Tam and Minister for Immigration and Multicultural Affairs (Migration) - [2024] ARTA 44

Tam and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 44 (10 December 2024)
Applicant/s:  Siu Kuk Tam
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/7124

Tribunal:Deputy President Thompson SC
Place:Perth
Date:10 December 2024

Decision:The decision of a delegate of the Minister dated 16 September 2024 not to revoke the cancellation of the Applicant’s Partner (Class BS) (subclass 801) is set aside and substituted with a decision that the cancellation of the Applicant’s visa is revoked under section 501CA(4) of the Migration Act 1958 (Cth).

..............................[SGD] ..............................
Deputy President
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – expectations of the Australian community – extent of impediments if removed – Applicant is a 61-year-old year old citizen of China – extent of impediments if returned to China – Non-Revocation Decision is set aside
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) - Schedule 16 Part 5 section 24
Dangerous Drugs Ordinance (Hong Kong) - cap 134
Migration Act 1958 (Cth) – sections 15, 189, 196, 197C, 198, 499(1), 499(2A), 501(3), 501(3A), 501(6)(a), 501(7)(c), 501CA(4), 501CA(4)(b), 501CA(4)(b)(ii), 501E, 501F, 503
Migration Regulations 1994 (Cth) – Schedule 5 cl 5001
Misuse of Drugs Act 1981 (WA) – section 34(1)(aa)
CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121, 136
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4171
Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
SECONDARY MATERIALS
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Schedule 16 Part 5 section 24
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024) – paras 5.2, 7, 8, 8.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.2, 8.1.2(1), 8.1.2(2)(a), 8.1.2(2)(b), 8.5, 8.5(1), 8.5(2), 8.5(3), 8.5(4), 9, 9.1, 9.2(1)(b)
‘Laws & Penalties: Penalties for Narcotics Offences’, Hong Kong Police Force’ (Web Page, December 2024) < align="center">Statement of Reasons
THE APPLICATION

Ms Tam has sought review of a decision of a delegate of the Respondent (Minister) dated 16 September 2024, not to revoke the cancellation of her Partner (Class BS) (subclass 801) visa under s 501CA(4) of the Migration Act 1958 (Act).[1]
[1] Exhibit R1, G5, 33.
BACKGROUND
Ms Tam is a 61-year-old woman who is a citizen of China[2], residing in Hong Kong, prior to her arrival in Australia on 3 September 2011.[3]
[2] Exhibit R1, G5, 33.
[3] Exhibit R1, G35, 137.
Ms Tam was convicted on 22 December 2022, on her plea of guilty, in the District Court of Western Australia, of 3 counts of ‘Possession of a Prohibited Drug With Intent to Sell or Supply (Methylamphetamine)’, and was sentenced to a total of 3 years and 6 months in prison, with eligibility for parole.[4]
[4] Exhibit R1, G8, 54.
On 29 May 2024, the Minister cancelled Ms Tam’s visa under section 501(3A) of the Act. The basis of the cancellation was that Ms Tam had a substantial criminal record within the meaning of section 501(6)(a), and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory (Cancellation Decision).[5] Ms Tam was notified of the Cancellation Decision by letter dated 29 May 2023 which was hand delivered to her at Bandyup Women’s Prison.
[5] Exhibit R1, G36, 138.
On 22 June 2023, Ms Tam made representations to the Minister requesting revocation of the Cancellation Decision under section 501CA of the Act.[6]
[6] Exhibit R1, G9, 56.
On 16 September 2024, pursuant to section 501CA(4) of the Act, a delegate of the Minister decided not to revoke the Cancellation Decision.[7] Ms Tam was notified of the delegate’s decision, which was emailed to her lawyer on 17 September 2024 (Non-Revocation Decision),[8] and was hand-delivered to her, also on 17 September 2024.[9]
[7] Exhibit R1, G4.
[8] Exhibit R1, G3.
[9] Exhibit R1, G38, 170.
Ms Tam lodged an application for review of the Non-Revocation Decision with the Administrative Appeals Tribunal (AAT) on 17 September 2024.[10] On 14 October 2024, the new Administrative Review Tribunal (ART) replaced the AAT and all matters which were before the AAT were transferred to the ART[11]. References to the Tribunal in this decision refer to the AAT prior to 14 October 2024, and the ART from that date.
[10] Exhibit R1, G2.
[11] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act2024 (Cth), Schedule 16 Part 5 section 24.
THE HEARING AND THE EVIDENCE
The hearing took place in Perth on 19 and 20 November 2024. Both parties were legally represented. Ms Tam was assisted by an interpreter in the Mandarin language.
The following documents were marked as exhibits:
(a)Exhibit A1 – the Marriage Certificate for Ms Tam and Mr Cross, dated 4/06/14;
(b)Exhibit A2 - a letter from Dr Taj dated, 22/08/23;
(c)Exhibit A3 – a letter from Mr Paul Cross, dated 25/08/23 including attachments of PGC Irrigators Financial Statements for the years 2022 – 2024;
(d)Exhibit A4 – a letter from Mr Ming Yeung Or (Oscar), dated 29/10/24;
(e)Exhibit A5 – a letter from Ms Yuet Kong (Carina), dated 29/10/24;
(f)Exhibit A6 - Ms Tam’s responsive statement, dated 12/11/24;
(g)Exhibit R1 – the section 501G documents comprising 174 pages; and
(h)Exhibit R2 – the supplementary section 501G documents comprising 37 pages.
I also had regard to a Statement of Facts, Issues and Contentions (SFIC) filed by Ms Tam on 14 October 2024, and by the Minister on 28 October 2024.
Ms Tam and Mr Cross both gave evidence and were cross-examined. Ms Tam’s evidence was given through an interpreter, although she was able to, and did, communicate in English to a limited extent. Both she and Mr Cross struck me as genuine and truthful in their evidence. Exhibits A4 and A5, the evidence of Ms Tam’s daughter and son-in-law, were accepted into evidence without them being required for cross-examination.
LEGISLATIVE FRAMEWORK
Migration Act
Under sections 501(3) and (3A) of the Act, the Minister must cancel a person’s visa if he or she is satisfied that the person does not pass the ‘character test’, and the visa-holder is serving a full-time sentence of imprisonment in a custodial institution of the Commonwealth, a State, or a Territory.
Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a substantial criminal record, which in turn is set out on section 501(7)(c) to mean they have been sentenced to a term of imprisonment of 12 months or more.
Once a person’s visa is cancelled under section 501(3A) of the Act, the Minister must give them written notice inviting them to make representations about revocation of the original decision. If representations are made, the Minister may revoke the decision to cancel the visa if satisfied that:[12]
(a)the person passes the character test; or
(b)there is another reason why the original decision should be revoked.
[12] Section 501CA(4)(b) of the Act.
That is, to make a decision under section 501CA(4) a decision-maker must first decide whether the person passes the character test under section 501CA(4)(b)(i) and, only if satisfied that the person does not pass that test, decide whether, under section 501CA(4)(b)(ii), there is another reason the original decision should be revoked.[13]
[13] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121, 136 at [66].
Section 499(2A) of the Act mandates that the Tribunal must comply with written directions given by the Minister regarding its functions or the exercise of those powers given to it under section 499(1) of the Act.
Direction No. 110
On 7 June 2024, the Minister issued Direction No. 110 under section 499 of the Act (Direction 110). The direction applies specifically to decisions by the Tribunal on an application for revocation of a mandatory cancellation of a visa under section 501CA.
Paragraph 5.2 of Direction 110 sets out mandatory principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under section 501CA.
These principles include the following:
(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. Being able to come to or remain in Australia is a privilege Australia confers on non citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
Paragraph 8 of Direction 110 sets out the primary considerations which must be taken into account in making a decision under s 501CA(4). These are:
(a)protection of the Australian community from criminal or other serious conduct;
(b)family violence engaged by the Applicant (if any);
(c)the strength, nature and duration of the Applicant’s ties to Australia;
(d)the best interests of minor children in Australia affected by the decision; and
(e)the expectations of the Australian community.
Paragraph 9 of Direction 110 sets out the other considerations which the Tribunal must take into account, insofar as they are relevant to an application. These are:
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
Paragraph 7 of Direction 110 provides:
(a)information and evidence from independent and authoritative sources should be given appropriate weight when applying the considerations;
(b)the protection of the Australian community is generally to be given greater weight than other primary considerations, and primary considerations should generally be given greater weight than the other considerations; and
(c)one or more primary considerations may outweigh other primary considerations.
ISSUES
Ms Tam, through her counsel, concedes that she does not pass the character test in sections 501(6)(a) and 501(7)(c) of the Act.[14] In light of this concession, the issue for consideration is whether there is another reason why the Cancellation Decision should be revoked.[15]
[14] Applicant’s SFIC at [2].
[15] Section 501CA(4) of the Act.
THE APPLICANT’S CONDUCT AND OFFENDING
On 22 December 2022, Ms Tam was convicted on her plea of guilty of three counts of ‘Possession of a Prohibited Drug With Intent to Sell or Supply (Methylamphetamine)’ and received a total sentence of three and a half years.[16] Her only other conviction was in January 2020 in the Joondalup Magistrate’s Court for possession of drug paraphernalia, for which she received a $200 fine. The 2020 conviction arose out of the same offending for which she was convicted and sentenced by the District Court in December 2022.[17] That is, the totality of her criminal convictions arose out of a police search at her home on 6 June 2019.[18]
[16] Exhibit R1, G7, 50-1.
[17] Exhibit R1, G7, 7; see too Exhibit R1, G6, 37.
[18] Exhibit R2, S3, 18 [2].
DOES THE APPLICANT PASS THE CHARACTER TEST?
Ms Tam concedes that she fails the character test in section 501(6) of the Act because her convictions and the sentence imposed for them means she falls within the meaning of section 501(7), having been sentenced to a term of imprisonment of 12 months or more. That concession is properly made as her failure to pass the character test arises as a matter of law.[19] I find that she has failed the character test.
[19] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
The power to revoke the Cancellation Decision is only enlivened if there is ‘another reason’, within the meaning of s 501CA(4)(b)(ii) of the Act, why it should be revoked. As a result of Ms Tam’s concession, the evidence and submissions at the hearing were focused on this question.
The parties’ submissions
Ms Tam’s written submissions identified three of the primary considerations as being relevant to my decision, being:
(a)the protection of the Australian community;
(b)the strength, nature and duration of Ms Tam’s ties to Australia; and
(c)the expectations of the Australian community.
Neither party contends that either family violence or the best interests of minor children are matters which are relevant to my decision.
Both the protection of the Australian community and the expectations of the Australian community were conceded as weighing against revocation, albeit, to a lesser extent that the Minister contended for.
Whilst Ms Tam did not address in her written submissions the other considerations in paragraph 9 of Direction 110, these matters were canvassed in oral submission and in the evidence.
The Minister’s submissions on these matters are dealt with below.
Protection of the Australian Community
Direction 110 at paragraph 8.1(1) requires me to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and to that end the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, I am directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[20]
[20] See also Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024) [8(1)] (‘Direction 110’).
Criminal history and other conduct
Ms Tam’s criminal history is set out in paragraph 24 above. There is no other conduct which I must take into consideration.
Nature and seriousness of the conduct
I must consider the nature and seriousness of Ms Tam’s criminal offending and other conduct.[21] I am directed that certain types of criminal or other conduct is viewed very seriously by the Government and the Australian community[22] and that certain criminal or other conduct is considered serious[23]. The scope of what I may consider as either very serious or serious, is not limited to those matters specifically included in Direction 110.[24]
[21] Direction 110 [8.1(1)].
[22] Direction 110 [8.1.1(1)(a)].
[23] Direction 110 [8.1.1(1)(b)].
[24] Direction 110 [8.1.1(1)(a)-(b)].
Ms Tam, though her counsel, concedes that this consideration will weigh in favour of non-revocation, and that her conduct will be viewed by the Tribunal as serious.[25] The Minister also submits that the offending is serious.
[25] Applicant’s SFIC [16], [17].
As Ms Tam’s counsel submitted, Direction 110 places particular emphasis on violent and sexual crimes and she has done nothing of this nature. He further submitted that the offending should not be commensurate with the same category of offending as either sexual or violent crimes, and ought not be considered very serious for the purposes of the Direction and this review.[26]
[26] Ibid at [18].
The Minister’s submissions noted that Ms Tam was sentenced to a total of three and a half years in prison,[27] which is the last resort in the sentencing hierarchy, and that this indicates the objective seriousness of the offending.[28] This is reflected in the sentencing remarks dated 22 December 2023 where the Judge said that in 'Western Australia, that offence is taken very seriously.’[29]
[27] Exhibit R1, G7, 50-1.
[28] Direction 110 [8.1.1(1)(c)].
[29] Exhibit R1, G7, 42.
The offending came to light when police executed a search warrant at Ms Tam’s and Mr Cross’ home and found a total of 39.23 grams of methamphetamine in three locations in Ms Tam’s bedroom.[30] The police also downloaded messages from Ms Tam’s mobile phone that the Judge described as consistent with the sell and supply of methylamphetamine, in the period between February and May 2019.[31] It was this 'commercial aspect' of Ms Tam’s possession of the drugs which informed the seriousness of the offending.[32] Both parties’ submissions adopted the sentencing Judge’s remarks.[33]
[30] Exhibit R1, G7, 41-42.
[31] Exhibit R1, G7, 42.
[32] Exhibit R1, G7, 43.
[33] Exhibit R1, G7.
There are other factors to be considered in looking at the seriousness of the offences.
(a)The sentencing provisions of the Misuse of Drugs Act[34] impose a maximum penalty for this offence of 25 years imprisonment, or a $100,000 fine, or both. Ms Tam’s sentence was in the lower end of the range for sentences for this crime.
(b)These were Ms Tam’s first offences.[35]
(c)The offences took place within the context of Ms Tam’s personal use of the drug.
(d)The offending was for a relatively short period of time, that is, at most, from February 2019 until the arrest on 6 June 2019. There is in fact no evidence to suggest Ms Tam was engaged in selling or supplying drugs after May 2019.[36]
(e)The matters which are of particular concern in looking at this aspect of Direction 110,[37] as to whether the conduct is very serious, are not present here. The harm caused by the offences is not individual harm to victims of crime, as is the case of crimes of violence, including family violence, or sexual offences. There is no evidence that any particular person, other than Ms Tam and her husband, was impacted by the offences.
(f)Given the quantity of drugs found, I accept Ms Tam’s counsel’s submission that it is unlikely that the convictions had any impact on the supply of methamphetamine in Western Australia.
[34] Section 34(1)(aa).
[35] The drug paraphernalia offence she was convicted of in the Joondalup Magistrates Court arose out of the exact same offending, that is, the events on 6 June 2019.
[36] Exhibit R1, G6, 37.
[37] See [8.1.1 (1)].

In my view, having regard to the evidence, the submissions, and the assessment of the offending by the District Court, I have concluded the offending was serious and weighs moderately against revocation.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
I must also consider the risk to the Australian community should Ms Tam commit further offences.[38] This requires an assessment of the nature of the harm should Ms Tam engage in further criminal or other serious conduct,[39] and an assessment of the likelihood of her engaging in that type of conduct again in the future.[40]
[38] Direction 110 [8.1.2]
[39] Direction 110 [8.1.2(2)(a)].
[40] Direction 110 [8.1.2(2)(b)].
Nature of the harm
To determine the risk to the Australian community if Ms Tam committed further offences or engaged in other serious conduct, I must consider the nature of the harm to individuals or the Australian community should she reoffend.[41]
[41] Direction 110 [8.1.2(2)(a)].
The Minister submits that any reoffending of a similar kind would have the potential to cause significant physical and/or psychological injury to members of the Australian community.[42]
[42] Direction 110 [8.1.2(1)].
The sentencing Judge set out the effects on people’s lives, on the Australian health system, and the community generally in her sentencing remarks. This includes the connection between methylamphetamine use and mental health issues, aggression, and other crime, and the broader impact on the criminal justice system.[43] In addition to the comments made by Her Honour, the broader community harm caused by illicit drugs has been considered by this Tribunal and the Courts on many previous occasions. Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[44] at [54] provides a detailed and useful analysis of that harm undertaken by numerous Courts and in other matters before the Tribunal, and I adopt that analysis.
[43] Exhibit R1, G7, 42.
[44] [2020] AATA 4171.
Whilst I accept that the only people impacted by the offences Ms Tam was convicted of on this occasion were herself and her husband, I cannot be satisfied that if Ms Tam were to reoffend in the future in a similar manner, her offending would not cause harm to more people. Nor can I ignore the wider societal impacts of potential future offending, particularly on the health and legal systems which are intended to be for the benefit of all members of the community.
I consider the nature of the harm which may be caused if Ms Tam reoffended in a similar manner to her past history, to be serious.
Likelihood of the non-citizen engaging in further criminal or serious conduct
I must also consider the likelihood of Ms Tam reoffending if she is permitted to remain in the Australian community.[45]
[45] Direction 110 [8.1.2(2)(b)].
Ms Tam’s use of methamphetamine had commenced about a year before she was charged. Her initial use arose from a misguided attempt to control her weight, and then to relieve back-pain. Throughout the period of her use, which Ms Tam said with absolute frankness ceased on the day prior to the police raid, she used the drug about once per week. Her counsel submitted that this pattern of unchanged use is unusual, and I accept that submission.
The offending also took place in the context of difficult financial circumstances, which led to the sale and supply aspect of her offending. Ms Tam was under pressure as a result of a debt she owed arising from her mother’s hospitalisation in China, prior to her mother’s death in 2017. Ms Tam gave evidence that she had borrowed money from her sister to repay her mother’s hospital debt, with the debt to Ms Tam’s sister repaid in about April 2019. Ms Tam gave evidence that whilst she told her husband she had the debt, she did not disclose the amount of it to him. I accept Ms Tam’s evidence.
Ms Tam also gave evidence that she commenced selling small quantities of the drug to her friends as a means of managing her financial problems. The evidence in the District Court indicates that the selling or supplying of drugs took place in the months of February to May 2019. This is consistent with the timing of the financial pressures Ms Tam was under at the time and I accept her evidence as to why she started the offending.
Mr Cross gave evidence that he also had financial difficulties with his irrigation installation business in the period 2018 and 2019. The financial difficulties led him to borrow $120,000 from Ms Tam, who borrowed the funds against a residential property she owns in Hong Kong. He also remortgaged their Perth home to obtain funds for the business. He also said that he disclosed the business’ financial problems to Ms Tam, but like his wife, did not disclose the full amount of the debts. I accept his evidence.
Ms Tam accepted that her decision making in selling drugs, rather than selling her residential property in Hong Kong, to alleviate her financial problems in 2019, was poor. She said with frankness that she “didn’t think” of selling the property to pay her debts. That was very poor decision making, as was the lack of frankness between Mr Cross and Ms Tam about the amount of debts they each had in 2018 - 2019.
Both Mr Cross and Ms Tam expressed that they have grown as a couple since the arrest as they have learnt to be more open with each other about the difficulties in their lives. Mr Cross also said that getting caught with the drugs made their relationship stronger and was a changing point in their lives. I accept their evidence.
At the time of the hearing, Ms Tam was on parole, but in immigration detention. Between the police raid on her home in early June 2019 and her sentencing on 22 December 2022, she lived in the community and did not offend. Her evidence, which I accept, was that she had last taken drugs on 5 June 2019, the night before the police raid. She underwent a number of random drug tests whilst on bail and in prison[46] and no drugs were detected. She was assessed whilst in prison using a Risk of Reoffending assessment tool where she received a score of “1”, which is the lowest possible score on a range from 1 to 22, and as a result was not reassessed or recommended for any treatment.[47] The prison reports are extremely complimentary of Ms Tam’s behaviour during imprisonment.[48] She was rated as a minimum security prisoner, an excellent worker who became a leading hand in textiles whilst in prison, and she engaged in a number of education and training opportunities.[49]
[46] Exhibit R2, S1, 8.
[47] Exhibit R1, G22, 116–118.
[48] Exhibit R2, S1, 8.
[49] Exhibit R1, G11, 75; Exhibit R1, G17,105.
Prior to her imprisonment, whilst on bail, Ms Tam became quite actively engaged with her local Buddhist community. She provided a series of photographs[50], and in her oral evidence gave explanations of her actives with that community with reference to the photographs, and has set up a prayer room at home, which her husband assisted with building. Whilst in prison, she sought to engage in the Wandoo Therapeutic Community program but could not do so because of her limited English language proficiency.
[50] Exhibit R1, G34.
An issue which arose in the context of possible reoffending was the fact that at the time of Ms Tam’s sentencing, the Judge noted that she had been suffering from major depression. Ms Tam’s evidence was that whilst she had what she now recognises as symptoms of depression when grieving her mother’s death in 2017, her arrest led her to suffer more significant depressive symptoms including constant crying, not coping, an inability to sleep, low mood, a feeling of purposelessness, and thoughts of death.[51] In her oral evidence she described feeling humiliated by her offending. Her symptoms resulted in her seeking specialist psychiatric assistance in August 2021 at which time she was diagnosed and given medication, continuing to see her consultant psychiatrist for about a year. As her sentencing approached, in mid 2022 Ms Tam’s depressive symptoms returned. Whilst Ms Tam had been taking medication, this ceased shortly after she went into prison[52] as she adjusted to her life in prison, and felt she no longer needed the medication. By October 2024, she was described in the Parole Review Report as “very happy”.[53]
[51] Exhibit R1, G24, 121.
[52] Exhibit R2, S1, 10.
[53] Exhibit R2, S1, 10.
In my view, Ms Tam’s depression was most likely situational, arising primarily from the police raid, charges, and her subsequent interactions with the criminal justice system along with all the attendant stress and uncertainty of that, against the background of on-going grief over her mother’s death in 2017, and the stresses of her financial problems which she then faced. Her seeking treatment in 2021 was initiated by her husband,[54] which is a positive example of his support for her, and her willingness to undertake treatment demonstrates insight into her condition and the impact of her offending on her life. I am confident having heard from both of them, that should Ms Tam suffer further depressive episodes, she will seek medical assistance with the full support of her husband.
[54] Minister’s SFIC at [34]; Exhibit R1, G12,76.
As the Minister notes, the Parole Assessment Report says that if Ms Tam remains abstinent in relation to her drug use, engages in substance abuse counselling, and makes use of positive social supports, 'the likelihood of relapse to illicit substance and subsequent reoffending should decrease'.[55] Whilst the Minister submitted there is no evidence Ms Tam has satisfied these conditions,[56] or any evidence as to whether she will engage in substance abuse counselling, and make use of positive social supports,[57] the Minister acknowledged during closing address that Ms Tam has been drug free since June 2019, engaged positively in the Buddhist community, gained insight into her offending and its consequences, and expressed remorse for her actions. Her detention in immigration detention has prevented her fulfilling the conditions of parole to date, but the report indicates her willingness to undertake any treatment recommended to her, and to comply with all conditions imposed on her. Parole in the community will provide a structured reintroduction to the community involving supervision and, if necessary, programs.
[55] Exhibit R2, S1, 3.
[56] Notably, she is in detention and is not presently in the community on parole.
[57] Applicant’s SFIC at [34].
The Minister also acknowledged that Ms Tam’s poor decision-making, which led to her not even considering selling her property in Hong Kong to pay her debts, would likely be dealt with differently now, with Ms Tam saying that she would choose to sell the property to meet her financial needs if that situation arose in the future.
Ultimately, the Minister’s submission on risk is that there is some risk of reoffending.
I accept there is some risk of reoffending, however, Direction 110 does not require me to find there is no risk of reoffending. I accept that Ms Tam has demonstrated proper insight and remorse, that she has been drug free for about five and a half years, and that she has addressed her financial and mental health challenges. She has also found a place in the Buddhist community with hopes to return to her engagement there if she is permitted to stay in Australia.
In my view, the likelihood of Ms Tam reoffending or engaging on other serious conduct is very low.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the conduct, and the risk to the community should she commit further offences or engage in other similar conduct, I have concluded that that this consideration weighs only slightly against revocation.
The strength, nature and duration of ties to Australia
In accordance with paragraph 8.3 of Direction 110, I must also consider the strength, nature and duration of Ms Tam’s ties to Australia.
Ms Tam first arrived in Australia in 2011 and has lived here for over 13 years. She has made two short trips out of the country, to deal with her mother’s death.[58] Ms Tam and Mr Cross met in 2013 and were married on 1 June 2014.[59]
[58] Exhibit R1, G13, 77; Exhibit R1, G35.
[59] Exhibit A1.
It was clear from the oral evidence that the relationship between Ms Tam and Mr Cross is very close. They genuinely depend on each other for emotional support. They speak almost every day by telephone and see each other weekly since Ms Tam moved to immigration detention. When Ms Tam was in prison they also saw each other as often as possible, and Mr Cross sent her money each week so she could buy herself things whilst in prison. They both described Ms Tam’s arrest as a wake-up call, with Mr Cross explaining it was a catalyst for them to become much closer as a couple.
Their social circle is relatively small, with Mr Cross giving evidence of several friends, including one from his school days, who they see socially. They have stopped all social contact with the people they met or knew who were involved in using or selling methamphetamine. Ms Tam’s social circle expanded following her arrest to include the Buddhist Community, where she found great companionship and a sense of purpose. They were clearly supportive of her.[60] Mr Cross described the community as good, genuine and nice people who came around to their home, so he had opportunities to meet them. Whilst not a religious person himself, he is very encouraging of Ms Tam’s engagement with the Buddhist Community and sees the value of it in her life.
[60] Exhibit R1, G27; G28; G29; G30; G31; G32.
Ms Tam’s adult daughter and son-in law both now live in Perth, having moved to Perth after Ms Tam’s arrest. Prior to moving to Australia, Ms Tam’s daughter and son-in-law visited each year and maintained a relationship though telephone and video calls. Whilst they are neither citizens nor permanent residents of Australia at this time, their move to Australia to support Ms Tam and Mr Cross is significant as it widens the circle of community support Ms Tam has, and continues Ms Tam’s life-long positive relationship with her daughter. That connection has been maintained throughout Ms Tam’s incarceration and now whilst she is in detention.[61]
[61] Exhibit A4; Exhibit A5.
Mr Cross is the mainstay of Ms Tam’s life. He has a small, sole operator irrigation business which is back on good financial footing after the earlier difficulties I have discussed above. The worst of his business problems were in 2019 and by the time the police raid happened in June he was extremely stressed as a result of the financial pressures. Mr Cross is a typically hard working, modest, Australian who built a life of happiness with Ms Tam. He gave evidence of them cooking together, emotionally supporting each other, and enjoying each other’s company. He described Ms Tam as his best friend. His emotional attachment to her was plain throughout his evidence and I have no doubt he felt some responsibility for the events which led them to be in this situation.
In 2020 Mr Cross was diagnosed with type 2 diabetes and now takes regular medication for it. He told me that it took a long time for his diabetes to get under control and he now realises that he was suffering symptoms of it in the couple of years before his diagnosis. About 3 years ago he suffered a further health setback with a cold developing into pneumonia and ending with him being admitted to Royal Perth Hospital over Christmas in 2021 with atrial fibrillation, for which he now takes medication. He credits Ms Tam with his return to better health, including “nagging”[62] him about his diet, self-care, and sleeping habits.
[62] Which I understood from his tone, was a term of endearment.
He also credits Ms Tam’s arrest as making their relationship stronger. They became more open about their individual financial pressures, his arising from the business, hers arising from her debt to her sister. Neither of them take drugs now, other than prescribed medication.
Mr Cross described the alternative life choices they faced if Ms Tam’s visa is not returned. One is to close his business and move to Hong Kong where he cannot work or speak the language, another is to stay in Australia and have a long distance relationship. Neither are appealing. If he were to move to Hong Kong he would have to sell their home, and his business, and pay out the loan secured by a mortgage over the home, which was taken out to assist his business. This would undoubtedly leave him with very limited capital. He has a modest superannuation fund which he will be able to access once he turns 60 in 2026. In addition, if he goes to Hong Kong, Mr Cross will need to continue to access medical treatment and support for his heart condition and his diabetes which may include having to pay fees which he would not have to pay in Australia. If he stays in Australia and visits his wife in Hong Kong, he faces, as he described, “an emotional rollercoaster”, a hard, solitary life, which would preserve their status as a couple, but at the cost of a great deal of time apart.
Nothing about Mr Cross suggested to me that he would in any way contemplate splitting up the marriage, and this alternative life choice was not explored in the cross-examination.
It is apparent to me that one of the reasons Ms Tam has been able to remain drug-free and not offend since June 2019 is the support she provides to Mr Cross, and the support he provides to her. They are clearly focused on not reoffending, not taking drugs, and rebuilding their lives as a couple. It would be utterly devastating to each of them if Ms Tam has to return to live in Hong Kong and never return to Australia. In my assessment, they are committed to ensuring they remain drug and offence free for the rest of their lives. Both will clearly do better with the other being around to support them.
After giving consideration to all Ms Tam’s various ties to Australia, I have come to the view that it is her relationship with Mr Cross which is of paramount significance. It would cast a devastating blow to the marriage if Ms Tam was not permitted to stay in Australia. Consequently, I find that the strength, nature and duration of Ms Tam’s ties to Australia weighs strongly in favour of revocation of the Cancellation Decision.
Expectations of the Australian Community
I am required to consider the expectations of the Australian community as set out in Direction 110 at [8.5]. The consideration of this question, as with the others, is done against the background of the principles set out in Direction 110 at [5.2].
Ms Tam concedes that this consideration weighs against revocation, however she says it should only be given limited weight. The Minister contends this consideration weighs heavily against revocation.
The first sentence of paragraph 8.5(1) is a reflection of the rule of law as it applies to both citizens and non-citizens.[63] The remainder of paragraph 8.5(1) sets out the expectations of the Australian community as a norm. I accept that the effect of this is to deem what the expectations of the community are and thereby preclude me from undertaking any assessment of what, in any particular factual circumstances, the actual expectations of the Australian community might be.[64] That proposition itself is contained in Direction 110 at [8.5(4)]. The utility of this approach by Government in order to assist decision-makers is obvious. However, it does not mean that in my evaluation of the evidence under this aspect of the considerations, I am precluded from departing from the expressed norm of community expectations if the evidence warrants it.
[63] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [69]-[70].
[64] Ibid at [67], [92]–[93].
Paragraph 8.5(2) contains two propositions, the first is in the first sentence of the chapeaux, the second is in the second sentence of the chapeaux and subparagraphs (a) to (f).

The first proposition is, relevantly,
non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the . . .offences is such that the Australian community would expect that the person should not . . .continue to hold a visa.
This directs me to consider the evidence relevant to the offences Ms Tam committed. On the evidence in this matter, including the fact these offences comprise her only criminal conduct, she pleaded guilty, she committed the offences in the context of being a small-time user herself facing financial pressures, and that she only sold drugs to her friends for a few months, it is my view that Ms Tam’s offending[65] is not of a nature which would lead the Australian community to expect that Ms Tam should not continue to hold a visa.
[65] See paragraph 23 above.
The second proposition directs specific attention to conduct of the kind articulated sub-paragraphs (a) to (f).[66] Ms Tam’s offending is not conduct of the kind set out in those sub-paragraphs.
[66] Direction 110 [8.5(2)].
I therefore reject the Minister’s submission that the offending falls within paragraph 8.5(2).
Paragraph 8.5(3) of Direction 110 reminds me, in effect, a measurable risk of physical harm to the community is not the only type of harm I should consider. Consequently, the harm caused by offending which falls within paragraph 8.5(1) and (2) may be something other than physical harm. That is not a controversial proposition and in this matter I accept that the type of harm caused by Ms Tam’s offending is broader than physical harm and extends to the emotional impact on her family, and the societal impacts to the health and criminal justice systems identified in the sentencing Judge’s remarks.[67] I do however consider that whilst that is generally true, in this case the harm that has been caused is limited in scope and unlikely to be repeated, and I reiterate what I set out at paragraphs [38] – [59] above regarding risk to the Australian community.
[67] Exhibit R1, G7, 42.
In my view, whilst I accept that the expectations of the Australian community weighs against revocation, it should only be afforded limited weight overall.
Other considerations
Legal consequences of decision under section 501 or 501CA
I am required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens, if relevant.[68]
[68] Direction 110 [9.1].
This consideration also makes reference to the range of legal consequences of a decision not to revoke the Cancellation Decision which include:
(a)Ms Tam’s unlawful status;
(b)becoming subject to detention and/or removal, pursuant to sections 189, 196, 197C and 198 of the Act;
(c)the refusal of other visa applications and cancellation of other visas, pursuant to section 501F of the Act;
(d)a prohibition on applying for other visas, pursuant to section 501E of the Act; and
(e)periods of exclusion from Australia and special return criteria may apply, pursuant to section 503 of the Act and special return criteria in Schedule 5 of the Migration Regulations 1994 (Cth) (Regulations).
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[69] Under section 189 of the Act, the non-citizen must be detained and removed as soon as reasonably practicable under section 198,[70] and to that end, Ms Tam is currently in immigration detention.
[69] Section 15 of the Act.
[70] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful at [112]-[122].
The Minister accepts that Ms Tam will be subject to indefinite exclusion from Australia by operation of the Regulations, which is a relevant legal consequence that I must take into account.[71] However, the Minister contends that in the absence of a protection finding or refoulment claims being raised, which they have not been, this consideration should be afforded limited weight.
[71] Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003 at [12]–[14].
Whilst I accept the removal and visa limitations which result from a decision not to revoke the cancellation of the visa are the intended consequences of the operation of section 501, they place a strain on a what I believe is a solid and symbiotic long-term marriage partnership. Given that Ms Tam would be excluded from Australia if she is deported, to maintain their marriage Ms Tam and Mr Cross will have to make substantial emotional and financial sacrifices to remain together as a couple. In light of these matters, I find that the legal consequences of the decision carries moderate weight in favour of revocation of the Cancellation Decision and should be afforded moderate weight overall.
Extent of impediments if removed
Paragraph 9.2 of Direction 110 provides that I must consider the extent to which Ms Tam would face impediments in reestablishing herself and maintaining basic living standards in the context of what is generally available to other citizens of the receiving country. The relevant matters identified in sub-paragraph 9.2(1) are:
(a)the age and health of the applicant;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to her in her home country.
Ms Tam is a citizen of China and she has indicated that she would return to either China or Hong Kong. Given her links to Hong King, including her long term residency there, it became apparent during the hearing that she would return to Hong Kong.
Neither party suggests that her age or health would pose particular impediments if removed to Hong Kong. Whilst she has been diagnosed with major depression in the past, there is nothing to suggest she would not be able to access appropriate treatment, if it became necessary, in Hong Kong and she accepted that in her oral evidence.
Ms Tam’s life-long knowledge of Chinese languages, and the fact she lived in China and Hong Kong for around 48 years prior to her arrival in Australia, mean that she will be unlikely to face particular cultural or language barriers.[72]
[72] Direction 110 [9.2(1)(b)].
Of more concern is the social and economic impacts of returning to Hong Kong. It is the case that Ms Tam has a property in Hong Kong which is rented out and which provides her with rental income. If she is to live in that property she will forego the income from it and will therefore need to find an alternative source of financial support in what is widely known as one of the most expensive cities in the world. Ms Tam’s evidence is that she worked in Hong Kong in various occupations including as a real estate agent, in the jewellery industry, and in the garment industry, something she put to good use in prison.[73] She also has considerable skills in cooking, and worked in the kitchen whilst in prison, to some acclaim.[74] It is clear that she has a range of skills and experience which could see her obtain employment in Hong Kong, although she is concerned about her ability to do so since she has been away for about 14 years.
[73] Exhibit R1, G17, 104; Exhibit R2, S1, 8.
[74] Exhibit R2, S1, 8.
Ms Tam has a younger brother and a sister resident in Hong Kong with whom she keeps in contact via a family WeChat group. The attitude of her siblings to her convictions is unknown, however there are very harsh penalties for drug offences in Hong Kong,[75] which may adversely affect their willingness, or ability, to provide her with support and assistance. Ms Tam’s main social supports are her husband, her daughter and her son-in-law, all of whom reside in Perth. It cannot be doubted that the loss of this significant support network will have a deleterious affect on her.
[75] Dangerous Drugs Ordinance (Hong Kong) cap 134; ‘Laws & Penalties: Penalties for Narcotics Offences’, Hong Kong Police Force (Web Page, December 2024) <
I find that the extent of impediments if removed weighs slightly in favour revocation and I attribute low weight to this consideration.
Impact on Australian business interests
Both parties submitted that in light of the evidence in this matter, it was open to me to take into consideration whether there is a relevant business interest which may be impacted by the Cancellation decision.[76] The Minister further submits that only limited weight should be given to this consideration because Mr Cross’ evidence was ‘speculative’. I accept that the evidence was speculative in that it was evidence as to a possible future event, that event being what he would do if his wife’s visa was not reinstated, and she had to return to Hong Kong without being able to ever return to Australia. I do not however accept that his evidence as to his alternative courses of action is in any way unreliable or unlikely to be reflective of the choice that he faces.
[76] Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311 at [68-[69].
Mr Cross is a self-employed irrigation contractor and does not employ any other people, so that he personally performs all the work of the business. His clients include local Shires, farmers, land developers, and others seeking to install irrigation systems. After some tough times in the period prior to Ms Tam’s arrest, brought about by difficulties with staff he then employed, the business is back on its feet and the financial documents submitted as part of Ex A3, suggest that it is doing well. Mr Cross said that it is doing sufficiently well to provide an income to adequately support both Ms Tam and him.
There is no evidence that Ms Tam has any direct input into the running of the business, however, Mr Cross told the Tribunal that in about 2018 or 2019 Ms Tam had borrowed $120,000 against a property she owns in Hong Kong to assist with the financial troubles the business was in; Ms Tam also gave evidence that she had borrowed money to assist with Mr Cross’ business difficulties. It is clear that she is supportive of her husband’s business.
Mr Cross gave evidence that if his wife was to be returned to Hong Kong, he would likely have to close the business and move there too, or visit her in a type of commuter relationship. In cross-examination Mr Cross said that if he had to move to Hong Kong he would do so, thereby affirming that his priority was to be with his wife. He was not asked if he would abandon his wife in Hong Kong so that he could focus entirely on his business, and my impression of Mr Cross from his evidence as a whole is that he is extremely unlikely to do that.
Both of the options canvassed in the evidence would adversely impact Mr Cross’ business, the first by its closure, the second by removing him from working in the business which entirely depends on his sole efforts. Neither of the options are likely to be good for the future survival of Mr Cross’ small business.
I acknowledge that Mr Cross is aged 58 and his health issues suggest he may not have more than 5 – 10 years undertaking the sort of physical work he does. However, he is presently working hard in a successful business, repaying his borrowings, and supporting himself and his wife financially. That should be permitted to continue.
Consequently, I find that the impact on Australian business interests weights moderately in favour of revocation of the Cancellation Decision and I give this consideration moderate weight overall.
CONCLUSION
As I have found Ms Tam does not pass the character test under section 501 of the Act, I have considered if there is another reason why the Cancellation Decision should be revoked, giving regard to the considerations in Direction 110, and weighing the various considerations in accordance with paragraph [7] of the Direction, and in accordance with the authorities which bind my decision making.
In respect to the primary considerations, I find:
(a)the protection of the Australian Community and the expectations of the Australian community both weigh slightly against revocation, and both should be accorded moderate weight overall; and
(b)Ms Tam’s ties to Australia weighs strongly in favour of revocation, and should be given strong weight overall.
As to the other considerations, I find:
(a)the legal consequences of the decision weighs moderately in favour of revocation and should be afforded moderate weight overall;
(b)the extent of impediments if removed weighs slightly in favour of revocation and should be afforded low weight overall.
(c)the impact on Australian businesses weighs moderately in favour of revocation and should be afforded moderate weight overall.
Having weighed the considerations in favour of the revocation of the cancellation of Ms Tam’s visa and the considerations against revocation, I conclude that the primary consideration of Ms Tam’s ties to Australia outweighs the other two primary considerations which weigh against revocation. Taken together with each of the three other considerations which weigh in favour of revocation, the balance in this matter is in favour of revocation.
I am therefore satisfied that there is another reason why the Cancellation Decision should be revoked.
DECISION
The decision of the delegate of the Minister dated 17 September 2024 not to revoke the cancellation of the Applicant’s Class BS Subclass 801 Partner visa under section 501CA(4) is revoked.

I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Deputy President Clare Thompson SC

.......................[SGD].........................................
Associate
Dated: 10 December 2024

Date of hearing: 19 & 20 November 2024

Counsel for the Applicant: Mr H W Glenister

Representative for the Applicant: William Gerard Legal Pty Ltd

Counsel for the Respondent: Ms T Jackson

Solicitors for the Respondent: MinterEllison

Date of hearing:	19 & 20 November 2024
Counsel for the Applicant:	Mr H W Glenister
Representative for the Applicant:	William Gerard Legal Pty Ltd
Counsel for the Respondent:	Ms T Jackson
Solicitors for the Respondent:	MinterEllison