PZJK and Department of Immigration and Citizenship - [2012] AATA 367

CATCHWORDS – MIGRATION – VISA CANCELLATION – failure of character test – discretion – decision set aside and visa restored.

PRACTICE AND PROCEDURE – confidentiality order – rationale for public hearings – public hearing lead to unintended damage for applicant’s family, friends and associates – order made.

Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277; (1999) 56 ALD 321
Hodgson v Imperial Tobacco Ltd [1998] 2 All ER 673
Inland Revenue Commissioners v National Federation of Self Employed and Small Businesses Ltd [1982] AC 617
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; 139 ALR 84
Martinez v Minister for Immigration and Citizenship [2009] FCA 528; (2009) 177 FCR 337
Milne v Minister for Immigration and Citizenship [2010] FCA 495; (2010) 52 AAR 1
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187; 153 ALR 463; 45 ALD 136; 24 AAR 457
Minister for Immigration and Multicultural and Indigenous Affairs v X (2005) 147 FCR 243
Re Basile and Minister for Immigration and Citizenship [2010] AATA 556
Re Everfresh Seafoods Pty Ltd and Australian Fisheries Management Authority (1999) 58 ALD 581
Re Nolan and Minister for Immigration and Ethnic Affairs (1986) 9 ALD 407
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; 2 ALD 33
Schuster-McFayden v Minister for Immigration and Citizenship [2011] FCA 1303

Administrative Appeals Tribunal Act 1975 s 35
Administrative Decisions (Judicial Review) Act 1977
Crimes Act 1958 (Vic) s 72, 81(4), 82
Crimes (Theft) Act 1973 (Vic)
Federal Court of Australia Act 1976 s 50
Judiciary Act 1903 s 39B
Legislative Instruments Act 2003 s 13(1)(a)
Migration Act 1958 ss 499, 501(2), (6) and (7)
Migration Legislation Amendment (Strengthening of Provisions to Character and Conduct) Act 1998

Direction [no. 41] – Visa refusal and cancellation under s 501

DECISION AND REASONS FOR DECISION [2012] AATA 367

ADMINISTRATIVE APPEALS TRIBUNAL )

) 2012/1240

GENERAL ADMINISTRATIVE DIVISION )

Re:PZJK

Applicant

And:DEPARTMENT OF IMMIGRATION AND CITIZENSHIIP

Respondent

DECISION

Tribunal: Deputy President S A Forgie

Place: Melbourne

Date: 15 June 2012

Decision:The Tribunal orders that:

1.publication or disclosure of the identity of the applicant, her partner, family and associates be restricted to the parties, their officers and legal representatives, to members and staff of the Tribunal and to staff of Auscript; and
2.the applicant be known by the pseudonym “PZJK”; and

and the Tribunal decides to:
3.set aside the decision of the respondent dated 14 March 2012 and made under s 501(2) of the Migration Act 1958 cancelling the applicant’s Class DD Subclas 880 (Skilled-Independent Overseas Student) visa granted on 26 October 2007; and
4.substitute a decision that the Class DD Subclas 880 (Skilled- Independent Overseas Student) visa granted on 26 October 2007 not be cancelled under s 501(2) of the Migration Act 1958.

S A Forgie
Deputy President

REASONS FOR DECISION

PZJK was the holder of a Class DD Subclas 880 (Skilled-Independent Overseas Student) visa granted on 26 October 2007. On 14 March 2012, a delegate of the Minister for Immigration and Citizenship (Minister) cancelled her visa. He did so exercising his discretion under s 501(2) of the Migration Act 1958 (Act) on the basis that he was not satisfied that PZJK passed the character test. The character test is set out in s 501(6) of the Act. There is no question that she does not pass the test for she has been sentenced to a term of imprisonment of 12 months or more and so has a “substantial criminal record” as that expression is defined in s 501(7)(c).

Having considered the evidence and had regard to the Minister’s Direction 41 made under s 499 of the Act, I have decided that the decision should be set aside. The effect of my decision is that PZJK is once more the holder of a Class DD Subclas 880 (Skilled-Independent Overseas Student) visa entitling her to permanent residency in Australia.

BACKGROUND

In this part of my reasons, I set out the facts that are not in dispute between the parties and which, on the basis of the evidence, I have found. In doing so, I accept PZJK’s evidence on these matters. It is evidence that is internally consistent and that is consistent with other material that I have.

PZJK’s early life in China

PZJK was born in China in 1983. She attended a local school but, when she was aged 11 years, she was sent to a boarding school where she could specialise in a discipline in which she was gifted and which she had been educated and trained since the age of seven. After attending that school for three years, her mother decided that her studies would not be recognised as the school was not officially recognised in that subject. Consequently, PZJK was sent to another, and more distant, boarding school where she continued her studies. She studied hard and was at the top of her class. At the same time, she won awards in her special discipline. In this period, PZJK rarely saw her parents although she did communicate with them on the telephone.

She did not complete her final year at school as she decided to further her studies in Australia. An education agent had advised her that, if she were to apply for a student visa before she turned the age of 18 years, she would not have to undertake an English language test under International English Language Testing System (IELTS). She had studied English at school since she was approximately ten years of age and in Grade 5 at school but her proficiency was poor.

Early life in Australia

PZJK was granted a student visa and arrived in Australia in November 2001. Her mother had given her $10,000 in cash and had made it clear that there would be no further money given to her. She was then 18 years of age and was enrolled at a college (College) to study the English language and then to undertake Years 11 and 12 in order to obtain her Victorian Certificate of Education (VCE). At the same time, she planned to pursue her special discipline as an adjunct to her studies.

The College organised a Homestay but PZJK experienced difficulties with the arrangement. Some of the difficulties arose from the fact that she and the owner of the home did not share a common language. Furthermore, the owner would not allow her to have a key so she had to wait to be let in when she returned from school. The facilities she needed to pursue her discipline were not available but were later sourced for her in the area at the home of another person.

That person, whom PZJK found to be warm-hearted, introduced her to a teacher in the discipline. That teacher then recommended that she contact another teacher whom I will call “Mr T”. PZJK had heard of Mr T when she was still in China and she had hoped to study under him in Australia. His presence in Australia was one of the reasons for her wanting to study in Australia.

PZJK located the second teacher, to whom I will refer as Mr T. She became his student and had two lessons with him each week. The lessons cost $100 each. She had hoped to enrol in a course focused on her discipline but was told by her education agent that she had to complete her VCE at the College. She had commenced her studies at the College on 11 April 2002.[1]
[1] Certificate of Attendance at the College; Exhibit H

PZJK was finding money a problem as she had not understood how expensive life would be in Australia. She had moved from the Homestay to a unit but other residents in the complex were drug users and she found it an unsuitable environment. A move to another suburb followed and then another move. By this time, her financial situation had required her to find a job at a 7-Eleven. Her mother had sent her another $2,000 to assist her to purchase the facilities she needed to pursue her discipline. Part time teaching work and sales work followed but she was earning only $40 or so each weekend from it. PZJK gave up work at the 7-Eleven and started work in a sushi restaurant.

Money continued to be a difficulty for her. She met a Chinese girl who told her that she could earn better money if she were to work in a massage parlour. Massage parlours advertised in the Chinese language newspapers and she found herself a position in one. PZJK worked in the massage parlour while studying for her VCE. She completed her VCE in 2003.[2]
[2] Certificate; Exhibit H

PZJK applied for entry to University to pursue studies in her chosen discipline but was told that her academic standard was not high enough. The University referred her to a College, which did accept her in a course for the 2004 academic year. She funded the one year course herself and successfully completed it at that College in 2004.[3] Her parents no longer sent her money and she sent them money that she told them she earned from her teaching work.
[3] Certificate of Completion from College; Exhibit H

At the time, it was possible to obtain permanent residence in Australia after completing a two year Diploma in Hairdressing. PZJK enrolled in a course leading to a Diploma of Hairdressing Salon Management beginning in February 2005 and ending at the beginning of 2007. She met all of the course requirements as well as attending more than 80% of the time required.[4]
[4] Statement of Attendance; Exhibit H

During 2005, PZJK started to work in a brothel. That brothel was owned by the people who owned the massage parlour in which she had been working and they had closed the massage parlour. Her work in the brothel continued during 2005 and 2006 while she attended the hairdressing course and continued her lessons with Mr T. Her lessons continued until about 2008.

After completing the hairdressing course, she applied for, and was granted, permanent residence. She was offered a position in a hairdressing salon but was unable to accept it as her skin was sensitive to the chemicals that she was required to use. It made no difference whether she wore gloves or used creams.

During this time, PZJK continued to work at the brothel. She sent money home to her mother and told her that she had completed a University degree and was working professionally in her chosen discipline.

The convictions and sentences

PZJK was charged with six counts of obtaining financial advantage by deception after being apprehended by police in July 2009. Each count related to the same person, whom I will call “V”, and occurred between March 2007 and October 2008. She had met V while she was working at the massage parlour and so some time before 2005. A girl to whom I refer as “X” had also been working at the massage parlour before 2005 and transferred to the brothel. In committing her offences, PZJK made representations to V that X needed money and impersonated X in email correspondence. V transferred money to her as a consequence of the representations. She was committed for trial in the County Court of Victoria. While awaiting trial in May 2011, PZJK pleaded guilty to each of the six counts.

On 16 August 2011, Judge Rizkalla convicted PZJK on each of the six counts of obtaining financial advantage by deception. Judge Rizkalla of the County Court sentenced PZJK to 12 months’ imprisonment on each count. Count 4 was taken as the head sentence with three months of the sentences imposed for Counts 1 and 2 to cumulate. The sentences imposed on Counts 3, 5 and 6 were wholly concurrent with the head sentence. That meant that PZJK was sentenced to an effective term of 18 months’ imprisonment ending on 24 January 2013.[5] Judge Rizkalla fixed a minimum term of eight months before PZJK was eligible for parole.
[5] G documents at 71

Imprisonment, home detention and parole

PZJK served her term of imprisonment from 16 August 2011 at the Dame Phyllis Frost Centre where she fulfilled the requirements for a Certificate II in Hospitality (Kitchen Operations). The course ran for some three months and included theory as well as cooking. She was awarded a certificate to that effect on 13 December 2011.[6] PZJK had also worked voluntarily in the kitchen while on remand awaiting sentence.
[6] Exhibit H

PZJK was released from prison on 12 January 2012 to commence a Home Detention Order (HDO) that ended on 23 March 2012. As required by the terms of the HDO, PZJK reported to the relevant Community Corrections Service (CCS) on a fortnightly basis and received random and regular home visits by a CCS officer. She was directed to take, and took, random supervised urine analysis and breath testing all of which returned a negative result. PZJK did not breach any curfew restrictions and she undertook voluntary work as required. On the basis of the letter dated 23 April 2012 from the Senior Community Corrections Officer – Home Detention and Court Advice, I find that PZJK:
“… attended each appointment on time and was very open and willing to discuss her offence specific nature, her progress, programs whilst in custody and her future goals, being namely further education, employment and offence free lifestyle.”[7]

and that “… her overall compliance on Home Detention was excellent.”[8]

[7] Exhibit G

[8] Exhibit G

Parole

PZJK was granted parole from 24 March 2012. Given the none parole period set by Judge Rizkalla, that was the earliest date on which she could be granted parole.[9]

[9] G documents at 71

PZJK’s partner P

P was born overseas, has a degree from an Australian University and has held senior management positions before moving with his family to Australia. He has two children from his marriage which ended in divorce a few years ago. Over the years, he has built up a successful business. Although he is still very engaged in the business and guides it, he has handed over the day to day operations of the business to one of his children.

The use made of the moneys obtained from V

On the basis of the evidence of PZJK, which accords with the sentencing remarks of Judge Rizkalla,[10] I find that she put the moneys obtained from V towards purchasing a house in a Melbourne suburb, an investment property and a car.
[10] G documents at 39

PZJK’s relationship with P

I find that P met PZJK at a party to mark the opening of a friend’s business. PZJK knew the owner of the business because he was a former client at the massage parlour and he had invited her and a girlfriend to the party. There were a lot of people at the party but, apart from the host, no other guest had been a client.

PZJK’s family in China

PZJK’s parents continue to live in China. They are aware that their daughter has committed an offence and that she has been imprisoned as a consequence. PZJK has no siblings and no other family in China other than her parents.

THE EVIDENCE

Oral evidence was given by PZJK, her partner P and Mr Patrick Newton. Mr Newton is a Psychologist who is registered with the Psychology Board of Australia, endorsed as a specialist practitioner in the areas of Forensic, Clinical and Counselling Psychology and a Member of the Australian Psychological Society. He has worked in his specialties for some 15 years and has held senior clinical positions in community agencies and a senior academic position with La Trobe University. Since moving to private practice, he has specialised in the assessment and treatment of offenders and has conducted several thousand psychological assessments of adults involved in the criminal and civil streams of the legal system.

Mr Newton had an extended clinical consultation with PZJK. During that consultation, he evaluated her mental status including her mood, thought processes, personality functioning and degree of insight. He paid particular regard to her behavioural adjustment. Mr Newton reported that PZJK engaged actively and cooperatively in the assessment process. Her answers to psychological testing were consistent with her presentation on clinical interview and she provided a valid test profile.

Life in Australia before the offences

A.PZJK’s evidence

I have based the findings I have made at [3]-[27] above about PZJK’s life in Australia before the offences on her evidence.

B.Mr Newton’s record

In his report, Mr Newton noted that PZJK had found it considerably more difficult to settle in Melbourne than she had expected. She had experienced difficulties with her accommodation and had made several moves during her first year before finding accommodation with other students. She had been told by her parents that they would not fund her beyond the initial $10,000 that they had given her. Her financial difficulties became increasingly severe even though she had sporadic work. While her practical skills in her special discipline were adequate, her academic record was not sufficient to gain her a place at the University. Her studies in her special discipline at a College were not recognised as an accredited course by the Department of Immigration and Citizenship (Department).

PZJK had told him that she had been driven to work first in a massage parlour and then a brothel by her desperate financial situation. She had not been assaulted by her clients but she knew of other women who were. PZJK told him that she felt very insecure throughout the time she was working in the sex industry. She was always hoping that she would find a way of earning sufficient funds to support herself so that she no longer had to work in it.

Although PZJK is a relatively reserved person, Mr Newton said, she can experience strong subjective feelings of distress. She experienced feelings of that sort during the period she was trying to establish herself in Australia. Mr Newton observed that:
“… This undermined her self-confidence and left her viewing the world in negative and challenging terms. …[PZJK] was quite socially isolated during this period. Not only did she not feel able to approach her parents for assistance with her difficulties, but she had no close friends in Australia to whom she could turn for support or assistance. Making matters worse, she did not have an understanding of the professional supports available to assist her to address her problems.”[11]
[11] Exhibit C at [17]

He continued:
“The absence of supports and treatment prolonged and intensified … [PZJK’s] problems. While her work in the sex industry ameliorated her financial problems, its personal toll was considerable and reinforced his sense of insecurity as well as leading to feelings of shame for her conduct. On …[PZJK’s] reports her offending commenced at a time when her insecurities were at their peak. She said that the major motivation for it had been to establish herself in a secure position so that she could leave the sex industry and pursue her studies.”[12]

The circumstances of the offences

[12] Exhibit C at [18]

A. PZJK’s evidence

In her written statement to the Tribunal, PZJK said:
“I took money from …[V] by exploiting his feelings for …[X] and his regard for me. In his eyes I could do no wrong. He trusted me absolutely. All I could think of was making myself financially secure. I used the money from …[V] to buy a property at … and a car. I also borrowed from CBA to buy another property for investment. I had created a false impression that I was successful but the reality was that I felt a failure. My dream of becoming a successful … had gone. I could not even be a hairdresser. I definitely could not return to China and keep up the pretence that I had been successful in Australia. …”[13]
[13] Exhibit A at 3

At the hearing, PZJK said that she had met V when she worked at the massage parlour. He had become a friend and, apart from one occasion, he had not been a client at the brothel.

In giving evidence, she said that, now that she looks back on events, she sees that she was looking for security. She was trying to get out of the “prostitution trade”. Her conduct was “really greedy”. V had already assisted her by giving her some money in amounts of $200, $700 and sometimes $500. She agreed with Mr Eteuati that she had seen an opportunity in V to get money so that she would no longer have to work in that industry. When she did get the money, she stopped working in it. That was approximately at the end of 2006. After leaving the brothel, PZJK and V met weekly or fortnightly.

The evidence that PZJK gave about the offences was entirely consistent with that set out in the sentencing remarks. I have set out the relevant passages in the following section of these reasons. When asked why she had not stopped when she had received, say, $100,000, PZJK said that she needed money to secure herself and did not have a figure in mind. She could not answer whether it would have been a figure more than $350,000.

Thinking back, she cannot describe how she felt at the time. She described herself as having a “very, very greedy motive” and said that she should have given some thought to what she had done. She did not think about the harm she was doing to others. She knows now that “Life is no shorter way”. After being charged, she learnt a lot. She understands that she has to be independent and build up a career to achieve a goal. After she was charged, she realised that she had to live honestly and to see life positively. She had known all along that taking the money from V was wrong but she had continued to take it. She had been greedy and wrong and should not have done it. Furthermore, she had behaved wrongly to a friend. She accepts her punishment.

The Bank of China account into which V paid money was PZJK’s mother’s account. Of the $347,400 paid into it, $300,000 was returned to Australia and invested in property. The remaining $47,000 was retained by PZJK’s mother. PZJK said that she had told her mother that she had earned the money by working in a cocktail bar. Her mother did not question her and did what she asked of her but was not involved in the offences in any way.

A. Sentencing remarks

In her sentencing remarks, Judge Rizkalla described the offences:
“… [T]here was one victim to each of these offences and a common theme and that was that …[V] was deceived by you into believing that the money he provided to you was the benefit of… [X]. The deceit that you perpetrated upon him is that you led him to believe that … [X] required moneys from him and he provided it in various circumstances when in reality the money was for your own benefit.
The way all this was able to take place was that… [V] had in 2005 attended at a brothel in … called … and he met … [X] there and he developed a strong emotional attachment to her. She was at that time working as a prostitute and over time he saw her on the number of occasions. He also met you on one occasion when you were using the name … [Y] and you were working with … [X] in that same establishment. Although he only booked you once he saw you occasionally working in reception.
… [V] ultimately tried to convince … [X] to stop working as a prostitute and to do so he offered to assist by buying her various things, providing her with living expenses and money in general. She said she could not stop and had to continue to work, but in January 2006 she told him she was going on holiday and it was at that point he provided some $45,000 to her, so that she could have a year out from working as a prostitute.”[14]
[14] G documents at 34-35; [3]-[5]

On 21 January 2006, V went with X to the bank where he transferred money to her account. Unbeknown to him, X was not returning to China as he thought but to Sydney where her family had lived for 20 years. V wanted to maintain contact with X and so returned to the brothel a couple of months later to ask if the staff could help him to get in touch with her.

PZJK told him that she could get in touch with X and could pass on messages to her. He believed that PZJK was assisting him and he told her about his strong feelings for X and his reasons for wanting to assist her as best he could both financially and otherwise. V also assisted PZJK by giving her money to meet her day to day expenses. In September 2006, PZJK told V that X was in Brisbane and that she could meet up with him. She and V travelled to Brisbane for three days at V’s expense in order for him to meet X but the meeting did not take place. PZJK made excuses for its not taking place.

PZJK gave V an email address telling him that it was that of X but his email communication to that address was in fact email communication with PZJK and not with X. Using the email, PZJK impersonated X to convey information that was untrue. Judge Rizkalla described the first of the offences that took place and those that followed:
“The first financial assistance was on 1 March 2007. … [V] attended the National Australia bank in Collins Street with you and completed a $45,000 telegraphic transfer. That was into an account number that was provided by you and said to be …[X’s] mother’s account. What prompted that payment was an email purporting to be from … [X] saying that she needed $50,000 or so or she would be prevented from leaving China by her mother who was contemplating an arranged marriage for her to a local man. The account name … [V] believed, as I said, was … [X’s] mother’s and he believed the money was being sent to her. And that was not her mother’s account but yours.
Ultimately money that went into that account over this whole period of time was then resent back to you by your mother and there was a chart, as I said, marked as an exhibit, showing those moneys going from … [V’s] account into your account and then coming back from that account in China to your account here. It seems some $300,000 or so in total came back to your account.
17 months or so was covered by charges of a similar nature. What in fact occurred over that time was you creating completely fallacious stories of fairly desperate circumstances on behalf of … [X] and her family in China. They played upon the emotions of … [V] to the extent that he was prepared to ultimately provide a very large sum of money over this period of $347,400.00.
Perhaps one of the lost points in terms of your deception was in May 2007 when you sent an email saying … [X] had in fact become very ill, diagnosed with pre-cancerous cells on her cervix and needed money for an operation. On the basis of that, various transfers were made. Again you played upon the fact that … [X] had a strong connection, you said, to her family and it was suggested that her father needed significant funds to come to Australia and then to have a life saving operation that was required.
In October 2007 after a transfer of some $85,000 was made into the Bank of China account it was only then … [X] began to feel that something was not quite right about this whole circumstance. He began to make notes of the details that you had given him and the text messages he had received from … [X]; although the contact continue from late 2007 into 2008.
It was in April 2008 again that you utilised and played upon the emotions of … [V] by saying in an email that her mother was very ill, that she needed money to cover her expenses and again moneys were paid.
All of this occurred in circumstances where … [V] was of the view that ultimately … [V] would return to Australia and they would return to a relationship and it was to that end that he continued to send her money.”[15]
[15] G documents at 36-37; [13]-[19]

V made enquiries and discovered that X had returned to Melbourne and had been working at the brothel since late 2008. He made a booking with her without disclosing his identity and discovered that she knew nothing of the emails she had purportedly sent to him.

V continued to receive emails in the name of X and he recorded them. In July 2009, he arranged to meet PZJK at a bank in the Melbourne CBD on the basis that he had money to pay into X’s account as he had been asked to do. He told her that he had left the details of the account at home and PZJK told him that she would bring them. They met but the police also attended and she was arrested with the account number in her handbag and four mobile telephones with stored messages between herself and V at her home. The money was traced and $300,000 was transferred back from the account at the Bank of China to PZJK.

Her Honour described PZJK’s conduct as “… not just a mere spontaneous event, but rather a well conceived plan over a reasonably long period of time.”[16]

[16] G documents at 42; [46]

C.Opinion of Mr Newton

In his report, Mr Newton expressed his opinion that:
“… Prior to engaging in her current relationship …[PZJK] typically felt insecure and unsure of herself in social situations. Her sheltered and solitary upbringing provided her with little opportunity to develop the skills necessary to establish and maintain intimacy, and this was reinforced by both her reserved social stance in adulthood and the detrimental effects of her interactions through the sex industry. Until she met …[P], …[PZJK] felt little sense of security or certainty in Australia. She felt a pervasive sense of vulnerability about financial issues together with an acute awareness of her lack of resources and supports here. While her work in the sex industry alleviated her financial concerns to some extent, it served only to reinforce her perception of society as dangerous and uncaring. A desire to escape both from the necessity of working in the sex industry and from the insecurity of her predicament in Australia was (on her report) the chief motivation for her offending conduct.”[17]
[17] Exhibit C at [24]

When asked in cross-examination whether her feelings of shame about working in the sex industry bore any relationship to her offending behaviour, Mr Newton replied “Oh yes. Absolutely.” Her shame at being in the sex industry was ongoing while she was in it. Her shame about her criminal activity was less explicit, Mr Newton said, because she was less clear about its “wrongness”. The matter is slightly more complex and PZJK had a developing process of insight. It did not matter that she had left the sex industry at the end of 2006. Her behaviour made sense in terms of her not wanting to return to that industry and wanting to have no need to return to it.

PZJK’s actions after being interviewed and subsequently charged

A. Sentencing remarks

Judge Rizkalla addressed the period from PZJK’s being interviewed until she pleaded guilty in May 2011:
“In your record of interview you accepted that you knew the victim and that he was your girlfriend’s boyfriend and her name was Christine. You accepted that you had met some years ago and that you were in the city because he asked you to contact Christine. You did not make any admissions in terms of these offences at that point in time. You in fact continued with a story that Christine was in China, you gave various answers suggesting that you had made contact with her then.
You were in this court awaiting trial in May of this year and it was at that point that you pleaded guilty to the offences. Consequently it cannot be said that there was a plea at first opportunity. However you are entitled to credit in the sentence for saving the time and cost of trial to the State of Victoria and for saving the further stress that a criminal trial would have visited upon the victim. You are entitled to credit for facilitating the course of justice by your plea. You also have no prior convictions.”[18]
[18] G documents at 39

B. PZJK’s evidence

PZJK said in her statement that, once she had been charged with the offences in July 2009, she did not know where to go for advice. She said that she:
“… eventually found a firm of solicitors who advised me not to plead guilty. I followed this advice as I knew no better. I really needed a lot of guidance and did not receive this until I confided in …[P].”[19]
[19] Exhibit A at 3

In her oral evidence, PZJK said that she went home after being charged and obtained solicitors the next day. Those solicitors advised her not to plead guilty. She maintained that position until May 2011.[20] She said that she did not tell P about the offences until September or October in 2009.
[20] G documents at 39

Effect of crimes on V

On this matter, I have the sentencing remarks of Judge Rizkalla in which she noted the following:
“The detailed statement of these matters prepared by the Crown shows a consistent conduct on your behalf of ongoing manipulation of … [V’s] emotional attachment to … [X] for your own good. Many of the things that he was told were designed to upset and concern him so as to induce him to pay more moneys.
The behaviour was totally reprehensible, particularly in circumstances where … [V] had in fact developed a strong friendship with you over the course of this time and tried to assist you as best he could.
…
“As a result of this offending … [V], who was in court throughout the plea proceedings, was extremely affected. He chose to read his Victim Impact Statement to this court and did so in that hearing. It is clear from that that he is extremely emotional about these matters and feels his vulnerability was exploited by you, in particular in the context of what he believed to be a close friendship with you.
In his Victim Impact Statement, which was read, he stated the following:
‘Her relentless raising of my hopes to actually see … [X] again were followed time and time again by apparent lies and fabrications to such an extent that I came close to the point of suicide. The constant psychological pain she caused has effected [sic] my general trust in people.’
I have no doubt that for a long time in to the future he will wrestle with this matter and how it was that he came to be so duped by you.
He was also however magnanimous enough to say that he did not wish you any harm and he did not hate you. What he did do however is:
‘… hope that in time she might understand how she has hurt me and at the same time I trust that one day she will overcome her wrongs and endeavour to be an honest, caring human being …’
…”[21]

PZJK’s understanding of the effect of her crimes on V

[21] G documents at 38-40

A. PZJK’s understanding as reflected at the plea hearing

At the plea hearing held in July 2011, a letter written by PZJK to V was read to the court. In it, she wrote of her early life and of her having lost her direction. She continued:
“ Since we met the last five or six years, you teach me a lot of knowledge. I still remember once upon a time you said to me that life is a long journey, be strong and be honest, dont give up your dream whatever you want to be. You such a nice, kind to me, and such taking care of me. --- however, losted me lie to you, take advantage of your honst heart … In the last few year, I always, always, always think that --- what kind of myself was that!--- I just could not believe that I could of done that to you, and you suppose to be one of my closed friend to me. I just feel extremely, extremely, extremely sorry and deeply in my heart to apologize to you.
In your letter, you mentioned that because my issue made you doesn’t trust any body around you including your partner and children, I just feel extremely guilty that you felt like this, and I don’t want you to think like that. I am sorry.
… [V], I want to let you know about me is that I am not the person what you think I am. I am actually quite a carying person. I don’t want you think I am a evil person. --- I am so sorry ---”[22]
[22] Exhibit F

PZJK borrowed the sum of $347,400 from P so that she could reimburse V for the amount that she had taken from him. That cheque was given to V at the plea hearing. PZJK had agreed to repay the loan by selling her residential property and she did so.

In her written statement to the Tribunal, PZJK said of her behaviour:
“… I did not realise how badly I had hurt … [V] and the damage I had done to him. I think about him a lot and I don’t know how I can ever make it up to him. I only hope one day he forgives me. When I was in prison I received a letter from him but I did not reply. My partner … advised me not to have anything further to do with him.
…
I am very sorry for the hurt I did to … [V]. I have accepted my punishment which I deserved. While I was in prison I could reflect on my life, the harm I have done to others and the opportunities that I have to start again. …”[23]
[23] Exhibit A at 3

B.P’s evidence

P said that PZJK’s solicitor had advised her to offer restitution to V. That was when she asked him but he could not recall the terms in which she had asked for it. He had agreed to provide the money and they had only a verbal agreement that she would repay him. P said that he knew that PZJK had her house. He could have offered to give her the money but he “… felt that she should know the pain”.

C.Opinion of Mr Newton

In his report, Mr Newton wrote:
“… [PZJK] herself recognises the importance of taking action to address the matters that have brought her to this stage in her life. Not only was she able to demonstrate insight into the way in which her own choices had contributed to her offending, but she also expressed a continuing rejection of her offending behaviour together with good empathy into the suffering she has caused the victim and others.”[24]
[24] Exhibit C at [33]

Rehabilitation

Judge Rizkalla noted that PZJK had come to Australia as a very young

woman and is still reasonably young and concluded that:

“… It can be said therefore there is a real community interest in reclaiming and rehabilitating you and I accept what your counsel says about that and that is a significant factor in this sentence.”[25]

[25] G documents at 44; [54]

Her Honour said that PZJK’s public expression of remorse and restitution of the moneys to V was to her credit but observed that there had been no demonstrated remorse up until the point she had pleaded guilty just before the trial earlier in the year. Therefore, there was no basis for a large mitigation in sentence but her subsequent expression of remorse and restitution were significant matters. Judge Rizkalla decided that:
“On all the material in my view it is just not possible to conclude that you are a person who has been fully rehabilitated to the extent that I could be satisfied that your prospects of rehabilitation or good and your prospect of reoffending low. My expectation on that basis is guarded in terms of your future because it all rests upon the ongoing support that has been proffered in terms of the new relationship you have and, as I say, the detail in relation to that is scant in my view, and it is difficult to form a strong conclusion.”[26]
[26] G documents at 45; [56]

The Crown had submitted that a sentence of three to four years’ imprisonment with a minimum of eighteen months to two years was the appropriate sentence. PZJK’s counsel had submitted that a wholly suspended sentence was more appropriate. Her Honour considered a wholly suspended sentence inadequate given the nature of the offending and its having occurred over a protracted length of time. That was so despite PZJK’s relative youth and lack of any previous convictions and her having shown remorse and made full restitution. At the same time, her Honour said, it was appropriate that a lower than usual period of time be served “… to allow for a reasonably long period of supervision on parole, which in my view will enhance your chances of remaining offence free.”[27]

PZJK and her relationship with P

[27] G documents at 46; [62]

A.PZJK’s evidence

PZJK said that P is the only person she has ever completely confided in. He knows everything about her, she said, and yet he still accepts her and has given her great support. Most of her friends do not know of her background or about her offences. Only P knows her full story.[28]
[28] Exhibit A at 3

After meeting at a party, PZJK said that she and P started going out together almost immediately. They had met in October 2008 and began a de facto relationship in May 2009. In completing a Personal Details Form for the Department on 24 January 2012, PZJK had written that she and P had started a de facto relationship in November 2009.[29] The term “de facto”, PZJK said, means that two people are committed to each other without the marriage papers. They loved each other. At the beginning when the relationship was quite fresh, she could not make promises but she was very confident about them. The more that she and P went out, the closer she became to him. They became a de facto couple in November 2008.
[29] G documents at 56

B. P’s evidence

In his statement, P had said:
“… [PZJK] had made me very happy. She looked after me when I was sick and picked me up when I was down. Despite our age difference we are very compatible in many ways. I love my music and I enjoy cooking. She loves music and cooking as well. We spent a great deal of time doing things together even mundane things like laundry and household chores. I had brought … [PZJK] into my family soon after we met and was pleasantly surprised at how easily she fitted in. My parents loved her and she got along very well with my siblings and my children. I have included some pictures to show this. We visited my parents at least twice a week and she would happily cook and clean for them and played mah-jong with my family. My parents and my siblings enjoyed her company. I believe that here in my family she found peace, stability and acceptance. In the end I decided to forgive … [PZJK] her past, accept her and give her my full support.”[30]
[30] Exhibit B at [7]

In giving oral evidence, P said that he was happy to continue in the relationship. She is almost like his soul mate, he said. They love each other and have common interests. His family was a bit concerned about their age difference at the beginning but they accepted the relationship very early on. The age difference does not seem to worry PZJK.

In his statement, P said that he does not think that PZJK sees him as a “father figure” despite there being a significant difference in their ages but he does think that, with him, she finds something that she has never previously had. He described it this way:
“… She is part of my family and enjoys the warmth and the love. … [PZJK] has been with me for more than 3 years, During this time, her behaviour has not changed towards me and my family. She remains a warm and loving person. I know my feelings for her are real and I am convinced that her love for me is genuine. She has very little to gain from continuing her relationship with me, other than my support in getting out of a life that was no good. She wanted to leave that life for a long time but just did not know how to do it and who would support her. …”[31]
[31] Exhibit B at [10]

PZJK has never asked him for anything in terms of luxuries, P said. She has simple tastes. Apart from the loan she has since repaid, she has never asked him for money. When she and he decided to live together, P said, he asked her if she would execute a Binding Financial Arrangement (Agreement) and she had readily agreed. He had not done that because he was suspicious of her motives, he said, but because it was the sensible thing to do. His family was grown up and he had made provision for them. P did not feel any sense of haste about having the agreement executed and they did not execute it until August 2010.

The Agreement is a Binding De Facto Financial Agreement made under s 90UB of the Family Law Act 1975. Both PZJK and P received advice about the Agreement from separate firms of lawyers and independently of each other. Both signed separate acknowledgments that they had been advised of the effect of the agreement on their rights and the advantages and disadvantages of entering the agreement.

In essence, it provides that neither has any claim at law or in equity over property acquired by the other and either set out in the Schedule to the Agreement or acquired in his or her sole name with money accumulated from his or her sole earnings or other income received during the relationship. Property acquired during their relationship will be acquired as tenants in common with each contributing equally to any loan repayments should the property be purchased with borrowed moneys. Agreement was also reached as to the division of property should the relationship come to an end and neither would provide, or claim for, spousal maintenance from the other.[32]
[32] Exhibit B, Annexure. “Spouse” includes a party to an agreement under s 90UB: Family Law Act 1975, s 4

P attended the plea hearing with PZJK and visited her every three to four days both when she was in prison and since while she has been held in immigration detention.

C.P’s daughter’s evidence

P’s daughter holds undergraduate and Masters degrees and is pursuing her career. She does not live with her father but has spent significant periods of time with him and with PZJK (and often with them as a couple) since PZJK was introduced to her as her father’s romantic partner in August 2009. I accept Ps’ evidence that he has told her of PZJK’s past life.

P’s daughter said that, in 2009, her “… father’s demeanour and manner clearly relaxed in her [PZJK’s] company.”[33] When staying at her father’s home for an extended period a year or so later, P’s daughter noticed that PZJK stayed with her father almost every night. She also:
“… noticed that she and my father shared very comfortable domestic patterns such as shopping for groceries, cooking and cleaning together, washing shared loads of clothing, and driving one another to various social engagements. Much of this is performed under implicit agreement, rather than by explicit request, as part of their mutual weekly routine. In … 2010 I spent a week with my father and…[PZJK] on a river cruise … during which time I also saw them enjoying one another’s company and warmth in an intimate holiday experience.”
[33] Exhibit D

As to the relationship between her father and PZJK, P’s daughter said:
“I have no doubt that the relationship between …[PZJK] and my father is serious and loving on both sides. My father is extremely happy to be spending time and conversation with …[PZJK]. …[PZJK], in return, appears to enjoy sharing her social and domestic space with my father as well as appreciate the support and stability that a relationship with my father provides. I believe that both …[PZJK] and my father are in a loving and committed long-term relationship and I fully approve and support their partnership.”[34]
[34] Exhibit D

D. P’s friend

A friend of P, whom I will call “Mr F”, wrote a statement about their friendship and P’s relationship with PZJK. He said that he and P have been close friends for over 20 years and attended party at which P met PZJK in 2008. P and PZJK started to go out soon after they met and, in the years since, Mr F has been out with them and stayed with them often. Mr F finds that P and PZJK get along extremely well together and are extremely happy and comfortable with each other. Mr F finds PZJK to be a warm and generous person. She looks after P very well, he said, takes care of the house and cooks for him as well as reminding him to take his medications.[35]
[35] Exhibit E

E.Opinion of Mr Newton

In Mr Newton’s opinion, PZJK:
“… is an introverted and emotionally reserved person. Her interests are primarily solitary in nature and she has not typically sought out close friendships or personal relationships. When she does form connections to another, however, her attachments tend to be intense and she is likely to be loyal and caring and orientation to her significant others.”[36]

Effect of revelation of her offences on P

[36] Exhibit C at [15]

A.P’s evidence

P described PZJK’s offences as “reprehensible” and his reaction to her telling him of them in his statement:
“When … [PZJK] was charged in July 2009, she did not immediately tell me but she became a total emotional wreck. I had no idea about her past life. She eventually told me everything. It was a very tough time for me and for her. I did not know if I could forgive her and accept her.
When she told me about her past and the nature of the charges, I was completely shocked. I went through a period of emotional upheaval and soul searching. I did not know if I could continue to accept her in my life, knowing what she had done. I had to reconcile the very caring, unassuming and undemanding person I knew with a former prostitute and someone who could deceive and take money from a vulnerable man. …”[37]
[37] Exhibit B at [6]-[7]

In cross-examination, P said that PZJK told him of the offences in September or October 2009. She had not done so immediately after being charged in July for she feared that to do so would potentially ruin their relationship. As it was, her revelation shocked him and caused him a great deal of emotional upheaval and soul searching. They did not have a break in their relationship or cease cohabiting but the relationship was a lot more distant for a while. Three or four months passed before P decided to continue with the relationship.

During that time, it did cross his mind that PZJK was in the relationship for reasons other than an emotional attachment. He was convinced that this was not the case for several reasons. One was her general behaviour when she was with him. She was totally natural with him and his friends as she had always been. If she was in the relationship for other reasons, she should be an actress, he said. Another reason was her acceptance of the financial agreement he had proposed. She had agreed almost immediately. Even if he were not correct in his assessment, he and his children were protected. Given the traumatic time they have been through, he now has no doubts as to the legitimacy of their relationship.

B. Mr Newton’s evidence

Mr Eteuati asked Mr Newton how an assessment can be made of whether a person is open or telling a person things in order to obtain a favourable outcome. Mr Newton replied that it is the task of any forensic evaluator to be cognisant of such matters. Consistency must be looked for. That means consistency of the person’s behaviour and words and its consistency with reports and the deportment of the person. Self-serving bias is looked for as is evasiveness and the choices made in the way in which questions are answered and the way in which the same question is answered when asked in different contexts and at different times.

The level of a person’s intelligence is a weak indicator of whether a person will engage in manipulative behaviour. What is required beyond intelligence is sophistication. Consequently, psychology tests have been developed to match the sophistication found in manipulative behaviour. People have trouble feigning certain behaviour consistently. They can feign for part of the time but then they forget to do so in the broader context. PZJK is intelligent, Mr Newton said, but is not verbally sophisticated. Her behaviour took place in a particular context with certain factors prevailing. He did not regard her behaviour in relation to P as manipulative or as to her advantage. The thought had crossed his mind when he read the material but he had reassessed his view when he met with her and spoke with her, spoke with P and found that he was not supporting her and that he had isolated his finances to protect his family. As for manipulating P in order to retain a visa, Mr Newton agreed that P could be a benefit to PZJK but pointed out that, when their relationship began, the visa was not even on the horizon as an issue.

Risk of reoffending

A. Sentencing Judge’s remarks

Judge Rizkalla said that she accepted that if PZJK and P remain in a steady relationship, PZJK will have no need to engage in this sort of conduct again because she will be provided for. Her Honour had before her a written statement in which P detailed his support and regard for PZJK. She expressed some reservations in terms of the nature of their relationship and said that it could only be hoped that it does continue as PZJK’s counsel had submitted it would.

B. PZJK’s evidence

I have set out PZJK’s evidence in other sections of these reasons.

C.P’s evidence

After referring to her childhood in China, her relationship with her parents and her remoteness from them and the circumstances in which she arrived in Australia as a vulnerable person without guidance and support P’s view is that she is now
“… well on the road of rehabilitation. Prison was a salutary experience and one which you would never want to repeat. She is eager to plan her future.”[38]

He knows that she will never reoffend.[39]

[38] Exhibit B at [10]

[39] Exhibit B at [12]

D.Mr Newton’s opinion

Mr Newton considered that PZJK continues to manifest a degree of general social avoidance and continuing interpersonal dependency in her relationships. Despite that and while she could benefit from some brief personal counselling to address those issues, Mr Newton did not consider that her social avoidance and interpersonal dependency warranted a formal diagnosis. Her relationship with P is of considerable assistance in providing her with a secure context in which to develop her social skills and to further the maturation of her personality.

PZJK did not exhibit any thought disorder or psychosis and Mr Newton estimated her to be a person of above average intelligence. He found her to be:
“In short,… a woman of significant abilities with potential to make a genuine contribution to a professional career, provided she remains motivated and is permitted to do so. Such intelligence as… [PZJK] displays is also a positive prognostic indicator as it suggests a good capacity to benefit from educational and/or therapeutic assistance.”[40]
[40] Exhibit C at [30]

Mr Newton also commented that:
“… [PZJK’s] personality adjustment is normal and generally adaptive. She tends to be a conservative and conformist woman who strives to maintain very high personal standards. At times this can give an obsessive or perfectionistic cast to her behaviour. Her general impulse control is positive. … [PZJK] is not alienated from society and does not have a propensity for acting out or risk taking. Specific investigations revealed no broader evidence of antisocial or psychopathic personality traits.”[41]
[41] Exhibit C at [31(3)]

Mr Newton also expressed his opinion about her risk of reoffending:
“Speaking from my area of expertise, it would appear reasonable to suggest that the prospects of … [PZJK] experiencing any further involvement with the criminal justice system would be small. This is asserted on several grounds. Firstly, there are no extant criminogenic factors to precipitate further offending. In particular, … [PZJK] does not gamble, does not abuse drugs, is not dependent on alcohol, is not in a situation of poverty, has good work skills, access to stable accommodation and does not suffer any diagnosable psychological disorder or condition. Secondly, … [PZJK’s] response to her prosecution has been positive. She found her involvement with the legal system to be very upsetting and aversive, but made use of the opportunities available to her whilst on remand to reinforce connections with the mainstream community and improve her work skills. Thirdly, she experiences significant shame for her offending and has expressed her remorse openly. Fourthly, her prior adjustment and character have been good and a detailed and comprehensive evaluation shows no indication of broader antisocial tendencies or other propensities towards criminal behaviour on her part. Thus even without the assistance of… [P], … [PZJK’s] risk of recidivism would be estimated to fall in the ‘low risk’ range. When the benefits of the stable relationship she has with him and the support he provides are considered, this assessment is reinforced.
In the light of such considerations, it would be my respectful suggestion that were … [PZJK] to be allowed to remain resident in Australia there are sound grounds for considering her prospects for a lasting and positive adjustment to be excellent.”[42]
[42] Exhibit C at [34]-[35]

In cross-examination, Mr Eteuati said that the factors he had identified in this passage are factors demonstrated by research to be relevant in assessing risk of recidivism. When asked in cross-examination whether any of the factors were present in PZJK’s case before she started offending, Mr Newton replied that predicting offending is very different from predicting recidivism. There is no reasonable basis on which risk of a person’s offending the first time can be predicted. A first offence does not follow the rules and there is robust research on that point. Everyone can think of people from dysfunctional homes who have not gone on to offend even though, statistically, the rate of offending from those homes is high. People from good homes also offend.

Mr Newton said that PZJK’s feelings of shame and her wanting to leave the sex industry but not having the money to do so give some guidance on what is needed for intervention and management so that she not reoffend. What they tell us is that social interaction and security is important to her. They provide a useful contextual framework in which to manage her situation. That, however, is a very different matter from treating those factors as indicating that she would commit the offence in the first place. Identifying such factors is beyond scientific research at the moment. All that are known are the factors that are relevant in predicting the risk of a person’s reoffending.

Preventative programmes focus on education and the social integration of children. Completion or failure to complete High School is a factor in predicting whether a person will offend but only a weak predictor. PZJK had completed her VCE but her English language skills were weak. Education was a weak predictor in the absence of other factors.

Shame is an emotion that tends to prevent repetition of behaviour. A person flees from it; it is a powerful disincentive. PZJK has shame about being in the sex industry and, with the benefit of reflection and insight, feels very ashamed about the behaviour that led to her convictions. She sees her behaviour as a heinous act of betrayal against V and one that she completely abhors. She saw it at the time but it is a regrettable thing in most people that they see the way of it but other things overwhelm their sense of the wrongness of it. Her need overwhelmed her, Mr Newton said.

Expressing remorse openly for past actions, Mr Newton said, is a public disavowal of behaviour. It also helps to involve others in distancing a person from the conduct. It engenders social support by engaging them to help the person walk away from it. Mr Newton said that PZJK is genuine and sincere in her remorse. When asked by Mr Eteuati if it is easier to get support from people if they have been told of all of the circumstances, Mr Newton said that it is generally the case that a person gets help even if others have not been told. If people have been told, the help that is offered is help offered with that understanding and provides genuine assistance. That help can be contrasted with support that may be more forthcoming from those who do not know.

At this stage, only P and his daughter know of PZJK’s offences and provide support. PZJK has some friends but they provide only superficial support. As the level of contact with P’s family grows, the level of intimacy will grow and so support with it.

PZJK’s time in prison would have had a significant deterrent effect on her. She would have found it upsetting and isolating and would not have enjoyed it in the least. Most are loathe to repeat the experience and it acts as a deterrent as it should. A person who reoffends after sentencing is at a greater risk of reoffending than a person who offends before sentencing. Two years passed between the time PZJK was charged and the time she was sentenced. That she did not reoffend in that time is an indicator of the deterrent effect of being under supervision. It shows that she has the capacity to respond to the deterrent effect. All too often, people offend while on bail and, when they do, it is a bad mark on recidivism. PZJK has not received a bad mark as she has not reoffended and is not likely to reoffend.

The future

A.PZJK’s evidence

PZJK wants to work in the food industry if she is permitted to remain in Australia. To that end, she plans to undertake formal studies. Cooking has become a passion for her and she sees it as a more realisable ambition than her special discipline that brought her to Australia.

PZJK said that she feels part of the Australian community. She has been here for 11 years and all of her adult life has been spent here. It would be extremely hard for her to return to China. Adjustment to life in China would be very hard and it would be hard for P to go there. She and P have discussed what would happen if her visa were cancelled but they have not come to a result, she said.

She is closer to P and his family than she is to her parents. PZJK feels that she is really a part of P’s family and accepted by them. She feels that she does not have another family as she left home at 11 years of age and had not had a lot of parental guidance. P’s family is the first family that she has had and she has never had this kind of experience before.

In cross-examination, Mr Eteuati asked her whether the members of P’s family deserve to be told what she has done in her past. Only one of his children knows, PZJK replied. Her life has moved on since she committed the offences. She is “really, really ashamed” of what she has done in the past and wants to start afresh. She “really wants to apologise” and has been “very greedy”.

B.P’s evidence

P wrote in his statement that it was shattering for him when PZJK’s visa was cancelled. He loves her and wants to be with her for she has made his life a very happy one. He would find living in China very hard as his family lives in Australia. His parents lived in Melbourne as do most of his siblings. He and his parents were very close and he visited them three to four days each week. If he were not in Australia, he hoped that his siblings would care for his surviving parent but it would put a strain on everything.

P would not be able to be engaged in his business. In his oral evidence, P said that he would have difficulties. He does not speak the language and does not understand the culture of the people in China. If PZJK has to return to China, he will have to visit her regularly. Visa restrictions mean that he could only remain in China for a month at a time. He would have difficulty in working in his business.

In his oral evidence, P said that he wanted PZJK to undertake the cooking course she wants to pursue so that she can be independent of him.

MINISTER’S DIRECTION

Section 499(1) of the Act provides that the Minister may give directions to a person having functions or powers under the Act if the directions are about the performance of those functions or exercise of those powers. The Minister is not empowered to give directions inconsistent with the Act or with Regulations made under it and a person must comply with those directions.[43]
[43] Migration Act, ss 499(2) and (2A)

In the case of Re Basile and Minister for Immigration and Citizenship[44] (Basile), I decided that, as the Direction is a Legislative Instrument for the purposes of the Legislative Instruments Act 2003 (LI Act)[45] and there is no contrary intention in the Direction or in the Act under which it is made, I must interpret it as if it were an Act of Parliament.[46]
[44] [2010] AATA 556 at [113]-[118]
[45] The Direction is an instrument in writing, that is of a legislative character, has been made by the Minister in accordance with a power given by Parliament in s 499 of the Act: LI Act, s 5(1). Whether a visa is regarded as a privilege or a right, the Direction has the indirect effect of affecting it because decisions regarding its cancellation must be made in accordance with it: LI Act, s 5(2)(b).
[46] LI Act, s 13(1)(a)

The Minister’s Direction: outline of Direction

The Minister issued directions under s 499 on 3 June 2009 in relation to visa refusal and cancellation under s 501 of the Act. It is Direction [no. 41] – Visa refusal and cancellation under s 501 (Direction) and commenced on 15 June 2009. In essence, it sets out the government’s policy but, although the Tribunal must comply with it, the Direction does not require a particular outcome in a particular case. What it requires is that the Tribunal consider matters set out in the Direction and follow its directions in considering the particular circumstances of a visa holder and coming to a decision.

Paragraph 5.1 of the Direction states that:
“(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2)In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious misconduct by non-citizens.
(3)The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.”

Harm to the Australian community, the risk of the occurrence of that harm and an assessment of what is and is not an unacceptable risk of that harm’s occurring are seen as fundamental in paragraph 5.1. That this is so is clear from paragraphs 5.2(2), (3) and (4):
“(2) In reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider:
(a)the nature of any harm that the person concerned may cause to the Australian community: and
(b)the risk of that harm occurring.
(3)Exercise of the section 501 power must also be considered in the context of a wide range of factors, including whether the person began living in Australia as a minor, the length of time the person has ordinarily been resident in Australia and any relevant international law obligations.
(4)In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia.”

Paragraph 5.2(4) states that, in some circumstances, it may be appropriate for the Australian community to accept more risk where persons have become part of the Australian community due to their having spent their formative years, or a major part of their lives, in Australia.

Direction has two parts

A. Application of the character test

The character test is set out in ss 501(6) to (12) of the Act. Their effect is that, if a person does not fit the criteria in those provisions, he or she passes the character test.[47] In one instance, the provisions are self-executing. Section 501(6)(a) is that instance. It provides that a person does not pass the character test if he or she has a “substantial criminal record” as defined by s 501(7). Section 501(7) specifies the sentences that automatically lead to the conclusion that a person has not passed the character test. No regard is had to the nature of the crime committed or the circumstances in which it was committed. Imposition of a sentence of imprisonment for 12 months or more leads to that conclusion.[48] “Imprisonment” includes periodic detention and residential schemes or programmes.[49] Therefore, a decision-maker’s task in this instance is to see whether any of the criteria in s 501(7) have been met. If they are, the decision that the person does not pass the character test follows without more. There is no assessment of the person’s conduct and no element of assessment or discretionary decision-making involved.
[47] Act, s 501(6)
[48] Act, s 501(7)(c)
[49] Act, ss 501(8) and (9)

B. Exercise of discretion when person does not pass the character test

The second part of the Direction assumes that the visa holder or visa applicant has not passed the character test. It sets out considerations that it divides into two groups: primary and other considerations. Decision-makers must take primary considerations “into account” in every case. Other considerations should be taken “into account” where relevant.[50] Whichever category they fall into, decision-makers should only take into account those considerations that are directly relevant to the decision being made.[51]
[50] Direction at [9(1)]
[51] Direction at [9(2)]

For reasons I adopt in this case, I concluded in Basile that, when I am required to take the considerations into account, what is required of me is not an arithmetical approach. Rather, I am required to think about each consideration as part of a process of coming to a conclusion about another. In doing so, considerations that are not described in the Direction as the primary considerations “… generally, … should be given less weight than that given to primary considerations.” That is the direction in [11(2)] of the Direction but “generally” does not mean “always” and “should” does not mean “must”. As Gray J said in Milne v Minister for Immigration and Citizenship[52] (Milne) of the Minister’s earlier Direction 21, which was to the similar effect in this regard:
“… Again, in cl 2.17, in referring to the ‘OTHER CONSIDERATIONS’ (ie. the considerations that are not primary considerations), the decision-maker is instructed that the other considerations would ‘generally … be given less individual weight to the other considerations than to the primary considerations. A decision-maker who acted on the view that he or she was bound to give less weight to the other considerations than the primary considerations would be in error. The adoption of such a principle would lead to the result that the decision would always be made according to the primary considerations, because the other considerations would never be allowed to outweigh the effect of the primary considerations. … The balancing process is not intended to be mechanical. It is certainly not intended always to produce the result dictated by the preponderance of the primary considerations. If that were the case, it would be pointless to instruct the decision-maker to have regard to the other considerations. …”[53]
[52] [2010] FCA 495; (2010) 52 AAR 1
[53] [2010] FCA 495; (2010) 52 AAR 1 at [45]; 14-15 and approved by Tracy J in Schuster-McFayden v Minister for Immigration and Citizenship [2011] FCA 1303 at [27]-[29]

Justice Rares also considered [2.17] of the earlier Direction 21 in Martinez v Minister for Immigration and Citizenship[54] (Martinez). His Honour said (at 358-9) that:
“ In my opinion the requirements of Direction No 21 do not dictate any particular outcome. Rather, they reflect factors which must be considered by a decision-maker together with others which may be considered. Merely because two of the factors require that the protection of the Australian community and its expectations are to be given weight as primary considerations, does not mean that they necessarily and in every case will outweigh one or more other considerations, even if they are not primary considerations. However, by identifying some primary considerations and requiring the decision-maker to give weight to them, the direction emphasises that the decision-maker must have regard to those matters as a fundamental part of his or her deliberation. That does not preclude the decision-maker determining that some other factor is more important in particular circumstances.”[55]
[54] [2009] FCA 528; (2009) 177 FCR 337
[55] [2009] FCA 528; (2009) 177 FCR 337 at [75]; 358-359 and approved by Tracy J in Schuster-McFayden v Minister for Immigration and Citizenship [2011] FCA 1303 at [30]

The Minister’s objectives

It is apparent from the Minister’s stated objectives in [5.1] of his Direction that “harm”, and more particularly “unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens”, are at the heart of the Direction. The Government seeks to “protect” the Australian community from those risks and to protect the “safety” of the community’s more vulnerable members.

Neither the word “harm” nor the word “protect” is defined in the Act nor the Direction. The ordinary meanings of “protect” include “… to shield someone or something from danger; to guard them or it against injury, destruction, etc; to keep safe. …”.[56] When used as a noun, the ordinary meanings of the word “harm” include “… physical, mental or moral injury or damage …”.[57]
[56] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
[57] Chambers

The Direction does not seek to protect the Australian community from actual harm but from unacceptable “risks” of harm. That is to say, it seeks to protect the Australian community from an unacceptable “… chance or possibility of suffering …”[58] harm as a result of criminal activity or other serious conduct by non-citizens. That opens a question whether the Direction is directed to harm past activity or conduct and the unacceptable risks of harm arising from it or whether it is directed to unacceptable risks of harm resulting from future criminal conduct or of other serious conduct.
[58] Chambers

It seems to me that the paragraph is referring to unacceptable risks of harm that exist at the time the decision is made either as a result of past criminal activity or other serious conduct or as a result of such activity or conduct in the future. It cannot be directed to harm that has actually occurred in the past for the Government cannot protect the Australian community, in the sense of shield or keep it safe from or even guard against that harm, for it is harm that has already occurred.

This interpretation of “harm” sits side by side with the meaning that the courts have attributed to the expression “good character” either under s 501 as it is currently drafted or provisions to like effect in earlier versions of the Migration Act. No definition is given in the Act. As Mr Gilbert of counsel submitted, the Federal Court has explained what is meant by good character. I agree with his submission that it is important to keep that understanding in mind when reviewing a decision made under ss 501(1) or (2) and in the context of the Direction. I will refer only to Goldie v Minister for Immigration and Multicultural Affairs,[59] which reviewed earlier authorities from the Full Court of the Federal Court such as of Irving v Minister for Immigration, Local Government and Ethnic Affairs[60] and Minister for Immigration and Ethnic Affairs v Baker[61] and said of s 501(2)(a) as previously drafted:
“ Section 501 does not charge the decision maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of ‘good character’ in s501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is ‘not of good character’ within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.”[62]
[59] 1999] FCA 1277; (1999) 56 ALD 321 at [8]; 324; Spender, Drummond and Mansfield JJ
[60] (1996) 68 FCR 422; 139 ALR 84; Davies, Lee and RD Nicholson JJ
[61] (1997) 73 FCR 187; 153 ALR 463; 45 ALD 136; 24 AAR 457; Burchett, Branson and Tamberlin JJ
[62] Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277; (1999) 56 ALD 321 at [8]; 324; Spender, Drummond and Mansfield JJ

CONSIDERATION

I will consider the evidence in light of each of the primary and other considerations before assessing the whole of the evidence. In doing so, I will bear in mind that I must have regard to both primary and other considerations in so far as they are relevant on the evidence in this case and according to [11] of the Direction.

The Direction and primary considerations

Only two of the primary considerations are directly relevant. They are that:
“In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following … are to be considered:
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b)…
(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct;…
(d)…”[63]
[63] Direction at [10(1)]

A.Protection of the Australian community: the Direction

In considering the primary considerations, due consideration must be given to the Government’s objectives to which I have referred above. In addition, the Minister has directed that:
“The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:
(a)the seriousness and nature of the relevant conduct; and
(b)the risk that the conduct may be repeated.”[64]
[64] Direction at [10.1(2)]

He has given examples of offences and conduct considered serious. They include extortion and serious theft[65] but the list is not exhaustive. The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community. Due weight must be given to the number and nature of offences, the period between them and the time that has elapsed since the most recent. Consideration must also be given to other factors set out in [10.1.1(4)] but only the following are relevant in this case:
“(a) any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment.;
(b)any relevant factors the person provides as mitigating factors;
(c)-(e)…”
[65] Direction at [10.1(2)(l) and (m)]

Paragraph 10.1.2 sets out the Minister’s directions regarding the risk that conduct may be repeated:
“(1) The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of reoffending.
(2)The following factors are to be considered as particularly relevant to this assessment:
(a)a recent history of convictions, which should be considered as indicating an increased risk of reoffending;
(b)evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports from for the courts, parole assessments, and similar sources of authoritative information or assessment; and
(c)evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.”

B.Protection of the Australian community: PZJK’s circumstances

The offence of which PZJK has been convicted is that of obtaining a financial advantage by deception. It is an offence under s 82(1) of the Crimes Act 1958 (Vic) (Crimes Act), which provides for a maximum sentence of imprisonment of ten years. For the purposes of that provision, the meaning of “deception” is that given in s 81(4). As it applied to PZJK’s offences, it provided that:
“For the purposes of this section, deception-
(a)means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person; …
(b)…”

It is not an offence listed in the Minister’s direction as an example of an offence he considers serious. It is not the offence of “extortion”, to which I was referred. Extortion as it was known at common law is no longer an offence in Victoria.[66]
[66] At common law, extortion is a crime committed by a public official who uses his or her office to take, wrongfully, from any person any money or valuable. It was previously a crime under s 87 of the Crimes Act but was removed by the Crimes (Theft) Act 1973; Pt 1 Div. 2. 3(1); Act No. 8425/1973. The Crimes Act now provides for the offences of extortion with a threat to kill and extortion and extortion with a threat to destroy property etc; see Crimes Act, ss 27 and 28.

Serious theft is given as another example. Theft is an offence committed when a person dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.[67] Section 72(2) sets out the circumstances in which a person's appropriation of property belonging to another is not to be regarded as dishonest e.g. if he or she appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person, he has in law the right to deprive the other of it, on behalf of himself or of a third person or that he would have the other's consent if the other knew of the appropriation and the circumstances of it. A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.[68]
[67] Crimes Act, s 72
[68] Crimes Act, s 72(3)

Obtaining a financial advantage by deception may or may not have the elements of theft and has none of those of extortion. What the offences of theft and extortion have in common with that of obtaining a financial advantage by deception is that a person has, by his or her conduct, obtained a benefit at the expense of another. In extortion, it is by means of threats, in theft it is by means of taking and in financial advantage by deception, it is by means of deception. In extortion, the victim of the crime parts with the property because of threats; the victim’s act is not voluntary. In theft, the victim is either unaware of the taking of the property or, if he or she is aware, does not consent to its being taken. In the crime of gaining a financial advantage by deception, the victim may well be aware that he or she is parting with property, if that is the form of the financial advantage, and may do so willingly but only because of what he or she has been told or believes as a result of the deception. At its heart, the offence is no different from the other two when the financial advantage obtained takes the form of money. The victim’ property is taken from him or her without his or her consent. The law regards them in a similar way for the maximum term of imprisonment for each is ten years’ imprisonment.

On that analysis, the crimes of which PZJK has been convicted are, by their nature, serious offences. The particular degree of seriousness of a particular offence can only be assessed by reference to the particular circumstances of the case. PZJK does not resile from anything that Judge Rizkalla said in her sentencing remarks. She does not seek to put a different “spin” on the events and certainly does not seek to blame the victim, V. She and V met at the massage parlour. The evidence is that they became friendly and I accept that. There is nothing in any of the material that suggests that she fostered contact with him for any nefarious purpose from the outset. I also accept that V has a kind heart and he offered PZJK money to help her. The amounts were measured in their hundreds, and not their thousands, of dollars.

It is not entirely clear when PZJK saw an opportunity to obtain greater sums of money from V but I find that she did see it and did take it. She took her inspiration for her deception from the storyline that V himself had unwittingly created i.e. his deep regard and concern for X. PXJK developed it and played upon V’s regard and concern for X and his wish to help her. It was a serious offence on the first occasion PZJK committed it in these circumstances. That seriousness was compounded by the repetition of the offence over an extended period during which V made the first payment in March 2007 and the last in either October 2007 or April 2008. The evidence is not clear as to whether V actually made a transfer as a result of PZJK’s telling him in April 2008 that X’s mother was very ill and needed money for medical treatment.

The reasons for PZJK’s committing the offences does not lessen their seriousness. Where they are relevant, though, is in considering whether or not she is likely to repeat them. It is in this context that her life before she came to Australia and her life in Australia before the offences becomes very relevant. I accept that, from the age of seven, her life in China was very focused on her education and her training in her special discipline. She effectively left home at the age of 11 to pursue her studies. Her relationship with her parents was distant but there is no evidence from which to draw a conclusion of fault on either side; only a finding that the circumstances and their absences from each other have led to that.

I also accept that PZJK came to Australia with an understanding that her parents’ assistance was limited to the sum of $10,000. Her mother did give her a further $2,000 later on to purchase an item of equipment but no other money. I accept that PZJK found the cost of living to be much greater than she had expected. She supplemented her money by working in a 7-Eleven store initially and later in a restaurant but money was always a major problem and concern for her.

It might be thought that having been educated at a boarding school from the age of eleven, PZJK would be quite independent and have adapted to a new way of life. Having listened to her evidence, I find that she found her new way of life isolating and strange. Living in a boarding school, with its structures and routines, is different from being placed in a Homestay which she is not entitled to enter at the end of a school day unless the owner was at home. Accommodation, in addition to money, became a further problem for her.

Against this background, PZJK completed her English language course, her VCE and her lessons with Mr T. She was disappointed that she could not fulfil her dream of studying her special discipline at University. That did not lead her to abandoning it but to her undertaking related studies at a College and continuing lessons with Mr T. At the same time, her money worries continued and she took a friend’s suggestion to work in a massage parlour. The money was good and she ultimately moved to the brothel owned by her employers when they closed the massage parlour.

Her work in the sex industry is, I find, a matter of considerable shame for PZJK. In making that finding, I rely on her evidence and that of Mr Newton. Her shame reinforced the feelings of insecurity that she had about her financial situation. On the same basis, I find that she had no one to whom she could turn in this period. She wanted to get out of the sex industry and to pursue her studies in her chosen discipline but could see no way of achieving that.

This does not excuse her offences but it explains it and the circumstances. Those are circumstances that no longer apply. At the time she passed sentence, Judge Rizkalla accepted that, if P and PZJK remained in a steady relationship, PZJK would have no need to reoffend. She was guarded, however, in her findings about whether PZJK’s relationship with P would last.

On 16 August 2011 when her Honour passed sentence, the relationship was almost three years old. It is now coming closer to four years old. I have the added advantage of seeing P’s pattern of visits to PZJK in both prison and, more recently, in immigration detention. He has visited her every three days or so in each place. I accept PZJK’s evidence that he has telephoned on the other days. P impressed me as a man who would not take a step lightly. He as clearly shattered by the PZJK’s revelation of her past life and was unable to come to a view about their continued life together without a great deal of thought. His response as a result is not an emotional response or the response of a man wanting to save his lover. It is the response of a man who has given the matter the thought that any serious decision requires be it a decision he makes about business or emotional issues. His response is that he loves her and wants to be with her. It is a response of a mature man making a mature decision.

There is a marked age difference between P and PZJK. Can the same be said for her evidence that she is committed to P and that she will stay with him? On this matter, I have her evidence, that of P and that of Mr Newton. All are consistently of the view that PZJK sees the relationship in the same way that P sees it. She is committed to it and wants to be with P. I accept their evidence not only because of its consistency with each other but also because of its consistency with PZJK’s past and her feelings of insecurity. She has had, on her evidence and that of Mr Newton, deep feelings of insecurity caused by emotional distance from others as well as by financial difficulties. In P and his family she has found security of an emotional sort. Putting aside day to day costs, she has not found long term financial security in the short term. That, I find, is not a factor in their ongoing relationship. What is critical is emotional support and the family structure. From there, she can pursue further studies and achieve financial stability.

The stability of PZJK’s relationship and the consequent change in her behaviour is evident in her behaviour since she told P of her being charged with the offences. That was in approximately October 2009. She had been prepared to obtain money from V in July 2009 but she has neither attempted to commit any further offence since then nor breached her HDO or the terms of her parole. That is the outcome that Judge Rizkalla had hoped for when she set a reasonably long period of supervision on parole in order to enhance PZJK’s chances of remaining offence free. PZJK has responded by showing that she can do that. Her shame at her past life and where it took her and the support of P are both significant reasons for her not doing so. After considering Mr Newton’s evidence and the evidence generally, I think that there is a further reason for my being satisfied that PZJK will not reoffend. Her relationship with P and the fact of being charged, as well as the acknowledgment to herself and others of her shame about her past life and her shame and remorse about her behaviour to V, have acted as a very sharp reminder to PZJK that she can meet life’s challenges by using her own strengths.

Her relationship with P has enabled her to find those strengths and to gain a deeper insight into herself and the effect of her behaviour on others. He has reinforced her understanding of her need to take responsibility for her actions. His statement that she needed to feel the pain by selling her house to repay him the money he had paid V is an example of this. He has been a stabilising influence on her and she, in turn, has enhanced his life and brought joy to it.

I am satisfied that, even if P were to become very ill or to die, PZJK would be able to draw on those inner strengths she has developed. In his questioning, Mr Eteuati explored the support that PZJK could gain from P’s family when most of its members are not aware of her past life. The family provides a supportive framework for PZJK even though most of its members do not know her background. Different people provide different support in different contexts. Even when people are frank and open with each other, they might have met in the context of a particular shared passion. That passion becomes the context of the friendship and each may draw mutual support from it and yet neither may know much of the other’s other life, interests or thoughts. That other life, interests and thoughts may have no relevance.

In choosing not to reveal her past to them, P particularly has made a decision about the way in which his family would react to the information. His family and his friend’s not knowing should not change the nature of their relationship with PZJK as it should be based on what they know of her in their relationships with her and the rest of the family. I accept, though, that P is best placed to know whether it would, as opposed to should, make a difference. He is best placed to make that assessment and I accept his opinion that they would not understand. The same is true of his friend and his reaction.

PZJK is not, I find, likely to be distracted by gambling or drug or alcohol use for she has no history of doing so. They are indicators of a predisposition of reoffending, I find on the basis of Mr Newton’s evidence. So too are poor work skills, no access to stable accommodation and poverty. PZJK has an investment property and has shown, through her studies, to have the application to study necessary to achieve her goals and to participate in the work force. I find that she has forsaken her special discipline for another that she has developed a passion for and is more likely to bring her stable employment.

Having regard to all of these matters, I am satisfied that the risk of PZJK’s reoffending is very low indeed.

C.The length of time ordinarily resident in Australia: the Direction

Paragraph 10.3 of the Direction states:
“Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.”

D.The length of time ordinarily resident in Australia: PZJK’s circumstances

I find that PZJK had been in Australia for approximately 5½ years before she committed her first offence. A period of that length might be thought to be relatively short but I do not think that would be a fair assessment. PZJK was just 18 years of age when she came to Australia. She had been living in boarding schools for the previous seven years and was ill equipped financially to meet the demands of paying for her education and pay for her upkeep. As Mr Newton said, she had no support or assistance as she felt unable to approach her parents for assistance with her difficulties and had no close friends in Australia at the time. Furthermore, she did not understand the professional supports available to assist her to address her problems.

PZJK has now been in Australia for over 12 years. In those years, she had not formed significant ties to the Australian community. It is now almost four years since her last offence was committed in October 2008. She was prepared to engage in one further deception in July 2009 but, on the evidence that I have, I am satisfied that it was not an incident that she did instigated. Rather, V instigated it with the knowledge of the police and it was in succumbing to what PZJK herself described as greed, that she came to be arrested. I accept that PZJK’s actions in taking advantage of V’s wish to transfer further money to X was reprehensible but I accept that, had this opportunity not presented itself, the situation would have been that PZJK had taken no action to further her deception since October 2008 i.e. the month that she met P. That was not because she had found another man to give her money to meet her need for security. She had indeed met another man but he had given her emotional security. He had not become a substitute for V in meeting her financial needs. I accept P’s evidence that she has made no demands of him and her needs and lifestyle are simple.

The Direction and other considerations

Paragraph 11 sets out other considerations that must be considered if they are relevant but which the Minister states in [11(2)]:
“… generally, … should be given less weight than that given to primary considerations.”

This paragraph of the Direction must be read in light of the principles I have set out above from the Federal Court authorities of Milne and Martinez and approved in Schuster-McFayden.[69]

[69] See [108]-[109] above

A.The relevant other considerations: the Direction

In so far as they are relevant, the other considerations found in [11.3] of the Direction include:
“(a) family ties, the nature and extent of any relationships:
(i)the extent of disruption to the person’s family, business and other ties to the Australian community;
(ii)a genuine marital (including de jure or de facto) relationship with an Australian citizen, permanent resident or eligible New Zealand citizen:
(A)to be considered are the nature and duration of the relationship; the degree to which the partner is financially, physically or psychologically dependent on the noncitizen; (if applicable) the impact of separation resulting from the person’s removal from Australia; and whether, at the time of entering into or establishing a relationship, the partner knew that the person was of character concern;
(b)-(c)…
(d)any links to the country to which they would be removed. For example, where the person has no significant familial ties or support in that country, this may be considered in the person’s favour;
(e)hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia:
(i)including whether the immediate family members are able to travel overseas to visit the person; the nature of the relationship between the person and the immediate family members; and whether immediate family members are in some way dependent on the person to support which cannot be obtained elsewhere;
(ii)the ability of the person, together with any accompanying family members, to acquire new language skills and their capacity to obtain support. Where possible, this information should be obtained through interviewing the person and their family members;
(f)level of education, for examples of following would be considered in the person’s favour:
(i)…
(ii)any efforts made by the person to improve their education and, therefore, increase their capacity to positively contribute to the Australian community through employment or other activities;
(g)whether the person has been formally advised in the past by an officer of the Department of immigration and Citizenship about conduct that brought the person within the deportation provisions of the Act (as in force at that time) or the character (visa refusal and cancellation) provisions of the Act (as in force at that time).”

B.The relevant other considerations: PZJK’s circumstances

I am satisfied that PJZK has formed deep ties with P. PZJK and P have developed a mutual trust, respect and interdependency. On the basis of P’s evidence particularly, which is consistent with that of PJZK and of P’s daughters, I also find that PZJK has formed close relations with P’s family. She has regularly cooked and cleaned for P’s elderly parents and a mutual fondness has developed. If PZJK were required to leave Australia, she would not be able to maintain her relationships with P’s family. She would not be in Australia to maintain the interaction with them. That would be an important factor in her not being able to maintain them. Another factor, would be the likely revelation of her past if she were no longer a presence in Australia at P’s side. I accept P’s evidence that some of his family would not cope well with such a revelation. In light of that, I am satisfied that PZJK’s relationships with P’s family would not survive her removal to China.

P is a different matter. I am satisfied that he would go out of his way to maintain his relationship with PZJK were she required to leave Australia. He would do that at a cost that would not be inconsiderable to himself. China is not a country that he knows or whose language he speaks. His relationship with his family in Australia would suffer as a result for he could not carry out his caring duties as a son to the extent that he is doing and wants to do. His duties would fall on his siblings at least to some extent. As far as his business is concerned, P would not be able to maintain his day to day contact with it. I accept his evidence that his role in his business is not a role that can be carried out by means of the internet.

As far as PZJK is concerned, P could not remain in China for more than a month or so. She would be left in a country with which she no longer has any close ties. She has been in Australia for eleven of her 29 years and they have been formative years. In those years, she has learned English, completed her VCE, completed a qualification at a tertiary College and qualified as a hairdresser. She has worked hard to better her education and herself and has maintained her focus in that regard while working in an industry that brought her shame. I find that she is committed to continuing to improve herself by education and is committed to undertaking and completing a cooking course with an eye to finding her future career in the food industry.

The Department did not give PZJK any warning that her visa might be cancelled if she committed a further offence.

Balancing the considerations

The primary and other considerations are to be considered in light of the Government’s objective to seek to protect the Australian community from unacceptable risks of harm as a result of criminal activity or serious misconduct by those who are not Australian citizens. On the findings that I have made, I am satisfied that PZJK’s presence in Australia does not present any great risk of harm to the Australian community. Her risk of committing further offences is very low indeed for the reasons I have given.

I have also considered whether her continuing presence in Australia can be regarded as harmful to the Australian community even in view of that very low risk. She has committed offences but has accepted full responsibility for them and shown genuine remorse. Restitution, that she made to V, is a practical sign of that remorse but cannot restore the status quo for V’s feelings of trust have been damaged as a result of her deception. What PZJK has achieved is what V wished for her. She has come to understand how she hurt him, overcome her wrongs and has become an honest and caring human being. Rather than representing harm to the Australian community, PZJK’s presence in Australia provides an example of a person who can turn her life around so that she is making a contribution to its community. At this stage, that contribution is to P and his family and friends. They are part of the Australian community.

In the future, she plans to pursue a career in cooking. I accept that she has a talent for it and, on the basis of her past studies and achievements, I accept that she will apply herself to the study necessary to obtain her qualifications. She will do so diligently as her attendance at those earlier courses has shown and as her behaviour during her home has detention demonstrated. Once she has completed her qualifications, I am satisfied that she will show equal application and diligence in putting them to use in her own catering enterprise.

The risk of the Australian community’s suffering any harm as a result of her continued presence is minimal. The adverse consequence to her and to those who are now her family are considerable. The benefits of her staying in Australia are also marked for her partner and his family. The benefits of her remaining and the adverse consequences should she be removed far outweigh the minimal risk of harm. Balancing the primary and other considerations, I have decided that it favours a decision that PZJK’s visa not be cancelled. Therefore, I have decided to set aside the Minister’s decision and to substitute a decision that it not be cancelled.

CONFIDENTIALITY ORDER

During the course of the hearing, I raised with the parties whether this was a case in which I should make an order restricting access to the names and details of the case under s 35 of the Administrative Appeals Tribunal Act 1975 (AAT Act). Section 35(2) provides that the Tribunal may make an order prohibiting or restricting the publication of the names and addresses of witnesses and of evidence given before it and of matters contained in documents lodged with it or received in evidence.[70] It may make such an order if it “… is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter …”.[71] In considering whether it should make such an order, the Tribunal, in so far as is relevant in this case:
“… shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public …, but shall pay due regard to any reasons given to the Tribunal why …disclosure of the evidence or the matter contained in the document should be prohibited or restricted.”[72]
[70] AAT Act, ss 35(2)(aa) and (b)
[71] AAT Act, s 35(1)
[72] AAT Act, s 35(3)(b)

What s 35(3) does not do is to explain why it is desirable that the evidence given before the Tribunal and documents lodged in it should be available to the public. The explanation is not found elsewhere in s 35 or in the AAT Act. It is found in the notions of procedural fairness that have been developed over many years and over many cases, both administrative and civil. Those notions mean that parties should be able to expect a consistent approach and so a fair process. That means a particular case should withstand scrutiny when its procedures are examined in isolation and when it is scrutinised against other cases. Principles provide for a consistent pattern rather than a single outcome. If principles have been applied consistently, the reason for the variation can be seen and the place of the particular case can be seen in the overall pattern of cases. The patterns in the application of principles can only be seen if the evidentiary material is known. This is no less true in a merits review tribunal such as the Tribunal than the courts. As Lord Scarman explained in Inland Revenue Commissioners v National Federation of Self Employed and Small Businesses Ltd,[73] an administrative decision-maker’s duty in making a decision about a taxpayer’s liability to pay tax is a duty to act fairly with regard to outcome. He was:
“… persuaded that the modern case law recognises a legal duty owed by the revenue to the general body of the taxpayers to treat taxpayers fairly; to use their discretionary powers so that, subject to the requirements of good management, discrimination between one group of taxpayers and another does not arise; to ensure that there are no favourites and no sacrificial victims.”[74]
[73] [1982] AC 617
[74] [1982] AC 617 at 651

Scrutiny to ensure that the Tribunal is acting fairly comes from judicial scrutiny either on an appeal under s 44 of the AAT Act or on judicial review under the Administrative Decisions (Judicial Review) Act 1977 or s 39B of the Judiciary Act 1903. Not every case will be scrutinised in that way even if a party thinks that the Tribunal has been in error. Considerations of costs will often deter even those who think that there has been an error in circumstances in which they would have reasonable prospects of succeeding. As valuable as those avenues are, they are not sufficient to ensure scrutiny of the Tribunal’s decision-making and decisions. Public scrutiny, or the constant possibility of it, on the other hand is always available and not subject to the financial resources of a particular party. Its place in providing general scrutiny of the Tribunal’s proceedings and decisions was explained by Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs[75] when he said that public hearings are:
“… calculated to ensure that public confidence in proceedings to administer justice is both warranted and maintained. It is a principle of particular importance to a Tribunal which is engaged in reviewing the exercise of administrative power, for administration has hitherto been a cloistered process (McPherson v McPherson [1936] AC 177 at 200) and its exposure to public scrutiny is calculated to enhance greater public confidence in it.”[76]
[75] (1979) 26 ALR 247; 2 ALD 33
[76] (1979) 26 ALR 247; 2 ALD 33 at 270; 54

In allowing public scrutiny of the process, a proceeding heard in public:
“… removes the possibility of arbitrariness in the administration of justice, so that in effect the public would have the opportunity of ‘judging the judges’: by sitting in public, the judges are themselves accountable and on trial. This was powerfully expressed in the great aphorism that, ‘It is not merely of some importance but of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done’.”[77]
[77] Hamlyn Lectures (38^th series) The Fabric of English Justice at 22 quoted by Lord Woolf MR in Hodgson v Imperial Tobacco Ltd [1998] 2 All ER 673 at 685

There are, therefore, compelling reasons underpinning Parliament’s requirement that the Tribunal take the principle as the basis of its consideration. At the same time, Parliament has recognised that there may be compelling reasons for restricting the extent to which the public may scrutinise the Tribunal’s proceedings. Reasons for restriction have had various bases. One is that disclosure would lead to the Tribunal’s no longer being given certain types of information that an administrative body requires for its on-going decision-making and that information was necessary to secure effective administration. That was a relevant factor in Re Everfresh Seafoods Pty Ltd and Australian Fisheries Management Authority[78] and in Re Nolan and Minister for Immigration and Ethnic Affairs.[79] Re Nolan also took into account that disclosure would be contrary to the public interest in the effective administration of the prison system.[80] The case of Re Pochi also provides an example. It was a case in which Brennan J decided:
“… the public interest in protecting the sources of information used to combat crime was paramount, and it was necessary to ensure confidentiality of the evidence which referred to information of that kind given to Detective Jenkins. In a court of law, the evidence would not have been given at all … Accordingly, the applicant and the public (but not the applicant’s counsel and solicitors) were excluded while Detective Jenkins gave some of his evidence. …”[81]
[78] (1999) 58 ALD 581 at 590
[79] (1986) 9 ALD 407
[80] (1986) 9 ALD 407 at 414
[81] (1979) 26 ALR 247; 2 ALD 33 at 274; 57

Powers not so dissimilar to those in s 35 have also been used to protect the identity of a party from public revelation. Section 50 of the Federal Court of Australia Act 1976 (FCA Act) gives the Federal Court power to make such suppression order “… as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.” The order has to be “necessary” to achieve the stated purpose and not merely “desirable.” In Minister for Immigration and Multicultural and Indigenous Affairs v X,[82] the Full Court of the Federal Court suppressed publication of X’s name in circumstances in which he had been refused a visa on the basis that he had not met the criterion that he not be a person who had a disease or condition likely to require healthcare or community services. X, who was HIV positive, had a surname that was unusual in Australia and would be readily identifiable at least in the expatriate community of his fellow nationals. Stigma would attach to his wife and children. Heerey and Weinberg JJ said:
“[21] Distress and embarrassment by reason of publication of the identity of a person involved in litigation does not in itself amount to prejudice to the administration of justice. The importance of justice being done in public has been affirmed time and again … Very often publicity is hurtful and embarrassing to someone but that is inherent in the nature of publication of court proceedings; often more hurtful and embarrassing the proceeding the more newsworthy the report of it.
[22] But there is a feature of the present case which takes it out of the ordinary run. There is a real risk that publication might dissuade other persons who might seek to challenge the legality of administrative decisions linked with a disease or condition that, no doubt wrongly but realistically as a matter of fact, carries a public stigma. An analogy might be found in the prohibition of the names of blackmail victims. If the names were published in court proceedings there would be a strong disincentive for those victims to complain to the police.”[83]
[82] (2005) 147 FCR 243
[83] (2005) 147 FCR 243 at 246

Public hearings of migration applications are no less important than any other. The public is entitled to know the basis on which decision are made and to make its own assessment of consistency of administrative decision-making. It is true that the parties may suffer embarrassment from time to time as a result but that does not justify an order restricting access to evidentiary material under s 35. This is not a case in which I consider any embarrassment to PZJK to have any relevance. What is relevant and what has persuaded me to make a confidentiality order restricting access to the names and other identifying material relating to PZJK, her family and those with whom she has associated to the parties, members and officers of the Tribunal and staff of Auscript is the damage that will be caused to her family and associates. They are not the persons who have made the application but their relationships are likely to suffer. I refer, for example, to P’s relationship with his family who know nothing of PZJK’s background and who are not likely to respond to it well were they to know. That will harm PZJK but, more importantly in this context, it is likely to cause P great distress and to place him at odds with his family. That is collateral damage that is not intended by the system of merits review.

It seems to me that I can limit the unintended damage to PZJK’s partner and family and those with whom she has associated and yet ensure that the public can see the merits review process and its outcome by restricting disclosure of the relevant names and identifying material. Although it is always a challenge to write reasons in that way, that seems to me to be a better course than writing my reasons with identifying material and simply making an order restricting access to them.

I certify that the one hundred and sixty paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed: ....................................................................
Leah Berardi Associate

Date of Hearing 30 May 2012

Date of Decision  15 June 2012
Counsel for the Applicant  Mr Guy Gilbert
Solicitor for the Applicant  Ms Helen Glass
Glass Lawyers

Solicitor for the Respondent Mr Tigiilagi Eteuati
Clayton Utz