Shen and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 118
•21 February 2025
Shen and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 118 (21 February 2025)
Applicant:Chenkun Shen
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/10219
Tribunal:General Member R. West
Place:Melbourne
Date:21 February 2025
Decision:Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision of the delegate of the Respondent of 29 November 2024 to not revoke the cancellation of the Applicant’s Employer Nomination Scheme (Class EN) (subclass 186) (Permanent) visa.
..............................[SGD]..........................................
General Member R. West
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – conviction for procure a person under 16 years of age to engage in sexual activity with another person - applicant does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – Direction 110 - primary considerations – protection of the Australian community from criminal or other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed – decision affirmed.
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Migration Act 1958 (Cth)Sex Offenders Registration Act 2004 (Vic)
Cases
BNPB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 730
CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 599
Morgan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 189
PQSM and Minister for Home Affairs (Migration) [2019] AATA 603
Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003
Re Harrison v Minister for Immigration and Citizenship [2006] AATA 47
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238
RVKP and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 1761Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
Statement of Reasons
This matter concerns an application for review of the decision of a delegate of the Respondent not to revoke the cancellation of the Applicant’s Employer Nomination Scheme (Class EN) (subclass 186) (Permanent) visa (the Visa) under section 501CA(4) of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The Applicant is a citizen of the People’s Republic of China (PRC). He was born in the PRC in July 1988. He first arrived in Australia on 20 August 2006.[1]
[1] G42 p 282.
On 31 July 2023, the Applicant plead guilty in the County Court of Victoria to one charge of using a carriage service to procure a person under 16 years of age to engage in sexual activity with another person and was sentenced to 19 months imprisonment subject to conditions that he be released after six months on entering a $1,500 good behaviour bond for 18 months under section 20(1)(b) of the Crimes Act 1914 (Cth) (Crimes Act).[2]
[2] G6 p 45 and G7 pp 51-2.
On 5 September 2023 the Applicant’s Visa was cancelled under section 501(3A) of the Act (Cancellation Decision) and the Applicant was notified of the cancellation and invited to make representations about revocation.[3]
[3] G42 pp 283-8.
On 2 October 2023 the Applicant sought revocation of the cancellation of the Visa and made representations to the Respondent as to why the cancellation of the Visa should be revoked.[4]
[4] G8-G40.
On 29 November 2024 a delegate of the Respondent decided not to revoke the cancellation of the Applicant’s Visa (Reviewable Decision)[5] and notified the Applicant of the decision on 2 December 2024.[6]
[5] G4.
[6] G3 p 15.
On 6 December 2024 the Applicant applied to the Tribunal for review of the Reviewable Decision (Application).[7]
[7] G2 p 4.
HEARING
The Tribunal conducted a hearing of the Application on 17 February 2025. The Applicant was represented by Mr Nicholas Poynder of Counsel. The Respondent was represented by Mr Jamie Grant of Counsel.
In conducting the review, the Tribunal had regard to:
(a)the documents produced to the Tribunal by the Respondent pursuant to section 501G of the Act, numbered G1 to G43 and paginated from pages 1 to 312 (G Documents), and further documents produced under summons sequentially numbered S1 to S58 and paginated from pages 1 to 201 (SG Documents);
(b)a Statement of Facts, Issues, and Contentions produced by the Respondent (RSFIC);
(c)a Statement of Facts, Issues, and Contentions produced by the Applicant (ASFIC);
(d)the documents tendered by the Applicant and marked as exhibits, and listed in Appendix A;
(e)DFAT Country Information Report People’s Republic of China – dated 27 December 2024, tendered by the Respondent (DFAT Report); and
(f)the oral evidence of:
i.the Applicant;
ii.Ms Xiaojun Yu, the Applicant’s wife; and
iii.Mr Watson-Munro, Consultant Psychologist.
LEGISLATIVE FRAMEWORK
Section 501CA(4) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation decision if it is satisfied that:
(a)the Applicant passes the character test (as defined by section 501); or
(b)there is another reason why the cancellation should be revoked.
Section 501(6)(a) provides that a person is deemed not to pass the character test if:
a.they have a ‘substantial criminal record’, defined in section 501(7)(c) to include having been ‘sentenced to a term of imprisonment of 12 months or more’; or
b.if a court in Australia or a foreign country has 'convicted the person of one or more sexually based offences involving a child': section 501(6)(e)(i) of the Act.
On 31 July 2023, the Applicant plead guilty in the County Court of Victoria to one charge of ‘Use serv procure u16-sex-act-other person’[8] and was sentenced to 19 months imprisonment subject to conditions that he be released after six months on entering a $1,500 good behaviour bond for 18 months under section 20(1)(b) of the Crimes Act.[9]
[8] G7 p 47.
[9] G6 p 45 and G7 pp 51-2.
The factual basis of the offence was summarised in the sentencing remarks of Her Honour Judge Karapanagiotidis as follows:
In summary, your offending occurred between 15 September 2020 and 13 October 2020, and involved you using the social media and instant messaging application, WeChat, to communicate with a 15-year-old female child ‘ZW’. During these interactions, you sought to recruit ZW to work as an escort for your business. In doing so, you communicated with ZW with the intention of procuring her to engage in sexual activity with another person who was at least 18 years of age.[10]
[10] G7 p 47 at [3].
There is no definition of “sexually based offences” in the Act, and the Tribunal is required to look at the actual content of the elements of the offences of which the Applicant was convicted.[11]
[11] Morgan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 189 at [22].
The offence for which the Applicant was convicted under the Crimes Act was a breach of section 474.26(2) of the Criminal Code (Cth),[12] which provides that:
[12] SG48 p 150.
A person (the sender) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(b) the sender does this with the intention of procuring the recipient to engage in, or submit to, sexual activity with another person (the participant); and
(c) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(d) the participant is someone who is, or who the sender believes to be, at least 18 years of age.
A necessary element of the offence is that the sender has an intention to procure the recipient to engage in sexual activity. It is therefore clearly a sexually based crime.
The Act itself does not directly define ‘child’, and there is no definition of the term in the Acts Interpretation Act 1901 (Cth). However, section 5CA of the Act does defines the expression ‘child of a person’ by reference to the Family Law Act 1975 (Cth) which defines a child as a person under the age of 18.[13] Having regard to this definition the Tribunal is satisfied that the reference to ‘child’ in section 501(6)(e) of the Act is to a person under the age of 18.[14]
[13] See s 4 of the Family Law Act 1975 (Cth).
[14] RVKP and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 1761 at [21].
The victim of the Applicant’s crime was 15 years of age. Accordingly, the Tribunal is satisfied that the Applicant is a person who has been convicted by an Australian court of a sexually based offence involving a child.
In addition, the sentence imposed by the court was for a term of 19 month’s imprisonment and as a result of this sentence the Applicant has a “substantial criminal record” as defined in section 501(7)(d).
The Applicant therefore fails the character test under section 501(6) in both respects.
The Applicant does not dispute that he does not pass the character test.[15]
[15] ASFIC.
Accordingly, the sole issue before the Tribunal is whether, under section 501CA(4)(b)(ii), there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked.
DIRECTION 110
On 7 June 2024, the Minister issued Direction No. 110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 110) to commence operation from 21 June 2024. Direction 110 provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s Visa should be revoked.
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the Tribunal must comply with the direction.[16]
[16] See Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 [17].
Paragraph 6 of Part 2 of Direction 110 provides that decision-makers must take into account the considerations identified in paragraphs 8 and 9 where relevant to the decision within the framework provided by the principles stated in paragraph 5.2.
Paragraph 8 of Part 2 sets out the five primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia
(4)the best interests of minor children in Australia;
(5)expectations of the Australian community.
Paragraph 9(1) of Part 2 sets out other considerations. These include, but are not limited to:
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interests.
Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations and specifically provides that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.
EVIDENCE
Applicant’s Criminal Record
A complete statement of the Applicant’s criminal record as reported by the Australian Criminal Intelligence Commission on 29 August 2023 was included in the G Documents.[17]
[17] G6 pp 44-5.
The Applicant’s record includes two appearances before the criminal courts.
a.On 28 April 2023 he appeared before the Melbourne Magistrates Court charged with the offence of affray. The charge was adjourned without conviction for two years and the Applicant made a donation of $500 to a charity.
b.On 31 July 2023, the Applicant was convicted in the County Court of Victoria to one charge of using a carriage service to procure a person under 16 years of age to engage in sexual activity with another person and was sentenced to 19 months imprisonment subject to conditions that he be released after six months on entering a $1,500 good behaviour bond for 18 months under section 20(1)(b) of the Crimes Act.[18]
Witnesses
[18] G6 p 45 and G7 pp 51-2.
The Applicant
The Applicant provided a statutory declaration dated 20 January 2025 to the Tribunal,[19] which he affirmed in his oral evidence.
[19] Exhibit A1.
Xiaojun (Amiee) Yu, the Applicant’s wife
Ms Yu provided an unsworn written statement to the Tribunal,[20] which she affirmed in her oral evidence.
[20] Exhibit A4 at Annexure C.
Mr Watson-Munro, Consultant Psychologist
In a written report dated 24 December 2024[21] Mr Watson-Munro expressed the following opinion regarding the Applicant:
1. [The Applicant] presents as a co-operative though somewhat depressed and anxious man, who is currently before the Administrative Review Tribunal in relation to review of decision not to revoke visa cancellation made under section 501(3A) of the Migration Act 1958. His background history has been extensively documented. I note that as a consequence of being convicted of Use carriage service to procure <16 for sex with another, pursuant to section 20(1)(b) Crimes Act 1914, and sentenced to a term of 19 months’ imprisonment, of which he served 6 months. His release to the community was predicated on a number of stringent conditions. I note that he is now on the Sex Offenders Register. Beyond those matters, I note a charge for Affray in 2023 without conviction for which he received a $500 fine. In addition to speaking to [the Applicant] with the assistance of an interpreter, I took the opportunity to speak with his wife on 19 December 2024, which was of considerable benefit in terms of firming up on diagnostic conditions and corroborating his claims that his wife loves him and is fully supportive of him. At examination [the Applicant] expressed appropriate remorse for his behaviour.
2. Beyond his exposure to the criminal justice system, [the Applicant] appears to have led a primarily pro-social life. He completed his secondary education in Melbourne and then attended Melbourne University for a time, where he was studying a Bachelor of Architecture. As it eventuated, he did not complete his studies, opting instead to move into hospitality, where he and another established a Japanese restaurant in King Street in the CBD. Following this he moved into the real estate industry where he has worked ever since in varying capacities. [The Applicant] was self employed at the time of his arrest and as a consequence of one of the businesses he established, his family has been able to derive income as a means of support. He married on 21 January 2012 and has been with his partner for a total of 17 years. They share two daughters aged 8 and 4 years. Discussions with his wife confirm her ongoing support of [the Applicant] and in addition, her belief that he is truly sorry for his past conduct. She believes that he has insight into his wrongdoing and that he is feeling very guilty regarding the effect of his offending, incarceration and now possible deportation, affecting the family constellation. I note that they share two daughters who are unaware of his current circumstances. His wife describes a close bond and loving relationship between [the Applicant] and his children, in addition to herself.
3. It would appear that [the Applicant] was destabilised by the COVID-19 pandemic. He reported that he became isolated and depressed and in this setting, a prior tendency to drink alcohol arising from his exposure to this culture in the real estate industry dramatically escalated. He continued drinking for a period of time, with this impacting upon his judgment, as well as his mood, until he sought treatment from a psychologist. He underwent 10 sessions of therapy, which assisted him in reducing his alcohol consumption. I have not however sighted any documentation referable to his treatment or progress therein. It is clear that during this period he was highly depressed and that his judgment was impacted due to his mood state and the compounding impact of alcohol abuse.
4. On a more positive note [the Applicant] has not used illicit drugs. He reported that he is keen for treatment in the Australian community if he is permitted to remain here. His judgment has improved as a consequence of him no longer consuming alcohol. He has positive aspirations for the future in terms of returning to the Australian workforce. Reinforcing his motivation, [the Applicant] stated that he would find it impossible to now live in China, in the context of having no logistic or emotional connection with that country. He stated that he has lived his entire adult life in Australia and strongly identifies with his way of life here.
5. In addition, he enjoys the support of his wife and children. He has high anxiety that if he is separated from them, that they will suffer psychological harm, as will be the case for him. It is unlikely that he would receive the type of treatment that he would benefit from in China. Notwithstanding his offending is of a sexual nature, I do not believe that he requires specific treatment for this. I say this advisedly, in the setting of his age, an absence of prior convictions for matters of this nature, his prior attendance with a psychologist, his expressions of remorse and the considerable structure and supervision surrounding his marriage and his employment.
6. Arising from these factors, I believe that the risk of [the Applicant] reoffending in the Australian community is now trending from Moderate to Low.
PRIMARY CONSIDERATIONS
[21] Exhibit A3 pp 8-10.
Protection of the Australian Community
Paragraph 8.1(2) of Part 2 of Direction 110 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 the absence of a conviction the Tribunal does not include a consideration of the charge of affray in assessing the protection of the Australian community under Paragraph 8.1(2) of Part 2 of Direction 110.
The relevant consideration is the nature of the offending for which the Applicant was convicted on 31 July 2023.
Nature and Seriousness of the Applicant’s Conduct to Date
Paragraph 8.1.1(1) of Part 2 of Direction 110 provides a description of what is considered ‘very serious’ and ‘serious’ conduct. Paragraphs 8.1.1(1)(a)(i)-(iii) list certain crimes which are to be regarded as ‘very serious’ and includes crimes of a sexual nature against women and children.
The descriptions of serious crimes given in paragraphs 8.1.1(1) are not exhaustive, and paragraphs 8.1.1(1)(c)-(i) set out a range of factors decision-makers must consider in assessing the nature and seriousness of the criminal offending or other conduct to date. This includes, for relevant purposes in this case:
(g)the sentences imposed by the courts for a crime or crimes;
(h)the impact of the offending on victims and their family;
(i)the frequency of the Applicant’s offending;
(j)the cumulative effect of any repeated offending;
(k)whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending; and
(l)whether the Applicant has re-offended since being formally warned, or otherwise made aware, in writing, about the consequences of further offending in terms of his migration status.
The Respondent concedes that:
There is no evidence that the applicant's offending is frequent or increasing in seriousness (paragraph 8.1.1(1)(e) of Direction 110), and there is no evidence of a cumulative effect of repeated offending (paragraph 8.1.1(1)(f) of Direction 110). Similarly, there is no evidence that the applicant has provided false or misleading information to the Department (paragraph 8.1.1(1)(g) of Direction 110). Notwithstanding, the Minister contends that the nature and seriousness of the applicant's offence is such that this consideration should weigh heavily against a finding that there is another reason to revoke the cancellation of the applicant's visa.[22]
[22] RSFIC [28].
In assessing the seriousness of the Applicant’s offending, the Tribunal notes that the offence for which the Applicant was convicted carries a maximum sentence of 15 years imprisonment.[23] The Applicant’s actual sentence of 19 month’s imprisonment (albeit subject to release on recognisance after six months) was substantial.
[23] G7 p 47.
Custodial sentences reflect the objective seriousness of the offences involved and are generally a last resort in the sentencing hierarchy.[24]
[24] See PQSM and Minister for Home Affairs (Migration) [2019] AATA 603 at [46], Re Harrison v Minister for Immigration and Citizenship [2006] AATA 47 at [63], see also BNPB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 730 (6 April 2023) at [80].
It is also relevant that the Applicant’s offending involved persistent conduct over a period of several weeks in which the Applicant engaged in a sexualised communication with a 15-year-old girl. The sentencing remarks of Judge Karapanagiotidis record that the Applicant initiated contact with the victim via an online social media platform and sent her over 29 messages. In the knowledge that the victim was 15 years old, the Applicant:
a.asked her if she was interested in a part-time job as an escort which involved playing a part-time girlfriend and ‘need bang bang’;
b.encouraged her to lie about her age;
c.obtained details of her age, height and bust size;
d.asked if she was a virgin;
e.asked her to send him photographs of herself to be used in marketing her to clients;
f.asked her to describe the colour of her nipples and to say whether she was good at oral sex;
g.asked her if she was willing to engage in sexual activity without a condom; and
h.offered to get someone else to obtain contraceptive pills for her.
Judge Karapanagiotidis observed in her remarks that the Applicant’s communication with the victim was not made with the intention of procuring her to engage in sexual activity with himself. Her Honour characterised the nature of the communication as follows:
… I accept that your engagement with her from the outset was plainly a ‘commercial one’. To this extent, your offending can be distinguished from those cases where communications are pursued within the context of a sexual interest or gratification in underage children or within the context of a relationship, involving a breach of trust or authority. Reference to these matters is not intended in any way to suggest that your communications and conduct with ZW were other than inherently exploitative and harmful in nature or that the commercial context of your offending is mitigatory.[25]
[25] G7 p 54 [31].
The Tribunal does not accept that the seriousness of the Applicant’s conduct is diminished by the fact that he was motivated by financial gain rather than personal sexual gratification. His approaches to the victim were made with the intention of procuring the victim to engage in sexual activity (including possible unprotected sexual contact) with a variety of men whom he regarded as his clients. The potential psychological impact on the victim of her exposure to the Applicant’s inappropriate communication is unlikely to be materially different whether the sexual contact contemplated was with the Applicant or other unidentified male strangers. Had the victim actually engaged in the activity proposed by the Applicant it would have exposed her to significant risk of psychological and possibly physical harm.
The fact that the Applicant sought to profit financially from the prostitution of the victim indicates the exploitative nature of his conduct and adds an element to its seriousness. It is also clear from the sentencing remarks that the Applicant sought to take advantage of the victim’s vulnerability by offering her substantial financial inducements when she ‘had indicated her dire financial circumstances’.[26]
[26] Per Justice Karapanagiotidis, G7 at [31(e)].
Having regard to these matters, the Tribunal is satisfied that the Applicant’s past criminal conduct was predatory in nature and very serious. The Applicant concedes that his conduct was very serious.[27]
The risk to the Australian community should the Applicant commit further offences or engage in other serious misconduct
[27] ASFIC at [4(b)].
Paragraph 8.1.2(2) of Part 2 of Direction 110 requires the decision-maker, in assessing whether the Applicant represents an unacceptable risk of harm to the Australian community, to have regard, cumulatively, to:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.
Nature of the Harm
Her Honour Justice described the Applicant’s offending as ‘inherently exploitative and harmful in nature’.[28]In her sentencing remarks Her Honour noted:
… There is no victim impact statement in this matter. I accept that there is a presumption of harm in such cases and that it arises regardless of whether the sexual activity was intended to be between the child and the offender or – as in this case – another person.[29]
[28] G7 p 54 at [31].
[29] Ibid p 52 at [30].
The Tribunal is satisfied that the Applicant’s conduct in contacting the victim (a minor) and engaging in sexually explicit discussions with her on the basis that she would not disclose those discussions and with the intention of encouraging her to enter into prostitution, exposed the victim to psychological and emotional harm. In addition, had the Applicant’s intentions been fulfilled and the victim taken up his offer to work for his escort service she would have been exposed to further psychological and emotional harm, and had she engaged in unprotected sexual activity as discussed with the Applicant, serious physical harm was possible.
Should the Applicant engage in further conduct of this kind it would expose other young persons to significant risk of psychological, emotional and possibly physical harm.
Likelihood of reoffending
In assessing the risk of reoffending, the Tribunal is mindful of the comments of the Full Court in CKL21 v Minister for Home Affairs that in curial and administrative decision-making, the task of assessing the degree of likelihood of an event occurring in the future ‘must be based on a logical process of reasoning based on the known facts’.[30]
[30] (2022) 293 FCR 634 [74], citing the High Court’s decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575.
Accordingly, the Tribunal has approached the assessment of risk having regard to a series of factors.
Remorse
The Applicant plead guilty to the charge for which he was convicted and the sentencing judge noted that his ‘... plea of guilty demonstrates your willingness to facilitate the course of justice. It also represents an acceptance of responsibility for your offending and remorse’.[31]
[31] G7 pp 54-5 at [35]-[37].
The Crown Submissions on Sentencing noted that:
a.the Applicant’s guilty plea was an early one which had heightened utilitarian value in the circumstances, although the plea was entered in the face of a strong prosecution case; and
b.the Applicant co-operated with police by providing access to his electronic devices and making limited admissions in his interview, but denied the offending.[32]
[32] SG49 at [19]-[20].
Mr Watson Munro observed that:
At examination he expressed a deep sense of remorse regarding his behaviour. He acknowledged escalating anxiety arising from his uncertain future here.[33]
[33] Exhibit A3 p 5.
Ms Yu said in her statement that the Applicant:
... has demonstrated sincere remorse for his actions in multiple ways. From the very beginning, he fully cooperated with the investigation, showing his willingness to take responsibility for his mistakes. During the first court hearing, he chose to plead guilty and made it clear that he was ready to accept the consequences of his actions. This proactive approach reflects his understanding of the severity of the situation and his commitment to accountability.[34]
[34] Exhibit A4 at [44].
In a statutory declaration dated 28 September 2023, which he provided to the Respondent in support of his revocation application, the Applicant expressed his remorse as follows:
I understand the serious nature of my offence. I deeply regret my actions and have felt this weight for the past three years. It haunts me daily, knowing the hurt I've caused, especially as a father to two girls. I chose to plead guilty at an early stage of the proceeding. I've since shut down all related operations and promise never to venture in that direction again. I'm grateful nothing worse happened and from the bottom of my heart, I thank the mother who reported me to the Police, which avoided more serious consequences. I will never commit these offences, regardless of my visa status. My focus after release will be on my family, and I also aim to give back to the community through volunteer work, which I am permitted. I truly hope to atone for my mistakes for the rest of my life.[35]
[35] G10 p 84.
The Applicant further expressed his contrition in his statement of 20 January 2025:
I no longer wish to dwell in self-pity or anger. I have resolved to distance myself from negative influences and lead a calmer, more balanced life. I have also engaged in small acts of charity, such as donating to cancer research centres and assisting those less fortunate, as a way to atone and channel my energy positively.[36]
[36] Exhibit A1 at [41].
The two charitable donations were $715 to the Smith Family and $120 to the Cancer Council each made in July 2023.[37] The genuineness of the Applicant’s contrition in this regard is questionable. In his oral evidence he conceded that the donation to the Smith Family was in discharge of his obligation to make a charitable donation as part of the court order resulting from the adjournment of his affray charge on 28 April 2023.
[37] G38 and G39 pp 275-8.
The Tribunal accepts that the Applicant is remorseful in the sense that he deeply regrets the consequences of his actions for himself, and his wife and children. He expressed concern for the victim, but overall he sought to minimise the gravity of his offending. He made almost no mention in his written statements of the Smallhouse escort business in which he sought to involve the victim. In his oral evidence he characterised the escort business as a small private club for a few friends to which a few girls were invited for social activities such as karaoke. He said sexual activity was peripheral and a matter of choice for members. He asserted that any profit he made was used to subsidise the entertainment of the members.
In contrast, the Summary of Prosecution Opening Upon Plea presented to the County Court included statements by the Applicant in his dealings with the victim which suggested a more extensive and commercial nature of the business. The statements included that:[38]
[38] SG48 pp 151-6.
a. he would arrange good clients for her;
b. he pays an hourly rate of $300 or $500 for two hours;
c. ‘grown-up girls’ are paid a minimum of $15,000 per week;
d. he offered the best prices in Australia;
e. he has clients who make minimum deposits of $10,000;
f. he had a’ few 14-15 year old girls previously’;
g. he needed photographs so that he could market the victim to clients;
h. he had a lot of clients during the day and that the victim could get 2-3 clients per day;
i. one girl earns $20,000 per week because there are 6 overnight jobs per week;
j. sex without a condom pays $1,500 per hour;
k. girls get 50% in hand and the victim would get half at least depending on how much he asked for her; and
l. she could sleep overnight with clients on Fridays and Saturdays.
The Summary included the following description of the business as stated by the Applicant during the police interview:
… a club or escort service called Smallhouse which has paid members who participate in recreational activities such as karaoke and he looks for girls, some students, that will accept money or gifts to join them. He advertises gifts such as luxury bags on Tic Toc [sic] to have girls contact him. Club members pay a fee and can attend events at which girls would attend.
The Summary reported that the Applicant had a Smallhouse logo as the avatar for his WeChat account and a website – ozsmallhouse.com. The ‘About Us’ section of the website is written in Chinese and (as translated) describes Melbourne smallhouse as ‘...the most professional platform for escort service’ which ‘...connects clients to our quality girls who must be either students or graduates in Australia. The service matches the need of client with the requirement of the girl, ensuring privacy and security for both sides’ and the... ‘Melbourne ‘smallhouse’ creates the most reliable, genuine student escort platform of highest quality. No doubt we are the only student escort platform in Melbourne and in Australia.’[39]
[39] Ibid pp 159-60 at [31].
The Applicant’s offending was characterised by the sentencing judge as ‘commercial’ in nature.
The Applicant asserted in his oral evidence that he had lied to the victim to encourage her to engage in the escort business. While that may be true in some respects, the Prosecution Summary was based on the text of messaging on the Applicant’s phone, from the records of interview, and direct observations of the website by the police. It formed the basis of the charge to which the Applicant plead guilty. On the basis of this summary the Tribunal accepts that, notwithstanding some exaggeration by the Applicant in speaking to the victim, the Smallhouse business was a more substantial commercial operation than the Applicant had attempted to portray in his oral evidence.
In his oral evidence, the Applicant confirmed that he had made a similar approach to a friend of the victim who was still at school, without making any attempt to verify her age. He stated simply that she looked 17 or 18. He also accepted that the Smallhouse business engaged girls who were students and he had accepted girls on the basis that they looked to be over 18. He claimed the statements made to the victim noted in the Prosecutor’s Summary that he had engaged other 14 year olds was a lie he told to the victim to encourage her to work for him. On the basis of these matters, the Tribunal is not satisfied that the victim was the only underage girl he sought to engage in the business.
The Applicant, in his statement of 28 September 2023, stated that he had closed down the Smallhouse business ‘and promise[d] never to venture in that direction again’.[40]
[40] G10 p 84.
A file note of the Applicant’s case management discussions with a prison officer on 1 October 2023 records that:
I asked [the Applicant] about his occupation outside. He said he is a property developer/broker. Side by side he runs an Escort business online. I asked him if all his businesses were legal and does he want to continue after getting released… He said all his businesses are legal and he want’s to continue his businesses but will reform some of its content and rules. I asked him if he wanted to develop any more skills while he is in prison. He said he is very eager to learn new things, especially he wants to improve his English so that he can run his business un [sic]a better way outside.[41]
[41] SG14 p 55.
A further file note of the Applicant’s case management discussions with a prison officer on 10 November 2023 records that:
I then asked him about Goal 2 on his current local plan agreement which is To gain knowledge and skills to increase my employment opportunities post release… [the Applicant] said that he was currently in full time education as he has 2 businesses on the outside and he wants to improve his English so that it would help him with his businesses. He said that he was making contacts with guys in Dunmore so that they may be able to work with him in his property development business.[42]
[42] Ibid p 51.
The Applicant was asked to comment on these file notes in his oral evidence to the Tribunal. He said that he recalled meeting with two prison officers in about October 2023 but couldn’t recall what he said to them. He denied that he intends to run the escort business after he is released or that he intended to do so in October 2023. The Tribunal is satisfied, on the basis of the two prison officer’s notes, that at least by October 2023 the Applicant contemplated resuming the Smallhouse business when released.
The Tribunal accepts the Applicant’s evidence that he has now ceased to operate the Smallhouse business and has closed the website. However, considering the evidence overall, the Tribunal is not satisfied that the Applicant’s remorse extends to a strong rejection of the idea of him resuming his involvement in a commercial escort service or similar business in the future, or that he has genuine remorse for not exercising care in the past to avoid involving minors in sexual activity in the business.
The issue of whether or not the Applicant may again engage in an escort service business in the future is relevant to the risk of re-offending. The nature of his offence requires the establishment of the appropriate commercial context.
Conduct in prison and detention
The records produced by the Respondent[43] under summons confirm that the Applicant has had a clean record while in prison and detention and has been co-operative with authorities. He stated in his statutory declaration of 28 September 2023 that while in prison he:
... has been active in learning, taking up subjects like English, Cleaning, and Engineering. I've secured a White Card for construction and am on track to receive a Food Safety permit, Traffic Management Certificate in October, and a First Aid certificate in November. I'm dedicated to ensuring I have better job prospects for the future.[44]
Drugs and alcohol
[43] SG1-46 pp 1-146.
[44] G10 p 84 at [7].
The evidence does not suggest that the Applicant has ever engaged in illicit drug use.
The Applicant’s evidence in relation to his use of alcohol is inconsistent and he was an unconvincing witness in attempting to reconcile inconsistencies in various statements made in relation to his alcohol use.
The Applicant admitted in his statement of 20 January 2025[45] that alcohol was a significant contributing factor to his involvement in the circumstances giving rise to his charge of affray, but he claimed that following the affray incident he made a ‘firm commitment to abstain from alcohol or consume it responsibly’.[46] In contrast, Mr Watson-Munro’s reported that the Applicant claimed to him that he was a heavy binge drinker with his alcohol consumption commencing in 2013, although he noted that Ms Yu had said the Applicant had eased up with his drinking about 12 months prior to his arrest, in the context of seeing a psychologist.[47] Mr Watson -Munro concluded that it was clear that ‘…during this period [being during the Covid-19 pandemic] he was highly depressed and that his judgment was impacted due to his mood state and the compounding impact of alcohol abuse’.[48]
[45] Exhibit A1.
[46] Ibid at [32].
[47] Exhibit A3 p 7.
[48] Ibid p 9 at [3].
In his statements of 28 September 2023[49] and 20 January 2025,[50] the Applicant did not assert that drugs or alcohol played a direct role in the offending for which he was convicted on 31 July 2023. The Applicant’s wife explained his offending by stating that at the time of the offence the Applicant was ‘under significant pressure that deeply affected his mental state and decision-making’.[51]
[49] G10 pp 84-5.
[50] Exhibit A1.
[51] Exhibit A4 at [36].
It is not suggested that the Applicant’s use of drugs or alcohol was a material causal factor of the offending for which he was convicted on 31 July 2023. At best, it was suggested by Mr Watson-Munro that at the time of the offence the Applicant’s judgement may have been affected by a combination of his mood state and heavy drinking. However, this conclusion should be treated cautiously as it was based on the Applicant’s claim to Mr Watson-Munro that he had been drinking heavily at the relevant time. The Applicant’s evidence to the Tribunal was that his consumption at the time of the offending was limited to a glass of wine with his wife before meals. Mr Watson-Munro accepted in his oral evidence to the Tribunal that if he had been made aware that the Applicant was not drinking heavily, he may have reached a different conclusion.
The Applicant now claims he undertook alcohol rehabilitation counselling in February/March 2022 and has ceased drinking alcohol. He has been incarcerated in prison or immigration detention since 31 July 2023. Records produced by the Respondent do not indicate any use of drugs or alcohol while incarcerated.
Having regard to these matters, the Tribunal is satisfied that the Applicant’s current abstinence from alcohol use does not materially affect the risk of him reoffending in a similar matter.
Rehabilitation
The Respondent asserts that the Applicant's detention records indicate that he has not attended mental health assessments whilst in detention.[52] The evidence does not suggest that the Applicant’s offending was affected by any mental health issues which would require assessment or be amenable to treatment.
[52] SG31 pp 86-92.
The Applicant has produced a statement dated 5 February 2025 from a clinical psychologist confirming the Applicant’s attendance at 7 sessions of ‘intensive psychological counselling and assessment’ between 7 February 2022 and 29 March 2022. This was stated by the Applicant to be in relation to his alcohol consumption.
Given that the offending was essentially commercial in nature and has not been shown to be substantively linked to any mental health issue or to alcohol consumption, the Tribunal is satisfied that the issue of rehabilitation is of little relevance to the assessment of risk of re-offending.
Supervision
As a result of his conviction the Applicant is now a registered sex offender[53] under the Victorian Sex Offenders Registration Act 2004 (Vic) and will be subject to ongoing restrictions and supervision, including a prohibition on child-related employment.
[53] G22 pp 121-9.
In addition, the terms of the recognisance release order (Order) made by the County Court included conditions pursuant to section 20(1B) of the Crimes Act that the Applicant:
(a) be subject to the supervision of a probation officer;
(b) obey all reasonable directions of the probation officer;
(c) not travel interstate or overseas without the written permission of the probation officer; and
(d) undertake such treatment or rehabilitation programs that the probation officer reasonably directs.[54]
[54] G7 p 60 at [62].
The Order operates for a period of 18 months from the date of the Applicant’s release from prison in January 2024 and so will continue to apply until July 2025 should the Applicant be released from immigration detention.
Protective Factors
Consultant psychologist Mr Tim Watson-Munro commented positively on the existence of positive pro-social factors in place for the Applicant. Mr Watson-Munro said:
It is clear from my assessment that there are now a number of protective factors in place which will reduce the risk of [the Applicant] reoffending should he be permitted to return to live in the Australian community. This includes his commitment to his 35 year old wife and their two daughters, aged 8 and 4 years, his stable employment, his expressions of remorse and the fact that he is no longer abusing alcohol. He reported that during the period of his offending conduct, he was a heavy binge drinker and attendant to this acknowledged that his judgment was impacted.[55]
[55] Exhibit A3 p 2.
The Tribunal notes that the Applicant did not assert in his oral evidence that he was a heavy binge drinker at the time of the offending and that he had misinformed Mr Watson-Munro. The other protective factors identified by Mr Watson-Munro were present at the time of the Applicant’s offending and had not deterred him in the past.
Professional Assessments
In her sentencing remarks, Her Honour Justice Karapanagiotidis expressed a positive view regarding the Applicant’s prospects for rehabilitation. She concluded:
Weighing up all matters, including your education, work history and family circumstances and support, I find that you have very good prospects of rehabilitation.[56]
[56] G7 p 58 at [55].
In his report of 24 December 2024 Mr Tim Watson-Munro, opined that, having regard to the factors discussed in his report, the risk of the Applicant reoffending is 'trending from moderate to low'.[57] The Tribunal derives little assistance from the report of Mr Watson-Munro in assessing risk. The report does not discuss the findings of the Court that the Applicant acted for commercial reasons in approaching the victim, and the information before Mr Watson-Munro incorrectly claims that the Applicant had a history of alcoholic blackouts and that his alcohol consumption had escalated at the time of the Covid-19 pandemic, around the time of his offending. Mr Watson-Munro acknowledged in his oral evidence that the information regarding the Applicant’s alcohol consumption was a critical factor in his assessment.
[57] Exhibit A3 p 10 at [6].
Consideration
The Respondent contends that the risk of the Applicant re-offending is moderate to low, consistent with Mr Watson-Munro’s psychology report.
The Tribunal accepts that there are a number of factors which suggest that the Applicant is unlikely to re-offend in the manner of his conviction on 31 July 2023. He has experienced periods of imprisonment and detention, and been subject to the cancellation of his Visa and faced the prospect of deportation as consequences of his offending. These matters are likely to act as a strong deterrent to further offending. The Applicant has generally behaved in a constructive and pro-social manner while on remand and in prison and detention. If released into the community he will be subject to ongoing supervision as a registered sex offender and under the terms of his release order (at least until July 2025). These matters are likely to reduce the risk of further offending.
The Applicant has a number of protective factors which will assist him to avoid re-offending, particularly his TikTek Lab business and the support of his wife and children. The Tribunal notes however, that these factors were present at the time of his offending and they did not prevent him from offending on that occasion. They attract less weight accordingly.
The Applicant has expressed remorse for his offending, but the Tribunal is not convinced that it can rule out the possibility that he will re-establish an escort business like Smallhouse in the future. This would enliven the commercial context in which his prior offending occurred. The Applicant has indicated that he knows it is illegal to engage minors in such a business and his conviction can be expected to focus his attention on the issue. Nevertheless, his past conduct has demonstrated a careless disregard for taking proper measures to avoid engaging with minors in that context.
Taking all of these matters into account it is the Tribunal’s assessment that the Applicant poses a moderate to low risk of re-offending if released into the community. Nevertheless, that risk must be weighed against the nature of his past offending which was very serious and if repeated would threaten significant psychological harm to vulnerable members of the Australian community.
The protection of the Australian community is a primary consideration under Direction 110 and Paragraph 8.1(1) identifies the safety of the Australian community as the highest priority of the Australian Government. Accordingly, the Tribunal gives this consideration substantial weight in favour of not revoking the cancellation of the Applicant’s Visa.
Family Violence
Paragraph 8.2(1) of Direction 110 states:
The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
There is no evidence that the Applicant has engaged in any family violence as defined in paragraph 4(1) of Direction 110, and accordingly this consideration is not relevant.
The Strength, Nature and Duration of Ties to Australia
Paragraph 8.3 of Part 2 of Direction 110 requires that decision-makers:
(1) …must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) …must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant arrived in Australia in August 2006 at the age of 18 years and has resided in the country continuously since that time. Movement records produced by the Respondent show that the Applicant has travelled outside Australia on 21 occasions since August 2006 and was outside Australia for approximately 85 weeks in total. The Applicant confirmed in his evidence that on each of these occasions, save one when he travelled to Bali, he travelled to the PRC.
The Respondent accepts that the Applicant did not start offending soon after he arrived in Australia and that he has contributed positively to the Australian community through his employment and business ventures.
In 2011 the Applicant invested in a Japanese buffet restaurant which was forced to close in 2013.[58] He operated an escort agency business called Smallhouse until 2020. He currently operates a marketing and digital solutions company called TikTek Lab which specialises in 3D rendering, website creation, and internet product development and employs approximately three staff members.[59] He has also conducted a property development business named Great Wall Group Pty Ltd from 2015.[60]
[58] Exhibit A1 at [13]-[16].
[59] Ibid at [28].
[60] See G33-35.
The Applicant also owns a residential property in Melbourne which is used for his family home.[61]
[61] Exhibit A4 at [9].
The Applicant has a wife and two daughters who are all Australian citizens.
The Respondent accepts that the Applicant's immediate family may be impacted if the Tribunal affirms the decision under review.
The Applicant’s wife, Ms Yu, gave evidence that if the Applicant… ‘is forced to leave Australia, our financial situation would deteriorate further. I would be compelled to return to work, leaving me unable to properly care for our children. Additionally, we would need to drastically downsize our living conditions, sell family assets, and relocate to a lower-cost’.[62]P
[62] Exhibit A4 at [19].
She stated further that:
[52] I sincerely do not wish to relocate our children to China. They have grown up in Australia, and their entire educational foundation and social development are deeply rooted here. The environment in Australia provides them with opportunities and a sense of belonging that cannot be replicated elsewhere.
[53] Relocating to China would present numerous challenges for our children. Adapting to a new educational system would be overwhelming for them, as it is vastly different from what they are accustomed to. Furthermore, the social dynamics in China could be challenging, particularly as the country’s acceptance of individuals with foreign backgrounds has been declining. I fear that our children may face discrimination or bullying due to their upbringing and perceived differences, which could have a detrimental impact on their self-esteem and mental well-being.
[54] The risk of our children feeling isolated and unwelcome in a new environment is too significant to ignore. In Australia, they have the support of their school, friends, and a community that understands their needs and values their contributions. For these reasons, I strongly believe that Australia is the only place where our children can continue to grow, thrive, and build a positive future.[63]
[63] Ibid at [52]-[54].
The Applicant gave evidence of having made two relatively modest charitable donations,[64] the larger of which was required under the terms of a court order. Otherwise, he did not provide evidence of any wider community involvement.
[64] G38-39 pp 275-8.
On the basis of this evidence, the Tribunal is satisfied that the Applicant has strong and enduring ties to the Australian community through his immediate family and his business ventures. This is a primary consideration under Direction 110 and the Tribunal gives it substantial weight.
Best Interests of Minor Children affected by the Decision
Paragraph 8.4(1) of Part 2 of Direction 110 requires that decision-makers must make a determination about whether refusal under s 501 or non-revocation under s 501CA is, or is not, in the best interests of a child affected by the decision.
In considering the best interests of the child, paragraph 8.4(4) requires specific factors to be considered. The consideration of the factors relevant in this case are set out below:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has identified two minor children whose best interests may be affected by a decision not to revoke the cancellation of his Visa, being his two daughters aged 8 and 4.
Prior to 31 July 2023 the Applicant fulfilled a parental role with respect to both children. His relationship with the children was described by Ms Yu as follows:
[The Applicant] has a loving and nurturing relationship with our children. When he was with us, he took on the daily routines of dropping the kids off and picking them up from school, and he actively participated in their extracurricular activities. His involvement allowed our eldest, who is very active and enjoys a variety of activities, to thrive without us feeling overwhelmed by the level of attention and care required. Meanwhile, I was able to focus on caring for our youngest. [The Applicant’s] presence made it possible to strike a balance in our family life, ensuring that both children felt supported and valued.
[The Applicant] has always been deeply involved in our children’s growth and development. Whether attending their school events, cheering them on in their activities, or simply being present for them emotionally, he has been a steadfast and caring father. [65]
[65] Exhibit A4 at [23]-[24].
The Tribunal is satisfied that the Applicant played a positive parental role his older daughter prior to his imprisonment in July 2023, but direct contact with his younger daughter has been limited. She was born in September 2020,[66] and lived with her grandparents in the PRC from January 2023 to January 2024.[67] The Applicant has been incarcerated in prison or immigration detention since 31 July 2023, but he says that his younger daughter regularly visits him in detention with Ms Yu. Notwithstanding these past limitations, the Applicant is likely to play a positive parental role for both daughters in the future. Both children are relatively young with many years ahead before they turn 18. The important interest for each of them is the opportunity in the future to have a meaningful relationship with their father as they grow and develop.
[66] G27.
[67] Exhibit A1 at [22].
If the Applicant is deported to the PRC his family will face a difficult choice, either to relocate to the PRC or to remain in Australia. In either case there would be negative effects on the two children. If they relocate to the PRC they would have the positive benefit of continuing contact with their father, but would be denied the benefits of their Australian citizenship and inevitably face difficulties in adjusting to a new culture. If they remain in Australia it is likely that their contact with their father would be limited to occasional visits and electronic communication. The Tribunal does not underestimate the adverse psychological and emotional effects on the two children of prolonged separation from their father and on the financial impact of the separation on the family, and its likely adverse affects on the children. The Tribunal also accepts the negative implications for the children of relocating to the PRC as stated by Ms Yu in her statement,[68] and referred to at paragraph [99] above.
[68] Exhibit A4 at [52]-[54].
Accordingly, the Tribunal is satisfied that the best interests of the Applicant’s daughters would be served by the revocation of the cancellation of the Applicant’s Visa. This is a primary consideration under Direction 110 and the Tribunal gives it substantial weight.
Expectations of the Australian Community
Paragraph 8.5 of Part 2 of Direction 110 provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a) acts of family violence; or
b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community
Paragraph 8.5(4) states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
The majority of the Full Court of the Federal Court has explained that paragraph 11.3 of the former Direction 65, which mirrors the wording of paragraphs 8.5(1) and (2) of Direction 110:
[75] … should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasizes that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
[76] The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[69]
[69] FYBR v Minister for Home Affairs (2019) 272 FCR 454 [75]-[76].
The Applicant has engaged in serious criminal conduct of a sexual nature against a 15-year-old child. The nature of the offending was predatory and intentional. It was conduct engaged in for commercial reasons to achieve personal financial gain for the Applicant. It was conduct raising serious character concerns.
The deemed expectation of the Australian community as expressed in Paragraph 8.5 of Part 2 of Direction 110 is that a non-citizen who engages in such conduct should not be allowed to remain in Australia. This expectation applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community: paragraph 8.5(3). The Tribunal is satisfied that the expectation of the Australian community is that the cancellation of the Applicant’s Visa should not be revoked.
The expectation of the Australian community is a primary consideration under Direction 110. Whether or not it is appropriate to act in accordance with that expectation is a matter to be determined having regard also to each of the other considerations. In weighing each of the considerations the Tribunal attributes substantial weight to the expectation of the Australian community in favour of not revoking the cancellation of the Applicant’s Visa.
OTHER CONSIDERATIONS – PARAGRAPH 9 OF PART 2 OF DIRECTION 110
Legal Consequences of the Decision
Paragraph 9.1(1) requires decision-makers to be:
…mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
The Applicant accepts that if the cancellation of the Applicant’s Visa is affirmed he will be liable to remain in detention pending his removal to the PRC.[70] The Applicant does not make any claims that his circumstances enliven Australia's non-refoulement obligations and the evidence does not raise any suggestion otherwise.
[70] ASFIC at [29].
Accordingly, if the cancellation of the Visa is not revoked the Applicant will be liable for removal from Australia as soon as reasonably practicable, and pending removal, will remain in immigration detention under section 198 of the Act. The Tribunal also notes that once removed the Applicant will be subject to indefinite exclusion from Australia by operation of the Special Return Criteria in clause 5001(c) of Schedule 5 to the Migration Regulations 1994 (Cth).[71]
[71] Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003 at [12]-[14] (per Feutrill J).
The consequences of removal for the Applicant (and for his family) are matters which form the subject of other considerations under Direction 110. However, the legal consequences of deciding not to revoke the cancellation of the Applicant’s Visa do carry their own adverse impact on the Applicant. The Tribunal cannot say with any certainty how events may develop if revocation is refused. However, it can be expected that the Applicant will be subjected to a further period of immigration detention depriving him of his liberty. Depending on the legal processes that may ensue the period of detention may be extensive. Prolonged detention can be expected to have an adverse effect on the Applicant’s psychological health. If he is deported it is likely to exact a significant emotional toll.
These matters are considerations which favour revocation. While they are an expected consequence of the application of the law, they nevertheless warrant some moderate weight.
Extent of Impediments if Removed
Paragraph 9.2(1) of Part 2 requires that:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The Applicant contends that he would face significant impediments in establishing himself in the PRC. He stated:
We do not own property in China. Relocating would present significant challenges due to financial constraints and cultural differences. With no university degree or work experience in China, I would find it nearly impossible to secure a job with a decent income. Employment in low-paying jobs, such as food delivery, would yield only $1,000–2,000 per month for six days a week and 12-hour days, which would be insufficient to support my family.[72]
[72] Exhibit A1 at [25].
The DFAT Report quotes in-country sources in 2023 that reported '...despite China’s shift away from low-cost manufacturing, offshore operations and increases in youth unemployment, the labour market remained robust and could accommodate varying levels of skills and ambition’.[73]
[73] DFAT Report at [2.21].
The Applicant is a relatively young man. He is 38 years old. He has not identified any mental or physical health issues which would adversely affect him in re-establishing himself in the PRC. He lived in the PRC until he was 18 years old. Movement records establish that he travelled to the PRC on 20 separate occasions prior to 2019 and that he remained in the PRC for around 80 weeks in total. The Applicant’s mother lives in the PRC as do Ms Yu’s parents. The Applicant speaks Mandarin and has moderate English language skills. The Applicant has studied at a tertiary level in Australia and has demonstrated the ability to establish and manage several different businesses.
While the Tribunal acknowledges that the Applicant may experience some initial difficulties in re-locating to the PRC, the evidence does not identify any substantial impediments to him establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country).
The Applicant asserted further that relocation of his family would present its own impediments:
Our daughters have very limited proficiency in written Chinese. Integrating into local Chinese schools would be highly stressful and detrimental to their education. My wife and I, having spent most of our adult lives in Australia, also lack professional networks or opportunities in China.
Given China’s current economic slowdown and high unemployment rate, it would be impossible to afford international school fees, which average $50,000 per year. Without access to public schools, our daughters would face significant barriers to education.[74]
[74] Exhibit A1 at [26]-[27].
DFAT country information for the PRC indicates that the Applicant’s apprehension regarding access to public schools for his daughters is not well founded. The DFAT Report states that ‘[t]he Government of China regards all children born to a Chinese citizen parent as Chinese citizens, regardless of the country where the child was physically born’.[75]
[75] DFAT Report at [2.26].
In any event, it is an open question whether the Applicant’s family would join him in the PRC if he is re-located. Ms Yu’s evidence was that she does not wish to relocate to the PRC if the Applicant is removed from Australia. In particular, she stated that relocating to the PRC would present numerous challenges for her children.[76] The Applicant’s Counsel was emphatic in closing submissions that Ms Yu did not intend to relocate to the PRC.
[76] Exhibit A4 at [52]-[54].
Having regard to these matters the Tribunal is satisfied that the Applicant would experience some initial difficulties but would not face substantial impediments in establishing himself in the PRC.
Accordingly, the Tribunal gives limited weight to the considerations under Paragraph 9.2(1) of Part 2 of Direction 110.
Impact on Australian Business Interests
Paragraph 9.3(1) of Part 2 of Direction 110 requires:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant has been an active small businessman while in Australia, establishing a restaurant in 2011, a property development business in 2014 (GWGP), an escort agency in 2019 (Smallhouse), and a property marketing agency (TikTek Lab) in 2021. The Applicant’s evidence was that the restaurant had closed in 2013 and that he has closed the escort agency in 2020. He said that GWGP was to finalise its project in Bulleen within a few months. He gave evidence that the TekTek Lab business currently provides casual employment for 3 people and has a turnover of around $500,000 per annum. He said that TikTek Lab was struggling to survive while he was in detention and would close if he has to return to the PRC. He said that if his Visa is restored he plans to ‘...expand my marketing and digital services company, [TikTek Lab], and pursue my project to launch an instant messaging application. Through these ventures, I aim to create jobs, contribute to the economy, and pay taxes’.[77]
[77] Exhibit A1 at [43].
Given the nature of the Applicant’s businesses and the limited extent to which they are currently operating, the Tribunal is satisfied that the removal of the Applicant from Australia would have only a minor impact on Australian business interests.
There is no evidence that a decision not to grant the Applicant a Visa would compromise the delivery of a major project or important service in Australia.
Accordingly, the Tribunal gives this consideration minimal weight in favour of revocation.
Other Considerations
The considerations specifically referred to in Paragraph 9 are not exclusive and the Tribunal is not limited in considering other relevant matters.
The Applicant has not raised any other specific consideration and the Tribunal is satisfied that all of the matters relevant to the Applicant’s application have been considered in the context of the considerations specified in Direction 110.
CONCLUSION
In Gaspar v Minister for Immigration and Border Protection,[78] North ACJ elaborated on how to approach the exercise of the discretion under section 501CA(4)(b)(ii) of the Act:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.
[78] [2016] FCA 1166 [38].
Weighing the factors for and against revocation requires the Tribunal to give both primary and other considerations ‘appropriate weight’.[79] Paragraph 7 of Part 2 of Direction 110 provides guidance on how relevant considerations are to be assessed. It states that primary considerations should generally be given greater weight than the other considerations, but one or more primary considerations may outweigh other primary considerations.
[79] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 [23].
There are two primary considerations weighing in favour of revocation. The best interests of the Applicant’s two daughters is a factor strongly favouring revocation as is the strength nature and duration of the Applicant’s ties to Australia. In addition, there are three other considerations which carry some limited weight.
There are two primary considerations weighing against revocation, the protection of the Australian community from criminal or other serious conduct and the expectations of the Australian community that non-citizens will obey Australian laws while in Australia.
In assessing the relative weight to attribute to factors for and against revocation, the Tribunal has had regard to the principles set out in paragraph 5.2 of Direction 110 which provide the framework for decision making under section 501CA of the Act. These include that:
a.the safety of the Australian community is the highest priority of the Australian Government;[80]
b.non-citizens who engage in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia; and
c.the Australian community expects the Australian Government to cancel the visas of non-citizens, if they engaged in conduct that raises serious character concerns. regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
[80] See also Paragraph 8.1(1).
The Tribunal has also had regard to the principle in paragraphs 5.2 (5) and (6) as they relate to the Applicant. The Applicant had not been participating in, or contributing to, the Australian community for only a short period of time when he committed his offences. He had been in Australia for approximately 14 years and so does not warrant the low level of tolerance referred to in the principle. Similarly, the Applicant has lived in Australia for a substantial part of his life, although not from a very young age. On the basis of principle 5.2(6) he warrants a higher level of tolerance by reason of the time he has been in Australia.
Of particular relevance are principles 5.2(7) and (8). Principle 5.2(7) contemplates circumstances in which the nature of the non-citizen’s conduct is so serious or the harm that would be caused if it was repeated is so serious that even strong countervailing considerations may be insufficient to justify revocation. Principle 5.2(8) contemplates circumstances where the inherent nature of the conduct is so serious that even strong countervailing considerations may be insufficient to justify revocation even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
That the Applicant’s offending was very serious is not in dispute. The seriousness of the offence was recognised by the legislature in prescribing a maximum sentence of 15 years imprisonment under the Crimes Act. It was recognised as a very serious offence by the County Court of Victoria in imposing a sentence of 19 months imprisonment. The Applicant has admitted in his submissions that his offending was ‘undoubtedly a very serious offence’[81]
[81] ASFIC at [4(b)].
Moreover, the conduct of the Applicant in offending was of a serious nature, raising serious character concerns. The offence for which the Applicant was convicted on 31 July 2023 involved persistent conduct by the Applicant over several weeks. It was done in the knowledge that the victim was only 15 years old. It involved repeated discussions of a graphic sexual nature. It encouraged the victim to conceal their dealings and to lie about her age. It sought to prey on the victim’s lack of money by offering her the prospect of generous financial rewards. Above all it was directed at encouraging a child to become involved in prostituting herself for the ultimate financial benefit of the Applicant.
The Tribunal is satisfied that the nature of the offending raises serious character concerns about the Applicant. The nature of the Applicant’s offending and the harm that would result if it were repeated are so serious that the countervailing considerations are insufficient to outweigh considerations of the protection of the Australian community and the expectations of the Australian community so as to justify revoking the cancellation of the Applicant’s Visa.
Accordingly, the Tribunal is not satisfied that there is another reason why the discretion under section 501CA(4)(b)(ii) of the Act should be exercised to revoke the cancellation of the Applicant’s Visa. The correct and preferable decision under section 105 of the Administrative Review Tribunal Act 2024 (Cth) is to affirm the decision under review.
DECISION
Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision of the delegate of the Respondent of 29 November 2024 to not revoke the cancellation of the Applicant’s Employer Nomination Scheme (Class EN) (subclass 186) (Permanent) visa.
1. I certify that the preceding 147 (one-hundred and forty-seven) paragraphs are a true copy of the reasons for the decision herein of General Member R. West
.......................[SGD]....................................
Associate
Dated: 21 February 2025
Date of hearing: 17 February 2025 Counsel for the Applicant
Solicitors for the Applicant
Mr Nicholas Poynder
ProActive Legal
Counsel for the Respondent Mr Jamie Grant Solicitors for the Respondent Minter Ellison APPENDIX A - LIST OF EXHIBITS
List of exhibits
A1
Statutory Declaration of the Applicant dated 21 January 2025
A2
Flow counselling and consulting services letter dated 5 February 2025
A3
Report of Mr Watson-Munro dated 24 December 2024
A4
Statement of Mrs Xiaojun Yu dated 19 January 2025
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