Shi and Minister for Immigration and Citizenship

[2012] AATA 21

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2012] AATA 21

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2010/5110

GENERAL ADMINISTRATIVE DIVISION		)
Re		ZI PEI SHI

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Ms J F Toohey, Senior Member

Date17 January 2012

PlaceSydney

Decision The decision under review is affirmed.  

.....................[sgd]....................

Ms J F Toohey

Senior Member

CATCHWORDS

MIGRATION – visa cancellation – relevant considerations – substantial criminal record – violent offences – prospects of rehabilitation limited – real risk of serious offending in future – considerations in applicant’s favour outweighed by consideration of protection of community – decision under review affirmed.

Migration Act 1958, s 501

Direction [No. 41] - Visa Refusal and Cancellation under section 501

Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599

REASONS FOR DECISION

17 January 2012   Ms J F Toohey, Senior Member

1.      Mr Zi Pei Shi seeks review of a decision by the Minister for Immigration and Citizenship (the Minister) to cancel his visa because of his substantial criminal record.  The Minister contends that Mr Shi’s continued stay in Australia presents an unacceptable risk of serious harm to the Australian community.

2.      Mr Shi’s application for review was originally heard by the Tribunal, differently constituted, in January 2011.  The Tribunal affirmed the Minister's decision.  On review by the Federal Court, the Tribunal’s decision was quashed and the matter was remitted.  The orders of the court do not confine the review in any way.

BACKGROUND

3.      Mr Shi was born in China.  His mother, Mu Yunhua, came to Australia when he was four years old.  He arrived in Australia with his father, Shi Xian Fang, in March 1999, when he was 14.  He is an only child.  His parents separated shortly after he arrived and he lived mostly with his father.  He was granted permanent residence in January 2002.

4.      Since June 2002, Mr Shi has committed a number of serious offences for each of which he has been sentenced to terms of imprisonment.  Since November 2003, he has spent all but eight months in custody.  He was released from prison in November 2010, since when he has been in immigration detention in Villawood detention centre. 

5. On 18 November 2010, a delegate of the Minister cancelled Mr Shi’s visa on the ground that he did not pass the character test in s 501 of the Migration Act 1958 (the Act).

THE ISSUE

6. I have to determine whether Mr Shi’s visa should be cancelled on the ground of his substantial criminal record or whether the discretion in s 501(2) of the Act not to cancel his visa should be exercised in his favour.

LEGISLATION

7. By s 501(2) of the Act, the Minister may cancel a person’s visa if:

(a)the Minister reasonably suspects that the person does not pass the character test as defined in s 501(6)(a) of the Act; and,

(b)the person does not satisfy the Minister that she or he passes the character test.

8.      A person is taken not to pass the character test if she or he has a substantial criminal record.  A person has a substantial criminal record if she or he has been sentenced to a term of 12 months imprisonment or more, or has been sentenced to two or more terms of imprisonment totalling two years or more: ss 501(6) (a) and (7).

9.      It is common ground that, by reason of several prison sentences of 12 months or more imposed on Mr Shi, he does not pass the character test and the discretion to cancel his visa is thereby enlivened.

10. The discretion in s 501(2) must be exercised in accordance with Direction No. 41 - Visa refusal and cancellation (Direction 41) made by the Minister on 3 June 2009.  The Direction is made pursuant to s 499 of the Act and is binding on the Tribunal: sub-section 499(1) and (2A). 

11.     Direction 41 requires that due consideration be given to the objectives of the Act to regulate, in the national interest, the coming into and presence in Australia of non-citizens and, in this regard, to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious misconduct by non-citizens: cls 5.1(2) and 10.1.

12.     In reaching a decision whether to cancel a visa, a decision-maker needs to consider the nature of any harm the person concerned may cause to the Australian community, and the risk of that harm occurring: cls 5.2 and 10.1. 

13.     To the extent that they are relevant to the particular case, a decision-maker must take into account four primary considerations:

(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b)whether the person was a minor when they began living in Australia;

(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and,

(d)relevant international law obligations, including but not limited to:

i.the best interests of the child, as described in the Convention on the Rights of the Child; and,

ii.non-refoulement obligations under the Convention and Protocol Relating to the Status of Refugees (the Refugees Convention).

14.     Other considerations may be relevant and, if so, must be considered.  They include the matters set out in cl 11(3).  Generally, however, they should be given less weight than that given to primary considerations: cl 11(1) and (2).  The other considerations relevant in this case are:

(a)family ties, the nature and extent of any relationships;

(b)any links to the country to which the person would be removed;

(c)hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia;

(d)whether the person has been formally advised in the past by an officer of the Department of Immigration and Citizenship about conduct that brought the person within the deportation provisions of the Act or the character provisions of the Act.

CONSIDERATION OF RELEVANT FACTORS

The protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence

15.     Factors relevant to assessing the level of risk of harm to the community of a person’s continued stay include the seriousness and nature of the relevant conduct and the risk that the conduct may be repeated: cl 10.1.

Seriousness of offences

16.     In June 2002, when he was 17, Mr Shi committed an offence of malicious wounding in company.  Apparently, it took some time for the police to gather evidence in respect of the charge, and it was not until July 2006 that he was sentenced to two years and eight months imprisonment for this offence.

17.     In May 2003, Mr Shi committed an offence of supplying a commercial quantity of a prohibited drug.  He was sentenced to four years imprisonment in November 2003.  On appeal by the Crown, his sentence was increased in May 2004 to six years.

18.     Mr Shi was released on parole in August 2007.  In April 2008, he committed an offence of taking or detaining a person in company with intent to obtain advantage.  In August 2009, he was sentenced to four years imprisonment on that charge.  As already noted, he completed his sentence in November 2010 and was transferred into immigration detention where he remains.

19.     The sentences imposed on each occasion, and the remarks of the sentencing judges and the Court of Appeal, indicate the seriousness of each of Mr Shi's offences.

20.     Sentencing him for the offence of malicious wounding in company, Judge Hulme SC described how Mr Shi was in a group of young men who assaulted another young man at a club in the city.  The victim was stabbed twice in the lower back, and once in the lower abdomen lacerating his small bowel.  There was no dispute that Mr Shi was among the group who perpetrated the assault but he disputed the Crown's contention that it was he who did the stabbing.  With regards to this, Judge Hulme SC said:

It is conceded that the offender can be seen as one of the first to enter the premises and engage in the attack upon the victim.  It is also conceded that after the stabbing, he was in possession of a knife and can be seen wrapping it and then secreting it in his back pocket with his top pulled down over it.  What is in dispute is whether he had the knife before and during the stabbing or whether he simply received it afterwards.

I am satisfied beyond reasonable doubt that the offender had the knife during the course of the stabbing.  He led the group into the attack upon the victim.  He can be seen approaching and entering the premises with something concealed up his sleeve.  It is conceded that he has a knife in the [CCTV image].  From that point he is seen to be getting up from a crouching position over the victim and proceeds to back away from him.  He then wraps the knife in some cloth, possibly wiping it in the process and then inserts it in his back pocket.

I am not satisfied that it is a reasonable possibility that another offender had the knife, did the stabbing, and then passed the knife to this offender…

21.     Judge Hulme SC accepted the possibility that more than one knife was used in the attack but said it “probably did not make any practical difference” in the assessment of Mr Shi's culpability.  He noted a Juvenile Justice report indicated that Mr Shi had completed educational and other courses in gaol and been of general good behaviour in custody, and he thought this “indicative of reasonable prospects of rehabilitation”, but that was as far as it went, and those matters “fell short of persuading” him that Mr Shi was unlikely to reoffend, particularly given there was no evidence that he showed “even a modicum” of remorse. 

22.     In the appeal by the Crown in May 2004, Chief Justice Spigelman noted that police had observed Mr Shi and another man leaving premises and entering a taxi; when the vehicle was stopped, Mr Shi was found to be in possession of 992.2 grams of methyl amphetamine of 84.5 per cent purity.  Mr Shi had given evidence at trial that he had been carrying the drugs as a favour for an older friend in return for a lesser quantity for his personal use, and he said that, at the time, he owed his own supplier $2000 to $3000.  He acknowledged he was not under any form of threat when he was found in possession of the drug and that he had done the favour for his friend in order to clear his own debt. 

23.     Chief Justice Spigelman noted that a psychiatric report recorded Mr Shi's expressions of remorse, the extent of his physical dependence on drugs at the time of his arrest, and his desire to study information technology and rehabilitate himself.  The Court noted a number of factors that tended to mitigate Mr Shi’s culpability including his vulnerability on account of his youth, his background and his drug habit, but concluded that an increase in sentence was warranted due to the weight and purity of the drug involved.

24.     In August 2009, Judge Hughes sentenced Mr Shi for the offence of taking or detaining a person in company with intent to obtain advantage, namely a sum of money.  He described how Mr Shi took a young man whom he had known for seven or eight years into an apartment where several men were waiting.  One man, whom the victim did not know, demanded he give him $50,000.  Another put the blade of a knife to the side of his neck.  The victim left, having told the men he may be able to borrow money, but returned some time later and said he had not been successful.  Further demands and threats were made and another man entered and cut the victim's ear with a knife, causing excessive bleeding.

25.     Judge Hughes noted that Mr Shi was on parole at the time and, since the age of 18, had been at liberty for only eight months.  He found Mr Shi “less morally culpable” than others in the hierarchy of the offenders, and he could be regarded as a henchman, but he had turned on a friend and led him into the extortion.  Judge Hughes noted that Mr Shi had taken the victim to hospital but he said  while that might be considered “an act of mercy”, it could also have been to keep an eye on the victim to make sure he did not evade the extortion.  Indeed, he noted, there did not seem to be any suggestion that Mr Shi “resigned from the continuation of the extortion plot” which Judge Hughes described as a “horrific crime”. 

26.     Judge Hughes accepted that the separation of Mr Shi’s parents when he was 14 likely caused him psychological upset.  He took notice of what his mother had said on his behalf and thought Mr Shi had “good prospects, especially with the support of his family”, but something had to stop his violent criminal behaviour.

Risk that the conduct may be repeated

27.     There is no question that Mr Shi’s offences in the past are very serious.  The question now is what is the risk of that conduct being repeated. 

28.     A person's previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of reoffending.  Factors that are particularly relevant include: a recent history of convictions; evidence of the extent of rehabilitation already achieved; and any evidence that the person has breached judicial orders including parole: cl 10.1.2.

29.     Mr Shi has committed only three offences but each has been very serious.  He was a juvenile at the time of his first offence; he committed his second offence less than a year later; and he had been on parole for only eight months at the time of his third offence.  He has barely been out of custody since his first offence.  It might be said that he has had little chance to demonstrate that he is capable of change but, equally, the very seriousness of his offending is what has put him in that position.

30.     Mr Shi expresses remorse.  He says he realises the seriousness of his conduct and has learned from his mistakes and turned his life around.  He says he really wants to change, and has been going to church and reading the Gospels while in detention which he believes have shown him how to live a better life.  He says he has been receiving extensive support from his family, who have never given up on him, and he does not want to upset his parents again. 

31.     Sister Francis Mansour and Sister Patricia Ryan of the Little Company of Mary, both of whom have come to know Mr Shi through their work in Villawood Detention Centre, gave evidence in his support.  Both speak highly of him.  They say he is respectful and courteous towards others and provides a valuable interpreting role for others at weekly social gatherings and Mass.  Both believe his religious conversion and conviction are genuine.  In contrast to some who wish to be baptised in time for court proceedings, they say Mr Shi has not sought to exploit his faith.

32.     I have no reason to question the Sisters’ evidence but I do not think, when all the circumstances are taken into account, that Mr Shi's conversion represents sufficient protection of the Australian community.

33.     Mr Shi has done a number of courses while in detention.  In December 2008, he was awarded a Statement of Attainment in Small Business Management through TAFE.  In February 2009, he obtained a certificate in word processing as part of a certificate in information technology.  In December 2009, he completed a Getting Smart program which apparently aims to help offenders with alcohol and drug problems and, in April 2010, he completed a program for problem gamblers. 

34.     However, Mr Shi’s plans, in the event that he is released into the community, are vague at best.  He says he would like to do a course in small business management at TAFE but it was apparent to me from his oral evidence that he has little, if any, idea what that course might be.  He also talks about returning to his previous employment as a mobile phone salesman and, if neither that nor study is available, he would try to get labouring work, but his plans seem quite unformed.  Mr Shi’s mother, Mu Yunhua, gave evidence that he has also talked to her about the possibility of being a real estate agent or being a driver for different companies. 

35.     I accept that it is very difficult for someone in detention to explore all the options for study; it might only be on release that plans can be properly formed.  Similarly, securing employment while in detention might be difficult, if not impossible.  However, it is relevant that there is evidence that, without employment, Mr Shi’sprospects of re-offending are increased.  This is considered further below.

36.     Mr Nick Dong gave evidence for Mr Shi.  He is the managing director of a mobile phones sale company where Mr Shi worked in the period between August 2007 and April 2008, when he was not in custody.  Mr Shi gave evidence that his work involved “walking around selling mobile phones” and signing customers up for plans.  Mr Dong gave evidence that Mr Shi was employed full-time; he was hard-working and responsible and “has always been one of the best employees in my business”.  He says he would happily employee Mr Shi again.  He would work part-time initially, for two to three months, after which he might be employed full time.

37.     It is not at all clear what a position with Mr Dong would actually involve.  There is no evidence before the Tribunal of Mr Shi’s employment records or any other evidence that a position with Mr Dong would be anything more than a casual engagement.  I note that Mrs Mu gave evidence that she does not regard mobile phone sales as a real job. 

38.     Mr Dong gave evidence that he knows Mr Shi has convictions but he has no interest in knowing for what, and any convictions would be irrelevant to employing him.  I have some difficulty accepting that Mr Dong genuinely has no interest whatsoever in even the most serious convictions.  His lack of interest, together with Mr Shi's description of what the job would involve, tends to give credence to Mrs Mu’s belief that a mobile phone sales job is not a real job.

39.     Dr John Jacmon, a consulting psychologist, saw Mr Shi for three hours for assessment in November 2011.  He has provided a detailed written report and gave oral evidence.  In his opinion, Mr Shi’s daily functioning is markedly impaired by borderline personality disorder (BPD) which Dr Jacmon describes as a serious mental illness and lifetime disorder for which there is no lasting effect of treatment other than management.  BPD is characterised by pervasive instability in moods, impulsivity and destructive behaviours such as substance abuse, and by distortions in cognition. 

40.     Dr Jacmon noted in his report:

… Mr Shi has not had appropriate psychological treatment to address the underlying causes of his criminogenic behaviour.  He needs extensive and regular treatment to ameliorate distress, learn skills to cope with the instability in mood that BPD causes and to enable positive future outcomes.

41.     Dr Jacmon proposed a detailed treatment plan which would take Mr Shi about six months to complete at the rate of weekly sessions initially, with the need for further treatment to be assessed at the end of that time.  He also considered that Mr Shi should undertake courses in substance abuse and “any other relevant topics” provided through the Probation and Parole services as recommended by Ms Rima Nasr, the psychologist who saw him previously.  He noted that Mr Shi had expressed his willingness to undergo treatment to address his disorders.

42.     With treatment, Dr Jacmon believes that Mr Shi's chances of reoffending are low to moderate.  He based this assessment partly on the same assessment made by Ms Nasr after she saw Mr Shi in February 2009.  Without treatment, Dr Jacmon believes the risks of Mr Shi reoffending are “closer to moderate”.  He regards social support as very important in the process, and acknowledged the positive role that Mr Shi’s involvement in the church would play.  However,, in his view, social support is not enough and without treatment, Mr Shi’s prospects would be “not good”.

43.     I have some difficulty understanding Dr Jacmon’s assessment.  I find it difficult to reconcile his evidence about the nature of BPD, with its “[frequent] association with substance abuse and violence” with his view that, without treatment, there would be only a slight increase in the risk of Mr Shi re-offending.  Given his view that treatment is of critical importance, I find this difficult to understand. 

44.     In any event, Dr Jacmon regards treatment as essential to reducing the risk of Mr Shi re-offending.  Mr Shi says he would undertake rehabilitation but his plans seemed vague about what that would entail.  He gave evidence that he would go to TAFE or back to work, he would keep in touch with the church and go to Mass, that he would look after his parents, and that he would choose to be around people who are not involved in crime and avoid those who are.  When pressed, he said he would undertake a drug and alcohol course.  He agreed that Ms Nasr had recommended he undertake courses but he could not identify them.

45.     I accept the possibility that Mr Shi was under pressure when giving evidence before the Tribunal, and might not have been able to articulate his plans for the future very well.  However, the evidence about his conversations with others, including his mother, about his plans adds little to what he said before the Tribunal.  There is nothing to suggest that he has told anyone else about any considered plans.

46.     Mrs Mu gave evidence that Mr Shi has promised he will not touch drugs in future.  When asked how he would ensure that, she said he has told her he will go walking for exercise to reduce the desire for drugs and to strengthen his health and willpower.  She said he has told her he would see a psychologist but I note that Mr Shi did not give that evidence himself.  She has also suggested he see a Chinese doctor. 

47.     Sister Frances Mansour gave evidence that she has talked to Mr Shi about his plans if he is released into the community.  He has told her he would look for work quickly and that he wants to be responsible and take care of his parents.  He has also talked about his desire to be of service.  She is aware of his use of drugs in the past and says he has told her he has undertaken several programs in prison.

48.     A theme that emerges from some of the reports before the Tribunal is Mr Shi's tendency to minimise his role in his offences and a lack of insight.  For instance, responding in January 2009 to advice from the Department of Immigration and Citizenship that he was at risk of having his visa cancelled, he stated that mitigating factors relating to the seriousness of his 2008 offence included:

I did not intend to commit this crime but unfortunately he has been involved in this case due to my lack of knowledge of law.  But I did not have the victim at all.  The whole situation is out of my expectation and I was so shocked when it happened.  I have never involved in any plans or had any intention to induce a victim to the spot while I understand that I still bear the responsibility to go there with him.

49.     I note also that, according to her report, Mr Shi told Ms Nasr that “while he himself was not overtly aggressive or violent he was often present when his peers would engage in violent behaviour towards others”.  This description is at odds with the finding of Judge Hulme SC about Mr Shi’s role in the malicious wounding charge, and it downplays his role in luring his friend into the extortion attempt, and tends to support the view that he minimises his role in the offences.  According to a Probation and Parole Service report in September 2009, he appeared “inclined to minimise his offending behaviour and have difficulty accepting full responsibility of his actions” (sic).

50.     Documents produced under summons by Serco, which provides security services at Villawood, show that Mr Shi was involved in an assault on another detainee in August 2011 when an altercation broke out in the laundry.  Mr Shi gave evidence that the other detainee had removed Mr Shi's washing before it was done from the machine.  According to the Serco report, Mr Shi was seen kicking the other detainee on the ground.  He was also involved in an incident in September 2011 in which he became “abusive and aggressive towards officers” who were attempting to carry out a search of his room.  According to the report, once Mr Shi was informed about search requirements, he apologised and allowed it to continue.

51.     These incidents suggest that Mr Shi continues to behave impulsively at times.  On the other hand, there is evidence in the Serco reports that he has played a positive role on several occasions in Villawood.  He has been called on to act as an interpreter on occasions and other detainees apparently trust him.  In May 2011, he played a part in calming another detainee who was becoming agitated in the dinner queue.  These positive reports tend to bear out the favourable comments of Sisters Francis Mansour and Patricia Ryan.

52.     Taking into account all of the evidence, in particular Mr Shi’s quite unclear plans for his release and the evidence of Dr Jacmon about the importance of a structured treatment plan, I find that the risk that Mr Shi will again commit serious offences is real and weighs very heavily against him.

Whether the person was a minor when they began living in Australia

53.     The relevance of this consideration is that, in some circumstances, it may be appropriate to the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia: Direction 41, cl 5.2(4).

54.     Mr Shi was 14 when he arrived in Australia.  He went to high school here and has spent a good part of his formative years here.  This consideration weighs in his favour.

The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct

55.     Mr Shi had been in Australia for just over three years when he committed his first offence.  It was a serious, violent offence.  Nothing about his consideration can be said to weigh in his favour.

Relevant international law obligations, including but not limited to: the best interests of the child, as described in the Convention on the Rights of the Child; and non-refoulement obligations under the Convention and Protocol Relating to the Status of Refugees (the Refugees Convention)

56.     Mr Shi has no children and there are no other children who might be adversely affected by his removal. 

57.     Australia's non-refoulement obligations under the Refugees Convention includes the obligation not to return to a country of his or her nationality a person who has a well-founded fear of persecution there on the ground of their religion.

58.     Mr Shi’s mother stated in a written submission that he has become very interested in the Catholic faith and told her he finds inner strength from it and from his relationship with God.  She believes he is totally committed to the study of his faith and actively participates in religious activities.  She worries he will not be able to practice his faith in China and will be persecuted because of it.

59.     Sister Frances Mansour gave evidence that she has talked with Mr Shi about the practice of his religion if he has to return to China, and he has indicated that he is prepared for persecution if that is what happens.  Mr Shi's evidence before the Tribunal was a little different: he said that practising the Catholic faith in China is quite different from in Australia and he would not have the same freedom to practise.

60.     For the Minister it is submitted that Mr Shi would be free to continue a private relationship with God in China, even if he could not practice freely.  I am not persuaded that it would be sufficient to find that he would not be persecuted on the ground of his religion.  The right to practice religion includes a public dimension and the right to practice in public, see Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599. However, I am not satisfied on the evidence before the Tribunal that Mr Shi would in fact practice his religion in a way that would attract adverse attention if he had to return to China.

61.     This consideration does not weigh in Mr Shi’s favour.

Family ties, the nature and extent of any relationships

62.     Mr Shi is an only child.  His elderly grandmother and both parents are in Australia.  Both of his parents gave evidence about the hardship they would face if he were returned to China.

63.     Medical evidence before the Tribunal indicates that Mrs Mu suffers from a number of medical conditions including depression.  She lives on a disability support pension.  She wants Mr Shi to remain in Australia and to care for her when she is older. 

64.     Mrs Mu’s desire is entirely understandable.  However, for most of the time that he has been in Australia when he has not been in custody, Mr Shi has lived with his father.  He has usually seen his mother once a week.  I accept that he expresses the desire to care for her but she has others who help her from time to time.  She is not dependent on him.  Similarly, Mr Shi's father would like him to stay.

65.     I accept that it would cause great sadness to Mr Shi's parents and grandmother if he is returned to China and I find that this consideration weighs more in his favour than against. 

Any links to the country to which the person would be removed

66.     Mr Shi has relatively few links to China.  His father's second wife and her children are in China but they live in the north, away from Shanghai where Mr Shi was born, and there is no evidence of any real relationship between them.  Moreover, she apparently plans to join Mr Shi’s father in Australia if an application for review of the decision to refuse her visa is successful.

67.     Mr Shi has a number of relatives in China.  His father has seven brothers and sisters and there are a number of cousins.  There is nothing to suggest that Mr Shi is particularly close to any of them but the fact is they are family.  As well, his mother's sister and her husband, as well as their daughter, travel between Hong Kong and Shanghai and Australia.  The sister and her husband are currently in Shanghai where they are looking after elderly parents.  Their daughter is currently in Hong Kong and travels to Shanghai.  All have expressed their support for Mr Shi and their willingness to assist him.

68.     Mrs Mu gave evidence that said she would visit Mr Shi in China if he is returned there, although she lives on a pension and it would clearly be difficult financially for her to do so.  She said she would keep in contact by telephone.  Mr Shi’s father said he could not afford to go to China to visit him but he would keep in contact by telephone.

69.     On balance, I find this consideration weighs more in Mr Shi’s favour than against.

Hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia

70.     Mr Shi has not lived in China since he was 14.  He submits that he would face discrimination in employment as somebody with a criminal history.  I'm not sure how much more discrimination he would face than somebody with a similar history in Australia.  There is no reason to think that employers would necessarily know about his history but I accept that, if deported, the circumstances of his return could become known. 

71.     Mr Shi speaks Mandarin - as evidenced by his informal role as an interpreter in Villawood - and so language would not present any difficulty for him.  Nevertheless, I accept that he could find it very difficult if returned to China.  Even if his history is not known, he has no formal qualifications and his employment skills and experience are very limited.

Whether the person has been formally advised in the past by an officer of the Department of Immigration and Citizenship about conduct that brought the person within the deportation provisions of the Act or the character provision of the Act

72. In April 2007, the (then) Department of Immigration and Multicultural Affairs notified Mr Shi that his visa was liable to cancellation under s 501 of the Act. In December 2007, the Department notified Mr Shi through his then legal representative:

Visa refusal or cancellation may be reconsidered if fresh information comes to notice or if your client incurs liability on new grounds.  Disregard of this warning will weigh heavily against your client if the case is reconsidered.

73.     The fact that Mr Shi has been formally warned previously weighs against him.

CONCLUSION

74.     As I have found above, the risk that Mr Shi will commit further serious offences if he remains in Australia is real and weighs heavily in favour of cancellation of his visa.  There are other considerations that weigh in his favour, principally the hardship that he will face if returned to China and the hardship his parents will face if separated from him.  However, in my view those considerations are outweighed by the need for protection of the Australian community from the risk of serious harm that he would present if he remains in Australia.

75.     I affirm the decision under review.

I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J F Toohey, Senior Member.

Signed: .........[sgd].....................................................................
             Casey Comans, Associate

Date/s of Hearing  19 December 2011   
Date of Decision  16 January 2012
Counsel for the Applicant               Radha Nair

Solicitor for the Applicant                Leo Giampietro

Legal and Comapny

Solicitor for the Respondent           Jan Cummings
  Clayton Utz