Tan and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Tan and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2917 (14 September 2023)
Division:GENERAL DIVISION
File Number:2023/4691
Re:Kai Tan
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date of decision: 14 September 2023
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision dated 22 June 2023 made by a delegate of the Respondent and substitutes it with a decision that the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa should be revoked.
………………[SGD]…………………..
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION- Non-revocation of mandatory cancellation of a Class BB Subclass 155 Five Year Resident Return visa-where the Applicant does not pass the character test- whether there is another reason to revoke the mandatory cancellation decision- consideration of Ministerial Direction 99- where criminal offending involved smuggling tobacco products in Australia leading to loss of revenue for the state- where the risk of re-offending found to be low- Tribunal finding that there is another reason to revoke the mandatory cancellation decision- decision under review set aside and substituted.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
Walker v Minister of Home Affairs [2020] FCA 909
SECONDARY MATERIALS
Ministerial Direction No 99- Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
14 September 2023
INTRODUCTION

The Applicant is a 43 year-old male national of China. His movement history indicates he first arrived here in October 2008 and apart from approximately two months of absence, has resided in this country on a continuous basis since his arrival.[1] His Class BB Subclass 155 Five Year Resident Return (‘Visa’) was mandatorily cancelled by a delegate of the Respondent on 27 October 2020 pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘Act’) because he failed to pass the character test.[2]
[1] Exhibit 1, p 97.
[2] Exhibit 1, pp 99-107.
The Applicant failed the character test pursuant to the operation of s 501(7)(c) of the Act because he had a ‘substantial criminal record’ due to him receiving a term of imprisonment of 12 months or more. Specifically, the Applicant was convicted of two Commonwealth offences in October 2020 comprising (1) smuggling tobacco products; and (2) possessing tobacco products. Further particulars of the sentence appear in the table below in [5] of these Reasons.
On 18 November 2020, the Applicant made representations to the Respondent’s Department for his mandatory visa cancellation to be revoked.[3] On

22 June 2023 a delegate of the Respondent refused to revoke the mandatory cancellation decision (‘Decision Under Review’). The Applicant was notified of this decision by email on the same day.
[3] Exhibit 1, pp 49-68.
On 29 June 2023, the Applicant applied to this Tribunal for a review of the delegate’s decision of not to revoke the mandatory cancellation of his Visa. The hearing for this matter proceeded before me on 5 and 6 September 2023. The Tribunal was assisted by a Mandarin speaking interpreter in the hearing on both days. Both parties were legally represented before the Tribunal in the hearing.
The Applicant’s total (non-traffic) offending history in Australia as stated in the National Criminal History check report[4] can be summarised as below:
[4] Exhibit 1, pp 34-35.

Court

Date of conviction

Offence

Result

Brisbane District Court

9 October 2020

CTH- Importing Tobacco products with intent to defraud the revenue

Convicted and sentenced pursuant to
s 20(1)(B) Crimes Act 1914 to 2 years and 6 months imprisonment to be released after serving 8 months on entering recognizance self $2000 to be of good behaviour for 3 years to be served concurrently and commence on date of sentence. Reparation order pursuant to the Crimes Act 1914 S21B amount: $311291.11

CTH- Possession of an/or conveyance of tobacco products, intent to defraud

Convicted and sentenced pursuant to s 20(1)(B) Crimes Act 1914 to 2 years and 6 months imprisonment to be released after serving 8 months on entering recognizance self $2000 to be of good behaviour for 3 years to be served concurrently and commence on date of sentence. Reparation order pursuant to the Crimes Act 1914 S21B amount: $311291.11

The Applicant appeared in-person before the Tribunal on both days of the hearing. His father appeared in person before me to provide oral evidence as did the clinical psychologist, Dr Deanne Hawkins who gave oral evidence by telephone. Cumulatively, the Tribunal hearing received oral evidence from:
·the Applicant;
·Mr Qing Shan Tan (Applicant’s father); and
·Dr Deanne Hawkins (Clinical Psychologist).
At the start of the hearing, both parties agreed that the draft exhibit register circulated to the parties before the hearing comprised a true and correct list of the written material before the Tribunal. A copy of that list is attached to these Reasons and marked ‘Annexure A’. On the second day of the hearing, the currently-noted material comprising Exhibit 11 was sought to be tendered by the Applicant. This raised the prospect of a possible infringement of the two-day rule affecting these expedited matters.[5] This risk was obviated by the Respondent (to whom the two-day rule does not apply) agreeing to tender the material as a Respondent’s exhibit. The Tribunal respectfully commends both parties for collaboratively resolving this issue. The material comprising Exhibit 11 was otherwise received into evidence without further moment.
[5] See ss 500(6H) and 500(6J) of the Act.
ISSUE
The issue before this Tribunal is:
·whether the Applicant passes the character test; and if not,
·is there another reason why the mandatory cancellation of his Visa should be revoked?
Does the Applicant pass the character test?
Section 501(6)(a) of the Act states that a person does not pass the character test if they have a substantial criminal record. Pursuant to s 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Applicant was sentenced to a term of imprisonment of two years and six months imprisonment on 9 October 2020 for the offence of ‘Importing Tobacco Products with Intent to Defraud the Revenue (Commonwealth) and one count of Possession of an/or Conveyance of Tobacco Products with Intent to Defraud (Commonwealth).’ Therefore, by the cumulative operation of ss 501(6)(a) and 501(7)(c) of the Act, I find that the Applicant does not pass the character test. Consequently, 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 mandatory cancellation of the Applicant’s Visa should be revoked?
For the purposes of determining whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa, the Tribunal is required to consider the framework provided by Ministerial Direction 99 (‘Direction’) [6]
[6] Pursuant to s 499 of the Act.
Paragraph 5.2 of the Direction provides the following relevant principles which the decision makers must take into account in the process of deciding whether or not to revoke the mandatory cancellation of a person’s visa:
‘(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) 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.
(3) 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.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.’
Paragraph 6 of the Direction requires a decision-maker to be informed by the above principles and to also take into account the considerations identified in paragraphs 8 and 9 of the Direction.
In taking the relevant considerations into account, paragraph 7 of the Direction states:
‘(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.’
The primary considerations that need to be considered are stated in paragraph 8 of the Direction. These are:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the strength, nature and duration of ties to Australia;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
The other considerations (but not limited to) that need to be considered are stated in paragraph 9 of the Direction as:
·legal consequences of the decision;
·extent of impediments if removed;
·impact on victims; and
·impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Paragraph 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should 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.
(2) Decision-makers should also 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.
Summary of the Applicant’s offending
Brisbane District Court 9 October 2020: As mentioned earlier, the Applicant was convicted and sentenced for two breaches of the Customs Act 1901 (Cth). The agreed Statement of Facts pursuant to which the Applicant was sentenced relevantly appears in the material. In short order, the Statement of Facts describes the charges and penalty in these terms:
‘CHARGES & PENALTY
1 x Section 233BABAD (1) of the Customs Act 1901 (Cth)- Smuggling Tobacco Products
1 x Section 233BABAD (2) Customs Act 1901 (Cth) - Possessing Tobacco Products
Maximum Penalty - 10 years imprisonment and/or a fine.
The fine amount is calculated pursuant to s.233BABAD(5) as being five times the amount of duty that would have been payable the day the offence was committed had the goods been entered for home consumption. The total amount of duty payable at the relevant time is $311,291.11 meaning the maximum fine is 5 x $311,291 .11 = $1,898,975. 78.”[7]
[7] Exhibit 8, p 27 (internal citation omitted).
The charges came before His Honour Justice R S Jones DCJ for sentencing on

9 October 2020. In the sentencing remarks, His Honour described and characterised the offending in these terms:
‘The circumstances of the offending are set out in the agreed schedule of facts. I think it could be fairly described as you being a principal involved in the enterprise of importing large quantities of illegal tobacco for on-sale for profit. The total amount of the cigarettes that were recovered on the execution of a search warrant are set out in the schedule of facts at pages 4 through to 7. I do not intend to go through them in detail other than to note that there was a significant quantity of cigarettes. But of particular relevance here is that the duty payable was $311,291 and some cents
…..
the deprivation of the Commonwealth from legitimate revenue is a serious matter indeed and, in fact, I think I sta1ted off by reflecting just how serious by reference to the head sentence.
….
Here, you played an important role in that you were the prime mover of the importation of the cigarettes. I do, however, accept that the sourcing of those cigarettes from China was the criminal activity of others. That said, there can be no room for doubt that you played a primary role.
Insofar as the sophistication of the offending is concerned, there certainly was a degree of sophistication in the use of the names of other persons and different addresses. That said, I would not consider it to be a criminal activity of a high level of sophistication. In this context, it would seem almost inevitable that you would be caught sooner or later advertising these illegal cigarettes for sale on the social media. I do not think it is necessary to dwell on the period of the offending.
The quantity of the tobacco and the amount of duty defrauded, I have already referred to. It is significant. It is not as much as in other cases, but it is materially higher than in some other cases. The loss of revenue has not been repaid and, realistically, it never will be. There is no suggestion here of the use of false identities but, as I said, there has been the use of a name of another person. You were involved in the sale and distribution of tobacco products within Australia and it seems almost inevitable to me that you gained considerable financial advantage from that criminal activity.’[8]
[My emphasis]
[8] Exhibit 1 p 39, lines 4-15; lines 37-46; p 40 line 1-11.
In terms of the imposition of an actual sentence, His Honour said the following:
‘HIS HONOUR: Would you stand up please? In respect of count l, you will be sentenced to two years and six months imprisonment. In respect of count 2, you will be sentenced to two years and six months imprisonment. Both of those sentences of imprisonment are to commence today. I further order that, those sentences be served concurrently. I further order that pursuant to section 21B of the Crimes Act 1914 (Commonwealth), that you would be released after serving eight months upon you entering into a recognisance in the sum of $2000, condition that you be of good behaviour for a period of - three years?
……
I further order that, pursuant to section 21B of the Crimes Act 1914, that you make reparation to the Commonwealth in the sum of $311,291.11.’[9]
[9] Exhibit 1 pp 41, lines 27-34; lines 40-42.
The Applicant’s traffic history: The Applicant’s traffic history appears in the material.[10] It runs from July 2010 to December 2016. It comprises12 relevant events:
·four convictions for driving while using a mobile telephone;
·three convictions for speeding;
·one conviction for ‘drive/park/or permit a person to drive/park a defective light vehicle’;
·one conviction for ‘fail to stop at “stop” sign at intersection’;
·the imposition of a good behaviour driving period of 12 months due to accumulation of excessive demerit points;
·the imposition of a demerit points penalty for ‘2 or more mobile ph offences within 12 mths’; and
·[on 7 December 2016] the suspension of the Applicant’s driving privileges for a period of six months due to accumulation of excessive demerit points.
[10]Exhibit 8, pp 51-53.
This traffic history attracted the cumulative imposition of 24 driving demerit points, cumulative fines in the sum of $2,298.
According to the Applicant’s Statement of Facts, Issues and Contentions (‘SFIC’) he served the requisite eight months in actual custody until June 2021. He appears to have served additional time beyond June 2021 such that he was was eventually released from prison on 8 September 2022 at which time he was taken into immigration detention where he has remained since.[11]
[11]Exhibit 2, p 2 [9].
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 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    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;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, 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, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)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).
(h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Paragraphs 8.1.1 considerations

Sub-paragraph 8.1.1(1)(a)
: the chapeau to this sub-paragraph relevantly provides for two things. First, if a non-citizen’s offending falls within the auspices of sub-paragraphs(i),(ii) or (iii), then those ‘…types of crimes or conduct…are viewed very seriously by the Australian Government and the Australian community.’[12] Here, none of the Applicant’s offending falls within the auspices of those three sub-paragraphs. Second, the chapeau permits

decision- makers to have regard to unlawful conduct ‘…without limiting the range of conduct that may be considered very serious.’ I understand the language of the chapeau to

sub-paragraph 8.1.1(1)(a) of the Direction to permit the characterisation of conduct as very serious even if it does not fall within the auspices of sub-paragraphs 8.1.1(a) (i), (ii) or (iii).
[12]Paragraph 8.1.1(1)(a) of the Direction.
As best as I understood the respective submissions, there is tension between the parties as to whether the Applicant’s convicted conduct (non-traffic) constitutes serious or very serious offending. In the Applicant’s SFIC he accepts ‘…that the offences for which he was sentenced…are serious offences..’.[13] The Respondent’s contention is to characterise the Applicant’s offending as ‘…being very serious’.[14] The learned sentencing judge, upon consulting relevant authorities about a regime of sentencing to be imposed on this Applicant said “…I have reached the conclusion that having regard to the level of seriousness involve [sic] in respect of both offences, a head sentence of two and a-half years is appropriate.”[15] As mentioned earlier, His Honour thought the offending betrayed a ‘…degree of sophistication…’ but that it was not criminal activity of a ‘..high level of sophistication’.
[13]Exhibit 2, p 5 [29].
[14]Exhibit 7, p 4 [26].
[15]Exhibit 1, p 41, lines 8-10.
I am satisfied that the Applicant’s offending can be found to be very serious. It is offending directly against the revenue-raising function of the state. It deprived the state of essential financial resources to meet the cost of governing its populace. To an extent, it may be found that the Applicant’s offending is perhaps less serious than that of a fraudster whose conduct was perpetuated upon a defined group or class of victims. Here, the offending had no specific victims and was instead more broadly committed against the state and did not place an individual, or specific class of individuals, directly in harm’s way.
There is, to my mind, a tenuous argument that such broadly-committed conduct may be found to have had a perhaps more ‘diluted’ impact than fraudulent offending perpetrated specific individuals who, for example, may have been induced to venture their own funds into the unlawful scheme promoted by the fraudster. But that would be overly generous to this Applicant whose offending was cynical, wanton and otherwise committed in the knowledge that what he was doing had the result of deliberately depriving the state of funds lawfully due to it. To put it simply, the Applicant cannot cavil with the proposition that he well and truly knew that the deliberate failure to pay requisite duty on the imported cigarettes comprised the primary (but unlawful) ‘margin of profit’ to be derived from the exercise.
Sub-paragraph 8.1.1(1)(b): none of the Applicant’s conduct engages the operative effect of sub-paragraphs (i), (ii) and (iv). He has not been involved in unlawful conduct that caused a person to become a party to a forced marriage.[16] He has not been convicted for any offence committed against vulnerable members of the community or government officials in the performance of their duties.[17]He does not have any conviction for ‘a crime committed while… in immigration detention.’[18]
[16] Paragraph 8.1.1(1)(b)(i) of the Direction.
[17] Paragraph 8.1.1(1)(b)(ii) of the Direction.
[18] Paragraph 8.1.1(1)(b)(iv) of the Direction.
Sub-paragraph 8.1.1(1)(b)(iii) also facilitates the taking into account the conduct of a
non-citizen that may form the basis of a finding that he/she does not pass an aspect of the character test contained in s 501(6) of the Act. I make particular reference to s 501(6)(c) and, having regard to the nature, extent and level of seriousness of the Applicant’s offending convicted and sentenced in October 2020, I am of the view that this sub-paragraph facilitates a finding that his conduct has been at least ‘serious’ (as per the chapeau to paragraph 8.1.1(1)(b)) but more likely very serious.
Sub-paragraph 8.1.1(1)(c): in applying this particular sub-paragraph, I am precluded from taking into account sentences imposed on this Applicant for:
(a)any violent offending he may have committed against women;[19]
(b)acts of family violence;[20] and
(c)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[21]
[19]Paragraph 8.1.1(1)(a)(ii) of the Direction.
[20]Paragraph 8.1.1(1)(a)(iii) of the Direction.
[21]Paragraph 8.1.1(1)(b)(i) of the Direction.
None of this Applicant’s offending falls within the realm of sub-paragraphs (a), (b) or (c) of the immediately preceding paragraph [31]. To my mind, there are two schools of thought about the extent to which the sentence imposed by Judge Jones DCJ in October 2020 speaks to the nature and seriousness of the Applicant’s conduct. On one view, it might be said that the sentence of two and a half years was relatively moderate having regard to the maximum possible sentence of 10 years imprisonment that could have been imposed if the Applicant had been given the maximum sentence on each count and ordered to cumulatively serve both sentences. The Applicant received a head sentence of two and a half years for each conviction. Judge Jones DCJ was at pains to point out that the Applicant was to serve the sentences concurrently and not cumulatively. The two and a half year head sentence imposed by Judge Jones DCJ represents 12.5% of a 20 year cumulatively served maximum term or, put another way, 25% of a 10 year maximum sentence per offence .
On another view, it could be argued that for an offender who (1) entered his own plea to both counts; (2) otherwise co-operated with the police; and (3) had no prior offending history, the imposition of a head custodial term of two and half years might be considered significant. I am inclined towards this second view because (1) while Judge Jones DCJ did not think the offending was at the highest level of seriousness and sophistication, His Honour nevertheless thought the offending was of a certain ‘level of seriousness’ and that there was ‘certainly…a degree of sophistication’ inherent in the offending; and (2) His Honour contemporaneously imposed a reparation order in the full amount of the assessed shortfall in the duty not paid consequent upon the convicted offending.
I am of the view that the sentence imposed on the Applicant in October 2020 speaks to a finding that his offending has been very serious. I so find.
Sub-paragraph 8.1.1(1)(d): the Applicant has an extremely limited offending history comprising only two entries both occurring on the same date. His offending cannot be found to be frequent. Likewise, there is no means by which one group or bundle of offences can be counterpointed against an earlier or later group or bundle as a means of detecting any trend of increasing seriousness. This sub-paragraph should be put to one side and rendered neutral for present purposes.
Sub-paragraph 8.1.1(1)(e): for the same reasons I have provided in the immediately preceding paragraph [35] it is not possible to detect any cumulative effect from the Applicant’s offending history because he has not committed any repeated offending. This sub-paragraph should be put to one side and rendered neutral for present purposes.
Sub-paragraphs 8.1.1(1)(f), (g) and (h): there is nothing before the Tribunal to indicate the Applicant has ever provided false or misleading information to the Respondent’s Department.[22] There is no evidence of any formal or other warning to him about the consequences of further offending in terms of his visa status to remain here. Indeed, there is no further offending to speak of because the Applicant has been convicted of two charges at the one sentencing episode.[23] There is no evidence of the Applicant committing any offence in another country.[24] .These three sub-paragraphs should be put to one side and rendered neutral for present purposes.
[22]Sub-paragraph 8.1.1(1)(f) of the Direction.
[23]Sub-paragraph 8.1.1(1)(g) of the Direction.
[24]Sub-paragraph 8.1.1(1)(f) of the Direction.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant paragraphs contained in paragraph 8.1.1(1) of the Direction to the evidence before me relating to his two convictions in October 2020. I am satisfied that those relevant paragraphs give rise to a finding that the totality of the Applicant’s unlawful conduct in this country can be found to have been at least very serious. I so find. I am of the view that his traffic history is relatively unremarkable and his little to say about the overall nature and seriousness of his conduct.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Sub-paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Sub-paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence …..; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
There is an obvious singularity apparent from the very limited extent of the Applicant’s offending history. The entirety of that history consists of one sentencing episode (on

9 October 2020) involving two convictions from a single instance of offending. Therefore, the question of any harm to be suffered by ‘individuals or the Australian community’ is likewise a limited one. It is limited because no “individual(s)” was harmed by the Applicant’s offending. Rather, this question of nature of harm can be put thus: ‘What is the nature of the harm to the Australian community if the Applicant were to engage in further criminal conduct around the unlawful importation and/or possession of tobacco products’.
For the purposes of this question, it can be fairly assumed that the ‘Australian community’ is represented by its government instrumentality involved with raising and collecting revenue by which the community is sustained. Thus, the answer to this limited question maybe stated as follows: were this Applicant to again involve himself in conduct designed to, or having the effect of, depriving the state of revenue lawfully due to it, then members of the community in favour of whom that revenue would have been applied would suffer loss. That loss would not be referrable to a specific victim or narrow class of victims. Rather, the harm would be amortised across the Australian community entitled to the benefit of that state-derived revenue.
It goes without saying that harmful to health though tobacco smoking maybe said to be, it is not illegal to (1) to offer tobacco products for retail sale; or (2) make a conscious choice to consume them.
It is necessary to say something of the Applicant’s traffic history which I have summarised above. I repeat my finding that it is a relatively unremarkable traffic history. However, it is a history involving at least four offences resulting from using a mobile phone when driving a motor vehicle. The two speeding offences are for, respectively, exceeding the speed limit less than 13 km/h and exceeding it by at least 13 km/h but not more than 20 km/h. This is offending with potential to harm other road users. A finding can be made that if the Applicant recommits such traffic offences and if it results in an adverse outcome for another road user, then harm may befall the person on the receiving end of such an outcome.
Were this Applicant to recommit his offending in relation to tobacco products, harm would be occasioned to the state’s revenue-raising apparatus which, in turn, would harm the interests of the Australian community as a whole by denying it necessary revenue towards sustenance. Were he to recommit his traffic offending there is potential for harm to be suffered by other road users. I so find in relation to both strands of the Applicant’s offending conduct.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Any assessment of this Applicant’s recidivist risk must be predicated by an initial observation about the state of the evidence as it emerged during the hearing. As I pointed out to the parties during the hearing, this was a case that gave one impression from the reading of the written materials and another impression following the hearing of the Applicant’s oral evidence. Such was the gulf between the two that I suggested to the Applicant’s representative during the hearing that I should stand down the matter to facilitate an opportunity for the Applicant to understand the significant divergence between his written materials and what he was saying during oral evidence.[25]
[25]Transcript, p 30, lines 27-47; p 31 lines 1-21.
While giving his oral evidence at the hearing, the Applicant adopted a stubborn and strident tone of obfuscation, re-casting of previously agreed evidentiary positions and otherwise denying what had transpired previously, much of which he had already consented to. For example, an aspect of the evidence contained in the agreed Statement of Facts that went before Judge Jones DCJ was put to the Applicant during cross-examination. For some reason best known to him, the Applicant sought to re-cast that narrative in terms that had not previously been canvassed and did not otherwise appear in the material. Following the abovementioned brief adjournment, it was clear that the Applicant’s Counsel had done his level best to, as it were, cause the Applicant to bring his oral evidence in line with what appeared in the materials filed with the Tribunal up to the start of the hearing.
Things marginally improved in terms of the Applicant’s oral evidence such that he did not retrace his steps and attempt to explain why his earlier oral evidence was so divergent from what his written materials had to say. Perhaps the best explanation may, with due respect, be a cultural one. It occurs to me that the Applicant was giving his oral evidence on the basis of trying to defend himself and to otherwise use his own individually conceived method or ‘case theory’ about how his evidence should be presented to the Tribunal. If so, then his doing so was an erroneous thing to do. This is primarily because his very competent Counsel and instructing solicitor had laid out before the Tribunal an entirely logical, learned and cogent bundle of material designed to cause this Tribunal to set aside the Decision Under Review. This level of preparation and presentation was necessary because the Respondent’s representative had done an equally impressive job of presenting the Minister’s material in a way that made it readily open to the Tribunal to affirm the Decision Under Review. Quite what the Applicant was doing in taking the often obfuscatory and absurd tone in his oral evidence is something best known to him.
Having regard to the state of the Applicant’s oral evidence given at the hearing, my preference is to orientate my assessment of his level of recidivist risk towards the written evidence (including that of the Applicant) together with the oral and written evidence of the Applicant’s father and expert clinical psychologist (Dr Deanne Hawkins). Where necessary, I will refer to the Applicant’s oral evidence but not so much in terms of whether a past thing did or did not occur or was or was not agreed to, but more from the perspective of his current level of insight, remorse and understanding of his past unlawful conduct.
The Applicant’s evidence
The material contains an unsigned affidavit attributable to the Applicant. During his evidence in chief, the Applicant was taken to this document and duly identified it as his own and otherwise confirmed and endorsed its contents.[26] For reasons I will repeat a number of following times, this Applicant impressed me as a person of more than average intelligence. In his affidavit, he says that he studied law in China with an intention of becoming a legal practitioner in that country. An initial failure to ‘pass the Chinese Bar exam’ caused him to look for alternate work as a means of sustaining himself.[27]
[26]Transcript p 10, lines 15-38.
[27]Exhibit 3 [7].
From 2002 until the mid-2000’s he did a three year stint as an IT manager at a nuclear power generation facility in Guangzhou. He then went work for China Telecom and worked there for a while until arriving here in October 2008. He has been married twice, first to a Ms Ma and then to a Ms Qin. There is one child from his second marriage, a daughter -Child A, presently aged 11 years. Both the Child A and her biological mother reside in Australia. The Applicant married Ms Ma in China in or about 2008 and came here with her in October 2008. He has resided in the Brisbane area for the totality of his time in this country.
The Applicant and Ms Ma purchased a townhouse as their family home in or about 2010. Although his English skills were not very good and although he did not hold any trade or professional qualifications to facilitate employment in Australia, he did not remain idle. His affidavit tells us that he “…started working odd jobs as a driver picking up and dropping people off from the airport. I also worked as a tour driver for overseas travellers coming to Australia.”[28] He eventually met a manager of a bakery business operating multiple bakeries throughout Brisbane and the Gold Coast. This manager offered to employ the Applicant as a delivery driver for this bakery business. The Applicant accepted the offer.
[28]Exhibit 3 [19].
While working as an airport driver in 2010 the Applicant met his second wife Ms Qin. At this time, the Applicant says that he and Ms Ma had grown apart which eventually led to the dissolution of their marriage in 2011. He married Ms Qin in February 2012 and Child A was born in July of that year. His affidavit goes onto say that:
‘In or about late 2013 or early 2014 I bought a property at [house number and street name redacted] Parkinson in the State of Queensland in my own name for my family to live in. I have since sold this property in order to help pay for my legal fees.’[29]
[29]Exhibit 3 [24].
In about 2012 the Applicant’s parents travelled from China to Australia to stay with the Applicant and his family. His affidavit tells us that his parents “…
‘They would come to Australia for long periods, before returning to China briefly, before returning as they were preparing to relocate to Australia to live here permanently with me so I could care for them in their old age. This arrangement continued under 2016 when my father was granted a permanent resident visa.’[30]
[30]Ibid [25].

With further reference to the parents, his affidavit tells us that ‘My mother retired from work in or about 2008 in China. My father retired from his job as a teacher in or about 2011 when he turned 60 year [sic] of age.’[31] The Applicant further points out in his affidavit that there is in Chines culture (and in particularly in his own family) an expectation that the eldest son will take care of their parents in their old age. The Applicant says ’I have always been close with my parents and as their only child I take this responsibility seriously.’[32]
[31]Ibid [26].
[32]Ibid [27].
In this affidavit, the Applicant refers to his divorce from his second wife in October 2015. At this time, the Applicant ceased working as a delivery driver for the abovementioned bakery business and returned to working for himself ‘…as a driver taking people to and from the airport. I also took tour groups to visit south east Queensland.’[33] The circumstances of how the Applicant came to become involved in the offending which led to his convictions and sentencing in October 2020 are stated thus
‘36. I had a number regular customers going to and from the airport, who were mostly business people who travelled often. Some of these people would legally bring in duty free cigarettes which they did not want and they would sell to me at cost price instead of paying me money.
37. I would then advertise these cigarettes on the internet and then sell them. This is how I got involved in selling cigarettes. I also purchasing Chinese cigarettes that had been legally imported from a wholesaler and sold these cigarettes online.
38. While I was working driving people to the airport I met some people who were from Korea and China who knew I was selling cigarettes online. One of those persons was a Korean man called Brian. I don’t know his legal name, but I believe his last name may have been HAN.
39. They came to me with a plan under which they wanted my help to import cigarettes. They said that they would arrange for the importation and that they just needed an address for delivery.
40. I agreed to cooperate which Involved [sic] my signing customs and import documents to have the goods released from customs storage. I would be able to sell some of the cigarettes for myself as part of my agreement to help them.
41. A shipment of these cigarettes was delivered to my home on the evening of 28 December 2014. When I arrived home about 1 hour after delivery, I found that police and the custom officers were present at my home and the shipment had been seized.
42.During interviews with the customs authorities, I fully cooperated with investigations and made full and frank admissions.’[34]
[33]Ibid [35].
[34]Exhibit 3 [36]-[42].
The Applicant cooperated with the investigating authorities and ‘..made full and frank admissions.’[35] The Applicant notes that he could have fled to China ’…at any stage after my initial arrest as customs had returned my Chinese passport to me.’[36] He says that he did not do so because ‘…I regard Australia as my and my family home [sic] and also believed that I had a good chance to defend the charges against me.’[37] It should be noted that an initial four charges were proffered against the Applicant comprising the abovementioned (1) ‘importing tobacco products’ and (2) ‘possession of and/or conveyance of tobacco products’ plus the additional charges of (3) ‘stealing property of value exceeding $5000’ and (4) ‘fraud-dishonestly cause detriment value of /over $30,000 but less than $100,000.’
[35]Ibid [42].
[36]Ibid [44].
[37]Ibid [44].
Both of these latter two charges were dealt with in the Applicant’s sentencing hearing date before Judge Jones DCJ in October 2020. Specifically, the third (stealing) abovementioned charge was the subject of a “not guilty finding.” entered on September 2022.[38] The fourth abovementioned charge was subject of nolle prosequi on 5 September 2022.[39]
[38]Exhibit 1, p 36.
[39]Ibid.
The Applicant was taken into criminal custody following sentencing on 9 October 2020. Upon securing eligibility for parole after serving eight months (remembering that he served additional time on top of this eight months) he was taken into immigration detention. The evidence confirms that during his time in prison and immigration detention, the Applicant remained trouble-free and was otherwise a diligent participant in employment activities and rehabilitative courses.[40] The material contains reference to an Information Notice Security Classification performed by Queensland Corrective Services. This document is predicated on an itemised ’subject-finding’ methodology. The document begins with a somewhat mystifying statement by the author that ‘I have decided to classify you [the Applicant] a HIGH security classification. [41]’ This Security Classification document then goes onto address the four mandatory elements appearing at section 15(1) of Corrective Services Act 2006 (Qld). I will quote the relevant portions of the authors response to each of these elements:
[40]Exhibit 10 pp 1-18; 29-39.
[41]Ibid p 21.
‘a) The nature of the offence for which the prisoner has been charged or convicted:
……I do not believe that your current sentenced offences are sufficient enough to weight [sic] my decision to classify you in accordance with a high security classification.
b) The risk of the prisoner escaping, or attempting to escape, from custody:
You do not currently have escape related convictions or intelligence; however, I note that you are currently subject to deportation from Australia. Given this, I am of the view that you pose a risk of escape or attempting to escape lawful custody.
c) The risk of the prisoner committing a further offence and the impact the commission of the further offence is likely to have on the community:
You have been assessed as having a Risk of Reoffending Prison Version (RoR- PV) score of 1, which indicates you fall into the category of prisoners who pose a low risk of further general offending. This score does not indicate your risk of violent offending.
Your Queensland Court Outcomes indicates that you present with nil prior criminal history. I note that your current sentenced offences are your first recorded convictions, which I believe is significant, given the nature of your sentenced offences.
d) The risk the prisoner poses to himself or herself, and other prisoners, staff members and the security of the corrective services facility:
I gave consideration to your violation's [sic] history and recorded case notes which reflect compliant custodial behaviour. Based on this information, I consider you do not pose a risk to others and the safety and security of the corrective services facility at this time.’[42]
[My emphasis]
[42]Exhibit 10, pp 21-22.
How the author of this security classification document reconciles an initial security classification of ‘HIGH’ with a subsequent statement that she did not believe the sentenced offences were ‘sufficient enough’ to classify the Applicant in accordance with ‘HIGH’ security classification is something best known to her. Further, how the author reaches a conclusion that the Applicant poses a risk of escaping or attempting to escape from lawful custody on the basis that the Applicant is ‘…currently subject to deportation from Australia’ is also something best known to that author.
For present purposes, the findings in relation to sub-paragraphs (a), (c) and (d) do, to my mind, speak to the Applicant’s recidivist risk as perceived at the time this security classification was made on 29 January 2021.[43] Of further relevance for present purposes is the abovementioned Risk of Reoffending Prison Version (RoR- PV) score attributed to the Applicant in the security classification document. It will be recalled the Applicant achieved a total score of 1. To understand the methodology of the RoR-PV assessment, it is worthwhile quoting the entirety of the finding as it appears in the material:[44]
[43]Ibid, p 22.
[44]Ibid, p 26.
‘Risk of Re-Offending Assessment- RoR-PV- 19 Oct 20

Name:

KAI TAN

ID:

[information redacted]

DOB:

10 Jan 1980

State:

Discharged

Question

Risk Item

Score

Has the offender been convicted of a Breach of Justice Order (current offence or previous offence)?

No

-2

Has the offender been convicted of an assault or related offences (current offence or previous offence)?

No

-1

Number of convictions in the past ten years (orders and prison sentences):

0

-4

Age at admission:

35 or older

-3

Sub Total:

-10

Add 11 to total Score:

11

Total

1

(Range of Scores 1 to 22: 22 being highest risk of re-offending)’

[Bold in original]

In his abovementioned affidavit, the Applicant says ‘I now understand and appreciate that what I did was wrong and have no intention of doing something like that again. However, at the time I thought it was ok to buy and sell cigarettes as I did.’[45] He confirms that he has no other criminal history in Australia or elsewhere and that he has committed no offences of violence, including domestic violence. He acknowledges his traffic history and in respect of it says this: ‘I accept that I have a traffic history which includes speeding or using a mobile phone whilst driving. I did not go out of my way to break the law – these traffic offences were due to my carelessness.’[46]
[45]Exhibit 3 [48].
[46]Ibid [55].
His affidavit goes on to say:
‘I entered guilty pleas to the two charges against me out of sheer exhaustion of the lengthy court process. This process has also bled my parents and my finances dry. I am aware that the District Court also ordered that I pay reparations of $311,291.11 to the Commonwealth for my offences.’[47]
[47]Ibid [72].
On the specific question of the recidivist risk, the Applicant submits that:
‘…the risk to Australia of further offending if I am allowed to stay is significantly low to nil. This was noted by Judge Jones during my sentencing hearing in October 2020.’[48]
[48]Ibid [76].
In terms of future prospects, the Applicant makes reference to the reparations order in the sum of $ 311,291.11 made by Judge Jones DCJ contemporaneous with the balance of the sentencing regime imposed on the Applicant in October 2020 and says the following:
‘I entered guilty pleas to the two charges against me out of sheer exhaustion of the lengthy court process. This process has also bled my parents and my finances dry. I am aware that the District Court also ordered that I pay reparations of $311,291.11 to the Commonwealth for my offences.
I have not been able to do so to date as I have been incarcerated. However, it is my intention to do so once I am released from custody. My intention is to initially work as a delivery driver.
I am also considering going to TAFE to obtain qualifications so I can work as a builder so I may be able to earn more to pay off my debt to the Commonwealth, and to better care for my family and myself.’[49]
[49]Exhibit 3 [72]-[74].
The evidence of the Applicant’s father
The Applicant’s father, Mr Qing Shan Tan has provided both oral and written evidence to the instant hearing. The written material comprises an affidavit he swore on

11 August 2023 is before the Tribunal.[50] Mr Tan (Senior) spent his entire working life as a lecturer in the field of Chemical Engineering at South China university of Technology, Guangdong Campus. He turned 60 in 2011 and he and his wife decided to relocate from China to Australia to be close to the Applicant who is their only child. He is an active participant in his local community performing voluntary work for two members of Queensland State Parliament. His affidavit goes onto say:
‘I am [sic] musician in a community based Chinese musical group called the Brisbane Chinese Summer Music Group. We often perform at places like age-care facilities or respite centres, but also perform in bigger concerts at venues like the Brisbane City Hall.’ .’[51]
[50]Exhibit 4.
[51]Ibid [10].
Mr Tan (Senior) describes the Applicant as ‘…always been a hard-working and law-abiding person.’[52] In term of the Applicant’s involvement in the unlawful activity leading to his convictions he says ‘I believe that he got involved in the illegal importation of cigarettes because he was naive and was willing to assist some people he knew.’[53]
[52] bid [14].
[53]Ibid.
There is some (albeit scant) reference to the Applicant’s offending in Mr Tan (Senior)’s oral evidence. During his evidence-in-chief the following transpired between him and the Applicant’s representative:
‘MR HII: Sorry, one last question. What is your understanding of Kai’s offences that he was found guilty of in October 2020?
INTERPRETER: Yes, he made a mistake or commit the offence, so he is remorseful for that. And also as parent, I think we have a – we have certain responsibility as well. So I hope he can totally rectify his behaviours and stay in Australia and to serve the community here.
MR HII: My question was what is the nature – what is your understanding of the nature of his offences?
INTERPRETER: Smuggling cigarette.
MR HII: When did you become aware that Kai was engaging in that behaviour? When did it first come to your attention?
INTERPRETER: In the past, we – I did not know, so there is (indistinct) box, and until the search was done by some cigarette tobacco companies.
MR HII: That search being in December 2014?
INTERPRETER: Correct.
MR HII: Can you comment on what your relationship was like with Kai at that time?
INTERPRETER: At that time, still a father and a son.’[54]
[54]Transcript p 85, lines 18-44.
The cross-examination of Mr Tan (Senior) did not contain any questions about his understanding of the Applicant’s criminal offending and any view he may have had about the Applicant’s risk of re-offending in Australia.
The evidence of Dr Deanne Hawkins (Clinical Psychologist)
As mentioned, Dr Hawkins provided both written and oral evidence to the instant hearing. Her written report is dated 10 August 2023 and appears in the material.[55] Her qualifications ‘include undergraduate training in psychology, a Bachelor of Arts in psychology from the University of Queensland, a Bachelor of Arts in psychology with Honours, also from the University of Queensland, and a Doctor of Psychology Clinical from QUT.’[56] She also told the hearing that she obtained her undergraduate degrees in 2000 and 2005 and her post-graduate degree was obtained in 2011.[57] She has been in practice as a clinical psychologist since first obtaining her provisional registration as a psychologist in 2006.[58] She obtained her full registration as a general psychologist in 2009 and she also obtained her clinical registrations in 2011.[59]
[55]Exhibit 6.
[56]Transcript, p 42, lines 3-6.
[57]Ibid, lines 8-10.
[58]Ibid, lines 12-13.
[59]Ibid, lines 13-15.
In her report Dr Hawkins cited sources of information that were briefed to her.[60] She conducted the following psychological assessment procedures on the Applicant. First, she had a structured clinical interview with him. Second, she conducted a Personal Assessment Inventory (‘PAI’) upon the Applicant as well. The PAI is a 344-item multiple choice questionnaire that assesses symptoms of adult psychopathology and abnormal personality.[61] She initially observed the Applicant to be ‘…very co-operative and keen to engage and participate in the assessment…he maintained a generally relaxed posture throughout the assessment, was very open and forthcoming with information and appeared polite, warm and friendly.’[62]
[60]Exhibit 6, p 2.
[61]Ibid.
[62]Ibid p 3.
Dr Hawkins conducted a thorough background examination of the Applicant and produced a detailed history of the Applicant’s personal/family history and current relationships[63] together with his educational and employment history.[64] With specific reference to the latter, Dr Hawkins noted:
‘On further questioning, Mr Tan denied any occupational difficulties throughout his employment. He stated he was never let go nor was his employment every [sic] terminated. Mr Tan also reported that he has never been unemployed and never collected any welfare benefits either in China or Australia. When asked how he has supported himself, Mr Tan stated that he has always supported himself through work.’[65]
[63]Exhibit 6, p 4 [4.1].
[64]Ibid pp 4-5 [4.2].
[65]Ibid.
Dr Hawkins also produced a summary of the Applicant’s criminal history and noted a specific feature of his personality which she thought may have predisposed him to become involved in the ‘syndicate’- type situation within which he committed his offences. She identified these personality features as the Applicant having ‘long standing history of personality features surrounding agreeableness and low dominance within interpersonal and social situations.’[66] Dr Hawkins goes onto say that these features:
‘…likely underlies Mr Tan's propensity to avoid conflict with others and contributes to a vulnerability and some difficulty in setting and maintaining boundaries, asserting himself and his experience along with difficulties in resisting feeling compelled to comply with the demands of others particularly those in a position of authority, trust and power.’[67]
[66]Exhibit 6 p 5, [4.3].
[67]Ibid.
She noted that when discussing his offending, the Applicant ‘… spoke to feelings of shame, embarrassment, guilt, feelings of regret and remorse for his actions along with the impact these have had on his family and community and motivations to undo the damage he has caused others.’[68]
[68]Ibid.
Under the heading in her report appearing as ‘Psychological History, Medical History and Current Mental State’, Dr Hawkins noted the Applicant’s instructions of never receiving any diagnosis of any psychiatric condition and that he was not taking any medication for any adverse physical and mental health symptoms. She further noted him telling her that ‘..his general health has been otherwise unremarkable and that he has no physical condition of concern.’[69] She further noted the Applicant identified ‘….a number of protective factors that mitigate his risk, including family, some peer social supports, along with future career plans and a more general future focus.’[70] In terms of any predisposition to abuse or experience difficulty with alcohol/ illicit substances, Dr Hawkins noted the Applicant’s denial of any past or current drug or alcohol use. She also recorded him telling her that ‘…he stated he has never smoked cigarettes.’[71]
[69]Exhibit 6, p 5 [4.4].
[70]Ibid.
[71]Ibid, p [4.5].
Dr Hawkins’ report then turns to production of a personality assessment for the Applicant. In terms of identified clinical features resulting from application of the PAI methodology Dr Hawkins said the following about any discernible clinical features that could possibly be found in the Applicant’s psychopathy:
‘In particular, according to the respondent's self-report, the PAI reveals he describes NO significant problems in the following areas: unusual thoughts or peculiar experiences; antisocial behaviour; problems with empathy; undue suspiciousness or hostility; extreme moodiness and impulsivity; unhappiness and depression; unusually elevated mood or heightened activity; marked anxiety; problematic behaviours used to manage anxiety; difficulties with health or physical functioning. Also, he reports NO significant problems with alcohol or drug abuse or dependence.’[72]
[My emphasis]
[72]Exhibit 6, p 7 [5.2].
Under the heading in her report appearing as ‘Risk, harm to self/others and risk of re-offending’ Dr Hawkins noted:
·there is no suggestion of the Applicant entertaining thoughts of self-harm or suicidal ideation;
·in terms of anger management she noted the Applicant describes himself as a very meek and assertive person who has difficulty standing up for himself even when assertiveness is warranted;
·in terms of anti-social features Dr Hawkins said the following:
‘The PAI also contains scales conceptually relevant to offending including measures of Anti-social features, Aggression, Dominance as well as the Violence Potential Index, with the Aggression scale being the most consistent predictor of recidivism. Mr Tan's scores across these scales in particular provide further support and evidence that he does not present a foreseeable risk of reoffending and are consistent with collateral information and risk of reoffending assessments made and reported within his QCS records.’[73]
[73]Ibid, p 7 [5.5].

At the conclusion of her report, Dr Hawkins presents a ‘Summary’ of her findings.[74] Those findings may be shortly stated thus:
·the PAI testing pointed to ‘…an individual who was quite agreegable, low dominance and conflict avoidance’;[75]
·these psychological features ‘underly[sic]…difficulties with setting and maintaining boundaries within some interpersonal relationships alongwith a vulnerability at times to feeling compelled to comply with the demands of others, particularly those within position of authority, trust and / power’;[76]
·these features ‘have likely precepted, contributed to, and perpetuated his criminal history’;[77]
·the Applicant presents as ‘genuinely remorseful, self-critical, and regretful of his actions.’;[78]
·having regard to the Applicant’s overall demeanour and pursuant to the PAI testing, Dr Hawkins thought the Applicant ‘…does not present a foreseeable risk of reoffending at the time of this assessment’;[79] [My emphasis]
·Dr Hawkins thought it was notable that her finding of the Applicant not presenting any foreseeable recidivist risk ‘is consistent with collateral information, assessment, and reports regarding his risk of re-offending to the community within his Queensland Corrective Services record.’[80]
[74]Ibid, p 8 [6.0].
[75]Ibid.
[76]Ibid.
[77]Ibid.
[78]Ibid.
[79]Ibid.
[80]Ibid.
In terms of an actual finding about the Applicant’s level of recidivist risk Dr Hawkins said “Overall, at the time of this assessment, his risk of reoffending and the impact the further offence is likely to have on the community is assessed as very low.”[81]
[My emphasis and underlining]
[81]Exhibit 6, p 8, [6.0].
Dr Hawkins concludes her report by particularising the Applicant’s level of recidivist risk into individual categories:
‘6.1 Psychological risk level

Suicide Risk:

LOW

Violence Risk:

LOW

Reoffending Risk:

LOW

Psychological Symptomatology:

LOW

Management of Disorders:

LOW

Addictions:

LOW

Overall Risk Level is LOW’[82]

[82]Ibid [6.1].

[Bold and underlining in original]

Dr Hawkins also gave oral evidence, both in chief and in cross-examination. She was asked a series of questions in cross-examination that could be found to be relevant in the context of the Applicant’s level of recidivist risk. First, she was asked about the extent to which the Applicant’s 11 year-old daughter- Child A could now be said to be a protective factor against the risk of him re-offending. It was suggested to Dr Hawkins that Child A represented a limited protective factor because the Applicant was at the start of the process of securing court orders for access or some other court-sanctioned parenting plan in relation to Child A. Dr Hawkins was mindful of the necessary process to secure such arrangements but did not think this element displaced Child A as a protective factor:
‘---Well I think that access of the child or regaining access of the child is a process. And I’ve certainly worked with many men who have been through that journey. And while at one point in their clinical journey the relationship has been problematic they have been able to work through those interpersonal issues and co-parent together successfully.’[83]
[83]Transcript, p 47, lines 24 – 29.
Dr Hawkins was further asked whether the apparently unhappy end to the relationship with Child A’s mother now meant that the Applicant would be presented with a greater challenge in terms of securing visitation/parental rights in relation to Child A and whether this anticipated difficulty reduced the extent of Child A as a protective factor. Dr Hawkins did not think so:
‘---Well I think there were issues at the time with his ex-wife. And now that they are no longer together – they’re separated – and he does have plans in place to attempt to regain access through the formal channels, we would have to sort of see what that clinical journey unfolds like and looks like. But I’ve certainly worked with many people who have been able to do that successfully. I don’t think that you can say that just because at one point in time the relationship has been difficult it will forever be difficult.’[84]
[84]Transcript p 47, lines 34 – 41.
Second, Dr Hawkins’ evidence was sought to be impugned on the basis of the extent of her knowledge of the Applicant’s offending. It is clear that Dr Hawkins reached an understanding that:
‘…the issue was related to him first of all importing the tobacco products but then also possessing them as well. He talked in the interview about border force attending his residence and searching the property as well, and also finding a sum of money but that money later being returned.’[85]
[85]Ibid, lines 27- 31.
She also knew that the Applicant’s convictions involved his failure to pay some $311,000 of duty for the unlawfully imported cigarette product.[86] Further to that, her understanding of the context of the Applicant’s commission of the indica of his unlawful conduct also seemed well-developed and otherwise satisfactory:
‘MR HOPKINS: And so what’s your understanding of [Applicant]’s involvement in this? His broader involvement beyond this specific day in this cigarette importation sale business?
DR HAWKINS: ---I suppose I came away with the impression that he was involved in a syndicate, and that he was one person within that syndicate, and that the syndicate had been sort of separating out the function of the syndicate and the way the syndicated [sic] operated, and that he was engaged in and holding some of those functions.’[87]
[86]Transcript p 49, lines 1-3.
[87]Transcript p 49, lines 5 -11.
On this second issue of an asserted lack of understanding of the Applicant’s criminal history, Dr Hawkins was not aware of the length of time the Applicant had been involved in this syndicate.[88] To my mind, nothing turns on this claimed deficiency in her knowledge of the Applicant’s offending history. It seems clear that Dr Hawkins developed an acceptably fulsome understanding of the nature and extent of the Applicant’s offending. Ultimately, as Dr Hawkins said, a person’s offending history is but ‘one part’[89] of the recidivist risk assessment exercise.
[88]Transcript, p 49, lines 16-17.
[89]Ibid, line 45.
Third, Dr Hawkins was taken to her identified personality traits of this Applicant involving his agreeableness, his low level of dominance within inter-personal and social situations and a propensity to avoid conflict with others and how these traits contribute to a vulnerability and difficulty in setting and maintain boundaries in relation to other individuals. Dr Hawkins cautiously accepted that these personality traits do have an impact on moderating a person’s recidivist risk:
‘MR HOPKINS: Are those two personality traits something that is relevantly fixed over a period of time?
DR HAWKINS: ---It can be, but it is something that can change normally with two factors: therapy, but also the relationships that you have around you. But there are other factors that also, you know, do have an impact on reoffending as well that are separate to that.
MR HOPKINS: If someone’s highly agreeable and highly compliant, is it likely that therapy and having good relationships would make them the opposite of that? Or is it the case that we’re really talking about moderating those personality traits rather than completely changing them?
DR HAWKINS: ---Yes, it would be about, like, therapy, or your associates, but also your circumstances at home, your employment. All of those factors would have an impact on moderating that risk.’[90]
[90]Transcript, p 50, lines 13-25.
Fourth, Dr Hawkins was asked about the extent of the Applicant’s engagement with rehabilitative therapy and whether this was a fact speaking adversely to his recidivist risk. Clearly, she did not think so:
‘MR HOPKINS: Are you aware of the applicant having engaged in any therapy that’s – well, any therapy generally speaking?
DR HAWKINS: ---No. But having said that, what I would say is that that’s not uncommon among people of an Asian background. I think that, within the clinical field in particular, there’s more and more recognition that culture does play a role in whether an individual does seek help. And I’m not saying that that’s right or wrong, but Kai does come from an Asian background where I think the way – the way that you present yourself to the world is really, really important, and I think many Asian individuals and families like Kai’s are really routinely concerned with and have family histories that a – that are really focused on the importance of the practical ways of being in the world. And I think that, while help-seeking and participation in therapy, it absolutely does occur amongst individuals from an Asian background. There definitely is a body of psychological literature that’s demonstrated that that’s not necessarily common.
MR HOPKINS: Are you saying then that the applicant’s cultural background is a barrier to the applicant accessing therapy?
DR HAWKINS: ---I’m not saying it’s a barrier, but I’m saying it’s an – I think to draw the inference that, you know, he hasn’t sought treatment or engaged in treatment means that, you know, he wouldn’t in the future of he is, you know, not truly remorseful or taking responsibility or accountability for his actions, I don’t think that that is something that is supported by the evidence base, or certainly my clinical experience or judgement[sic].’[91]
[91]Transcript, lines 27-47; Transcript p 51–1-2.
Fifth, Dr Hawkins was asked about the PAI psychometric testing she conducted on the Applicant and whether it constituted the primary element in her assessment of the Applicant’s level of recidivist risk. She made it clear that it’s not a standalone element and that it is utilised in conjunction with other elements to produce a concluded view of the Applicant’s recidivist risk:
‘MR HOPKINS You conducted some psychometric testing. The specific assessment for the applicant I believe it’s referred to as PAI, Personality Assessment Inventory?
DR HAWKINS: ---M’mm.
MR HOPKINS: Is that the primary assessment that you use to formulate your assessment of his risk of reoffending?
DR HAWKINS: ---It’s one assessment, and it’s a standardised assessment. But it’s used not as a standalone and absolutely in combination and conjunction with a semi-structured clinical interview.
MR HOPKINS: When we talk about risk of reoffending, are you talking about violent offending or general offending? What offending is his semi-structured interview and PAI predominantly directed towards?
DR HAWKINS: ---Risk of criminal offending.
MR HOPKINS: Does that include financial offences?
DR HAWKINS: ---Yes.’[92]
[92]Ibid, p 51, lines 39-46; p 52, lines–1-6.
There followed some questions from me. First, I conveyed my abovementioned observation to Dr Hawkins that in this case, the Applicant’s evidence reads differently to how his oral evidence transpired. I pointed out to Dr Hawkins that I was having difficulty in reconciling her psychometrically assessed demeanour of the Applicant at [5.2] on p 7 of her report wherein she thought none of the personality traits she identified could now be said to be causative of his offending. I was particularly interested in her observation that these personality traits were related to his offending but not necessarily causative of it:
‘SENIOR MEMBER: All right. So then we go over the page to paragraph 6.0 and again you say that this is a ‘relatively unremarkable individual’ based upon psychometric testing that you’ve conducted and so you’ve said that he’s a person who is an agreeable person, who is a person low in dominance type conduct and he’s also conflict avoidant. Now when the elements of agreeableness and compliance as risk factors were put to you by the government’s lawyer, Mr Hopkins, you said that they are related to his offending but not causative of it. Well, my question then becomes if none of the factors in the second paragraph at 5.2 are behind his offending and if his agreeableness and compliance are not said to be causative of his offending well then what is causative of his offending?
DR HAWKINS: ---Well I think there’s two issues. So first of all I think the factors in 5.2 or rather when you’re, sort of, talking about dominance or agreeableness they’re actually measured by different constructs to the ones that are referred to in 5.2. So anti-social behaviour for example is a different construct and different factor to dominance or agreeableness.
SENIOR MEMBER: Isn’t another possible explanation something along these lines. This behaviour in which he was involved was clearly syndicated conduct. You’ve said that and I think that can be fairly inferred from the material. So you agree that he was part of some kind of syndicate or group involved in the bringing in of cigarettes into Australia and then selling them without accounting for the duty. You’d agree with that?
DR HAWKINS: ---Yes.’[93]
[93]Transcript, p 56, lines 32-46; p 57, lines 1-6.
Second, I sought Dr Hawkins’ views about the extent to which cultural factors may now be said to have played a part in the Applicant’s offending. My question to her was put as follows and she responded in the following terms:
‘SENIOR MEMBER: All right. Well isn’t another likely explanation for his offending simple greed deriving from two things. One perhaps a cultural thing where people of an Asian background, quite understandably aspire to material success and comfort and I’m not saying there’s anything wrong with that at all. So there’s this aspirational element derived from a cultural background and then when you marry that up to his agreeableness and compliant attitude then doesn’t that make him prime fodder for induction into a syndicate? So he’s greedy, culturally firstly. Secondly, he wants to succeed and be seen to succeed. Wants the good things in life. He’s a relatively young man and he’s otherwise agreeable and compliant. If you overlay the element of greed over all of that isn’t that really another way to explain his offending?
DR HAWKINS---I felt that it wasn’t coming from greed. Like I felt like the way he sort of described his relationship to the syndicate members or the anti-social contacts he was having in relationship to came from more wanting to comply with their demands. You know, to please them. It didn’t have the feel as other assessments I’ve conducted where greed is really the primary factor.
SENIOR MEMBER: But in pleasing them he was surely making a margin of profit and benefit for himself. That’s only fair surely. That’s a fair assumption for him to have?
DR HAWKINS: ---Correct. But I think that there’s a difference in someone’s agenda and motivation in there being an authority figure in the syndicate and, you know, their motivation and agenda, you know, at some level being about, you know, pleasing, complying with the demands that those people are making in a syndicate which can be very difficult to navigate.’[94]
[94]Transcript, p 57, lines 8–31.
Finally, I put to Dr Hawkins the existential nature of a future threat to the Applicant’s visa status to remain here in the event the Applicant were successful in this Application but

re-offended in future such as to trigger a fresh cancellation of that visa:
‘SENIOR MEMBER” Can I just ask you one final question. Can it safely be said – if anything can be safely said in these predictive exercises of risk of recidivism – does it, when the evidence is finally balanced as it is here, does it really come down to this: That if this tribunal gives the applicant his visa back, just for your own knowledge - I don’t know if you know this, Dr Hawkins - but if this tribunal gives him his visa back, he doesn’t become a citizen. He simply gets a visa – or his visa status restored to stay here. So that if he were to re-offend and the elements in the legislation are again engaged, his visa could again be cancelled. Does it come down to nothing more than if the tribunal gives him his visa back, that the best protective factor or the most reliable protective factor will be a reality that if he does re-offend there’s every likelihood that his visa will again be cancelled. And if he comes back to this tribunal on a second occasion, based upon a fresh cancellation, based upon further offending, then his chances of staying here are quite low. Is that the best protective factor? Is that the Sword of Damocles – is that Sword of Damocles the best kind of protective element that perhaps relates to this applicant?
DR HAWKINS: ---Well, it’s certainly a really significant consequence. You know, and then ties into, I suppose, all of the other, you know, factors that do impact, you know, risk. You know, yes.’[95]
[95]Ibid, p 60, lines 4-22.
Findings about recidivist risk
I have earlier recorded my thoughts about the Applicant’s mystifying conduct in trying to, as it were, develop his own case theory – somewhat different to what appeared in his written materials – in the course of giving his oral evidence to the instant hearing. For the purposes of assessing the Applicant’s recidivist risk, I will (as also mentioned earlier), default to (1) the impressively competent manner in which the Applicant’s written materials and oral submissions were made and presented by his legal representatives; (2) the genuine evidence of his father; and (3) the expert and largely un-impugned evidence of

Dr Deanne Hawkins.
From his own evidence, it can be taken that he is clearly an aspirational individual who is motivated towards achieving self-improvement and to otherwise getting on with his life. He has acquitted himself very well to earning his living by legitimate means as a delivery driver for airport-bound passengers and as a delivery driver for a significantly-sized bakery business. True it may be that he has experienced some lack of success in his inter-personal relationships having been twice-married but with both relationships failing. It is not the business of this Tribunal to inquire into the reasons for those marital breakdowns, but it suffices to say that there was no element of domestically violent conduct or any other unlawful behaviour behind those marriage failures.
The Applicant’s employment in the delivery-driver field would have earned him an income but perhaps not led him to the extent of material success to which he may have aspired. Although played down (to an extent) by Dr Hawkins, there is, to my mind, a strong likelihood that cultural factors lie behind the Applicant’s impulsive decision to become involved with a syndicated scheme around the unlawful importation of tobacco and retail sale of tobacco products in this country. The Applicant is a gentleman of Asian background. There seems little in his history to cavil with his aspirational nature and his desire to get ahead in life and to seen to be doing so. We are familiar with the drive, diligence and discipline evident in our Asian community which lies at the heart of much of its material success. These, in my respectful view, are entirely commendable and praiseworthy features behind any successful individual or group of individuals.
They are so while the drive, diligence and background giving rise to such material success is done on legitimate grounds or purposes. Here, the Applicant’s convicted conduct seems to have derived from an overly-aspirational entrepreneurial spark aimed at improving his own circumstances. The difficulty he has created is to have crossed the divide between lawful and unlawful conduct in achieving this objective. Dr Hawkins may have spoken of the Applicant demonstrating absolutely no symptoms that could be regarded as directly causative of his offending. She may also have said the Applicant is, in clinical terms, an unremarkable individual. She may have also spoken about the Applicant’s agreeableness and a desire to not challenge the dictates of others. But these observations do not adequately explain the nature and extent of the Applicant’s conduct.

I am therefore of the view (and I find) that as a result of my analysis of the evidence around sub-paragraphs 8.3(4)(a)(i)-(iii) of the Direction, the Applicant’s ties to the Australian community must be found to be strong despite him not spending his formative years here. This negative element is convincingly counterbalanced by my respective findings that (1) he has contributed to the Australian community via his lawful remunerative employment and volunteering contributions; and (2) that he otherwise has no other criminal history in this country aside that which came before Judge Jones DCJ for sentencing in October 2020.
Conclusion: Primary Consideration 3
I have referred to the four relevant sub-paragraph components of this
Primary Consideration 3. I am of the view – after having analysed the evidence relevant to each of those components – that the totality of the evidence points to a finding that this Primary Consideration 3 is of heavy weight in favour of this Tribunal setting aside the Decision Under Review.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
This primary consideration requires a decision-maker to consider what impact a decision to not revoke the mandatory cancellation of a person’s visa will have on children who are and will continue to be under the age of 18 years of age at the time of the decision.[108] The Direction further requires best interests of each child must be considered individually if there are more than one minor child/ren identified.
[108]Paragraphs 8.4(1) and 8.4(2) of the Direction.
In assessing the best interests of each child/ren, a decision-maker is required to take into account:[109]
[109]Paragraph 8.4(4) of the Direction.
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Identification of minor relevant child
The parties are of the same mind that only one child is relevant for the purposes of the application of paragraph 8.4 to the instant facts.[110] I have checked the material for any reference to any other biological child, stepchild, niece, nephew or other child with whom the Applicant may claim to have a connection but cannot find any.
[110]Transcript p 123 lines 22-45; p 140 lines 17-20.
Evidence around the biological child/grandchildren
In his abovementioned statutory declaration, the Applicant speaks of the nature and extent of his relationship with Child A thus far:
‘My child [Child A]
59. I am remorseful that I have lost so much quality time that I could have spent with my daughter. I wish to have the opportunity to apply to the Family Law Courts to get joint parenting and visitation rights. My parents also wish to spend quality time with their granddaughter.
60. I have not had much opportunity to be involved in [Child A]’s life since I was charged with these offences and my divorce with Ms Qin. It is my understanding that [Child A] lives in Sunnybank Hills with Ms Qin.
61. I had a strong bond with [Child A] and had been providing for her care and supporting her financially.
62. Whenever I previously meet with Ms Qin to speak about wanting to spend time with [Child A], she would bring [Child A] to the meetings where we would be quarrelling with one another. I didn’t want to expose [Child A] to that so I decided after a while not to contact her or agitate my family law issues until after I had resolved my criminal and immigration issues.
63. I wish to be able to play a positive role in [Child A]’s life. I want her to be able to avoid the same issues I have been confronted with. I believe that I would be able to play a positive parenting role in [Child A]’s life as a father figure.
64. I believe that the cancellation of my Visa will deprive [Child A] of the opportunity to have a direct and personal relationship with me in the future, and it would cause her significant emotional, practical and financial hardship.
65. I believe if I am separated from her by having to go back to China she will never be able to have any relationship with me because Ms Qin will refuse to facilitate any such relationship, Court orders will be difficult to impossible to enforce between China and Australia and Ms Qin will permanently cut me out of [Child A]’s life.’[111]
[111]Exhibit 3, p 7 [59]-[65].
During cross-examination, it was attempted to impugn the Applicant’s evidence on the basis of the approximate five year delay in him taking any steps to secure rights of access/contact/parenting with Child A. It seems clear that the relationship between the Applicant and his second wife (and biological mother of Child A) did not end well. She took the child to China for about a couple of years after the child’s birth in Australia. She returned to Australia with the child in or about 2014. The Applicant was challenged about why there was a delay between 2014/15 until the time he went to prison in late 2020 in him seeking contact/access/parenting orders in relation to Child A.
It may be accepted that the delay is a significant one but that should not, in and of itself, preclude the Applicant from having Child A’s best interests being taken into account for present purposes. Further, I think there is some traction in the Applicant’s evidence explaining the delay when he spoke of wanting to have his criminal matter regarding the tobacco products finalised before being in a position to apply for orders in relation to Child A and also being in a position to properly meet the terms of such orders. It should be remembered that the Applicant’s unlawful conduct was the subject of a search warrant as far back in December 2014. There followed the two charges that were eventually proffered against the Applicant which eventually came before Judge Jones DCJ for sentencing in October 2020.
While it would be preferable for this Tribunal to have, duly sealed or sanctioned access/contact/parenting orders relating to Child A before it, the absence of those orders does not preclude her interests from being taken into account for present purposes. It should also be noted that the Applicant and his parents have financially (and quite substantially so) supported Child A by previously giving the cumulative amount of $30,000 to the child’s mother each year, to meet the cost of raising the child. According to the evidence, it was the child’s mother who has pushed back on the provision of this substantial support from the Applicant and his parents towards Child A.[112]
[112]Exhibit 3, p 4, [32].
Application of factors at 8.4(4) of the Direction to Child A
Sub-paragraph (a): there is historical durability in the relationship between the Applicant and Child A. She knows who he is and it will not be difficult for him to re-establish himself as a parental figure in her life. True it may be that (1) the current relationship is non-parental; and (2) that there may have been long period of absence of the Applicant from her life. But that does not mean there is no existing relationship between him and the child. As mentioned earlier, both the Applicant and his family are ready, willing and able to financially contribute (and substantially so) toward Child A. There are no existing court or other orders limiting or restricting the Applicant’s meaningful contract with the subject child.
Heavy weight should be applied to this sub-paragraph (a) in support of a finding that the best interests of Child A are served by this Applicant having his Visa status restored to him such that he can remain in the Australian community and resume and develop a parental relationship with her.
Sub-paragraph (b): it is difficult to cavil with the Applicant’s stated intention to apply to a court for contact/access/parenting orders in relation to Child A.[113] She is presently aged 11 and there are seven parenting years until she turns 18. With the support of his parents, it can be safely inferred that the Applicant will have the capacity to play a ‘hands-on’ parental role in Child A’s life if permitted to remain here. Heavy weight should be applied to this sub-paragraph (b) in support of a finding that the best interests of Child A are served by this Applicant having his Visa status restored to him such that he can remain in the Australian community and resume and develop a parental relationship with her.
[113]Ibid, p 4, [33]-[34].
Sub-paragraph(c): there is no evidence before the Tribunal that the Applicant’s prior conduct has adversely impacted Child A. Likewise, we do not know the extent of any future negative impact upon her were he to re-offend. This sub-paragraph can be put to one side and rendered neutral for present purposes.
Sub-paragraph(d): as mentioned earlier, the relationship between the Applicant and Child A’s mother does not appear to have ended well. Were he to removed from Australia, there is little to suggest she would facilitate the Applicant’s contact with Child A in ‘other ways’ such as by telephonic or electronic platforms. While we do not know the likely effect Child A would experience in the event of the Applicant’s removal to China, it would be vacuous for this Tribunal to find that a permanent separation between Child A and her father would not negatively impact her. A moderate to strong level of weight should be applied to this sub-paragraph (d) in support of a finding that the best interests of Child A are served by this Applicant having his Visa status restored to him such that he can remain in the Australian community and resume and develop a parental relationship with her.
Sub-paragraph (e): The obvious finding here is that Child A’s biological mother already fulfills a parental role in relation to her. But this should not deny the Applicant an opportunity to assume a growing parental role in Child A’s life. Nor should the fact that Child A is primarily cared for by her biological mother detract from any weight allocable in favour of this Applicant for the purposes of this Primary Consideration 4. Properly configured and conducted, it is difficult to see a court of competent jurisdiction denying the Applicant at least some measure of parental rights in relation to Child A. This sub-paragraph (e) should be put to one side and rendered neutral for present purposes.
Sub-paragraph (f): We do not know the views of Child A in relation to any permanent removal of the Applicant from her life. At 11 years of age, she is tentatively old enough to perhaps express some kind of opinion or reaction to never seeing (or possibly even speaking with) her father ever again. Horrid though that thought may seem, it cannot be safely applied in the Applicant’s favour for present purposes because we do not know her views, expressed either by her or her mother. This sub-paragraph (f) should be put to one side and rendered neutral for present purposes.
Sub-paragraph (g): There is no evidence before the Tribunal that Child A has been or is at risk of being exposed or subjected to family violence perpetrated by the Applicant nor that she has suffered any of the abuse or neglect contemplated by this sub-paragraph (g) which should be put to one side and rendered neutral for present purposes.
Sub-paragraph (h): There is no independent clinical or other evidence that Child A has suffered or experienced any of the trauma contemplated by this sub-paragraph (h) which should be put to one side and rendered neutral for present purposes.
Findings about Child A
I have sought to apply each of the relevant sub-paragraphs at paragraph 8.4(4) of the Direction to the evidence before me in relation to Child A. After doing so, I have reached a state of satisfaction that the best interests of Child A weigh heavily in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
Conclusion: Primary Consideration 4
The best interests of Child A, when analysed through the lens of the relevant
sub-paragraphs of 8.4(4) of the Direction, lead me to a finding that this Primary Consideration 4 is of heavy weight in favour of this Tribunal setting aside the Decision Under Review.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[114] The Direction further explains:
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[115]
[114]Paragraph 8.5(3) of the Direction.
[115]Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
Paragraph 8.5 of the Direction states:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country which is evidenced by very serious breaches of the Australian criminal law for which he was sentenced in October 2020. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, 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 be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:[116]
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
[116]Paragraph 8.5(2) of the Direction.
I have carefully looked at the nature and extent of the Applicant’s offending in this country and am hard-pressed to form the view that any of it falls within the auspices of the abovementioned paragraphs (a)-(f) of paragraph 8.5(2) of the Direction. But that is not the end of the inquiry. I am of the view that the Applicant’s very serious offending that came before Judge Jones DCJ for sentencing in October 2020 is of such a magnitude of seriousness that regardless of whether it falls into any of the componentry of paragraph 8.5(2) of the Direction, the Australian community would expect that the Australian Government can and should cancel this Applicant’s Visa. Put simply, other Australian retailers importing overseas goods for domestic sale in Australia pay their share of applicable duty on those goods. There is every expectation that the Applicant should do likewise.
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[117]
(c)Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age;[118]
(d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;[119]
(e)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen;[120] and
(f)if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[121]
[117]Paragraph 5.2(4) of the Direction.
[118]Paragraph 5.2(5) of the Direction.
[119]Paragraph 5.2(5) of the Direction.
[120]Paragraph 5.2(6) of the Direction.
[121]Paragraph 5.2(6) of the Direction.
In relation to sub-paragraph (a) of the immediately preceding paragraph [147], the term ‘limited stay visa’ is not defined in the Act. The Applicant in this case held a Class BB Subclass 155 Five Year Resident Return visa until it was mandatorily cancelled on 27 October 2020.[122] This Visa permits a person to ‘travel’ to and ‘enter’ Australia within a specified period of time once it is granted.[123] It does not specify a period for which the visa holder can remain in Australia once it is granted. As the Visa permitted the Applicant to remain in Australia without any limit on the duration of his stay, the Visa held by the Applicant cannot be classified as a limited stay visa.[124] Therefore the application of this sub-paragraph (a) is not applicable to the Applicant.
[122]Exhibit 1, pp 99-104.
[123]Regulation 155.511 of the Migration Regulations 1994 (Cth).
[124]Walker v Minister of Home Affairs [2020] FCA 909 at [29].

In relation to sub-paragraph (b) of the abovementioned paragraph [147], the Applicant has resided in Australia on a permanent basis from October 2008 when he was 28 years old. He is currently aged 43 years. He has a demonstrated work history in Australia. He is the father of one biological child in Australia who is presently aged 11 years. Whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been, ‘short’. Therefore, the Australian community’s tolerance is not necessarily lowered by this part of the principles in 5.2(4) of the Direction.
In relation to sub-paragraph (c) of the abovementioned paragraph [147], I repeat that the Applicant resided in Australia from the age of 28. He is currently 43 years of age. He has resided in Australia on a permanent basis since October 2008. He has spent just over one third of his life in this country. This means that the Australian community has a higher than usual tolerance of criminal, or other serious conduct by this Applicant.
In relation to sub-paragraph (d) of the preceding paragraph [147] I am of the view that the length of time the Applicant has spent here facilitates a raising of the community’s level of tolerance for his offending. This finding is not augmented as a result of him not having spent his formative years in this country because he arrived here as a 28 year old.
In relation to sub-paragraph (e) of the abovementioned paragraph [147] I am not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his ‘very serious’ offending for which he was sentenced in October 2020 and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the Applicant’s ‘very serious’ offending for which he was sentenced in October 2020 and the resulting harm from that conduct has been of a sufficient magnitude such as to dispel any applicable countervailing considerations.
In relation to sub-paragraph (f) of the abovementioned paragraph [147] I have found that while the Applicant’s offending does not readily fall within the auspices of paragraph 8.5(2) of the Direction, the Applicant’s very serious offending that came before Judge Jones DCJ for sentencing in October 2020 is of such a magnitude of seriousness that regardless of whether it falls into any of the componentry of paragraph 8.5(2) of the Direction, the Australian community would expect that the Australian Government can and should cancel this Applicant’s Visa.
Given that finding, even strong countervailing considerations in his favour may not assist the Applicant. This is the case even in circumstances where, as I have found, he represents a low – very low risk of re-offending and causing physical and other harm to the Australian community. Therefore, my finding must be that the nature of his offending effectively precludes any countervailing considerations working in his favour even where he represents a low recidivist risk.
Conclusion of Primary Consideration 5: Expectations of the Australian community
Primary Consideration 5 confers a certain, but not determinative level of weight in favour of this Tribunal affirming the Decision Under Review.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequences of the decision
The parties are ad idem that this Other Consideration is not relevant to the instant determination and that it should carry neutral weight. I agree.[125]
[125]Transcript p 128 lines 30-34; p 144 lines 37-47.
Other Consideration (b): Extent of impediments if removed
This other consideration requires a decision-maker to consider the impediments a non-citizen is likely to face in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), if they are removed from Australia to their home country. In doing so, a decision-maker is required to take into account:
·the non-citizen’s age and health;
·whether there are substantial language or cultural barriers; and
·any social, medical and/or economic support available to them in that country.
Paragraph 9.2(1)(a): the Applicant is a 43-year-old man in robust physical and mental health. Dr Hawkins thought him (in psychometric measuring terms) an unremarkable person. There is nothing to suggest the Applicant is anything else in terms of his physical health. This component of Other Consideration (b) should be put to one side and rendered neutral for present purposes.
Paragraph 9.2(1)(b): the applicant is clearly proficient in Mandarin. This could be seen by the giving of his oral evidence via a Mandarin interpreter at the hearing before me. He is well-familiar with Chinese cultural life. We know from his father that he has participated in Chinese community activities in this country. This component of Other Consideration (b) should be put to one side and rendered neutral for present purposes.
Paragraph 9.2(1)(c): The Applicant’s mother has remained in China. She resides there in a family-owned property. There is nothing to suggest that if removed to China, he will not have safe lodgings with his mother. Similarly, she will be able to provide him with social support as his mother. He will also be entitled to the same publicly available medical and social welfare-type support available to other citizens of China.
The Applicant notes in this affidavit that he has resided in Australia for 15 years and, if removed to China, will find it difficult to source remunerative employment there due to the current unemployment rate, which is, according to the Applicant “about 30%”.[126] He says that whatever qualifications he gained in China in the early 2000’s “are now obsolete and useless for any good job prospects in China. He also noted that people over 35 find it harder to source remunerative China.[127]
[126]Exhibit 3 [66].
[127]Transcript p 16, lines 3-17.
The only weight referable to this Other Consideration (b) exists in the Applicant’s claimed level of capacity to source employment as a 43 year-old in China. He will otherwise have social support from his mother and the same state-based medical and social welfare support as is available to other citizens of that country. Only a moderate level of favourable weight for the Applicant resides in this paragraph 9.2(1)(c) of the Direction.
Findings about impediments
I am of the view that this Other Consideration (b) confers a moderate level of weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
Conclusion of Other Consideration (b): Extent of impediments if removed
I am of the view that the state of the evidence only referrable to sub-paragraphs 9.2(1)(c) of the Direction, confers a moderate level of weight being allocable towards a finding of this Tribunal setting aside the Decision Under Review.
Other Consideration (c): Impact on victims
The parties are ad idem that this Other Consideration is not relevant to the instant determination and that it should carry neutral weight. I agree.[128]
[128]Transcript p 132, lines 32-33. p 145 lines 7-10.
Other Consideration (d): Impact Australian business interests
The parties are ad idem that this Other Consideration is not relevant to the instant determination and that it should carry neutral weight. I agree.[129]
[129]Ibid.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of neutral weight;
(b)extent of impediments if removed: is of moderate weight in setting aside the Decision Under Review;
(c)impact on victims: is of neutral weight;
(d)impact on Australian business interests: is of neutral weight.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test and if not, I must be satisfied there is another reason, pursuant to the Direction, to revoke the cancellation. As noted previously in these Reasons, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the power afforded by s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: carries a certain, but not determinative level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 2: is of neutral weight;
·Primary Consideration 3: is of a heavy level of weight in favour of setting aside the Decision Under Review;
·Primary Consideration 4: is of a heavy level of weight in favour of setting aside the Decision Under Review; and
·Primary Consideration 5: carries a certain, but not determinative level of weight in favour of affirming the Decision Under Review.
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to Primary Considerations 3 and 4 and Other Consideration (b) are sufficient to outweigh the combined weights I have allocated to Primary Considerations 1 and 5.
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding that there is another reason to revoke the mandatory cancellation of the Applicant’s Visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision dated 22 June 2023 made by a delegate of the Respondent and substitutes it with a decision that the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa should be revoked.

I certify that the preceding 172 (one hundred and seventy-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis.

.................[SGD]..............
Associate
Dated: 14 September 2023

Dates of hearing: 5 and 6 September 2023

Counsel for the Applicant:

Solicitor for the Applicant:

Mr Reimen Hii

Ms Anu Mohan (Principal)
Emerald Legal Pty Ltd

Solicitor for the Respondent:

Mr Maxwell Hopkins (Associate)

Minter Ellison Lawyers

ANNEXURE A- EXHIBIT REGISTER

EXHIBIT

DESCRIPTION

DATE OF DOCUMENT

DATE RECEIVED

1

501G documents (bookmarked G1 to G37, paged 1-167)

Various

17 July 2023

2

Applicant’s Statement of Facts, Issues and Contentions (paged 1 to 10)

11 August 2023

11 August 2023

3

[Unsigned] Applicant’s Affidavit (paged 1 to 10)

Undated

11 August 2023

4

[Signed] Mr Qing Stan Tan’s Affidavit (paged 1 to 4)

11 August 2023

11 August 2023

5

Bundle of certificates of appreciation

Various

11 August 2023

6

Report by Dr Deanne Hawkins (paged 1 to 8)

10 & 11 August 2023

11 August 2023

7

Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 10)

22 August 2023

22 August 2023

8

Respondent’s supplementary bundle of documents (bookmarked S1 to S12)

Various

21 August 2023

9

Applicant’s reply to Respondent’s Statement of Facts, Issues and Contentions (paged 1 and 2)

30 August 2023

31 August 2023

10

Applicant’s additional QCS documents

Various

31 August 2023

11

Submissions tendered by Respondent relating to the amount of $100000

Various

6 September 2023

[2023] AATA 2917

14 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Court	Date of conviction	Offence	Result
Brisbane District Court	9 October 2020	CTH- Importing Tobacco products with intent to defraud the revenue	Convicted and sentenced pursuant to s 20(1)(B) Crimes Act 1914 to 2 years and 6 months imprisonment to be released after serving 8 months on entering recognizance self $2000 to be of good behaviour for 3 years to be served concurrently and commence on date of sentence. Reparation order pursuant to the Crimes Act 1914 S21B amount: $311291.11
Brisbane District Court	9 October 2020	CTH- Possession of an/or conveyance of tobacco products, intent to defraud	Convicted and sentenced pursuant to s 20(1)(B) Crimes Act 1914 to 2 years and 6 months imprisonment to be released after serving 8 months on entering recognizance self $2000 to be of good behaviour for 3 years to be served concurrently and commence on date of sentence. Reparation order pursuant to the Crimes Act 1914 S21B amount: $311291.11

Name:	KAI TAN
ID:	[information redacted]
DOB:	10 Jan 1980
State:	Discharged

Question	Risk Item	Score
Has the offender been convicted of a Breach of Justice Order (current offence or previous offence)?	No	-2
Has the offender been convicted of an assault or related offences (current offence or previous offence)?	No	-1
Number of convictions in the past ten years (orders and prison sentences):	0	-4
Age at admission:	35 or older	-3

Sub Total:	-10
Add 11 to total Score:	11
Total	1
(Range of Scores 1 to 22: 22 being highest risk of re-offending)’
[Bold in original]

Suicide Risk:	LOW
Violence Risk:	LOW
Reoffending Risk:	LOW
Psychological Symptomatology:	LOW
Management of Disorders:	LOW
Addictions:	LOW
Overall Risk Level is LOW’[82]

Dates of hearing:	5 and 6 September 2023
Counsel for the Applicant: Solicitor for the Applicant:	Mr Reimen Hii Ms Anu Mohan (Principal) Emerald Legal Pty Ltd
Solicitor for the Respondent:	Mr Maxwell Hopkins (Associate)
Minter Ellison Lawyers

EXHIBIT	DESCRIPTION	DATE OF DOCUMENT	DATE RECEIVED
1	501G documents (bookmarked G1 to G37, paged 1-167)	Various	17 July 2023
2	Applicant’s Statement of Facts, Issues and Contentions (paged 1 to 10)	11 August 2023	11 August 2023
3	[Unsigned] Applicant’s Affidavit (paged 1 to 10)	Undated	11 August 2023
4	[Signed] Mr Qing Stan Tan’s Affidavit (paged 1 to 4)	11 August 2023	11 August 2023
5	Bundle of certificates of appreciation	Various	11 August 2023
6	Report by Dr Deanne Hawkins (paged 1 to 8)	10 & 11 August 2023	11 August 2023
7	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 10)	22 August 2023	22 August 2023
8	Respondent’s supplementary bundle of documents (bookmarked S1 to S12)	Various	21 August 2023
9	Applicant’s reply to Respondent’s Statement of Facts, Issues and Contentions (paged 1 and 2)	30 August 2023	31 August 2023
10	Applicant’s additional QCS documents	Various	31 August 2023
11	Submissions tendered by Respondent relating to the amount of $100000	Various	6 September 2023