QTNZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 804

QTNZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 804 (16 April 2020)
Division:GENERAL DIVISION
File Number:2020/0482
Re:QTNZ
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs And
RESPONDENT

DECISION
Tribunal:Senior Member Tavoularis
Date:16 April 2020
Place:Sydney

The decision under review is affirmed.
.........................[sgd]...............................................
Senior Member Tavoularis
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class C BC Subclass 100 – Partner Visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
Criminal Code Act 1995 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Liang and Minister for Immigration and Citizenship [2013] AATA 392
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar [2019] FCAFC 188
Nguyen and Minister for Immigration and Border Protection [2018] AATA 4664
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection (Migration) [2017] AATA 367
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Wilson v The Queen; DPP v Sassine; DPP v Kalakias; Wilson v the Queen [2012] VSCA 141
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Tavoularis
16 April 2020
Contents
Introduction and background
Issues
Does the Applicant pass the character test?
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
Primary Consideration A – Protection of the Australian Community
The Nature and Seriousness of the Applicant’s Conduct to Date
Cross-Examination of the Applicant
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Evidence of Ms Yee
The Evidence of the Applicant’s Step-Mother (“Ms SJPL”)
Summary of findings as to risk of re-offending
Conclusion: Primary Consideration A
Primary Consideration B: The Best Interests of Minor Children in Australia
Primary Consideration C: The Expectations of the Australian Community
The relevant paragraphs in the Direction
Factual circumstances relevant to this Primary Consideration C
The Evolution of the Australian Community’s “Expectations”
Analysis – Allocation of Weight to this Primary Consideration C
Conclusion: Primary Consideration C
Other Considerations
(a) International non-refoulement obligations
Assessment of the Applicant’s claims
The Applicant’s position regarding international non-refoulement obligations
(b) Strength, nature and duration of ties
(c) Impact on Australian business interests
(d) Impact on victims
(e) Extent of impediments if removed
Conclusion
Decision
INTRODUCTION AND BACKGROUND

QTNZ (“the Applicant”) is a 24 year old citizen of China.[1] Movement records indicate that the Applicant first arrived in Australia on 6 March 2012. The Applicant has left Australia on 19 June 2014 (returning on 10 July 2014), 25 December 2014 (returning on 16 January 2015), and 24 August 2015 (returning on 25 August 2015).[2] He has resided in Australia on a continuous basis since his most recent return on 25 August 2015. The most recent visa granted to the Applicant (on 17 September 2013) was a Class C BC (‘Subclass 100 – Partner’) visa.[3]
[1]     Exhibit G1, s 501 G-Documents, G2, page 187.
[2]     Ibid.
[3]     Ibid.
In terms of an offending history, the Applicant’s actual period of offending is relatively short. As mentioned, he first arrived here in March 2012 as a 16 year old. On 13 February 2017, he was dealt with – for the only time by a judicial sentencing officer in this country – at the Downing Centre District Court on a very serious charge of “Cth – importing/exporting commercial quantities of border controlled precursors”.[4] He was convicted and sentenced to a head custodial term of imprisonment of five years, which commenced on 31 January 2017 and is due to expire on 30 January 2022. The court fixed a non-parole period of two years and six months, which expired on 30 July 2019. Thereafter, the Applicant was taken into immigration detention.
[4] Ibid, page 25.
While serving a term of imprisonment (i.e., criminal custody), a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 15 August 2017 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[5]
[5] Ibid, pages 58-63.
On 7 September 2017, the Minister’s Department received correspondence from the Applicant requesting revocation of the decision to mandatorily cancel his visa.[6] The delegate of the Minister decided on 23 January 2020, pursuant to s 501CA(4) of the Act not to revoke the cancellation of the subject visa.[7]
[6] Ibid, pages 38-42.
[7] Ibid, pages 12-24.
The Applicant lodged an application with this Tribunal on 28 January 2020 seeking a review of the abovementioned decision dated 23 January 2020 not to revoke the cancellation of his visa.[8] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[9]
[8] Ibid, G1, pages 3–8.
[9] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act.
The hearing of the instant application proceeded on 6 April 2020. The hearing received oral evidence from the: (1) Applicant; (2) from his step-mother; and (3) a psychologist, namely Ms Natalia Yee.
The Tribunal also received written evidence. This written evidence was particularised into an exhibit list, a true and correct copy of which is attached to these Reasons and marked “Annexure A”.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[10]
[10] [2018] FCAFC 151.
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[11]
[11] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[12] I will address each of these grounds in turn.
[12] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
Having regard to the abovementioned summary of the Applicant’s offending, with particular reference to the head custodial term of five years imposed on 13 February 2017, it is beyond argument that the Applicant does not pass the character test by virtue of his “substantial criminal record” as that term is defined in

s 501(7) of the Act. He clearly does not pass the character test pursuant to 501(6)(a) of the Act.
Prior to and at the hearing the Applicant did not cavil with the contention that he did not pass the character test due to the application of s 501(7)(c) of the Act and its definition of a “substantial criminal record”. In his Statement of Facts, Issues and Contentions (“SFIC”), the Applicant makes this concession: “Applicant concedes he does not pass the character test based on his criminal record.”[13] During his evidence, the following exchange passed between the Applicant and his legal representative:
[13] Exhibit A1, Applicant’s SFIC, page 3, paragraph [14].
“MR MURDOCH:[14] All right. And you understand currently you do not pass the character test by virtue of the fact of your sentence of five years?”
[14] Mr H. Murdoch, Solicitor/Director, Parish Patience, representing the Applicant.
APPLICANT: Yes.”[15]
[15] Transcript, 6 April 2020, page 9, lines 15-16.
I am consequently satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[16] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[17]
[16] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[17] The Direction, sub-paragraph 7(1)(b).
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a

non-exhaustive list in paragraph 14 of the Direction. These considerations are:
a)    International non-refoulement obligations;
b)    Strength, nature and duration of ties;
c)    Impact on Australian business interests;
d)    Impact on victims;
e)    Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[18]
[18] [2018] FCA 594 at [23].
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending and other serious conduct can be gleaned from the following documents[19] now before the Tribunal:
[19] The following list includes documents directly relating to the Applicant’s offending as well as ancillary documents dealing with that offending.
(a)his criminal history which appears in a document entitled “National Police Certificate” from the Australian Federal Police, Criminal Records;[20]
[20] Exhibit G1, s 501 G-Documents, G2, page 25.
(b)certain summonsed documents produced by the Australian Federal Police[21] ; and
[21] Exhibit R2, Respondent’s Tender Bundle, s AD4, pages 161-201.
(c)various other materials relevant to the Applicant’s offending history appearing in the G Documents, including, but not limited to:
o   Decision Record (of the Respondent) dated 23 January 2020;[22]
[22] Exhibit G1, s 501 G-Documents, G2, page 12.
o   Statement of Reasons (of the Respondent) dated 23 January 2020;[23]
[23] Ibid, pages 13-22.
o   Sentencing Remarks of District Court of NSW dated 13 February 2017;[24]
[24] Ibid, pages 26-35.
o   Conviction, Sentences and Appeals report from New South Wales Department of Corrective Services, dated 15 February 2017;[25]
[25] Ibid, pages 36-37.
o   Case note report from New South Wales Department of Corrective Services dated 9 April 2018;[26]
[26] Ibid, pages 169-183.
o   Conviction, Sentences and Appeals report from New South Wales Department of Corrective Services, dated 14 August 2017;[27] and
[27] Ibid, G4, pages 278-279.
o   AFP Information for Courts Report issued 7 February 2018, attaching NSW Police Criminal History – Bail Report created 7 February 2018.[28]
[28] Ibid, G10, pages 315-319.
The brevity of the Applicant’s offending contrasts sharply with its inherent level of significant seriousness. For purely practical purposes, the Applicant’s conduct was designed to secure safe receipt and dispatch of 11.88 kilograms of ephedrine, which is a known precursor for the production and manufacture of methylamphetamine hydrochloride, more commonly known as “ice”.

The offending was characterised by the learned sentencing judge,[29] who noted the following when sentencing the Applicant:
[29] Her Honour Justice Sweeney.
“HER HONOUR: [The Applicant] pleaded guilty during his trial to an offence that between 16 and 24 August 2015 at Sydney, he imported a substance, intending to use or believing that another person intended to use any of the substance to manufacture a controlled drug, the substance being a border controlled precursor, namely ephedrine, and the quantity being a commercial quantity. The maximum penalty is 25 years imprisonment.
…
The sentence proceeded on the basis of facts agreed between the parties. They note that, in summary, in the period between 16 and 24 August 2015 [the Applicant] imported a consignment from China which contained, within rolls of flyscreen mesh, a quantity of ephedrine calculated to be 11.88 kilograms, with an estimated value of approximately $80,000 per kilogram.
…
On analysis the powder inside the rolls of mesh was found to be between 80.4% and 81.9% pure ephedrine. So the calculation showed that the total quantity of pure ephedrine was 11.887 kilograms. The theoretical maximum methylamphetamine base which can be produced from that amount of ephedrine is 10.698 kilograms, or, 13.372 kilograms of methylamphetamine hydrochloride, which is the form in which it is known to street users as “ice”. Two of the sets of scales and the measuring cup returned traces of methamphetamine and one of the scales with methamphetamine also had [the Applicant’s] fingerprint on it.”[30]
[30] Exhibit G1, s 501 G-Documents, G2, page 26-35.
Various aspects of the complete milieu and circumstances of the offending, more particularly, the systemic enterprise behind it, were put to the Applicant during cross-examination. In large measure, the generally tepid and unconvincing character of the Applicant’s responses to those questions facilitate an assessment of the nature and seriousness of the Applicant’s conduct to date. For the specific purposes of this decision, it is necessary to review the responses the Applicant provided and to then sift those responses through the sieve of the relevant factors appearing in paragraph 13.1.1(1) of the Direction. use
The Nature and Seriousness of the Applicant’s Conduct to Date
The Applicant’s Evidence in Chief
Evidence in Chief was led from the Applicant. This is what transpired:

“MR MURDOCH: Thank you. QTNZ, I’m going to ask a series of questions now related to the offences that you were charged with and eventually were sentenced for. Do you understand?
APPLICANT: Yes. Yes.[31]
[31] Transcript, 6 April 2020, page 3, lines 45-47.
MR MURDOCH: The first question I will ask is at what age did you start taking illicit drugs?
APPLICANT: About 18.
MR MURDOCH: Why did you take the drugs?
APPLICANT: Because of (indistinct).
MR MURDOCH: Sorry, could you repeat that, I didn’t catch that?
APPLICANT: Because of my friend.
MR MURDOCH: Why would you take it because of your friend?
APPLICANT: Because my friend give to me in the first place. My friend tried to give me the drugs in the first place by using my curiosity.
MR MURDOCH: All right. So what sort of drugs did he give you?
APPLICANT: Ice.
MR MURDOCH: Any others?
APPLICANT: No.
MR MURDOCH: Did he charge you for the ice?
APPLICANT: No.
MR MURDOCH: So why would he give you the ice?
APPLICANT: In the beginning he gave me the ice just says let’s try with us.
MR MURDOCH: Were you just trial and error, just experimenting, were you?
APPLICANT: Yes.
MR MURDOCH: But why would you experiment with drugs?
APPLICANT: Because at the time he asked me to do so and then I was curious.
MR MURDOCH: And he was your friend?
APPLICANT: Yes.
MR MURDOCH: And he gave them to you free initially?
APPLICANT: Yes.
MR MURDOCH: Did you become addicted?
APPLICANT: Yes.
MR MURDOCH: How often?
APPLICANT: Pardon?
MR MURDOCH: How often were you taking the drugs per week, ice or anything else?
APPLICANT: Two, three time I think so.
MR MURDOCH: Okay, so you became addicted, right?
APPLICANT: Yes.
MR MURDOCH: All right. And then is that when he asked you to do some things for him?
APPLICANT: Yes.
MR MURDOCH: Were you involved in any other – or with any gang members?
APPLICANT: No.
…
MR MURDOCH: You weren’t involved in any gang? You weren’t a gang member?
APPLICANT: No. No.[32]
[32] Ibid, page 4, lines 1-43 and line 47.
…
MR MURDOCH: So why did you help your friend with the importation of this drug? Why did you help your friend in the importation?
APPLICANT: Because at the time he threaten me and using me.
MR MURDOCH: When he threatened you what did he – what was he saying to you?
APPLICANT: At the time he using switch knife and then - - -
…
MR MURDOCH: Sorry, what sort of thing was he using?
APPLICANT: He was using a switch knife.
MR MURDOCH: A switch knife, okay?
APPLICANT: Yes.
MR MURDOCH: And he was threatening to harm you?
APPLICANT: And he threaten me, yes. Threatening my life and then my family’s.
MR MURDOCH: And your young wife?
APPLICANT: Yes.
MR MURDOCH: Right. Okay. What did you know about the importation of the drugs from Shanghai?
APPLICANT: Pardon?
MR MURDOCH: What did you know about the importation of the drugs from Shanghai?
APPLICANT: All he asked me to do is to (indistinct) a package.
MR MURDOCH: And what was your role?
APPLICANT: Pardon?
MR MURDOCH: What was your role? What was your role in the scheme?
APPLICANT: Sorry. Just receiving a package.
MR MURDOCH: And that’s all you were asked to do?
APPLICANT: Yes.
MR MURDOCH: And how was he going to pay you for participating?
APPLICANT: With drugs.[33]
[33] Ibid, page 5, lines 8-39.
…
MR MURDOCH: All right, okay. So you were – you’re telling the tribunal you were asked to receive these goods from Shanghai?
APPLICANT: Yes.
MR MURDOCH: Did you know what was in the goods?
APPLICANT: I wasn’t.
MR MURDOCH: So you just accepted them blindly, so you could get paid in drugs?
APPLICANT: Yes.
MR MURDOCH: All right. So you were a drug addict and you couldn’t help yourself?
APPLICANT: Yes, at the time.
MR MURDOCH: Okay. And prior to this you’ve never had any problems with police or any authorities?
APPLICANT: No, I don’t have any.
MR MURDOCH: And your involvement has always just been on the periphery of this. You were not a leader, you were not a principal of this particular crime. You were just a receiving agent?
APPLICANT: Yes.[34]
[34] Ibid, page 6, lines 29-44.
…
MR MURDOCH: You didn’t really understand what you were receiving in the DHL delivery?
APPLICANT: Yes.
MR MURDOCH: All right, okay. Now, I understand – now, you became very quickly addicted to ice, is that correct?
APPLICANT: Yes.
MR MURDOCH: And it affected your thinking?
APPLICANT: Yes.
MR MURDOCH: You were aware that it was affecting your thinking?
APPLICANT: Yes.
MR MURDOCH: And your wife was aware that it was affecting your thinking as well, wasn’t she?
APPLICANT: Yes.
MR MURDOCH: And your father even noticed, is that correct? He suggested you go to the hospital?
APPLICANT: Yes.
MR MURDOCH: Okay. After your arrest by police and after counsel advice [sic] you fully cooperated with police and the DPP, didn’t you?
APPLICANT: Yes, fully cooperated.
MR MURDOCH: And you gave them all the information, particularly the person who had been threatening you?
APPLICANT: Yes, I gave all the evidence as I could.
MR MURDOCH: Do you know what happened to that person?
APPLICANT: I have no idea.
MR MURDOCH: Sorry?
APPLICANT: I have no idea.
MR MURDOCH: Is he still in Australia?
APPLICANT: I’m not sure.
MR MURDOCH: Okay. But you made full cooperation with the police despite any threats?
APPLICANT: Yes.[35]
[35] Ibid, page 7, lines 1-31.
…
MR MURDOCH: Since your arrest and I’m including the bail time, which was about 14 months, have you ever taken any drugs since?
APPLICANT: Pardon?
MR MURDOCH: Since you were arrested by police - - -?
APPLICANT: Yes
.
MR MURDOCH: - - - and when you were on bail have you taken any drugs since?
APPLICANT: No. After I been released I never taken any drugs.
MR MURDOCH: How quickly did you get off taking ice? How quickly did you finish it?
APPLICANT: About a month and then just since I been arrested and then I stopped it.
MR MURDOCH: You did it yourself?
APPLICANT: Yes.
MR MURDOCH: So you started taking ice as an 18 year-old and within – after being caught you were able to stop yourself, is that correct?
APPLICANT: Yes.
MR MURDOCH: Just to get back to actual criminal enterprise of importation you had no knowledge of what really was going on or who was involved, is that correct? And is that what you told police?
APPLICANT: Yes.
MR MURDOCH: And, in fact, in court you made full and frank information available to the court, correct?
APPLICANT: Yes.
MR MURDOCH: You cooperated with police, you cooperated with the court?
APPLICANT: Yes.
MR MURDOCH: Right?
APPLICANT: Yes.
MR MURDOCH: And at that stage after you were getting over your drug addiction and the cognitive impairment that it causes were you starting to think a lot more clearly?
APPLICANT: Yes.
MR MURDOCH: And mind you when you started you were 18 years of age or nearly 19 but with a bit of hindsight and a bit of distance then you realised perhaps that wasn’t a very smart thing to do to get involved in drugs?
APPLICANT: Yes.
MR MURDOCH: Or you were forcefully befriended by this older man, correct?
APPLICANT: Yes.[36]
[36] Ibid, page 8, lines 6-41.
…
MR MURDOCH: All right. When you started to see your older friend who was giving you advice and introduced you to drugs you also went to see him to help you discuss your marital problems, your marriage problems, is that correct?
APPLICANT: Yes.
MR MURDOCH: And he gave you ice as a way of mitigating the worst aspects or easing the pain, is that right?
APPLICANT: Yes.
MR MURDOCH: Right. You’ve never been involved in any importation of any other drug, have you?
APPLICANT: No.
MR MURDOCH: This is the first time and only time?
APPLICANT: Yes.
MR MURDOCH: All right. And you understand currently you do not pass the character test by virtue of the fact of your sentence of five years?
APPLICANT: Yes.
MR MURDOCH: You are no longer addicted to any drugs, correct?
APPLICANT: Pardon?
MR MURDOCH: You are no longer addicted to any drugs? You’re not taking any drugs?
APPLICANT: No.
MR MURDOCH: You’re not addicted to anything?
APPLICANT: No.
MR MURDOCH: And you’ve adopted a healthy lifestyle and so on?
APPLICANT: Yes.
MR MURDOCH: It’s been five years, in fact, since you’ve been – you’ve probably taken the drug, is that right?
APPLICANT: Yes.
MR MURDOCH: Now, you’re coming up to 25 years of age, aren’t you, in November?
APPLICANT: Yes.
MR MURDOCH: You understand that what you did as a 19 year-old you probably wouldn’t do as a 24, 25 year-old, is that right?
APPLICANT: Yes.
MR MURDOCH: And the reason you did what you did is because you were addicted to ice, is that right?
APPLICANT: Yes.
MR MURDOCH: And you weren’t thinking very, very clearly?
APPLICANT: Yes.
MR MURDOCH: Or you couldn’t think clearly. As I mentioned before, you’ve never had any issues with the authorities, the police or any authorities either in Australia or in China, correct?
APPLICANT: Yes.
MR MURDOCH: And you’ve paid a very heavy price for what has happened to you since you’ve been arrested, correct?
APPLICANT: Yes.
MR MURDOCH: And that includes the breakdown of your marriage, is that right?
APPLICANT: Yes.[37]
[37] Ibid, page 9, lines 1-47.
…
MR MURDOCH: You’ve not been involved in any crimes of violence?
APPLICANT: No.
MR MURDOCH: You haven’t attacked anybody and you haven’t been involved in any criminal, adverse criminal behaviour?
APPLICANT: No.
MR MURDOCH: So your involvement in this criminal enterprise was a one off situation?
APPLICANT: Yes.
MR MURDOCH: In your opinion. You’ve not been involved in any sex crimes or anything like that either, have you?
APPLICANT: No.
MR MURDOCH: Or against any vulnerable minorities?
APPLICANT: No.
MR MURDOCH: Otherwise apart from this you’ve always tried to act as a good citizen?
APPLICANT: Yes.
MR MURDOCH: As indicated in – as the guidelines in the People’s Republic of China as well as in Australia?
APPLICANT: Yes.
MR MURDOCH: And at all times you have been compliant with prison authorities?
APPLICANT: I was compliant by?
MR MURDOCH: Prison authorities, the orders given by the prison authorities at Oberon and the course you did there?
APPLICANT: Yes.[38]
[38] Ibid, page 10, lines 28-47, page 11, lines 1-2.
…
MR MURDOCH: Okay, fair enough. All right. So you’ve cooperated to the best of your ability, you’ve made full and frank disclosure to police?
APPLICANT: Yes.
MR MURDOCH: Or to the DPP at the time. And looking back you realise that you did engage when you started taking the drug in risky behaviour?
APPLICANT: Yes.
MR MURDOCH: Highly risky behaviour?
APPLICANT: Yes.
MR MURDOCH: And you were aware that ice is a real problem in the community?
APPLICANT: Yes.
MR MURDOCH: But when you received the goods did you know that that was a precursor for ice?
APPLICANT: No, I wasn’t.
MR MURDOCH: So you had no idea, you thought you were doing someone a favour of sorts?
APPLICANT:I know it wasn’t good stuff but I didn’t know what it was drugs.
MR MURDOCH: Sorry, you did or you didn’t?
APPLICANT: I don’t know it was like methamphetamine. Is that methamphetamine?
MR MURDOCH: Yes, methamphetamine. It’s a commercial quantity of precursor… Would you agree that your thinking apart from being muddled by the drugs was extremely naïve?
APPLICANT: Yes.
MR MURDOCH: You were very silly and naïve?
APPLICANT: Yes.
MR MURDOCH: On how you did things?
APPLICANT: Yes.
MR MURDOCH: If you were having problems why didn’t you go and discuss them with your father or your stepmother?
APPLICANT: Because I was on the drugs at the time, I was ashamed to discuss with my parents.
MR MURDOCH: And at that stage you couldn’t get yourself off the – out of the whirlpool. You couldn’t remove yourself by yourself?
APPLICANT: Yes.
MR MURDOCH: And you didn’t know what to do?
APPLICANT: Yes.
MR MURDOCH: And that came down to naivety and inexperience, is that right?
APPLICANT: Yes.
MR MURDOCH: Right, I’m going to finish now. Is there any other statement you’d like to make?
APPLICANT: I’ve been regretted for what I’ve done. That’s it.”[39]
[39] Ibid, page 12, lines 42-47 and page 13, lines 1-34.
Cross-Examination of the Applicant
The Applicant agreed that he had lived in Shanghai, China, until his arrival in Australia in 2012. He acknowledged that his offending was dealt with in February 2017 by the New South Wales District Court, which imposed a custodial term of five years with a non-parole period of two years and six months. Upon his release on parole at the end of July 2019, the Applicant confirmed he was immediately taken into immigration detention.[40]
[40] Ibid, page 15, lines 4-28.
The Applicant was questioned about the factual circumstances of his offending and was specifically taken to the sentencing remarks of Her Honour, Judge Sweeney. The Applicant readily acknowledged the nature and basis of his offending conduct as recounted by Judge Sweeney. In particular, he confirmed his conduct relating to (1) intentionally vacating the premises to which the subject parcel containing the ephedrine was to be delivered at the intended time of delivery; (2) ensuring his ex-wife was at the delivery point contemporaneous with receipt of the package; and (3) further ensuring that a 15 year old boy would be available to physically receive delivery of the package.[41]
Rather unconvincingly, the Applicant sought to dispel the adverse suggestion that he deliberately placed a 15 year old boy in harm’s way:
“MS MAK:[42] And you arranged with that 15 year old boy for him to receive delivery of the package at your address; is that correct?
[42] Ms D Mak, Solicitor, Clayton Utz, representing the Respondent.
APPLICANT: Yes.
MS MAK: Did you know he was 15 years old at the time?
APPLICANT: No.
MS MAK: How old did you think he was, [Applicant]?
APPLICANT: Same age as me. Well, we never discuss the age back then.
MS MAK: Okay, but in any event you paid someone else to be at your home to receive this package that you knew was coming from China?
APPLICANT: Yes.”[43]
[43] Transcript, 6 April 2020, page 16, lines 40-46, and page 17, lines 1-2.
The Applicant readily confirmed in cross-examination that he had actually arranged not to be at home when the subject package arrived confirming that he intentionally left Australia for New Zealand for this purpose. Immediately after providing this confirmation, the Applicant said the following:
“MS MAK: And you had actually left Australia and you were trying to get to New Zealand at that point, weren’t you?
APPLICANT: Yes.
MS MAK: Is it right to say that the reason you’d left Australia for New Zealand was so that you wouldn’t be at home when the package was delivered because you knew that its contents were illegal?
APPLICANT: More it’s like because Mr AB back then was threatening me and then I was on drugs. I couldn’t thinking straight. All I want to do is run away.
MS MAK: Yes [Applicant], but I suppose that might be an explanation for why you left but ultimately you knew that the contents of the package were illegal and you didn’t want to be the one that received them, did you?
APPLICANT: Yes.”[44]
[44] Ibid, page 17, lines 10-21.
While accepting that Mr AB apparently threatened him with violence if he didn’t help to receive the subject package by signing for it when it was delivered, the Applicant conceded in cross-examination that (1) Mr AB did not force him to arrange for another person to receive the package; (2) Mr AB did not force him to arrange for only his wife to be at home instead of himself when the package was delivered; (3) he, the Applicant, alone made the arrangements relating to his wife and the 15 year old boy being present at the time of delivery; and (4) Mr AB did not force him to take flight to New Zealand.
The Applicant purported to suggest that while he was not necessarily aware of precisely what the subject package contained, he nevertheless thought it might be something to do with illegal drugs:
“MS MAK: Your evidence earlier today was that you weren’t necessarily aware what the package contained but you thought it might have – it might be something to do with illegal drugs; is that correct?
APPLICANT: Yes.
…
MS MAK: So it was your evidence earlier today that you didn’t know what was in the package but that you thought it might have something to do with illegal drugs?
APPLICANT: Yes. I wasn’t know what was exactly inside.”[45]
[45] Ibid, page 18, lines 7-9 and 20-22.
The Applicant was then questioned about drug-associated paraphernalia that was found by Australian Border Force while executing a search warrant at his home, contemporaneous with delivery of the subject package:
“MS MAK: During the executing of this search warrant the Australian Border Force found three scales and a measuring cup in a room that was being used by you and your wife; do you agree?
APPLICANT: Yes, I agree.
MS MAK: And in the sentencing remarks the judge says that they found traces of methamphetamine on one of the cups; do you agree?
APPLICANT: Yes, I agree.
MS MAK: And on one of the scales they also found one of your fingerprints; do you agree?
APPLICANT: Yes, I agree.”[46]
[46] Ibid, lines 37-45.
When pressed about how and why it was that his fingerprints came to be on the subject scales, the Applicant’s reply was less than convincing. According to the Applicant, he had nothing to do with the scales on which his fingerprints were found. According to him, the scales belonged to Mr AB and the highest involvement the Applicant apparently had with the scales was to put them away in a drawer after Mr AB had finished using them:
“MS MAK: Okay, so you agree that the scales belonged to you?
APPLICANT: I said I was moving them but I didn’t say it was belongs to me.
MS MAK: Well, I…?
APPLICANT: …Because back then – because Mr AB was entering my room all the time and then beside he was threaten me he also doing something, but each time when he’d use he does it in my room.
MS MAK: Okay, so is your (indistinct) that the scales in your room didn’t belong to you?
APPLICANT: Yes.
MS MAK: And instead they belonged to Mr AB?
APPLICANT: Yes, I’ve said this in the court before.
MS MAK: And that your fingerprints were on the scales because you might have been moving them for Mr AB?
APPLICANT: Not for Mr AB. Sometimes when he finish whatever he leave them on the table. I just put them into the drawer.
MS MAK: Okay, so it is your evidence that Mr AB was doing things with drugs in a room in your house, using the scales?
APPLICANT: I’m not sure what he was doing, but sometime he just left the scale on the table.”[47]
[47] Ibid, page 19, lines 11-30.

The Applicant’s cross-examination then moved into the sphere of the level of his involvement in the enterprise involving importation of the unlawful drug. It became apparent that, contrary to his earlier evidence, (1) the Applicant was not paid solely by way of drugs for receiving the subject parcel, and (2) he may very well have been associated with the receipt of additional parcels on other occasions:
“MS MAK: … [Applicant], I put it to you that your involvement in the importation of the drugs was more than peripheral.
…
APPLICANT: About that, back then Mr AB was providing drugs to me and then he was asking me to help him to receive the package which if I don’t do it he was threatening my life and then my family’s. Because of that, and also I was on drugs – I couldn’t thinking straight – that I do help him to receive the package, but other than this I wasn’t involved in anything.”[48]
[48] Ibid, page 20, lines 26-35.
The Applicant was then taken to a portion of the sentencing remarks of Judge Sweeney, where Her Honour noted that the Applicant received not only drugs in return for his assisting Mr AB, but financial reward as well. Her Honour made reference to some WeChat communications between the Applicant and Mr AB:
“There were some WeChat communications between himself and the person he says was Mr AB, and who I accept was, consistent with his receiving a financial reward from Mr AB. In the WeChat communications the person Mr AB said, “You took your pay, 6 K,” which I infer means $6,000, and [the Applicant] said at one point, “Why should I do this” – when he was being accused by Mr AB of taking money to which he was not entitled from an account – “when I earn more than this each time when I am with you.”[49]
[49] Exhibit G1, s 501 G-Documents, G2, page 32.
[My underlining]
The reference to “each time” immediately casts doubt on the Applicant’s evidence that his singular involvement in the importation of illegal drugs can be exclusively limited to the subject parcel for which he was charged and convicted. While it took some time to evolve via his cross-examination, the Applicant’s position eventually became clear:
“MS MAK: Okay. I put it to you that your involvement in the importation of drugs with Mr AB was not limited only to you receiving the package on 24 August?
APPLICANT: Yes.
MS MAK: Yes, your involvement wasn’t limited to only receiving the package? Did you do other things for Mr AB?
APPLICANT: No, I was only receiving the package. That’s all I do, and then I’ve been…
…
MS MAK: …Then why did you say to Mr AB in those WeChat messages “I earn more than this each time I am with you”?
APPLICANT: Because at the time I do need money to support my life and then my wife as well, and that’s why I took the money from him, and…
…
MS MAK: [Applicant], so when you say that you needed money to support your wife and to support your life, the money that you’re talking about, is that money that Mr AB was paying you?
APPLICANT: Sometimes.
MS MAK: And he was paying you on more than one occasion, wasn’t he?
APPLICANT: So at that time he also supporting my drug addiction, and because of that some of the time I ask him money, then drugs.
MS MAK: Okay. So your evidence is that Mr AB was giving you money and drugs; is that correct?
APPLICANT: Yes.
MS MAK: And in exchange for this money and these drugs you were not doing anything for him other than taking drugs with him?
APPLICANT: At the beginning, yes.
MS MAK: And then after the beginning then what, [Applicant]?
APPLICANT: Pardon?
MS MAK: After the beginning did you then begin to do other things for Mr AB?
APPLICANT: Yes.
MS MAK: In exchange for drugs and money?
APPLICANT: Yes, he starting ask me to receive package.
MS MAK: Yes, but what I’m putting to you is that receiving the package was not the only thing you did for him. Is that correct?
APPLICANT: All I did was receiving package. I didn’t do anything else.
MS MAK: Why then did you say in that WeChat exchange that is extracted in sentencing remarks, that you “earned more than this each time” when you were with him?
APPLICANT: Because I received packages for him.
MS MAK: On more than one occasion?
APPLICANT: Yes.
MS MAK: So you received packages for Mr AB on more than one occasion; is that correct?
APPLICANT: Yes.
…
MS MAK: And that’s why it says in the sentencing remarks that you said to him that you “earned more than this each time” when you were with him?
APPLICANT: Yes.
MS MAK: How many other times did you receive packages for Mr AB?
APPLICANT: Two or three times.
MS MAK: When did you receive those packages for Mr AB?
APPLICANT: Before that. I couldn’t remember the exactly time.
MS MAK: Okay. Was it weeks before or was it days before? Do you remember?
APPLICANT: Probably a month.
MS MAK: Probably months before. This package as intercepted in August 2015. Did your receive these other packages also in 2015?
APPLICANT: Should be.
MS MAK: Should be?
APPLICANT: Yes.
MS MAK: So would it be fair to say that between January 2015 and August 2015 you received between two and three other packages potentially containing illegal drugs on behalf of Mr AB?
APPLICANT: Yes.”[50]
[50] Transcript, 6 April 2020, page 21, lines 40-46, page 22 lines 5-8 and 14-46, and page 23, lines 1-23.
[My emphasis and underlining]
43.The credibility of the Applicant’s evidence did not take a turn for the better with reference to the manner of payment he received for his participation in the scheme. He originally maintained that due to his apparent deep involvement with drugs, he was apparently content to receive payment in drugs alone. His evidence in cross-examination did not confirm this position:
“MS MAK: Okay, and you received payment for receiving packages, didn’t you?
APPLICANT: Drugs or money.
MS MAK: You received drugs or money for receiving packages on behalf of Mr AB. Do you know who paid you? Was it Mr AB directly or was it other people as well?
APPLICANT: Pardon?
MS MAK: Do you know who paid you the money in relation to receiving these packages? Was it Mr AB or was it other people as well?
APPLICANT: Mr AB.”[51]
[51] Ibid, page 23, lines 46-47, and page 24, lines 1-7.
It was contended on behalf of the Applicant that certain threats of revenge had been made against him by other members of the gang involved in the criminal enterprise. The credibility of this evidence was, to my mind, fatally damaged in cross-examination:
“MS MAK: Well it’s been put on your behalf, [Applicant], that there have been further threats of revenge by the dealer and gang members, many of whom later fled to mainland China and Shanghai. Is that correct?
APPLICANT: Yes.
…
MS MAK: [Applicant], since being arrested in August 2015 has Mr AB contacted you at all?
APPLICANT: No, Mr AB doesn’t contact me at all.
MS MAK: And has anyone else associated with Mr AB contacted you at all?
APPLICANT: No, he didn’t.
MS MAK: So it is right to say that no one has contacted you in relation to this package that you were supposed to receive but didn’t because it was intercepted by the police, is that correct?
APPLICANT: Yes.”
MS MAK: So no one has contacted you and threatened you in relation to the package, is that correct?
APPLICANT: Nobody was threatening me or contact with package but do someone sending me message about I’m telling stuff to the police.
MS MAK: Okay. Do you know who that person was?
APPLICANT: No, I don’t.
MS MAK: When did that happen?
APPLICANT: While I was on bail.
MS MAK: So between 2015 and 2017?
APPLICANT: Yes.
MS MAK: How many times did that person contact you?
APPLICANT: Once, I believe so.
MS MAK: So you’ve had one person contact you since you were arrested?
APPLICANT: Yes.
MS MAK: Talking about you going to the police?
APPLICANT: Yes.
MS MAK: Was that message basically that they were unhappy that you had gone to the police?
APPLICANT: They said if I telling police anything there’ll still be a problem.
MS MAK: Since being convicted for this offence have you heard anything further from anyone?
APPLICANT: No.”[52]
[52] Ibid, page 24, lines 31-33, and page 25, lines 9-39.
[My emphasis and underlining]
The Applicant was also cross-examined about information he provided to the relevant Customs authorities upon his arrival in New Zealand on 24 August 2015. This trip, of course, formed part of the factual circumstances around the Applicant’s offending relating to his receipt of the subject parcel. Specifically, he was referred to an extract from a document obtained by summons from the Australian Federal Police. This document included details of what transpired when the Applicant arrived in New Zealand:
“On Monday 24 August 2015, [the Applicant] had departed Sydney to Melbourne that morning and then took a connecting flight onto New Zealand.
Upon arrival, [the Applicant] was subject to an examination by NZ Customs resulting in positive readings for MDMA and cannabis on his possessions. The Accused then made admissions that he had used MDMA two (2) weeks prior.
As a result, [the Applicant] was deported back to Australia by NZ Customs.
On Tuesday 25 August 2015, [the Applicant] arrived at Sydney International Airport where he agreed to participate in a voluntary Record of Interview.
[The Applicant] was arrested by ABF Investigators and charged with S233BAA (4) of the Customs Act 1901.
…”[53]
[53] Exhibit R2, Respondent’s Tender Bundle, AD 4, Page 166.
46.He responded to cross-examination questions as follows:
“MS MAK: Okay. So, [Applicant], this document states that you admitted that you had used MDMA two weeks prior to 24 August 2015, do you agree?
APPLICANT: What did you say? Or what was the question again, sorry?
MS MAK: So this document that I’ve taken you to, at page 166, it says in it that you made admissions that you had used MDMA two weeks prior to 24 August 2015, do you agree with that?
APPLICANT: I said that to Customs at New Zealand.
MS MAK: And were you lying to them, or were you telling the truth that you had taken MDMA two weeks prior?
APPLICANT: I was lying to them.
MS MAK: Okay. Well, I put it to you that you weren’t lying to them because the tests that they conducted returned positive readings for MDMA and cannabis on your possessions?
APPLICANT: Yes.
MS MAK: So how did MDMA and cannabis end up on your possessions if you weren’t using MDMA?
APPLICANT: About that, the reading is from off my doona and it probably contaminate sometime in – in my home, in my house.
MS MAK: Okay. So you said that the item that tested positive for MDMA was your doona, is that right?
APPLICANT: Yes.
MS MAK: So, who was getting the drugs on your doona, if it wasn’t you?
APPLICANT: Maybe from Mr AB, I don’t know. Because all the drugs I used was ice, at the time.
MS MAK: Okay. So your evidence is still that you have only ever used ice, despite the fact that your doona was found to be – was found to have MDMA and cannabis on it?
APPLICANT: Yes. I never use the cannabis or MDMA.
MS MAK: But you told the New Zealand Customs officers that you had used MDMA?
APPLICANT: I wasn’t – I wasn’t thinking straight. All I wanted – all I want to go was getting into New Zealand.
MS MAK: But your evidence now is that when you said that to them you were lying?
APPLICANT: Yes.”[54]
[My underlining]
[54] Transcript, 6 April 2020, page 29, lines 18-45, and page 30, lines 1-6.
It is thus clear from the Applicant’s own evidence that he has clearly sought to mislead the New Zealand Customs authorities by purporting to suggest that evidence of MDMA and cannabis on his doona was the result of him consuming either or both of those drugs two weeks prior to the trip to New Zealand. Rather inconsistently, in the instant hearing, the Applicant purported to suggest that the traces of these drugs on his doona were “maybe from Mr AB, I don’t know.” The patent inconsistency in the Applicant’s evidence renders it inherently unreliable and of no credible value.
Application of Factors in Paragraph 13.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(a)…
(b)…
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)…
(f)…
(g)…
(h)…
(i)…
Sub-paragraph (a) of Paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. The Applicant’s criminal history is not redolent of a propensity towards violence. This sub-paragraph (a) is not relevant to determination of this Application.
Sub-paragraph (b) of Paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. Here, there has been no violent conduct towards women and/or children and this sub-paragraph (b) is thus not relevant to determination of this Application.
Sub-paragraph (c) of Paragraph 13.1.1(1) of the Direction provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.” The material indicates that the Applicant deliberately involved a 15 year old person for the purposes of playing a certain role in the receipt of the subject parcel. As noted by Judge Sweeney:
“After the calls which [the Applicant] had made to DHL which I have previously referred to, he arranged that the delivery should be made to his home address at [suburb redacted] and he gave the name [the actual name of the 15 year old child] as someone who could accept delivery of the consignment and he said that person was his wife. [The Applicant’s] wife lived at that address with him, but that was not her name. [The] name belonged to a young boy, who was then 15, who [the Applicant] had arranged to take delivery of the package for payment.”[55]
[55] Exhibit G1, s501 G-Documents, G2, page 27.
While I accept that the Applicant was not charged or convicted with a crime committed against a vulnerable member of the community – in this case, the 15 year old boy – I nevertheless note the conduct of the Applicant with regard to this particular 15 year old male. The Applicant (1) lied to DHL about the identity of the receiving party; (2) deliberately gave the name of the 15 year old boy to be the recipient of a parcel that the Applicant knew, or ought to reasonably have known, contained an unlawful substance; and (3) would surely have known that the 15 year old boy could very well have been the subject of an extremely serious charge or charges in relation to actually receiving that parcel.
Viewed in its totality, while not a crime against the 15 year old, I am of the view that the Applicant deliberately and knowingly placed the 15 year old directly in harm’s way. Further to that, it can be reasonably inferred that the Applicant knowingly involved that 15 year old into a role of receiving the parcel by promising him financial reward for doing so.
To my mind, the evidence unquestionably points to a reality that the Applicant’s deliberate and deceitful conduct involving the knowing secondment of the 15 year old boy into this extremely serious level of offending, while not punished as a crime, nevertheless constitutes inexcusable and despicable conduct towards a vulnerable member of the community. As such, it weighs very heavily in favour of a finding that the totality of the Applicant’s conduct should be viewed extremely seriously.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
The starting point for an assessment of any weight attributable to this sub-paragraph (d) must be the maximum penalty for an offence of the type committed by the Applicant. Section 307.11 of the Criminal Code Act 1995 (Cth) stipulates that the offence for which the Applicant was convicted carries a maximum penalty of 25 years’ imprisonment, 5000 penalty units, or both.
This Tribunal has, in previous decisions, made it clear that the imposition of a term of imprisonment for a given offence will reflect the seriousness of that offence.[56] Further, the imposition of that custodial term should weigh “heavily” against revocation of a decision to mandatorily cancel an Applicant’s visa.[57]
[56] PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22].
[57] Saleh and Minister for Immigration and Border Protection (Migration) [2017] AATA 367 at [50].
The imposition of a custodial term is often regarded as a last resort in any reasonably and correctly applied sentencing process. Notably for present purposes, this Applicant had no prior criminal history when he first appeared for sentencing before the New South Wales District Court in February 2017. Despite the absence of any previous history, Judge Sweeney had no compunction in sentencing the Applicant to a head custodial term of five years, with a parole eligibility date after the Applicant had served two and a half years in actual custody. Judge Sweeney said:
“I am conscious that [the Applicant] is very young, fairly recently married, his wife is also very young, he has no prior criminal convictions…Nevertheless, no other sentence would be appropriate for his offence which…is still a serious offence.”[58]
[58] Exhibit G1, s 501 G-Documents, G2, page 34.
For the totality of his offending in this country, the sentence imposed by the New South Wales District Court in February 2017 comprised a head sentence of five years. The Applicant has been in this country for no more than eight years. The head sentence represents approximately 63% of his time in this country. Put in another and less favourable way, prior to his incarceration in February 2017, the Applicant had been in Australia for no more than five years. The head sentence of five years thus comprises 100% of the time he has spent in the mainstream Australian community. Thus, the sentence imposed by the New South Wales District Court in February 2017 for this Applicant’s offending clearly militates in favour of a finding that his offending has been of an extremely serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required by the immediately preceding sub-paragraph (d). In the instant case, the Applicant is not a repeat offender. Accordingly, one cannot attribute any level of frequency or trend of increasing seriousness to his offending.
Put plainly, his offending is extremely serious from its outset. That said, it would be an incorrect application of this sub-paragraph (e) to the present factual matrix as a basis on which to allocate any level of weight to it.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. As mentioned in the commentary for the immediately preceding sub-paragraph (e), the Applicant is not a repeat offender. As such, no cumulative effect is attributable to his offending because of the single offending episode and sentence. It would be unsafe and incorrect to utilise this sub-paragraph (f) as a basis upon which to make a finding about the level of seriousness of the Applicant’s offending. That said, I will say something about the actual effect of the Applicant’s offending – cumulative or otherwise – later in these reasons when I refer to the chapeau to Paragraph 13.1.1(1) of the Direction.

Sub-paragraph (g) of Paragraph 13.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. The material does not disclose any instance of the Applicant providing false information to the Respondent. As referred to earlier, the Applicant’s evidence in cross-examination plainly refers to the provision of false information to the New Zealand Customs authorities. Because the Applicant’s false or misleading information in the instant case was not provided to “the Department”, it would be unsafe and incorrect to utilise this sub-paragraph (g) as a basis upon which to make a finding about the level of seriousness of the Applicant’s offending. Once again, I will say something about the Applicant’s provision of false information to the New Zealand Customs authorities later in these reasons when I refer to the chapeau to Paragraph 13.1.1(1) of the Direction.
Sub-paragraph (h) of Paragraph 13.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. I am not able to glean any such letter or other communication containing any such formal warning from the Respondent or any other element of lawful authority. This sub-paragraph (h) is not relevant to determination of this Application.
Sub-paragraph (i) of Paragraph 13.1.1(1) of the Direction refers to a non-citizen who has committed a crime while in immigration detention in Australia. Subject to my following comments about the chapeau to Paragraph 13.1.1 of the Direction, there is no evidence of this Applicant having committed a crime while in immigration detention in Australia. This sub-paragraph (i) is not relevant to determination of this Application.
The chapeau to the factors at Paragraph 13.1.1 of the Direction reads as follows:
“(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including: …”
[My underlining]
As alluded to earlier, there are at least two further aspects to the Applicant’s conduct which, although not directly captured by the nine factors at Paragraph 13.1.1(1) of the Direction, nevertheless constitute “other conduct” relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
First, while the wording of sub-paragraph (f) refers to “the cumulative effect of repeated offending” and, as such, is not strictly applicable to the present factual matrix, it is, to my mind, nevertheless notable that the Applicant, even in the commission of his singular offence, is nevertheless responsible for acting as a contributory towards an enterprise involving the trafficking of a large commercial quantity of an illicit substance. It is plain from relevant authority that such offending must be viewed with the “utmost seriousness”.[59]
[59] Wilson v The Queen; DPP v Sassine ; DPP v Kalakias; Wilson v the Queen [2012] VSCA 141 at paragraph [26].
The Applicant assumed responsibility for safe receipt and delivery of a package containing the significant amount of 11.887 kilograms of pure ephedrine. According to Judge Sweeney’s sentencing remarks, “The theoretical maximum methylamphetamine base which can be produced from that amount of ephedrine is 10.698 kilograms, or 13.372 kilograms of methylamphetamine hydrochloride, which is the form in which it is known to street users as “ice”.”[60]
[60] Exhibit G1, s 501 G-Documents, G2, page 28.
Second, while the Applicant’s conduct does not attract operation of sub-paragraph (g) because he did not provide false or misleading information to “the Department”, he nevertheless – on his own evidence under cross-examination – acknowledged that he clearly misled the New Zealand Customs authorities about the origin on traces of MDMA and cannabis found on his doona upon his arrival in New Zealand. Upon detection in New Zealand on 24 August 2015, he told New Zealand Customs that he had used MDMA two weeks prior to his arrival. In the instant hearing, his evidence was that his doona bore positive traces for MDMA and cannabis because it was due to “maybe from Mr AB, I don’t know.” He also admitted under cross-examination that the information he provided to New Zealand Customs was a lie.
While these two aspects of the Applicant’s conduct do not appear in his criminal history, or may not be strictly captured by any of the nine sub-paragraphs in paragraph 13.1.1(1) of the Direction, I am nevertheless of the view that the totality of these two particular aspects of his conduct are relevant to an assessment of the seriousness of his offending due to their characterisation as “other conduct” in the abovementioned chapeau to Paragraph 13.1.1(1) of the Direction.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (c) and (d), of paragraph 13.1.1(1) of the Direction apply, in combination with the “other conduct” captured by the chapeau to paragraph 13.1.1(1) of the Direction, I am of the view that the Applicant’s conduct is readily capable of characterisation as “extremely serious”.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
(i)paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The Respondent contends that:
“…The Tribunal can be satisfied that the level and nature of the harm to individuals and the community in general if the Applicant were to engage in further criminal offending involving the importation of precursors to manufacture methamphetamine would be significant and serious.”[61]
[61] Exhibit R1, Respondent’s SFIC, page 5, paragraph [14].
Paragraph 6.3(4) of the Direction stipulates that decision-makers should be guided by the principle that criminal offending and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. On the basis of this paragraph 6.3(4), I think the Respondent’s abovementioned submission is correct.
The Applicant arrived in Australia in March 2012 as a 16 year old. He became involved in a drug culture within at least three years after his arrival here. Even on his own evidence, his addiction issues arising from participation in that drug culture caused him to apparently come under the control of a domineering and controlling third party, who, in turn, is to be regarded as the primary orchestrator of the Applicant’s offending. It can be fairly said that the Applicant’s involvement in unlawful activity surrounding drugs has been the dominant feature of his time in this country. It cannot be said that, for example, he had oriented his life in Australia towards a given field of study or remunerative endeavour and that, by way of further example, his involvement in drugs comprised an interruption – albeit an extremely serious one – to his intended mainstream career.
While he spoke of possible careers in the areas of retail food and hospitality (as a chef), or in the trades (as an electrician), these are meekly and conveniently stated intentions. There is no convincing evidence that either of these legitimate careers have been embarked upon, not even in an embryonic sense.
I accept that his offending did not, as is often seen in applications of this type, commence with low-level regulatory-type offending such as, for example, shoplifting offences, public nuisance offences and the like. His deliberate and knowing involvement in an organised criminal scheme to import a significant commercial quantity of unlawful drugs renders his offending as extremely serious from its outset. To my mind, the hazy nature of the evidence surrounding the Applicant’s offending is a matter of concern. For example, he originally spoke of only being involved in the receipt of just the one package. Yet in cross-examination, he conceded an involvement in the receipt of at least several such packages.
By way of further example, the state of the evidence around the drug-associated paraphernalia such as measuring scales and a measuring cup was unconvincingly sought to be attributed to a third party, the identity of whom cannot be proven and against whom no charges have been laid or prosecuted. Similarly, the evidence about the nature of the Applicant’s involvement was, at best, opaque and, on one view, perhaps deliberately so. This is because he originally spoke of only being paid in drugs for his involvement in the importation scheme. It clearly emerged in cross-examination that defined cash payments were agreed to between the Applicant and his purported “superior” in the scheme.
While propounding an involvement at a largely external level, the Applicant nevertheless deliberately and knowingly involved, by way of financial reward, a 15 year old boy to act as the primary receiving point for the package containing the unlawful substance. He did so in circumstances where (1) he knowingly misrepresented to the delivering company the 15 year old boy’s name as that of his own wife (as the receiving individual), and (2) he deliberately absented himself by making a contemporaneous trip to New Zealand at the very time he knew the parcel was to be received.
Similarly opaque is the nature of the evidence around the rental property in the Applicant’s name involving the coming and going of a large number of different tenants over a period of time. The state of the evidence is such that no safe finding can be made about the precise nature and purpose of that property but it is certainly not indicative of a traditional domestic dwelling involving the Applicant and his then-wife.
The nature of the harm that would be occasioned to individuals or the Australian community were this Applicant to again engage in similar further criminal or other serious conduct can be gleaned from published studies produced by and/or relied upon by advisory bodies reporting directly to the Australian government. Helpfully, the Respondent has provided extracts from documents pointing to the extremely serious effect of illicit drugs on the Australian community and, more particularly, the effect of the drug known as “ice”.[62]
[62] Exhibit R1, Respondent’s SFIC, page 5, paragraph [13].
First, a report produced by the Council of Australian Governments (“COAG”) entitled “National Ice Action Strategy 2015” dealt with the adverse impact that ice is having upon the Australian community. This report dates from 2015 and notes these things:
“As ice use has risen, so too has the impact it causes. The number of hospitalisations related to methamphetamine increased five-fold between 2009-10 and 2013-14, and the number of specialist drug treatments provided for meth/amphetamines almost tripled over the same period.
Doctors, nurses, ambulance workers, police officers and other frontline workers are all reporting a significant increase in the number of ice users they encounter in their work.
…
Organised crime supported by the profits from the sale of ice. More than 60 per cent of Australia’s most significant organised criminal groups are involved in the methamphetamine market.”[63]
[My underlining]
[63] Exhibit R2, Respondent’s Tender Bundle, AD 1, pages 8 and 11.
Second, the National Drug Strategy 2017-2026 is a publication emanating from the Commonwealth Department of Health. The strategy report dates from 2017 and, inter alia, with specific reference to precursors for the production of illicit drugs, notes these things:
“Prevent and reduce illicit drug availability and accessibility
Preventing or disrupting illicit supply of drugs and precursors reduces availability, leading to a reduction of use and consequential harms. Illicit supply of drugs includes drugs that are prohibited, such as cannabis, heroin, cocaine and methamphetamine, and those diverted from legitimate use, such as pharmaceuticals. It also includes illicit supply of substances that are legitimately available, such as alcohol, tobacco, solvents and those precursors used in illicit drug manufacture.
Preventing illicit supply includes dismantling or disruption of distribution networks and manufacturing and cultivation facilities or locations. It can be closely associated with policing activities aimed at organised crime.
Over the last five years there has been an increase in the availability and purity of methamphetamine (as indicated by more domestic seizures, border detections and arrests). As a consequence, states and territories are reporting an increase in the harms associated with its use including increased presentations to drug treatment services, ambulance attendances and presentations/admissions to Australian public hospitals.”[64]
[My underlining].
[64] Ibid, AD 2, pages 11 and 12.
This Applicant’s offending has directly contributed to, and been directly causative of, the abovementioned five-fold increase in the number of hospitalisations related to methamphetamine. His conduct has directly contributed to and is directly causative of the inordinate consumption of the Australian community’s resources required to properly treat and police methamphetamine use. According to the COAG Report, it is more likely than not that the Applicant’s criminal offending falls under the umbrella of the 60 per cent of Australia’s most significant organised criminal groups being involved in the unlawful methamphetamine market.
It is surely beyond argument that were this Applicant to again engage in participation in a scheme to import a commercial quantity of precursors or similar illicit substances, the nature of the harm that would thereby be occasioned to individuals or the Australian community would be very significant and extremely serious with, quite conceivably, potentially catastrophic physical, psychological and financial consequences. As noted by the Respondent, “…such is the seriousness of the harmful nature of drugs, particularly on this scale.”[65]
[65] Exhibit R1, Respondent’s SFIC, page 5, paragraph [12].
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s Evidence
In cross-examination, the Applicant was questioned about his interview with the reporting psychologist in this matter, Ms Natalia Yee.[66] He said he was familiar with the content of Ms Yee’s report and that she personally attended upon him for the purposes of an interview prior to preparation of her report. The following specific portion of Ms Yee’s report was read to the Applicant:
“27. However, [the Applicant] reported a history of ‘ice’ (crystal methamphetamine) use. He reportedly first used ice at the age of 19 years old (early 2015) after being introduced to it by Mr AB at a dinner. According to [the Applicant], he ever only orally ingested ice and “if injection, I wouldn’t try” although was unable to specify the typical dose he would use. The frequency of use was initially 1 to 2 times over the course of a week but his pattern of use escalated into once per day over a span of 2 months. [The Applicant] reported that when his craving was worst and consumption was heaviest, he was using a gram of ice every two days costing him “few hundred dollars” each time.”[67]
[66] See Exhibit A2, Report of Ms Natalia Yee, dated 27 March 2020.
[67] Ibid, page 7.
The Applicant agreed that at the time he was most heavily using ice, he was consuming it every day. It was then put to him that this was different to his evidence earlier in the instant proceedings when he said that at the time of his heaviest usage of ice, he was using it two to three times a week. The following exchange then transpired between the Respondent’s representative and the Applicant:
“APPLICANT: Cause as I understand it was like even after my craving like I was try to stop using ice but at the time I was only using two or three times per week. Then I go to court and it completely shuts me down.
MS MAK: Okay, [Applicant]. But is it right to say that at one point you were using ice every day?
APPLICANT: Yes.
MS MAK: Then you reduced that usage to two to three times a week?
APPLICANT: Yes.
MS MAK: Then you eventually reduced that usage to nothing?
APPLICANT: Yes.
MS MAK: And you were using ice at the time you committed the offence?
APPLICANT: Yes.
MS MAK: You said earlier today that the only drug that you had ever used was ice, is that correct?
APPLICANT: Yes. Yes.
MS MAK: Do you have the bundle of additional material provided by the respondent with you there?”[68]
[68] Transcript, 6 April 2020, page 27, lines 19-36.
The bundle referred to by the Respondent’s representative in this exchange comprises the Respondent’s Tender Bundle and, in particular, page 166 thereof. This is the portion of the evidence where the Applicant had wrongly told the New Zealand Customs authorities that he had consumed MDMA two weeks prior to his arrival in New Zealand on 24 August 2015. As will be recalled, the Applicant confirmed in his evidence to this Tribunal that, in saying this to New Zealand Customs, “I was lying to them.” In addition, it will also be recalled that later in his evidence before this Tribunal, when pressed about how the traces of MDMA and cannabis came to be found on his doona, the Applicant said “Maybe from Mr AB, I don’t know.”
There is thus an unreliable thread to the Applicant’s evidence about the nature of his drug use. On the one hand, he propounds a position of historical drug use involving only the one drug – ice. On the other hand, when confronted with the reality that traces of MDMA and cannabis were found on one of his personal possessions, he confirmed that he had lied to the New Zealand Customs authorities about using MDMA and cannabis, and, further, sought to attribute responsibility for the presence of those traces on someone else.
Things did not improve in terms of the credibility of the Applicant’s evidence regarding his drug use when he was cross-examined about the level of his rehabilitation. This is what transpired in cross-examination:
“MS MAK: Okay. It’s right, isn’t it, that you haven’t completed any drug rehabilitation courses while you’ve been in gaol, isn’t it?
APPLICANT: While I was in Oberon I was volunteer to do addiction or aggression, all the courses. But my SIR score is too low the gaol doesn’t approve any of the courses to me, because I was marked as a low risk inmate in gaol. And I also have done the courses in church and attend to the - kind of like a drug meeting, all the drug users share their experience and like share experience to tell you how to stay away from drugs. Also I’ve done the Positive Lifestyle program in church, which is like teach you how to control emotion and then stay away from all the drugs and behaviour.
MS MAK: Okay. Have you made any arrangements to attend any drug rehabilitation courses if you’re released?
APPLICANT: Yes. I was - I was going to do that, but the thing is, I spoke them in Villawood, which is - - -
…
I was contacted in Villawood so I can attend to the church which has those like meetings, with supporters. But the thing is, I couldn’t attend, so it’s - it just - I was - I was planning to do the courses when I get out, if I get out.
MS MAK: Have you enrolled in any specific courses? Do you know which courses those would be?
APPLICANT: It wasn’t like a course, it was more like - like a meeting - like 10 or 15 of others sitting in a room and they share their experience, share their stories and then help you to maintain your healthy lifestyle.
MS MAK: Okay. But do you know where these meetings would take place? Have you made arrangements to see how you could start going to them?
APPLICANT: Yes, some place in - in the church. They have - they have a lot of different locations, at Eastwood, Burwood, Campsie. They have - they have different locations.
MS MAK: Is it run by a particular organisation?
APPLICANT: What was the name for it? Called AA meeting. Something association, something like that. I couldn’t remember - I couldn’t remember the full name.
MS MAK: So you can’t remember the full name of the course - - -?
APPLICANT: Alconex - - -
MS MAK: Is it Narcotics Anonymous?
APPLICANT: Yes.
MS MAK: Yes?
APPLICANT: Alcoholic Anonymous.
MS MAK: Alcoholics Anonymous or Narcotics Anonymous?
APPLICANT: Alcoholics Anonymous.
MS MAK: Okay. So you haven’t enrolled in any specific courses but what you intend to do, if you are released into the Australian community, is to join one of these support groups to assist you to stay off drugs, is that right?
APPLICANT: Yes.”[69]
[69] Ibid, page 32, lines 35-44, and page 33, lines 1-3 and 10 to 40.

The Applicant claims to fear harm as a result of retaliation from organised crime groups in China. I have had regard to an earlier submission[129] prepared on behalf of the Applicant purporting to give some context to this claimed fear. According to that submission, the Applicant’s cooperation with police in Australia has allegedly caused other participants in the offending scheme to flee back to China. The Applicant’s fear of harm apparently derives from a concern that were he forced to return to China, the person(s) who fled there would cause other gang members in China to harm the Applicant in a retributive attack.
[129] Exhibit G1, s 501 G-Documents, G2, pages 74-79, see particularly, pages 75-76.
There are a number of difficulties with this claim. First, apart from the Applicant’s own evidence, there is nothing else from any other witness to corroborate it. Further, in cross-examination, he conceded:
(1) that his apprehension of any fear of harm is speculative;
(2) that he does not know where these asserted criminal groups are based (in China);
(3) he has not heard from anyone from these groups apart from one unsubstantiated contact some five years ago;
(4) there are millions of people living in a city like Shanghai and he is not sure how these gangs would find him; and
(5) the highpoint of his evidence is that he “just couldn’t take the chance” of returning to China.
In those circumstances the Tribunal considers that any risk that the applicant may be harmed by gang members in China is remote and not well-founded.
Second, it is necessary to evaluate the Applicant’s contention that he could be persecuted in China as a returnee. Again, all the Tribunal has before it is the uncorroborated evidence of the Applicant. The Applicant has previously contended that he:
“…has been absent from China for many years and as a person living in ‘the west’ would be treated with suspicion and whilst having a Chinese [PRC] passport would not have the benefit of a family ‘hukou’ accordingly, he would encounter serious discriminatory practices from police, authorities, educational facilities and employers: he would not have the benefit of any local social services safety net…”[130]
[130] Ibid, G19, page 352.
I have reviewed the Department of Foreign Affairs and Trade’s country information report in respect of the People’s Republic of China (‘DFAT report’). This DFAT report relevantly says:
“Hukou (household registration) system
5.34 The hukou system ties access to government services, such as education above a certain level and health, to a citizen’s place of birth, or even their parents’ place of birth, rather than their place of residence. Only an estimated 35 per cent of urban residents have an urban hukou…
…
5.37 According to media reports, it will be easier to apply for hukou in big, medium-sized, and small cities…China has 13 cities with a population of more than five million in their urban areas, which will not see a relaxation of hukou restrictions under the new policy; Beijing, Shanghai, Guangzhou, Shenzhen…”
[My emphasis and underlining]
On the basis of the evidence before the Tribunal, I am not satisfied that the Applicant will be persecuted as being a returnee to China.
Third, the Applicant claims he fears re-prosecution and re-sentencing in China for his offending in Australia, more commonly referred to as “double jeopardy”. The starting point for an assessment of this claim is the DFAT report, which relevantly provides:
“5.46 Articles eight to 12 of the Criminal Law outline provisions against double jeopardy. In practice, Chinese citizens convicted and punished for offences abroad may face punishment for the same offence on return to China. Authorities are less likely to pursue those who have committed offences overseas carrying a sentence in China of three years or less. Those convicted of offences that are more serious are more likely to be re-sentenced on return, depending on the offence and the severity of punishment served overseas: more severe punishment overseas would likely attract a lesser punishment on return…”[131]
[131] Ibid.
It is necessary to address two relevant Tribunal authorities that considered the issue of re-prosecution (and fresh prosecution) in China for offences in relation to the importation of illicit drugs into Australia from China. Those authorities comprise FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294 (“FRVT”) and Liang and Minister for Immigration and Citizenship [2013] AATA 392 (“Liang”). Both of these decisions involved the mandatory cancellations of those Applicants’ visas. In determining both of those applications, the Tribunal assessed the risk of harm to those Applicants arising from a possible re-sentencing for similar offending in Australia. In both decisions, the Tribunal concluded that the potential for harm arising from a re-sentencing (including the possible imposition of a death penalty as a maximum penalty) outweighed all other Primary and Other Considerations, resulting in the Tribunal’s revocation of both mandatory cancellation decisions.
An examination of the factual circumstances of both FRVT and Liang renders them, to my mind, distinguishable from the instant factual matrix. FRVT involved Chinese law enforcement authorities actually detecting a package addressed to the Applicant at his mother’s house in Australia. That package contained unlawful drugs and upon its dispatch from China, the Chinese authorities alerted the Australian authorities. The learned Tribunal Member in FRVT concluded that the Chinese officials were obviously aware of FRVT’s involvement in the offending scheme and, on this basis, FRVT faced an increased likelihood of a double-jeopardy risk if returned to China due to a possible prosecution and/or re-sentencing for that offence.
A further distinguishing factor between FRVT and the instant case is that the visa mandatorily cancelled in FRVT was a protection visa. Accordingly, the Tribunal was compelled to consider whether the potential harm the Applicant claimed he would face in China triggered any non-refoulement obligations Australia may have owed to him.
The factual circumstances in Liang are clearly distinguishable from the instant facts. As part of commission of the Australian offences, Liang travelled to China to negotiate the supply and export of cocaine. The Tribunal concluded that Liang was at a higher risk of facing prosecution and or re-sentencing in China because a significant component of his criminal conduct had occurred within China’s territorial jurisdiction. The Applicant in the instant case was limited to acting as the receiving point in Australia for a package containing precursors. His offending did not involve any element of him travelling overseas to China (or anywhere else).
I therefore agree with the Respondent’s contention: the factual matrix in the instant case is clearly distinguishable from what was before the Tribunal in FRVT and Liang. Accordingly, I do not conclude that this Applicant faces any real risk of potential prosecution and/or re-sentencing for his offence committed in 2015 upon his return to China. It is clear from the material that (1) the Applicant did not travel to China and commit any criminal offence (or any conduct giving rise to any criminal offence) within China’s territorial jurisdiction, (2) there is nothing before the Tribunal in the instant case to demonstrate any involvement by Chinese law enforcement authorities in the detection of the Applicant’s offending which is, of course, what occurred in FRVT, and (3) the risk of any retrospective identification and/or detection of the Applicant and his commission of the 2015 offending is less likely because the package containing the precursors was not actually addressed to him.
I am not satisfied the Applicant has any well based fear(s) of harm resulting from his return to China arising from (1) retaliation/retribution from organised crime groups; (2) persecution as a returnee; and (3) re-prosecution and re-sentencing for the 2015 offence. I do not consider that any of the Applicant’s contentions in this regard meet the threshold of engaging any non-refoulement obligations this country may otherwise owe to him.
Consequently, I am not satisfied that the Applicant is a person in respect of whom Australia has non-refoulement obligations. To the extent that this Other Consideration (a) may weigh in favour of revocation, it is of slight weight only. It is determinatively outweighed by the weight I have attributed to the Primary Considerations A and C, and that I may attribute to the relevant Other Considerations.
It is also important to bear in mind that the visa mandatorily cancelled in the instant case is a partner visa. It is not a protection visa as was the case in FRVT. In circumstances where the Applicant apprehends a real and specific risk of harm upon his removal to China, it is open to him to make an application for a protection visa. That particular application will involve an assessment of his claimed fears of harm. As he said in his cross-examination, such an application is squarely within the current thinking of the Applicant.
(b) Strength, nature and duration of ties
There is the following limited concession made by the Respondent:
“39. The Respondent accepts that this consideration favours the Applicant, but contends that it is outweighed by Primary Considerations 1 and 3 which favour non-revocation of the mandatory cancellation.”[132]
[132] Ibid, page 9.
The Applicant was born in China in November 1995. He came to Australia in March 2012 and but for a period of just less than two months, has resided here on a full-time basis since that date. He committed his offence in August 2015, relatively soon after his arrival in Australia. Although his offending history contains just the one sentencing episode, his offending was extremely serious from its outset. Having regard to paragraph 14.2(1)(a)(i) of the Direction, I allocate less weight to this Other Consideration (b) in those circumstances.
In his favour, there is some evidence about contributions – albeit very limited in scope – which he has made to Australia via his employment history and, at best, his “plans for further study”. This would attract a slight level of weight in his favour pursuant to paragraph 14.1(1)(a)(ii) of the Direction.
Regard must also be had to paragraph 14.2(1)(b) of the Direction which is concerned with the Applicant’s strength, duration and nature of any family or social links with Australian citizens and/or people who can otherwise remain here indefinitely. In his Personal Circumstances Form, the Applicant records that his father and step-mother currently reside in Australia. He lists no other family members, be they cousins, grandparents, uncles/aunts etc. He is estranged from his former wife and, in any event, it is unclear whether she has a right to permanently reside in Australia.
I accept that both the Applicant’s father and his step-mother are members of the Applicant’s support network. On that basis, and on the assumption they both have an indefinite right to remain in Australia,[133] a moderate measure of weight is attributable to the Applicant on the basis of this paragraph 14.2(1)(b). I accept that the Applicant has had a close relationship with his father, even though the father did not give any supportive evidence on behalf of the Applicant at the hearing. As best as I recall the evidence, the Applicant’s father works in retail food/hospitality.
[133] The material indicates that the Applicant’s father is an Australian permanent resident and his step-mother is an Australian citizen: see Exhibit R1, Respondent’s SFIC, page 9, paragraph [37].
For reasons best known to the Applicant, he has chosen a path of criminal offending in Australia and has failed to more closely align himself with the legitimate means by which his father and step-mother earn their livelihoods. I note that over three years of the Applicant’s eight years in this country have been spent in either criminal custody or immigration detention. While he may have some measure of ties and connections with his father and step-mother, his long physical absence from their lives can only militate in favour of the allocation of a moderate measure of weigh in his favour.
Given the nature, strength and duration of the Applicant’s links with his father and step-mother in Australia, a moderate measure of weight is attributable to this Other Consideration (b) pursuant to paragraph 14.2(1)(b) of the Direction.
Accordingly, having regard to the totality of evidence relevant to this Other Consideration (b), I am of the view that it weighs moderately in favour of revocation, but is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
There is no evidence before the Tribunal that cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application.
(d) Impact on victims
The Respondent has not called any evidence relating to the impact that the Applicant’s continued presence in Australia would have on any of his victims. No doubt, victims of the drug trade (including people close to those victims who were captured in its orbit) would have something to say about the effect of the drug trade upon themselves or one of their loved ones.
However, in the absence of actual evidence from a victim, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact of the Applicant’s continued presence in Australia would have upon any identified victims of his offending. Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s Visa and is thus neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
In his Personal Circumstances Form, the Applicant summarises his concerns about returning to China as follows:
“I have little qualifications and would struggle to find work or study, and would struggle to support myself with no support network.
…
If I was to be deported it would tear my family apart, and also jeopardise my relationship with my life. I would struggle to maintain family relationships, my personal relationship, and would find it hard to regain a normal quality of life.”[134]
[134] Exhibit G1, s 501 G-Documents, G2, page 54.
The Applicant is a man of 24 years of age. In response to question in his “Personal Circumstances Form” about “Do you have any diagnosed medical or psychological conditions?” the Applicant ticked the “No” box.[135] I accept that medical care and governmental social support in China[136] may not be at the same level as that available to the Applicant in Australia. However, he will have access to those things in the context of what is generally available to other citizens of China. Thus, the Applicant’s age and state of health are not factors that attract any determinative measure of weight to this Other Consideration (e).
[135] Ibid, page 53; see also Section 14.5(1)(a) of the Direction.
[136] Section 14.5(1)(c) of the Direction.
The Applicant is fluent in spoken and written Mandarin. He spent the first 16 years of his life in China. It is difficult to identify any significant or substantial language or other cultural barriers to him returning to and re-establishing himself in China.[137] As a citizen of that country, he will have access to social, medical and/or economic support in the context of what is generally available to other citizens of China.
[137] Section 14.5(1)(b) of the Direction.
I accept the Applicant’s evidence that he has a limited relationship with his biological mother and his elder sister, who apparently reside in China. As against that, the Applicant did live in China until he was 16 years of age and his evidence at the hearing was that he has returned to China on at least two occasions, one of which related to him visiting his ex-wife’s mother. While I accept the Applicant may face some difficulty in re-establishing himself in China, this factor would present as a short-term hardship and would not preclude his successful re-settlement there.
The Applicant has an employment history in Australia. He has worked as a kitchen hand and in the food services industry in this country.[138] There is little evidence in the material to cavil with the contention that the Applicant would not be able to find similar work in the retail food/hospitality field upon his return to China.
[138] Exhibit G 1, s 501 G Documents, G2, page 51.
I am mindful of the contentions made on behalf of the Applicant to the effect that due to his years of absence from China the Applicant may not again have access to the hukou system. To the extent this may constitute an ‘impediment’, it is counter-balanced by the evidence in the DFAT report that (1) only an estimated 35 per cent of urban residents have an urban hukou (2) it is easier to apply for a hukou in big, medium-sized and small cities in China. Shanghai falls within those categories of cities.
I have had regard to letters of support tendered by the Applicant in 2018 as part of his representation to the Department requesting the revocation of the mandatory cancellation of his visa. While those demonstrations of support were forthcoming in 2018, it is notable that no further such statements or letters of support have been provided by any of those deponents/witnesses for the instant application.
Having regard to the totality of the evidence, I am thus of the view that this Other Consideration (e) is of slight weight in favour of revocation.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which respectively weigh very heavily and heavily in favour of non-revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: of slight weight in favour of revocation;
·strength nature and duration of ties: moderately weighs in favour of revocation;
·impact on Australian business interests: not relevant;
·impact on victims: of no weight; and
·extent of impediments if removed: slightly weighs in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs very heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B is of no weight;
·I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of the cumulative weight attributable to all of the Other Considerations outweighs the very significant, combined and determinative weight I have attributed to Primary Considerations A and C; and
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.

Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 193 (one hundred and ninety-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Tavoularis

....................[sgd]....................................................
Associate
Dated: 16 April 2020

Date(s) of hearing: 6 April 2020

Applicant:

Advocate for the Applicant:

Solicitors for the Applicant:

In person (by video)

Mr H Murdoch, Solicitor/Director

Parish Patience

Advocate for the Respondent: Ms D Mak, Solicitor

Solicitors for the Respondent: Clayton Utz
Annexure A
File No 2020/0482
Between QTNZ (Applicant)
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
(Respondent)

Heard on    Monday, 6 April 2020

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (Paged 1 – 362)

R

-

12 Feb 20

R1

Respondent’s Statement of Facts, Issues and Contentions (Paged 1 – 10)

R

16 Mar 20

16 Mar 20

R2

Respondent’s Tender Bundle (Paged 1 -357):

·     AD1: National Ice Action Strategy 2015, Council of Australian Governments, dated 11 Dec 15 (Paged 1-28)

·     AD2: National Drug Strategy 2017-2026, Department of Health, dated Jun 17 (Paged 29-84)

·     AD3: Country Information Report – People’s Republic of China, Department of Foreign Affairs and Trade (DFAT), dated 3 Oct 19 (Paged 85-160)

·     AD4: Summonsed documents produced by the Australian Federal Police (AFP), dated 14 Feb 20 (Paged 161-201)

·     AD5: FRVT & Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294, dated 25 Feb 20 (Paged 202-285)

·     AD6: Liang & Minister for Immigration and Citizenship [2013] AATA 392, dated 13 Jun 13 (Paged 286-357)

R

-

16 Mar 20

A1

Applicant’s Statement of Facts, Issues and Contentions, dated 2 Mar 20 (Paged 1-8) with attachments:

·     Attachment 1: Oxford Academic – What does recent neuroscience tell us about criminal responsibility? Dated 30 Dec 15 (Paged 1-20)

·     Attachment 2: Understanding the adolescent brain and legal culpability, dated 1 Aug 15 (Paged 21-24)

·     Attachment 3: Big Think Article: Why is 18 the age of adulthood if the brain can take 30 years to mature? Dated 20 Mar 19 (Paged 25-28)

·     Attachment 4: Brain maturity extends well beyond teen years, dated 10 Oct 11 (Paged 29-32)

·     Attachment 5: Is 25 the new cut-off point for adulthood, BBC News, dated 23 Sep 13 (Paged 33-38)

·     Attachment 6: Adolescent maturity and the brain: The Promise and Pitfalls of Neuroscience in Adolescent Health Policy, dated 16 May 09 (Paged 39-48)

·     Attachment 7: How the 19-Year-old brain can both awe and appal us: BDN Maine, dated 25 Apr 13 (Paged 49-52)

·     Attachment 8: Scientific support for raising the age of criminal responsibility, dated 10 Apr 17 (Paged 53-58)

·     Attachment 9: The teenage brain: adolescent brain research and the law, dated 2013 (Paged 59-62)

·     Attachment 10: Can neuroscience help predict future antisocial behaviour? Fordham Law Review, dated 18 Oct 18 (Paged 63-92)

·     Attachment 11: Enabling individualized criminal sentencing while reducing subjectivity: A tablet-based assessment of recidivism risk, dated 2016 (Paged 93-98)

·     Attachment 12: What is known about recidivist offenders? Recidivism in Australia, undated (Paged 99-112)

A

-

2 Mar 20

A2

Psychologist report of Ms Natalia Yee

A

27 Mar 20

30 Mar 20

A3

Briefing emails to Ms Natalia Yee (Psychologist):

·     Annexure A: Email dated 28 Feb 20

·     Annexure B: Email dated 29 Feb 20

·     Annexure C: Email dated 2 Mar 20

A

-

1 Apr 20

A4

Witness statement of Applicant’s Step-Mother, Ms SJPL

A

31 Mar 20

1 Apr 20

Date(s) of hearing:	6 April 2020
Applicant: Advocate for the Applicant: Solicitors for the Applicant:	In person (by video) Mr H Murdoch, Solicitor/Director Parish Patience
Advocate for the Respondent:	Ms D Mak, Solicitor
Solicitors for the Respondent:	Clayton Utz

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (Paged 1 – 362)	R	-	12 Feb 20
R1	Respondent’s Statement of Facts, Issues and Contentions (Paged 1 – 10)	R	16 Mar 20	16 Mar 20
R2	Respondent’s Tender Bundle (Paged 1 -357): · AD1: National Ice Action Strategy 2015, Council of Australian Governments, dated 11 Dec 15 (Paged 1-28) · AD2: National Drug Strategy 2017-2026, Department of Health, dated Jun 17 (Paged 29-84) · AD3: Country Information Report – People’s Republic of China, Department of Foreign Affairs and Trade (DFAT), dated 3 Oct 19 (Paged 85-160) · AD4: Summonsed documents produced by the Australian Federal Police (AFP), dated 14 Feb 20 (Paged 161-201) · AD5: FRVT & Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294, dated 25 Feb 20 (Paged 202-285) · AD6: Liang & Minister for Immigration and Citizenship [2013] AATA 392, dated 13 Jun 13 (Paged 286-357)	R	-	16 Mar 20
A1	Applicant’s Statement of Facts, Issues and Contentions, dated 2 Mar 20 (Paged 1-8) with attachments: · Attachment 1: Oxford Academic – What does recent neuroscience tell us about criminal responsibility? Dated 30 Dec 15 (Paged 1-20) · Attachment 2: Understanding the adolescent brain and legal culpability, dated 1 Aug 15 (Paged 21-24) · Attachment 3: Big Think Article: Why is 18 the age of adulthood if the brain can take 30 years to mature? Dated 20 Mar 19 (Paged 25-28) · Attachment 4: Brain maturity extends well beyond teen years, dated 10 Oct 11 (Paged 29-32) · Attachment 5: Is 25 the new cut-off point for adulthood, BBC News, dated 23 Sep 13 (Paged 33-38) · Attachment 6: Adolescent maturity and the brain: The Promise and Pitfalls of Neuroscience in Adolescent Health Policy, dated 16 May 09 (Paged 39-48) · Attachment 7: How the 19-Year-old brain can both awe and appal us: BDN Maine, dated 25 Apr 13 (Paged 49-52) · Attachment 8: Scientific support for raising the age of criminal responsibility, dated 10 Apr 17 (Paged 53-58) · Attachment 9: The teenage brain: adolescent brain research and the law, dated 2013 (Paged 59-62) · Attachment 10: Can neuroscience help predict future antisocial behaviour? Fordham Law Review, dated 18 Oct 18 (Paged 63-92) · Attachment 11: Enabling individualized criminal sentencing while reducing subjectivity: A tablet-based assessment of recidivism risk, dated 2016 (Paged 93-98) · Attachment 12: What is known about recidivist offenders? Recidivism in Australia, undated (Paged 99-112)	A	-	2 Mar 20
A2	Psychologist report of Ms Natalia Yee	A	27 Mar 20	30 Mar 20
A3	Briefing emails to Ms Natalia Yee (Psychologist): · Annexure A: Email dated 28 Feb 20 · Annexure B: Email dated 29 Feb 20 · Annexure C: Email dated 2 Mar 20	A	-	1 Apr 20
A4	Witness statement of Applicant’s Step-Mother, Ms SJPL	A	31 Mar 20	1 Apr 20