhibit R2, s 501 G-Documents, G49, page 463.

   [2] Exhibit R2, s 501 G-Documents, G100, pages 837-841.

   [3] Exhibit R2, s 501 G-Documents, G4, page 15.

2. On 17 January 2020, the Applicant was notified that a delegate of the Minister (“the Respondent”) had mandatorily cancelled his visa under s 501(3A) of the Migration Act 1958 (“the Act”).[4]

   [4] Exhibit R2, s 501 G-Documents, G110, pages 1721-1727.

3. On 28 January 2020, the Applicant made written submissions to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[5] On 1 April 2022, the Respondent decided to not revoke the cancellation.[6]

   [5] Exhibit R2, s 501 G-Documents, G11, pages 76-81.

   [6] Exhibit R2, s 501 G-Documents, G3, page 14.

4. On 10 April 2022, the Applicant lodged an application for review of the 1 April 2022 decision in this Tribunal.[7] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.

   [7] Exhibit R2, s 501 G-Documents, G1, pages 1-6.

5. The hearing proceeded on 19-20 May 2022 in a mixed mode of in-person and audio-visual means. The Applicant was self-represented. The Applicant and the witnesses appeared in-person. Several members of the Applicant’s family viewed various parts of the hearing from the public gallery. The Respondent was represented by Ms Laizans of Minter Ellison, who appeared by audio-visual means.

6. The Applicant gave evidence on 19 May 2022. On 20 May 2022, the Applicant’s father Mr JP and wife Ms WW gave oral evidence. The Applicant and witnesses were assisted by interpreters.

7. The Tribunal received the written evidence that is listed in the attached exhibit list, marked “Annexure A”. Additionally, the Tribunal received a written chronology from the Respondent in closing submissions.

   LEGISLATIVE FRAMEWORK

8. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that the Minister may revoke the original decision under s 501(3A) 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 s 501); or

   (ii)    that there is another reason why the original decision should be revoked.

9. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Accordingly, the issue in this matter is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa should be exercised if either of s 501CA(4)(b)(i) or s 501CA(4)(b)(ii) of the Act are met.[8]

   [8] Minister for Home Affairs v Buadromo [2018] FCAFC 151.

   Does the Applicant Pass the Character Test?

10. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

11. On 21 November 2019, the Applicant was convicted in the District Court of New South Wales at the Downing Centre for several offences, including “Dealing with property that subsequently becomes an instrument of crime”. On that count alone the Applicant was convicted and sentenced to two years imprisonment but received a total effective sentence of 30 months, accounting for the sentences on the other counts.[9]

    [9] Exhibit R2, s 501 G-Documents, G5, page 40.

12. The operational effect of ss 501(6)(a) and 501(7)(c) is such that the Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. The Applicant cannot rely upon s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

    Is there another reason why the cancellation of the Applicant’s visa should be revoked?

13. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[10]

    [10] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.

14. For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.

15. The principles that are found in paragraph 5.2 of the Direction may be briefly stated 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 measurable risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens 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 by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    (5)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 8.4(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 measurable risk of causing physical harm to the Australian community.

16. Paragraph 6 of the Direction provides that:

    Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

17. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:

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

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

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

    (4)expectations of the Australian community.

18. Paragraph 9 of the Direction sets out Other Considerations which must be taken into account. These considerations are:

    a)international non-refoulement obligations;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)links to the Australian community, including:

    i)strength, nature and duration of ties to Australia; and

    ii)impact on Australian business interests

19. Paragraph 7(2) of the Direction provides that the primary considerations should generally be given more weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.

    BACKGROUND AND OFFENDING

20. The Applicant was enrolled in the Sydney Institute of Language and Commerce at Shanghai University from September 1996 to July 1998, where he majored in International Business and English.[11] After moving to Australia in December 1998 as the holder of a Temporary Work (Skilled) visa (Subclass 457),[12] and working as a director and secretary of Aus-Zhuhai Investment Enterprises Pty Ltd (CAN: 081 661 298),[13] the Applicant completed a Graduate Diploma in Information Technology from The University of Ballarat in December 2003.[14] The Applicant went on to operate several businesses. These included being the licensee of a karaoke entertainment venue called Pandora’s Music Box in Sydney,[15] operating a mobile telephone shop,[16] and being employed on a contractual basis quoting and measuring cabinets for installation.[17]

    [11] Exhibit R2, s 501 G-Documents, G45, page 425.

    [12] Exhibit R2, s 501 G-Documents, G100, page 841.

    [13] Exhibit R2, s 501 G-Documents, G50, page 466.

    [14] Exhibit R2, s 501 G-Documents, G45, page 427.

    [15] Exhibit R2, s 501 G-Documents, G50, pages 470-471.

    [16] Transcript, page 77, lines 26-27.

    [17] Exhibit R2, s 501 G-Documents, G35, page 304.

21. On 27 November 2019, the New South Wales Department of Corrective Services summarised the Applicant’s background as follows:

    Comment: Born in China, has been in Australia for 20 years. He has a Bachelor of Arts in international Business from China and a Masters of arts in IT from Ballarat University by correspondence. His c class driving licence is valid. He was a manager in a construction company for about 1 year. and he has been running business in mobile phones, computers, a karaoke restaurant and a supermaker (sic) for about 13 years. He would like to gain skills and qualificatiosn (sic) in vocational courses like carpentry. He would like to improve his reading and writing. He will return to working in his construction business.[18]

    [Emphasis added]

    [18] Exhibit R2, s 501 G-Documents, G36, page 360.

22. The Applicant has a driving record replete with infringements and offences dating back to 1999.[19] The Applicant was declared a habitual offender in the New South Wales Local Court at Sutherland on 25 September 2003,[20] but continued to variously commit traffic offences until September 2019.[21] The delegate found:

    While I consider that these offences, in combination, amount to a sustained disregard for Australian traffic laws and that this can be considered serious because of the cumulative risk of such conduct for the community, I acknowledge that these offences are essentially of a minor nature and that this is reflected in the entirely non-custodial penalties imposed for them.[22]

    [Emphasis added]

    [19] Exhibit R4.

    [20] Exhibit R4, page 5.

    [21] Exhibit R4, page 2.

    [22] Exhibit R2, s 501 G-Documents, G4, page 16, paragraph [14].

23. The Applicant has described this offending as “stupid” and has expressed his “deep remorse” for this offending.[23]

    [23] Exhibit A2, paragraph [2].

24. The Applicant married in September 2003.[24] This marriage produced two children: Mr CP who is currently aged 18 years,[25] and Miss AP who is currently aged 12 years.[26] It is unclear to the Tribunal when the Applicant’s marriage broke down, but it did so, “it would appear, because of his gambling addiction”.[27] From his Child Support Assessments, from 2014 to 2019 the childrens’ mother’s care percentage for Mr CP was 86% and for Miss AP was 100%.[28]

    [24] Exhibit R2, s 501 G-Documents, G7, page 55.

    [25] Exhibit R2, s 501 G-Documents, G55, page 503.

    [26] Exhibit R2, s 501 G-Documents, G54, page 502.

    [27] Exhibit R2, s 501 G-Documents, G7, page 55.

    [28] Exhibit R2, s 501 G-Documents, G58, pages 508-518

25. All the Applicant’s minor children are Australian citizens.[29]

    [29] Exhibit A2, paragraphs [34] and [36].

26. Between about 2004 and 2007, [30] the Applicant drank a lot of alcohol and at times would “blackout”.[31] He also used “weed”, being marijuana, and cocaine during that time.[32] After 2007, the Applicant seems to have come to the realisation that he was unable to stop drinking if he drank beyond a threshold of six bottles of beer.[33] Since 2017, the Applicant’s evidence is that he limits his consumption to two bottles.[34] Under cross-examination, the Applicant’s partner Ms WW gave the following evidence:

    Ms Laizans:    Yes, does the applicant drink alcohol?

    Interpreter:He doesn’t drink. No, he doesn’t drink, and I knew that - I heard when he came - shortly after he came to Australia, in the beginning, back then, when I didn’t know him yet, I know he had a karaoke business and to socialise with the customers, he drank quite a lot. However, during the time that I’ve known him, from my impression, he’s never been drunk or done any hard drinking. I don’t think so. And on top of that, because I don’t know how to drive, it’s always been him who is the driver. So for example, if we eat out, he would drive us, and when a friend offers him a beer, he will decline and say, “No, I need to drive later on.”[35]

    [Emphasis added]

    [30] Transcript, page 81, lines 38-43.

    [31] Exhibit R2, s 501 G-Documents, G34, page 285.

    [32] Transcript, page 85, lines 32-33.

    [33] Transcript, page 84, lines 4-12.

    [34] Transcript, page 87, lines 19-20.

    [35] Transcript, page 135, lines 33-41.

27. The Applicant’s account of his alcohol consumption, and that of Ms WW, is consistent with the evidence of the Applicant’s father Mr JP. In re-examination, Mr JP gave the following answer in response to a question as to how many times Mr JP saw the Applicant drinking:

    Interpreter:Long time ago, this was perhaps 2006 or 2007, that when he was running the karaoke business, for the sake of keeping the customers company, he drank. I knew about that, because I was also helping out there. But after that, I’m not sure. All the premium wine and any alcohol at home that were gifted to us from others have been kept there for more than 10 years or even 20 years. None of us drank any of those and neither did he.[36]

    [Emphasis added]

    [36] Transcript, page 125, lines 28-33.

28. Between 2009 and 2016, the Applicant did not lodge personal income tax returns in Australia.[37] However from his Child Support Assessments, the Applicant’s Adjusted Taxable Income from 2014 to 2019 approximated between $62,000 and $65,000.[38]

    [37] Exhibit R2, s 501 G-Documents, G7, page 49.

    [38] Exhibit R2, s 501 G-Documents, G58, pages 508-518

29. On 7 November 2014,[39] and again on 2 May 2015,[40] the Applicant provided false or misleading information to the Department in not declaring his criminal record on his incoming passenger card.

    [39] Exhibit R2, s 501 G-Documents, G99, page 834.

    [40] Exhibit R2, s 501 G-Documents, G99, page 835.

30. The Applicant and Ms WW became de-facto partners in July 2015,[41] having commenced a relationship in 2013.[42] Ms WW had a daughter from a previous relationship, Miss IW who is currently aged 13 years.[43] The Applicant’s relationship with Ms WW also produced a son, Master JP, who is currently aged five years. Ms WW’s evidence is that she was “… diagnosed with postpartum depression as soon as I had [Master JP]. During this time [the Applicant] spent most of his time caring for the children and me”.[44] Ms WW suffers from insomnia, extreme anxiety, significant ear pain, and is undergoing treatment,[45] whilst:

    In addition, [Master JP] has severe asthma and allergies, which require long-term medical examination and medication regularly in Australia. If he needs to travel to China, it will be unstable for his condition and it is hard to reallocate the medications. He has started on childcare and enjoy the environment and education here. He is socially connected with friends in childcare.[46]

    [41] Exhibit R2, s 501 G-Documents, G66, page 560.

    [42] Exhibit R2, s 501 G-Documents, G67, page 562.

    [43] Exhibit R2, s 501 G-Documents, G56, page 504.

    [44] Exhibit R2, s 501 G-Documents, G67, page 562.

    [45] Exhibit R2, s 501 G-Documents, G67, pages 563-564.

    [46] Exhibit R2, s 501 G-Documents, G67, page 563.

31. Gambling has played a substantial role in the Applicant’s adult life. The Applicant says he was gambling full-time from 2015,[47] which he clarified under cross-examination as follows:

    Ms Laizans:    … So, Mr Peng, I understand that you began gambling full time from about 2015, is that correct?

    Mr Peng:       Yes, around 2014.

    Ms Laizans:    And are you able to explain to the tribunal what you mean by “gambling full time”?

    Mr Peng:For some it mean one week go to the casino few time and always want the income from the casino and only doing some part time income from the previous relationship, I mean studying the mobile phone, just on part time. I mean it’s - from that time I just thinking I don’t need to do any visit, I just get the - I can win the money from the casino.[48]

    [47] Exhibit R2, s 501 G-Documents, G7, page 56.

    [48] Transcript, page 56, lines 13-26.

32. This evidence is consistent with Applicant statement that prior to 2017 that “I thought I could win on gamble, didn’t think about stopping”, which extrapolates from the Applicant’s view that “Gambling disorder is the main cause of my crime …”.[49] This view is supported by the Applicant’s antecedents.

    [49] Exhibit A2, paragraph [27].

1. Between 4 January 2016 and 22 November 2016, the Applicant committed Count 1 of his financial crimes, namely dealing with money intending it to become an instrument of crime contrary to s195D(1) of the Crimes Act 1900 (NSW).[50]

   [50] Exhibit R2, s 501 G-Documents, G7, page 45.

2. On or about 4 January 2016, the Applicant committed Count 2 of his financial crimes, namely giving false or misleading information to a specified reporting entity contrary to s136(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).[51]

   [51] Exhibit R2, s 501 G-Documents, G7, page 45.

3. On 9 March 2016, the Applicant was arrested at Treasury Casino in the name "Ping Chen" and was prosecuted and convicted in that name and fined on 22 April 2016 for one count of “Cheating by fraudulent act, practice or scheme”.[52] This may be regarded as a relatively minor matter.[53]

   [52] Exhibit R2, s 501 G-Documents, G8, page 70.

   [53] Exhibit R2, s 501 G-Documents, G7, page 53.

4. Under cross-examination, the Applicant explained why he had a passport with the name “Ping Chen”:

   Mr Peng:        Yes. I use this fake passport go into the casino and open the account and gamble and open a bank account to save in and with draw the money, yes.

   Ms Laizans:Okay.

   Mr Peng:        On that stage I don’t have - I lost my - I lost my real passport  and - yes, and just in order to gamble I just stupid to use the fake passport. I’m sorry about it, yes. I was stupid.

   Ms Laizans:So I understand that you opened a Star Casino account using that name, is that correct?

   Mr Peng:        Yes, correct.

   Ms Laizans:You also opened two Commonwealth Bank accounts in that name?

   Mr Peng:        Yes, correct.

   Ms Laizans:So I understand that you opened a Star Casino account using that name, is that correct?

   Mr Peng:        Yes, correct.

   Ms Laizans:You also used that false identity to send money to China, is that correct?

   Mr Peng:        I send the money to China, yes, correct.[54]

   [54] Transcript, page 52, lines 4-27.

5. Between 11 May 2016 and 28 July 2016, the Applicant committed five further offences contrary to s136(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).[55]

   [55] Exhibit R2, s 501 G-Documents, G7, page 45.

6. The Applicant was arrested for his financial offences on 30 November 2016,[56] before being released on conditional bail on about 10 February 2017.[57] The Applicant latter entered pleas of guilty and was sentenced by His Honour Judge McClintock SC in the District Court of New South Wales on 21 November 2019.

   [56] Exhibit R2, s 501 G-Documents, G8, page 69.

   [57] Exhibit R2, s 501 G-Documents, G7, page 46.

7. In sentencing the Applicant to a total effective sentence of 30 months imprisonment with a 15-month non-parole period,[58] His Honour found:

   [58] Exhibit R2, s 501 G-Documents, G7, page 64.

   As I have indicated his antecedents do not disentitle him to leniency. I have had great difficulty trying to work out the objective seriousness of this offence. It is based almost entirely on the fact that the offender was gambling large sums of money, putting money in an out of accounts, sending money to China, and it would appear receiving money from China. There does not appear to be any conscious structuring within the money. There is a clear and significant amount of double counting within the money but I have been given nothing to indicate precisely how much double counting there is. As I have said, I adopt the interchange with the Crown.

   There is no doubt in my mind that the offender at one time was a high roller.

   There is no doubt in my mind that he wished to retain that status.

   There is no doubt that he became significantly addicted to gambling.

   As I have indicated, that placed him in a very vulnerable position. That position seems to have let (sic) to him using a false identity to explore (sic) a significant amount of currency overseas. The inexorable logic of s 138(6) of the Anti-Money Laundering legislation is that a person who uses a false name and fails to tell the institutions, the reporting institutions, of that false name, in themselves commits an offence which can be described as an instrument of crime.[59]

   [Emphasis added]

   [59] Exhibit R2, s 501 G-Documents, G7, page 61.

8. His Honour went on to accept that the Applicant had relatively good prospects of rehabilitation. In so doing His Honour considered the evidence of a forensic psychologist, Mr Jason Borkowski.[60]

   [60] Exhibit R2, s 501 G-Documents, G7, pages 54-55.

9. Mr Borkowski’s report of 29 March 2019 was prepared for the purposes of the Applicant’s sentencing and Mr Borkowski was bound by the Expert Witness Code of Conduct contained in Schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW).[61] Mr Borkowski reported that the Applicant presented with a “Gambling Disorder, Severe, Persistent” and a “Major Depressive Disorder”.[62] Mr Borkowski wrote:

   I am of the opinion that Mr Peng presents with the above DSM-5 Disorders that were present at the time of the current offences, and that there is a relationship between his diagnosed disorders, and the current offences as outlined below.

   Mr Peng reported being raised in a stable, supportive, caring and prosocial family environment … He successfully completed his schooling and tertiary studies in China, before relocating to Australia to pursue further education and advancing his vocational and/or professional prospects. Mr Peng reported he subsequently went on to establish and run several successful businesses throughout his late twenties and early thirties.

   However, in his mid thirties, Mr Peng commenced gambling as a recreational interest. It appears that after he won a large amount of money in the early stages of his gambling, he started to gamble more frequently, in increasing amounts. Mr Peng described a pattern of behaviour in which he stared to chase his losses, borrowing money, accumulating debts, and selling his businesses and properties as a way to finance his increasing debts. The patterns of behaviour described by Mr Peng is consistent with a Severe Persistent Gambling Disorder…

   Secondary to, and as a result of his gambling disorder and associated problems it caused him including the breakdown of his marriage, and loss of his business, and property, and the significant debts he had accumulated, Mr Peng also developed a Major Depressive Disorder.[63]

   [Emphasis added]

   [61] Exhibit R2, s 501 G-Documents, G32, page 249.

   [62] Exhibit R2, s 501 G-Documents, G32, page 255.

   [63] Exhibit R2, s 501 G-Documents, G32, page 255.

10. The Tribunal notes that Mr Borkowski did not report the Applicant as suffering an Alcohol use Disorder, despite the Applicant’s reports of problematic drinking whilst gambling. Mr Borkowski was also unaware of the Applicant’s history of illicit substance use.[64] Mr Borkowski would also have been unaware that on the date he completed his report that the Applicant committed a criminal act of family violence related to the Applicant’s gambling.

    [64] Exhibit R2, s 501 G-Documents, G32, page 253; Transcript, page 88, lines 5-9.

11. Gambling has been a source of tension in the relationship between the Applicant and Ms WW. Ms WW wrote:

    In 2014, Sining started gambling. He was addicted to gambling and this was very difficult time for us. I could see that he was struggling with himself to stop gambling, but he was finding it impossible.[65]

    [65] Exhibit R2, s 501 G-Documents, G67, page 562.

12. It was an argument over the Applicant’s gambling that gave rise to an incident on 29 March 2019,[66] that caused the Applicant to be convicted of two criminal family violence offences.

    [66] Exhibit R2, s 501 G-Documents, G51, page 483.

13. On 30 May 2019, at the Local Court sitting at Parramatta, His Honour Magistrate Keady convicted the Applicant of Common assault (DV)-T2 and Stalk/intimidate intend fear physical etc harm (domestic)-T2 and concurrently made a conditional release order for 12 months.[67] His Honour also put in place an Apprehended Domestic Violence Order restricting the Applicant from going within 50 metres of Ms WW, Master JP, or Miss IW.[68] This order was subsequently varied on 5 May 2020 following an application by Ms WW,[69] allowing her to visit the Applicant whilst incarcerated.[70]

    [67] Exhibit R2, s 501 G-Documents, G6, page 44.

    [68] Exhibit R2, s 501 G-Documents, G51, page 479.

    [69] Exhibit R2, s 501 G-Documents, G53, pages 499-501.

    [70] Exhibit R2, s 501 G-Documents, G52, page 492.

14. In sentencing the Applicant on 30 May 2019, His Honour found:

    Mr Peng has pleaded guilty to one count of assault, one count of intimidation. The assault occurred in circumstances, as is often the case, where there was an argument with the woman with whom he resides. It is clear as a consequence of that argument he became angry and that led him to punch his female partner to what is said to be the left arm below her shoulder.

    There were children in the unit, although not present, to observe this. Although one would think, as is the case with children, even if they did not see it directly, they would have had some understanding that something disturbing was occurring. The raised voices, if nothing else, would have caused that problem and the effect of these events on children is frequently understated.

    I am not in a position to assess just how badly they may have been affected by this incident but lack of direct sight does not mean that they would not have been harmed psychologically by what undoubtedly they would have heard.

    Following the event the accused is said to have taken a kitchen knife and then drew it across his wrists informing the complainant that he wanted to kill himself.

    …

    I am asked to make an apprehended violence order, which I make, which will have the effect of ensuring that the defendant does not reside in the matrimonial home for a period of two years. That is an essential separation, I think in the circumstances. It is perhaps relevant to note that these events occurred on bail while the accused was on bail and awaiting the disposition of quite serious matters that are pending in another court.[71]

    [Emphasis added]

    [71] Exhibit R2, s 501 G-Documents, G6, pages 43-44.

15. Under cross examination, Ms WW expanded on the link between the Applicant’s gambling and domestic violence:

    Interpreter:    Sure. So I’m free to talk now? That day, because we were arguing over his gambling problem, I was faced with a lot of problems. Back then, because of that, my depression worsened. I kept blaming my husband. I said something that I probably shouldn’t have said. I said, “It’s all your fault. Go die.”

    …

    And then, he replied, “Okay, I will go die[”] and he rushed into the kitchen. He wanted to grab a knife and kill himself. Actually, when he grabbed the knife, I was so scared, I was thinking I said something I shouldn’t have said. So I tried my very best blocking him from the knives. I tried to block him away from there and so that’s when he pushed me. While this was all happening, he said, “Let’s all die together.” So my first response was to ring the father of my husband. However, he didn’t pick up the very - the many phone calls that made. Eventually, I rang the police. I don’t feel like continuing. I don’t have further to day. That’s it.[72]

    [Emphasis added]

    [72] Transcript, page 131, lines 41-44; page 132, lines 5-13.

16. This evidence is inconsistent with a statutory declaration signed by the Applicant on 21 May 2020, where he said:

    I have never done anything violent to my family. I just blamed myself for getting involved in gambling and getting into trouble with them. My wife called the police that day because she couldn’t get in touch with my father. She was afraid that I would hurt myself and she would not be able to stop it physically. She hoped the police would come and calm everyone down.[73]

    [Emphasis added]

    [73] Exhibit R2, s 501 G-Documents, G25, page 208.

17. This evidence is again inconsistent with the Applicant’s evidence under cross-examination, where he described his action as a “hard push” to Ms WW’s hand.[74]

    [74] Transcript, page 47, line 18.

18. Through a former solicitor, the Applicant has placed the blame for his family violence convictions on a former barrister. On 27 May 2020, the former solicitor wrote to the Department of Home Affairs that:

    We submit that the (sic) Mr Peng and [Ms WW] were poorly represented by their barrister [name redacted] for the common assault and Stalk/intimidate intend fear physical charge. Mr Peng and [Ms WW] both informed [the barrister] that Mr Peng did not punch [Ms WW]. However, [the barrister] encouraged Mr Peng to plead guilty for the common assault and Stalk/intimidate intend physical charge instead of having the charges dismissed. Mr Peng and [Ms WW] disclosed to the barrister that he did not punch [Ms WW] and Mr Peng has consistently maintained his innocence to [the barrister].[75]

    [Emphasis added]

    [75] Exhibit R2, s 501 G-Documents, G14, page 128.

19. The allegations made against the barrister by the Applicant, through his former solicitor, are serious. If substantiated, they may constitute unprofessional conduct or professional misconduct. There is no evidence before the Tribunal that these allegations have ever been put to the barrister by the Applicant or his former solicitor, or a complaint made to a regulatory body. The allegations were not repeated by the Applicant at the hearing, or in his statements. It is difficult to ascertain how a barrister could have represented both the Applicant and Ms WW, being respectively the accused and complainant of a crime prosecuted by the New South Wales Police Force. The transcript of the sentencing remarks records that a person other than the barrister appeared for the Applicant on the day of his sentencing.[76] The Tribunal places little weight on the substance of these allegations.

    [76] Exhibit R2, s 501 G-Documents, G6, page 43.

20. The Tribunal notes that from 29 June 2019 to 17 August 2019, the Applicant attended four sessions with Gambling Help Counsellor/Coordinator Sha Mi.[77] He also consulted a psychologist Ms Amy Ng, who wrote a report dated 21 August 2019. Following a consultation on 10 August 2019, Ms Ng reported:

    At his Initial Clinical Interview, 12/06/19, Mr Peng was desperate for a solution to solve and fix his gambling issue. He had previously seen Psychologist Mr Herbert Fung whom had referred him to myself for treatment to address his “thoughts of gambling” and continued motivational interviewing to assist him with insight into his condition.[78]

    [77] Exhibit R2, s 501 G-Documents, G47, page 428.

    [78] Exhibit R2, s 501 G-Documents, G33, page 261.

21. Ms Ng went on to find that the Applicant’s symptoms were consistent with “A Major Depressive Disorder with anxious and depressed mood” and a “Gambling Disorder – ongoing and chronic”.[79] In reaching this conclusion through the application of diagnostic criteria, Ms Ng had reported:

    7. Lies to conceal the extent of involvement with gambling. (Yes, has hurt family members in the past and is now more aware of the consequences)

    8. Has jeopardized or lost a significant relationship, job, or educational or career opportunity because of gambling. (Yes, business ruined with debts. Now business is better and more stable with good social relationship with colleagues and his children)

    9. Relies on others to provide money to relieve desperate financial situations caused by gambling. (Yes, his family in the past).[80]

    [79] Exhibit R2, s 501 G-Documents, G33, page 262.

    [80] Exhibit R2, s 501 G-Documents, G33, page 262.

22. Although Ms Ng’s report makes several mentions of the Applicant’s family, it does not make express mention of the Applicant’s family violence. The same material omission is made in the psychological report of Ms Sharon Dawson of 7 May 2020, who does not seem to have been provided with all the relevant documents.[81] Ms Dawson was provided with a New South Wales Corrective Services Sentencing Assessment Report dated 3 June 2019, which contained the paragraph:

    Mr Peng lived with his partner and infant child in rental accommodation in Castlehill. However, since a non contact Apprehended Violence Order has been imposed on 30/05/2019 he has now returned to his parent’s property in Kellyville.[82]

    [81] Exhibit R2, s 501 G-Documents, G31, page 238.

    [82] Exhibit R2, s 501 G-Documents, G35, page 303.

23. Materially, Ms Dawson was not provided with a copy of the Apprehended Domestic Violence Order that was in force.[83]

    [83] Exhibit R2, s 501 G-Documents, G53.

24. In her report, Ms Dawson’s found that “It is in my opinion that Mr Peng poses little risk of recidivism or likelihood of other serious misconduct”. Ms Dawson also reported that:

    Mr Peng did not seek to avoid culpability for his behaviour in any way and knows that gambling addiction is not an excuse for his behaviour. Mr Peng appeared remorseful when we discussed the impact on his family and in particular his parents.[84]

    [84] Exhibit R2, s 501 G-Documents, G31, page 239.

25. The Tribunal notes that the Applicant and Ms WW did not raise with Ms Dawson the issue of family violence, where it was open to them to do so. Ms Dawson did not consider the issue of family violence. This limits the weight the Tribunal can place on Ms Dawson’s evidence.

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

26. In considering this Primary Consideration, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

27. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:

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

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

    The Nature and Seriousness of the Applicant’s Conduct to Date

28. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.

29. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.

30. His Honour Judge McClintock SC had “great difficulty trying to work out the objective seriousness” of the Applicant’s offending contrary to s 195D(1) of the Crimes Act 1900 (NSW) and contrary to s 136(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). Nevertheless, the result was that the Applicant received a total effective service of 30 months imprisonment with a 15-month non-parole period. This reflects the objective seriousness of the Applicant’s offending

31. Whilst on bail for the above offending, Applicant has been convicted of offending against his female partner, in circumstances where children were at the residence. This was an act of family violence. The Applicant also continued to commit traffic offences.

32. The Applicant’s offending is viewed very seriously by the Tribunal.

33. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that, without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    (i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    (ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    (i)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

    (ii)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.

1. The evidence before the Tribunal does not give rise to a finding that any of the criterion in sub-paragraph (b) are made out. Therefore, the Tribunal does not regard this factor to be relevant.

2. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.

3. The Applicant has been sentenced to a custodial sentence for his offending contrary to s 195D(1) of the Crimes Act 1900 (NSW) and contrary to s 136(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), being a reflection of the objective seriousness of this offending. However, the Tribunal notes that the Applicant did not receive a custodial sentence for any of his other offending.

4. Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.

5. The Applicant’s offending contrary to s 195D(1) of the Crimes Act 1900 (NSW) and contrary to s 136(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) was relatively limited in duration from January to November 2016.

6. The Applicant has only committed one incident of family violence for which he has been prosecuted. Although he breached his bail in committing this offending, he has not subsequently breached his Apprehended Domestic Violence Order.

7. The Respondent has submitted that the Applicant’s frequent history of traffic offending “… demonstrate a consistent blasé attitude by the applicant to the legal requirements imposed upon him and should be given significant weight as demonstrating a cavalier attitude towards respect for the law”.[85] The Tribunal also acknowledges the Respondent’s reliance on QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA [51]-[54]. The Tribunal balances these submissions with the view of the delegate that “these offences are essentially of a minor nature …”.[86]

   [85] Transcript, page 144, lines 40-43.

   [86] Exhibit R2, s 501 G-Documents, G4, page 16, paragraph [14].

8. The Respondent has submitted that there is “an escalation in the seriousness of the offending” by the Applicant, relying on the Applicant’s traffic offences to demonstrate this.[87] This submission sits uncomfortably with the delegate’s finding that “… I find that his family violence offending was not frequent and did not suggest a trend of increasing seriousness”.[88] On balance, the submissions are not sufficiently persuasive for the Tribunal to find that a trend of increasing seriousness in the Applicant’s offending is made out.

   [87] Transcript, page 144, lines 24-28

   [88] Exhibit R2, s 501 G-Documents, G4, page 27.

9. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.

10. There are no identified victims from the Applicant’s financial offending beyond the wider Australian community.

11. The principal victim of the Applicant’s domestic violence is Ms WW, however as His Honour Magistrate Keady observed with regard to the children at the residence a “… lack of direct sight does not mean that they would not have been harmed psychologically by what undoubtedly they would have heard”.[89]

    [89] Exhibit R2, s 501 G-Documents, G6, page 43.

12. The Applicant’s traffic offending represents frequent and consistent breaches of the peace, posing an inherent danger by a road user to other individuals.

13. Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.

14. On two occasions, the Applicant has provided false or misleading information to the Department in not declaring his criminal record on his incoming passenger card.

15. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.

16. There is no evidence before the Tribunal that the Applicant was formally warned about the consequences of further offending in terms of his migration status as a non-citizen. Therefore, the Tribunal does not regard this factor to be relevant.

17. I do not consider factors (b) or (g) of paragraph 8.1.1(1) of the Direction applies to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.

    The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

18. Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

19. Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

    ·the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;

    ·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; and

    ·where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

    Nature of harm should the Applicant engage in further criminal or other serious conduct

20. The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.

21. The nature of the Applicant’s offending to date is very serious. The Tribunal has not found that a trend of increasing seriousness in the Applicant’s offending is made out. Nevertheless, harm would undoubtedly accrue to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct.

22. Anti-money laundering and counter-terrorism financing legislation is in place to protect the Australian community from the dangers that flow from such criminality. Similarly, families must not be made to live in fear of violence, nor should individuals be placed at risk by habitual offending road users. The Australian community would be intolerant of the Applicant were he to engage in further criminal or other serious conduct.

    Likelihood of engaging in further criminal or other serious conduct

23. The Tribunal accepts His Honour Judge McClintock SC’s finding that the Applicant has good prospects of rehabilitation. However, the Tribunal only does so with respect to his financial offending. The Applicant’s family violence antecedents were not before His Honour,[90] nor was Mr Borkowski informed of them due to the contemporaneous nature of his report. Although the sentencing report dated 3 June 2019 was relied upon by His Honour,[91] this report made no mention of the Applicant’s convictions for family violence on 30 May 2019.[92]

    [90] Exhibit R2, s 501 G-Documents, G8, page 70.

    [91] Exhibit R2, s 501 G-Documents, G7, page 48.

    [92] Exhibit R2, s 501 G-Documents, G35, page 303.

24. It is of concern to the Tribunal that Ms Dawson, and Ms Ng, were not informed of the Applicant’s convictions for family violence whilst on bail. Where the Applicant’s relationship with his family is raised in both of those reports, it is surely a material consideration that they were protected by an Apprehended Violence Order. In the absence of such a material consideration, which seems to have been caused by the Applicant’s omission, the Tribunal has reservations as to whether the Applicant understands the gravity of his family violence offending.

25. Ms WW has indicated that she wishes to receive relationship counselling.[93] The Applicant goes as far as to say he undertook weekly visits to a social worker with Ms WW,[94] which seems inconsistent with the terms of the Apprehended Violence Order. In any event, no firm plan for future relationship counselling is before the Tribunal.

    [93] Exhibit R2, s 501 G-Documents, G69, page 570.

    [94] Exhibit R2, s 501 G-Documents, G25, page 208.

26. The Applicant did not breach his Apprehended Violence Order, although this may be partially explained by his presence in custody for part of its duration. However, the Applicant did breach his bail when he committed his acts of family violence. This breach of bail causes the Tribunal concern.

27. Considering all the material before it, the Tribunal is satisfied that the Applicant may engage in further family violence if released into the Australian community.

28. For completeness, the Tribunal has considered the Applicant’s traffic offending and regards that there is a likelihood that he will continue to commit traffic offences if released in the Australian community. However, the Tribunal does not place significant weight on this issue when considered in isolation or in conjunction to the Applicant’s risk of engaging in further family violence.

    Conclusion: Primary Consideration 1

29. Primary Consideration 1 weighs significantly against revocation of the cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

30. Paragraph 8.2 of the Direction provides:  

    (1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

    (2)This consideration is relevant in circumstances where:

    a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

    b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

    (3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:

    a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;

    b)the cumulative effect of repeated acts of family violence;

    c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

    i.the extent to which the person accepts responsibility for their family violence related conduct;

    ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

    iii.efforts to address factors which contributed to their conduct; and

    d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.

31. It is unnecessary to repeat relevant the evidence and findings considered in Primary Consideration 1 for the purposes of Primary Consideration 2.

32. The Applicant has committed one incident of family violence, whilst on bail for other offending. The Tribunal is satisfied that the Applicant may engage in further family violence if released into the Australian community. He has not reoffended. However, part of the reason for this may be that the Applicant has been incarcerated and in immigration detention.

33. The Tribunal has considered the seriousness of the family violence engaged in by the Applicant. There is no trend of increasing seriousness, nor is there a cumulative effect of repeated acts of family violence. The Applicant regards his family violence offending as “stupid” and “wrong”.[95]

    [95] Transcript, page 45, lines, 17-19.

34. The Applicant’s plea of guilty, on the first opportunity,[96] indicates the acceptance of a level of responsibility notwithstanding that the Applicant now denies punching Ms WW. However, the Applicant’s omission of this offending in both Ms Dawson’s report and Ms Ng’s report indicate that he does not understand the impact of his behaviour on Ms WW and the children. Indeed, the Applicant’s failure to raise the issue of family violence as a central issue during Ms Ng’s treatment indicates that he is not committed to addressing the factors which contributed to his family violence.

    [96] Exhibit R2, s 501 G-Documents, G6, page 44.

    Conclusion: Primary Consideration 2

35. Primary Consideration 2 weighs significantly against revocation of the cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

36. Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that 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

37. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

    ·     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);

    ·     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;

    ·     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;

    ·     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;

    ·     whether there are other persons who already fulfil a parental role in relation to the child;

    ·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    ·     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;

    ·     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

38. The Tribunal has already considered His Honour Magistrate Keady’s sentencing remarks regarding the children at the residence during the incident on 29 March 2019 and need not labour these considerations further. Similarly, the Tribunal need not labour the Apprehended Domestic Violence Order that arose from that incident that protected Master JP and Miss IW in addition to Ms WW. The Tribunal is already satisfied that the Applicant may engage in further family violence if released into the Australian community.

39. There is an abundance of evidence before the Tribunal that the Applicant’s relationships with his minor children in Australia are positive. Although at the age of four years Master JP is too young to be expected to write in support of his father, at the age of 13 years his stepsister Miss IW writes in compelling terms that Master JP misses his father.[97] It is clear from that correspondence that Miss IW also deeply misses her stepfather and is concerned for her mother.

    [97] Exhibit R2, s 501 G-Documents, G60, page 520; G61, pages 521-522; G62, pages 523-524.

40. The Tribunal does not have direct evidence of the views of Miss AP, who is aged 12 years, but her older brother Mr CP is of the view that “… being unable to see our father for an extended period of time is going to result in negative effect for me and untold effects for my sister [Miss AP]…”.[98]

    [98] Exhibit R2, s 501 G-Documents, G59, page 519.

41. Despite the Applicant’s criminal convictions and a gambling addiction, which must have impacted his ability to financially provide for his family, the Tribunal is satisfied that the Applicant plays a meaningful role in the lives of his minor children. They are emotionally best served by the Applicant returning to the Australian community. The Applicant also has good prospects of rehabilitation in terms of his financial offending, which may allow him to re-dedicate his efforts to financially providing for his family.

    Conclusion: Primary Consideration 3

42. Primary Consideration 3 weighs moderately in favour of the revocation of the cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

43. In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.

44. Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, 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 be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

    (a)acts of family violence; or

    (b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

    (c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

    (d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

    (e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

    (f)worker exploitation.

1. Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

2. Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

   This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

3. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[99]

   [99] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.

4. Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.

   Analysis – Allocation of Weight to Primary Consideration 4

5. Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:

   ·The Applicant moved to Australia when he was 21 years old and is now aged 44 years.

   ·The Applicant remains emotionally close with his parents, his partner Ms WW, and his son Mr CP, and his minor children Miss AP, Miss IW, and Master JP.

   ·The Applicant has maintained steady employment, albeit interrupted by gambling.

   ·The Applicant’s children are all relatively young and he has maintained a meaningful relationship with them.

   ·The Applicant has committed financial crimes, contravening anti-money laundering and counter-terrorism financing legislation.

   ·The Applicant has committed violent offences against a domestic partner whilst children were in the residence.

   ·The Applicant has consistently and frequently committed traffic offences, which commenced shortly after his arrival in Australia and continued through to his incarceration.

   ·The Applicant’s offences are very serious.

   ·The Applicant’s preparedness to commit crimes raises serious concerns about his character.

6. The Australian community condemns family violence. The Applicant has engaged in serious criminal conduct. The Applicant’s conduct raises serious character concerns.

   Conclusion: Primary Consideration 4

7. Primary Consideration 4 weighs heavily against revocation of the cancellation of the Applicant’s visa.

   OTHER CONSIDERATIONS

8. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. The four stipulated sub-paragraphs are considered at (a), (b), (c) and (d) respectively.

   (a) International non-refoulement obligations

9. The Applicant does not make any claims with respect to Australia’s non-refoulement obligations.

10. The Tribunal is not satisfied that a claim with respect to Australia’s non-refoulement obligations arises on the evidence. This Other Consideration is therefore not relevant to the determination of this application.

    (b) Extent of Impediments if Removed

11. As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and

    (c)any social, medical and/or economic support available to that non-citizen in that country.

12. Having regard to the abovementioned matters, the Applicant is aged 44 years and the evidence before the Tribunal does not support the making of findings regarding:

    (a)physical ill health;

    (b)substantial language or cultural barriers if removed to China; or 

    (c)any lesser social, medical and/or economic support available to the Applicant in China that he would otherwise be able to access in Australia.

13. Both Mr Borkowski and Ms Ng reported that the Applicant presented with a Gambling Disorder and a Major Depressive Disorder.[100] Although it may be more difficult to receive treatment for these conditions in China than in Australia, there is no objective evidence before the Tribunal to suggest that such treatment is unavailable. Further, even it were unavailable then there is no objective evidence before the Tribunal that telehealth services from elsewhere would be unsuitable.

    [100] Exhibit R2, s 501 G-Documents, G32, page 255; page 261.

14. Mr Borkowski wrote that “Mr Peng identified his family as his primary prosocial supports currently”.[101] Indeed, the Applicant was heavily supported by his family at the hearing as evidence by both their willingness to give evidence and their attendance in the public gallery. The Applicant’s mother says that she needs him to look after her.[102] The Applicant’s father, Mr JP, suffers multiple comorbidities.[103] His evidence is that he requires “…24/7 care, especially at night time”[104] and, due to a heart condition that interferes with taking “a long trip”,[105] that he will never be able to see the Applicant again if the Applicant returns to China.[106]

    [101] Exhibit R2, s 501 G-Documents, G32, page 252.

    [102] Exhibit A6.

    [103] Exhibit R2, s 501 G-Documents, G84, page 649.

    [104] Transcript, page 119, line 2.

    [105] Transcript, page 124, line 43.

    [106] Transcript, page 124, line 29.

15. Ms WW has expressed concern that “If Sining leaves Australia, he will not be able to find work in China and provide us with financial support as he has not been there for a long time and has no family or friends there”.[107] This view is not fully supported by the available evidence. However, and despite the Applicant’s present unemployment whilst detained, the Tribunal accepts that the Applicant could better provide for his family if he were released back into the Australian community.

    [107] Exhibit R2, s 501 G-Documents, G67, page 563

16. Considering the evidence before the Tribunal, the extent of impediments if removed carry a slight level of weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    (c) Impact on victims

17. This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

18. The evidence before the Tribunal indicates a negative impact on Ms WW and the Applicant’s children should the Applicant leave Australia, noting in so doing that Ms WW was the victim of the Applicant’s family violence. The Tribunal balances this consideration with the impact on the wider Australian community should the Applicant remain in Australia given his financial and traffic offending. This Other Consideration (c) is therefore neutral.

    (d) Links to the Australian Community

19. In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:

    ·the strength, nature, and duration of ties to Australia; and

    ·the impact on Australian business interests.

    The strength, nature, and duration of ties to Australia

20. The Tribunal is bound to consider the impact of its decision on the Applicant’s immediate family members in Australia, where those family members have citizenship, permanent residency, or an indefinite right to remain in Australia. In so doing, the Tribunal has noted the Applicant’s extensive family ties to Australia. The Tribunal has placed weight on the Applicant’s relationship with his father, who is unwell.

21. The Tribunal has considered that the Applicant has lived continuously in Australia since December 1998. Although the Applicant has made minor vocational contributions during that time, the Tribunal balances these contributions against his non-payment of income tax and his criminal offending.

22. Given the Applicant’s strength, nature and duration of his ties to Australia the Tribunal places some weight in favour of revoking the Applicant’s mandatory visa cancellation.

    Impact on Australian business interests

23. The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction. 

    Findings: Other Considerations

24. The application of the Other Considerations in the present matter can be summarised as follows:

    (a)international non-refoulement obligations: not relevant;

    (b)extent of impediments if removed: carries a slight level of weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa;

    (c)impact on victims: neutral; and

    (d)links to the Australian community: carries some weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    CONCLUSION

25. Under s501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or, the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted and found above, the Applicant does not pass the character test.

26. Having regard to the Direction and to the totality of the evidence, the Tribunal is of the view that there is not another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision.

27. In reaching that conclusion, the Tribunal has had regard to the considerations referred to in the Direction. The Tribunal finds as follows:

    ·Primary Consideration 1 weighs significantly against revocation;

    ·Primary Consideration 2 weighs significantly against revocation;

    ·Primary Consideration 3 weighs moderately in favour of revocation;

    ·Primary Consideration 4 weighs heavily against revocation of the cancellation of the Applicant’s visa; and

    ·The weight attributable to the four-listed Other Considerations as found above.

    ·The Tribunal considers that the totality of the heavy weight it has attributed to Primary Consideration’s 1, 2 and 4, outweighs the weight allocated to the remaining Primary and Other Considerations;

    ·A holistic view of the considerations in the Direction therefore favours the non-revocation of the mandatory cancellation of the Applicant’s visa.

28. Consequently, the Tribunal cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    DECISION

29. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 1 April 2022 that the mandatory cancellation of the Applicant’s Five Year Resident Return (Class BB) (Subclass 155) visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) is affirmed.

I certify that the preceding 138 (one hundred and thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member George

.................................[SGD].......................................

Associate

Date of Decision:

Date of Reasons:

24 June 2022

15 July 2022

Date of Hearing:

6 & 7 June 2022

Applicant:

Self-represented

Solicitor for the Respondent:

Ms C Laizans
Minter Ellison

Annexure A –Exhibit Register

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
A1	Statement of Facts, Issues and Contentions	A	15 May 2022	15 May 2022
A2	Amended Statement of Facts, Issues and Contentions	A	1 June 2022	1 June 2022
A3	Character Reference of Mr DW	A	8 May 2022	15 May 2022
A4	Character Reference of Ms MP	A	9 May 2022	15 May 2022
A5	Character Reference of Mr JP	A	1 June 2022	1 June 2022
A6	Character Reference of Ms PL	A	1 June 2022	1 June 2022
A7	Character Reference of Ms WW	A	1 June 2022	1 June 2022
A8	Character Reference of Mr XJL	A	31 May 2022	1 June 2022
A9	Transaction Record	A	Various	1 June 2022
A10	Conversation Record	A	Various	1 June 2022
A11	Smith Family Letter	A	8 September 2022	1 June 2022
R1	Respondent’s Statement of Facts, Issues and Contentions	R	27 May 2022	27 May 2022
R2	Section 501 G-Documents	R	Various	21 April 2022
R3	35 Pages of Court Material	R	Various	3 June 2022
R4	Six pages from Transport New South Wales	R	30 May 2022	6 June 2022
R5	Contact Material	R	Various	2 June 2022