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

Sun and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3683 (18 September 2020)
Division:GENERAL DIVISION
File Number(s):2020/4020
Re:Ding Sun
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member Rebecca Bellamy
Date:18 September 2020
Place:Brisbane

The decision under review is affirmed.
..........................[SGD]..............................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class BB Subclass 155 Five Year Resident Return visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Crimes Act 1900 (NSW)
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500; FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Suleiman v Minister for Immigration and Border Protection: [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
18 September 2020
THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 35 year old citizen of China who has lived in Australia since he was 14 years old.
On 4 February 2019, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s Class BB Subclass 155 five year resident return visa (“visa”) under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence. On 23 February 2019, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[1] On 25 June 2020, the Respondent decided not to revoke the cancellation.[2]
[1] Exhibit G1, Section 501 G-documents, G11.
[2] Ibid,G3 .
The Applicant subsequently lodged an application for review in this Tribunal on 2 July 2020. The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
The hearing of this application proceeded on 31 August, and 1, 2 and 10 September 2020. The Applicant gave evidence by video conference as did his mother, grandmother, wife and a psychologist. The Applicant, his mother, his grandmother, and his wife gave evidence with the assistance of a Mandarin interpreter. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
The Applicant used a Mandarin interpreter to give his evidence. It was apparent that the Applicant had a good grasp of English, sometimes correcting the interpreter and occasionally responding to questions before they had been translated into Mandarin. The Applicant’s solicitor, who spoke Mandarin and English, sometimes interjected when he thought something had been lost in translation and the Tribunal was grateful for his assistance. I am satisfied that the Applicant was not prejudiced on account of English not being his mother tongue.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
The Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[3]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[4]
[3] [2018] FCAFC 151.
[4] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[5]
[5] Ibid.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant has been sentenced to a term of imprisonment of two years and six months with a non-parole period of 18 months. Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
Informed by the principles in paragraph 6.3 above, a decision-maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[6]
[6] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provides for the decision-maker to take into account “Primary Considerations”[7] and “Other considerations”.[8] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
[7] The Direction, paragraph 13.
[8] The Direction, paragraph 14.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[9]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[10]
[9] [2018] FCA 594.
[10] Ibid, [23].
The principles set out in paragraph 6.3 of the Direction, that should inform the decision-maker’s application of the primary considerations and other considerations are summarised as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
BACKGROUND AND OFFENDING
The Applicant moved to Australia in February 2000 when he was 14 years old. His mother was already in Australia[11] and his grandmother followed some years later. He was awarded “model student” of his class in his first year at school.[12]
[11] Transcript, page 29, line 31.
[12] Exhibit G1, Section 501 G-documents, G13, page 83.
In 2005, the Applicant commenced a relationship with a lady (“Ms W”) and after a short time they commenced living together. The relationship ended in 2011 and Ms W relocated to the United States.
“Other conduct” not the subject of a criminal proceedings
As set out below, paragraph 13.1.1 of the Direction requires the Tribunal to have regard to the Applicant’s “criminal and other conduct to date” [underlining added]. There is no evidence before me that the Applicant has ever been charged with family violence and I am satisfied that he has not. However, there is a police file note dated 26 August 2007 that says the following:
“About 3.20prn on Sunday the 26th of August 2007 the accused Ding SUN and his mother .........were at their home at ..............At this time .........and the accused engaged in an argument over the accused not sleeping enough. At that time the accused and ......... have become involved in a physical altercation with both parties exchanging blows. A nearby neighbour has contacted police who have arrived a short time later. Upon arrival police observed the victim .........to have injuries to her face. These injuries consisting of a swollen bleeding lip and scratches to the right side of her neck. Police inquired with the victim as to the whereabouts of the accused. The victim stated that he had run off. Police made inquiries with the victim as to how her facial injuries were sustained. The victim stated to police “He hit me.” As she said this she pointed to her lip. Police requested the victim to provide a statement to which the victim initially refused. The accused girlfriend then proceeded to provide police with a statement. It was at this point the victim began to co-operate with police and began to provide police with a statement. The accused has then exited from the house. The accused was then cautioned and arrested at the scene. ....is at this point that the victim has retracted her earlier version of events. Police advised the victim that due to her injuries and her initial version of events police had no option but to arrest the accused.The victim .........then completed her statement however details of the altercation were vague in detail. The victim has then become extremely un-cooperative with police. The victim refused to have her injuries photographed upon hearing of her son's arrest. The accused was then conveyed back to Cabramatta Police Station. Police acted in accordance with the safeguards of LEPRA 2002. The witness in this matter not being independent has provided police with a version of the events establishing that a physical altercation took place which resulted in both parties pushing and shoving each other with the victim slapping the accused in the face. However nil injuries were sustained to the accused that could be consistent with the witnesses version. The accused was offered an opportunity to be electronically interviewed over this matter however this request was declined. The victim attended Cabramatta police station a short time later where she was irate towards police, stating that she would not assist police with any further enquiries and would not attend court at a later date if required. A canvass was conducted with nearby neighbours who stated that verbal arguments are a regular occurence (sic) between the accused and the victim, however nil other witness observed the above mentioned incident.”[13]
[13] Exhibit R2, Respondent’s Tender Bundle, TB1, page 46.
The Applicant’s counsel urged the Tribunal to give no weight to this document. The writer of the document did not give evidence and was therefore not able to be cross examined as to its accuracy. The Applicant’s counsel rightly conceded that it would be impractical to arrange for the writer of a police file note to be available for cross examination. One reason for that is that the person is unlikely to have a good recollection of the events in question given the passage of time. The fact that the file note is untested is a matter that the Tribunal should have regard to in its assessment of its reliability. However, that is not to say that the Tribunal cannot rely on it. It is worthy of consideration in the context of the totality of the evidence. The document was produced by the New South Wales Police Force under summons. It purports to be contemporaneous and it appears to have been made for internal police purposes. There is no evidence to suggest that the police had any ulterior interest in alleging that the Applicant physically assaulted his mother. The account of events is detailed and coherent. It does not indicate that there was any confusion or uncertainty about what occurred. On its face, this document is reliable.
The Applicant told the Tribunal that he recalled the police attending and arresting him but he could not remember the details. He denied having hit his mother, and said he had an argument with his mother’s roommate. He said he could not recall why the police arrested him and he did not recall his mother having an injury.[14]
[14] Transcript, page 124
The Applicant’s mother did not mention any roommate. She told the Tribunal that she and the Applicant were arguing, she slapped the Applicant in the face, he tried to walk away, she dragged him back and the neighbour called the police because they were too loud. She thought some of the information in the document was misleading on account of there not having been an interpreter there at the time.[15] She denied that the Applicant had hit her or that she had any injuries. When asked how “he hit me” could have been a misinterpretation she said she could not distinguish “hit” from dragging and pushing. She then denied that the Applicant had dragged or pushed her, saying she had grabbed him and tried to drag him back.[16] She said the police did not try to photograph her.[17] She said if the Applicant did physically attack her she would report it to police.[18]
[15] Transcript, page 223, lines 42 to 48.
[16] Transcript, page 224, lines 5 to 46.
[17] Transcript, page 225, lines 9 to 19.
[18] Transcript, page 225, lines 20 to 25
Even if I were to accept that a mistranslation could result in a reference to dragging and pushing being communicated as “hit”, that does not explain why the Applicant’s mother’s apparent effort to convey to police that she did something to the Applicant came out as him having done something to her. Further, the police file note does not record the Applicant’s mother indicating a dragging or pushing motion, but it does record her pointing to her lip when she said “he hit me”.
Another problem with the Applicant’s mother’s evidence is that it is not consistent with the evidence of Ms W who told the Tribunal that she was present from the beginning of the argument until the police arrived, and that there was no physical violence between the Applicant and his mother.[19] The Applicant’s evidence is also unsatisfactory in that he claims he cannot recall why he was arrested and the roommate he mentioned was not mentioned by his mother in her evidence. These three witnesses have not given consistent evidence and they each have an interest in denying, for the purpose of these proceedings, that the Applicant was violent towards his mother.
[19] Transcript, page 246, line 1 to page 247, line 5.
Where there is inconsistency between the police record and the evidence of the Applicant, his mother or Ms W, I prefer the police record. I am satisfied that the Applicant assaulted his mother in 2007, causing a swollen bleeding lip and scratches to her neck.
Offending history

On 7 May 2007, the Applicant was charged with drink-driving.[20] He was 20 years old at the time and held a learner’s licence. The Applicant had held that licence for a year and eight months and in that time he had incurred six infringement notices.[21] For the drink-driving offence, he was fined and his license was disqualified for three months. He was caught driving during that period of disqualification on five occasions.
[20] Exhibit R2, Respondent’s Tender Bundle, TB1, page 6.
[21] Ibid, pages 46 and 47.
Meanwhile, between committing the disqualified driving offences and being convicted of those offences, on 1 November 2007 he was charged with various offences arising from an incident that is described in the police records as follows:
“At 10:15 pm on the 1^st November 2007, Investigators attached to the Asian Crime Squad attended the car park of the Auburn RSL where a vehicle known to ……………was parked. Investigators observed Sun DING and four other Asian males standing a short distance away, beside a white coloured van. DING was then seen to walk to and open the boot lid of …….. DING and the other four Asian males then looked into the boot area, before DING removed a black coloured ADIDAS brand bag from the vehicle and hand it to one of the Asian males (……….. then walked to a Ford Falcon sedan, registration……., and place the black ADIDAS bag into the boot of that vehicle. A short time later all five Asian males were arrested and searched. Located in the boot of vehicle……. were three (3) 50 cm Machete’s within the black ADIDAS bag. Located on two of the Asian males were two (2) pocket knifes. Information provided to Investigators stated the Asian males were in preparation to seek revenge on a rival Asian gang due to a stabbing upon an associate the same night in the Auburn area.”[22]
[Errors and gaps in original]
[22] Ibid, page 43.
The Applicant was remanded in custody on that day. He was tried, along with four others, for:
“Possessing an offensive weapon, namely three machetes, with intent to commit an indictable offence, namely Affray”
and in the alternative:
“Armed with a weapon, namely three machetes, with intent to commit an indictable offence, namely Affray”.[23]
[23] Exhibit R2, Respondent’s Tender Bundle, TB5, p459.
The trial resulted in a hung jury. In September 2008, the Applicant pleaded guilty to:
“Participate in a criminal group, knowing that it was a criminal group and being reckless as to whether his participation in that group contributed to the occurrence of criminal activity”.[24]
[24] Ibid,TB5, pages 457 to 458.
The Applicant said he pleaded guilty because he understood that he would not be required to serve any more time in custody[25] which meant he would be released. He was sentenced to two years imprisonment with a non-parole period of 10 months[26] (which he had already served).
[25] Transcript, page 107, lines 1 to 5.
[26] Exhibit G1, Section 501 G-documents, G5.
The sentencing remarks are not before the Tribunal, so it is not known what factual findings were made by the Court. It does not appear inherent in the conviction that the Applicant actually handled the bag containing the machetes, and he told the Tribunal that he did not take the bag from the boot of the car. He said that one police officer had said he did not get out of the car and that there was video footage showing he did not get out of the car. However, he then said he did get out of the car to smoke. [27] The police records unequivocally identify the Applicant as the person who handled the bag. The Applicant admitted that he thought the bag contained “a knife” because his friends told him, although he said he did not recall if he “knew it from the trial, or whether [he] knew it from the beginning”.[28] It is reasonable to infer that, had the Applicant been ignorant that the bag contained a knife at the time, and only discovered that it contained knives at his trial, he would recall that fact. The Applicant admitted that he knew that he and his friends went to the location to “discuss having a fight with someone else”[29] although he painted himself as a passive participant. He said he was on his way to karaoke in the city in his car with his friends, that they went to Auburn to arrange the fight and he was not involved in the discussion about the fight.[30] I find the contemporaneous police file note to be more reliable than the Applicant’s account and I prefer it where there is an inconsistency. I am satisfied that the Applicant willingly went with his friends, knowing there was a bag containing at least one knife in the car and that their intention was to arrange a fight, and that he got the bag out of the boot.
[27] Transcript page 109, lines 30 to 41,
[28] Transcript page 110, lines 33 to 40.
[29] Transcript, page 111, lines 10 to 14.
[30] Transcript, page 113, lines 30 to 40; page 114, lines 1 to 20.
The Applicant described the friends he was with as “part of a gang group”[31] which is consistent with the charge to which he pleaded guilty. The Applicant said the instigator of the detour to Auburn was Mr N, a friend.[32] He is the brother of a Ms N.[33] According to the Applicant, in 2008, when Ms N opened a mobile phone shop, the Applicant invested $20,000 in the shop.[34] The relevance of this will become apparent later in these reasons in relation to a money laundering offence in 2012.
[31] Transcript page 106, lines 24 to 25.
[32] Transcript page 147, line 1; page 147, line 36 to page 148, line 2.
[33] Transcript, page 146, lines 20 to 26.
[34] Transcript, page 145, line 40 to page 146, line 26.
A presentence report dated 30 April 2008 said that the Applicant: [35]
“advised he has not previously experienced any mental health or drug and alcohol issues”
and
“attributed his offending behaviour to problems he had been experiencing at the time, including issues with his girlfriend and a need to buy groceries”
[35] Exhibit R2, Respondent’s Tender Bundle, TB6, page 480.
The report also stated that the Applicant:
“presented with limited insight into his offending behaviour and appears to have little understanding of the severity of the offences. Mr Sun’s minimisation of his offending behaviour remains of concern to this Service.”
The sources of information identified by the report include an interview with the Applicant and an interview with the Applicant’s mother. I note that the extent of the Applicant’s drug use during his period of offending is in dispute – with the Applicant claiming to have used methamphetamine heavily and the Respondent challenging that claim. This report indicates no drug problems and the motivation for the offending being related to the Applicant’s relationship and finances. The Applicant told the Tribunal he could not recall being interviewed for this report.[36] However, he said that if the report said he did not use “meth” then he did not “provide the information honestly”.[37]
[36] Transcript, page 173, lines 5 to 9.
[37] Transcript, page 173, lines 19 to 48
On 15 October 2009, while the Applicant was still on parole and disqualified from holding a driving license, he was observed by police driving while holding a mobile phone to his ear. When police asked the Applicant for his driver’s licence, he handed police the licence of his friend who was a passenger in the car. He explained to the Tribunal:
“So because I was – my own driver’s licence was disqualified and I was on probation, so I was a bit worried if I…it might have an impact on this. So my friend was sitting next to me…so he gave me his licence.”[38]
[38] Transcript, page 116, lines 1 to 5.
The Applicant confirmed that he asked his friend for his licence.[39]
[39] Ibid, lines 18 to 20.
The Applicant also had a pocket knife attached to the coin pocket of his pants, which the police seized. The Applicant told the Tribunal that he always carried it because he used it in relation to his drug use.[40] In a search of the vehicle, police found (among other items) a straw, ice pipe and two plastic satchels containing a substance that the Applicant identified as “ice”. Police also found a credit card in another person’s name (“the credit card”), and a credit card in the Applicant’s father’s name. The Applicant denied any knowledge of the credit card. However, he told the Tribunal that a friend had given him the card to use to pay for parking and he had kept it although he did not intend to use it.[41] On 28 October 2011 the Applicant was convicted of the following offences arising out of that incident:
·“license expired less than two years before – 1st offence”;
·“possess prohibited drug”;
·“custody of knife in public place”;
·“driver/rider state false name/address”;
·“deal with property suspected proceeds of crime (the credit card)”; and
·“driver use hand-held mobile phone when not permitted”.[42]
[40] Transcript, page 116, lines 33 to 40.
[41] Transcript, pages 117 to 118.
[42] Exhibit G1, Section 501 G-documents, G5.
The Applicant received a fine of $400 for each of the offences except the expired license offence for which he was fined $900.[43]
[43] Ibid.
A Breach of Parole report dated 26 October 2009 indicated that on 11 November 2008 the Applicant’s urine had tested positive for methamphetamine, and that since then he had been subject to regular random urine tests that had all been negative.[44]
[44] Exhibit R2, Respondent’s Tender Bundle, TB6, page 482
On 25 March 2012, the Applicant departed Australia for China. On 18 April 2012 he returned to Australia.[45] Upon arrival in Australia he completed an Incoming Passenger Card, a copy of which is in the materials before me. The card appears to be written in Mandarin.[46] The card contains the Applicant’s name and other personal details hand-written in English. The format of the card indicates a list of questions each with a yes or no option. In a document provided in support of the Applicant’s revocation request the Applicant said:
“I noticed on the incoming passenger card dated 18 April 2012, in the left-listed question ‘do you have any criminal conviction/s?’, I ticked the box ‘No’. I remember that at the time, due to my ignorance of laws, I sincerely believe that my previous offences, such as driving offences, were just minor and would not be regarded as ‘criminal convictions’ in nature.”[47]
[45] Exhibit G1, Section 501 G-documents, G56, page 226.
[46] Ibid, G9, page 60.
[47] Exhibit G1, Section 501 G-documents, G 16, page 94.
I am satisfied that the Applicant completed the Incoming Passenger Card and that he replied “no” to the question “Do you have any criminal conviction/s?”. At the time the Applicant completed the card, he had been convicted of participating in a criminal group, dealing with proceeds of crime, custody of a knife in a public place and possessing a prohibited drug. He had been convicted in court and he had been sentenced to imprisonment. Accordingly, I do not accept that he believed his previous offences were minor and would not be regarded as criminal in nature. I find that the Applicant deliberately concealed his criminal convictions when he completed the Incoming Passenger Card.
On 10 June 2012, the Applicant was stopped by police for a roadside breath test and asked to produce his licence. He produced a licence that contained different details to his own. Police checked the licence through the “RTA” system, which revealed that the licence that the Applicant handed to police had been altered so that it showed a different photo to the photo in the RTA system. The Applicant maintained that the licence was his. When police told the Applicant he was not the person depicted in the licence, he gave his real name. [48] The Applicant was subsequently convicted of the following offences:
·     “fraudulently alters, uses, or lends drivers licence” - $500 fine;
·     “driver/rider state false name/address”- $500 fine; and
·     “license expired less than two years before-2^nd+ offence” - $800 fine and disqualification for three months.[49]
[48] Exhibit R2, Respondent’s Tender Bundle,TB1, page 38.
[49] Exhibit G1, Section 501 G-documents, G5, page 30.
On 13 July 2012, the Applicant was arrested for the first of two proceeds of crime offences involving large amounts of Australian currency.
According to a Statement of Facts that was provided to the court,[50] and accepted by the learned sentencing Judge:
[50] Exhibit R2, Respondent’s Tender Bundle, TB4, page 427 to 429.
·On 13 July 2012 the Applicant was approached by police officers in relation to a matter that is not before the Tribunal;
·They observed that he began to sweat profusely and his eyes moved rapidly to and from police. They asked “Do you have anything on you that you shouldn’t have?”. The Applicant unzipped a satchel that he was wearing, revealing bundles of Australian currency, mostly $50 and $100 notes;
·When asked where he got it, he said “From the phone shop. I work at the phone shop…in Fairfield”, and he identified the shop;
·The Applicant initially told police the bag contained around $59,000 and subsequently said it was closer to $89,000. The satchel did indeed contain $89,000, and police found $3,140 in his wallet;
·Two months later the police obtained a statement from the owner of the mobile phone shop, Ms N;
·She told police that the Applicant was her employee, that he delivered and collected mobile phones, and that he would sometimes pick up money for customers and bring it to her but he did not carry more than $30,000 for her, although he once carried $40,000;
·She said she did not know whether he had worked on 13 July but believed he had worked on 12 July;
·She showed the police a “cash movement book” with different cash amounts noted. When police returned a month later to obtain a photocopy of the “cash movement book”, she refused to allow it. The following day the police returned and attempted to get a further statement from her, and she refused. The police asked “Is the money yours?” To which she responded “I don’t know. I’m not saying to you”;
·The Applicant, through his legal representative said that:
ohe collected the money on 12 July from a customer of the phone shop in Fairfield and he was given instructions to take it to his work and give it to “the boss”;
ohe knew the customer was the registered proprietor of a Chinese restaurant and that he sold stolen items of jewellery from the restaurant;
ohe believed the entire sum with the proceeds of the sale of stolen jewellery because the person who gave it to him did not provide any personal details, did not require a receipt, the sum was well in excess of usual purchases, and the Applicant knew about this person’s criminal activities;
ohe recklessly failed to make enquiries about the source of the money because he believed he may have been told that it was the proceeds of the sale of stolen jewellery.
Police also executed a search of the Applicant’s home and found, among other items, methamphetamine and drug related paraphernalia including packaging, ice pipes and scales. He was subsequently convicted of two offences of possessing prohibited drugs.
The Applicant was committed for trial and ultimately pleaded guilty to recklessly dealing with proceeds of crime. On 1 August 2013, he was sentenced to imprisonment for two years and three months with a non-parole period of 12 months. The learned sentencing Judge’s sentencing remarks included the following:
“The police do not challenge the assertions made by the offender and the plea of guilty has been accepted on the basis that the money was substantially derived from disposing of property which had previously been stolen, such property being known to have been stolen by the person at the time of disposing of it.
The basis of this plea of guilty is recklessness. There are variations in this offence in the Crimes Act which attract heavier penalties. If the person in the situation of this offender knows - has knowledge, in law - then the penalty is 15 years imprisonment, whereas when the mental fault element of recklessness is involved in this offence the maximum is 10 years. This is significant and I take it into account. Nonetheless, the offence is a serious offence.
The offender has previous convictions for receiving or disposing of stolen property. He has various other convictions. I ignore the driving matters which show a disregard of the law, but in particular he has been previously in custody for an offence committed in 2007 of participating in criminal group activity. He was sentenced to imprisonment for two years and a non-parole period of 10 months was set. He has been fined for custody of a knife in a public place, he has been fined for possessing prohibited drugs, and in 2011 there was an offence of dealing with property suspected to be the proceeds of the (sic) crime for which he was fined. His background as represented in that criminal history suggests that he has been shown leniency on previous occasions and apparently is willing regularly to disregard the law.
…
He has indicated sorrow to his mother, but I have not heard any expression of personal remorse indicated by the offender, who did not give evidence. Of course, he is not required to give evidence. I think it is highly likely that he has not been frank over the years with his mother and grandmother, who have supported him and looked after him, and no doubt he has caused them very considerable anxieties.
One might have thought that his gaoling for a relatively short period might have persuaded him of the error of his ways, but it seems not to have done. In this case, knowing full well that the person from whom he took the money had been involved in criminal dealings with stolen jewellery, he took custody of the money which was ultimately found on him by police. He was reckless as to its source. In colloquial terms, he turned a blind eye to the criminality involved. If this were a case where there was to be proven direct actual knowledge than the sentence which I intend to impose would have been more substantial.
…[The Applicant’s counsel] pointed out to me that from the facts as set out…[The Applicant’s] role as an employee put him in the path of these matters, and I accept that. It is not that he has set out himself deliberately to structure the situation, but being in it he committed the criminal offence to which he has pleaded guilty. [The Applicant’s counsel] said it was not clear-cut criminality, but I do not accept that. It plainly was clear-cut criminality.
…[The Applicant’s counsel] put to me that he did not lie to police. Well, police had him in their sights and they opened the wallet, or had him open the wallet, and he told them a version of events which has not been rejected by those from the shop who asked about it. I accept that he did tell a version which coincides with and is accepted by the version put forward by the police in this matter…
Nonetheless, the objective criminality is significant. This man has sufficient experience of the world (and indeed his imprisonment emphasises sufficient knowledge of the underworld) to make it clear that he should have realised that he was doing the wrong thing. The blind eye he turned to the serious criminality involved in this case calls for a custodial sentence.”[51]
[Underlining added]
[51] Exhibit G1, Section 501 G-documents. G7, pages 52 to 54.
In evidence to the Tribunal, the Applicant said that:
·he knew at the time that if money was not derived from a clean source, and it was illegal to take the money from one place to another,[52] although later in his evidence he said: “I was thinking that if they were breaking the law, it’s their business. But I didn’t know that I was breaking the law”[53];
·he considered it part of his job to collect money that was not clean,[54] although “there were not many times”[55]; and
·in addition to his salary, he was paid $500 for collecting the money.[56]
[52] Transcript, page 120, lines 9 to 31.
[53] Transcript, page 152, lines 6 to 9.
[54] Transcript, page 151, lines 5 to 15.
[55] Transcript, page 152, lines 17 to 20.
[56] Ibid, lines 22 to 29.

As I have previously stated, the owner of the phone shop, Ms N, was the sister of Mr N who was involved in the gang incident in Auburn in 2008. A pre-sentence report dated 26 July 2013,[57] stated that the Applicant continued to work for that phone shop after he was charged because he did not think he could gain employment anywhere else. The report said that the Applicant expressed that he felt unable to access alternative employment or sources of income because of his recidivist offending. The report said while the Applicant verbally acknowledged the seriousness of his offending behaviour, he appeared unable to demonstrate any real motivation to change and continued to engage in informal employment. The Applicant admitted in these proceedings that even after serving his sentence, he went back to work at that phone shop.[58]
[57] Exhibit R2, Respondent’s Tender Bundle, TB4, page 430.
[58] Transcript, page 153, lines 1 to 15.
The pre-sentence report recorded that alcohol and drug issues were discussed with the Applicant and that:
“Mr Sun claims that he tried Cannabis and Ecstasy on one occasion when he was 18 years old, however had an adverse reaction. The offender stated he consumes alcohol rarely in a social capacity and will have two to three standard drinks on each occasion. Perusal of Service Records revealed that Mr Sun was subject to urinalysis on 11 November 2008 which tested positive for Amphetamines and Methamphetamine. When challenged on this information, Ms (sic) Sun claims that he had been “drugged” on that occasion. The offender was directed to undertake urinalysis on 16 July 2013 which returned negative results for illicit substances.”[59]
[59] Exhibit R2, Respondent’s Tender Bundle, TB4, page 431.
A Corrective Services case note records the Applicant saying, in relation to the positive drug tests that the drug had been “slipped in a drink”.[60] In his oral evidence, the Applicant said he could not recall the interview relating to that report,[61] but he agreed that the paragraph quoted above was accurate.[62] He also said the proceeds of crime offence had nothing to do with substance abuse.[63] However, he added that he had been using “meth” and that he had “always been using meth”.[64]
[60] TB6, page 496.
[61] Transcript, page 157, lines 44 to 46.
[62] Transcript, page 158, lines 25 to 32.
[63] Transcript, page 159, lines 7 to 21.
[64] Transcript, page 159, lines 40 to 42.
The Applicant was asked about the report that there was a positive urine test in 2008 and a claim of being drugged. He said he could not recall why he had made that claim. He indicated that his use got more frequent over time from 2011, and at that time he was using it consistently every one or two days. He could not recall how frequently he used it in 2013. When asked about the negative drug test in July 2013, he said he could not remember it but he had been using methamphetamine all the time.[65] The undisputed evidence of the negative drug test and his failure to mention frequent methamphetamine use when he disclosed other drug use calls into question his evidence of frequent methamphetamine use since 2011.
[65] Transcript, pages 161 to 162.
On 2 June 2014, the Department of Immigration and Border Protection wrote to the Applicant notifying him that his visa could be cancelled on character grounds.[66] The Applicant told the Tribunal that he understood that this was because he “was in prison for over 12 months”[67].
[66] Exhibit G1, Section 501 G-documents, G10.
[67] Transcript, page 121, lines 19 to 22.
On 22 July 2014, the Department wrote to the Applicant notifying him that his visa had not been cancelled. That letter contained the following warning in bold print:
“Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.”[68]
[68] Exhibit G1, Section 501 G-documents, G10, page 61.
Records from the Department of Corrective Services indicate that in September 2014, when the Applicant was on parole, he told his parole officer that his mother was overseas and he was working but not getting paid. His parole officer asked how he was managing financially with his mother away. He said his girlfriend cooked meals for him, he had minimal expenses, and he “gets money from his father anyway”.[69] He said he had family members who came and went from China every three months and that when they came, his father sent money with them for him, $20,000 each time. He said this had been proven previously when he had to go to court:
“for an alternative matter (apparently car was pulled over and he had 2 x rolex’s and LV bags but could prove he had bought them with money from his dad)”.[70]
[69] Exhibit R2, Respondent’s Tender Bundle, TB6, page 519.
[70] Ibid.
This is a reference to the occasion when the police intercepted the Applicant in possession of a credit card that did not belong to him, a credit card in his father’s name, a pocket knife and drugs. His parole officer reminded him that given the nature of his current offence his financial situation would be monitored and that he needed to be forthcoming with this sort of information.[71]
[71] Ibid,.
The records indicate that in October, the Applicant’s parole officer asked him if his mother knew that his father sent him $20,000 several times per year, and the Applicant said that she did, and that when she returned from overseas she would have some money for him. He also told his parole officer that money was not a problem for him because his father owned a company in China and sent him money whenever he needed it.[72] The records indicate that in December 2014 the Applicant told a different staff member that he did not need money because his father was rich and would provide him with money if he needed it.[73]
[72] Ibid, page 521.
[73] Ibid, page 522.
On the first day of the hearing, the Applicant said that it was not true that his father was sending him money in that period. He said:
“Well, at that time, given that my offence was identified as an economic offence, so the officer was quite concerned about my financial status.”[74]
[74] Transcript, page 44, lines 38 to 42.
The Applicant said in 2011 there was some money and that his mother told him that there could be some money brought over however it was not as much as $20,000 every three months.[75]
[75] Transcript, pages 44 and 45.
On the second day of the hearing, the Applicant claimed he did not remember telling Corrective Services that his father was supporting him financially,[76] and that there were not multiple amounts of $20,000.[77] I am satisfied that the Applicants father was not sending large amounts of money and that the Applicant lied to parole officers about that because of their interest in his financial situation.
[76] Transcripts, page 156, lines 1 to 5.
[77] Transcript, page 157, lines 17 to 24.
The Applicant’s parole period ended on 31 October 2015.
On 6 January 2016, the Applicant was charged with the second proceeds of crime offence that involved a large amount of Australian currency.[78] He had been caught delivering a sum of $49,500 to a co-offender.
[78] Exhibit R2, Respondent’s Tender Bundle,TB1, page 13. See also Exhibit G1, Section 501 G-documents, G5; G6.
On 27 September 2016, police executed a search warrant at the home he shared with his mother and grandmother. Police found around $52,000 in Australian currency inside a safe, and quantities of methamphetamine, MDMA, fluroamphetamine and cocaine in the Applicant’s bedroom.[79]
[79] Ibid, page 33.
In relation to the $49,500 the Applicant was charged with recklessly dealing with proceeds of crime. In relation to the money that was found in the safe, the Applicant was charged with dealing with property reasonably suspected of being proceeds of crime.[80] He was charged with three counts of supplying a prohibited drug (the amphetamine variants), and one charge of possession of a prohibited drug (cocaine).
[80] Under s 193C(2) of the Crimes Act 1900 (NSW).
The Applicant pleaded not guilty to all charges. On 1 May 2028, he was found guilty by a jury on all charges except the charge relating to the money that was found in the safe. He was sentenced on 31 August 2018.
The learned Judge sentenced the Applicant to imprisonment for two years and six months for recklessly dealing with proceeds of crime, to 18 months imprisonment for the three supply offences, and four months imprisonment for an offence of possessing a prohibited drug. The facts of the offending are set out in the sentencing remarks, extracted below:
“… I find the following established or proven beyond reasonable doubt. In November 2015, the New South Wales Police State Crime Command Organised Crime Squad, assisted by the New South Wales Crime Commission, commenced Strike Force Carlson to investigate a number of persons involved in money laundering activities. During the investigation, Yousan or Yip… Was identified as a money launderer who was working for a Hong Kong-based crime syndicate. Yip and his associates were paid by the syndicate to launder money and traffic prohibited drugs in Australia.
It was the Crown case at the trial of the offender that Yip used a simple method for transferring the proceeds of crime from Australia to countries overseas. Yip would receive instructions from a senior member of their criminal organisation who was based in Hong Kong and this senior member was commonly referred to as The Controller. The Controller would contact Yip and ask for a bill number which is the serial number from a specific Australian $5 note. This $5 note was in the possession of Yip. The Controller would communicate the bill number to the person in possession of the money and that person would contact Yip on a designated mobile phone number. They would arrange to meet. During the meeting, the person giving the cash would produce the bill number, Yip would verify that the bill number was the same number that they had in their possession and had provided to The Controller. Once confirmation was made, the money was handed to Yip and the bill was handed to the person handing over the money.
From 13 November 2015, the telecommunications services known to be used by Yip were lawfully intercepted. In relation to this count 1, recklessly dealing in the proceeds of crime of the amount of $49,500, it was the Crown case at the trial that at 1.33pm on 6 January 2016, Ding Sun, the offender, called Yip and they agreed to meet in Strathfield at about 4pm that afternoon. Yip asked the offender for the bill number. The offender stated that he had not received it yet and would call back when he received the number. At 1.56pm the offender called Yip and said that the bill number was 08935. The offender told Yip that he was travelling to Strathfield on the train and wanted to meet in the carpark at Strathfield Shopping Centre. Yip asked for the meeting to be changed to 4.15pm. At 2.02pm The Controller called Yip and asked if Yip had heard back from them yet. Yip said that he received a call and they gave him the bill number. Yip confirmed the meeting at 4.15.
At 4.07pm and 4.10pm Yip received two missed calls from the offender. Between 4.12 and 4.21 a series of calls were intercepted during which Yip spoke to the offender in an attempt to ascertain his location. The offender stated he was standing in the smoking area of the rooftop carpark and described himself as wearing a black top and jeans. At 4.13pm police surveillance observed Yip driving a black Mazda 3 sedan to the Strathfield Plaza. He drove to the rooftop carpark and exited the vehicle. Yip approached the offender. The offender and Yip walked to the car with the offender carrying a dark coloured shoulder bag. The offender entered the front passenger seat and Yip entered the driver’s seat. The men exited the carpark and drove around the block to Strathfield Railway Station. The offender exited the car and boarded a train to Canley Vale and Yip drove home.
At 5.15pm the offender called Yip and they had a discussion about the money being short. The offender asked if it was short and Yip confirmed that it was. The offender asked which bunch was short and Yip said the bunch of $100 was short. The offender asked if it was a bunch of totally hundred dollar notes that was short or the bunch that was half 50 and half a hundred. The offender said that it should have been 30 notes of $50 and 70 notes of $100. Yip told the offender that there were only 65 pieces of $100 notes in that bunch. At 5.17pm The Controller called Yip and asked if it was short $500. Yip confirmed that it was, that one pile had 60 by $50 notes and the other only had 65 by $100 notes. Yip confirmed that the others were correct.
At 5.20pm Yip called the offender and they had a further discussion in relation to the shortfall of money. Yip confirmed with the offender that he, Yip, received 854 pieces of $50. The offender told Yip he would pay back the shortage next time. During a search warrant at Yip’s home on 16 March 2016 a ledger was located with handwritten notes stating “6th of the first, 49,500”. It was the Crown case at trial that this was a reference to Yip receiving 49,500 on 6 January from the offender at Strathfield Plaza. During a search of the offender’s premises on 27 September 2016 police located clothing that was identical to that worn by the offender at Strathfield Plaza and the mobile phone used by him to contact Yip. On 7 January 2016 the offender departed Sydney and travelled to China before returning to Australia on 2 April 2016. In May 2016 the New South Wales Police Force Organised Crime Squad and the New South Wales Crime Commission commenced Strike Force Chalfort, an investigation into the alleged criminal activities of the offender.
At about 10.20am on the Tuesday, 27 September 2016, police executed a search warrant at … the home of the offender. At the time of the execution the offender was home with his grandmother. The offender was cautioned, shown a copy of the search warrant and explained his rights as the occupier. The entirety of the search and the conversation was recorded.
The offender was given an opportunity to declare any items listed in the warrant and he had stated he had methylamphetamine inside his bedroom. The offender directed the police to a desk in his bedroom and pointed to two small Tupperware containers, indicating that the methylamphetamine was inside. Containers were opened and police saw numerous small plastic resealable bags which contained methylamphetamine. The offender was arrested and cautioned. He said the substance was methylamphetamine and that he had it for personal use. When asked why the drugs were packed in such a manner the offender replied, “I like clean bags”.
The offender was conveyed to Cabramatta Police Station where he was informed of his rights by the custody manager and given an opportunity to contact a legal representative. The offender subsequently requested to return to the search warrant.
Police continued to search the remainder of his bedroom and located a total of 27 resealable bags which contained small quantities of methylamphetamine. They were located in various places throughout his bedroom including shoe boxes, desk drawers, a bookshelf and a fold-out sofa. The offender stated he used these bags, all contained methylamphetamine and they were for his personal use. In total 7.27 grams of methylamphetamine was located of which 6.56 grams were of 80.5% purity.
An additional two small plastic resealable bags were located on the TV cabinet within the offender’s bedroom which contained MDMA. The offender said the drug was MDMA and that it was given to him by a friend. Police also located one plastic resealable bag which contained 5.34 grams of fluoroamphetamine in a drawer in the offender’s bedroom. Fluoroamphetamine is not listed separately in the schedule 1 of the Drug (Misuse and Trafficking) Act but it is an analogue of the prescribed drug amphetamine and therefore deemed a prohibited drug with the prescribed quantities for amphetamine applying.
In relation to the 166 certificate, the police located one plastic resealable bag which contained 0.96 grams of cocaine in the offender’s bedroom. Police continued to search the remainder of the offender’s bedroom and located numerous sets of electronic scales, an electronic money counter, at least 200 unused clear plastic resealable bags of various size and type, mobile phones including Blackberry encrypted devices and a number of SIM cards.
The offender was returned to Cabramatta Police Station where he refused to participate in an electronically recorded interview and he was subsequently charged.
…
…For count 1, the sum involved was substantial, being $49,500. It involved a single incident. The offender appeared to know the co-offender Yip and was aware of the methodology utilised…The money’s destination appears to be overseas but there is no evidence as to the provenance of the money.
In relation to the supply charges…There was plenty of indicia of supply present in his room, including resealable bags, mobile phones, encrypted phones, scales and SIM cards.
…
In relation to his attitude towards the offending, the offender maintained denial of any involvement in the supply of illicit substances during his PSR interview. He also maintains that the money that he possessed which are the subject of these proceedings was actually profits from the sale of a home in China.” [81]
[Underlining added]
[81] Exhibit G1, Section 501 G-documents, G6, pages 33 to 40.
The learned Judge said later in the sentencing proceedings:
“The offender maintains his denial in relation to these offences. Whilst this is not to be regarded as an aggravating factor, it is as he is entitled to do so but it obviously affects any finding on remorse. I do note that he has expressed his remorse throughout the reports and through the letters tendered and that I do find that he has some level of remorse in the position that he finds himself in but also the position that he has placed his mother and his grandmother in who have offered him considerable support during this process.[82]
[82] Ibid, pages 45 to 46.
A pre-sentencing report was provided to the court, and the findings in this report were accepted by Her Honour. The report, dated 15 June 2018, indicates that the Applicant disclosed the use of methamphetamine since the age of 18, periodically and sometimes daily[83], and that he had engaged with a drug counselling service since March 2017 and claimed to be drug-free. This appears to be the first time the Applicant reported heavy drug use or indicated a need for intervention. The Applicant’s risk of re-offending was assessed as low to medium.
[83] Ibid, 41.
The learned Judge, informed by the report, said:
“To my mind I find that his prospects of rehabilitation are intrinsically linked with whether or not he can remain and stay drug-free. If he does so I consider his prospects of rehabilitation to be moderate to good but if he does not and resorts back to drug use and drug abuse than I consider his prospects to be relatively poor.”[84]
[84] Exhibit G1, Section 501 G-documents, G6, page 45.
In the present proceedings, the Applicant has continued to deny that the money was proceeds of crime. In a letter to the Respondent dated 2 August 2019[85], the Applicant said:
“In or around January 2016, one of my so-called friends asked me to repay the money that was forfeited by the police. At first, I refused, but then I thought this might be the way I could cut my connection with them by repaying the money (even if I did not think I was liable to), I tried my best and repaid half of the amount by using my personal savings.
Surprisingly, I was arrested again on or about 27 September 2016 as I was charged for the involvement of the repayment of the money. As a result, I was found guilty of reckless deal with the proceeds of crime on 31 August 2018 (“Reckless Offence) and I was also found guilty of possessing prohibited drug on 31 August 2018.
With respect to my Reckless Offence, I understand that there is no direct evidence to prove that the money in question, namely $49,500, was actually come from criminal activities…”[86]
[Errors in original, underlining added]
[85] Which the Applicant said was a true and correct translation of what he had written in Chinese – see Transcript, pages 25 to 27.
[86] Exhibit G1, Section 501 G-documents, G16, page 94.

The money the Applicant referred to as having been forfeited was the money the Applicant was caught with in 2012.[87]
[87] Transcript, page hundred and 77, lines 33 to 45.
The Applicant told the Tribunal that the money he gave Yip had been given to him by his mother and that she had obtained it from selling a house in China.[88] He said he told his mother he had to return some money, she asked for more details and he told her he owed money to somebody.[89] He also said that the amount he repaid was actually $32,000, not $49,500.[90] When asked more about this, the following exchange occurred:
[88] Transcript, page 176, lines 25 to 37; page 178, lines 4 to 12.
[89] Transcript, page 176, line 30 to page 177, line 20.
[90] Transcript, page 175, lines 36 to 47.
Q: So what was the amount you told her you needed?
A: It’s $32,000.
Q: Why didn’t you tell her the full amount that the person wanted?
A: At the beginning I kept in touch with that person, telling that person that I had no money, because I owed them money for quite a long time. In the end we reached an agreement and $32,000 it was. My mum knew how much I owed.
Q: Did she only have $32,000 to give you?
A: I only took $32,000.
Q: That’s not what I asked. Did she only have $32,000 that she could give you?
A: Yes.
Q: Is that all the money she had from the sale of the property in China?
A: No.
Q: How much did she have from the sale of the property in China?
A: I can’t remember the specific amount.
Q: Why didn’t she give you more, seeing as this other person was demanding more?
A: Because that was my business. I kept communicating with that person. It’s not my - it was not my liability to pay that much. I only needed to pay $32,000.
Q: Earlier, a few minutes ago, you said you paid $32,000 because that’s all you could pay. Are you saying that’s not the case anymore?
A: No. At that time I told that person $32,000 was the highest amount that I could pay. It was a mutual agreement.[91]
[91] Transcript, page 189, line 31 to page 190, line 45.
In HZCP v Minister for Immigration and Border Protection[92] the Full Federal Court considered whether a Tribunal may make a finding of fact that is contrary to a finding made by a criminal court in the context of a decision by the Minister not to revoke a mandatory visa cancellation. Their Honours were unanimous in their view that where a Tribunal is invited to make a finding that is contrary to a finding that was made by a court in a criminal matter, a heavy onus of proof applies and the Tribunal should exercise extreme caution in making any contrary finding, especially where the guilty verdict followed a trial.[93] The majority[94] further held that where the factual finding underpins a conviction or sentence that grounds the decision-maker’s jurisdiction, the Tribunal is not permitted to make a contrary finding of fact. In that case, the conviction and sentence did ground the decision-maker’s jurisdiction because they triggered the mandatory cancellation of the Applicant’s visa under s501(3A) of the Act, leading to the Applicant making representations under s 501CA(3)(b) of the Act, thus enlivening the Minister’s power under s 501CA of the Act to make the decision under review. That is the case here in relation to the proceeds of crime offence and the drug supply offences.
[92] [2019] FCAFC 202.
[93] Paragraph 43(b) where McKerracher J cited with approval a passage by Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; per Derrington J at paragraph 150; per Colvin J at paragraph 180.
[94] McKerracher and Colvin JJ.
The Applicant did not give evidence in his trial but he told the police that the money was his own money[95] and his lawyer told the court that the money came from his mother.[96] He said the prosecution disputed that.[97] The Applicant’s mother said their barrister had obtained various documents to prove that she had brought money into Australia from China from the sale of a property.[98] It can reasonably be inferred that this was enough to create reasonable doubt in relation to the $52,000 found in the safe. The offence that was charged in relation to the $49,500 was against s 193B(3) of the Crimes Act 1900 (NSW) (“Crimes Act”) which provided that:
“A person who deals with proceeds of crime being reckless as to whether it is proceeds of crime is guilty of an offence.”
[95] Transcript, page 181, lines 7 to 11.
[96] Ibid, lines 22 to 30.
[97] Ibid, lines 37 to 40.
[98] Transcript, page 229.
The Crimes Act defined “proceeds of crime” as:
“any property that is substantially derived or realised, directly or indirectly, by any person from the commission of a serious offence.”[99]
[99] Section 193A.
Given the wording of s 193B(3) and the definition of “proceeds of crime”, the jury must have been satisfied beyond reasonable doubt that the $49,500 was derived from criminal activity. It follows that the jury did not accept that the money had been the proceeds of a sale of a property in China. In the context of the guilty verdict, the learned Judge’s observation that the provenance of that money was unknown cannot be taken to mean that it was not known whether it was proceeds of crime, only that the exact crime/s from which it was derived were not known. Accordingly, I am satisfied that the Applicant was convicted and sentenced on the basis that he delivered $49,500 that was derived from criminal activity to Yip. As a matter of law, the Tribunal rejects the Applicant’s evidence that it had been legitimately obtained by his mother and given to him.
In any event, I find the Applicant’s evidence on this issue entirely unconvincing. For instance, he was asked if he thought it was strange to meet at a car park rather than taking the money to the other person’s home or the other person attending his home, to which he replied: “I didn’t – so I didn’t feel strange back then. Maybe he didn’t want me to know where he live. And I don’t want to know where he live”.[100] Moreover, there is a discrepancy in his evidence about the amount that was agreed to be repaid. In a letter to the Respondent, dated 2 August 2019, he said he repaid half of the amount that was confiscated. Half of $89,000 plus $3,140 is $46,070. The Applicant gave Yip $49,500, and there was discussion about it being $500 short, indicating that Yip was expecting $50,000. The amount the Applicant put forward in the hearing, $32,000, is closer to a third of the amount that was confiscated. Nor did the Applicant explain to my satisfaction why the person to whom he owed the money was prepared to accept significantly less than what was apparently owed.
[100] Transcript, page 176, lines 17 to 24.
If the Applicant’s version were true, his mother would be able to give corroborating evidence. She made a statutory declaration on 8 July 2019 in support of the Applicant’s revocation request. In it she said:
“After my son was charged and convicted on 1 August 2013, my son told me that he felt regret about (sic) he did.
I was shocked that my son was arrested and charged for the second time and really had no idea about it or why he did it.
Afterward my son told me that in January 2016, one of his friends asked him to repay the money allegedly owed to them. My son did not want to get involved and in fact he wanted to cut his involvement with the past thoroughly he gave the money to the friend on that understanding and thought everything was discharged.”[101]
[101] Exhibit G1, Section 501 G-documents, G39, page 159.
This sworn evidence differs from the Applicant’s evidence that he told his mother that he owed money (and got money from her) before taking the money to Yip. The Applicant’s mother made another statutory declaration on 3 August 2020,[102] in which she addressed many matters but did not discuss the Applicant’s offending and did not seek to correct anything she had said in her first statutory declaration. In the hearing she gave oral evidence that corroborated the Applicant’s evidence. She said she gave him $32,000 to repay a debt.[103] In cross examination, the part of her statutory declaration that stated : “Afterwards my son told me that in January 2016 one of his friends asked him to repay the money allegedly owed to him” was put to her and she confirmed that she had given the Applicant money so he could repay a debt. She did not explain the discrepancy between that evidence and the quoted passage.[104]
[102] Exhibit A3, Statutory Declaration of Ms W affirmed 3 August 2020.
[103] Transcript, page 228, lines 31 to 43.
[104] Transcript, page 228, lines 20 to 38.
I have already said that I do not accept that the money the Applicant gave to Yip was given to him by his mother. Nor do I accept that the Applicant gave the money to Yip in repayment of the money that was confiscated in 2012.
The Applicant’s relationship with Ms W
The Applicant had been in a relationship, and living together, with Ms W since 2005. They broke up in 2011. Ms W, who lives in Melbourne, provided a letter of support dated 7 March 2019.[105] In it she said:
“We had lots of problems in our relationship back in the old days, we were so young and careless of things, we didn’t understand and was so wrong at things. Even though we loved each other but couldn’t find a way to live with each other, without mutual respect, understanding and compromise this relationship finally broke down and ended up in a disaster.
During our relationship Ding had been hanging around with the wrong group of friends and did stupid things… At the very last year before we break up, Ding was always outside with his friends. I started feel like this relationship has come to its end. Without much communication, we hardly seen each other every week. I felt hopeless and felt he didn’t want to settle down so I chose to walk away. Our breakup didn’t went well instead it was so harsh and in so much hate. We were both in sorrow for a while after the split up. We both also know very well how much we still loved each other. I was personally suffering depression and pain from the split up. I was desperately wanting to be healed and moved on so I flied to America in 2012 married my ex-husband and give birth to my daughter [name redacted] in 2013. This marriage ended right after I give birth to [name redacted] I realized this is not the man I want to be with, and that is not the place I want to stay. In fact I have never moved on from Ding. After coming back to Australia finding out he went back in correctional centre I visited him with [her daughter] in October 2013. We talked to each other on phone regularly, and I visit him whenever I can. I also took [my daughter] couple of times to Sydney after he’s out from correctional centre. Ding loves [my daughter] and cares for her a lot. I strongly feel we could build up a family together. We never speak about getting back together because firstly my mom didn’t like him and didn’t like what he was in for. Ding also never speak to me about restarting this relationship again. All these time we remained friends until no long ago go I find out he’s been waiting for me all these years, he’s finally have the courage to tell me he wants to marry me, wants to take care of Leona and start up a new family together… ”
[Errors in original]
[105] Exhibit G1, Section 501 G-documents, G31, page 147.
Ms W’s daughter is referred to as Child A from now on. In his Personal Circumstances form,[106] which formed part of his revocation request the Applicant said:
“We cohabited since 2005, until we broke up after an argument in 2011. After [Ms W] gave birth to [Child A] in 2013, she returned back to Australia and also back to me. We married recently, intend to raise [her daughter] together, and hopefully to have our own child in the future.”[107]
[106] Which the Applicant confirmed was true and correct – see Transcript, pages 27 to 28.
[107] Exhibit G1, Section 501 G-documents, G12, page 72.
In fact, the Applicant and Ms W were married on the same day that the revocation request was signed.[108] Further, Ms W’s letter is clear that she did not return “back to” the Applicant when she returned to Australia in 2013. The Corrective Services records before me indicate that in August 2014, the Applicant told his parole officer that he was in a relationship with another woman and they had been together for three to four years.[109] The Applicant conceded in oral evidence that he had another girlfriend in the period 2013 to 2018.[110]
[108] Exhibit G1, Section 501 G-documents, G32, page 149 and G11, page 65 –
[109] Exhibit R2, Respondent’s Tender Bundle, TB6, page 516.
[110] Transcript, page 65, lines 40 to 44.
The Applicant’s Personal Circumstances form also states:
“I love [Child A] so much, when we were living together in Sydney, I shared financial burden raising [Child A] with my wife [Ms W]. I took care of her, such as feeding, showering, changing nappy, taking my pet dog to play with her, and taking [Child A] to play in the local park…”[111]
[111] Exhibit G1, Section 501 G-documents, G12, page 74.
The Applicant has never lived with Ms W and Child A.[112] Ms W has lived in Melbourne since returning from America. She and Child A have visited the Applicant, with their longest visit lasting for around one week.[113]
[112] Transcript, page 100, lines 1 to 11.
[113] Transcript, page 100, lines 17 to 21.
In a letter attached to his revocation request, the Applicant said:
“I met my partner [Ms W] first in 2005…, we fell in love and lived together until 2011 before our pride got the better of us and we broke up after an argument. She went to America and gave birth to [Child A] before returning to Australia. Although she lives in Melbourne, she often brings [Child A] to see me and I got along with [Child A] nicely…[Ms W] and I understood each other and as the time passed by, we were not getting any younger, and in order to create a healthy upbringing for [Child A], in 2019, we decided to get married.”[114]
[114] Exhibit G1, Section 501 G-documents, G13, pages 83 to 84.
In oral evidence, the Applicant said he and Ms W discussed marriage in 2015 and they got back together in February 2018.[115] When asked if they decided to get married then or were just boyfriend and girlfriend then, he said they considered getting married but they put it off because of his “case” (he was awaiting trial for the proceeds of crime and drug supply offences) and planned to get married around Christmas.[116] In a statutory declaration, Ms W said she visited the Applicant around 11 times after he she came back to Australia (although she did not always bring Child A with her).[117] She said she and the Applicant resumed being boyfriend and girlfriend in February 2018.[118] She said she spoke to him about getting married soon after they got back together, and that she wanted to get married around Christmas 2018.[119]
[115] Transcript, page 22, lines 30 to 33; page 65.
[116] Transcript, page 68, lines 7 to 20.
[117] Exhibit A3, Statutory Declaration of Ms W affirmed 3 August 2020,paragraph 15.
[118] Transcript, page 243, lines 40 to 43.
[119] Transcript, page 244, lines 4 to 33.
However, Ms W did not move to Sydney in 2018 to live with the Applicant when he was free in the community (prior to 31 August 2018 when he was sentenced). She said she decided to go ahead with the wedding in prison because they had planned to get married around that time, and to give the Applicant “emotional support”[120]. The Applicant also put forward emotional support as a reason.[121] Ms W denied marrying the Applicant to strengthen his ability to stay in Australia.[122]
[120] Transcript, page 244, lines 32 to 44.
[121] Transcript, page 68, lines 40 to 43.
[122] Transcript, page 245, lines 15 to 18.
There is no reference to the Applicant and Ms W making plans in early 2018 to get married in any of the documentary evidence including statements from the Applicant and Ms W and two psychological reports written in 2019 and 2020 respectively that discuss the Applicant’s relationship with Ms W. The Applicant said his mother knew about his engagement.[123] His mother gave evidence that “in 2018 they said they were about to get married” and she associated that with her contacting a school in relation to Child A in “early 2018”.[124] However, later in her evidence she said she contacted the school about enrolling Child A in the second half of 2018.[125] The best that can be made of the Applicant’s mother’s evidence is that she was aware of the Applicant’s plan to marry Ms W sometime in 2018.
[123] Transcript, page 206, lines 30 to 33.
[124] Transcript, page 219, line 37 to page 220, line 15.
[125] Transcript, page 234, line 45 to page 235, line 29.
On 31 August 2018, the Applicant was imprisoned. There is a Corrective Services case note, dated 1 October 2018,[126] recording that:
“Whilst being interviewed Inmate SUN [prisoner number redacted] made enquiries about getting married in gaol and what was needed to get the ball rolling.”
[126] Exhibit R2, Respondent’s Tender Bundle, TB6, page 536.
A case note that is dated the following day, that purported to have been made by a different staff member, recorded that:
“Inmate was interviewed by [names redacted] regarding his request for a marriage whilst in gaol. Inmate stated his partner is [Ms W] she currently resides in Melbourne, they have been together for 12 years. Stated they had not thought about marriage before, saw it as a piece of paper, inmate stated he ‘now needs it’ and that she wants to get married too. He believes she is an Australian citizen. Inmate will discuss with family logistics and will return to SAPO team should he wish to go ahead.”[127]
[Underlining added]
[127] Exhibit R2, Respondent’s Tender Bundle, TB6, page 536.
A case note dated 3 October 2018, purportedly made by yet another staff member recorded that:
“Ding will need to seek employment when released, would like to have his own business, unsure whether he will remain in Australia or be deported to China…”[128]
[Underlining added]
[128] Ibid, page 537.
A case note dated 31 October 2018, attributed to another staff member recorded that:
“…Inmate’s request to be married whilst in custody has been denied as inmate liable for visa cancellation and possible deportation and he has no de-facto or partner listed as an authorised visitor. He has also not received any visits from a potential bride.”[129]
[129] Ibid, page 538.
The Applicant denied that the first time he considered marrying Ms W was in October 2018. He said the case notes were the result of his “inaccurate expressions in English”.[130] He said the reference to previously thinking that marriage was just a piece of paper referred to his thoughts and perceptions long ago, around 2011. He explained the reference to now needing it by saying that it was their original plan to get married.[131] When asked why he did not say that he had been planning to get married since early 2018, he said he was asked how long he had been with his partner and that made him think back to his first relationship with Ms W.[132] These explanations are unconvincing, chiefly because they do not make sense, and I reject them.
[130] Transcript, page 71, lines 8 to 18.
[131] Transcript, pages 71, line 37 to page 72, line 20.
[132] Transcript, page 72, lines 23 to 30.
The case notes were produced under summons. There appear to have been made contemporaneously. Despite having been made by different staff members, they are consistent with each other. I note that the Applicant admitted that, at the time he had the conversations about marrying Ms W, he knew he could be deported.[133] However, he denied that he got married to strengthen his application for revocation of the cancellation of his visa.[134] I find the first three case notes to be reliable. I find the oral evidence of the Applicant and Ms W to the effect that they decided to get married in February 2018 to be less reliable because if it were true it could reasonably be expected to have been included in their written material and communicated to the psychologists who discussed their relationship with each of them. In relation to the fourth case note, I accept that a partner or “potential bride” might not volunteer, or be required to, disclose she is a partner or potential bride when arranging to visit a prisoner.
[133] Transcript, page 73, lines 40 to 44.
[134] Transcript, page 98, lines 1 to 4.

Give the previous long-term relationship between the Applicant and Ms W between 2005 and 2011, and their contact after she returned to Australia, I am satisfied that there is an emotional bond between them. I accept that they have been in a long-distance romantic relationship since early 2018. However, their evidence of an agreement to marry in February 2018 is very recent and it is inconsistent with Ms W’s letter of support dated in 2019, representations made by the Applicant in his revocation request and the Corrective Services case notes. Accordingly, I am not satisfied that they made plans to marry before October 2018. Their current romantic relationship is relatively new and it has not involved them living together or even in the same state. I find that, as far as the Applicant is concerned, there is an element of convenience to their marriage, related to his efforts to have his visa returned to him. I am not satisfied that his marriage involves the level of commitment that is typically associated with a genuine marriage.

Providing false or misleading information to the Department on the revocation request form

The pro-forma revocation request form contains a section called “FAMILY DETAILS” with three questions.[135] The first asks “List all living parents, step-parents, brothers, sisters, and adult children.” In response that question the Applicant listed his mother in Australia and his father in China.
[135] Exhibit G1, Section 501 G-documents, G12, page 77.
The second question asks “List other close family members including in-laws, cousins, grandparents, uncles/aunts”. In response to that question, the Applicant listed his maternal grandmother, two aunts, two uncles, and two cousins all in Australia. He did not include his paternal grandparents, or a paternal aunt in China. I note that this question refers to close family members.
The third question asks “State how many other relatives you have in Australia or overseas”. I note that this question refers to other relatives. In response to this question the Applicant indicated that he had four uncles/aunts, two cousins, and one grandparent in Australia, and he did not indicate any relatives overseas. It appears that the relatives he indicated were in Australia are the same relatives that he listed in response to question two. Again, he did not include his paternal grandparents, or a paternal aunt, who all live in China.
The Applicant was asked why he did not include his Chinese relatives. He said he is closer to his relatives on his mother’s side so it did not occur to him to include the relatives on his father’s side.[136] However, that does not explain why he did include his aunts on his mother’s side despite stating in a statutory declaration made on 26 August 2020 that he was not close to them and had not seen one of them in decades.[137] Nor does it explain why he did not include his father’s family in the third question. Accordingly, I do not accept this explanation. I note that the Applicant suggested that his father’s parents might not have been alive, but did not put that forward as a reason for not including them, and he later said they “should be” still alive.[138] I am satisfied that the Applicant deliberately concealed his paternal aunt and Grandparents from the Department for the purpose of assisting his request for revocation of the cancellation of his visa.
[136] Transcript, page 31, lines 4 to 8.
[137] Exhibit A9, Statutory Declaration of the Applicant affirmed 26 August 2020.
[138] Transcript, page 32, line 18.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, including:
(c)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(d)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(e)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(f)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(g)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(h)The cumulative effect of repeated offending;
(i) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(j)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(k)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
I have found that the Applicant engaged in violence towards his mother on one occasion in 2007. This is serious conduct although, according to the evidence before me, it was isolated and it happened 13 years ago.
A year later, the Applicant and his friends were in possession of three machetes in the context of arranging a fight. While this offence was not one of violence, it was related to planned violence and the sentence of imprisonment imposed indicates that the Court regarded it as serious. The substantial periods of imprisonment that were imposed for the money laundering and supply of dangerous drugs offences speak to their seriousness. Although the 2012 and 2016 money laundering offences were described by the respective sentencing Judges as towards the lower end of seriousness, and the drug supply offences were also described as toward the lower end with respect to the amounts involved, these offences all attracted substantial head sentences and non-parole periods.
The Applicant’s offending was relatively frequent between 2007 and 2016, with some six offending episodes (some involving multiple offences) and some 10 traffic offences. There was a clear trend of increasing seriousness, with the Applicant committing the first money laundering offences in 2012, then another money laundering offence and three supply dangerous drugs offences in 2016. He committed those offences only three months after completing his parole for the 2012 offence. He also committed those offences after being notified that his visa could be cancelled and receiving a written warning that further offending could result in his visa being cancelled. His offending, including his traffic history, shows a disregard for the law and a preparedness to engage in serious criminal activity even after being imprisoned and nearly having his visa cancelled.
In 2012, the Applicant provided false and misleading information on an Incoming Passenger Card by representing that he did not have any criminal convictions. In 2019 he did not disclose the existence of relatives who live in China. Concealing evidence of bad character on an Incoming Passenger Card undermines the ability of the Australian authorities to make informed decisions about whether allowing a person to enter or re-enter Australia would pose an unacceptable risk of harm to the Australian community and, as such, it is conduct that strikes at the heart of the immigration system. Further, omitting information that is relevant to the Direction undermines the Respondent’s ability to apply s 501CA(4) of the Act.
I do not consider factors (b), (c) or (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances.
The rest of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
· paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
· paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
Harm from further offending
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending.
Very little was said in the hearing about the drug supply offences committed by the Applicant in September 2016. The focus of the Applicant’s written evidence was on the proceeds of crime offending and the explanations he put forward for those. However, to my mind the supply offences are the worst in terms of the tangible and direct harm that is caused to individuals and the broader community from the circulation of illicit drugs. The Applicant was engaged in the supply of methamphetamine, MDMA and another amphetamine analogue. Of these substances, methamphetamine has the worst reputation. It is a drug that is known to be addictive to some people and to have a potential to cause physical, psychological and financial harm to users. Circulating a harmful drug of dependence, such as methamphetamine, in the Australian community potentially brings about misery to those who become addicted, their loved ones, and the victims of drug-related crime. What is more, these impacts place a burden on community resources including the health system, police services and the courts.
The Applicant’s traffic history shows a long-standing disregard for road rules. Some of his offending is the kind that tends to increase the risk of a collision such as drink-driving and using a hand-held mobile phone while driving. The risk of harm should the Applicant commit those types of traffic offences is physical or psychological injury, or death, to other road users.
The Applicant was convicted of three proceeds of crime offences, one involving a credit card that did not belong to him and the other two involving large amounts of cash. Broadly speaking, dealing in stolen property provides incentive for people to steal. Dealing in money that is the proceeds of crime helps to conceal and/or support serious crime, including organised crime, as it allows criminals to benefit financially from their crimes and it potentially funds more crime, e.g. the purchase of drugs to on-sell to individuals in the community. As the learned sentencing Judge said in relation to the 2016 offences:
“Money laundering offences involve the dealing of money which is a result of criminal activity in an effort to hide its true source. The type of offending facilitates criminal activity to occur and flourish..”[139]
[139] Exhibit G1. Section 501 G-documents, G6, page 43.
The harm from further offending of this kind includes harm to the wider community through the facilitation and promotion of criminal activity.
Risk of re-offending
The Applicant expressed remorse for his offending and a commitment to avoid drugs and criminal associates. It was contended on the Applicant’s behalf that his efforts to avoid criminal associates included moving away after his most recent offence. However, it was his mother who moved house and her new home is the same suburb and the old one.[140] The Applicant lived with his mother previously (in 2016 he was living there, caring for his grandmother who also lived there) and he moved with her.[141] He intends to live with her again, with his wife and step-daughter, if he gets his visa back.[142] Accordingly, he will be living in the same suburb that he lived in when the was offending.
[140] See Exhibit A3, Statutory Declaration of the Applicant’s mother affirmed 3 August 2020 for her current address,
[141] See Exhibit R2, Respondent’s Tender Bundle, TB6, page 531 for the new address.
[142] Exhibit A2, Statutory Declaration of Ding Sun affirmed 3 August 2020, paragraph 60.
The Applicant said he wants to be a good husband and father, and to look after his grandmother. His mother, grandmother and wife all provided letters and statutory declarations in support of the Applicant. They each said they are confident that he will not re-offend. Ms W is prepared to entrust her child to the Applicant in the sense that she has brought him into Child A’s life in the role of step-father. There are letters of support from other people that speak well of the Applicant. While it can be expected that the Applicant’s family know him well, none of them display detailed knowledge of, or much insight into, the Applicant’s offending. Their ability to assess his risk of re-offending is thus limited.
Nor does the Applicant display much insight into his offending. He has put forward various reasons at various times to explain his offending including ignorance of the law, criminal associates and heavy drug use. However, I do not find these reasons convincing for the reasons that follow.
In his revocation request, the Applicant said the following about the 2012 proceeds of crime offence:
“In the past, due to my ignorance of the laws, I blindly trusted my ‘friends’ and thought I was only doing them a favour at their request, not realising the legal consequences.”[143]
and
“… I am kind and likes to lend a helping hand, I often don’t know how to refuse other people’s requests. As for the crimes I committed, I put loyalty before laws to help those “friends” delivering things. I also used illicit drugs when I felt depressed to numb myself… I feel ashamed for my naivety and full of remorse for what I have done.”[144]
[Errors in original]
[143] Exhibit G1, Section 501 G-documents, G12, page 78.
[144] Ibid G15, page 90.
In relation to ignorance of the law, the Applicant told the Tribunal that he did not know it was illegal to handle money that was from an illegal source. However, he ultimately admitted that he knew it was illegal to do that, that he did not care where the money he collected in 2012 came from, and that he considered his job at the time to include collecting money that was derived illegally.[145] I note that after the Applicant was arrested, he continued to work for the phone shop[146] and after he was released from prison he went back to work there (although not immediately).[147] Having no regard for the law is different from not knowing the law. I am satisfied that the Applicant knew he was acting illegally and did not care. His many traffic infringements, and the episodes when he produced a fake license and a license that was not his to the police, similarly indicate a disregard of – even a contempt for – the law.
[145] Transcript, page 151, lines 6 to 15.
[146] Exhibit R2, Respondent’s Tender Bundle, TB6, page 496.
[147] Transcript, page 153, lines 1 to 5.
The Applicant’s characterisation of himself as a passive and naive participant in his associates’ offending is not borne out by the evidence. It was the Applicant who got the bag containing the machetes out of the boot of his car, who got his friend to lend his licence when he was pulled over by police for talking on his mobile phone, who was carrying a fake licence with him on a another occasion, who was entrusted to collect some $90,000 of proceeds of crime, and who was engaged in the supply of three different types of drugs. The objective evidence is indicative of the Applicant making free and conscious choices to offend.
The other key factor that the Applicant has put forward is a drug problem, which he now says he had throughout the period of offending. The first time he ever claimed to have had a drug problem was in his pre-sentence interview in 2018, and he described his use as “periodically” and “sometimes daily”.[148] There is no evidence of him reporting heavy drug use to Police or Corrective Services prior to that despite the topic having been raised in two previous pre-sentencing interviews and the Applicant having been on parole during 2014. Nor is there any objective evidence of heavy drug use or a drug dependency. What is more, the Applicant’s recent claims of a drug problem are not coherent. For example, he said in his revocation request, in context of the 2012 offence, that he used illicit drugs when he felt depressed,[149] whereas he gave evidence that from 2011 he was using methamphetamine every one or two days.
[148] Exhibit R2, Respondent’s Tender Bundle TB6, page 489.
[149] Exhibit G1, Section 501 G-documents, G15, page 90.
The evidence in relation to the Applicant’s drug use is as follows:
·a pre-sentence report dated 30 April 2008[150] said that the Applicant “advised he has not previously experienced any mental health or drug and alcohol issues” and “attributed his offending behaviour to problems he had been experiencing at the time, including issues with his girlfriend and a need to buy groceries”;
[150] Exhibit R2, Respondent’s Tender Bundle TB6, page 480.
·on 15 October 2009, the Applicant was intercepted in a car with another person. Inside the car police found a straw, ice pipe and two plastic satchels containing a substance that the Applicant identified as “ice”;
·on 11 November 2008, the Applicant’s urine had tested positive for methamphetamine. (He subsequently claimed his drink had been spiked);
·a Breach of Parole report dated 26 October 2009 said he had undergone random urine tests since 11 November 2008 that had all been negative;[151]
[151] Ibid, page 482.
·in July 2012, Police executed a search of the Applicant’s home and found, among other items, methamphetamine and drug related paraphernalia including packaging, ice pipes and scales;
·a 2013 pre-sentence report recorded that alcohol and drug issues were discussed with the Applicant and that:
“Mr Sun claims that he tried Cannabis and Ecstasy on one occasion when he was 18 years old, however had an adverse reaction. The offender stated he consumes alcohol rarely in a social capacity and will have two to three standard drinks on each occasion… Mr Sun was subject to urinalysis on 11 November 2008 which tested positive for Amphetamines and Methamphetamine. When challenged on this information, Ms (sic) Sun claims that he had been “drugged” on that occasion. The offender was directed to undertake urinalysis on 16 July 2013 which returned negative results for illicit substances.”
·according to the Applicant, he did not use drugs while in prison for the 2012 offence or for a period after he was released but he relapsed after having contact with his drug-using peers;[152]
·on 27 September 2016, police found evidence of drug supply at the Applicant’s home, in his bedroom;
·according to the Applicant, after his arrest, he engaged in drug counselling with Drug and Alcohol Multicultural Agency Counselling Service (“DAMEC”) and stopped using drugs.[153] The 2018 sentencing remarks state that he commenced that counselling in March 2017. The Applicant did not indicate how many sessions he attended before disengaging from the service;
·according to a letter from DAMEC[154] the Applicant “re-engaged” with the service on 15 May 2018 (which was two weeks after he was convicted). In a statutory declaration dated in August 2020 the Applicant said he attended “at least six sessions in total” in 2018, and he started attending drug counselling in Immigration Detention in July 2020[155]; and
·the Applicant has stayed away from drugs for nearly four years[156].
[152] Exhibit A12, Forensic Psychological Report of Jason Borkowski dated 21 August 2020, page 7.
[153] Exhibit G1, Section 501 G-documents, G15, page 91.
[154] Exhibit G1, Section 501 G-documents, G54.
[155] Exhibit A2, Statutory Declaration of Ding Sun affirmed 3 August 2020.
[156] A2, paragraph 26.

The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the non-citizen, noting that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the time until the child turns 18, and including any Court order relating to parental access and care arrangements;
·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizens ability to maintain contact in other ways;
·     whether there are other persons who already fulfil a parental role in relation to the child; and
·     any known views of the child.
Child A was born in 2013 and is seven years old. The Applicant is not her biological father, and he has never lived in the same household as her. The Applicant has never provided financial support for Child A. Nor has he ever made important decisions in her life, although Ms W has recently discussed Child A’s schooling and a medical issue with the Applicant.
Corrective Services records[170] indicate, and Ms W agreed, that Ms W and Child A visited the Applicant in prison twice in February 2014, and twice in May 2014. Child A would have been less than a year old at these times. In addition, in the Applicant’s revocation request form he listed two visits at his mother’s home in 2015, two visits at his mother’s home in 2017 and one visit in Immigration Detention on his wedding day.
[170] Exhibit R3, NSW Department of Corrective Services, Probation and Parole Service - List of Offender Visits lodged 31 August 2020.
Both the Applicant and Ms W gave evidence that the longest visit was around a week. I am prepared to accept that the Applicant helped to look after Child A on the four occasions when she and Ms W visited him in his mother’s home. It is unlikely that these four visits could have resulted in a meaningful bond between the Applicant and Child A.
Ms W gave evidence to the effect that Child A became much closer to the Applicant in 2018. She said Child A thinks of the Applicant as a father figure and that she loves him. She agreed that the only time Child A has visited the Applicant since he went into custody was on 23 February 2019[171] (the day Ms W and the Applicant got married). However, she said Child A and the Applicant are in frequent contact using WeChat and video calls.[172]
[171] Transcript, page 93
[172] Transcript, page 243, lines 20 to 23.
The Applicant gave evidence that if he is returned to the community his plan is that Ms W and Child A would move to Sydney and they would live together as a family with the Applicant fulfilling a parental role for Child A. Child A presently lives with her mother in Melbourne.
I accept that Child A has developed an emotional bond with the Applicant, predominantly via virtual means. I accept that Child A, in the absence of a relationship with her biological father, has come to see the Applicant as a father figure and would want him to live with her and Ms W. However, this is a relatively new development, and it has largely come about via long-distance communication. Ms W, Child A and the Applicant have never lived together as a family. Child A has never relied on the Applicant to fulfil the role that a physically present parent fulfils. Ms W has always fulfilled that role, and there is no suggestion that she will not continue to do so. Living with the Applicant as a family means moving away from her home in Melbourne and relocating to Sydney.
If the Applicant is removed to China, he and Child A can continue to communicate in the way they do now, although realistically I accept that communication would most probably dwindle over time in the absence of any hope of the Applicant returning to Australia.
If the Applicant were to return to the community, there is potential for him to be physically present in Child A’s life for the next 11 years and that is preferable to long-distance communication. Whether that potential would be fulfilled would, of course, depend on the Applicant’s relationship with Ms W lasting and the Applicant refraining from further offending that could result in his incarceration or deportation. Both of those involve a reasonable degree of uncertainty. On the basis of the Applicant’s current involvement in Child A’s life and the potential for future involvement in a parental role, I allocate a slight measure of weight in favour of revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration B
This Primary Consideration B weights slightly in favour of revocation.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[173]
[173] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
Analysis – Allocation of Weight to this Primary Consideration C
In assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:
·the Applicant moved to Australia in 2000 when he was 14 years of age;
·in 2007 he was caught drink-driving, he assaulted his mother (but was not charged with any offence arising from that), and he committed the “participate in criminal group” offence;
·he has committed several serious crimes in Australia including multiple money laundering and drug supply offences;
·he has committed offences arising from driving unlicensed and providing false identification to police that indicate a contempt for the rules and regulations that governs the community to which he seeks to be returned;
·he engaged in his most serious offending after he had been warned that further offending could result in his visa being cancelled;
·there is a substantial risk that he will re-offend;
·he knowingly provided false and misleading information to the department in 2012 regarding his criminal record and in 2019 in relation to his request for revocation of the cancellation of this visa;
·he held gainful employment in 2005 and 2006. He volunteered for the Olympic torch relay in 2000, joined a bush fire donation appeal in 2013, and performed some voluntary work for the Australian Chinese Descendants Mutual Association for which he received certificates of appreciation from Fairfield City in 2017 and 2018. He was employed by a mobile phone shop for several years although he knew it was involved in money laundering so that employment cannot go in his favour; and
·if the Applicant is removed to China it will adversely affect his mother, grandmother and Ms W - addressed below in Other Considerations, and it would be against the best interests of Child A – addressed above in Primary Consideration B.
Conclusion: Primary Consideration C
The Applicant has repeatedly breached the trust of the Australian community, even re-offending after his visa was considered for cancellation in 2014. Taking all of the above matters into account, Primary Consideration C weighs heavily in favour of non-revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulment obligations and none arise on the evidence. This Other Consideration is not relevant.
(b) Strength, nature and duration of ties
The Applicant has lived in Australia for over 20 years since the age of 14. On account of his youth when he relocated, the time he has been here, and the fact that he did not commence offending soon after arriving in Australia, he is entitled to some tolerance under paragraph 14.2(1)(a) of the Direction.
His limited legitimate employment and his voluntary work afford him some weight under paragraph 14.2(1)(a)(ii) of the Direction.
I am willing to accept that, given the length of time the Applicant has lived in Australia, he has some social ties to the Australian community. In terms of familial ties, he has a mother, grandmother, wife and step-daughter with whom he claims to be close. He has two aunts with whom he claims he is not close.
I am satisfied that Ms W will suffer emotional hardship if the Applicant is removed to China. She said she would not move to China and I accept the reasons she gave without reiterating them. The Applicant’s removal to China would deny her the opportunity to have the Applicant live with her and Child A in a family unit. It would also likely end their relationship. I take into account that Ms W said she never got over the Applicant after they broke up in 2011, and I accept that losing him again could well be something she never gets over. There is no evidence that Ms W would suffer in other ways such as financially or in terms of her mental or physical health, and I am not satisfied that she would. Child A would be adversely impacted by the Applicant’s removal as discussed under Primary Consideration B.
The Applicant’s mother and grandmother both gave evidence that if the Applicant is removed to China they would return with him. The Applicant’s grandmother said she needs full-time care and that she needs the Applicant to provide that care. She is 89 years old. I accept that she needs full-time care. I further accept that previously the Applicant was her full-time carer. During that time, she lived in the Applicant’s mother’s home with her and the Applicant. According to the Applicant’s mother, his grandmother currently lives in her own home and another of her daughters cares for her. That arrangement will end in January 2021.[174] Prior to that, the Applicant had arranged for a lady, Ms Liu, to live with his grandmother and Centrelink paid her a Carer payment. The Applicant’s grandmother gave evidence that she wanted the Applicant to be her carer. When asked if someone else could provide the care she needs, she said no but did not give any reason other than that she wanted the Applicant to care for her. The Applicant’s mother suggested that it would be difficult to get someone else to be her mother’s full-time carer the way Ms Liu was, as it requires the carer to live with her and she is very stubborn and “has her own habits”.[175] However, this is speculative and the family has three months to explore this option.
[174] Transcript, page 217.
[175] Transcript, page 222, lines 35 and 36.
Further, there are other way to secure care for the Applicant’s grandmother, such as paying for a carer to come to the home to provide care. The Applicant’s mother owns an investment property that is not mortgaged and from which she derives rental income. She is also employed full-time. She owns the home she lives in and it is subject to a mortgage. She told the Tribunal that her mother has “salary income in China”.[176] No evidence was put forward[177] of any financial impediments to paying a carer to look after the Applicant’s grandmother from January 2021 onwards. I do not accept that if the Applicant is removed to China, there will not be any suitable care option for his grandmother.
[176] Transcript, page 231, lines 21 to 23.
[177] Except for a line in the psychologist report that I was not relied on by the Applicant and to which I have had no regard.
The Applicant’s removal from Australia would put his grandmother in a position where she will suffer emotional hardship and have to accept care from someone other than him, or she will relocate to China at her age and in her condition which could be physically and emotionally hard on her. It is reasonable to conclude that she will choose the option that is preferable to her.
The Applicant’s mother has some deterioration in her eyesight and she suffered ovarian cancer some years ago but is in remission. There was evidence that her night vision is poor and she has difficulty looking at a computer screen. The Applicant said she needs help to lift heavy things. The Applicant’s mother works full-time and lives on her own. She told the Tribunal she does all her housework and she does not rely on anyone to care for her.[178] It was submitted on the Applicant’s behalf that there are varying degrees of need and that the mere fact that the Applicant’s mother currently manages without the Applicant’s help does not mean she would not benefit from his assistance and thus have need of his assistance. I respectfully accept that submission. The same could fairly be said of many members of the community who would prefer to have some assistance but manage to get by without it. While I accept the Applicant’s submission, I am not persuaded that the Applicant’s mother is suffering significant hardship because the Applicant is not there to help her or that she would if the Applicant were not returned to the Australian community. I wish to add that the Respondent’s efforts to ascertain whether the Applicant’s mother currently managed without assistance were relevant and proper enquiries.
[178] Transcript, page 220, lines 37 and 40.
I am satisfied that the Applicant’s mother would suffer emotional hardship if he were removed to China. He is her only child and they have a loving relationship. She said she would go to China if the Applicant is deported. This would mean giving up her home and employment, although the fact that she is willing to do it indicates that she considers it to be a viable option.
On the basis of the Applicant’s social and familial ties, and the impact on members of his family of his removal, he is entitled to a significant measure of weight under paragraph 14.2(1)(b) of the Direction.
Overall, I am satisfied that the strength, duration and nature of ties to the Australian community warrants the allocation of significant weight in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (d), is therefore neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account 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:
·the non-citizen’s age and health;
·whether there are any substantial language or cultural barriers; and
·any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a 35 year old man who is able bodied and does not claim to have any medical or psychological conditions.
The Applicant lived in China until the age of 14 and he completed primary school there. He speaks Mandarin, and he conceded that he can read and write some Mandarin. He has travelled back to China for periods ranging from three weeks to three months on five occasions.[179] His most recent trip was for three months in 2016 when he visited his paternal grandparents and saw his father.[180] China is not unfamiliar to him. I am not satisfied that the Applicant would face any substantial language or cultural barriers in China.
[179] Transcript, pages 49 to 51.
[180] Transcript, page 52, lines 10 to 39.
The Applicant said he does not have social support in China. This is not strictly true – his father, a paternal aunt and his paternal grandparents live there, although I accept that he is not close to any of them. He has not made enquiries with any of these people about whether they could provide assistance to him if he is removed to China, however he said if that happened he would likely contact one of his aunts on his mother’s side who has business connections in China.[181]
[181] Transcript, page 47, lines 40 to 47
There is no evidence before me about the Applicant’s employment prospects in China although I note that he is able bodied, he has some work experience, and he has completed a course in asbestos removal and several TAFE courses.[182]
[182] G19 to G20.
If he is removed to China, the Applicant will face the challenge of securing accommodation and a means of supporting himself. He will not have an existing support network to assist him, except for possibly some assistance from a maternal aunt. These challenges are likely to be short-term only and would not prevent him from successfully re-settling in China.
Accordingly, I am of the view that this Other Consideration (e) weighs slightly in favour of revocation of the reviewable decision.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)strength nature and duration of ties: weighs significantly in favour of revocation;
(c)impact on Australian business interests: not relevant;
(d)impact on victims: neutral; and
(e)extent of impediments if removed: weighs slightly in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s visa?

In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration B weighs slightly in favour of revocation;
·Primary Consideration C weighs heavily in favour of non-revocation; and
·To the extent that Other Considerations (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.
Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 192 (one hundred and ninety-two) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

..........................[SGD]..............................................
Associate
Dated: 18 September 2020
ANNEXURE A – EXHIBIT LIST

EXHIBIT No

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (G1 to G59 pages 1-267)

R

-

17 JUL 2020

R1

Respondent’s Statement of Facts, Issues and Contentions (pages 1-19)

R

-

17 AUG 2020

R2

Respondent’s Tender Bundle (TB1 to TB7 pages 1-584)

R

-

17 AUG 2020

R3

NSW Department of Corrective Services, Probation and Parole Service - List of Offender Visits

R

-

31 AUG 2020

A1

Applicant’s Statement of Facts, Issues and Contentions (2 pages)

A

-

5 AUG 2020

A2

Statutory Declaration of Ding Sun

A

3 AUG 2020

5 AUG 2020

A3

Statutory Declaration of the Applicant’s Mother

A

3 AUG 2020

5 AUG 2020

A4

Statutory Declaration of Ms W

A

3 AUG 2020

5 AUG 2020

A5

Statutory Declaration of the Applicant’s Grandmother

A

3 AUG 2020

5 AUG 2020

A6

Statutory Declaration of Mr Liu

A

3 AUG 2020

5 AUG 2020

A7

Statutory Declaration of Ms Zhao (interpreter)

A

3 AUG 2020

5 AUG 2020

A8

Applicant’s Submission (Correct G13 - Annexure A)

A

23 FEB 2020

12 AUG 2020

A9

Further Statutory Declaration of Ding Sun

A

26 AUG 2020

26 AUG 2020

A10

Further Statutory Declaration of Ms W

A

25 AUG 2020

26 AUG 2020

A11

Further Statutory Declaration of Ms Zhao (Interpreter)

A

26 AUG 2020

26 AUG 2020

A12

Forensic Psychological Report of Jason Borkowski

A

21 AUG 2020

26 AUG 2020

A13

Applicant’s Clinical Records

A

-

26 AUG 2020

[2020] AATA 3683

18 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

EXHIBIT No	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G59 pages 1-267)	R	-	17 JUL 2020
R1	Respondent’s Statement of Facts, Issues and Contentions (pages 1-19)	R	-	17 AUG 2020
R2	Respondent’s Tender Bundle (TB1 to TB7 pages 1-584)	R	-	17 AUG 2020
R3	NSW Department of Corrective Services, Probation and Parole Service - List of Offender Visits	R	-	31 AUG 2020
A1	Applicant’s Statement of Facts, Issues and Contentions (2 pages)	A	-	5 AUG 2020
A2	Statutory Declaration of Ding Sun	A	3 AUG 2020	5 AUG 2020
A3	Statutory Declaration of the Applicant’s Mother	A	3 AUG 2020	5 AUG 2020
A4	Statutory Declaration of Ms W	A	3 AUG 2020	5 AUG 2020
A5	Statutory Declaration of the Applicant’s Grandmother	A	3 AUG 2020	5 AUG 2020
A6	Statutory Declaration of Mr Liu	A	3 AUG 2020	5 AUG 2020
A7	Statutory Declaration of Ms Zhao (interpreter)	A	3 AUG 2020	5 AUG 2020
A8	Applicant’s Submission (Correct G13 - Annexure A)	A	23 FEB 2020	12 AUG 2020
A9	Further Statutory Declaration of Ding Sun	A	26 AUG 2020	26 AUG 2020
A10	Further Statutory Declaration of Ms W	A	25 AUG 2020	26 AUG 2020
A11	Further Statutory Declaration of Ms Zhao (Interpreter)	A	26 AUG 2020	26 AUG 2020
A12	Forensic Psychological Report of Jason Borkowski	A	21 AUG 2020	26 AUG 2020
A13	Applicant’s Clinical Records	A	-	26 AUG 2020